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United States v. Thompson

United States Court of Appeals, Sixth Circuit

May 29, 2019

United States of America, Plaintiff-Appellee,
v.
Thomas G. Thompson, Defendant-Appellant.

          Argued: December 6, 2018

          Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 2:15-cr-00081-1—Algenon L. Marbley, District Judge.

         ARGUED:

          Russell S. Bensing, Cleveland, Ohio, for Appellant.

          Alexis J. Zouhary, UNITED STATES ATTORNEY'S OFFICE, Cincinnati, Ohio, for Appellee.

         ON BRIEF:

          Russell S. Bensing, Cleveland, Ohio, for Appellant.

          Alexis J. Zouhary, UNITED STATES ATTORNEY'S OFFICE, Cincinnati, Ohio, for Appellee.

          Before: MOORE, CLAY, and DONALD, Circuit Judges.

          OPINION

          KAREN NELSON MOORE, CIRCUIT JUDGE.

         Defendant-Appellant Thomas Thompson appeals the district court's denial of his motion to terminate his civil-contempt sanctions in accordance with 28 U.S.C. § 1826. Because we determine that Thompson's sanctions do not fall under the eighteen-month incarceration limitation of § 1826, we AFFIRM the district court's order.

         I. BACKGROUND

         This case originated as part of consolidated civil actions filed in 2005 and 2006 against Thompson and numerous other business-entity defendants. See Civ. R. 3 (Compl.), 2:06-CV-00292 (S.D. Ohio)[1]; Williamson v. Recovery Ltd. P'ship, 731 F.3d 608, 616-17 (6th Cir. 2013) (discussing the factual and procedural background of the civil case). The civil plaintiffs were a group of employees and one business hired by Thompson to assist him in locating a long-sunken ship and recovering the treasures it contained. Williamson, 731 F.3d at 616. Following the discovery of the ship and the removal of various items, including gold, the plaintiffs filed suit to recover some of the profits they contended they were owed. Id. During the course of that litigation, the district court entered a preliminary injunction instructing Thompson that "he shall not sell, encumber, transfer or diminish in value" any re-strike or commemorative gold coins he had in his possession. Civ. R. 738 at 1-2 (Page ID #13314-15). If the coins were not in Thompson's possession, Thompson was instructed to "submit a declaration under oath describing in detail the parties to whom the coins were transferred, any consideration received or outstanding, the date of such transfer, and the names of the recipients." Id. at 2 (Page ID #13315). The district court subsequently entered a temporary restraining order when Thompson transferred the coins to a third-party trust. See Civ. R. 770 at 1 (Page ID #13704). The order prohibited the trust "from disposing of, encumbering, transferring or diminishing in value in any way the 500 gold restrike coins." Id.

         Prior to the temporary restraining order but after Thompson failed to provide the information detailed in the preliminary injunction, the district court issued an order requiring Thompson to attend a hearing in August 2012 to "show cause why the Court should not hold him in contempt." Civ. R. 761 at 1 (Page ID #13490). The district court explained that if Thompson did not attend the hearing, a warrant would be issued for his arrest. Id. When Thompson failed to appear, and instead absconded to Florida, an arrest warrant was issued. See Crim. R. 3 at 2 (Crim. Compl.) (Page ID #5). A criminal complaint was filed against Thompson charging him with failing to comply with the district court's orders in violation of 18 U.S.C. § 401(3).[2] Id. at Page ID #3, 8. Following his arrest in January 2015, an information was filed charging Thompson with violating § 401(3). Crim. R. 13.

         In March 2015, Thompson entered into a Rule 11(c)(1)(C) plea agreement, Crim. R. 14, which the district court later accepted, see Crim. R. 20 at 28-29 (Page ID #91-92). Pursuant to his plea agreement, Thompson agreed to:

assist the Parties in Case No. 06-CV-0292, and any other party identified by the Court as having an interest, in identifying and recovering assets. Defendant agrees to testify under oath at a proceeding, amounting to a debtor's examination to identify and recover assets. This examination shall include, but is not limited to, questions regarding the gold strike commemorative coins which were the subject of previous orders in Case No. 06-CV-0292. After Defendant answers questions in the debtor's examination, a reasonable time will be permitted for a process amounting to civil discovery to verify answers and trace assets. After the debtor's examination and a reasona[b]le period of time for discovery, if the government is satisfied that all questions have fully [sic] answered, it shall recommend to the Court that the civil contempt be deemed "cured." This term shall not bar the Court from adducing and ordering a sentence including incarceration in this case for criminal contempt. The government acknowledges that it is the Parties' intention that the identification of property and assets shall proceed as a condition of Defendant's cooperation under the terms of this Agreement and that the determination of whether Defendant has in fact cooperated in this regard shall be made by this Court and only by this Court, consistent with the terms and conditions of this Agreement. Further, the government acknowledges that it is the Parties' intention that any sanctions or consequences arising from Defendants' failure to cooperate in the identification and recovery of assets in Case No. 06-CV-0292 be determined and imposed by this Court as part of the instant proceeding, and only by this Court as part of the instant proceeding . . . .

Crim. R. 14 at 2-3 (Page ID #49-50). Prior to sentencing, certain parties from the civil action, as well as a state-appointed receiver from a connected state action, filed a motion to enforce the plea agreement against Thompson. See Crim. R. 28 at 1 (Page ID #128). On September 22, 2015, the district court ordered Thompson to "submit to a debtor's examination, pursuant to the terms of his plea agreement, during the week of October 19, 2015." Crim. R. 33 at 1-2 (Page ID #218-19).

         Although Thompson initially sat for the examination, the civil parties and receiver filed a motion to hold Thompson in civil contempt for violating the plea agreement. See Crim. R. 46 at 1-4 (Page ID #300-03). The movants contended that not only did Thompson refuse to provide sufficient answers to their questions regarding the location of the coins, but when the government attempted to schedule another examination, "Thompson's counsel announced that Thompson [wa]s invoking his Fifth Amendment privilege and w[ould] not answer any further questions." Id. at 4 (Page ID #303). In response to this motion, on November 16, 2015, the district court ordered Thompson "to submit to a second debtor's examination by the Government and the Williamson plaintiffs" and "to comply with the terms of his plea agreement, in particular, Section 4(a)." Crim. R. 50 at 1 (Page ID #494). The district court then quoted from paragraph 4(a) of the plea agreement, explaining that Thompson had agreed to:

assist the Parties in Case No. 06-CV-0292, and any other party identified by the Court as having an interest, in identifying and recovering assets. Defendant agrees to testify under oath at a proceeding, amounting to a debtor's examination, to identify and recover assets. This examination shall include, but is not limited to, questions regarding the gold ...

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