case number one seven dash four two six four usa v thomas thompson or arguments not to exceed fifteen minutes precisely mr russell stephan been seeing for the pol it please the court my name is russell benson i'm here on behalf of tom tom thomas thompson i'd like to reserve three minutes of my time per bottle and i think there's a tendency to look at this is a case involving statutory construction and contractual interpretation a plea agreement of course being the contract and i don't think it is because the cardinal rule of statutory construction and contractual interpretation is you don't go there unless there is an ambiguity i don't think there's any ambiguity in the statute i don't think there's any ambiguity in what the court ordered here and i think that it falls clearly what the court ordered here falls clearly within the statute let's start with the statute eight hundred twenty six and that says a basically that if a court orders a person to testify or provide other information including any book paper document record recording or other material if the person refuses to do so the court can incarcerate contempt but not longer than eighteen months so the next document you come to is the plea agreement and the plea agreement specifies exactly what mr thompson is supposed to do with regard to his criminal contempt citation and he is to assist the parties in identifying and recovering assets defended agrees to testify under oath at a proceeding amounting to a debtor's examination to identify and recover  sentence does the defendant agrees to assist in identifying and recovering assets so why does that not include hypothetically producing gold coins i don't think it does your honor because he's disposed to provide information regarding those assets to allow them but but you're when you're when you're just reading that first sentence defendant agrees to assist in identifying and recovering assets seems very broad well how is he supposed to assist in recovering those the defendant have the gold coins in a safe in his house as sting would be to to prove assisting in recovering the assets would be here are the gold coins yeah i agree with that but again if you look at the armstrong case which is clearly one involving the recovery of assets where the defendant is told produce these assets mr mitchell and mr thompson was not to want to produce assets he was told to provide information to enable t recovery of the well that first sentence doesn't say what you're saying it says you're relying on the rest of that paragraph but not the first sentence well if they don't you have to agree with me and agrees to assist in identifying and recovering assets yes and then the second paragraph i think they have to be read in peril material because the second portion spells out how his assistance is to be offered by sitting for a deposition and if you look further if you look at the show cause motion that's found on page id one twenty eight the joint motion to enforce the plea agreement what does the dispatch company ask for it ask for him to be ordered to sit for an examination under oath and answer the questions posed to him and then provide discovery as required by the plea agreement then you look at what the judge did with regard to  what he ordered him to do over time each time they had a status conference or a contempt hearing once you perform the act by the court that is agreed to sit down and participate in the debtor's examination this  incarceration will be lifted and does that doesn't that mean meaningful participation answering information fully and completely to the to the extent of that person's knowledge i mean oh absolutely it does but that's the problem is if he doesn't do that he can be held in civil contempt but that clicks in with eight hundred twenty six and eight hundred twenty six says you can't hold him for longer than eighteen months if he doesn't do that  if if the hypothetical if the plea agreement and the order simply said defendant must produce the gold coins then eight hundred twenty six would not apply is that right you're absolutely correct i will agree with you on that one and then the same thing with the later in the hearings page id seven twelve if you go in there and answer the questions directly and honestly  not a base of only you can then perjure yourself of contempt on the page eight fifty seven another status conference it may be that the status conference will be unnecessary because he'll answer questions and  perjure himself with the contempt over and over again the court clearly indicates that he can purchase by contempt of contempt by sitting for the deposition that's all it requires him to do there is no requirement that he turn over assets there is no requirement that there is nothing in the record here to indicate that he had assets he had information regarding those assets and the only way that the district court came up with the idea that that fell outside of eight hundred twenty six was by looking at armstrong and saying that in armstrong the defendant was clearly ordered to turn over assets and the district court here said giving information about assets is the same as turning over assets there is no support for that in the case law there is no support for that in logic this record clearly demonstrates that mr thompson was ordered to sit for a deposition and nothing more he was required to answer questions he didn't answer those questions and he was held in contempt for it but section eight hundred twenty six says that the maximum period of contempt is eighteen months and that's what this court shouldn't force there any further questions but one question is if if we were to think that the plea agreement was clear in that first sentence requiring assisting in recovering assets said the later comments of the district judge change what is required  your client well i think again as i said earlier i believe that the plea agreement in full you can't very first sentence from the rest of it and i think it but i think that yes i think that the later comments by the i think the or the motion to enforce the plea agreement that all focuses attention on what the defendant was supposed to do that illuminates what the defendant was supposed to do and what the defendant was supposed to do was sit for a deposition so then the district judge in your view changes his mind when he actually decides on the applicability of eight hundred twenty six because at that point the district judge has a little bit of a different view yes that's when he looks to armstrong which he finds to be on all fours which it's not even on all to disagree with i do get that but what i'm seeing then is that the district judge has arguably evolved in his understanding of what this plea agreements where i think that when it comes time that somebody points out to him hey you can't hold this guy for longer than eighteen months under this plea agreement then the plea agreement becomes well it's a little bit more but i think even at that point had m in and sat at a doctor's examination and answered all the questions that would have purged him of contempt because that's exactly what the judge told him would happen if he sat down answer the questions truthfully you will perjure yourself  question is almost invariably reviewed the novo i don't think the judge has the discretion to decide that eight hundred twenty six doesn't apply it either applies or it doesn't or there isn't there a question about what the plea agreement  further question thank you thank  you please the court alexis to harry on behalf of the united states the district court's order here sought the same thing as the preliminary injunction did in the civil case and that is the recovery of assets and an order requiring to secure them in both cases the defendants refused to cooperate and in both cases they were held in contempt now there's a slight difference here our turnover order wouldn't exactly work and that's because mr thompson took steps to hide the assets but i still maintain that that the language that judge moore was pointing to seeking assistance with the recovery of assets i absolutely a kin to a turnover order and it would certainly be a strange result here if mr thompson through his own bad actions could somehow kept his confinement at eighteen months where mr armstrong served in excess of seven years for civil contempt so i think the district court was absolutely right in finding that armstrong is analogous here if this clear agreement did not have the first  then wouldn't this be simply a requirement that the defendant testify at a debtor's examination and wouldn't this be covered by twenty six it certainly would be a much much more and easier case in some ways because i wouldn't quibble with that testify language in that that would fall under eighteen twenty six but there's a cavity out here mr thompson testified he didn't refuse an order to testify he sat for a debtor's examination for six hours and he offered testimony now we did he assist in the identification and recovery of assets no he didn't but he absolutely appeared and testified and so the and that's a just that's an important distinction well but i'm just trying to figure out than if he did appear and has to try and if testimony was all that was required under my hyper without that first then why does an eight hundred twenty six apply and so he can be held in jail only for eighteen months i think that eight hundred twenty six  to the content of testimony there are other mechanisms through which you know perjury for example if someone comes in and doesn't answer truthfully but there is no requirement that they it doesn't apply where you fail to provide specific and helpful information and and that's what happened here mr thompson was a vase of but he absolutely appeared and answered questions it's just that those answers did not assist in the identification and recovery of assets and that is what the plea agreement required and that is what the district court's order here required so are you saying that he can be held indefinitely in jail because his answers that he gave with his daughter examination did not assist the united states is not saying that mr thompson can be held indefinitely here we're saying that eight hundred twenty six is not a limit on his confinement due process absolutely would be a limit there are other there are other ways through which his confinement could be could be checked so what would the due process limit be for somebody who such as he who has not  provided assistance as you say that the case law says that there must be a relationship between the confinement and the course of purpose and the purpose is to find out this information is that what the perp the purpose is to recover assets  and the only reason he was ordered to turn them over is because one of the defendant entities before declaring itself bankrupt transferred these gold coins to mr thompson who then  stated in the civil case in a declaration and then stated in his debtor's examination here that he then transferred those to an irrevocable trust somewhere maybe billy's who knows and really can't tell us much more than that but even in your statements here you say that you're not asking that he be you don't argue that he could be held indefinitely you have there are you know there are mechanisms but you know you haven't said anything that would put which would provide a mechanism or notice of a mechanism that that this compound could be could be checked and you know the other issue with the  transferred and let me give you an example in this case it became clear that there does exist a trust and there was communication with a representative and they said we can't tell you anything unless mr thompson s a power a limited power of attorney and the district court interpret in its own order said identify and recover here includes an action it includes an action such as signing a limited power of attorney and mr thompson has refused but i think i'd like to pivot there and talk a little bit about if i've answered your question of course talk a little bit about the district court here the district court some deference needs to be given because a district court was interpreted in its own order and the court found here that identify and recover paragraph four and did not merely require testimony it specifically said contemplated an action such as signing a limited power of attorney because when you save the district court interpreted its own order is this this is a plea agreement this is a plea agreement between thompson and the u s right that's right your honor it was the language certainly comes from the parties clear plea agreement and then the district court orders him to comply with paragraph four and that just ok but normally would were interpreted in clear agreements don't we read any ambiguity in favor of the defendant i think that's true as a eleven c one c agreement so the district court did approve it i think the district court is certainly closer to the facts here but to the extent your honor thinks that this court isn't as good of a position that's that's totally fine because i think that the language here is is quite clear identify and recover recover is extremely is extremely broad and i'd add that based on mr to identify and recover those actual words are defendant agrees to testify under oath that are proceeding come a amounting to a debtor's examination either calm or period to identify and recover assets so that's tied in with testify under oath to the proceeding is i think that's the involved i think it clearly has included some more definitive language to characterize his obligations or the obligations at least at the invitation i think that they also could have just said mr thompson needs to sit for a debtor's examination and answer questions and the district court could have said that it's ordered to but it didn't it required him to to comply with paragraph or essay and the district court repeatedly comes back to this identify and recover language and in finding that it requires something more so if we could be precise about what the government contends mr thompson must do to purge this content what is for as a starting matter he should  are are i don't understand what their their restrike chords are commemorative coins there's the gold from the shipwreck was taken and put in these coins are what i am just making things up from what i might be to so far as i can understand yes the gold is is hauled and brought to shore and then the gold bars are minted and they're made into these little commemorative coins that i think may bear some hallmarks of that time period ok and so so we also have at least my understanding is that there's some document that's been filed in the district court document one fifty four which is a motion to terminate civil contempt sanctions in the district court and seems to indicate that there's been some agreement is this relevant to our case at all i think that the document you're referring to is making the district court aware that and i don't want to get too bogged down into the civil case because it's fairly complicated but the part of the civil case that was remanded to state court or jury verdict was entered in that case and so i believe that mr thompson is making a room for new motion to terminate civil contempt on that basis it's the government's because of course the district court it's up to the incident has not ruled o nor has any party responded to it your position is that it is not relevant to our decision that's correct your honor i don't think that i think this appeal remains ripe so if thompson refuses to sign the document that you want him to sign the limited power of attorney to be the stressed how long can thompson be held in jail in civil contempt under your view i think that's a fact intensive question and it's a question for the district court in the first instance and mr thompson i know isn't arguing here and to my knowledge has not argued in the district court that he is unable to comply with with the orders and so far as the case law is concerned it's mostly can it's mostly interested in whether or not there is a course of effect now there are some others who believe that then judge sort of my r said this  armstrong that resolute unwillingness at some point needs to be treated similarly to an inability to comply so but that isn't before the court here today we're here today on a on a fairly narrow narrow issue but it's certainly the government is sensitive to to due process and it's certainly not the government's position that mr thompson can you know remain confined indefinitely in the scenario is there a reason to treat civil contempt of length of jail sentences and civil contempt sentences or in jail term or whatever is there a reason to treat it differently when it comes to testimony and refusals to testify versus a refusal to do this power of attorney in other words why would congress have an eighteen month limit under eighteen twenty six and that not be the appropriate limit to think of even if we say this is not covered by twenty six i think if you look at the legislative history that the limit came from the course of nature of civil contempt which is generally at the conclusion of a proceeding  course of the fact evaporates and so the eighteen month period initially i think was supposed to mirror the normal grand jury term and they kept it at eighteen months even though there was a thirty six month grand jury term because they were worried that maybe it could get more punitive but i'd like to draw a distinction i think that to your point testimony to congress was in visioning a conscientious objector a journalist seeking to protect someone here we have in obstruct or we have someone who's repeatedly refused to obey orders of courts beginning in the civil case and now here we are today i see that my yellow light is on if i may just make one additional argument as to why we don't think twenty six applies and this is included in our brief but we also know that thompson does not qualify as a witness under this statute a witness means someone who gives evidence in a cause and here  thompson is a post plea defendant who's been ordered to comply with this plea agreement pleased him and he bargained for that he agreed to and more importantly the assistance that he agreed to provide it doesn't relate to the merits of any case relates to finding assets and so i see my red light is on for all those reasons the united states asked the court to affirm several points first of all this case would be just like armstrong if the judge here had ordered mr thompson to turn over the gold coins that would have been very simple ordered to do and then however mr thompson wants to do it by signing a powerful attorney by giving information about it he does it but the order is to turn over the gold coins that's not what you have here and if you look at armstrong there is a definite or u turn over this you turn over the bully and you turn over the computer you turn over various items there is no comparative order here he's required to sit for a deposition now i i not suggesting that simply sitting for the deposition resolves the contempt issue he has to give meaningful answers in the deposition ok in the debtor's examination i don't dispute that he can't just go there and say i don't remember anything and perch him self of contempt but that goes back to him being a witness and he's very clearly covered by eight hundred twenty six you resolved that in the mitchell case where you held that the defendants who were required to give voice exemplary were covered by eight hundred twenty six so i don't mean that it's a simple point he's required to give testimony that's the thing that the judge said repeatedly if you sit down for the deposition to give meaningful answers you will perjure yourself of contempt that's what the judge said repeatedly that's what he bargained for if the government wanted something more i mean let's not enter into the delusion that a plea agreement in a criminal case is bargaining among equals so do you agree then at this point that he did not give meaningful answers and therefore that he could be held but only for eighteen months that is exactly our position thank you thank you both for your argument the case of the civilian and with the clerk adjourned court