*The HONORABLE JOHN B. JONES, United States District

Judge for the District of South Dakota, sitting by

designation.

 The Honorable Harry F. Barnes, United States District Judge 1

for the Western District of Arkansas.

 The Honorable James G. Mixon, United States Bankruptcy 2

Judge for the Western District of Arkansas.

___________

No. 95-2430

___________

William Randall Wright, *

Trustee, *

*

Appellee, *

*

v. * Appeal from the United States

* District Court for the 

Denitia Nichols, * Western District of Arkansas.

*

Appellant, *

*

Gary Joe Dean; Lucille M. Dean, *

*

Debtors. *

___________

 Submitted: January 9, 1996

 Filed: April 10, 1996

___________

Before RICHARD S. ARNOLD, Chief Judge, BOWMAN, Circuit Judge, and JONES,*

District Judge.

___________

BOWMAN, Circuit Judge.

Denitia Nichols appeals from the order of the District Court finding 1

her in criminal contempt of the Bankruptcy Court. We affirm. 2
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We do not have before us a full explanation of the relationship among

the players involved in this case, nor do we need one. We do know that the

underlying bankruptcy was a Chapter 7 filing by Gary Joe Dean and Lucille

M. Dean. Among the persons and entities involved are a company known as

Hi-Tech Coatings, Inc., actually found by the Bankruptcy Court to be the

property of the debtors, and Nichols, who at times relevant to this appeal

was serving as Hi-Tech's president. In an adversary proceeding brought by

the Trustee on behalf of the Deans and Hi-Tech, the Bankruptcy Court

entered a temporary restraining order (TRO) against Nichols, among others,

on February 12, 1993. The court ordered that Nichols and Robert J.

Johnson, an attorney (for whom Nichols worked as legal secretary, according

to counsel for the Trustee), be "restrained from removing any funds from

any accounts held in the name of Hi-Tech Coatings, Inc. or for its benefit

and [that Nichols and Johnson] shall immediately cease and desist from any

activity that would cause removal of any funds from the accounts of Hi-Tech

Coatings, Inc. or disposing of any assets of Hi-Tech Coatings, Inc."

Temporary Restraining Order at 1-2. By consent order entered March 23,

1993, the TRO was continued.

On June 24, 1993, William E. Johnson (not to be confused with Robert

J. Johnson), the attorney who had represented Nichols and Robert J. Johnson

in related proceedings in chancery court and also in the Trustee's

adversary proceeding in Bankruptcy Court beginning February 1993 until he

withdrew in April or early May 1993, delivered a check for $6733.13 to

Billy J. Hubbell, who had replaced Johnson in representing Nichols. The

check was made payable to "Hi-Tech Coatings, Inc. & Billy J. Hubbell, their

atty." and was for a refund of unearned advanced fees that had been paid

to Johnson by Hi-Tech. Nichols endorsed the check as president of Hi-Tech

and left it with Hubbell, who deposited it.

When the Trustee discovered what Nichols had done with the Johnson

check, and believing that Nichols was violating the TRO in
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other ways, he asked the Bankruptcy Court to sanction her. On February 10,

1994, a hearing was held on the motion for sanctions, and the Bankruptcy

Court indicated its inclination to find Nichols in criminal contempt,

expressing some frustration at the course of events: "This is exactly the

way she did through all these months and months and months, when she was

looting Mr. Dean's corporation, taking the money that he made, he earned,

and lavishing herself and Mr. [Robert] Johnson with these proceeds of this

fraud." Transcript of Hearing on Motion for Sanctions at 71. On August

18, 1994, the Bankruptcy Court held a show-cause hearing, giving the

parties an opportunity to supplement the record, with Nichols fully aware

that the court was planning to issue an order of criminal contempt unless

she could show cause why it should not do so. No additional testimony was

offered and the Bankruptcy Court found Nichols in criminal contempt. On

May 8, 1995, the District Court held a hearing on Nichols's objections to

the order, taking Hubbell's testimony as a supplement to the record on the

motion for sanctions from the Bankruptcy Court. After de novo review, the

District Court issued an order of contempt against Nichols and accepted the

Bankruptcy Court's recommendation of a sentence of thirty days

incarceration. Nichols appeals.

We review the District Court's decision to enter a contempt order for

abuse of discretion, giving plenary review to conclusions of law and

reviewing factual findings for clear error. See Wycoff v. Hedgepeth, 34

F.3d 614, 616 (8th Cir. 1994) (enunciating abuse of discretion standard in

review of denial of order of civil contempt); see also, e.g., United States

v. Winter, 70 F.3d 655, 659 (1st Cir. 1995), cert. denied, No. 95-8140,

1996 WL 105816 (U.S. Apr. 1, 1996); F.D.I.C. v. LeGrand, 43 F.3d 163, 166

(5th Cir. 1995). Because this is a case of criminal contempt, we will

reverse for abuse of discretion if we do not find that Nichols's behavior

constituted contempt beyond a reasonable doubt. International Union,

United Mine Workers of Am. v. Bagwell, ___ U.S. ___, ___, 114 S. Ct. 2552,

2561 (1994).
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Nichols argues that her endorsement of the check was not a knowing

and willful violation of the TRO, required to sustain the judgment of

criminal contempt, because she was relying on the advice of counsel when

she signed over the check. We shall assume without deciding that reliance

on the advice of counsel is a defense to an act of criminal contempt

(although good faith reliance on such advice would be difficult to show

where, as here, counsel benefits from the contemptuous act). But see

United States v. Di Mauro, 441 F.2d 428, 437 (8th Cir. 1971) (holding that

reliance on advice of counsel is no defense where contemnors refused to

testify in criminal trial despite being given immunity). We need not reach

the legal question, for Nichols's claim that she relied on the advice of

counsel is, to put it charitably, not supported by the record. Contrary

to Nichols's bald assertions in her brief that she relied on the advice of

counsel, neither Nichols nor Hubbell testified that they discussed with

each other whether or not the endorsement by Nichols would violate the TRO.

When asked in the initial hearing before the Bankruptcy Court "what

discussions" Nichols had with Hubbell "concerning what you should do with

this check," Nichols responded:

He brought the check--we were down--he came down to my

office and we talked about it. And because it was the transfer

of that unused portion that was ordered paid to Mr. Johnson by

[Chancery Court] Judge Vittitow, I signed the check to apply it

for his attorney fees, since he was representing me now. Then.

Transcript of Hearing on Motion for Sanctions at 11-12. Nichols never said

that she sought or that Hubbell offered advice on whether negotiating the

check so that Hubbell might deposit it into his own account would violate

the TRO. It would be far too generous an interpretation of the phrase

"talked about" to assume Nichols intended to say that Hubbell gave her

advice about the check and the TRO, upon which she then acted. In any

event, Hubbell's subsequent testimony before the District Court leaves no
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room for such a liberal reading of "talked about." When asked if he had

"any discussions with Denitia Nichols as to whether or not the--her

endorsing the check and turning the funds over to you would violate the

terms of the TRO," Hubbell said:

I don't think--no, I didn't discuss that with her because

I didn't think it did. I mean, my concern was that there might

be a turnover order or an order that was a preferential

transfer which would have to repaid [sic] but never, it just

didn't--I didn't think it violated the Temporary Restraining

Order.

Transcript of Hearing on Order of Criminal Contempt at 9 (the same page to

which Nichols's brief disingenuously refers in claiming that "[c]ounsel

then advised Nichols that she would not be violating the restraining order

if she endorsed the check to attorney Hubbell," Brief of Appellant at 6).

We do not see how it is possible to prevail in a criminal contempt case

with a defense of reliance on the advice of counsel when the party seeking

to avoid being held in contempt neither sought nor received the advice of

counsel on whether the behavior at issue would violate the court order in

question.

More generally, Nichols argues that she did not know, or even

consider, that her endorsement of the check could be a violation of the TRO

and, therefore, that her violation of the order was not willful. In the

context of criminal contempt, willfulness "means a deliberate or intended

violation, as distinguished from an accidental, inadvertent, or negligent

violation of any order," and the necessary intent "may be inferred from the

evidence." Hubbard v. Fleet Mortgage Co., 810 F.2d 778, 781 (8th Cir.

1987) (citations to quoted cases omitted). Our review of the record

convinces us that Nichols's endorsement of the check was an act of criminal

contempt, as it was "a volitional act done by one who knows or should

reasonably be aware that [her] conduct is wrongful." In re Holloway, 995

F.2d 1080, 1082 (D.C. Cir. 1993) (emphasis omitted
 At oral argument, Hubbell claimed that Nichols's 3

endorsement of the check was not a violation of the TRO in the

first instance because the check was not an asset of Hi-Tech. It

is true that the original fee paid to William Johnson arguably

was paid before the TRO was in place, although the hearing

transcript from the Bankruptcy Court indicates that there was an

issue about when the last of the payments was made, and counsel

advised the Court at oral argument that the Trustee in fact had

settled with William E. Johnson to recover at least a portion of

those funds. But the timing of the payments to Johnson does not

change the fact that they were made from a Hi-Tech account, and

thus the "refund" also was of Hi-Tech funds. Moreover,

regardless of when the payments to Johnson were made, the refund

was made after the TRO was entered, and the check was made

payable to Hi-Tech. We reject the argument that the refund check

was not an asset of Hi-Tech.

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and alteration added) (quoting United States v. Greyhound Corp., 508 F.2d

529, 531-32 (7th Cir. 1974) (citation to quoted case omitted)), cert.

denied, ___ U.S. ___, 114 S. Ct. 1537 (1994).

The Bankruptcy Court did "not credit [Nichols's] explanation . . .

that she didn't understand that this was Hi-Tech's money." Transcript of

Hearing on Motion for Sanctions at 69. Given the undisputed facts in the

record, neither do we. The check was made payable to Hi-Tech, not to

Denitia Nichols. A note on the check indicated it was a "refund"--of funds

originally paid not by Denitia Nichols but by Hi-Tech. As with any

accounts payable, the check was an asset of the company, as anyone in the

position Nichols held reasonably should have known. Nichols was president 3

of the company, and had been operating Hi-Tech for more than four months

under a court order not to remove funds from or to dispose of the assets

of Hi-Tech. We agree with the courts below that, whether or not Nichols

(or Hubbell) considered the endorsement a violation of the TRO, she

reasonably should have known it was.

Moreover, the District Court had other reasons for concluding that

Nichols's behavior was willful. As noted above, the Bankruptcy Court was

on the record as having found a pattern of "looting" of Hi-Tech assets by

Nichols. The analysis of whether
 We note that, although Nichols makes much of the fact that 4

Johnson was paid with Hi-Tech funds with the permission of

Chancery Court Judge Vittitow, which permission he gave in a

related state court proceeding, Judge Vittitow himself was

restrained from all further actions in that related proceeding by

the same TRO under which Nichols was restrained.

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Nichols's violation of the TRO was willful "properly encompasses the

contemnor's behavior in related incidents such as disobedience or

resistance to other orders of the court." In re Holloway, 995 F.2d at

1082. Further, Hubbell testified that he and Nichols did discuss the

possibility of a preferential transfer and turnover of the funds, so it

strains credulity to think that it never occurred to either of them that

the endorsement also would violate the TRO.

"The facts cannot possibly be fitted into the pattern of an innocent

stumbling into an unintended transgression." United States v. Prugh, 479

F.2d 611, 612 (8th Cir. 1973) (quoting United States v. Custer Channel Wing

Corp., 376 F.2d 675, 682 (4th Cir.), cert. denied, 389 U.S. 850 (1967)).

Well known to Nichols, the restraining order was issued in the first place

for a reason--her previous contumacious conduct involving the assets of HiTech. Nichols clearly was on notice that her actions relating to the

assets of Hi-Tech (and a check made out to Hi-Tech, no matter what the

check was for, clearly put Nichols on notice that it was an asset of the

company) would be subject to scrutiny under the terms of the TRO. We hold 4

that the evidence establishes beyond a reasonable doubt that Nichols's

behavior in endorsing the check was neither accidental, inadvertent, nor

negligent, and thus that she willfully violated the TRO. The District

Court did not abuse its discretion in holding her in criminal contempt of

the Bankruptcy Court.

Nichols also contends, in an argument not raised in the District

Court, that the courts below erred in allowing counsel for the Trustee to

"prosecute" Nichols for criminal contempt. An issue
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not timely raised in the district court ordinarily is forfeited. United

States v. Olano, 507 U.S. 725, ___ , 113 S. Ct. 1770, 1776 (1993). We may

consider the issue, however, if there is plain error affecting the

defendant's substantial rights, that is, plain error shown by the defendant

to be prejudicial, and we should reverse "if the error `seriously affect[s]

the fairness, integrity or public reputation of judicial proceedings.'"

Id. at ___, 113 S. Ct. at 1778, 1779 (quoting United States v. Atkinson,

297 U.S. 157, 160 (1936)). Nichols has not met her burden of showing that

the actions of counsel for the trustee resulted in plain error, much less

that they affected her substantial rights such that reversal is required.

In support of her argument, Nichols relies upon Young v. United

States ex rel. Vuitton et Fils S.A., 481 U.S. 787 (1987), a case that is

easily distinguished. In Young, an injunction was issued prohibiting

certain individuals from manufacturing and distributing imitation Vuitton

products. Subsequently, lawyers for Vuitton asked the district court to

appoint them as special counsel to prosecute the individuals against whom

the injunction was issued for criminal contempt for alleged violations of

the injunction. The court did so. The Supreme Court held "that counsel

for a party that is the beneficiary of a court order may not be appointed

as prosecutor in a contempt action alleging a violation of that order."

Id. at 809. The Trustee here originally sought sanctions against Nichols

for violating the TRO in a civil proceeding, but he did not initiate

proceedings for criminal contempt, that is, neither he nor his attorney

prosecuted Nichols, and no one appointed either of them to prosecute the

criminal contempt. The Bankruptcy Court sua sponte, for reasons related

to Nichols's ongoing contumacious conduct in that court, decided to order

Nichols to show cause why she should not be held in criminal contempt of

its restraining order. Based in part on the record in the civil

proceeding, and without objection to that procedure, the Bankruptcy Court

concluded Nichols was in criminal contempt. To
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this point in the proceedings, it is clear there is no error of any kind

in the procedure employed. Although it is not apparent to us why the

Trustee then defended the contempt order against Nichols's objections in

the District Court and on Nichols's appeal to this Court, it appears from

the record that Nichols acquiesced in that procedure in the District Court

and until she filed her brief in the present appeal. We cannot say that

Nichols has demonstrated, at this late date, plain error that would warrant

reversal.

The judgment of the District Court is affirmed.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.