South Carolina Criminal Defense Blog

Any attorney practicing criminal defense law in the Federal Courts should be concerned with what is happening in the Eastern District of Tennessee. Earlier this month, I wrote about how Herb Moncier had been suspended from federal practice. I reviewed Chief U.S. District Judge Curtis L. Collier's order and it is difficult to see where the specific conduct complained of by the Chief Judge warranted the punishment imposed or the blistering language of this and subsequent orders.

It seems that Moncier is being punished for aggressively representing his clients. The fact that the move to disbar him from federal practice was initially attempted to be kept secret is even more disturbing.

Moncier's attorney Ralph Harwell filed a motion requesting a stay of the Chief Judge's order and requesting that Moncier be permitted to remain as counsel for the completion of a client's case which was set for trial on May 20 of this year. In Chief Judge Collier's ruling he again blistered Moncier, accused him of further misconduct, accused him of lying, and called Moncier a "danger to the public."

However, an article by Jamie Satterfield in the Knoxville News Sentinel points out that Chief Judge Collier misrepresents Moncier's conduct in his ruling:

Collier accused Moncier in the ruling of misconduct in filing a motion in a high-profile case in Kentucky asking a federal judge to step down from that case. Collier wrote that he "has been informed" by the Kentucky court that Moncier's motion was "an unethical attack on the court in a frivolous effort to disqualify that judge from presiding over the case."

Collier then cites as proof a small section of Kentucky U.S. District Judge William O. Bertelsman's ruling in which Bertelsman refused to step down from the case. That section does allege "serious ethical violations" committed by "attorneys" in the case.

A review of the entire ruling and all documents filed in the Kentucky case shows, however, that Bertelsman's chief complaint lay with an attorney representing an alleged co-conspirator of Moncier's client. A review of the entire case file shows that Moncier did not file the original request to have Bertelsman booted off the case. Instead, co-counsel O. Hale Almand Jr., a Kentucky lawyer, did so months ago.

An attorney for an alleged co-conspirator renewed the motion earlier this year with fresh allegations against Bertelsman that the judge since has deemed "outright misrepresentations." Almand, not Moncier, filed a motion asking to join in those new claims.

Moncier notified Bertelsman of Collier's suspension order the same day it was filed. He stepped down from that Kentucky case after a hearing before Bertelsman the next day.

Moncier's attorney Ralph Harwell has filed three additional motions this week, asking for clarification of Chief Judge Collier's prior orders, asking for additional findings regarding an attorney referenced in Collier's Order, and asking for additional findings regarding Collier's ruling as to Moncier's motion to disqualify Collier from the proceedings.

The pleadings in Moncier's proceedings can be found at his website, Moncierlaw.com, or can be downloaded from Pacer:

United States v. Michael Vassar, EDTN 2:06-cr-70
United States v. Michael Vassar, EDTN 2:06-cr-75
United States v. Herbert S. Moncier, EDTN 2:07-cr-40
United States v. Herbert S. Moncier, 6th Circuit 07-6053
United States v. Lee Almany, EDTN 1:08-cr-01
United States v. Lee Almany, 6th Circuit 08-5110
In re Herbert S. Moncier, EDTN 1:08-mc-09

The following is Herb Moncier's account of events:

I have tried a number of high profile federal cases over my 38 years of practice and have upset a lot of prosecutors and judges. I have been a president and long time board member of the Tennessee Association of Criminal Defense Attorneys; a member of NACDL since 1980; A-V Martin Dale Hubble since 1981; Best Lawyers in America; 101 best lawyers in Tennessee; and Southeastern Super Lawyers.

On November 17, 2006 I was at a contentious sentencing hearing in a high profile case where my client was facing three jury trials was acquitted in the first; the second was dismissed and he was convicted at the third of the least possible offense - an offense that he admitted. The sentencing hearing was a war. see United States v. Michael Vassar. I had a recorded statement from the informant in support of reasons not to sentence my client for acquitted conduct. The informant said the prosecutors and FBI agents visited him in jail shortly before my client's trial and threatened him that if he did not testify to matters he said were untrue against my client that they would pull a 10-15 recommended sentence he had been promised. He refused and the day after my clients trial the prosecutors pulled his recommendation and recommended a 27 year sentence that he received. I had filed a transcript of the statement four days before my clients sentencing and subpoenaed the informant to testify at the sentencing hearing on November 17th.

The day before the sentencing hearing the prosecutor wrote me a letter that the same jail house informant allegedly in 2005 made a statement that my client set for sentencing, Vassar, knew information about another client I represented who was a target but had not been charged. At a hearing in March 2006, conducted by the judge my client Vassar had testified under oath that he knew nothing about any other client I represented including the target. The prosecutors did not mention the alleged 2005 statement of the informant to me or the judge in March 2006.

On November 17th I attempted to have the judge appoint an independent attorney to clear up the potential of a conflict raised by the prosecutor the day before the November 17th hearing. All of my efforts to clear up the potential of a conflict failed. Just before the lunch recess after which the sentencing hearing was to begin the judge called me and my client to the podium in the presence of the prosecutors and FBI and began to question my client. I objected. The judge overruled.

The questions turned to what I perceived to be an attempt by the judge to clean up the record by getting Vassar to make an unadvised waiver. I again objected. The judge instructed me to stand there and be quiet until my client answered his questions. I requested to approach the bench to explain why I was objecting, out of the presence of the public. The judge refused to permit me to approach the bench.

I then again objected from the podium and the judge said "Mr. Moncier one more word and you're going to jail."

My client had been, and was continuing to attempt to speak to me. I asked the judge "May I speak to my client". I was arrested and taken into custody. I was then charged with criminal contempt of court; tried before the same judge without a jury; convicted and sentenced to 1 year probation, a fine of $5,000.00, 150 hours community service, an anger management course and three extra hours CLE. see United States v. Herbert S. Moncier.

That conviction is on appeal to the Sixth Circuit. see United States v. Herbert S. Moncier.

Later in December 2007 I was hired by another high profile defendant to try his case before the same judge. The day I entered my name the prosecutors who had prosecuted me for contempt filed a motion to disqualify me. My client filed a 28 U.S.C. § 144 affidavit to disqualify the judge. On January 3rd the judge disqualified himself. On the same day the Chief Judge of the District assigned the case to himself 200 miles away in Chattanooga Tennessee and set a hearing on the prosecutor's motion four days later.

A hearing was held on January 9th; I filed all the necessary declarations; and my client answered approximately 30 minutes of questions correctly. The judge then disqualified me without findings and ordered me out of the well of the courtroom and not to speak to my client, his family or friends and appointed my client a local attorney. Later, after disqualifying me
the judge sua sponte transferred the case back to the judge that originally disqualified himself. see United States v. Glen Almany.

Seven days later on January 17th I received a Show Cause Order from the Chief Judge why I should not be disbarred for my conduct at the November 17, 2006 hearing where I was found in contempt. see In Re Herbert S. Moncier.

That case become a high profile proceeding resulting in recent orders blistering me and my immediate suspension from federal court for five years. The pleadings in that case can be viewed at www.moncierlaw.com.

I did not, and do not, yell, curse, use disrespectful tone, slam books or storm out of courtrooms. I was held in contempt of court for asking to speak to my client. I have been disbarred because of the style that I defend my clients.