United States of America v. Thomas G. Thompson

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

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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

1Because this appeal references two district-court cases, this opinion will refer to the record of the 2006

civil case as “Civ. R.” and the record of Thompson’s criminal case as “Crim. R.”

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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

218 U.S.C. § 401(3) states: “A court of the United States shall have power to punish by fine or

imprisonment, or both, at its discretion, such contempt of its authority, and none other, as . . . [d]isobedience or

resistance to its lawful writ, process, order, rule, decree, or command.”

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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 strike commemorative coins which were the

subject of previous orders in Case No. 06-CV-0292.

Id. at 2 (Page ID #495). The district court noted that “[i]f Thompson does not comply with the

Court’s Order to sit for the debtor’s examination, he will be ordered to show cause why he

should not be held in civil or criminal contempt for failure to comply with a Court order.” Id.

Following another delay, Crim. R. 54 (12/4/15 Gov’t Notice) (Page ID #500), Thompson

appeared at an examination on December 14, 2015, but refused to answer any questions, Crim.

R. 56 at 1–2 (Show Cause Hr’g Order) (Page ID #505–06). The district court then ordered

Thompson to appear in court the next day to “show cause as to why this Court should not hold

him in civil or criminal contempt for failure to comply with the November 16, 2015 Order.”

Crim. R. 56 at 2 (Page ID #506). The order quoted the same section of paragraph 4(a) of the

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plea agreement as the November 16, 2015 order. The show-cause hearing was scheduled for the

same day as his previously scheduled sentencing. Id.

On December 15, 2015, the district court conducted Thompson’s criminal-contempt

sentencing and civil-contempt show-cause hearing. After stating the sentencing factors under 18

U.S.C. § 3553(a), the court sentenced Thompson to two years of imprisonment for criminal

contempt. Crim. R. 67 at 32–37 (Sentencing Tr.) (Page ID #666–71). However, the district

court held Thompson’s criminal sentence in abeyance until Thompson completed any civilcontempt

sentence imposed during the show-cause hearing, which immediately followed the

criminal-contempt sentencing. Id. at 39 (Page ID #673). After the conclusion of the show-cause

hearing, the district court held Thompson in civil contempt for “not cooperating during the”

December 14, 2015 debtor’s exam, in violation of the district court’s November 16, 2015 order.

Id. at 73 (Page ID #707). The district court ordered Thompson to “be incarcerated indefinitely

until you comply with this Court’s order to provide the type of information that you had

previously agreed to provide.” Id. at 73–74 (Page ID #707–08). He was also ordered to pay the

court a fine of $1,000 per day. Id. at 75 (Page ID #709). In an accompanying written order, the

district court cited its “inherent power to enforce compliance with [its] lawful orders” as the

basis for its decision to order the civil-contempt sanctions. Crim. R. 63 at 3 (12/16/15 Contempt

Order) (Page ID #623) (quoting Shillitani v. United States, 384 U.S. 364, 370 (1966)). The

district court concluded that it would assess Thompson’s compliance every sixty days. Id. at 5

(Page ID #625). This court dismissed Thompson’s appeal of his criminal-contempt conviction

and sentence for lack of jurisdiction because the district court had expressly reserved entry of

judgment in the criminal case “pending Thompson’s purge of a civil contempt order entered in

the same case.” See United States v. Thompson, No. 15-4424 (6th Cir. Nov. 21, 2016) (order).

Upon reaching eighteen months of incarceration for civil contempt, Thompson sought to

terminate his civil-contempt sanctions. Crim. R. 111. Thompson contended that his actions fell

under the recalcitrant-witness statute, 28 U.S.C. § 1826(a), which provides:

Whenever a witness in any proceeding before or ancillary to any court or grand

jury of the United States refuses without just cause shown to comply with an

order of the court to testify or provide other information, including any book,

paper, document, record, recording or other material, the court, upon such refusal,

No. 17-4264 United States v. Thompson Page 6

or when such refusal is duly brought to its attention, may summarily order his

confinement at a suitable place until such time as the witness is willing to give

such testimony or provide such information. No period of such confinement shall

exceed the life of—

(1) the court proceeding, or

(2) the term of the grand jury, including extensions,

before which such refusal to comply with the court order occurred, but in no event

shall such confinement exceed eighteen months.

28 U.S.C. § 1826(a). Because his confinement had reached eighteen months, Thompson asserted

he was entitled to release. Crim. R. 111 at 2 (Page ID #999). On November 27, 2017, the

district court denied Thompson’s motion, concluding that “[t]he plea agreement requires Mr.

Thompson not just to provide information, but also to ‘assist the Parties’ in ‘identifying and

recovering assets’ and otherwise to comply with the terms of his plea agreement.” Crim. R. 138

at 4 (Page ID #1244). Noting that “the utility of Mr. Thompson’s assets as evidence is almost

beside the point” and that “it is the economic value of the treasure that the Court seeks,” the

district court determined that because Thompson was required both to testify and to help recover

assets, § 1826 did not apply to him. Id. at 6 (Page ID #1246). Additionally, referencing a

previous status order in April 2017, Crim. R. 108, the district court noted that the plea agreement

contemplated non-testimonial acts, such as “the signing of a limited power of attorney that

allows the government to probe the contents of the Belizean trust,” which the parties believed

contained some of the gold coins, Crim. R. 138 at 2 (Page ID #1242).

On December 6, 2017, Thompson filed this timely appeal. See Fed. R. App. P.

4(a)(1)(B). Following the government’s motion to dismiss for lack of jurisdiction, a panel of this

court expressly found that “[t]he district court’s order is effectively final, and thus appealable,”

under the collateral order doctrine. Order at 3 (6th Cir. Mar. 8, 2018).

II. STANDARD OF REVIEW

We review de novo questions of statutory interpretation, such as the scope of 28 U.S.C.

§ 1826. United States v. White, 846 F.3d 170, 174 (6th Cir.), cert. denied, 137 S. Ct. 2203

(2017). As to the district court’s denial of Thompson’s motion to lift his sanctions, we ordinarily

review a district court’s interpretation of its own order for abuse of discretion. Michigan v. City

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of Allen Park, 954 F.2d 1201, 1213 (6th Cir. 1992). However, the unique procedural posture of

Thompson’s case disrupts this standard. When the district court initially considered whether

Thompson was in contempt, it examined its two prior orders––issued on September 22, 2015 and

on November 16, 2015––and the language of Thompson’s plea agreement. See Crim. R. 63 at 2–

3 (12/16/15 Contempt Order) (Page ID #622–23). However, both the September and November

orders merely ordered Thompson to fulfill his obligations under the plea agreement and quoted

particular language from paragraph 4(a) of the agreement. See Crim. R. 33 at 1–2 (9/22/15

Order) (Page ID #218–19); Crim. R. 50 at 1–2 (11/16/15 Order) (Page ID #494–95). Similarly,

in determining whether § 1826’s eighteen-month incarceration limit applied to Thompson’s

sanctions, the district court again examined the language of the plea agreement, noting that the

court had previously determined that Thompson was in contempt based on his failure to fulfill

his duties under the plea agreement. Crim. R. 63 (12/16/15 Contempt Order).

Thus, although the district court was technically examining its December 2015 contempt

order when it denied Thompson’s motion to lift his sanctions, because the district court’s order

was predicated on its interpretation of the plea agreement, the district court was more accurately

examining the terms and conditions of that agreement. Consequently, we will examine the

district court’s denial of Thompson’s motion for what it actually was: an interpretation of

Thompson’s plea agreement. Under these circumstances, we review de novo the district court’s

construction of the plea agreement, while examining for clear error the district court’s factual

conclusions “such as whether there was an agreement and the substance of that agreement.”

United States v. Quesada, 607 F.3d 1128, 1131 (6th Cir. 2010). Finally, in interpreting plea

agreements, “this Court uses traditional principles of contract law.” United States v. Lukse, 286

F.3d 906, 909 (6th Cir. 2002). “Whether a contract term is ambiguous is a question of law for

the court to determine” under a de novo standard. Nw. Ohio Adm’rs, Inc. v. Walcher & Fox,

Inc., 270 F.3d 1018, 1023, 1025 (6th Cir. 2001) (noting that “[w]e review the district court’s

conclusions of law de novo”), cert. denied, 122 S. Ct. 1606 (2002).

III. DISCUSSION

We have rarely interpreted the scope of 28 U.S.C. § 1826. A review of the case law of

this court, as well as other Circuit courts, identifies two primary decisions addressing this statute:

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United States v. Mitchell, 556 F.2d 371 (6th Cir.), cert. denied, 98 S. Ct. 406 (1977), and

Armstrong v. Guccione, 470 F.3d 89 (2d Cir. 2006), cert. denied, 128 S. Ct. 486 (2007).

In Mitchell, two criminal defendants were ordered to submit voice exemplars in

preparation for their own trial. 556 F.2d at 381. The voice exemplars were necessary for the

government to match the criminal defendants to voice recordings taken during a sting operation.

Id. After the defendants refused to provide the exemplars, the district court held the defendants

in civil contempt and ordered them incarcerated. Id. at 381, 383. The defendants asserted that

under § 1826, their incarceration could not exceed eighteen months. Id. at 384. Noting that

§ 1826 was meant to limit the district court’s inherent authority to hold the defendants in civil

contempt, this court ultimately concluded that § 1826 was applicable and, therefore, defendants

could not be incarcerated in excess of eighteen months. Id. This court further explained that the

defendants were, indeed, “witnesses” as understood by the statute and that because the order

required the defendants to provide “information” in the form of the voice exemplars, § 1826

encompassed their conduct. Id.; see also Palmer v. United States, 530 F.2d 787, 789 & n.3 (8th

Cir. 1976) (concluding that handwriting exemplars constitute “other information” under § 1826).

In Armstrong, the Second Circuit considered whether a district court’s order requiring the

defendant to turn over various corporate assets to a court-appointed receiver fell within § 1826.

470 F.3d at 93. Noting that the Mitchell court determined that the order requiring the defendants

to submit voice exemplars constituted an order to provide other information “presumably

because the voice exemplars were sought for their informational content and had no other value,”

the Second Circuit ultimately concluded that an order requiring merely the production of assets

did not constitute an order to provide information. Id. at 109–10 (“[T]he order which Armstrong

refused to obey commands the production of gold bullion, valuable coins, and antiquities that are

sought not because of any information they might contain, but because they are objects of

monetary value that are the property of the corporation in receivership.”). Finally, the Second

Circuit explained that, although the production of a computer hard drive might fall within the

statute, where it “presumably contains records of the Princeton funds,” nonetheless the issue was

moot because Armstrong had been ordered to provide both the hard drive and the tangible assets.

Id. at 110. Given this legal background, we now examine whether, given the terms of

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Thompson’s plea agreement, the statutory limitations of § 1826 apply to Thompson’s

contemptuous conduct.

A. Order to Sit for A Debtor’s Examination

As an initial matter, and for the sake of clarity given this procedurally and factually

complicated case, we note that even if Thompson’s plea agreement required Thompson to

engage in non-testimonial conduct, if Thompson were held in contempt solely for testimonial

conduct, such as failing to participate in a debtor’s examination and answer questions truthfully,

§ 1826 would plainly apply to him. Parts of Thompson’s plea agreement explained that

Thomson was required to “testify under oath at a proceeding, amounting to a debtor’s

examination” and that the examination would “include, but [wa]s not limited to, questions

regarding the gold strike commemorative coins.” Crim. R. 14 at 2 (Page ID #49) (emphasis

added). Were Thompson to be held in contempt solely for failing to fulfill those particular

requirements, Thompson would clearly be “refus[ing] . . . to comply with an order of the court to

testify or provide other information.” 28 U.S.C. § 1826 (emphasis added). Put differently, the

only way Thompson could cure his contempt in such a scenario would be to engage in the exact

type of conduct encompassed by § 1826. None of the government’s arguments undermine this

analysis.

First, even if Thompson’s plea agreement (and the district court’s order requiring him to

comply with its terms) encompasses non-testimonial conduct in addition to “testify[ing]” or

“provid[ing] other information,” the possible scope of the agreement does not control if

Thompson’s only contemptuous conduct were refusing to testify in a debtor’s examination.

Armstrong is instructive here. As noted above, the Second Circuit in Armstrong ultimately

determined that because the defendant was in contempt for failing to follow an order requiring

him both to turn over assets (non-testimonial) and to surrender a computer hard drive containing

“other information,” it ultimately did not matter that the hard drive would conceivably fall within

§ 1826’s limitations. Armstrong, 470 F.3d at 110. However, the Second Circuit further

explained that, even though the order required Armstrong to engage in those two types of

conduct, “[i]f Armstrong were being confined solely because of his refusal to produce the

computer files, we would need to consider whether the eighteen-month cap of § 1826(a)

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applies.” Id. The Second Circuit’s comment was presumably based on the understanding that,

even if § 1826 applied to Armstrong’s failure to turn over “other information”––i.e., the

computer hard drive––because he was also required to engage in non-testimonial conduct which

did not have a corresponding incarceration limit––turning over the monetary assets––the

eighteen-month limitation did not ultimately impact the length of Armstrong’s incarceration for

civil contempt. Conversely, if Thompson were held in contempt solely for failing to testify––

conduct that falls squarely within § 1826––Thompson’s incarceration for civil contempt could

last only eighteen months.

In response, the government asserts that Thompson is not a “witness” as traditionally

understood under § 1826 because Thompson’s testimony was sought only in service of finding

items (the gold coins) which had no independent informational value. Appellee Br. at 32–34.

The government’s argument finds some support in § 1826’s limited legislative history. See

Organized Crime Control Act of 1970, Pub. L. No. 91-452, 84 Stat. 922–23 (1970) (explaining

that the statute was enacted “to seek the eradication of organized crime in the United States by

strengthening the legal tools in the evidence-gathering process”); S. Rep. 91-617 at 57 (1969)

(noting that the statute “represents the best efforts of the committee to codify and spell out the

powers of the courts to deal with witnesses who are unlawfully withholding information

necessary to move forward an investigation”). However, given the procedural posture of this

case, we are not prepared to say that Thompson’s testimony would be of no evidentiary value to

the 2006 civil plaintiffs, particularly since those same plaintiffs were pursuing a conversion

claim against Thompson based on the gold coins. See generally Williamson, 731 F.3d at 616;

see also In re Younger, 986 F.2d 1376, 1378 (11th Cir. 1993) (concluding that § 1826 applies to

bankruptcy proceedings and implicitly recognizing that the defendant’s “refus[al] to answer

questions in a bankruptcy case concerning the location of certain assets” which he had been

ordered to surrender fell under the eighteen-month incarceration limitation); In re Martin-

Trigona, 732 F.2d 170, 174–76 (2d Cir.), cert. denied, 105 S. Ct. 191 (1984) (determining

implicitly that an order requiring the defendant to testify regarding the status of his assets in a

bankruptcy proceeding fell under § 1826).

No. 17-4264 United States v. Thompson Page 11

Furthermore, as we noted in Mitchell, the limited legislative history of § 1826, while

instructive, is of “minimal value.” Mitchell, 556 F.2d at 384. Given the plain language of the

statute, were Thompson to be held in contempt for failing solely to sit for a debtor’s examination

and to testify about the location of his assets, § 1826 would limit his incarceration for civil

contempt to eighteen months. See Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718,

1725 (2017) (“[I]t is never our job to rewrite a constitutionally valid statutory text under the

banner of speculation about what Congress might have done had it faced a question that . . . it

never faced.”); Bridewell v. Cincinnati Reds, 155 F.3d 828, 830 (6th Cir. 1998) (“[W]e c[an]not

look to the legislative history to contravene the clear and unambiguous language of the statute.”).

The government also argues that the requirement in Thompson’s plea agreement that he

testify in a debtor’s examination “was only in service of the primary objective: ‘identifying and

recovering assets.’” Appellee Br. at 28–29. Therefore, according to the government, to the

extent Thompson’s testimony was relevant to the identification and recovery of the assets,

§ 1826 is inapplicable. But as stated, the debtor’s examination amounts to testimonial conduct

that would fall within § 1826 eighteen-month incarceration limitation. This is so without regard

to whether Thompson’s testimony would be necessary to assist the parties in recovering assets.

As explained in further detail below, however, Thompson’s contempt was not predicated

only on his failure to testify or answer questions; rather, because Thompson also failed to fulfill

the non-testimonial requirements of his plea agreement, § 1826 does not limit Thompson’s

period of incarceration.

B. Non-Testimonial Conduct

As noted above, Thompson’s plea agreement required Thompson to “testify under oath at

a proceeding, amounting to a debtor’s examination” and to answer “questions regarding the gold

strike commemorative coins.” Crim. R. 14 at 2 (Page ID #49). This is not, however, the only

conduct Thompson was required to engage in under the plain language of the plea agreement

and, significantly, was not the only basis on which the district court held Thompson in contempt.

Rather, Thompson’s plea agreement––and the district court’s November 2015 order requiring

Thompson to abide by its terms––also explained that Thompson was required to “assist” the civil

No. 17-4264 United States v. Thompson Page 12

plaintiffs “in identifying and recovering assets.” Id. at 2–3 (Page ID #49–50). Such a

requirement to assist in “recovering assets” is broad: recovering assets could, and likely would,

require Thompson both to provide information regarding the location of assets and to undertake

various non-testimonial actions, such as signing a limited power of attorney to enable the parties

to review the contents of a trust and recover any assets located within the trust. See Crim. R. 108

(4/25/17 Status Order); Crim. R. 138 (11/27/17 Order Denying Mot. to Terminate Sanctions).3

By requiring Thompson to “assist” the parties “in identifying and recovering assets,” the plea

agreement and the district court’s order explicitly left open the likelihood that Thompson’s mere

testimony would be insufficient, particularly in “recovering” Thompson’s assets.

Thompson counters that although the first sentence of paragraph 4(a) of the plea

agreement appears broad, the subsequent language indisputably limits what the parties meant by

the term “assist.” However, the unambiguous language of the plea agreement does not support

Thompson’s conclusion.4 While the agreement goes on to explain that “Defendant agrees to

testify under oath at a proceeding, amounting to a debtor’s examination, to identify and recover

assets,” there is no suggestion in the agreement that the debtor’s examination is the only means

by which Thompson is expected (and indeed, required) to “assist” the parties “in identifying and

recovering assets.” As noted above, the term “recover” clearly anticipates broader types of

actions than a debtor’s examination. Additionally, the fact that the plea agreement provides that,

“[a]fter [Thompson] answers questions in the debtor’s examination, a reasonable time will be

3Although Thompson does not address whether an order requiring him to sign a limited power of attorney

would fall within § 1826’s limitations, we conclude such an action is clearly non-testimonial and thus outside the

scope of § 1826. The act of signing a limited power of attorney is a legal tool that does not, in and of itself, express

or contain any information. And unlike voice or handwriting exemplars, there is no informational value in the actual

document containing Thompson’s signature––it cannot be compared to other, similar documents, and although it

allows the parties to gain information by searching the contents of the trust, that information is not inherent to the

document bearing Thompson’s signature. Cf. Mitchell, 556 F.2d at 384; Palmer, 530 F.2d at 789 n.3. Thus,

although § 1826 enumerates various forms that “other information” may take, including “any book, paper,

document, record, recording or other material,” the plain language of § 1826 makes clear that it is the informational

value of those documents that designates them as “other information.” 28 U.S.C. § 1826.

4Because we conclude that the terms of Thompson’s plea agreement are unambiguous, we need not

examine whether the district court committed clear error in interpreting the facts underlying the agreement. See

United States v. Debreczeny, 69 F. App’x 702, 705–06 (6th Cir. 2003) (“If the terms of [a] plea agreement are

equivocal . . . , the district court has discretion to interpret its terms. ‘The content of a plea agreement and what the

parties agreed to is a question of fact for the district court that is reviewed for clear error.’” (quoting Lukse, 286 F.3d

at 909)).

No. 17-4264 United States v. Thompson Page 13

permitted for a process amounting to civil discovery to verify answers and trace assets” and, if

the government “is satisfied that all questions have [been] fully answered, it shall recommend to

the Court that the civil contempt be deemed ‘cured,’” does not help Thompson. Similar to the

requirement that Thompson sit for a debtor’s examination, this language does not indicate that

Thompson will be required only to testify or provide “information.” Instead, it shows the

parties’ belief that, were Thompson to testify truthfully, the parties would be able successfully to

“verify [Thompson’s] answers and trace assets,” thus enabling both the identification and

recovery of those assets. This provision does not implicitly or explicitly limit what “assist” in

“recovering assets” might entail. Finally, the plea agreement notes that “the identification of

property and assets shall proceed as a condition of Defendant’s cooperation under the terms of

this Agreement.” Again, beyond reiterating Thompson’s responsibility to identify assets, a plain

reading of this statement does not limit what, precisely, Thompson will be required to do to assist

in recovering those assets. This statement merely specifies what one condition of the agreement

would be––successfully identifying assets––rather than explicitly limiting Thompson’s

responsibilities under the agreement.

Along with encompassing non-testimonial conduct, the record evidence shows that

before the eighteen-month limitation under § 1826 became applicable, Thompson was, in fact, on

notice that his contempt order included his failure to engage in non-testimonial conduct,

specifically his failure to execute a limited power of attorney. During a debtor’s examination in

January 2017, the civil parties attempted to have Thompson sign a limited power of attorney to

permit them to examine the contents of a trust Thompson owned to determine whether the trust

contained the coins. Crim. R. 94 at 1–2 (1/16/17 Joint Status Report) (Page ID #859–60); Crim.

R. 99 at 9 (1/10/17 Status Hr’g Tr.) (Page ID #923). Thompson refused. Id. Following various

orders and status conferences, in April 2017, the district court concluded that Thompson’s plea

agreement, “which requires Mr. Thompson ‘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,’ contemplates, among other things, exactly what the government seeks here: the signing

of a limited power of attorney that allows the government to probe the contents of the Belizean

trust.” Crim. R. 108 at 3 (4/25/17 Status Order) (Page ID #990); see also Crim. R. 114 at 10

(4/21/17 Status Hr’g Tr.) (Page ID #1026) (overruling Thompson’s objection to executing the

No. 17-4264 United States v. Thompson Page 14

power of attorney). In the April 25, 2017 Status Order, the district court explicitly ordered

Thompson to sign a limited power of attorney pursuant to paragraph 4(a) of his plea agreement

within twenty-eight days. Crim. R. 108 at 3 (Page ID #990). On May 23, 2017, the parties

submitted a joint status report explaining that Thompson had refused to execute the power of

attorney. Crim. R. 110 at 1 (Page ID #997). Thompson’s continued refusal was confirmed in

two later status hearings. See Crim. R. 127 at 4–5 (6/30/17 Status Hr’g Tr.) (Page ID #1159–60);

Crim. R. 130 at 4 (8/18/17 Status Hr’g Tr.) (Page ID #1195).

Based on these records, the April 25, 2017 order––issued almost two months before the

eighteen-month limitation under § 1826 became applicable––clearly put Thompson on notice

that, in order to cure his contempt, Thompson not only would have to sit for a debtor’s

examination and provide truthful testimony, but also would have to execute a limited power of

attorney to permit the parties to “probe” the contents of a Belizean trust. After all, Thompson

was not held in contempt for only refusing to submit to the debtor’s examination; rather,

Thompson was ordered to comply with all the terms of his plea agreement, including “assisting”

the parties “in identifying and recovering assets.” See Crim. R. 67 at 73 (12/15/15 Contempt

Hr’g Tr.) (Page ID #707) (“Mr. Thompson was in violation of the Court’s November 16, 2015,

order which simply required him to abide by the terms of his plea agreement, including

paragraph 4A which . . . stated that he would assist the parties in identifying and recovering the

assets . . . .”); R. 63 at 5 (12/16/15 Contempt Order) (Page ID #625) (“The Court will impose an

indefinite sentence of incarceration for civil contempt until Thompson complies with the Court’s

order to sit for the debtor’s examination and assist the Civil Litigants in identifying and

recovering assets.”). Additionally, because Thompson was on notice that he was required to

engage in non-testimonial conduct to cure his contempt before his incarceration exceeded

eighteen months, the fact that Thompson was also in contempt for failing to testify at a debtor’s

examination––conduct which would fall under § 1826’s limitation––is immaterial. See

Armstrong, 470 F.3d at 110. Section 1826 thus does not provide Thompson relief.

In summary, to the extent Thompson still refuses to comply with the district court’s order

to sign a limited power of attorney, § 1826 does not limit the length of Thompson’s

incarceration. Rather, the length Thompson’s incarceration is restricted only by the Due Process

No. 17-4264 United States v. Thompson Page 15

Clause and, if applicable, any changed circumstances which prohibit Thompson from curing his

contempt. See Shillitani, 384 U.S. at 371 (“[T]he justification for coercive imprisonment as

applied to civil contempt depends upon the ability of the contemnor to comply with the court’s

order.”); Armstrong, 470 F.3d at 110–12 (examining whether the defendant’s confinement for

civil contempt violated the Due Process Clause). Because Thompson has not presented any

argument under either theory, we affirm the district court’s order denying Thompson’s motion to

terminate his sanctions pursuant to 28 U.S.C. § 1826.

C. District Court’s Statements During Status Hearings

Although we determine that, because Thompson’s contempt currently includes his failure

to engage in non-testimonial conduct, § 1826 does not apply to him, one more issue warrants

further consideration, namely the district court’s evolving statements regarding Thompson’s

contempt. Ultimately, we determine that this issue does not undermine our conclusion as to the

applicability of § 1826.

Both in his appellate briefs and at oral argument, Thompson asserts that because the

district court has framed his contempt in terms of his failure to testify and provide information,

Thompson’s actions clearly fall within § 1826. See Appellant Br. at 19–21; Reply Br. at 3–5. It

is true that, when Thompson was initially held in contempt, the district court focused on

Thompson’s refusal to answer questions posed to him during the debtor’s exam and noted that

Thompson could cure his contempt if he provided truthful answers. See Crim. R. 67 at 69

(12/15/15 Contempt Hr’g Tr.) (Page ID #703) (explaining that Thompson’s delays are always

“on the eve of each critical proceeding where we get to the pivotal question: Where is the

treasure? Where are the assets? Where’s the loot?”); id. at 74 (Page ID #708) (“Once you

perform the act required by the Court, that is, agree to sit down and participate in the debtor’s

examination, this term of incarceration will be lifted as you will have purged yourself of the

contempt.”); id. at 78 (Page ID #712) (“[I]f you go in there and answer the questions directly and

honestly and not evasively . . . then you can purge yourself of the contempt.”). The district court

reiterated these statements in later status hearings. See Crim. R. 115 at 20 (9/9/16 Status Hr’g

Tr.) (Page ID #1070) (“We will reconvene this hearing on November the 9th to determine

whether Mr. Thompson is ready to disclose the whereabouts of the gold.”); Crim. R. 116 at 4

No. 17-4264 United States v. Thompson Page 16

(11/9/16 Status Hr’g Tr.) (Page ID #1077) (“Mr. Thompson certainly has the ability to purge

himself once he makes the decision . . . to disclose his knowledge of the whereabouts of the

gold.”). Were the district court to have explained Thompson’s contempt solely in terms of his

failure to provide answers and testify, § 1826 would apply to him. See supra Part III.A. After

all, if a district court expressly (and consistently) limits the actions which a contemnor must

undertake in order to cure his contempt, then the contemnor cannot later be faulted for failing to

cure his contempt based on other conduct of which he had no notice.

The problem for Thompson, however, is that the district court’s contempt order was not

limited only to Thompson’s failure to attend a debtor’s examination and truthfully answer

questions. Rather, as the district court explained at the contempt hearing and in the

accompanying written order, Thompson was held in contempt for failing to attend a debtor’s

examination and otherwise perform the requirements of his plea agreement. See Crim. R. 67 at

73 (12/15/15 Contempt Hr’g Tr.) (Page ID #707); R. 63 at 5 (12/16/15 Contempt Order) (Page

ID #625). And as Thompson was well aware following the district court’s April 2017 hearing

and order, such contempt included his failure to sign a limited power of attorney.

Furthermore, the district court’s statements that Thompson could cure his contempt by

sitting for a debtor’s examination and answering questions truthfully do not indicate that, in the

appropriate situation, Thompson would not also be required to engage in other, non-testimonial

conduct. Cf. Crim. R. 108 at 3 (4/25/17 Status Order) (Page ID #990) (requiring Thompson to

execute a limited power of attorney). The district court’s statements are, instead, specific to the

context of the contempt hearing and status hearings and the factual issues then before the district

court. At the time the district court made these statements, Thompson’s only contemptuous

actions revolved around his failure to answer questions in good faith during a debtor’s

examination; the concern regarding the limited power of attorney or the Belizean trust was not

yet squarely before the court. When that issue arose, the district court ordered Thompson to

follow the terms of his plea agreement by executing the limited power of attorney and,

furthermore, described Thompson’s contempt in terms of his refusal to execute the document.

No. 17-4264 United States v. Thompson Page 17

See Crim. R. 130 at 13 (8/18/17 Status Hr’g Tr.) (Page ID #1204) (“Mr. Thompson can purge his

contempt quite easily by signing the power of attorney and submitting to the debtor’s exam.”).5

Finally, paragraph 4(a) of Thompson’s plea agreement explains that “the government

acknowledges that it is the Parties’ intention that any sanctions or consequences arising from

Defendant’s 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 3 (Page ID #50). Thompson thus

explicitly acknowledged and agreed to a situation in which, depending on Thompson’s failure to

“cooperate in the identification and recovery of assets,” the district court would be permitted to

determine which sanctions (such as civil contempt) would be appropriate. The district court did

just that when it ordered Thompson both to testify at a debtor’s examination and to execute a

limited power of attorney in order to cure his civil contempt. Consequently, although the district

court’s directive to Thompson may have evolved based on the parties’ needs under the plea

agreement, this does not undermine our conclusion that Thompson’s sanctions fall outside the

scope of 28 U.S.C. § 1826.



* * *



5During the April 21, 2017 status hearing in which the district court concluded that Thompson was required

to execute a limited power of attorney under his plea agreement, the district court again described Thompson’s

contempt in terms of Thompson’s refusal to testify at the debtor’s examination. See Crim. R. 114 at 28 (Page ID

#1044) (“[H]e needs to be able to put himself in a position to purge himself of contempt by answering questions as

to the location of the gold, et cetera.”). However, context again limits the significance of the district court’s

statement. During the April 2017 hearing, the district court ordered Thompson to execute the power of attorney,

reasoning it was required under his plea agreement. Id. at 10 (Page ID #1026). Thompson had not yet refused to

comply with the district court’s order to sign the power of attorney, and any contempt Thompson faced was thus still

limited to Thompson’s refusal to answer questions during the debtor’s examination. Notably, after Thompson

refused to execute the limited power of attorney in May 2017, the district court broadened its discussions regarding

Thompson’s contempt. See Crim. R. 127 at 15 (6/30/17 Status Hr’g Tr.) (Page ID #1170) (asking whether

Thompson was prepared “to comply with the plea agreement and purge himself of the contempt”); Crim. R. 130 at

13 (8/18/17 Status Hr’g Tr.) (Page ID #1204) (noting that Thompson could purge his contempt “by signing the

power of attorney and submitting to the debtor’s exam” (emphasis added)).

IV. CONCLUSION

For the reasons set forth above, we AFFIRM the district court’s denial of Thompson’s motion to terminate his civil-contempt sanctions.