IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TENNESSEE

AT GREENEVILLE

UNITED STATES OF AMERICA, )

)
Plaintiff, )
)
v. )
) Case No.: 2:19-CV-97
CLIFFORD E. BRYANT, )
)
Defendant. )

MOTION TO SET ASIDE CONTEMPT ORDER REGARDING INCARCERATION

The United States of America, by and through J. Douglas Overbey, United States Attorney

for the Eastern District of Tennessee, hereby moves the Court to set aside Defendant’s sentence of

ten days of incarceration contained in the order dated July 15, 2019 (Doc. 109). In support of this

motion, the United States avers as follows:

1. During the July 15, 2019 hearing on the contempt issue, the Court indicated that

Defendant could avoid incarceration if the United States withdrew its motion for contempt. (See

Doc. 110 at 10 (“But you’re going to have to serve ten days. . . . Whether you work it out or not,

unless the government withdraws their motion for contempt.”).)

2. As a result, Defendant asked to meet with the United States immediately following

the hearing to explore his options for avoiding incarceration.

3. During that meeting, Defendant offered to make a payment of $5,000 to avoid

incarceration.

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 4. On July 16, 2019, the United States advised Defendant via email that it was

declining his offer of $5,000 and that the current arrearage under the installment-payment order

($15,000) would have to be made current to justify any further efforts.

5. On July 17, 2019, Defendant contacted the United States via telephone and advised

that he could make a payment of $15,000 that would be mailed the same day and proposed the

following monthly-payment plan going forward: (1) a $1,200 payment in January, (2) a $1,200

payment in February, and (3) a $400 payment each of the other ten months of the year.

6. The United States responded via email the same day with a counter-proposal of a

payment $15,000 in guaranteed/certified funds to be hand-delivered to the United States

Attorney’s Office in Knoxville by no later than Thursday, July 18, 2019 at 12:00 p.m. and the

following monthly-payment plan going forward: (1) a $2,000 payment in January, (2) a $2,000

payment in February, and (3) a $750 payment each of the other ten months of the year. The

United States further stated that, if Defendant agreed to this proposal, it would take steps to set

aside the Court’s order so that he could avoid incarceration. However, the United States also

stated that since the motion for contempt had been granted, it did not think that it could simply

alter the contempt order by withdrawing the motion for contempt. The United States also

mentioned that the Court could still fully enforce the contempt order regardless of the United

States’ efforts and that a motion alone would not change Defendant’s current obligation to report

to the United States Marshal on July 22, 2019.

7. On July 18, 2019, Defendant responded via telephone and email and asked to

reduce the $750 payments for March through December to $500 payments for each of those

months. He also asked for a guarantee that a payment of $15,000 would avoid his sentence.

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 8. On the same day, the United States responded via email and accepted the reduction

of the monthly payments for March through December from $750 to $500 with all other terms of

the United States’ July 17th counter-proposal remaining the same. The United States also made

it clear that it could not guarantee what the Court would decide regarding Defendant’s

incarceration in response to the instant motion. The United States also stated that the $15,000

payment in guaranteed/certified funds could be hand-delivered at any time on July 18th but that

the Court’s time for deciding the instant motion before Monday would be affected by when the

payment was hand-delivered.

9. Defendant accepted the United States’ proposal and hand-delivered a payment in

in the amount of $15,000 in guaranteed/certified funds on July 18, 2019 around 1:00 p.m.

10. By bringing his arrearage on the installment-payment order current, the United

States submits that Defendant has purged his contempt as it relates to his failure to make those

payments. See International Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 828

(1994) (noting that the imprisonment of a contemnor pending compliance with an affirmative court

order is the “paradigmatic, coercive civil contempt sanction” intended to coerce such compliance

and that imprisonment with the option of release upon compliance may be appropriate because the

contemnor then “carries the keys of his prison in his own pocket”) (citations omitted); United

States v. McCormick, No. 3:11-CV-114-TAV-CSS, 2015 WL 418481, at *2 (E.D. Tenn. Feb. 2,

2015) (“When the party complies with the order, the civil contempt is purged, and the sanction

abates.”). If Defendant had made the arrearage current prior to the hearings before the Court, then

the United States would have withdrawn the motion for contempt.

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 11. The Court’s authority to set aside Defendant’s sentence may rest in Rule 60(b) of

the Federal Rules of Civil Procedure.1 That rule provides, in pertinent part, as follows:

On motion and just terms, the court may relieve a party or its legal
representative from a final judgment, order, or proceeding for the following
reasons . . . the judgment has been satisfied, released, or discharged . . . or
applying it prospectively is no longer equitable; or . . . any other reason that
justifies relief.

FED. R. CIV. P. 60(b)(5)-(6). But see United States v. Pauley, 321 F.3d 578, 581-82 (6th Cir.

2003) (“We also note that even if the district court had the authority to vacate the order, district

courts should not use their authority under Rule 60(b) to reward parties’ contempt of prior orders.

. . . Vacating a prior order for the sole purpose of inducing compliance with another order would

reward contempt.”).

Since Defendant has purged his contempt related to his failure to pay under the installment-

payment order by making a payment that brought the arrearage current, the United States submits

that there is a basis to set aside Defendant’s sentence and respectfully requests that the Court do

so.2

1
Rule 59 does not apply because the contempt order is not a judgment. See Dominic’s Restaurant
of Dayton, Inc. v. Mantia, No. 3:09-CV-131, 2009 WL 4680223, at *4 (S.D. Ohio Dec. 3, 2009)
(“Since this Court’s ruling on Dominic’s Motion for Contempt is not a judgment, a motion brought
pursuant to Rule 59(e) is not applicable.”).
2
The United States will file a separate motion to modify the installment-payment order pursuant
to 28 U.S.C. § 3204(b) to reflect the parties’ new payment arrangement.
4

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 Respectfully submitted,

J. DOUGLAS OVERBEY
United States Attorney

By: s/Kenny L. Saffles

Kenny L. Saffles (BPR #023870)
Assistant United States Attorney
800 Market Street, Suite 211
Knoxville, TN 37902
Kenny.Saffles@usdoj.gov
(865) 545-4167

CERTIFICATE OF SERVICE

I hereby certify that on July 18, 2019, a copy of the foregoing was filed electronically.
Notice of this filing will be sent by operation of the Court’s electronic filing system to all parties
indicated on the electronic filing receipt. Parties may access this filing through the Court’s
electronic filing system. All other parties will be served by regular U.S. mail and email:

Clifford Bryant
297 Fairfield Drive
Greeneville, TN 37745
scubadoc45@tac2.com
pre.tac2.cmm.asp@gmail.com
cliff@tac2.com

s/Kenny L. Saffles
Kenny L. Saffles
Assistant United States Attorney

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