Martinsburg attorney found guilty in contempt case

January 16, 2008|By MATTHEW UMSTEAD

MARTINSBURG, W.Va. - A Martinsburg attorney indicted on a charge of criminal contempt after she did not appear before a federal grand jury in December 2006 when subpoenaed has been found guilty by a federal district court judge.

A 23-page memorandum opinion and order finding by judge Frederick P. Stamp Jr. against Heidi J. Silver Myers of 1314 W. King St. was filed Monday in U.S. District Court for the Northern District of West Virginia.

William B. Moffitt, Myers' attorney, did not reply to two messages left at his office on Tuesday.

Myers, 29, was indicted Dec. 13, 2006, eight days after she did not appear before a federal grand jury in Wheeling, W.Va. She was supposed to produce certain closed legal case files, a tower-type computer server and a backup hard drive from her law office in Martinsburg.

The items and her appearance were requested as part of the government's investigation, which came at the request of a West Virginia Public Defender Service officer, according to the judge's opinion.


The officer suspected "possible overbilling" by Myers, who has been appointed by circuit judges to represent defendants unable to afford an attorney in the Eastern Panhandle.

In a separate 112-count indictment announced in June 2007, Myers and her now-former office manager Nancy Burkhart each were charged with defrauding Public Defender Services by submitting false vouchers to the state totaling nearly $275,000 between July 2004 and July 2006.

Myers entered a not-guilty plea to the charges and maintained she did not commit a crime. It wasn't immediately clear whether the criminal contempt case would be appealed to the U.S. Court of Appeals for the 4th Circuit. The second case is pending in district court and was scheduled for trial in March, court records show.

Stamp's opinion on the criminal contempt filed Monday comes after the judge held a bench trial in May 2007, and then reviewed evidence and written filings by Assistant U.S. Attorney Paul T. Camilletti and Moffitt.

Moffitt advised his client not to appear before the grand jury, according to the judge's findings of fact contained in the opinion.

Moffitt attempted to schedule a new date for the grand jury proceeding on the grounds of being new to the case and a medical appointment for dialysis treatment, but was unable to convince Camilletti, according to the opinion.

In Stamp's opinion, Moffitt's advice to Myers wasn't a sufficient defense in the criminal contempt case and he rejected a statement in a 1989 bankruptcy case decision by the U.S. Court of Appeals for the 4th Circuit.

"Advice of counsel may be a defense in a criminal proceeding because it negates the element of willfulness," Stamp quoted in his opinion.

"Even assuming that an advice of counsel defense is appropriate in this case, this court finds that Myers has failed to produce sufficient evidence in support of that defense."

Conviction on the criminal contempt charge carries a possible sentence of up to life in prison and a fine of up to $250,000, according to court records.

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