UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA NORTHEASTERN DIVISION UNITED STATES OF AMERICA, } } } } } } } } }

Transcription

1 Case 5:15-cr MHH-HGD Document 126 Filed 02/24/16 Page 1 of 15 FILED 2016 Feb-24 PM 05:48 U.S. DISTRICT COURT N.D. OF ALABAMA UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA NORTHEASTERN DIVISION UNITED STATES OF AMERICA, Plaintiff, v. ERIC SLOAN PARKER, Defendant. Case No.: 5:15-cr MHH NOTICE AND ORDER REGARDING CONTEMPT PROCEEDING During the first trial in this case, Eric Parker s attorney reported to the Court that he had received evidence that two senior officers in the Madison Police Department (MPD), Chief Larry Muncey and Captain Terrell Cook, had violated the Court s witness sequestration order and had attempted to intimidate trial witnesses. The Court suspended the trial and held a fact-finding hearing outside of the presence of the jury to determine whether there was sufficient evidence to support the allegations of misconduct and, if so, whether the purported conduct had impacted any witness s testimony such that the Court would have to consider declaring a mistrial. 1 Having carefully reviewed the evidence from the fact-finding 1 The report that prompted the fact-finding hearing concerned not only Chief Muncey and Captain Cook, but also Sergeant Lamar Anderson. Sergeant Anderson testified during the fact-

2 Case 5:15-cr MHH-HGD Document 126 Filed 02/24/16 Page 2 of 15 hearing and considered the arguments of counsel, the Court finds that there is probable cause to believe that Chief Muncey and Captain Cook willfully violated the Court s witness sequestration order that excluded them from the courtroom. Pursuant to Federal Rule of Criminal Procedure 42(a) and 18 U.S.C. 401(3), the Court sua sponte initiates contempt proceedings against Chief Muncey and Captain Cook to examine more closely the conduct at issue and to determine whether the conduct has legal consequences U.S.C. 401(3) prohibits disobedience of or resistance to a court s lawful writ, process, order, rule, decree, or command. 3 To support a finding of culpability under 401(3), the prosecution must prove beyond a reasonable doubt: (1) that finding hearing. He was a credible witness. Based on Sergeant Anderson s testimony, the Court has found no basis for further proceedings concerning him. 2 See United States v. Columbia Broad. Sys., Inc., 497 F.2d 107, 109 (5th Cir. 1974) ( A criminal contempt action for violation of a court order is somewhat different than other criminal proceedings. The judge whose orders were allegedly violated has a keener interest in the outcome, especially if those orders are outside of the judicial mainstream. [C]ontempt proceedings may be initiated by a judge on his own motion[].... ). Despite the fact that the underlying criminal proceedings in Mr. Parker s case have concluded, the Court has continuing jurisdiction to monitor alleged violations of its orders. See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 396 (1990) ( A court may make an adjudication of contempt and impose a contempt sanction even after the action in which the contempt arose has been terminated. ); United States v. Mine Workers, 330 U.S. 258, 294 (1947) ( Violations of an order are punishable as criminal contempt even though... the basic action has become moot. ); Gompers v. Buck s Stove & Range Co., 221 U.S. 418, 451 (1911) (noting that when the main case was settled, the action became moot, of course without prejudice to the power and right of the court to punish for contempt by proper proceedings ) 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 (3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command. 2

3 Case 5:15-cr MHH-HGD Document 126 Filed 02/24/16 Page 3 of 15 the court entered a lawful order of reasonable specificity; (2) the order was violated; and (3) the violation was willful. United States v. Bernardine, 237 F.3d 1279, 1282 (11th Cir. 2001) (internal quotation marks and citation omitted). The order at issue in these contempt proceedings is a Rule 615 witness sequestration order that excluded Chief Muncey and Captain Cook from the courtroom because both were subpoenaed as trial witnesses. The Eleventh Circuit has held that a district court may treat a violation of the sequestration rule by [] citing the guilty party for contempt.... United States v. Eyster, 948 F.2d 1196, 1211 (11th Cir. 1990). Federal Rule of Criminal Procedure 42 provides the procedural framework for criminal contempt proceedings. Rule 42(a) governs the prosecution of a charge of contempt that is based on conduct that took place outside of the courtroom. Rule 42(a) sets forth three basic requirements: (1) adequate notice; 4 (2) the appointment of a prosecutor; 5 and (3) trial and disposition. 6 4 The court must give the person notice in open court, in an order to show cause, or in an arrest order. The notice must: (A) state the time and place of the trial; (B) allow the defendant a reasonable time to prepare a defense; and (C) state the essential facts constituting the charged criminal contempt and describe it as such. Fed. R. Crim. P. 42(a)(1). The defendant is not only entitled to be informed of the nature of the charge against him, but to know that it is a charge, and not a [civil] suit. Romero v. Drummond Co., 480 F.3d 1234, (11th Cir. 2007) (quoting Gompers v. Buck s Stove & Range Co., 221 U.S. 418, 446 (1911)). Criminal contempt need not be charged by indictment. United States v. Cohn, 586 F.3d 844, 849 (11th Cir. 2009) (citing Fed. R. Crim. P. 7(a)(1), 42(a)). 5 The court must request that the contempt be prosecuted by an attorney for the government, unless the interest of justice requires the appointment of another attorney. If the government 3

4 Case 5:15-cr MHH-HGD Document 126 Filed 02/24/16 Page 4 of 15 Pursuant to Rule 42(a)(1)(C), the Court gives Chief Muncey and Captain Cook the following notice of the essential facts concerning each element of the charged criminal contempt: 7 A. Law and facts regarding a lawful order of reasonable specificity The reasonableness of the specificity of an order is a question of fact and must be evaluated in the context in which it is entered and the audience to which it is addressed. United States v. Robinson, 922 F.2d 1531, 1534 (11th Cir. 1991) (quoting United States v. Turner, , 2565 (11th Cir. 1987)). The order at issue is a witness sequestration order that excluded Chief Muncey and Captain Cook from the courtroom to prevent them from hearing the testimony of trial witnesses. Under Rule 615, [a]t a party s request, the court must order witnesses declines the request, the court must appoint another attorney to prosecute the contempt. Fed. R. Crim. P. 42(a)(2). 6 A person being prosecuted for criminal contempt is entitled to a jury trial in any case in which federal law so provides.... Fed. R. Crim. P. 42(a)(3). Criminal contempt may be tried without a jury when the penalty actually imposed does not exceed six months. Taylor v. Hayes, 418 U.S. 488, 495 (1974). 7 The Court draws these essential facts from the record of the investigative hearing that the Court held during Officer Parker s first federal criminal trial. Counsel for Chief Muncey and Captain Cook did not have the opportunity to cross-examine the witnesses who testified in the factfinding hearing. In this Rule 42 proceeding, Chief Muncey and Captain Cook are presumed innocent. The prosecutor will have to prove beyond a reasonable doubt that Chief Muncey and Captain Cook willfully violated the Court s order excluding them from the courtroom. Chief Muncey and Captain Cook will have the opportunity to cross-examine any witness who the prosecutor calls; they will have the opportunity to call their own witnesses; and they will have the option to testify if they would like, but neither Chief Muncey nor Captain Cook may be compelled to testify. 4

5 Case 5:15-cr MHH-HGD Document 126 Filed 02/24/16 Page 5 of 15 excluded [from the courtroom] so that they cannot hear other witnesses testimony. Or the court may do so on its own. Fed. R. Evid Rule 615 describes certain types of witnesses who the Court must except from the sequestration rule. The rule states that it does not authorize excluding... a person whose presence a party shows to be essential to presenting the party s claim or defense. Fed. R. Evid An expert witness generally falls within the category of witnesses whose presence is essential to presenting a party s claim. Fed. R. Evid. 615 Advisory Committee notes to 1972 amendment ( The category contemplates such persons as... an expert needed to advise counsel in the management of the litigation. ). Rule 615 orders are routine in criminal and civil trials. The Advisory Committee Notes to Rule 615 explain that [t]he efficacy of excluding or sequestering witnesses has long been recognized as a means of discouraging and exposing fabrication, inaccuracy, and collusion. See generally Miller v. Universal City Studios, Inc., 650 F.2d 1365, 1373 (5th Cir. July 23, 1981). 8 Indeed, Rule 615 prevents all manner of attempts by one witness to influence or shape the testimony of another witness. The facts currently known to the Court concerning the Rule 615 witness sequestration order in this case are as follows: 8 See Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) ( We hold that the decisions of the United States Court of Appeals for the Fifth Circuit (the former Fifth or the old Fifth ), as that court existed on September 30, 1981, handed down by that court prior to the close of business on that date, shall be binding as precedent in the Eleventh Circuit, for this court, the district courts, and the bankruptcy courts in the circuit. ). 5

6 Case 5:15-cr MHH-HGD Document 126 Filed 02/24/16 Page 6 of Before trial, Officer Parker subpoenaed Chief Muncey and Captain Cook as fact witnesses. (Doc. 77-2, pp. 152, 184). 2. The Government designated Chief Muncey as an expert witness for the first trial. (Doc. 35). 3. Officer Parker s first federal criminal trial began on September 1, Before the Government called its first witness, the parties invoked Rule 615. Counsel for the Government stated that Chief Muncey was both a fact witness and an expert witness and asked the Court to allow Chief Muncey to remain in the courtroom while other witnesses testified. (Doc. 117, pp. 3-4). The Court granted the request and released Chief Muncey from the sequestration order. The Court does not know whether Chief Muncey was present in the courtroom for this discussion. The Court relied on counsel for the parties to communicate the Rule 615 order to the witnesses subpoenaed for trial. 9 The Court did not communicate to either Chief Muncey or Captain Cook the requirements of the witness sequestration rule. Counsel for the Government indicated that they told some of their witnesses that the parties had invoked the rule, but counsel for the Government did not instruct Chief Muncey to comply with the rule because the Court released Chief Muncey from the witness sequestration order. (Doc. 77-2, p. 8). 4. On September 3, 2015, toward the end of the Government s presentation of evidence, in open court but outside of the presence of the jury (Doc. 66, p. 33), counsel for Mr. Parker asked the Court to exclude Chief Muncey from the courtroom. Mr. Parker s attorney stated that counsel for the Government had indicated that the Government would not call Chief Muncey as a witness. Mr. Parker s attorney argued that Chief Muncey was under defense subpoena and the rule has been invoked. We would ask that he be sequestered. (Doc. 66, p. 34). Counsel for the Government replied that while the Government did not plan to call Chief Muncey during its case-inchief, the Government anticipated possibly calling Chief Muncey as a rebuttal expert later in the trial. Counsel for the Government argued that Chief Muncey still should be excused from the rule. (Doc. 66, p. 34). The 9 Frequently, in criminal and in civil cases, parties invoke Rule 615 before the trial proceedings begin. The witnesses who the parties plan to call during trial are not present when the Rule 615 discussion occurs. Often, witnesses who are bound by a Rule 615 order are not available when the Court issues the order. Consequently, the attorney for a party communicates a Rule 615 order to the witnesses whom that party intends to call. 6

7 Case 5:15-cr MHH-HGD Document 126 Filed 02/24/16 Page 7 of 15 Court responded that Chief Muncey would have to leave the courtroom if the Government was not going to present his testimony in its case-in-chief. (Doc. 66, p. 35). The Court instructed counsel that if the Government wanted to call Chief Muncey as an expert, the Government would have to offer him as an expert in its case-in-chief. (Doc. 66, p. 35). Counsel for the Government chose not to call Chief Muncey, so Chief Muncey was excluded from the courtroom. 10 The Court does not know whether Chief Muncey was present in the courtroom during the argument regarding his status as an expert and the Court s remarks concerning his continued presence in the courtroom. Counsel for the Government indicated that they had a conversation with Chief Muncey about Rule 615, but the conversation was limited. The Court has no evidence concerning the way in which the Government instructed Chief Muncey to leave the courtroom. (Doc. 77-2, p. 143). 5. Captain Cook did not attend trial. Sergeant Anderson, a subordinate officer who reported to Captain Cook, testified that on September 3, 2015, Captain Cook told him that the rule had been invoked. (Doc. 77-2, pp. 152, 159). B. Law and facts regarding a violation of a court order The language of Rule 615 expressly prohibits the hearing of testimony ; however, the Eleventh Circuit has held that there is no difference between reading and hearing testimony for purposes of Rule 615. Either action can violate a sequestration order. United States v. Jimenez, 780 F.2d 975, 980 n. 7 (11th Cir. 1986). That is because [t]he opportunity to shape testimony is as great with a witness who reads trial testimony as with one who hears the testimony in open court. Miller, 650 F.2d at Indeed, [t]he harm may be even more 10 The Court expresses no opinion as to whether the Court would have accepted Chief Muncey as an expert had the Government offered him as such. The Court ultimately held that Captain Stringer, the Government s second proffered MPD expert, was merely a fact witness, not an expert witness. 7

8 Case 5:15-cr MHH-HGD Document 126 Filed 02/24/16 Page 8 of 15 pronounced with a witness who reads trial transcript than with one who hears the testimony in open court.... Id. The Eleventh Circuit has also recognized that witnesses may violate Rule 615 when they discuss trial testimony outside of the courtroom. See Eyster, 948 F.2d 1196; United States v. Lattimore, 902 F.2d 902 (11th Cir. 1990); United States v. Womack, 654 F.2d 1034 (5th Cir. 1981). 11 By logical extension, a witness also violates an order excluding him from the courtroom when he sends someone to the courtroom in his place and instructs that individual to report the events in the courtroom to him. There is no meaningful distinction between this conduct and the prohibited conduct of two witnesses discussing their testimony with one another. The facts currently known to the Court that give the Court probable cause to believe that Chief Muncey and Captain Cook violated the order excluding them from the courtroom are these: 6. After Chief Muncey left the courtroom, he returned to the police department and began reading media blogs that contained nearly verbatim accounts of the testimony of subordinate officers. Captain Cook read the blogs too. (Doc. 77-2, pp. 51, 53-54, 83, , 156, 165, 171, ). 7. Sergeant Anderson and Lieutenant Marc Bray testified that after the Court excluded Chief Muncey from the courtroom, Chief Muncey had Captain Cook send Sergeant Anderson to the courtroom to monitor the MPD officers who were testifying during trial. (Doc. 77-2, pp , 157). Sergeant Anderson described and text messages in which Chief Muncey and Captain Cook required Sergeant Anderson to report to Chief Muncey about 11 See Bonner, note 7, supra. 8

9 Case 5:15-cr MHH-HGD Document 126 Filed 02/24/16 Page 9 of 15 the trial proceedings. Sergeant Anderson explained that during trial, he received an from Chief Muncey in which Chief Muncey asked, [H]ow is it going? Sergeant Anderson also received a text message from Captain Cook in which Captain Cook asked, [A]re you keeping the chief updated on everything? When Sergeant Anderson asked Captain Cook what he meant by keeping the chief updated, Captain Cook replied, just kind of keep him apprised of the case. When Sergeant Anderson sent a long text describing the events at trial, Chief Muncey sent a response and told Sergeant Anderson that his messages did not have to be so precise. According to Sergeant Anderson, Chief Muncey s text also stated: We re reading the WHNT-19 blogs, but it does not cover the issues when the jury is out of the room or how our officers are coming across. We just need the important stuff or the embarrassing stuff for future correction. (Doc. 77-2, pp ). 8. The evidence from the fact-finding hearing indicates that Chief Muncey and Captain Cook discussed the testimony of trial witnesses with one another and with trial witnesses. During the hearing, Corporal Grigsby testified that when he returned to the police department after he testified in the first trial, Captain Cook called him into Chief Muncey s office. Corporal Grigsby stated that Chief Muncey had the news blog of the trial testimony on his computer screen, and Chief Muncey stated that he was reviewing [Corporal Grigsby s] testimony. According to Corporal Grigsby, Chief Muncey stated that he was disappointed in Corporal Grigsby because his testimony made the department look bad. 12 Corporal Grigsby testified that Chief Muncey tried to engage him in a debate about his testimony and about the reasonableness of Officer Parker s conduct in Parker s encounter with Mr. Patel. Captain Cook was present for this entire discussion. (Doc. 77-2, pp ). 9. Chief Muncey ed six subordinate officers about their trial testimony. The begins: According to WHNT 19 and the Huntsville Times, each of you testified under oath that Madison City police policy supported Officer Parker s use of force on Mr. Patel, and in the same situation, you would have done the same. (Doc. 77-2, pp , 68, 73, 78, 83). 12 Corporal Grigsby testified that he told Chief Muncey that he should get a trial transcript if he wanted to read an accurate description of the testimony that Corporal Grigsby gave. (Doc. 77-2, p. 51). 9

10 Case 5:15-cr MHH-HGD Document 126 Filed 02/24/16 Page 10 of 15 Based on this record, the Court has reason to believe that Chief Muncey and Captain Cook violated the Court s witness sequestration order. 13 C. Law and facts regarding a willful violation of the Rule 615 order. In criminal contempt, willfulness means a deliberate or intended violation, as distinguished from an accidental, inadvertent, or negligent violation of an order. United States v. Burstyn, 878 F.2d 1322, 1324 (11th Cir. 1989) (internal quotation marks and alterations omitted). Under this standard of intent, behavior amounting to a reckless disregard for the administration of justice is sufficient to support a conviction when violative of a reasonably specific court order. Id. The facts currently known to the Court that give the Court probable cause to believe that Chief Muncey and Captain Cook willfully violated the order excluding them from the courtroom are these: 10. Lieutenant Bray testified that during the first Parker trial, he and Captain Cook discussed the fact that the chief had been excluded from the courtroom and Sergeant Anderson had to attend the trial in Chief Muncey s 13 During the fact-finding hearing in the first Parker trial, the Court held that Chief Muncey and Captain Cook had violated the Rule 615 sequestration order. (Doc. 77-2, p. 197). The Court did so for purposes of examining the evidentiary consequences for Mr. Parker s trial of the apparent violation. (Doc. 77-2, pp ). On the evidence currently before the Court, the finding that Chief Muncey and Captain Cook violated the sequestration order is consistent with Eleventh Circuit precedent; however, in the Rule 42 hearing, Chief Muncey and Captain Cook will have the opportunity to demonstrate that the evidence on which the Court rested its finding was not reliable or was incomplete. Even if the evidence supports the conclusion that Chief Muncey and/or Captain Cook violated the witness sequestration order, a violation of the order, standing alone, does not equate with criminal contempt. As stated above, the Court may find Chief Muncey and/or Captain Cook in contempt of court only if the Court finds a willful violation of its order. 10

11 Case 5:15-cr MHH-HGD Document 126 Filed 02/24/16 Page 11 of 15 place. According to Lieutenant Bray, Captain Cook stated that he hated that Chief Muncey sent Sergeant Anderson to attend the trial. Lieutenant Bray stated that when Sergeant Anderson returned from court, Chief Muncey called Sergeant Anderson into a staff meeting to discuss the trial proceedings. (Doc. 77-2, pp ). 11. Sergeant Anderson testified that on Thursday, September 3, 2015, Captain Cook came into his office and said that the rule had been invoked, and the chief was the people that had to testify was asked to leave the courtroom. And the chief initially at first asked Captain Cook to go to court to sit in for him, but Captain Cook had to remind him that he was also subpoenaed. Sergeant Anderson testified that Captain Cook then stated, the chief wants you to go up there. (Doc. 77-2, p. 152). 12. Sergeant Anderson attended the trial on Friday, September 4, As stated above, the evidence gathered to date indicates that during the trial, Captain Cook required Sergeant Anderson to report to Chief Muncey. When Sergeant Anderson was done at the courthouse, he texted Captain Cook and asked for permission to go home for a couple of hours. According to Sergeant Anderson, Captain Cook directed him to return to the police department and to attend a meeting with Chief Muncey, Captain Stringer, Captain Wilkerson, Major Cook, and Captain Cook. According to Sergeant Anderson, when he entered the meeting, the senior officers, including Chief Muncey and Captain Cook, were reading the news blogs and discussing the Parker case. Sergeant Anderson stated that the senior officers met for approximately one hour and asked him a variety of questions about the trial proceedings and the testimony of various trial witnesses. Sergeant Anderson testified that during the meeting, Chief Muncey expressed concern about Sergeant Nick McRae s trial testimony. (Doc. 77-2, pp , ). 13. Sergeant Anderson was not subpoenaed as a trial witness, but he acknowledged that he knows what the rule is, and he was able to explain the purpose of the witness sequestration rule. (Doc. 77-2, pp ). Sergeant Anderson has been with the MPD for ten years. (Doc. 77-2, p. 167). An attorney for the Government stated that he did not explain the rule to Chief Muncey because the attorney assumed that with 30-some odd years experience, the chief, who the Government had designated as an expert witness, would know. (Doc. 77-2, p. 8). 11

12 Case 5:15-cr MHH-HGD Document 126 Filed 02/24/16 Page 12 of In the that Chief Muncey sent to six subordinate officers questioning them about their trial testimony, Chief Muncey instructed the officers to prepare written reports and to submit the reports directly to me ( ) within 24 hours of Parker s case being decided, not before. (Doc. 77-2, pp , 68, 73, 78, 83). 14 This instruction from Chief Muncey avoids the chain of command that would have enabled subordinate officers to provide reports to their immediate supervisors rather than Chief Muncey. In addition, it is reasonable to infer from the time-frame that Chief Muncey gave in his instruction that he was aware that he should not be discussing witnesses testimony during the trial. Based on this record, the Court has reason to believe that Chief Muncey and Captain Cook knew that the witness sequestration rule was in place and behaved with reckless disregard for the administration of justice. D. Contempt Proceedings The Court recognizes that its contempt power is subject to abuse and must be used sparingly; however, the Court cannot ignore the evidence in the record in this case evidence that suggests that the City of Madison s Chief of Police and one of his captains made an end-run around the Court s witness sequestration order and displayed reckless disregard for the administration of justice during a trial in which a criminal defendant s constitutional right to a fair trial was at stake. The conduct in which Chief Muncey and Captain Cook engaged not only significantly disrupted Mr. Parker s first trial, but also eliminated the parties ability to call either Chief Muncey or Captain Cook as a witness in both of the Parker trials. 14 Counsel for Chief Muncey has acknowledged that Chief Muncey sent this to a number of officers. (Doc. 77-2, p. 27). 12

13 Case 5:15-cr MHH-HGD Document 126 Filed 02/24/16 Page 13 of 15 (See Doc. 77-2, p. 200). As much as the Court hates to add to the disruption that the MPD has experienced over the past year, the Court must determine whether the conduct described in the fact-finding hearing rises to the level of criminal contempt. Because of the procedural posture of the fact-finding hearing, Chief Muncey and Captain Cook have not had an opportunity to examine the witnesses who testified in the hearing. As was their right, Chief Muncey and Captain Cook chose not to testify during the evidentiary hearing. To date, neither Chief Muncey nor Captain Cook has asked the Court for an opportunity to testify or to present other evidence that may be relevant to an examination of their conduct through the lens of 18 U.S.C As a result, in accordance with Rule 42(a), Chief Muncey and Captain Cook each shall prepare to show cause as to why the Court should not find them in contempt pursuant to 18 U.S.C. 401(3). This order constitutes notice to Chief Muncey and Captain Cook that the Court has scheduled a criminal contempt hearing at 9:00 a.m. on March 22, 2016 in the second floor courtroom, United States District Court, 101 Holmes Ave., Huntsville, AL At the hearing, Chief Muncey and Captain Cook shall be prepared to present evidence and to offer argument as to why they should not be held in contempt for their apparent violation of the Court s witness sequestration order. 13

14 Case 5:15-cr MHH-HGD Document 126 Filed 02/24/16 Page 14 of 15 Ordinarily, a court directs an attorney for the Government to prosecute a Rule 42 contempt proceeding; however, Rule 42 recognizes that there may be cases in which the interest of justice requires the appointment of another attorney. See F. R. Crim. P. 42(a)(2). This is one of those cases. In these contempt proceedings, attorneys from the U.S. Department of Justice, including attorneys from the U.S. Attorney s Office for the Northern District of Alabama, may have to appear as witnesses. Therefore, the Court exercises its discretion under Rule 42(a)(2) and finds that the interest of justice requires the appointment of a non-government attorney to prosecute these charges of contempt. 15 Accordingly, the Court appoints Anthony Joseph to prosecute these criminal contempt charges. 16 Chief Muncey and Captain Cook have the right to representation of counsel, 15 Application of the interest-of-justice standard to known facts presents an issue of law but one usually inviting deferential review in light of the standard s generality, the range of circumstances to which it must be applied, and the district court s familiarity with the unique facts of a case. See 7A Federal Procedure, Lawyers Edition 17:14; see also In re Special Proceedings, 373 F.3d 37, 42 (1st Cir. 2004) (applying a deferential standard of review in finding that the district court was entitled to appoint an attorney to prosecute a criminal contempt case without first asking the government to handle the case because the district court permissibly found that the interest of justice require[d] it). 16 Mr. Joseph is a partner in the law firm of Maynard Cooper & Gale. Mr. Joseph is a former assistant U.S. Attorney and a former Special Agent for the FBI. He was the President of the Alabama State Bar, a former Alabama State Bar Commissioner, and Vice President of the Alabama State Bar, a past Chair of the American Bar Association s Criminal Justice Section, and is currently a member of its White Collar Crime Committee. He was the 2007 President of the Birmingham Bar Association.... He is a graduate of Vanderbilt University, Howard University, Cumberland School of Law, and the FBI Academy. (last visited February 22, 2016). 14

15 Case 5:15-cr MHH-HGD Document 126 Filed 02/24/16 Page 15 of 15 the presumption of innocence, and the privilege against self-incrimination. 17 Chief Muncey and Captain Cook also have the right to prepare a defense and present witnesses and to proof of guilt beyond a reasonable doubt before any criminal sanction may be imposed. The Court pursues these charges as Class B misdemeanors. The penalties for a Class B misdemeanor may not exceed 180 days of imprisonment and/or a fine of $5,000. Accordingly, this matter will be tried to the Court. See Taylor, 418 U.S. at 495. The Court directs the Clerk to please issue summons for the contempt hearing and forward the summons and copies of this notice and order to the United States Marshal for prompt service on Chief Larry Muncey and Captain Terrell Cook. The Clerk also shall deliver by and by U.S. Mail copies of this notice and order to Jerry Barclay, counsel for Chief Muncey; Brian White, counsel for Captain Cook; and Anthony Joseph. The Court directs the Clerk to please add Mr. Joseph, Mr. Barclay, and Mr. White to the list of attorneys of record in this case. DONE and ORDERED this February 24, MADELINE HUGHES HAIKALA UNITED STATES DISTRICT JUDGE 17 To date, Chief Muncey and Captain Cook each have retained counsel. If either Chief Muncey or Captain Cook becomes unable to afford retained counsel, the Court will appoint counsel. 15