USA v. Eric Sloan Parker

Filing

Opinion issued by court as to Appellant Larry Muncey. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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Date Filed: 06/15/2017

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-11921
Non-Argument Calendar
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D.C. Docket No. 5:15-cr-00055-MHH-HGD-1

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ERIC SLOAN PARKER,
Defendant,
LARRY MUNCEY,
Interested Party - Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(June 15, 2017)

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Before TJOFLAT, WILLIAM PRYOR, and JULIE CARNES, Circuit Judges.
PER CURIAM:
In this appeal, appellant Larry Muncey contests the district court’s contempt
order adjudging Muncey guilty of a Class B misdemeanor for failing to follow the
court’s sequestration order during a trial. Because there was sufficient evidence to
support the district court’s conclusion that Muncey violated the order, we AFFIRM
the district court.
I.

BACKGROUND
Eric Sloan Parker was a police officer with the Madison Police Department

(“Madison”) who was indicted by a federal grand jury for using excessive force
against an individual in violation of federal law. In preparation for Parker’s
criminal trial, both federal prosecutors (the “Government”) and Parker subpoenaed
a number of Madison police officers, including the chief of police, Larry Muncey.
The Government also sent notice that it intended to call Muncey as an expert
witness to testify about Madison policies and officer training. Prior to trial, the
prosecutor, Assistant United States Attorney Robert Posey, met with Muncey and
explained to him that, because he had been designated as an expert witness for the
Government, the latter would request that Muncey be excused from the witness
sequestration rule.

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On September 1, 2015, the Government and Parker requested that the district
court issue a witness sequestration order pursuant to Federal Rule of Evidence
615,1 but also requested that their respective experts be excused from the rule,
meaning that these experts be allowed to remain in the courtroom throughout the
trial. The district court granted the parties’ request and ordered witnesses to be
sequestered. Muncey was not in the courtroom when the district court entered this
order, but the prosecutor spoke with Muncey again after the order was issued to tell
him that because he was an expert witness, he would be allowed to sit in the
courtroom despite the sequestration order.
By the conclusion of the its case-in-chief, the Government had decided that
it was no longer going to use Muncey as an expert witness. Because Muncey was
still under a defense subpoena, counsel for defendant Parker therefore requested
that Muncey be sequestered for the remainder of the trial. Muncey was in the
courtroom at the time this exchange occurred, and though he testified that he did
not hear everything that was said between defense counsel and the judge, Muncey
heard “something to the effect” that the sequestration rule was being invoked as to
him, as well. The Government’s case agent then motioned for Muncey to leave the
courtroom, so Muncey left and did not return.

1

Rule 615 provides: “At a party’s request, the court must order witnesses excluded so that they
cannot hear other witnesses’ testimony. Or the court may do so on its own.” Fed. R. Evid. 615.
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Once Muncey left the courtroom, he telephoned Captain Terrell Cook and
requested that Cook go to the courtroom to observe the trial and “monitor the
proceedings.” However, when Muncey realized that Cook was also sequestered
from the trial, he called Cook back and said, “If you’re on the witness list, they
won’t let you in.” Thus, the two men decided they would instead send Sergeant
Lamar Anderson in their place to observe the trial and to keep them informed as to
what the testimony was.
Cook told Anderson to keep Muncey updated during the trial, so Anderson
emailed Muncey a timeline of the trial proceedings that he had been observing,
including specific questions and answers from witness testimony. Muncey
responded to Anderson’s email saying: “Hey, buddy, you don’t have to be so
precise. We are reading the WHNT 19 blog. But it does not cover issues when the
jury is out of the room or how officers are coming across. . . . We just need the
important stuff, or embarrassing stuff for future correction.”
On the same day, Corporal Wesley Grigsby testified in the Parker trial. The
next day, when Grigsby was at the police station, Grigsby was called into
Muncey’s office. Muncey told Grigsby that he had been reviewing the news blogs
on his computer and was disappointed in Grigsby’s testimony because it made the
department look bad. Grigsby told Muncey that he was very nervous and
uncomfortable and that Muncey shouldn’t take the blog as representing his
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testimony verbatim. Muncey responded “in a harsh tone,” asking, “So they
misquoted you, Grigsby?”
That evening, Muncey sent an email to three other officers who had testified
in the Parker trial. The email stated:
According to WHNT 19 and the Huntsville Times, each of you
testified under oath that Madison City Police policy supported
Parker’s use of force on Mr. Patel, and in that same situation, you
would have done the same. Please provide me with a written
statement explaining if these reports are correct; if they are not
correct, explain what you did say. Send the reports directly to me
within twenty-four hours of the Parker case being decided, not
before.”
The following morning, Muncey sent the same email to three other officers who
had also testified in the Parker trial. A number of the officers feared repercussions
and sought legal counsel in response. Sergeant Marc Bray, who had not yet
testified, heard about these emails prior to testifying and believed that he was
going to have to explain his upcoming testimony to Muncey after the fact.
When the district court learned about Muncey’s actions, it suspended the
trial and held a fact-finding hearing about the possible sequestration violations.
Following this hearing, the court concluded that there was probable cause to
believe that Muncey willfully violated the Court’s sequestration order, and it
therefore ordered contempt proceedings against Muncey to determine his conduct

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and any legal consequences. 2 A contempt trial was held on April 12, 2016, in
which Posey, Muncey, Cook, Grigsby, Anderson, and a number of other Madison
officers testified. Three days later, the district court announced its finding that the
Special Prosecutor had proved beyond a reasonable doubt that Muncey was guilty
of criminal contempt. On July 21, 2016, the district court entered a final judgment
adjudging Muncey guilty of a Class B misdemeanor violation of 18 U.S.C.
§ 401(3).3 The district court ordered that Muncey pay a $2,500 fine and attend
liability-management training at his own expense.
II.

DISCUSSION
On appeal, Muncey challenges whether there was sufficient evidence

introduced at the contempt trial to prove beyond a reasonable doubt that he
violated the district court’s sequestration order. “To support a § 401(3) conviction,
‘the government must prove: (1) that 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)
(quoting United States v. Maynard, 933 F.2d 918, 920 (11th Cir. 1991)). Muncey
does not dispute that his actions actually violated the order, as required by the
2

Because the Government attorneys would likely be called as witnesses, the court also
appointed a special prosecutor to prosecute the criminal contempt charges.
3

Pursuant to 18 U.S.C. § 401(3), “[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.”
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second element. Instead, he contends that there was insufficient evidence from
which the district court, as the trier of fact, could have concluded that the order was
reasonably specific and that Muncey’s actions amounted to a willful violation of
the order, as required by the first and third elements.
“In reviewing the sufficiency of the evidence in support of a finding of
criminal contempt, ‘we must determine whether the evidence, construed in the
light most favorable to the government, would permit the trier of fact to find the
defendant guilty beyond a reasonable doubt.’” Maynard, 933 F.2d at 920 (quoting
United States v. Robinson, 922 F.2d 1531, 1534 (11th Cir. 1991)). We also apply
“the familiar doctrine that the evidence is to be viewed, and all credibility issues to
be decided, in the light most favorable to the charge, and all reasonable inferences
drawn in support of a guilty verdict.” In re E.I. DuPont De Nemours & Co.Benlate Litig., 99 F.3d 363, 370 (11th Cir. 1996). A conviction will be sustained
“if there is substantial evidence to support it.” Maynard, 933 F.2d at 920 (internal
quotation marks omitted).
A.

Reasonably Specific Order

An order “meets the ‘reasonable specificity’ requirement only if it is ‘clear,
definite and unambiguous’ in requiring the action in question.” Bernardine, 237
F.3d at 1282 (quoting Bush Ranch Inc. v. E.I. DuPont De Nemours & Co., 99 F.3d
363, 370 (11th Cir. 1996)). Nevertheless, this is a “factual inquiry that ‘must be
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evaluated in the context in which it is entered and the audience to which it is
addressed.’” Id. (quoting In re McDonald, 819 F.2d 1020, 1024 (11th Cir. 1987)).
Although the district court did not spell out in detail the prohibitions
inherent in its order, the court’s sequestration order met the “clear, definite, and
unambiguous” test. At the beginning of the Parker trial, the court ordered that
witnesses be sequestered for the duration of the trial. Although Muncey was not
present when this sequestration order was entered, the prosecutor testified that he
explained to Muncey that Muncey was going to be excused from the rule so that he
could be present in court and hear the testimony of the other witnesses. Muncey
similarly testified that it was his understanding that he would be allowed to remain
in the courtroom when the testimony began because “the rule” would not apply to
him since he had been designated as an expert witness. Muncey also testified that,
even though he had never read the rule or had it specifically explained to him, he
“had an idea of sequestration” at the time the trial began.
After it became clear that the Government was not going to call Muncey to
testify for its case-in-chief, defense counsel requested that Muncey be sequestered.
Muncey was in the courtroom and heard defense counsel make this request. The
district court then stated that if the Government was not going to present Muncey
in its case-in-chief, “then he needs to be excused under the rule.” At this time, the
Government’s case agent got up and motioned for Muncey to leave, so Muncey
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walked out the door and left. Muncey understood that he could not return to the
courtroom after this had happened, “because of an instruction that the Court had
given.” Based on the above, it was reasonable for the court to conclude that its
sequestration order as to Muncey was clear, definite, and unambiguous.
This case does not present a situation like United States v. Robinson, 922
F.2d 1531, 1534 (11th Cir. 1991), where it was unclear whether an order had
actually been imposed on the contemnor. In Robinson, the Middle District of
Florida’s local rules prohibited speaking objections, but the rules also made clear
that the prohibition was not mandatory and was subject to revision based on the
preference of each judge. Thus, the court could not conclude that the alleged
contemnor “was on notice of the judge’s rule against speaking objections,” simply
by the existence of an optional local rule. Id. Here, however, the court clearly
ordered that Muncey be subject to the sequestration order, and understanding that
he could not return to the courtroom after he left, Muncey was necessarily aware
that the rule applied to him.
This conclusion finds further support when one considers “the audience to
which [the order was] addressed.” Bernardine, 237 F.3d at 1282 (internal
quotation marks omitted). Muncey had served as a police officer for over twenty
years, including time as a police chief where he had authority over the training and
education of other police officers. Other police officers from the Madison Police
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Department called as witnesses during the contempt hearing testified that they
knew what a sequestration order meant and generally required. Muncey’s
extensive law enforcement experience reinforces the conclusion that the court’s
sequestration order was sufficiently specific.
The district court did not go into detail as to the specific requirements of the
sequestration order nor explain what actions would or would not be prohibited by
the Order. But whether or not Muncey knew that his specific actions were in
violation of the order is a separate question that we turn to now.
B.

Willful Violation

Acknowledging that he violated the sequestration order, Muncey challenges
only the district court’s conclusion that he did so willfully. A violation of an order
is willful if it is “a deliberate or intended violation, as distinguished from an
accidental, inadvertent, or negligent violation of an order.” United States v.
Straub, 508 F.3d 1003, 1012 (11th Cir. 2007) (quoting United States v. Baldwin,
770 F.2d 1550, 1558 (11th Cir. 1985)). “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.” United
States v. Burstyn, 878 F.2d 1322, 1324 (11th Cir. 1989).
When viewed in the light most favorable to the court’s finding of fact, there
was sufficient evidence from which the court could conclude that Muncey
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deliberately and intentionally violated the order. Although no one explained the
specific contours of the rule to Muncey, he testified that he had a general idea of
what sequestration was and understood that he was only able to remain in the
courtroom initially because he had been designated as an expert witness. Indeed,
Muncey understood that after he had been excused from the courtroom, he was not
supposed to return to the courtroom and would have had to specifically ask for
permission to be let back in. This comports with Posey’s perception of Muncey as
“someone who was familiar with the process [and] was knowledgeable of
proceedings in general.”
Further, it was reasonable for the court to infer from Muncey’s extensive law
enforcement experience that he would have known that his actions—sending
another officer into the courtroom to monitor the proceedings and report back to
him, emailing officers to request confirmation of testimony, and specifically
confronting a witness (Grigsby) about testimony that displeased Muncey—would
have been in violation of the sequestration order. Indeed, other officers who
testified at the contempt trial indicated such an understanding. Captain John
Stringer understood the rule to mean: “No discussing the trial or trying to find out
what other witnesses have said.” Sergeant Bray similarly understood that “the rule
is invoked so that you can’t hear testimony or discuss testimony with people so
that you don’t collude or have your own – your testimony influenced.” Sergeant
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Anderson understood that the rule was invoked “to keep the purity of the case” and
“keep testimony from being tainted.” If Muncey understood the rule in the same
way, he would have known that his actions were in direct violation of a rule
preventing his contact with witnesses regarding the trial.
And, as it turns out, there was evidence suggesting that Muncey did know
how the sequestration rule worked. Muncey understood that after he was asked to
leave, he would not be allowed to return to the courtroom. Indeed, after Muncey
was asked to leave, he called Captain Cook and asked him to sit in the courtroom
for him, but then realized that because Cook was subpoenaed as well, he would not
be allowed in either. Likewise, when Muncey emailed the other police officers
requesting that they verify the accuracy of the emails, Muncey asked that that the
reports be sent directly to him “within twenty-four hours of the Parker case being
decided, not before.” Muncey’s recognition that Cook could not sit in on the trial
and his request that the reports be sent after the trial concluded provided an
evidentiary basis for the court to conclude that Muncey knew the general contours
of the sequestration rule and that his actions were therefore in willful violation of
the dictates of the sequestration order.
Nonetheless, Muncey argues that his actions were not meant to openly flout
the district court’s order, but instead were undertaken for a less nefarious purpose.
To this end, Muncey contends that his observation of the trial and contact with
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other subpoenaed witnesses was done to monitor the “decorum” of the officers and
to prevent any further police department liability. 4 As the trier of fact, the district
court was free to discredit or discount these proffered explanations, but even if
accepted as true, Muncey’s motives for violating the order are of little moment.
Instead, the district court could have reasonably concluded that two things were
true at the same time: (1) Muncey took his violative actions in order to limit the
potential for future department liability, but (2) Muncey nonetheless knew that
these actions were in violation of the district court’s sequestration order. Again, a
violation is “willful” if the contemnor deliberately or intentionally violated the
order, or recklessly disregarded the administration of justice. Straub, 508 F.3d at
1012; Burstyn, 878 F.2d at 1324. When “construed in the light most favorable to
the government,” Maynard, 933 F.2d at 920, there was sufficient evidence from
which the district court could have concluded that Muncey knew that his actions
would violate the court’s sequestration order, but that he nevertheless chose to do
4

Muncey was worried about the testimony of police officers who had indicated that Parker
acted properly and in accordance with the department’s use of force policy. As Muncey
explained his thought process:
After the officers testified in this court and it became public that they did not
understand policy and procedures, and that they would act in the same manner in
the same situation, that exposes city and themselves and all of their supervisors to
huge liabilities -- failure to train, failure to act, failure to supervise. Once an
administrator knows of a problem, if they fail to take action to correct that
problem, then you’re open to a 1983 lawsuit.
Muncey had hoped to be able to confront any such allegations by showing that he was
immediately taking corrective action when he learned of the officer’s testimony. It is not clear
why he could not have waited until the trial was over to perform this post-mortem, however.
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so. Thus, the district court did not err by concluding beyond a reasonable doubt
that the violation was “willful.”
III.

CONCLUSION
Because there was sufficient evidence to support the district court’s

conclusion that Muncey violated the sequestration order beyond a reasonable
doubt, we AFFIRM the district court.

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