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                                                         [DO NOT PUBLISH]



          IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 16-11921
                       Non-Argument Calendar
                     ________________________

             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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