Person v. Miller
| Citation | 854 F.2d 656 |
| Decision Date | 13 September 1988 |
| Docket Number | No. 86-3882,86-3882 |
| Parties | , 57 USLW 2162, 26 Fed. R. Evid. Serv. 1047 Bobby L. PERSON, United States of America, Plaintiffs-Appellees, v. Glen F. MILLER, Defendant-Appellant, and Carolina Knights of the Ku Klux Klan, an unincorporated association; Jerry Michael Lewis; Joan Short; Gregory Short; Charles Cox; Gordon Ipock; Stephen Miller; Robert Stoner; Vince Witt; Tommy Driggers; Boyd Maloney; Beauford Ogle; Tony Henricks; Culbert Wilkerson; Sterling Henson; Richard Pounder; Ken Penley; Ricky Nunnery; Tony Sheldon; Jeff Johnston; Jeff Cartrett, Defendants. |
| Court | United States Courts of Appeals. United States Court of Appeals (4th Circuit) |
Thomas Ralph Scott (Street, Street, Street, Scott & Bowman, Grundy, Va., on brief), for defendant-appellant.
Irving Gornstein, Dept. of Justice, Civil Rights Div., Washington, D.C. (J. Douglas McCullough, Acting U.S. Atty., Raleigh, N.C., William Bradford Reynolds, Asst. Atty. Gen., David K. Flynn, Dept. of Justice, Washington, D.C., Morris Dees, Southern Poverty Law Center, Montgomery, Ala., on brief), for plaintiffs-appellees.
Before RUSSELL, PHILLIPS and SPROUSE, Circuit Judges.
Glen Miller challenges a judgment finding him in contempt of a court order prohibiting him from operating a paramilitary organization and doing certain other acts prohibited by North Carolina law. He raises a number of issues on appeal, principally that there was insufficient evidence to support the finding of contempt; that the court's appointment of counsel for an interested party to prosecute the action violated the Supreme Court's rule established in Young v. U.S. ex rel. Vuitton Et Fils S.A., --- U.S. ----, 107 S.Ct. 2124, 95 L.Ed.2d 740 (1987); that the district court should have excused for cause all potential jurors who were beneficiaries of the court order allegedly violated; that the district court should have granted Miller's motion for a separate trial from his co-defendant, Stephen Miller; and that the district court allowed the admission of irrelevant and unfairly prejudicial evidence against Miller. We believe that these and Miller's other contentions are without merit and therefore affirm.
In June 1984, Bobby Person, a black citizen of the United States and the State of North Carolina, filed a class action against the Carolina Knights of the Ku Klux Klan (CKKKK), its leader, Glen Miller, and other named and unnamed individuals associated with the CKKKK. The suit alleged that the defendants had engaged in a series of violent and intimidating acts throughout North Carolina with the purpose of preventing black citizens and others acting in concert with them from freely exercising their rights under state and federal law. The district court ultimately certified a class consisting of "all black citizens in the State of North Carolina who seek to exercise their state and federal rights free from interference by the defendants."
In January 1985, the parties entered into a consent decree which prohibited Miller and the CKKKK from, among other things, "operat[ing] a paramilitary organization and do[ing] other acts prohibited by North Carolina General Statutes 14-288.20(b)(1) 1 and (b)(2) 2 and North Carolina G.S.
" 3 The agreement also authorized "the Court to enter an Order encompassing the terms and conditions of the agreement." On January 18, 1985, the court held a hearing on the terms of the consent agreement, attended by Person's counsel and Miller. The order was entered later that day. In September 1985, after the giving of constructive notice by publication to class members, the court made the decree final as to Miller, the CKKKK, and its successor organization, the White Patriot Party (WPP). Miller had changed the name of the organization after the entry of the court's order in January 1985.
In April 1986, Person's counsel, Morris Dees, moved, on a supporting complaint, to cite Miller and the WPP for criminal contempt of court. The complaint alleged that Miller and the WPP had violated the court's order by operating a paramilitary organization and engaging in conduct violative of Sec. 14-10. The complaint was later amended also to allege a violation of the order because Miller and the WPP had operated a paramilitary organization and engaged in conduct violative of Sec. 14-288.20(b)(1). The district court ordered Miller and the WPP to show cause why they should not be found in contempt and set a hearing for July 1986.
Dees was initially authorized by the court to prosecute the contempt action. From the time that the original complaint was filed until June 1986, Dees was actively engaged in preparing the case. He filed several amendments to the original complaint, moved the court to add various parties as defendants, one of which was Stephen Miller, and conducted discovery. In June 1986, counsel for Miller moved to have Dees disqualified on the grounds that Dees would be a material witness at trial and that Dees' appointment as prosecutor violated the North Carolina Rules of Professional Conduct and Miller's right to be prosecuted by an impartial prosecutor as guaranteed by the Due Process Clause.
Noting a conflict in recent circuit court decisions on whether counsel for an interested party could prosecute a related criminal contempt action, specifically United States ex rel Vuitton et Fils S.A. v. Klayminc, 780 F.2d 179 (2d Cir.1985) (appointment not improper) and Polo Fashions, Inc. v. Stock Buyers Int'l, Inc., 760 F.2d 698 (6th Cir.1985) (), the court ordered that the prosecution would be under the "direct supervision and control" of the United States Attorney's Office for the Eastern District of North Carolina. The court further ordered that Dees could "assist the United States Attorney prior to and during the course of the trial." Shortly after the entry of the court's order, the prosecution filed a composite complaint against Glen Miller and the WPP which was signed by the United States Attorney for the Eastern District of North Carolina and Dees. The case came to trial in late July 1986.
At trial, the prosecution presented James Holder and Robert Jones as key witnesses. Holder was a member of the CKKKK in 1982 and 1983. He testified that Miller's ultimate goal was to overthrow the government, beginning with taking control of a large part of the south. This plan was apparently based on a fictional book, The Turner Diaries, which describes the overthrow of the government in 1991 by a white supremacist group known as "The Order." Holder explained that Miller regarded the book as a guide for his organization and actively recommended that all members read it. Holder himself was in charge of providing military training for the CKKKK and engaged in exercises which included weapons and tactical training. The purpose of these exercises was to prepare for Miller's plan to overthrow the government.
Jones testified that Miller asked him to assist in the CKKKK's training and to help acquire weapons and explosives for the group. Miller apparently left the details of these activities to be worked out by Jones and Miller's subordinates, including Stephen Miller. Jones undertook to supply the WPP with various firearms, explosives, and other military equipment as well as provide training in the use of these items. He continued this activity until his arrest in July 1985. Jones testified that he met with Miller after his arrest and that Miller asked him not to disclose any information to the authorities, silence for which he offered to pay Jones $1300 per month.
On this and the other evidence, the jury convicted Miller of (1) operating a paramilitary organization and violating N.C.Gen.Stat. Sec. 14-288.20(b)(1), and (2) operating a paramilitary organization and violating N.C.Gen.Stat. Sec. 14-10.
This appeal followed.
Miller first raises a number of issues all relating to whether there was sufficient evidence for the jury to find him in criminal contempt of court: that the prosecution failed to prove the existence of the order that he allegedly violated, an essential element of a contempt conviction; that the prosecution failed to prove that he simultaneously operated a paramilitary organization and violated all three listed North Carolina statutes, which Miller claims is the only way that he could violate the order; that the prosecution did not prove that he violated either Sec. 14-288.20(b)(1) or Sec. 14-10; and that the prosecution failed to prove that he acted willfully in violation of the order because it is not clear and definite in its terms. We take these contentions in turn.
An essential element of a contempt conviction is that the prosecution show that the defendant violated a valid court order. Richmond Black Police Officers Ass'n v. City of Richmond, 548 F.2d 123, 129 (4th Cir.1977). Miller correctly notes that the prosecution did not introduce the court's January 18, 1985 order into evidence. The district court did, however, take judicial notice of the order and placed it before the jury for consideration in its deliberations. And while Miller complains that the prosecution did not request that the court take judicial notice of the order, such a request is not a necessary prerequisite of judicial notice. Fed.R.Evid. 201 provides that "[a] court may take judicial notice [of an appropriate fact], whether requested or not." We think that the district court was well within its discretion to take judicial notice of its order and by this means to lay it before the jury for consideration.
Miller's next contention turns on a change in the wording of the order. The original draft of the settlement agreement entered into between Person and Miller prohibited Miller from: "operat[ing] a paramilitary organization or do[ing] certain other acts prohibited by North...
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