IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

UNITED STATES OF AMERICA )

)

vs. ) CASE NO. 2:06cr193-MEF

 )

JOSHUA WAYNE HESTER )

RESPONSE TO COURT’S ORDER TO SHOW CAUSE

On April 6, 2007, the Court entered an order directing undersigned counsel to show cause

why he should not be held in contempt of court, pursuant to Fed. R. Crim. P. 42, for his accidental

and inadvertent failure to appear before the Court for sentencing in the above-styled cause on that

same date. What follows is counsel’s response in compliance with said order:

1. At approximately 10:00 a.m. E.D.T. on April 6, 2007, undersigned counsel received a

telephone call at his office in Macon, Georgia from United States Probation Officer Kevin Poole.

After brief preliminary pleasantries, Mr. Poole informed counsel that he was in the courtroom for

sentencing in the above-styled cause and at once a sense of panic came over counsel. After uttering

an expletive in light of the situation, counsel checked the calendar for April 6 and verified that a

court appearance was not shown on it for that date. Counsel did not recall there being a court

appearance scheduled for that date and when he checked further he found the sentencing noted on

the calendar for April 13, 2007. These circumstances were explained to Mr. Poole in the course of

counsel’s telephone conversation with him and Mr. Poole told counsel that he would inform the

court’s courtroom deputy clerk of them and would again call counsel.

2. Later on the morning of April 6 Mr. Poole telephoned counsel again, this time on speaker

Case 2:06-cr-00193-MEF-CSC Document 53 Filed 04/09/2007 Page 1 of 4
2

phone with supervisory United States Probation Officer Scott Wright. Both probation officers

informed counsel that the Court was “ticked off” at what had occurred and told counsel that they had

been directed to contact counsel and inform him that the Court would be entering a show cause

order. 

3. It is perfectly understandable that the Court was displeased, annoyed, or even angry at the

non-appearance of counsel; counsel is fully displeased at himself for what has occurred and hereby

offers his profound and heartfelt apology for inconveniencing the Court, opposing counsel, and the

probation officer, as well as for his client having to endure the stress and bewilderment of being

brought to appear before the Court only to find counsel absent. The non-appearance, however, was

not a willful act, did not occur as part of a pattern or history of counsel failing to appear before this

Court as required and should not be punished as a criminal contempt under Rule 42.

4. Counsel’s failure to appear for the proceeding on April 6 was an extraordinarily rare, isolated

occurrence and certainly not something that was done willfully. Counsel has no history of failing

to appear before this Court; this is the first time that counsel can recall not appearing as required for

a proceeding in his more than 27 years of being admitted as member of the bar of this Court. Due

to the counsel’s own apparent calendaring error, counsel was unaware of the need to appear on April

6, until he received the above-described telephone call from Mr. Poole. While counsel may have

been negligent in his non-appearance, the failure to appear was not a deliberate act. Counsel swears

that it will never happen again.

 5. Although the Court referred to Federal Rule of Criminal Procedure 42, the rule governing

criminal contempt, in its Order requiring counsel to show cause, criminal contempt is not an

appropriate sanction in this instance. As the United States Court of Appeals for the Eleventh Circuit

Case 2:06-cr-00193-MEF-CSC Document 53 Filed 04/09/2007 Page 2 of 4
3

has explained:

 The essential elements of criminal contempt are a lawful and reasonably

 specific order of the court and the willful violation of that order. The 

 attorney, therefore, must either intentionally violate the court’s order or

 must exhibit conduct which constitutes reckless disregard for the orders

 of the court. Negligent, accidental or inadvertent violation of an order

 is insufficient.

United States v. KS & W Offshore Engineering, Inc., 932 F.2d 906, 909 (11th Cir. 1991), citing

United States v. Burstyn, 878 F.2d 1322, 1324 and United States v. Turner, 812 F.2d 1552, 1563

(11th Cir. 1987). Here, counsel’s conduct was not intentional, nor did it constitute reckless disregard

for the court’s order. The non-appearance was accidental or inadvertent, the result of, at worst,

counsel’s negligence, for which he accepts full responsibility. 

6. It is difficult to convey to the court the profound sense of embarrassment and shame that

counsel feels at what has transpired. The sinking feeling felt when Mr. Poole first telephoned on

April 6 is one which counsel never wishes to feel again. Counsel has always sought to be prompt

for all court appearances and to be prepared at all appearances. Non-appearance, or even tardiness,

has never been a problem for counsel in the past and counsel can say with confidence that there will

not be a repeat of counsel’s non-appearance before the Court in the future. 

Respectfully submitted,

s/Stephen R. Glassroth

STEPHEN R. GLASSROTH

Counsel for Joshua Wayne Hester

AL Bar Code: GLA005

Post Office Box 996

Macon, Georgia 31202-0996

Phone (478) 743-4747

Fax (478) 743-4749

Case 2:06-cr-00193-MEF-CSC Document 53 Filed 04/09/2007 Page 3 of 4
4

E-mail steve_glassroth@fd.org

CERTIFICATE OF SERVICE

 I hereby certify that on April 9, 2007, I electronically filed the foregoing with the Clerk of

the Court using the CM/ECF system which will send notification of such filing to all counsel of

record in this matter.

s/Stephen R. Glassroth

STEPHEN R. GLASSROTH

Counsel for Joshua Wayne Hester

AL Bar Code: GLA005

Post Office Box 996

Macon, Georgia 31202-0996

Phone (478) 743-4747

Fax (478) 743-4749

E-mail steve_glassroth@fd.org

Case 2:06-cr-00193-MEF-CSC Document 53 Filed 04/09/2007 Page 4 of 4