Case 1:09-mc-00273-EGS Document 5

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _________________________________ ) ) IN RE CONTEMPT FINDING IN ) ) UNITED STATES v. STEVENS ) ) _________________________________)

Misc. No. 09-mc-00273-EGS

MOTION FOR RULING ON UNCONTESTED MOTION TO VACATE FINDING OF CONTEMPT Patty Merkamp Stemler, by and through counsel, respectfully requests this Court promptly rule on her motion filed June 2, 2009, to vacate the Court’s February 13, 2009, finding of contempt in United States v. Stevens, Case No. 08-cr-231 (EGS). In support of this motion, Ms. Stemler incorporates by reference her prior motion and accompanying memorandum of law and declarations, and further states as follows: 1. On February 13, 2009, during a status conference in United States v. Stevens, this

Court held Ms. Stemler and two other attorneys in contempt of court for failure to produce thirty documents to the defendant during post-trial proceedings. As stated in the declarations of former Acting Assistant Attorney General Rita Glavin and Patty Stemler that were attached to Ms. Stemler’s Motion to Vacate and which no one has disputed, Ms. Stemler had no knowledge of or involvement in the failure to produce the thirty documents to the defendant prior to the February 13, 2009 status conference. (Glavin Decl. ¶¶ 6, 9, June 2, 2009; Stemler Decl. ¶¶ 8, 22, 25, 30, June 1, 2009.) 2. Ms. Stemler, who was sitting in the audience as an observer during the February

13, 2009 status conference, only came to the Court’s attention when, in response to the Court’s

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inquiry, she stood to identify herself as a signatory to the February 9, 2009 government filing. Her in-court conduct was indisputably not contumacious. 3. When the Court held Ms. Stemler in contempt, the Court stated that “there will be

further proceedings at the appropriate time” and that it would “deal with the sanctions associated with the conte[mpt] at a later date.” (Hr’g Tr. 12-13, Feb. 13, 2009.) 4. On April 7, 2009, the Court set aside the verdict in United States v. Stevens and

dismissed the case. At the same time, the Court commenced criminal contempt proceedings against six members of “the original prosecution team” in United States v. Stevens pursuant to Federal Rule of Criminal Procedure 42. (Hr’g Tr. 46, Apr. 7, 2009.) Two of these six attorneys were held in contempt along with Ms. Stemler during the February 13, 2009 status conference. Ms. Stemler, who was not part of the original prosecution team in United States v. Stevens and had no involvement in the conduct that led to the dismissal of the case, was not among the six attorneys named by the Court on April 7, 2009. As a result, Ms. Stemler is not a subject of the special inquiry being conducted by Henry Schuelke. 5. On June 2, 2009, Ms. Stemler filed a Motion to Vacate Finding of Contempt,

respectfully requesting that the Court reconsider or otherwise resolve its in-court contempt finding of February 13, 2009, as it pertained to her. Two days later, her motion was transferred to this Court. 6. No action has been taken on Ms. Stemler’s motion for more than a year. No one

has opposed her motion or has otherwise voiced objection to her request, and the Court has not requested any additional briefing or a hearing. Significantly, no one has disputed that Ms. Stemler had no role in the conduct the Court found contumacious during the February 13, 2009 status conference.

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The long pendency of Ms. Stemler’s outstanding, unopposed motion has caused

harm both to Ms. Stemler and to the Department of Justice. Other than the Court’s February 13, 2009 contempt ruling, Ms. Stemler has an unblemished record of thirty-four years. Ms. Stemler, who has dedicated her professional career to the Department of Justice and has served as the Chief of the Criminal Division’s Appellate Section since 1992, has borne the opprobrium of this unwarranted charge for more than sixteen months. Because the Court’s contempt ruling remains unresolved, Ms. Stemler has not signed her name to any brief, or filed an appearance, on behalf of the United States since February 13, 2009, hampering the government’s advocacy in the most important criminal appellate cases. (Stemler Decl. ¶ 6.) For these reasons and for the reasons set forth in her prior motion, Ms. Stemler respectfully requests that the Court rule on her pending motion at the earliest opportunity.

Respectfully submitted,

__/s/ Seth P. Waxman______ Seth P. Waxman (#257337) Howard M. Shapiro (#454274) Mary K. Gardner (# 987638) WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Avenue, NW Washington, D.C. 20006 Phone: (202) 663-6000 Fax: (202) 663-6363 Attorneys for Patty Merkamp Stemler Dated July 8, 2010