author: PER CURIAM.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Stuart Lynn JAMISON, Defendant-Appellant.
    No. 73-1967.
    United States Court of Appeals, Sixth Circuit.
    Argued Jan. 29, 1974.
    Decided March 5, 1974.

      Thomas R. Dyer (Court Appointed) Memphis, Tenn. (Court-appointed), on brief, for defendant-appellant.
    Thomas F. Turley, U. S. Atty., J. N. Raines, Asst. U. S. Atty., Memphis, Tenn., on brief, for plaintiff-appellee.
    Before PHILLIPS, Chief Judge, and EDWARDS and Me CREE, Circuit Judges.
   PER CURIAM.

Appellant was convicted of importing two ounces of marijuana into the United States, in violation of 21 U.S.C. § 176a, and was sentenced to a mandatory term of five years. On a previous appeal he contended, inter alia, that the verdict of the jury was not unanimous as required by the Constitution, see Apodaca v. Oregon, 406 U.S. 404, 92 S. Ct. 1628, 32 L.Ed.2d 184 (1972), and in support of this contention, he produced an affidavit of one of the jurors stating that she had not in fact voted to convict appellant. The record disclosed that the foreman of the jury announced in open court that the jury had reached a guilty verdict, and that although the jury was polled collectively, no juror spoke out to object to the announced verdict. Although recognizing the settled and longstanding rule that jurors may not be heard to impeach a verdict to which they have assented, e. g., United States v. Chereton, 309 F.2d 197 (6th Cir. 1962), Klimes v. United States, 105 U.S.App.D.C. 23, 263 F.2d 273 (1959), we remanded the case to the district court for the purpose of holding a limited evidentiary hearing to determine whether the jury verdict was in fact unanimous. After conducting an evidentiary hearing pursuant to our direction on remand, the district court found that all the jurors, including the one whose concurrence in the guilty verdict was challenged by appellant, had in fact unanimously assented to the verdict. Accordingly, the district court denied appellant’s motion for a new trial.

On this appeal appellant contends that the testimony adduced at the hearing does not support the district court’s factual determination that the jury verdict was unanimous. Upon a consideration of the transcript of the evidentiary hearing, we hold that the court’s finding is not clearly erroneous. Fed.R.Civ.P. 52(a).

Appellant also contends that he was entitled to be sentenced under the provisions of the Comprehensive Drug Abuse and Control Act of 1970, Pub.L. No. 91-513, 84 Stat. 1242, § 1101(b) (4) (A), which repealed the mandatory sentencing requirement of 26 U.S.C. § 7237(d). The district court apparently considered itself bound to sentence appellant under the mandatory sentencing procedure, even though the imposition of a five year term for the importation of two ounces of marijuana troubled the judge to the extent that he attempted to modify the sentence by providing for discretionary parole. Under the mandatory sentencing provision the judge could not suspend the sentence or grant probation, and the provision also expressly provided that parole could not be granted pursuant to the provisions of 18 U.S.C. § 4202, the regular parole statute. Appellant argues that because his conviction occurred after the effective date of the new Act, May 1, at which time the mandatory sentencing provisions were repealed, he should have been sentenced under the discretionary sentencing provisions.

We are troubled by the harshness of this sentence, imposed under a Congressional mandate since repealed, for the offense committed. In repealing the mandatory sentencing provision, however, Congress expressly provided a “savings clause” in Section 1103(a) of the Comprehensive Drug Abuse Prevention and Control Act of 1970. Section 1103(a) provides:

“Prosecutions for any violation of law occurring prior to the effective date of [the Act] shall not be affected by the repeals or amendments made by [it] ... or abated by reason thereof.”

Here, the prosecution involved was clearly for “a violation of law arising prior to the effective date of [the Act].” Section 1103(a), therefore, required the court to sentence appellant under the mandatory sentencing provisions, if appellant’s sentencing is considered a part of his “prosecution” within the meaning of the savings clause. The Supreme Court, in resolving a conflict between circuits, has recently held, unequivocally, that for the purposes of interpreting Section 1103(a), the term “prosecution” includes the sentencing procedure. Bradley v. United States, 410 U.S. 605, 93 S.Ct. 1151, 35 L.Ed.2d 528 (1973). Accordingly, we hold that appellant was sentenced under the mandatory sentencing provisions in accordance with the law.

The Supreme Court in Bradley expressly left open the question whether parole might, nevertheless, be available under the provisions of 18 U.S.C. § 4202. Interpreting the term “prosecution” in the savings clause to extend through the sentencing procedure, the Court held that § 1103(a) prohibits the district judge from specifying at sentencing that the offender may be eligible for early parole under the provisions of 18 U.S.C. § 4208(a), which must be invoked by the court upon entering judgment of conviction. But the Supreme Court carefully noted that “[t]he availability of parole under the general parole statute, 18 U. S.C. § 4202, is a rather different matter, on which we express no opinion.” 410 U.S. at 611, 93 S.Ct. at 1156. The Court explained:

“The decision to grant parole under § 4202 lies with the Board of Parole, not with the District Judge, and must be made long after sentence has been entered and the prosecution terminated. Whether § 1103(a) or the general saving statute, 1 U.S.C. § 109, limits that decision is a question we cannot consider in this case.” 410 U.S. at 611, n. 6, 93 S.Ct. at 1156.

The Court’s suggestion that the Parole Board’s decision is made “long after sentence has been entered and the prosecution terminated” strongly indicates that the savings clause of Section 1103(a) does not preclude the possibility of parole, after sentencing is completed and the prosecution has terminated, under the provisions of 18 U.S.C. § 4202. But we are not called upon in this case to resolve the question that the Supreme Court left open. Nevertheless, we think it appropriate to observe that our decision today in no way limits the power of the Parole Board, in its own proceedings, to consider appellant’s eligibility for parole under 18 U.S.C. § 4202, which would permit appellant’s parole, if otherwise appropriate, after he has served one-third of his five year sentence. If the Board grants appellant parole and his parole is challenged • by the government, it will then be time for us to decide the question left open in Bradley.

Affirmed.

      . In the judgment and commitment form, it was provided that the sentence was “subject to modification by Title 18, § 4208(a)(2)”. This designation was not permitted by the mandatory sentencing statute.


source: Caselaw Access Project

author: MULLIGAN, Circuit Judge:

license: Public Domain

text:
    Edward LECCI, Individually and as Representative of the Nassau County Patrolmen’s Benevolent Association, Plaintiff-Appellee, v. William CAHN, District Attorney of Nassau County of the State of New York, and Francis B. Looney, Commissioner of Police, Nassau County of the State of New York, Defendants-Appellants.
    No. 409, Docket 73-2087.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 28, 1974.
    Decided Feb. 25, 1974.

      Allen R. Morganstern, Mineóla, N. Y. (Richard Hartman, Mineóla, N. Y., on the brief), for plaintiff-appellee.
    Natale C. Tedone, Deputy County Atty., Nassau County (Joseph Jaspan, County Atty., Biagio F. Giaquinto, Sr. Deputy County Atty., Nassau County, of counsel), for defendants-appellants.
    A. Seth Greenwald, Asst. Atty. Gen., New York City (Louis J. Lefkowitz, Atty. Gen., of N. Y., Samuel A. Hirsh-owitz, First Asst. Atty. Gen., Constance B. Margolin, Deputy Asst. Atty. Gen., of counsel), for intervenor-appel-lant.
    Before WATERMAN and MULLIGAN, Circuit Judges, and BRYAN, District Judge.

       Frederick vP. Bryan, of the Southern District of New York, sitting by designation.

   MULLIGAN, Circuit Judge:

The plaintiff individually, as a member of the Nassau County Police Department, and in his representative capacity as President of the Nassau County Patrolmen’s Benevolent Association, commenced an action in the United States District Court for the Eastern District of New York on July 4, 1970, seeking a declaration that N.Y. Election Law § 426(3) (McKinney’s Consol.Laws, c. 17 Supp.1973) is unconstitutional, and an injunction restraining the defendants from promulgating and enforcing similar legislation. On September 4, 1970, the defendants moved for an order dismissing the complaint and granting summary judgment pursuant to Fed.R.Civ.P. 56(b), on the ground that the court lacked subject matter jurisdiction, that the matter had been previously adjudicated in New York Supreme Court and finally that the complaint failed to state a claim for which relief could be granted. A stipulation was entered into on September 9, 1970, which provided that the defendants’ motion to dismiss be denied, that the district court would retain jurisdiction, but that it would stay all proceedings pending the commencement by the plaintiff of a declaratory judgment action in the Supreme Court of the State of New York, to consider the constitutionality of the section in question. The district court “So Ordered” the stipulation on September 18, 1970.

On September 13, 1970, the plaintiff brought such an action in the Supreme Court, County of Nassau, State of New York. On November 30, 1970 Justice Theodore Yelsor, in an unreported opinion, held the statute constitutional, relying upon the previous opinion of the Appellate Division in Lecci v. Looney, 33 A.D.2d 916, 307 N.Y.S.2d 594 (2d Dep’t), leave to appeal denied, 26 N.Y.2d 612, 310 N.Y.S.2d 1025, 258 N.E.2d 729 (1970). The decision of the Supreme Court was affirmed by the Appellate Division without opinion on September 27, 1971, 37 A.D.2d 779, 325 N.Y.S.2d 400 (2d Dep’t), and leave to appeal to the Court of Appeals was denied without opinion, 29 N.Y.2d 486, 326 N.Y.S.2d 1025, 276 N.E.2d 628 (1971). A petition for a writ of certiorari was denied by the United States Supreme Court on April 17, 1972, 405 U.S. 1073, 92 S.Ct. 1497, 31 L.Ed.2d 807. Plaintiff thereupon returned to the federal district court, and in a memorandum opinion and order entered on June 15, 1973, Hon. Joseph C. Zavatt, Senior United States District Judge, declared Section 426(3) of the New York State Eléction Law unconstitutionally vague and overbroad, in violation of the First Amendment. 360 F.Supp. 759 (E.D.N.Y.). This appeal followed. Judgment vacated and complaint dismissed.

We do not reach the merits of this appeal since it is abundantly clear that the court below had no jurisdiction to issue the declaratory judgment. It is basic that no federal court “has ‘jurisdiction to pronounce any statute, either of a State or of the United States, void, because irreconcilable with the Constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies.’ ” Golden v. Zwickler, 394 U.S. 103, 110, 89 S.Ct. 956, 960, 22 L.Ed.2d 113 (1969) (emphasis omitted). Lecci, the named plaintiff here, resigned or retired from the Nassau County Police Department at some point during the state litigation and was not a policeman subject to the statute at the time of the adjudication below. The action was therefore mooted. Kerrigan v. Boucher, 450 F.2d 487 (2d Cir. 1971). Although Lecci purported to sue as a representative of the Nassau County Patrolmen’s Benevolent Association, there is no allegation of any harm to the Association, which is not subject to prosecution under the statute, and it could not assert the rights of its members, Aguayo v. Richardson, 473 F.2d 1090, 1099-1100 (2d Cir. 1973), cert. denied, 414 U.S. 1146, 94 S.Ct. 900, 39 L.Ed.2d 101 (1974). There was never any finding made or apparently even sought that the action proceed as a class action under either Fed.R.Civ.P. 23 or 23.2. Even if a class action had been declared, the loss of standing of the only champion would moot the litigation. Geraci v. Treuchtlinger, 487 F.2d 590 (2d Cir. 1973 (per curiam).

Even if the plaintiff had standing here, there is serious doubt that the complaint alleges an actual case or controversy. Although the plaintiff was a policeman, there is no indication in his complaint that he was proposing to undertake any political activity which might be within the statute. 4There-fore, there was no allegation of any threatened criminal prosecution. The complaint rests solely upon the theory that the statute has a chilling effect upon First Amendment rights. In United Public Workers v. Mitchell, 330 U.S. 75, 89, 67 S.Ct. 556, 91 L.Ed, 754 (1947), the Supreme Court, upholding the constitutionality of the Hatch Act’s ban on federal employee participation in partisan political activities, indicated that allegations of subjective chill were not an adequate substitute for a claim of present objective harm or a threat of specific future harm. That holding was reiterated in Laird v. Tatum, 408 U.S. 1, 13-14, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972) . See also Fifth Ave. Peace Parade Comm. v. Gray, 480 F.2d 326 (2d Cir. 1973). The court below considered that Mitchell had been overruled and was not binding. In view of the recent Supreme Court holdings in United States Civil Serv. Comm’n v. National Ass’n of Letter Carriers, AFL-CIO, 413, U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973) and Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973), it is quite obvious that the rumors of Mitchell’s demise have been somewhat exaggerated. The “chilling effect” standing position of Dombrowski v. Pfister, 380 U.S. 479, 491-492, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965) does not survive where the statute challenged for overbreadth regulates conduct rather than speech which is clearly the thrust of the statute here attacked. See Broad-rick v. Oklahoma, supra. We have been reminded by Mr. Justice White in Broadrick that “under our constitutional system courts are not roving commissions assigned to pass judgment on the validity of the Nation’s laws.” 413 U.S. at 610-611, 93 S.Ct. at 2915. The district court here, in our view, was rendering a purely advisory opinion which of course it is powerless to do.

Aside from the lack of a justiciable controversy, the court below lacked jurisdiction to review the state court’s determination of the federal constitutional questions; only the Supreme Court is authorized to review on direct appeal the decisions of state courts. Atlantic Coast Line R. R. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 286, 90 S.Ct. 1739, 26 L.Ed.2d 234 (1970). Here, the plaintiff initially sought the constitutional determination in the federal court, which he had a perfect right to do. However, by entering into the court approved stipulation of September 9, 1970, and by litigating his constitutional claims in the state courts without reserving them for federal de-terminátion, he elected to waive that right. In England v. Board of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964), the plaintiff challenged the constitutionality of a state statute in a federal district court. That court abstained since there were questions of construction of the state statute which it felt should be tried in the state courts. The federal court nonetheless retained jurisdiction to determine any federal question. The Louisiana state courts not only construed the statute but determined that it was constitutional. The Supreme Court held that a future plaintiff, by proceeding in state court as England had, would elect to forgo his right to return to the district court. 375 U.S. at 419, 84 S.Ct. 461.

England is controlling here. The plaintiff stipulated, not that the statute be given a construction in the state court, but that its constitutionality be determined in an action in the Supreme Court of New York. That determination was appealed to the highest court of New York and then review was sought in the United States Supreme Court. The record does not even indicate that the New York courts were made aware of the fact that a federal district court was retaining jurisdiction. Appellee seeks to avoid the effect of England by suggesting that the stipulation was was not “voluntary.” Since the plaintiff was represented by counsel and there is no question that the stipulation was executed, we have no reason at all to question its binding effect. In its opinion below, the court indicated that the state courts dealt “rather summarily” with the substantive constitutional issues raised, and the appellee even suggests that the recitation of only state cases in the New York Supreme Court opinion indicates that the state courts did not consider the federal constitutional question. Since the complaint in the state court is substantially identical to that brought in the federal action, and since the New York Supreme Court opinion recites that the action seeks a declaration of unconstitutionality, it is frivolous to suggest that the constitutional issue was not before the state courts. The fact that the affirmances in the state courts were without opinion or without specific reference to the constitutional question is of course immaterial. Grubb v. Public Util. Comm’n, 281 U.S. 470, 477-478, 50 S.Ct. 374, 74 L.Ed. 972 (1930); Tang v. Appellate Division, 487 F.2d 138 (2d Cir. 1973). The policy underlying the England decision is the avoidance of “a potential source of friction between the state and federal judiciaries.” 375 U.S. at 419, 84 S.Ct. at 466. The procedure employed here does nothing by exacerbate that relationship.

Judgment vacated and complaint dismissed.

      . Section 426(3) provides:
      Any person who, being a police commissioner or an officer or member of any police force in this state:
      3. Contributes any money, directly or indirectly, to, or solicits, collects or receives any money for, any political fund, or joins or becomes a member of any political dub, association, society or committee,
      Is guilty of a misdemeanor.

      . In Looney, the Appellate Division sustained the constitutionality of Rule 14, Art. 6 of the Rules and Regulations of the Nassau County Police Department which provided, inter alia, that “no member of the Force or Department shall be permitted to be a delegate or representative to, or take active part in any movement for the nomination or election of candidates for political or public office.”

      . In this regard the complaint alleges :
      4. That Section 426 Subdivision 3 of the Election Law of the State of New York denies to members of the Police Department the right to participate in everyday political affairs a right guaranteed to every citizen by our founding Fathers in the Constitution of the United States.
      5. That to deny this basic inalienable right to police officers, makes them second class citizens and discriminates against them in violation of the federal and state constitutions and also the Federal Civil Rights Act.
      6. That any member of the police department who fails to obey the provisions of Section 426, Subdivision 3, of the Election Law of the State of New York would be found guilty of a misdemeanor and because of this would be dismissed from the department.
      7. By reason of the foregoing Plaintiff and all other members of the police department are in danger of suffering great harm and irreparable damage and injury for he and they have no adequate remedy in law.

      . Plaintiff in his brief on appeal at 36 (without any citation to the record) suggests that the stipulation was entered into because, during a pre-trial conference, Judge Zavatt “noted that the statute in question had not been exposed to the State Courts for the passing upon of its State constitutionality, and therefore, directed the Plaintiff-Appellee to seek such a State Court determination . ” (Emphasis added). Assuming this is true, it would not render the stipulation involuntary. There is nothing to suggest that the district judge believed that the plaintiff was required, in the first instance, to litigate his federal claims in state court and, even if he had entered such an order, plaintiff would have had a remedy by way of appeal. See American Trial Lawyers Ass’n v. New Jersey Supreme Court, 409 U.S. 467, 93 S.Ct. 627, 34 L.Ed.2d 651 (1973) (per curiam). Here, the plaintiff entered into a stipulation broader in scope than that allegedly directed by the district court and commenced an action in the state court in accordance with that agreement on September 13, 1970, five days prior to the district court’s approval. Under these circumstances, we find the fact that the court “So Ordered” the stipulation on September 18, 1970 of little significance.

      . The complaints in the federal and state actions were identical except that the complaint filed in state court included the following additional allegation:
      That plaintiff and other members of the Police Department similarly situated wish to become members of political groups and take an active part in the nomination and election of public officials by personally contributing to their campaigns and by soliciting others to do the same.

      . Aside from the jurisdictional deficiencies noted, we are at a loss to understand how a single district court judge who has been asked to declare a state statute unconstitutional and also to enjoin its enforcement, is empowered to act. A three-judge court is mandated by 28 U.S.C. § 2281. See Nieves v. Oswald, 477 F.2d 1109 (2d Cir. 1973).


author: WILLIAM E. DOYLE, Circuit Judge.

text:
    Paul B. PALMER et al., Plaintiffs-Appellees, Cross-Appellants, v. Jack HOWARD et al., Defendants-Appellants, Cross-Appellees. Jack HOWARD et al., Third-Party Plaintiffs-Appellants, and Cross-Appellees, v. K. E. WILSON, Third-Party Defendant and Appellee.
    Nos. 73-1341, 73-1342.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Nov. 14, 1973.
    Decided Jan. 21, 1974.
    Rehearings Denied Feb. 26, 1974.

      Albert B. Wolf of Meer, Wolf & Slat-kin, Denver, Colo. (Sutin, Thayer & Browne, Albuquerque, N. M., on the brief), for defendants-appellants and cross-appellees.

      W. Robert Ward, Denver, Colo. (Reed L. Frost, Farmington, N. M., on the brief), for plaintiffs-appellees and cross-appellants.
    Wayne D. Williams of Williams, Erickson & Wallace, P.C., Denver, Colo., for third-party defendant and appellee.
    Before ' MURRAH, SETH and DOYLE, Circuit Judges.
   WILLIAM E. DOYLE, Circuit Judge.

This action involves the relative rights of a large number of contracting parties under a joint venture agreement, the purpose of which was to develop, construct and operate a shopping center in Farmington, New Mexico.

There are two groups of joint ventur-ers, the interests of the members of each being substantially similar. On the one hand is the so-called Palmer segment consisting of four Palmers and their wives. In the other, the so-called Howard group, are Jack Howard, Tom Howard, Willard Brockway and Francis Brockmann. An original member of the Howard associates was K. • E. Wilson. There is now an independent dispute between the Howards and Wilson.

In general, the joint venture agreement called for the Palmer contingent’s furnishing the land on which the shopping center was to be built. The Howard group, on the other hand, was given the responsibility for the planning, financing and construction of the shopping center. The Howards were to act as the general contractor for the construction of the shopping center, whereas Wilson was to have responsibility for the leasing and financing.

The main dispute is the meaning of a contractual provision stating that the construction and development costs were not to exceed the long-term financing, which sum was $1,725,000. The trial court ruled that this contract provision operated as an absolute limitation on the Howards in constructing the shopping center and it followed that the amount that the construction costs exceeded the loan funds, namely $108,000, had to be paid by the Howard group. The Howard group had apparently advanced this sum and hence found it necessary to take the initiative in an effort to retrieve it.

The Palmers filed the initial action seeking an accounting and what in effect was a judicial interpretation that they were not responsible under the contract to contribute amounts in excess of the loan. The Palmers also sought damages for construction work allegedly performed improperly and damages for construction funds spent improperly. The Howards’ counterclaim sought damages for the Palmers’ share of construction costs exceeding the funds originally loaned. The Howards also claimed that they were entitled to a fee of five percent of the total cost of construction, maintaining that the Palmers were obligated as joint venturers to pay one-half of that fee.

There was a separate contract which was entered into between the Howards and Wilson. The original joint venture agreement had been dated July 1967. The contract between the Howards and Wilson was dated July 1, 1968. It dealt with the procedure to be followed should additional capital contributions be required to meet the cost of construction and future operating costs. It prescribed, first, that there be negotiations with the Palmer group looking to the obtaining of additional money from them. Secondly, if the efforts to persuade the Palmers failed, the Howards and Wilson agreed to obtain secondary financing by pledging their own interests in the shopping center. They also agreed to pay their proportionate share of any necessary additional funds, in the event that secondary financing could not be obtained.

The record reveals that some efforts were made to negotiate with the Pal-mers when the need for additional funds arose. These attempts were not successful, although the Palmers maintain that no formal demand for funds was ever made. In any ease, we fail to see the relevance of this dispute since, as previously noted, all additional funds were advanced by the Howards.

A third-party action was filed and prosecuted by the Howards against Wilson seeking a contribution of his share of the excess costs (allegedly amounting to 40 percent of the Howard group’s interest in the shopping center). This being based on an indemnity agreement, the action was predicated on the contingency that the Palmers would prevail in the action. The trial court denied relief on this third-party claim. It did so by reasoning that the indemnity agreement between Wilson and the Howards was to become effective only in the event that additional capital contribution was required by reason of insufficient funds to meet the cost of construction and that the Howards had not proven that the long-term loan was insufficient to meet the construction costs. Thus, the judge ruled that the Howards were obligated to prove that the need for additional funds did not arise from the Howards’ negligence. The trial court upheld the right of Wilson to have his fee during the course of the construction. The fact that Wilson had been paid $24,000 during the construction out of the loaned funds was not deemed significant by the trial court.

The sum of $19,122.10 had been paid to Brockway, a member of the Howard group, out of the construction funds. The court held that this was a proper expenditure, though a part of the five percent overhead fee. The court also approved the expenditure of $29,709.41, which was paid to two loaned employees of Howard related companies. The sum of $65,200 was paid to the H. C. Flaugh Company to coordinate and supervise the subcontracts and the purchasing of material. This was also held to be a proper construction fund expense.

These rulings are challenged by the Palmers as appellees and cross-appellants. The Palmers also maintain that the trial court erred in denying damages for deletions in the construction having a value, so they contend, of $134,000.

The contention of the Howards on appeal is that the trial court erred in denying its claim for the five percent fee, that is, in not requiring the Palmers to pay one-half of that. The Howards also claim here that the court erred in denying their demand for one-half of the cost of construction which exceeded the loan funds, that is, one-half of $108,000. As to the third-party defendant Wilson, the Howards demand that he pay his 40 percent share as a member of the Howard group.

Wilson has filed a cross appeal against the Howards in which he claims the balance of his five percent fee.

The parties to the joint venture agreement contemplated that some advance funds would be necessary for preliminary work, and so each of the groups initially deposited $5,000. It was expressed in the agreement that this fund should not exceed $30,000. It was the court’s view that the Howards had the exclusive responsibility with respect not only to the construction but also to the expenditure of the funds; that the Pal-mers had no obligation to obtain financing or to do anything else in the development of the project and that their contribution of cash was not to exceed their share of the $30,000 of preliminary financing.

The court said that the Howards were limited to a five percent overhead fee for managing or contracting work. In ruling against the Howards on the issue of the excessive costs of the project, the court emphasized that the Howards (not including Wilson) were in complete control of the construction “and that having this responsibility, breached their fiduciary duty to the joint venture. It was their obligation to keep the construction costs of the project within the sum of $1,725,000.00, the amount of the long-term loan from Connecticut Mutual Life Insurance Company. The actual cost of construction exceeded the long-term loan by $108,142.73.” The court continued:

Notwithstanding the fact that unanticipated expenses for steel pilings, relocation of sewer lines and extension of water lines increased the total cost of construction at the outset, Howard, Brockway and Broek-mann exceeded the amount of the long-term loan at their own risk without obtaining the approval of the Pal-mers. The Palmer group cannot be required to contribute to the resulting overrun.

The Howards’ third-party claim against Wilson was denied because the court found that Brockway (one of the Howard group) testified that construction costs could have been reduced had he eliminated certain features which were retained to enhance the appearance of the shopping center.

The only issues which we need consider are the propriety of the court’s rulings construing the contract so as to order the Howards to bear the risk of loss. Most of the trial court's rulings are factual and thus are not subject to review. We consider it essential, however, to take up the trial court’s construction of the clause of the contract bearing on whether the Howard group had the risk of loss for excessive spending. Secondly, whether the Palmers are required to contribute to the five percent fee of the Howard group and, thirdly, the extent, if any, of the liability of the third-party defendant Wilson.

I.

MEANING AND EFFECT OF CLAUSE 6 OF THE JOINT VENTURE AGREEMENT LIMITING THE TOTAL COST OF THE SHOPPING CENTER TO THE LOANED FUNDS

Ordinarily joint venturers share in losses as well as profits and do so on an equal basis. This is not invariable. The venturers are allowed to vary this general principle in their own specific agreement. 46 Am.Jur.2d 55, Joint Ventures, § 37, Contributions. The original joint venture agreement here, that of July 13, 1967 between the Palmer group and the Howard group, provided in clause 6 that:

In no event shall the total development expenses, including the costs of leasing and construction, exceed the total amount of the long-term financing proceeds .

The trial judge held that this clause, when considered in conjunction with other provisions of the contract, limited the liability of the Palmer group in the absence of an agreement by the Palmers to contribute to any cost overruns (in excess of the long-term financing proceeds).

The determination of the trial court in this regard was essentially an interpretation of the meaning of clause 6 of the agreement, as the same was intended by the contracting parties. Determining the meaning of a contract provision, as opposed to ruling on the legal operation or effect of such a provision, is not only a question of law but has factual aspects as well. 3 Corbin on Contracts § 554 (1960 ed.) at p. 219.

The trial judge in this case received extrinsic evidence involving actions and conduct of the parties, together with expressions, all for the purpose of ascertaining the intent of the parties in adopting clause 6 of the contract. This was proper because the clause is ambiguous. It is not specific as to the effect of exceeding the long-term financing proceeds. Therefore, use of extrinsic evidence does not violate the parol evidence rule. It is rather a method for ascertaining the intent of the parties where this intent is in doubt. The background facts and circumstances leading to the inclusion of this provision are relevant. Evensen v. Pubco Petroleum Corp., 274 F.2d 866, 872 (10th Cir. 1960).

The finding of the court as to the meaning of this is, therefore, a matter of fact which is not to be set aside unless clearly erroneous. There is substantial evidence in the record showing that the parties intended this clause to be binding on the Howard group :

1. The Howard faction came to the Palmers in the first place with the deal and undertook to be fully responsible for the contracting and building of the shopping center.

2. The general structure of the contract supports this viewpoint. The contract contemplated that the amount of cash to be contributed by the venturers at the outset was $30,000.00 total. Loan proceeds were the only other source of cash.

3. The loaned funds were the only funds contemplated by the parties throughout their dealings.

4. In the Howards’ contract with Wilson there is evidence that these parties recognized that the Palmers were not bound to contribute funds in excess of the loaned funds.

5. In an agreement dated May 13, •1968 there was recognition that the Howards had guaranteed a maximum construction cost.

In the face of these and other facts and circumstances, it cannot be said that the trial judge erred in determining that the contractual provision constituted a limit to the liability of the Palmers.

II.

WHETHER THE HOWARD GROUP IS ENTITLED TO THE FIVE PERCENT CONTRACTOR’S FEE

The trial court first found that the Howard group had rightfully earned the five percent fee provided for the general contractor in paragraph 5(b) of the joint venture agreement. The judge recognized that the Howards were not receiving a full fee for contracting the entire job, obtaining the financing and undertaking the leasing. In unmistakable terms the court awarded the Howard group, including Wilson, five percent of the loaned funds. It was surprising, therefore, to read later in the trial court’s opinion that the Howard group was being charged with the remaining $10,000.00 plus, which would permit Wilson to have his entire fee. Also, the $19,122.00 paid to Brockway, who was a member of the Howard group, was allowed. This was ruled to be part of Brockway’s share of the five percent overhead fee.

When the trial court entered judgment it said that while the Howards were entitled to a five percent fee they could receive it only from funds availar ble out of the proceeds of the long-term financing. Thus, the court said that they could get their fee only if they could find some more funds within the permissible range of loaned funds. We find this approach to be unreasonable and somewhat inconsistent.

It is unreasonable because there is no restriction in the joint venture contract on the Howard group’s receiving five percent (which was incidentally one-half of the normal fee). The contract did not say that this was payable only if the loaned funds were sufficient after all other costs and expenses. Thus, we are dealing with a specific undertaking of the entire joint venture, and consequently it is a problem substantially different from that which we considered first above here, namely, whether paragraph 6 of the joint venture contract set a limit. If it were the intent of the parties to have such a limitation here, this should have been stated specifically. It would have been easy for the Palmers to require that the actual building would have to be limited to 95 percent of the loaned funds in order for the Howard group to get its fee. This it did not do.

The trial court’s ruling is internally inconsistent because it allows Brockway to keep the funds paid to him. It allows Wilson to retain the funds that had been paid to him. In both instances these amounts are charged to the five percent overhead fee. To compound the injury it is directed that the balance of Wilson’s fee be paid to him by the Howard group. The judge must have reasoned that money paid is money gone in this particular context. Such reasoning appears superficial. It is more reasonable to require the joint venture to shoulder this five percent fee. The result would be that the amounts paid to Brockway and to Wilson would be credited. The balance would be charged to the members of the joint venture, that is, the Howard group and the Palmers. A proposed distribution is appended hereto.

III.

THE QUESTION WHETHER WILSON IS REQUIRED TO PARTIALLY INDEMNIFY THE OTHER MEMBERS OF THE HOWARD GROUP

Having concluded that the Howard appeal challenging the trial court’s construction of clause 6 of the joint venture contract is without merit, we must now consider the trial court’s ruling which denied the Howards’ third-party claim against Wilson.

The trial court pointed out that the members of the Howard group had agreed under the indemnity contract of July 1, 1968 to make additional capital contribution if such were required by reason of insufficient funds to meet the cost of construction, but added that Wilson’s obligation under paragraph 2(c) of the July 1, 1968 agreement-was to arise only in the event that additional capital contribution was necessary by reason of insufficient funds to meet either the cost of construction or future operating costs. The court added: “Defendants have not established that the long-term loan was in fact insufficient to meet construction costs.” The judge noted that one witness, Brockway, had said that certain changes and deletions could have been made which would have reduced construction costs but thát he decided to retain these features. From this he concluded: “Under these circumstances, Wilson is not obligated to contribute to the construction overrun and the third-party complaint of all the defendants and Howard Electric Company against him is dismissed.”

We must disagree with the trial court’s reasoning on this because the July 1, 1968 agreement does not impose any such burden on the remaining Howard group and does not predicate their right to partial indemnity on their ability to prove that the overrun was due to their fault. Wilson undertook a contractual obligation to the remaining members of the Howard group on July 1, 1968 to join in obtaining secondary financing should such additional funding become necessary. Wilson also agreed to bear his proportionate share of any excess payments made for construction costs. The July 1, 1968 agreement provided for potential default by one of the parties by including the following provision:

[T]he remaining parties (or any one of them) shall have the right to advance the share of said defaulting party, in which event the party or parties so making such advances shall be entitled to interest on the amount thereof at the rate of 12%% per an-num, and said advances shall be a lien upon all the right, title and interest of the defaulting party in and to the above mentioned Joint Venture Agreement . . . ”

As we see it then, Wilson was bound absolutely to share in the payment of excess expenditures under the 1968 agreement.

Wilson argues here as he did in the trial court that his obligation to pay these additional costs was dependent upon proof that the long-term loan proceeds were insufficient. Wilson would have us rule that the Howards must have the burden of proving that there was an insufficiency of funds prudently expended. The trial court went along with this argument, but we cannot do so because, as we see it, it is contrary to the record and to the trial court’s other findings. Relief was denied by the trial court to the Palmers on each of five allegations of improper disbursements by the Howard group. The trial court did not free the Palmers from contribution on the basis of improper expenditures on the part of the Howards. Instead, the court determined that it was paragraph 6, the maximum expenditure provision of the joint venture agreement, which exonerated the Palmers. That provision cannot free Wilson because he was a member of the Howard group and, as we have shown, he undertook to contribute his share of the excess expenditures in the July 1, 1968 agreement with the Howards. Therefore, the Howards are entitled to recover on their third-party claim from Wilson 40 percent of $108,500.00 or $43,400.00.

The trial court is directed to enter judgment accordingly.

IV.

One point remains. The court has ordered a certified audit and at the same time has rendered relief on the various contracts. We are unable to understand what further proceedings could be taken based upon a certified audit. The reason for a certified audit is not given. The judge does not point to any defalcations. If the court had directed that there be a detailed accounting furnished by the Howards, the order would be understandable. It would seem, therefore, that the result would be more rational if the Howards were ordered to furnish a detailed accounting of their stewardship in accordance with the contract. If this proved to be insufficient in any respect, an audit of that part of the accounting could be ordered.

The judgment of the district court is affirmed in part, is reversed in part and is remanded to the court for the entry of judgment in accordance with the directions which are given and for the purpose of entering further orders with respect to the accounting (in accordance with the views expressed herein).

ADDENDUM

As we have determined above, the Howard group is entitled to its five percent overhead fee, provided for in paragraph 5(b) of the joint venture agreement. The five percent fee amounts to $86,250.00 (five percent of $1,725,000.-00). Of that total, $37,248.47 has already been paid ($24,310.97 to Wilson and $12,937.50 to Brockway). Therefore, $49,001.53 in overhead fees remain to be paid. The Palmer group, as 50 percent joint venture owners, is responsible for one-half of the financial burden for the five percent fee. This makes the Palmers liable in the amount of $24,500.77, which sum is adjudged payable to the Howard group. From the $24,500.77 sum, $10,189.03 is payable to K. E. Wilson in accordance with the judgment of the trial court. The remaining $14,311.74 is payable to the other members of the Howard group, excluding Brockway, to be allocated by the trial court in accordance with each member’s entitlement.

      . The trial court’s final conclusions are summarized by the judge as follows :
      “(1) Plaintiffs are entitled to an audit of the joint venture by an independent certified public ao< untant at defendants’ expense to be made within ninety days from the date of entry of this order, subject to amendment and to the further order of this court, if necessary.
      “(2) The Howard group, including Wilson, is entitled to an overhead fee of 5% of $1,725,000.00 or $86,250.00.
      “(3) The sum of $24,310.97 will be deducted from Wilson’s share of the 5% overhead fee due the Howard group.
      “(4) The sum of $19,122.10 will be deducted from Brockway’s share of the 5% overhead fee due the Howard group.
      “(5) Neither the Palmer group nor Wilson are required to contribute to the construction cost overrun. All claims of the defendants and Howard Electric Company for contribution to the construction cost overrun are denied.
      “(6) Plaintiffs are not entitled to reimbursement of $29,709.41 paid to Isenhagen and Bowman for their supervisory services.
      “(7) Plaintiffs are not entitled to reimbursement of any part of the $62,500.00 fee paid to Flaugh Construction Company.
      “(8) Plaintiffs are not entitled to reimbursement of $9,061.51 paid to Howard Electric Company for materials.
      “(9) Plaintiffs are not entitled to recover damages of $134,000.00 based on deletions in specifications made by the Howard group.
      “(10) Plaintiffs are not entitled to damages for the failure of the Howard group to save the joint venture the general contractor’s usual 10% fee of the contract.
      “(11) Defendants are required to repair the roof, sidewalks and portal beams at their expense within sixty days of the date of filing this memorandum opinion.
      “(12) Defendants are not required to reimburse the operating fund of the joint venture the sum of $40,351.55 paid in interest on the interim construction loan.
      “(13) Defendants are required to pay $3,443.69 to the joint venture based on Lindstedt’s calculations.
      All claim for damages or other relief not expressly allowed herein is denied.

      . The author’s comment reads:
      The question of interpretation of language and conduct — the question of what is the meaning that should be given by a court to the words of a contract, is a question of fact, not a question of law

      . The following testimony of J. A. Palmer furnishes some evidence that the parties intended that the Palmers would not be required to respond for any overrun :
      “[W]e made it perfectly clear to them (the Howards) from the very beginning, from the time it was first mentioned that there might be an overrun, but we didn’t feel we had any legal responsibility for any overrun period under any circumstances. We did indicate to them that we felt that if there was in fact a legitimate overrun not as a result of any failure on their part that we might feel a moral responsibility to participate in some overrun and if they could establish to our satisfaction through accounting that there was in fact an overrun and it was not the result of their negligence or their fault, then we would consider participating, otherwise absolutely not.”

      . On this it was said:
      The Howard group, including Wilson, did act as general contractor on the project and as such earned the 5% overhead fee provided for in Paragraph Numbered 5(b) of the joint venture agreement. However, they are not entitled to 5% of the excess of construction cost over $1,725,000.00, the amount of the long-term loan.
      The court recognized that Wilson had been paid $24,310.97 and said that this was chargeable to his fee and that he could keep it.

      . See generally 17 Am.Jur.2d § 294.

      . The actual agreement reads: “The parties hereto agree that in event any additional capital contribution shall be required of the parties T>y reason of insufficient funds to meet costs of construction or future operating costs, or other expenses, the following procedures shall apply.” (Emphasis added),

      . The terms of the contract do not provide for a certified audit to be furnished solely by the Howards.

      . Brockway actually received $19,122.10. This is more than the amount to which he was entitled. However, since the parties have not objected to these excess receipts by Brockway either at trial or on appeal, we do not consider this matter further; it is sufficient to say that Brockway is not entitled to additional remuneration from the five percent overhead fee.

      . In arriving at the above determination, we have also given consideration to the question of whether the portions of the five percent fee already paid to Wilson and Brockway from the long-term development funds should be credited against the total development cost of the project (not including the five percent fee), thereby reducing the amount of cost overrun for which the Howard group is responsible. We have determined, however, that in light of the peculiar facts and equities of the instant case, this quéstion of overruns and credits is wholly independent of and does not affect the issue here to be decided, that is, the portion of the five percent fee still due to the Howard group and the responsibility of all the joint venture participants to pay this remaining obligation.


author: PER CURIAM:

text:
    Judith A. WREN and/or Rena M. McAllister, Plaintiffs-Appellants. v. NEW YORK LIFE INSURANCE COMPANY, Defendant-Appellee, Elizabeth Wren, Ronnie Thomas Wren, b/n/f Elizabeth Wren, and Cynthia Renee Wren, b/n/f Elizabeth Wren, Intervenors-Appellants.
    No. 73-2792.
    United States Court of Appeals, Fifth Circuit.
    May 8, 1974.
    Rehearing and Rehearing En Ranc Denied July 3, 1974.

      Peter L. Boney, F. H. Boney, Archibald A. Farrar, Summerville, Ga., for in-tervenors.
    A. Cecil. Palmour, Bobby L. Cook, Summerville, Ga., for J. A. Wren, and others.
    Oscar M. Smith, Rome, Ga., Ben Kin-gree, M. D. McLendon, Atlanta, Ga., for defendant-appellee.
    Before COLEMAN, CLARK and GEE, Circuit Judges.
   PER CURIAM:

In this diversity case, the validity or invalidity ab initio, under a Georgia statute, of a life insurance policy is the decisive issue. Regrettably, the State Courts of Georgia have had no occasion to discuss the question, so we are compelled to proceed without Erie guidance. By summary judgment, the United States District Judge, sitting in Georgia, held the policy to be invalid. We affirm.

Section 56-2407 of the Georgia Code provides in part as follows:

“No life . . . insurance contract upon an individual, shall be made or effectuated unless at the time of the making of the contract the individual insured being of competent legal capacity to contract, applies for or consents in writing thereto, }>

In discussing this statute, the District Court stated:

“There has existed at common law a general rule establishing a public policy against the issuance of a policy of life insurance without the knowledge or consent of the person insured. It has been deemed that to allow the insuring of the life of a person without his knowledge or consent could be a contributing factor toward the commission of a crime and could create a substantial risk to the unknowing insured person. 44 C.J.S. Insurance § 241; 43 Am.Jur.2d, Insurance, § 242.
“While the public policy at common law dealt with ‘knowledge or consent’ the Georgia Legislature has been even more restrictive by providing that the insured must either apply for the insurance or consent thereto in writing. Ga.Code Ann. § 56-2407.”

On November 11, 1971, at Rossville,' Georgia, Mrs. Judith Ann Wren, age 30, applied for a policy of insurance on the life of her former husband, Roger Thomas Wren, also 30 years old. The idea was that the policy would be for “the protection of the children”. The application form specifically states that Mrs. Wren is “the applicant”, stating the date of her birth, that her relationship to the proposed insured is that of ex-wife, that she is a self-employed beautician, and giving both her business and residence addresses. She signed the application on a line by the designation, “Signature of Applicant, if not Proposed Insured”. She paid the premium and was designated as owner and primary beneficiary of the policy.

Thus, the finding of the District Court that Mrs. Wren, not her ex-husband, was the policy applicant cannot be clearly erroneous.

This leaves for consideration only the second facet of the statute, which requires that the proposed insured “consent in writing thereto”.

The application form contained a place for the “Signature of Proposed Insured”. Mrs. Wren signed her former husband’s name, “Roger Wren”. Her pre-summary judgment deposition that she did so with the permission of her ex-husband, given over the telephone, and did it in the presence of the insurance agent, is undisputed. It is therefore taken as true for summary judgment purposes.

The policy was delivered sometime in December, 1S71.

The former husband had remarried. On the night of January 7, 1972, he telephoned his former wife and insisted that she meet him at a parking lot at about 11 o’clock. From there, against her will, he drove her to her house in her automobile. Soon afterward, she killed him with a pistol. According to her testimony, undisputed in this record, the act was done in self-defense.

In any event, the Company declined to pay the policy, claiming, among other grounds, that the policy was void because issued in violation of the statute, i. e., the deceased insured had not consented in writing thereto. On this issue, the District Court held:

“The Court is of the opinion that a telephone communication, which allegedly gives one the right to sign an application for insurance and which is subsequently signed by that party, does not constitute the consent in writing by the insured as required by Georgia law. Having found that the insured neither applied therefor nor consented in writing thereto, no valid life insurance contract was issued in this case. Therefore, defendant’s motion for summary judgment must be granted.”

In the absence of controlling state authority, the opinion of the trial judge must be accorded great weight, Diamond Crystal Salt Company v. Thielman, 5 Cir., 1968, 395 F.2d 62.

Even so, the attorneys for the appellants in this case are to be complimented for the professional efforts they have exerted in behalf of the validity of this policy. They have reminded us that no Georgia State Court has specifically held § 56-2407 to be an expression of Georgia public policy. They direct our attention to the fact that the Court of Appeals of Louisiana, Third Circuit, in Adam Miguez Funeral Home, Inc. v. First National Life Insurance Company, 234 So.2d 496 (1970) has held a similar Louisiana statute not to be an expression of public policy because its purpose was not “for the preservation of public order or good morals”.

We believe it to be the public policy of the State of Georgia, however, that a valid policy of life insurance may not be taken, without his consent, on the life of another in whom the applicant has no insurable interest, as in the case of a divorced wife, see, e. g., Union Fraternal League v. Walton, 109 Ga. 1, 34 S.E. 317 (1899).

It logically follows that the purpose of the statute is to put that consent beyond all question by requiring it to be in writing. Likewise, the very purpose and specific requirement of the statute would be rendered meaningless if one could meet its terms by alleging written consent to have been verbally authorized, something that the deceased insured would hardly be in position to dispute.

Moreover, it is vigorously urged that under Georgia law one may apply for insurance through an agent duly designated and authorized for that purpose and that the deceased had made his ex-wife his agent to file the application.

It is undisputed, however, that as between the ex-wife and the ex-husband the insurance idea originated with the ex-wife, she negotiated the contract with the insurance agent, signed all the papers, paid the premium, and when she could not get the proposed insured to come to her beauty shop to sign the application in person she signed his name with his verbal permission. Considering these facts and the contents of the application as made a part of the policy, we cannot, as already stated, hold the finding that the ex-wife was the applicant to have been clearly erroneous.

The judgment of the District Court is

Affirmed.

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

In this petition for rehearing, appellants quite properly call attention to an inadvertent error in the language used in the per curiam opinion, wherein it was stated, 493 F.2d at 840, “Thus, the finding of the District Court that Mrs. Wren, not her ex-husband, was the policy applicant cannot be clearly erroneous”, when it should have been said that “The evidence before the District Court on the motion for summary judgment raised no genuine issue of material fact”. Similar language should have been used at the close of the opinion. To this extent, the petition for rehearing is granted, but it causes no change in the result, to which the Court adheres. In all other respects, the petition for rehearing is denied.

No member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the petition for rehearing en bane is denied.


author: RIVES, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff, v. David R. SCHRIMSHER, Defendant. In re Charles D. BUTTS, Attorney at Law, Appellant.
    No. 73-1061.
    United States Court of Appeals, Fifth Circuit.
    May 3, 1974.
    See also, 5th Cir., 493 F.2d 848.
    Fred A. Semaan, Shirley W. Butts, San Antonio, Tex., for appellant.
    Thomas G. Sharpe, Jr., Brownsville, Tex., amicus curiae, for Texas Crim. Defense Lawyers Association.
    William S. Sessions, U. S. Atty., James W. Kerr, Jr., Asst. U. S. Atty., San Antonio, Tex., for plaintiff.
    Before RIVES, GEWIN and RONEY, Circuit Judges.
   RIVES, Circuit Judge:

During the course of a criminal trial in the Western District of Texas, the court found defense attorney Charles D. Butts in contempt of court, and ordered him incarcerated for two hours. Butts in this action appeals from the summary order of the district court. We reverse.

I.

The transcript of what occurred immediately before the judge found Butts in contempt is reproduced in an appendix to this opinion. At about 11:80 A. M. on December 7, 1972, during the cross-examination of a prosecution witness, Butts showed the witness a color photograph. The judge asked Butts to mark the photograph as an exhibit. When Butts indicated that he did not want to do so; the judge interrupted Butts and insisted that the photograph be marked. Butts offered to comply, but did so in a manner considered argumentative by the judge. An exchange between Butts and the judge ensued. The judge retired the jury. After the jury left the courtroom, the judge and Butts again became embroiled in argument. Finally, the judge ordered the marshal to put Butts in jail, and to keep him there until 1:80 P.M. The marshal followed the court’s instructions.

After Butts was removed from the courtroom, the judge entered the following order, entitled “Order Committing Charles D. Butts for Contempt of Court”:

“On this the 7th day of December, 1972, the Court, in the exercise of its discretion, finds that Charles D. Butts, an Officer of the Court and attorney representing the defendant herein, is in such contempt of its authority as evidenced from the record herein as to amount to misbehavior of such officer in the presence of this Court or so near thereto as to obstruct the administration of justice; further, that said Charles D. Butts, as evidenced by the record, has shown such disobedience or resistance to the orders, rules and commands of this Court as to amount to a summary contempt of its authority committed in the presence of the Court in violation of 18 U.S.C. § 401(1) (3); that as punishment for such summary contempt the Court finds that the said Charles D. Butts should be committed to the custody of the United States Marshal and placed in jail until 1:30 p. m. this date, when the Marshal shall return him to this Court for a continuance of the trial herein. That the contempt hereinabove described is an aecummulation [sic] of remarks of counsel made during the absence of the jury and is confined to such acts of contempt as were committed by the said Charles D. Butts in the absence of the jury.”

(Supp.Rec.)

II.

The government argues that because Butts has served his sentence of confinement under the district court’s order, his appeal is moot. It is true that in St. Pierre v. United States, 1943, 319 U.S. 41, 42, 63 S.Ct. 910, 911, 87 L.Ed. 1199, the Court stated that “the case is moot because, after petitioner’s service of his sentence and its expiration, there was no longer a subject matter on which the judgment of this Court could operate.” However, the Court more recently has characterized the above-quoted words as “broad dictum” which “fails to take account of significant qualifications recognized in St. Pierre and developed in later cases.” Sibron v. New York, 1968, 392 U.S. 40, 51, 88 S.Ct. 1889, 1896, 20 L.Ed.2d 917.

One exception to the St. Pierre doctrine of mootness is the situation where a petitioner could not have brought his case to an appellate court for review before the expiration of his sentence. Si-bron v. New York, supra, at 51-53. In the present case, after the judge ordered, “Take him to jail,” Butts said, “I will give notice of appeal of the Court’s ruling, Your Honor.” The judge responded, “All right. You are going to jail now.” Although Butts did not explicitly ask for a stay of execution of the sentence, he clearly expressed his desire and intent to prosecute an appeal of the court’s order. The judge on his part made it clear that Butts was going directly to jail, and that he was to be held there until 1:30 P.M. There was thus no way Butts could have secured review of his case prior to the expiration of his sentence. The doctrine of mootness is therefore inapplicable.

Another qualification to the St. Pierre doctrine of mootness lends additional support to our rejection of the government’s mootness argument. In Sibron, the Court stated that St. Pierre “must be read in light of later cases to mean that a criminal case is moot only if it is shown that there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction.” 392 U.S. at 57. 2****Butts’ conviction for contempt presumably could be used for impeachment and sentencing purposes in any future criminal proceeding. This conviction would be especially damaging if Butts were ever again accused of being in contempt of court. Conviction for contempt of court could also have serious adverse career consequences for Butts. His conviction could provide a basis for disciplinary action by a bar association. Opportunities for appointment to the bench or to other high office might be foreclosed as a result of this blot upon his record. The conviction might damage Butts’ reputation in the legal community, and this in turn might affect his ability to attract clients and to represent them effectively, especially in open court. In light of these possible collateral consequences, Butts’ appeal is not “abstract, feigned, or hypothetical” so as to justify dismissal for mootness. See Sibron, supra, 392 U.S. at 57.

III.

Rule 42(a) of the Rules of Criminal Procedure allows the judge to punish certain conduct summarily:

“(a) Summary Disposition. A criminal contempt may be punished summarily if the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court. The order of contempt shall recite the facts and shall be signed by the judge and entered of record.”

Appellate courts have often acknowledged the danger of abuse inherent in a proceeding which does not provide all of the safeguards which normally surround criminal prosecutions. Because of this danger, the procedural requirements of Rule 42(a) must be strictly observed. Pietsch v. President of United States, 2 Cir. 1970, 434 F.2d 861, 864 (Justice Clark); Widger v. United States, 5 Cir. 1957, 244 F.2d 103, 107. One of these requirements is that the order entered by the judge “shall recite the facts.”

The recitation of the facts in the certificate serves an important purpose. As stated in Tauber v. Gordon, 3 Cir. 1965, 350 F.2d 843, 845 (en bane), “This requirement is more than a formality. It is essential to disclosure of the basis of decision with sufficient particularity to permit informed appellate review.” A relatively recent Ninth Circuit opinion has expanded upon this idea:

“ ‘Informed appellate review’ is possible only if the facts are stated in sufficient detail for the appellate court to determine whether the conduct upon which the conviction rests was contemptuous, factually and legally; whether it was of such character, and occurred in such circumstances, as to permit summary conviction under Rule 42(a), and because Rule 42 sentences are subject to appellate review and revision, whether the conduct relied upon justified the sentence imposed.” United States v. Marshall, 9 Cir. 1971, 451 F.2d 372, 375.

The order of contempt must recite the specific facts upon which the conviction is based. Conclusory language and general citations to the record are insufficient. The order entered by the judge in the instant case does not recite the facts with particularity, and therefore does not satisfy Rule 42(a). The order states, “That the contempt hereinabove described is an accumulation of remarks of counsel made during the absence of the jury and is confined to such acts of contempt as were committed by the said Charles D. Butts in the absence of the jury.” Although there were proceedings in chambers on December 6, the remarks to which the order refers are probably those which immediately preceded the finding of contempt on December 7. However, the order does not make clear exactly which of Butts’ remarks the court considered contemptuous. To uphold Butts’ conviction, we would have to engage in speculation and guesswork. This we refuse to do. We therefore are compelled to reverse Butts’ conviction.

IV.

From the sentence imposed by the judge in this case, it is clear that he was primarily concerned with the preservation of order in the courtroom during the trial in which Butts was participating. Since that trial is long since concluded, we think a proper disposition of this case is to reverse the order of contempt and to dismiss the proceedings against Butts.

Reversed and rendered.

APPENDIX

MRS. JANE ROBERTS, a witness for the Government, having first been duly sworn, in answer to questions propounded, testified:

ON CROSS-EXAMINATION:

Questions by Mr. Butts:

**«•*»*

Q Mrs. Roberts, I will hand you Defendant’s Exhibit A, and I will ask you if that is a picture of David Schrimsher and your little boy, Tiger?

A Yes, that is a picture of David Schrimsher and my little boy, Tiger, but I certainly don’t know when this was taken.

Q Well, maybe I can refresh your memory—

A Wait a minute, he doesn’t have— that is not my little boy’s clothes, I can tell you that right now.

Q Is it your little boy ?

A It looks like my little boy, but then again, that is not a very good picture, and I have never seen anything like this before, so I don’t know what you are trying to pull.

Q Trying to pull ?

A I am sorry, but—

Q All right. Now, you told this young man not only that your grandfather, Mr. Barrakat, I take it, was supposed to be his name ?

A My grandfather’s name is Lloyd Young.

Q Well, did you tell him, did you tell this young man that your grandfather’s name was Barrakat?

A Yes, I did.

Q Did you tell this young man anything about a man out of Chicago by the name of Marcus ?

A No.

Q Do you know a man out of Chicago by the name of Marcus ?

A No.

Q That is connected with your family?

A No.

Q You recognize this picture (indicating), do you not?

THE COURT: Mark it as an exhibit, please, Counsel.

MR. BUTTS: Well, I don’t believe I want to—

THE COURT: Well, you mark it as an exhibit, I said mark it, you showed it to her, and I want to know what you showed her.

MR. BUTTS: All right, I will do that upon instructions of the Court.

THE COURT: Well, you will follow the instructions of the Court all right.

MR. BUTTS: That is exactly what I am doing, if the Court please.

THE COURT: All right, don’t argue with me.

MR. BUTTS: Let the record reflect I am not arguing with the Court.

THE COURT: Just shut up then.

MR. BUTTS: Let the record reflect I resent the Court telling me to shut up, I am an officer of this court—

THE COURT: All right, the jury will be retired, retire the jury from the courtroom.

(The jury then left the courtroom).

THE COURT: Now, Mr. Butts, you are going to get one thing straight—

MR. BUTTS: Yes, sir.

THE COURT: If you are going to stay an officer in this court, and you are going to stay out of jail, you are going to follow my orders, and you are not going to talk back when I tell you to not talk back, you understand that ?

MR. BUTTS: Yes, sir.

THE COURT: All right. I want it clearly understood, and I am going to carry this, as to whether I find you in contempt of the court, or not.

MR. BUTTS: Yes, sir.

THE COURT: And I don’t want it to happen again, when you show an exhibit to a witness, and I tell you to mark it, I mean mark it, because I am going to know what you showed her — that witness — so that the record will reflect it. Now, don’t play with me. Bring the jury back.

MR. BUTTS: May I state something for the record?

THE COURT: Not a word, I told you to shut up, now, I mean it. Now, you just go ahead and examine your witness.

MR. BUTTS: For the record, I wanted—

THE COURT: For the record nothing.

MR. BUTTS: Let the record reflect I cannot speak—

THE COURT: That is obvious.

MR. BUTTS: —-my understanding of the Court—

THE COURT: I am not interested in your understanding of thé Court. I want you to take your instructions from me.

MR. BUTTS: I do, Your Honor.

THE COURT: All right. Well, now, you be quiet when I tell you to be quiet in the future.

MR. BUTTS: If I have something that is germane to my client — ?

THE COURT: You may retire the jury and put it in the record.

MR. BUTTS: Thank you, Your Hon- or.

THE COURT: But you are not to talk back to me in the presence of this jury. I am running this court.

MR. BUTTS: Yes, sir.

THE COURT: And as long as you are an officer in this court, you are under my control.

MR. BUTTS: If the Court considers my talking like I did as talking back, if that is what the Court understands, I certainly apologize because I have practiced law a long time and I don’t do that to courts.

THE COURT: You may have practiced before, but you also disclosed your gross ignorance of some things that go on in Federal Court.

MR. BUTTS: That would be a matter of opinion, Your Honor.

THE COURT: Well, that is a matter of opinion. There you go again, you are insulting, you are not conducting yourself as you should, you are the first attorney that I ever had this kind of trouble with. Now, you follow my instructions hereafter, if you want to remain an officer and practice in this court. Bring the jury back.

MR. BUTTS: I take exception to the Court’s comments for the record.

THE COURT: Marshal, put this man in jail. Where is the marshal ?

THE MARSHAL: Right here.

THE COURT: We will just have a recess. You go over and think it over for an hour, then you tell me whether you are ready to follow my orders, or ready to shut up when I tell you to shut up.

MR. BUTTS: I am ready, but I wanted to take an exception—

THE COURT: You got your exceptions in the record.

MR. BUTTS: Yes, sir.

THE COURT: You have your exceptions. You don’t have to except in the Federal Court, it is in the rules.

MR. BUTTS: Thank you.

THE COURT: You have your objection. All you have to do is make your objection. That is something else you ■ don’t know, apparently. I am going to sentence this man to one hour in jail in contempt of this proceeding. I am going to recess this case until 1:30. Take him to jail.

MR. BUTTS: I will give notice of appeal of the Court’s ruling, Your Honor.

THE COURT: All right. You are going to jail now.

MR. BUTTS: Yes,'sir.

THE COURT: You will be back at 1:30. Marshal, have him back here at 1:30, keep him in jail until 1:30.

THE MARSHAL: Yes, Your Honor.

MR. BUTTS: May I make a call to my attorney?

(The Court then left the courtroom).

THE MARSHAL: The Court is in recess until 1:30.

      . The Court in Sibron noted that the appellant’s misdemeanor conviction could be used for impeachment and sentencing purposes in future criminal proceedings. In Ginsberg v. New York, 1968, 390 U.S. 629, 633 n. 2, 88 S.Ct. 1274, 20 L.Ed.2d 195, the doctrine of mootness was not applied because it was possible that the appellant’s license to operate a luncheonette might be withdrawn in consequence of his conviction. In Street v. New York, 1969, 394 U.S. 576, 579-580 n. 3, 89 S.Ct. 1354, 22 L.Ed.2d 572, the proceedings were not moot in part because the appellant’s employer, the New York Transit Authority, had instituted disciplinary proceedings against him as a result of his conviction.

      . In Bloom v. Illinois, 1968, 391 U.S. 194, 201, 88 S.Ct. 1477, 1481, 20 L.Ed.2d 522, the Supreme Court states that,
      “Criminal contempt is a crime in the ordinary sense; it is a violation of the law, a public wrong which is punishable by fine or imprisonment or both. In the words of Mr. Justice Holmes:
      “ ‘These contempts are infractions of the law, visited with punishment as such. If such acts are not criminal, we are in error as to the most fundamental characteristic of crimes as that word has been understood in English speech.’ Gompers v. United States, 233 U.S. 604, 610, 34 S.Ct. 693, 695, 58 L.Ed. 1115 (1914). Criminally contemptuous conduct may violate other provisions of the criminal law; but even when this is not the case convictions for criminal contempt are indistinguishable from ordinary criminal convictions, for their impact on the individual defendant is the same. Indeed, the role of criminal contempt and that of many ordinary criminal laws seem identical — protection of the institutions of our government and enforcement of their mandates.”

      . Bloom v. Illinois, 1968, 391 U.S. 194, 202, 88 S.Ct. 1477, 20 L.Ed.2d 522; Green v. United States, 1958, 356 U.S. 165, 188, 198ff, 78 S.Ct. 632, 2 L.Ed.2d 672 (dissenting opinion) ; Cammer v. United States, 1956, 350 U.S. 399, 76 S.Ct. 456, 100 L.Ed. 474; Sacher v. United States, 1952, 343 U.S. 1, 12, 72 S.Ct. 451, 96 L.Ed. 717; Nye v. United States, 1941, 313 U.S. 33, 61 S.Ct. 810, 85 L.Ed. 1172; Cooke v. United States, 1925, 267 U.S. 517, 539, 45 S.Ct. 390, 69 L.Ed. 767; Ex parte Hudgings, 1919, 249 U.S. 378, 39 S.Ct. 337, 63 L.Ed. 656; Ex parte Terry, 1888, 128 U.S. 289, 313, 9 S.Ct. 77, 32 L.Ed. 405; Widger v. United States, 5 Cir. 1957, 244 F.2d 103; United States v. Meyer, 1972, 149 U.S.App.D.C. 212, 462 F.2d 827; United States v. Seale, 7 Cir. 1972, 461 F.2d 345; Richardson v. United States, 8 Cir. 1959, 273 F.2d 144; Farese v. United States, 1 Cir. 1954, 209 F.2d 312.

      . Widger v. United States, supra, 244 F.2d at 107; Pietsch v. United States, supra, 434 F.2d at 863-864; United States v. Marshall, supra, 451 F.2d at 375. See also 3 C. Wright, Federal Practice and Procedure, § 708 at 170, and cases cited therein.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. David SCHRIMSHER, Defendant-Appellant.
    No. 73-2627.
    United States Court of Appeals, Fifth Circuit.
    May 3, 1974.
    See also, 5th Cir., 493 F.2d 842.

      Charles D. Butts, San Antonio, Tex., for defendant-appellant.
    William Sessions, U. S. Atty., Wayne E. Speck, Asst. U. S. Atty., James W. Kerr, Jr., San Antonio, Tex., for plaintiff-appellee.
    Before RIVES, GEWIN and RONEY, Circuit Judges.
   RIVES, Circuit Judge:

After a jury trial, David Schrimsher was convicted on a one-count indictment which charged him with wire tapping in violation of 18 U.S.C. § 2511(1)(a). Schrimsher was sentenced to a three-year indeterminate sentence under 18 U.S.C. § 4208(a)(2), and he appeals. We affirm.

I.

At about one o’clock on the afternoon of July 16, 1972, Jane Roberts noticed that a small door leading to the crawl space under her house was ajar. When she attempted to put the door back in place, the door fell to the ground, and Roberts found herself face-to-face with the appellant Schrimsher. Understandably startled, Roberts screamed, and then ran into her house, where she telephoned for help. Schrimsher fled the premises. Upon investigation, the authorities found a large number of items under the house — including a cassette tape which contained telephone conversations between Roberts and others, a cassette tape recorder, a telephone jack, a microphone jack, a male extension plug that was cut into the electrical system of the house, an extension cord, a tool box, newspapers, a camping mattress, a thermos, an ice bucket, cantaloupe rinds, and other items.

Schrimsher took the stand in his own defense. He testified that he and Roberts had been lovers, and that she had led him to believe that he had fathered one of her children. He stated that in early 1972 Roberts told him to leave her alone and threatened to turn him over to her grandfather, who she said had underworld connections. Schrimsher explained that he became worried about his own safety and the well-being of the children, and thereupon embarked upon a course of investigation to ascertain where he stood with her and to determine whether she had told the truth about her grandfather.

Schrimsher’s course of investigation apparently included wire tapping. Under cross-examination, he admitted the following conduct:

“Q. [Mr. Speck, Assistant U.S. Attorney] : You put all that stuff [equipment] under Janie Roberts’ house?

“A. [Mr. Schrimsher]: Yes, I did.

“Q. Your purpose was to listen to the telephone calls and record them, right?

“A. Yes, it was.

“Q. And that is what you did ?

“A. Yes, I did.

“Q. Was that your only purpose ?

“A. Yes, it was.

“Q. When did you go under there first ?

“A. I believe it was Monday, the 11th of July.

“Q. You are sure you weren’t under there before that ?

“A. No.

“Q. Pardon me?

“A. I was not under there before that.

“Q. Okay. You were under there until the 16th.

“A. Yes.

“Q. You recorded all the telephone calls that came in and out of there.

“A. Most of them, yes. [Tr. 305-306.]

II.

In a recent civil case, Simpson v. Simpson, 5 Cir. 1974, 490 F.2d 803, this Court held that the wire interception provisions of the Omnibus Crime Control and Safe Streets Act of 1968 did not apply to an interception by a husband of the conversations of his wife with a third party over the telephone in the marital home. The Court in Sim/p- son relied in part upon a provision in the Act which indicated that Congress intended to adjure from deciding the extent of privacy family members could expect within the home vis-a-vis each other. The Court expressed doubts about even this limited exclusionary construction of the statute, however, and emphasized that “No public official is involved, nor is any private person other than ap-pellee [the wife], and the locus in quo does not extend beyond the marital home of the parties.” (490 F.2d at p. 810.)

Sehrimsher has never been married to Roberts. At the time of the incident in question, he was not a part of the Roberts’ household, and had no legal right to be on the premises or to tape record Roberts’ telephone conversations. Under these circumstances, Schrimsher’s conduct is within the scope of the statute.

III.

Sehrimsher claims that the trial judge took a prosecutorial role during the trial; that the judge cast aspersions upon, harassed and intimidated defense counsel; and that the judge by his actions and manner during the trial demonstrated bias and prejudice against the defendant and his attorney. Sehrimsher cites incidents which occurred before, during and after the trial in support of his position that the trial judge lacked the impartiality necessary to give the defendant a fair trial.

Sehrimsher complains that the trial judge improperly tried to force Butts, counsel for the defendant, to reveal the details of a proposed defense witness’ testimony. During the discussion of a motion to quash a subpoena issued for Albino Alonzo, a male friend of prosecution witness Roberts, the judge asked Butts what he intended to show by Alonzo’s testimony. At first, Butts refused to answer because Roberts, who was under the Rule, was in the courtroom. The judge apparently expected Butts to put Alonzo on the stand in the absence of the jury to show the relevance of Alonzo’s proposed testimony, and therefore saw no'reason to exclude Roberts until Alonzo actually took the stand. Butts in fact intended simply to relate to the court what Alonzo was expected to testify. He consequently wanted Roberts excluded before he made his explanation. After some discussion, the judge agreed to exclude Roberts from the courtroom. Then, when the judge pressed Butts to tell what he proposed to prove through Alonzo, Butts replied, “I respectfully decline to try my case until the Government has rested its case.” The court asked only one further “yes” or “no” question, and Butts answered without objection. The court subsequently allowed Butts to call Alonzo and to question him at some length. On these facts, Sehrimsher has no legitimate cause for complaint. The judge excluded Roberts after Butts made clear his objection, and overruled the government’s motion to quash Alonzo’s subpoena.

Sehrimsher points to several incidents which occurred during Butts’ cross-examination of Roberts as evidence of the judge’s bias. At one point in the cross-examination, Butts asked Roberts if she recognized a photograph. The judge asked Butts to mark the photograph as an exhibit. When Butts resisted the judge apparently lost his temper, and in the presence of the jury told Butts to “Shut up.” The jury was then excused for the noon recess, and the judge and Butts immediately became embroiled in argument. The dispute ended when the judge found Butts in contempt and asked the marshal to take him to jail until the beginning of the afternoon session. In the case of United States v. Schrimsher; In re: Charles D. Butts, Attorney at Law, Appellant, No. 73-1061, 493 F.2d 842 decided contemporaneously with this appeal, we reverse Butts’ conviction for contempt because of the trial court’s failure to comply with the technical requirements of Rule 42, F.R.Cr.P. It would be fair to say that the judge displayed impatience with Butts on this occasion.

When the afternoon session began, Butts resumed his cross-examination of Roberts. Schrimsher claims that at this time the judge questioned Butts’ good faith and integrity during a bench conference. Butts was examining Roberts about letters she had apparently sent to Schrimsher when the government requested an opportunity to make an objection at the bench. The government suggested that it was unfair not to show the witness the letters under consideration. The court commented, “All right, I assume he [Butts] has the letters or he wouldn’t ask the questions.” [Tr. 133.] As the conference concluded, the judge stated, “I am letting you [Butts] have the full right of cross-examination, so continue, but just remember that I expect every one of those questions to be backed up with a legitimate handwriting exemplar.” [Tr. 134.] Nothing in this incident suggests that the -judge was questioning Butts’ integrity. The judge assumed that Butts was acting in good faith, and overruled the government’s objection on this assumption. The statement that there should be evidence to back up the questions was purely cautionary, and probably resulted from the government’s repeated statements of concern that no authentic letters existed.

On the same afternoon, while Butts was questioning Roberts, the court stated: “We’ve got to move this case, it is already 2:30. I want to finish it by tomorrow evening.” [Tr. 135.] Schrim-sher complains that this constituted harassment. It is true that the eomment was probably intended for Butts. However, the suggestion was never repeated, and there is nothing in the record to indicate that the judge took any other measure to speed the case, or that Butts shortened his examination of the witnesses.

Schrimsher also suggests that actions taken by the judge both before and after the trial demonstrate the judge’s bias. At a conference in chambers before the trial, Butts tried to convince the judge to reduce the charge to a misdemeanor. The judge refused. The government on appeal admits that government counsel would have preferred to “carve out” a misdemeanor, but states that the government was unable to find a misdemeanor to which the matter could be reduced. Certainly the judge committed no error in going forward under the grand jury indictment, and his decision to do so may not be used as evidence of bias. After the trial, the government moved that bond be revoked and that the defendant be remanded to the custody of the marshal without bond. A hearing was held. The government introduced evidence of an anonymous telephone call to Roberts’ mother. Also, Roberts testified about an incident earlier in the year where Schrimsher had threatened her and the children. The trial court found that Schrimsher constituted a danger to Roberts and her children, and set bond at $100,000.00. Without passing on the propriety of the amount of the bond, we conclude that the district court’s action in this regard does not necessarily show bias, and does not reflect upon the fairness of the trial.

Schrimsher further claims, that the judge’s bias is demonstrated by the severity of the sentence imposed in this case. On December 22, 1972, the trial judge “committed [Schrimsher] to the custody of the Attorney General for the maximum period, that is, five (5) years imprisonment and $10,000.00 in fine, for study and evaluation pursuant to 18 U. S.C. § 4208(c).” (R. 40.) The judge requested this study because of what he considered “bizarre conduct” on the part of the defendant. On April 16, 1973, the judge set aside his original sentence and sentenced Schrimsher under the Youth Corrections Act (18 U.S.C. § 5010(b)). Upon discovery that Schrimsher was too old at the time of conviction for sentencing under this Act, and after considering the government report on Schrimsher, the judge imposed sentence of four years’ imprisonment under 18 U.S.C. § 4082(a) and vacated the $10,000.00 fine. The judge recommended commitment to a Federal Correctional Institution where Schrimsher could receive psychotherapy. Further motions by the defendant led the judge to order a psychiatric examination of Schrimsher by the Chairman of the Department of Psychiatry at the University of Texas Medical School. Examination by a psychiatrist selected by the defendant was also permitted. After considering the reports of both psychiatrists, and other evidence, the judge found that Schrimsher was not suffering from a psychosis or other mental disease or defect, and again modified the sentence, “so that the same should be a maximum sentence of three (3) years imprisonment in the custody of the Attorney General of the United States under the terms of 18 U.S.C. § 4208(a)(2) so that the defendant David Schrimsher may become eligible for parole at such time as the Parole Board may determine.” (R. 67.) We have described the post-conviction proceedings relating to sentencing in some detail because they suggest that the trial judge made every effort to determine a fair sentence. The final sentence was not harsh.

Taking into consideration the incidents cited by Schrimsher and having examined the trial transcript, we are not convinced that the trial judge demonstrated such bias against the defendant and his attorney that the defendant did not receive a fair trial. To the contrary, the transcript demonstrates that the judge was scrupulous in his efforts to conduct a fair trial. He gave Schrim-sher every opportunity to challenge the prosecution’s witnesses, and to present his own case. We do have some reservations about the dispute which led the court to hold Butts in contempt. However, we find no evidence that the events which took place during this particular incident carried over into the rest of the trial.

IV.

On the morning after Butts’ incarceration for contempt the San Antonio Express carried a 2 % x 6" photograph of Butts and a column entitled, “S.A. Lawyer Jailed Briefly for Contempt.” Upon being informed of this article and of the possibility of a television or radio report, the trial court questioned the jurors. Without revealing the contents of the column, the court discovered that five of the jurors had seen the article. The court then asked each of those five jurors in open court whether the article would affect him in considering the issues in the case. Each answered that he could disregard the article. The court further discovered that three jurors had overheard Butts’ remark in the elevator that he was going to jail. These jurors stated that they could still give Schrimsher a fair and impartial trial. On this basis, the court found the jury “qualified to serve,” and overruled Schrimsher’s motion for a mistrial. (Tr. 248.) During the questioning, the judge cautioned the jurors that nothing which occurred between the judge and an attorney should affect their consideration of the facts in the case.

Schrimsher claims that the jurors who learned that Butts had been jailed were irretrievably prejudiced by this knowledge. Every claim of jury prejudice because of a newspaper article’s appearing during a trial must turn on its own facts. Marshall v. United States, 1959, 360 U.S. 310, 312, 79 S.Ct. 1171, 3 L.Ed.2d 1250. Some information is so prejudicial that curative instructions and assurances from the jurors would not be adequate to eliminate the harm done by a newspaper article. In this case, however, the article concentrated on the dispute between the judge and Butts, and the jailing of Butts. There was little reference to Schrimsher, and what reference there was in no way reflected upon his guilt or innocence on the wiretapping charge. We conclude that seeing this article would not inevitably and irrevocably prejudice a juror.

Schrimsher also claims that the court should not have questioned the jury en masse. The judge in this ease questioned each juror separately, but in the presence of the other jurors. The safer practice in situations involving possible prejudice from newspaper articles or other sources is to interrogate each juror separately and out of the presence of the other jurors. However, the procedure used here was not prejudicial error under the particular circumstances of this case. The article did not relate directly to Schrimsher, and was not suggestive in any way upon the question of his guilt or innocence. Also, Schrimsher did not object at the time to the procedure followed by the trial court.

V.

Schrimsher claims that his right to effective counsel was violated when the court incarcerated Butts for approximately two hours for contempt, and then forced Butts to proceed immediately with the trial after his release from confinement. Possibly Butts would have conferred with his client or with his witnesses for all or part of the lunch break. For this reason, a short delay might have been granted before resuming the trial. Refusal to grant a delay was not prejudicial error in this case, however. When the government rested its case late in the afternoon, the court granted a recess to allow Butts to determine whether two of his witnesses had arrived, and to speak briefly with the two witnesses. Both witnesses had arrived and both testified. More significantly, the case extended into the following day. Butts therefore had overnight to consult with his client and any other potential witnesses. Schrimsher does not allege any particular prejudice arising out of the deprivation of his attorney for the two-hour period.

VI.

During cross-examination, Schrimsher admitted that he had, on May 8, 1972, taken photographs of Roberts and a man visiting in her house. The following exchange then occurred:

“Q. [Mr. Speck] May we see them [the photographs] ?

“A. [Mr. Schrimsher] Yes.

“MR. SPECK: Your Honor, may I ask for a recess in order for the defendant to bring the photographs, and secondly, we would ask, may we see the rest of the tapes and the tape recorder ?

“Q. Would you bring those to us, sir?

“A. Yes, I have the tapes.

“Q. May we see them ?

“A. I don’t have them here.

“Q. Where are they ?

“A. I will have to get them.

“Q. Where are they ?

“A. In my apartment.

“Q. Are the photographs there, too?

“A. Yes.

“MR. SPECK: The Government would respectfully request a recess for that purpose.

“THE COURT: What about the — I don’t know what you call it, the box that the reels were on ?

“MR. SPECK: The tape recorder, too.

“THE COURT: The tape recorder. Did you leave the house on July 16th with a recorder?

“THE WITNESS: Yes, sir.

“THE COURT: Do you have that recorder, also?

“THE WITNESS: Yes, sir.” (Tr. 311-312.)

The court then granted a recess, and retired the jury. Schrimsher’s attorney at this point objected to the defendant’s being required to bring to court any items not connected with the events of July 11 through July 16, on the grounds that such items would tend to incriminate Schrimsher in violation of his rights under the Fifth Amendment, and would not be relevant to the offense charged. Schrimsher did not object to bringing the tape recorder or any other items within the time frame of the indictment. The court overruled the objection.

The tape recordings brought from Schrimsher’s apartment and admitted in evidence contained conversations recorded between July 11 and July 16. By testifying about the events of July 11 through July 16, Schrimsher had waived his Fifth Amendment testimonial privilege as to these items. Rogers v. United States, 1951, 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344. The two photographs present a somewhat more difficult issue. Schrimsher testified at greath length about the details of his relationship with Roberts. The photographs in question were taken by Schrimsher, and relate to his relationship with Roberts. Under these circumstances, it was not prejudicial error to require Schrimsher to produce them in court after he had acknowledged that he had copies of the photographs at his apartment.

Affirmed.

      . “Except as otherwise specifically provided in this chapter any person who—
      “(a) willfully intercepts, endeavors to intercept, or procures any other person to in-
      tercept or endeavor to intercept, any wire or oral communication;
      í{! ifc ífc Sj« *
      shall be fined not more than $10,000 or imprisoned not more than five years, or both.”

      . The rule of exclusion whereby a witness is excluded from the courtroom while other witnesses are testifying.

      . Butts, in his brief on this appeal, states that he tried to explain to the trial court that he wished to introduce a copy of the photograph, rather than the original, so that Sehrimsher could keep the original, which had sentimental value to him.

      . Later, the court allowed numerous letters into evidence, although Roberts claimed not to recognize the handwriting and the contents of some of them.

      . The article read as follows :
      “San Antonio lawyer Charles D. Butts spent his lunch hour Thursday in the U. S. marshal’s lockup on the third floor of the federal building.
      “He was taken to the cell after being found in contempt of court by U. S. Dist. Judge D. W. Suttle during trial of a wiretapping case.
      “ T took exception to the judge telling me to shut up in front of the jury,’ Butts said as a deputy marshal escorted him from the courtroom about 11:30 a. m.
      “In his written order, Judge Suttle cited Butts for ‘such contempt (of the court’s authority) ... as to amount to misbehavior ... or so near thereto as to obstruct the administration of justice.’
      “Suttle’s order said the contempt was ‘an accumulation of remarks of counsel made during the absence of the jury and is confined to such acts of contempt as were committed ... in the absence of the jury.’
      “Butts was released from custody after two hours when the trial resumed.
      “The prosecution rested its case against Butts’ client, David Schrimsher, during the afternoon session.
      “Schrimsher, 26, of 2300 Nacogdoches Rd., is accused of installing an illegal wiretap and intercepting telephone calls at a private North San Antonio residence.”
      Defendant’s Exhibit “A” (New Trial).

      . Hall v. United States, 10 Cir. 1968, 396 F.2d 428; Mares v. United States, 10 Cir. 1967, 383 F.2d 805, 809; Coppedge v. United States, 1959, 106 U.S.App.D.C. 275, 272 F.2d 504.