author: ELY, Circuit Judge: SPENCER WILLIAMS, District Judge ELY, Circuit Judge.

text:
    Horton C. WEISS, Appellant, v. Waldon C. BURR, Sheriff of Pima County, Arizona, Appellee.
    No. 71-1933.
    United States Court of Appeals, Ninth Circuit.
    May 21, 1973.
    Rehearings Denied Sept. 18, 1973.

      John F. Molloy (argued) of Robertson, Molloy, Fickett & Jones, P.C., Tucson, Ariz., for appellant.
    John P. Frank, Sp. Asst. Atty. Gen., (argued); Gary K. Nelson, Atty. Gen., Phoenix, Ariz. for appellee.
    Before ELY and TRASK, Circuit Judges, and SPENCER WILLIAMS, District Judge.

       Honorable Spencer Williams, United States District Judge, San Francisco, California, sitting by designation.

   ELY, Circuit Judge:

Weiss appeals from the District Court’s denial of his petition for habeas corpus. He contends that the court erred in denying his relief from a jail sentence and a fine levied against him, for criminal contempt, by an Arizona trial court.

During the prosecution of a murder trial, Weiss, the prosecuting attorney, was cited for five separate acts of criminal contempt. The first arose out of an in-court discussion, during the jury’s absence, concerning the right of a prosecution witness, the mother of the accused, to claim the privilege against self-incrimination. After an acrimonious exchange between Weiss and the defense attorney, the court decided to allow the witness to claim the privilege. Thereupon Weiss complained:

“Well, it worked. That is all I can say. Erroneously. If they call this Justice.”

The court responded:

“Show it is the finding of the Court that Mr. Weiss is in contempt of Court for remarks made toward the Court reflecting on the discretion and judgment of the Court. You don’t have to have any respect for me personally, but you are going to respect this bench, Mr. Weiss.”

The second citation was sparked by an exchange between Weiss and the court over the use of prior testimony of the same witness. She had previously been separately tried for the same alleged murder, and she had testified in her own defense. At her son’s trial, however, she found is physically and emotionally difficult, if not impossible, to complete her testimony. As a substitute for her continued appearance, the defense counsel urged that the entire transcript of her testimony at the prior trial be read into evidence. Weiss argued that only selected portions should be read. The court, agreeing with the defense, said to Weiss:

“Well, the record may show your objection to those portions preceding where you are indicating that you are wanting to start, and the objection is overruled, and you [and the defendant’s attorney] will read the transcript just starting with the beginning of her testimony and right straight on to the end, and making any record either of you want.
I would suggest, so it will be a little more understandable to the jury, that one of you read the questions and one the answers.”

Weiss responded: “No, I am not going to do that.” The court then stated:

“Mr. Weiss, you are going to do what I tell you to do when you are in this courtroom. Now I have warned you again and again about that.
Show it is the finding of the Court that Mr. Weiss is again in contempt of Court, and that sentence will be pronounced at the end of the trial.”

The third citation also revolved around the court’s treatment of the defendant’s mother. In response to a defense motion, the court said:

“Show that the defense moves that [the accused’s mother] be released as a witness and Mr. Weiss objects on the basis [that] he may need her in his rebuttal.
So show it appearing to the Court that the physical and emotional condition of the witness is such that she is unable to testify, and has been throughout the trial, it is ordered that she be released from the subpoena.”

Immediately thereafter, the following colloquy occurred:

“Weiss: I would like the record to show [the witness] has appeared in the courtroom only once before the Judge. I don’t know whether she has been in the Judge’s chambers, but I would like the record to show she appeared in the courtroom one time according to my knowledge.
The Court: What do you mean by her being in the Judge’s chambers?
Weiss: I don’t know where she has been, because the Court said it appearing her mental and emotional and physical condition is such that she is unable to testify as a witness. You have to base it on something.
The Court: I’m not going to take much more, and you had better quit making those sarcastic remarks. You know she hasn’t been in the Judge’s chambers. There is no reason for her or any other witness to be in there, and I am not going to take that sarcasm.
Show it is the finding of the Court that Mr. Weiss is found in contempt of Court and sentence will be pronounced at the end of the trial.”

The fourth citation was imposed when Weiss revealed to the jury portions of a statement by the defendant which the court had previously ordered suppressed. After the defense counsel asked the court to admonish Weiss for introducing the excluded evidence, the court said:

“No, he is not going to get a chance to [introduce such evidence] again.
It is the finding of the Court that Mr. Weiss is again in contempt for deliberately, among other things, including statements that have been suppressed by the Court, . . . in an obvious attempt to cause a motion for mistrial.”

The last citation was based upon statements Weiss made, during his closing argument to the jury, which the court had admonished him not to make. At trial, the state sought a first degree murder conviction against the defendant. Prior to closing arguments, however, the court ruled first degree murder out of the ease. Consequently, during an interruption in Weiss’ argument, the defense argued that since premeditation was no longer an issue, Weiss should not contend that the defendant had a plan which resulted in the killing. The court, agreeing, orally ordered Weiss not to

“argue premeditation and such as that, because that is what I have ruled as a matter of law is out of the case. So if you argue to the jury the facts with the inference that they can find that this was murder that had been planned by the defendant for many days prior to the incident, why then really you are arguing premediation and first degree murder.
* * * * * *
[Y]ou are of course entitled to argue any of the facts, but just don’t argue them to the effect that these were plans made by the defendant for the purpose of murdering his father.”

Under the statutes involved, murder was defined as a killing “with malice aforethought.” ******First degree murder involved, in addition, the element of premeditation.

In his argument to the jury, the defense counsel argued that the accused had no malice aforethought and explained his conception of the phrase:

“[Mjalice aforethought meant that in your heart at the time you commit an act you do it with malice, maliciously, that in your mind it is a forethought. You thought of it before you did it. And it is incumbent upon the prosecution to establish beyond any reasonable doubt that the defendant in this case, if he is going to ask you to find this defendant guilty of murder, had malice aforethought.”

During his closing presentation, Weiss attempted to convince the jury that the defendant had, in the words of the defense counsel, “thought of it before he did it.” In doing so, he pointed out the suspicious nature of a number of the defendant’s actions and statements prior to the killing. At one point, the following colloquy occurred:

“Weiss: All right. Now on Thursday, * * * was there any showing of belligerence on Bill Atwood’s [the decedent] part? . . . Not one bit. Then why the statements [by one of the witnesses concerning the purchase of a gun], . . . was there some connection between this statement and purchase of the gun, and going [to see the deceased] there on Saturday? Was it an explanation for having the gun? If he [the deceased] did get this way [become belligerent], then why try to get with him alone? That is not the correct thing to do.
Defense: I will object, if the Court please. This is the very matter the Court has instructed on. This is not in the case.
The Court: I have ruled anything concerning premeditation is out of the case. First degree murder is out of the case so don’t make this type of argument, Mr. Weiss. . . .
Weiss: I am sorry. I thought I could discuss the facts of the case. I am sorry.
I apologize to the Court [for] a misunderstanding on my part.”

After Weiss completed his argument, and the jury was instructed and sent out for its deliberations, the judge again addressed Weiss. He said:

“Mr. Weiss, I just explained as fully as I knew how this morning that you were not to go into an argument concerning any scheme or plan or premeditation. Then when you were talking about the [witness’] statement . and the fact that it was— what you were getting into was the fact that.the statement was obviously made for having purchased the gun with the intent to use it [to kill the deceased] .... That was just applying [sic; flying] in the face of what I had told you to do. It is along the same line of what you did yesterday, and I avoided holding you in contempt at that time, but I don’t see how I can avoid it at this time.
So show it is the finding of the Court that Mr. Weiss is in contempt and the matter will be dealt with at the close of the trial.”

At the end of the trial, the court imposed sentence upon Weiss in a summary-proceeding. For the first citation, he was fined $150. For the subsequent infractions, he was given 1, 2, 4, and 8 days in jail, respectively. Before the sentences were executed, Weiss sought review in the Arizona appellate courts. The Arizona Court of Appeals found the contempt judgment void on all counts “[f]or a lack of the requisite factual findings . . . . ” Weiss v. Superior Court, 12 Ariz.App. 527, 529, 472 P.2d 950, 952 (1970). The Supreme Court of Arizona reversed. It rejected the views of the Court of Appeals, stating:

“We do not believe a judgment which omits [requisite] facts is fatally defective if a transcript or other record of the proceedings is available from which the facts may be obtained.”

Weiss v. Superior Court, 106 Ariz. 577, ’ 580, 480 P.2d 3, 6 (1971) (emphasis in original).

The Supreme Court of Arizona also stated:

“ ‘[E]very court is the exclusive judge of its own contempts and its judgment is subject to review only on the point of jurisdiction’ . . . . It is not the function of this court nor is this court equipped to act as a trier of fact. Contemptuous conduct is often a matter of voice inflection, facial expression or some other conduct which is difficult, if not impossible for the record to reflect . . . .’’Id. at 580-581, 480 P.2d at 6-7.

The court resolved the jurisdictional issue by deciding that the record revealed ample evidence to support the judge’s conclusion that direct contempt was committed on all five occasions. Based on that conclusion, it affirmed the contempt convictions.

Weiss then petitioned for a stay of execution from the United States Supreme Court. When his petition was denied by Mr. Justice Douglas, he filed a petition for habeas corpus in the District Court. The District Court denied relief. It found that Weiss had not shown any violation of rights protected by the Constitution. Specifically, the court found: (1) there was no requirement that sentence be imposed by a judge other than the one who was offended; (2) a more detailed specification of the nature of the charges was not required under Arizona law; (3) it was constitutionally permissible to postpone sentencing Weiss for his offenses until the end of the trial’; (4) under the facts, the trial judge acted ‘to preserve judicial order rather than to curb innocent advocacy; and (5) Weiss’ conduct, as shown by the record, was within that “prejudicial and excessive zeal” that the Supreme Court has urged judges to curb. Sacher v. United States, 343 U.S. 1, 72 S.Ct. 451, 96 L.Ed. 717 (1952). ^

On this appeal, Weiss advances a two-pronged attack against the decision of the District Court. On one hand, he argues that the convictions must be set aside because the conduct for which he was punished was not contemptuous and punishment therefore would offend both due process and the First Amendment concepts incorporated into the Fourteenth Amendment. On the other hand, Weiss challenges the adequacy of the procedures which led to the convictions. He contends that those procedures were, in several aspects, inconsistent with the concept of due process, as guaranteed by the Fourteenth Amendment. We agree, in part, with both of Weiss’s arguments.

I.

We find merit in Weiss’s contention that constitutional limitations prohibit Arizona from punishing for the conduct involved in the fifth citation. While we have great respect for the sovereignty of the Arizona courts and accord much weight to their decision involving contempt convictions (see Fisher v. Pace, 336 U.S. 155, 69 S.Ct. 425, 93 L.Ed. 569 (1949)), no court has unfettered discretion to punish attorneys for allegedly contemptuous conduct. The due process clause does permit the states to use the summary contempt power to maintain the integrity of their courts, but, at the same time, it places limitations upon the exercise of that power. See In re Little, 404 U.S. 553, 92 5. Ct. 659, 30 L.Ed.2d 708 (1972); Holt v. Virginia, 381 U.S. 131, 85 S.Ct. 1375, 14 L.Ed.2d 290 (1965). A court cannot deprive attorneys of their liberty or property in order to avert perceived threats to the administration of justice if the court’s action would unduly impair legitimate, nondisruptive advocacy. In any case wherein the record reveals no facts supporting the challenged contempt conviction, the adjudication cannot stand. See Fisher v. Pace, supra,; In re McConnell, 370 U.S. 230, 82 S.Ct. 1288, 8 L.Ed.2d 434 (1962).

Our review of the record leads us resolutely to the conclusion that at least as to the fifth citation, this is such a case. From the record, it is clear that Weiss’s conduct was not overtly contemptuous. The record does not show, and the state does not argue, that the purportedly objectionable remarks made by Weiss during his argument were either spoken in a boisterous or disrespectful tone or the cause of an actual disruption in the trial. Moreover, there is no indication that his argument, per se, imperiled the trial court’s administration of justice. The possibility of a first degree murder conviction had been eliminated by the court, and even if Weiss had endeavored to argue premeditation, which he did not, such an argument could not have injuriously affected the trial. Premeditation was irrelevant to the question whether the defendant was guilty of second degree murder or of manslaughter. By arguing as he did, Weiss, at most, attempted to convince the jury of something which could not have affected the defendant adversely when the jury made the critical determination regarding his guilt.

Weiss’s conviction on the fifth citation, consequently, is sustainable, if at all, only on the ground that he violated the trial court’s order restricting the scope of possible argument. The mere transgression of an order governing trial procedures is, however, almost invariably insufficient to sustain a contempt conviction. Due process requires, we think, something more serious than a minor disagreement, such as may often and understandably follow an attorney’s failure strictly to comply with this type of order, before a contempt citation can be issued. See In re McConnell, supra. In general, the misconduct must entail a persistent disregard for the court’s authority that the attorney could have avoided through a reasonable, good faith effort. Fisher v. Pace, supra; In re McConnell, supra. There is nothing before us which indicates that, under this test, Weiss’s conduct during his closing argument was impermissible.

It is often difficult for an attorney to strike an effective accommodation between his client’s interests and his obligations to meet the demands of the judge before whom he must argue his case. Consequently, when, in attempting to reach an appropriate compromise, one transgresses a court order, he is not necessarily guilty of contempt. In re McConnell, supra.

Under the trial court’s ruling, Weiss was faced with the problem of answering the defense counsel’s argument that there was no malice aforethought without arguing the issue of premeditation. He did not use the word “premeditation,” but he did attempt to recall, to the minds of the jurors, things that the defendant did and said which tended to show that he “thought before he did it.” In advancing that argument, everything Weiss said constituted a legitimate response to the summation argument of the defense. In addition, the record does not suggest that Weiss’s alleged violations were so blatant or so frequent as to indicate the absence of a good faith attempt to comply with the court’s ruling. If his argument was, in addition to being pertinent, also contemptuous, we cannot see how Weiss could have been expected successfully to comply with the court’s order while acting as the state’s advocate. There was no disinterested witness to the killing. If the defendant’s malice were to be proved at all, the proof, of necessity, depended upon inferences drawn from the events which led to the killing. Despite the court’s two warnings to Weiss, his words did not warrant eight days in jail. The contempt adjudication relating to the fifth citation is therefore set aside.

As to the other four citations, we can perceive, on the record before us, no substantive, as distinguished from procedural, reason of constitutional dimension, which would require us to reverse Weiss’s convictions. We agree with the District Court that the conduct upon which these citations were based evidenced that type of “prejudicial and excessive zeal” which cannot be tolerated. In our view, Weiss’s conduct, although not actually disruptive, posed significant, imminent threats to the fair administration of justice by the trial court. See generally Fisher v. Pace, supra, United States v. Schiffer, 351 F.2d 91, 94 (6th Cir. 1965), cert, denied, 348 U.S. 1003, 86 S.Ct. 1914, 16 L.Ed.2d 1017 (1966). Weiss’s unnecessary insults and his gross failure to comply with the trial judge’s rulings transcended the level of minor procedural disputes and minor offenses to the judge’s sensibilities. They constituted punishable contempts.

II.

Weiss challenges the procedures followed by the Arizona courts on several grounds. First, he charges that he was denied due process when the same judge who had issued the contempt citations ultimately sentenced Weiss at the end of the trial. There is no merit to this argument. In Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499, 27 L. Ed.2d 532 (1971), the Supreme Court definitely articulated the test for determining whether the judge who issues the contempt citations is constitutionally required to seek another judge to conduct a hearing on the charged misconduct. The Court wrote:

“A judge cannot be driven out of a case. Where, however, he does not act the instant contempt is committed, but waits until the end of the trial, on balance, it is generally wise where the marks of the unseemly conduct have left personal stings to ask a fellow judge to take his place.
* -K * * * *
It is, of course, not every attack on a judge that disqualified him from sitting. . . . [A] lawyer’s challenge, though ‘disruptive, recalcitrant and disagreeable commentary’ [need not be] ‘an insulting attack upon the integrity of the judge carrying such potential for bias as to require disqualification.’ ” (Citation omitted.)

400 U.S. at 463-464, 465-466, 91 S.Ct. at 504-505 (1971). From this language, it is clear that another judge need not have been chosen to sentence Weiss. The trial judge acted immediately after each alleged contempt, and further, Weiss’s conduct did not involve the type of personal insult specified by the Supreme Court. Id. at 466, 91 S.Ct. 499. Thus, the sentencing procedure did not violate due process.

Weiss also contends that the trial court failed, both at the time of the citations, and at the time of sentencing, to specify the facts upon which it relied to support the convictions. Both the Arizona Supreme Court and the District Court, however, held that specific factual findings are not constitutionally required because the existence of the requisite misconduct can be gleaned from the reporter’s transcript. We agree, but only partially, and with the greatest reluctance.

Our reticence stems from the fact that the Arizona summary contempt procedure, which opens the door to arbitrary abuse, is vastly inferior to that employed in most jurisdictions. The summary procedure not only obscures the trial judge’s action, thus inhibiting effective appellate review, but also encourages appellate courts to sift through the trial record in search for instances of apparent misconduct that might support the conviction without being fully able to determine whether the trial judge intended those acts as the bases therefor. These shortcomings are not insignificant. They may be so clearly reflected as to reach constitutional dimension. See In re Little, supra; Fisher v. Pace, supra.

This, however, does not require complete rejection of the Arizona procedure. A less drastic remedy is available. We have concluded that' the summary procedure meets minimal constitutional standards when three conditions are met. First, the facts constituting the contempt must appear on the face of the transcript. See Fisher v. Pace, supra, 336 U.S. at 160, 69 S.Ct. 425. Secondly, it must appear beyond doubt that the conduct underlying the conviction constituted direct contempt. See Johnson v. Mississippi, 403 U:S. 212, 91 S.Ct. 1778, 29 L.Ed.2d 423 (1971); In re Oliver, 333 U.S. 257, 274-275, 68 S.Ct. 499, 92 L.Ed. 682 (1948). Finally, it must be clear that no single act was punished by more than one citation. Cf. In re Bradley, 318 U.S. 50, 63 S.Ct. 470, 87 L.Ed. 500 (1943); Tipton v. Baker, 432 F.2d 245 (10th Cir. 1970).

Of the several contempt citations, only one fails to meet these criteria. In citing Weiss for the fourth time, the trial judge said:

“It is the finding of the Court that Mr. Weiss is again in contempt for deliberately, among other things, including statements that have been suppressed by the court . . . in an obvious attempt to cause a motion for mistrial.” (Emphasis added.)

This citation is patently defective under all three criteria. It is impossible to identify the “other things” the trial court found objectionable. Thus, the state appellate courts were given uncontrolled freedom to seek out instances of possible misconduct that the trial judge may have intended to overlook and to utilize those incidents as the basis for affirming. Neither we nor the Arizona courts have such license. See In re Little, supra, 404 U.S. at 554, 92 S.Ct. 659. It is equally impossible to discern whether the “other things” were personally observed by the trial judge. If not, “due process requires . . . that the accused be accorded notice and a fair hearing.” In re Oliver, supra, 333 U.S., at 275-276, 68 S.Ct. at 509. See also Johnson v. Mississippi, supra. Given these two defects, the double jeopardy criterion is, of course, also unsatisfied. This contempt conviction is also not sustainable.

The last and most difficult question is whether the trial court’s contempt procedures in respect to the three remaining citations infringed Weiss’s constitutional right to speak in defense and mitigation before being sentenced. See Groppi v. Leslie, supra, 404 U.S. at 501, 92 S.Ct. 582. We hold that they did. Due process requires that contemnors, such as Weiss, who are not cited and simultaneously punished for the purpose of either restoring courtroom decorum or protecting the safety of court officials, are entitled to an opportunity for allocution. Since Weiss was not accorded this right the remaining contempt adjudication must be vacated.

One of the most fundamental principles in Anglo-American law is that “no one shall be punished without having had an opportunity to be heard.” See, e. g., Groppi v. Leslie, supra; In re Oliver, supra, 333 U.S., at 273, 68 S.Ct. 499; In re Hammersmith, 4 Ex. 87, 96, 154 Eng.Rep. 1136, 1140 (1849). An exception to this basic doctrine has long been tolerated for direct legislative and judicial contempts. In those two instances, the power of summary punishment without notice or hearing has been allowed on the theory that it is indispensable to those institutions, if they are to quell disruptions and to maintain their dignity and authority. See Cooke v. United States, 267 U.S. 517, 539, 45 S.Ct. 390, 69 L.Ed. 767 (1925). See also Groppi v. Leslie, supra, 404 U.S. at 503-504, 92 S.Ct. 582. Despite the long history of such direct contempt proceedings, however, the proper procedures to be followed have never been fully delineated.

The Supreme Court has, in numerous cases, considered the constitutional limits on summary contempt proceedings. See, e. g., In re Little, supra; In re Green, 369 U.S. 689, 82 S.Ct. 1114, 8 L.Ed.2d 198 (1962); Fisher v. Pace, supra. Even more frequently, it has scrutinized the functions of the federal courts in summary contempt proceedings under Rule 42(a), Fed.R.Crim.P. and its predecessors, thereby indirectly deciding whether certain procedures would violate due process if utilized by the states. See, e. g., In re McConnell, supra; In re Sacher v. United States, 343 U.S. 1, 72 S.Ct. 451, 96 L.Ed. 717 (1952); Cooke v. United States, supra. In all of these cases, however, there have been only two instances wherein the Court has expressly addressed itself to the contemnor’s right to allocution. Groppi v. Leslie, 404 U.S. 496, 92 S.Ct. 582, 30 L.Ed.2d 632 (1972); Ex parte Terry, 128 U.:S. 289, 9 S.Ct. 77, 32 L.Ed. 405 (1888). Groppi v. Leslie is the more persuasive of these two opinions, and it guides our decision here.

In Groppi, the Supreme Court held unconstitutional a contempt resolution of the Wisconsin legislature that imprisoned a putative contemnor without first affording him notice and an opportunity to respond. Speaking for a unanimous Court, Mr. Chief Justice Burger recognized that while a legislative body need not provide the full panoply of procedural rights that would attend a judicial adjudication of contempt, “we have stated time and again that reasonable notice of a charge and an opportunity to be heard in defense before punishment is imposed are ‘basic to our system of jurisprudence.’ ’’ 404 U.S. at 502, 92 S.Ct. at 586. With sensitivity deferentially attuned to the possibility of burdening legislative functions, the Chief Justice applied the tripartite balancing test of Hannah v. Larche, 363 U.S. 420, 80 S.Ct. 1502, 4 L.Ed.2d 1307 (1960), and concluded that, at least when a time lapse separates contemptuous behavior from legislative reaction, the failure of the legislature to provide for notice and allo-cution violates procedural regularity secured by the due process clause.

The Court’s reasoning was laced with the postulate that a similar action in a judicial context would necessarily have included those two fundamental elements of procedural due process. Since the situation that confronts us here is factually congruent with this postulate, the basis for our ultimate conclusion becomes apparent.

The Constitution and an unbroken sequence of case law underscore that the right to be heard in one’s own defense is, and should be, of the utmost importance. E. g., Groppi v. Leslie, supra at 502-503, 92 S.Ct. 582; Sniadach v. Family Finance Corp., 395 U.S. 337, 342-344, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969) (Harlan, J., concurring); Mullane v. Central Hanover Trust Co., 339 U.S. 306, 313-314, 70 S.Ct. 652, 94 L.Ed. 865 (1950) ; In re Oliver, 333 U.S. 257, 273-276, 68 S.Ct. 499, 92 L.Ed. 682 (1948). Whenever a court, not acting directly on the heels of a contemptuous episode, seeks to punish a contemnor, it must first afford him reasonable notice and an opportunity to be heard in his own defense.

The fact that Weiss, unlike the defendant in Groppi was present during sentencing and failed actively to seek an opportunity to be heard in his own defense does not constitute a waiver of the vitally important right to allocution. The right to be heard in this situation is undoubtedly a “fundamental right.” See Groppi, 404 U.S. at 504, 92 S.Ct. 582, 30 L.Ed.2d 632.

Although such rights may be lost or waived (See e. g., Boddie v. Connecticut, 401 U.S. 371, 378, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971)), we “do not presume acquiescence in [their] loss.” Ohio Bell Telephone Co. v. Public Utilities Comm’n, 301 U.S. 292, 57 S.Ct. 724, 81 L.Ed. 1093 (1937). Rather, before a waiver can appropriately be found, it must be shown that the defendant made a voluntary and knowing decision to abandon or relinquish a known right or privilege. See Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); Illinois v. Allen, 397 U.S. 337, 342-343, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970); Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

On the record before us, there is not a shred of evidence that Weiss knew of, much less knowingly waived, his right to be heard. Thus, we attribute absolutely no significance to the fact that neither Weiss, nor his attorney, requested a chance to speak, at the sentencing proceedings.

Since the distinctions between this case and Groppi are essentially meaningless, that case is, as we view it, controlling. It requires us to hold that because the trial judge delayed the disposition of the citations, and at the time of sentencing was not acting to quell a courtroom disruption to preserve the dig-' nity of the court, or to protect the safety of court personnel, allocution was required and its denial was violative of procedural due process.

In light of the fact that the deficiencies in the state courts were largely procedural and, at least as to the first three counts, are correctable, we remand this case to the District Court. It should hold Weiss’s petition in abeyance for a reasonable period of time, not exceeding sixty days, so as to allow Arizona an opportunity, if it chooses, to renew the three charges against Weiss which apparently resulted from his excessive zeal. If Arizona fails to act within the specified period, the District Court will grant the petition.

Reversed and remanded, with directions.

SPENCER WILLIAMS, District Judge

(dissenting):

I respectfully dissent. There is absolutely no question that the conduct of appellant was contemptuous. He freely admits his guilt as to count one, and the majority herein agrees that in four of the five citations appellant was guilty of “substantive” contempt “. . . that poses significant, imminent threats to the fair administration of justice of the trial court.” This fact should, I submit launch this court on a search for grounds to affirm the trial court. Instead, the majority reverses on a point not raised in the pleadings, not briefed for the appeal and only briefly touched upon in oral argument. My dissent however is based on two other grounds. I disagree with the majority that allocution has become a constitutionally protected right in direct contempt of court matters, and I disagree that the record shows such right (if one there be) to have been abridged.

Initially, it is submitted that the factual distinctions between Groppi, on which this court so heavily relies, and the instant case, raise a serious question as to its applicability here. In Groppi, the appellant and his followers invaded the chambers of the Wisconsin State Assembly during the conduct of its regular session and completely disrupted the ability of the legislature to function. Groppi was removed by police and confined. Two days later, without notice or hearing and without affording him any opportunity to present a defense or material in mitigation, the Assembly adopted its resolution finding Groppi to be in contempt and ordering his imprisonment.

In the instant case the contemptuous acts were in the presence of the court. On each occasion, the court informed the appellant as to the basis of the contempt citation. Additionally, while the court did not at those times ask appellant if he had anything to say in his own defense, the rulings were made after lengthy, often heated discussions during which matters in defense were raised. In no instance did the court deny the appellant an opportunity to be heard. Furthermore, the court held a hearing on the question of the sentence (at which appellant was present with counsel) and heard motions and argument prior to the imposition of sentence. While there is no showing that appellant was asked whether he had anything to say by way of mitigation, there is no showing that he was denied this opportunity.

Absent from this case are the critical facts that so concerned the Supreme Court in Groppi: lack of notice and an opportunity to be heard; possibility of mistaken identity or mental disorder; or the taking of the challenged action out of the presence of the contemnor. Groppi, supra at 502-506, 92 S.Ct. 582.

Finally, I am not persuaded that the majority has successfully distinguished Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962) and its progeny which uniformly hold that absence of allocution does not raise a Federal Question. In Hill, the court held that failure to afford the defendant in a federal trial the right to speak in mitigation before imposition of sentence (as is provided specifically by Fed.R.Crim.P. 32(a)) was not a defect which opened the judgment to a collateral attack under the federal habeas corpus procedures (28 U.S.C. § 2255).

While the court hinted the result might have been different if “. the defendant was affirmatively denied an opportunity to speak during the hearing at which his sentence was imposed.” Hill, supra, at 429, 82 S.Ct. at 472, there is no factual basis for invoking such a rule in the instant case.

ORDER ON PETITIONS FOR REHEARING

ELY, Circuit Judge.

Following the issuance of our foregoing opinion, the appellant filed a petition for rehearing. Attached to the latter was a transcript of certain state court proceedings which had not theretofore been a part of the record in our court and which were never presented to the District Court. The appellee contends that this transcript reveals that the Arizona trial court accorded to the appellant his right of allocution. The appellee has now moved this court to augment its record with the addition of the supplemental transcript. This we refuse to do, since, as heretofore stated, that transcript of proceedings was not before the District Court. Rule 10, Fed.R. App.P.

We do, however, modify our conclusion as to the first, second, and third contempt citations by ordering as follows:

As to citations one, two, and three, the cause is remanded to the District Court for its reconsideration in the light of a certain transcript of state trial court proceedings which was not presented to it, which did not constitute a portion of the record in this court, and which the appellee did not seek to include as a part of the record in this court until after the issuance of this court’s opinion.

With the court’s opinion modified as hereinabove stated, the appellant’s petition for rehearing and the appellee’s “Cross-Petition” for rehearing are both denied.

SPENCER WILLIAMS, District Judge, now concurs with the majority in its disposition of the fifth citation, but as to the other four, he adheres to his views as set forth in his dissenting opinion.

      . Ariz.Rev.Stat. § 13-451 provides :
      “ (A) Murder is the unlawful killing of a human being with malice aforethought.
      (B) Malice aforethought may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied when no considerable provocation appears or when the circumstances attending the , killing show an abandoned and malignant heart.”

      . Ariz.Rev.Stat. § 13^452 provides :
      “A murder which is perpetrated by means of poison or lying in wait, torture or any other kind of wilful, deliberate and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, robbery, burglary or mayhem, is murder of the first degree. All other kinds of murder are of the second degree.”

      . A contrary rule as to contempt procedures in Federal Court was recently stated in United States v. Marshall, 451 F.2d 372 (9th Cir. 1971).

      . The propriety of using a petition for hab-eas corpus to test the constitutionality of his convictions is unquestionable. See In re Little, 404 U.S. 553, 92 S.Ct. 659, 30 L.Ed.2d 708 (1972) ; Groppi v. Leslie, 404 U.S. 496, 92 S.Ct. 582, 30 L.Ed.2d 632 (1972) ; In re Green, 369 U.S. 689, 82 S.Ct. 1114, 8 L.Ed.2d 198 (1962).

      . The Arizona Supreme Court found that there was no “personal heat” between Weiss and .the trial judge which required adherence to the procedures established in Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971). See text preceding and accompanying note 15, infra.

      . Weiss now concedes that the conduct covered by the first citation was contemptuous. As we interpret his concession, it goes only to the question of whether his act was punishable, and he still challenges the procedural method that was employed.

      . As a prosecutor, representing the public, Weiss should not necessarily have all the leeway in presenting his cases that the Sixth Amendment, as applied through the Fourteenth, guarantees to defense attorneys in state prosecutions. See, e. g., Holt v. Virginia, 381 U.S. 131, 85 S.Ct. 1375, 14 L.Ed.2d 290 (1965) ; of. In re Little, supra. “Although the prosecutor operates within the adversary system, it is fundamental that his obligation is to protect the innocent as well as to convict the guilty, to guard the rights of the accused as well as to enforce the rights of the public.” ABA Standards Relating to the Prosecution Function and the Defense Function 44 (1970). I-Iis duty “is to seek justice, not merely to convict.” Id. at 43. Nevertheless, the prosecutor is still protected, by the Federal Constitution, from arbitrary punishment predicated upon his conduct as an advocate.

      . See note 1, supra.

      . Logically, it would seem that whenever a murder is premeditated, the murderer acts with malice aforethought. If so, Weiss’s dilemma was even more difficult than it appears at first glance, for, in that situation, the judge’s limitation on his argument served to foreclose a large area of legitimate discussion based on the theory that the evidence showed sufficient premeditation to support a finding of malice aforethought.

      . A review of the defendant’s woi’ds and acts suggests that Weiss may have been attempting to show that the defendant’s conduct evidenced an “abandoned and malignant heart” [Ariz.Rev.Stat. § 13-451, subsee. B] or that the use of the gun was “intention,” in which case, under Arizona law, malice may be presumed. See State v. Wallace, 98 Ariz. 243, 403 P.2d 550 (1965). In either case, the argument to which the trial judge objected seems to us to have been a proper response to the defense.
      We do not, of course, sit to overrule the Arizona courts’ interpretation of their own law. In this case, however, only the trial court decided that Weiss’s argument was improper. If that ruling were incorrect, then the nature of AVeiss’s apparent misconduct is, to some extent, ameliorated. See Fisher v. Pace, supra (Douglas, J., dissenting).

      . Because of the unique problem, discussed below, regarding the fourth citation, we have determined the adequacy of the evidence by evaluating only so much of Weiss’s conduct as is clearly set forth, and identified, in the record.

      . In light of the procedural deficiencies, discussed below, we must remand this case to the District Court to allow Arizona an opportunity to conduct further proceedings. Hence, we do not conclusively decide whether the evidence concerning the other citations is sufficient. It may bo that when the additional proceedings are completed, either the state courts or, if the dispute is pressed, the federal courts will discover a deficiency which is not now apparent.

      . It is unclear whether, under Rule 42(a), Fed.R.Crim.P., any of Weiss’s acts could be considered contemptuous. See, e. g., In re Dellinger, 461 F.2d 389 (7th Cir. 1972) ; United States v. Meyer, 149 U.S. App.D.C. 212, 462 F.2d 827 (1972) ; In re Hirschkop, 346 F.Supp. 973 (D.D.C. July 28, 1972). The federal rule does not, however, reflect the constitutional limits of the states’ contempt powers, except where a criminal defendant’s Sixth Amendment rights are concerned. But see In re McConnell, 370 U.S. 230, 82 S.Ct. 1288, 8 L.Ed.2d 434 (1962). See also Groppi v. Leslie, supra. In Oroppi, the Supreme Court interchangeably cited cases interpreting Rule 42 and cases involving the constitutional limits of the contempt power.

      . Weiss may be correct in his contention that the definition for contempt relied upon by the Arizona Supreme Court (see 106 Ariz. 577, 480 P.2d at 7) is inconsistent with the standard formulated by the Supreme Court of the United States. See, e. g., In re Little, supra-, Ex parte Terry, 128 U.S. 289, 9 S.Ct. 77, 32 L.Ed. 405 (1888). We need not reach that question, however, at this time.

      . The fact that the trial judge waited until the end of the trial to pronounce Weiss’s sentence does not invalidate the contempt adjudication. This procedure is acceptable because it (1) minimized the prejudice to the state, Weiss’s “client,” by permitting the trial to continue to conpletion, and (2) it diminished the likelihood that the offended judge imposed sentence “while smarting under the irritation of the contemptuous act[s].” Sacher v. United States, supra, 343 U.S., at 11, 72 S.Ct. at 456. We do not express any opinion regarding the continued viability of the practice allowed in Saeher whereby a judge can delay both citing and sentencing a contemnor until the end of a trial. We note, however, that under current concepts of procedural due process, a hearing before an impartial judge may be required in many cases where the citation is not entered when the offense is committed. See Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971). Cf. In re Dellinger, 461 F.2d 389 (7th Cir. 1972).

      . A “judgment” issued by the trial court after Weiss was sentenced appears in the record before us as au exhibit to Burr’s answer that was filed in the District Court. Weiss contends, and it is not denied by Burr, that this judgment was not before the Arizona appellate courts. In light of that fact, we, too, decline to consider it, for one focus of our inquiry here is whether the Arizona Supreme Court liad any valid basis for concluding that the trial court properly handled the contempt citations. The answer turns, in lai'ge part, on the adequacy of the record developed by the trial court and presented for review.

      . The procedure in the federal courts is set forth in Buie 42(a), Fed.B.Crim.P. It provides:
      “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.”

        See generally United States v. Marshall, 451 F.2d 372 (9th Cir. 1971). A contempt conviction is reversible if the trial judge fails to make adequate factual findings.
      Similar rules are in force in most states. See Annot., 154 A.L.R. 1227 (1945).

      . One result of this rule is that contempt convictions predicated upon observations not reflected in the record (e. g., boisterous conduct or sarcasm) cannot stand. Absent a recorded finding to that effect by the judge, any such contempt adjudication would be void. Cf. In re Hallinan, 71 Cal.2d 1179, 81 Cal.Rptr. 1, 459 P.2d 255 (1969).

      . The other counts are not amenable to this attack. In each of those instances, an examination of the citation in context reveals all the information due process requires be shown.
      If further proceedings are conducted by the Arizona courts, the irregularity in the fourth citation might be remedied by a detailed written specification of the misconduct.

      . Weiss did not explicitly raise the question ; however, it is implicit in his broad attack on the constitutionality of the Arizona court’s procedures.

      . Judges may still, without permitting al-locution, instantly act to quell disruptions by an order, for example, that the person causing the trouble should be promptly removed from the court and incarcerated. We need not, at this time, decide whether they must, later, in a less heated atmosphere, review their action and grant the contemnor allocution.

      . The right of allocution was not unknown at common law:
      “One of the reasons for the rule of common law that the defendant [in a direct contempt case] should be present ... at the time he is sentenced is that he may have an opportunity to say why judgment should not be given against him.”
      Ex Parte Dawes, 31 Okl.Cr. 397, 239 P.2d 689, 692 (1925). See also In re S.L.T., 180 So.2d 374, 378 (Dist.Ct.App.Fla. 1965) ; Alexander v. Sharpe, 245 A.2d 279 (Me.1968) ; State v. Zoppi, 72 N.J. Super. 432, 178 A.2d 632 (1962).

      . In a number of the other cases, the Supreme Court has written that a person who commits a direct contempt may be punished “without further proof of facts and without aid of jury.” Fisher v. Pace, supra, 336 U.S. at 159, 69 S.Ct. at 427. See also In re Oliver, supra. Such language, however, does not signify the absence of a right to allocution. In these cases, either the contemnors had been granted a chance to speak at the time they were sentenced, thus rendering the Supreme Court’s language mere dictum, or the Court was answering a contem-nor’s argument that he was entitled to "formal notice, an opportunity to prepare a defense, and a formal hearing. Compare Sacher v. United States, supra; Levine v. United States, 362 U.S. 610, 614, 80 S.Ct. 1038, 4 L.Ed.2d 989 (1960), with Brown v. United States, 359 U.S. 41, 79 S.Ct. 539, 3 L.Ed.2d 609 (1959).

      . In Ex parte Terry, decided over 80 years ago, the Court said:
      “[The power which the courts have] of instantly punishing, without further proof or examination, contempts committed in [their] presence . . . cannot be denied [to the courts] without inviting or causing such obstruction to the orderly and impartial administration of justice as would endanger the rights and safety of the entire community .... [The offended court] was [in this case] not bound to hear any explanation of [the contemnor’s] motives, if it was satisfied — and we must conclusively presume, from the record before us, that it was satisfied, from what occurred under its own eye and within its hearing — that the ends of justice demanded immediate action and that no explanation could mitigate his offense, or disprove the fact that he had committed such contempt of its authority and dignity as deserved instant punishment.”
      Ex parte Terry, 128 U.S. 289, 309-310, 9 S.Ct. 77, 81 (1888).

        Terry focused specifically upon the scope of courts’ summary contempt powers. For that reason, it is superficially appealing, but it has two flaws. The more fundamental is that in the decades since Terry was decided, there has, without question, been a marked increase in the Supreme Court’s sensitivity to procedural due process. The mainstream of the decisions involving that doctrine is now, and for some years has been, represented by the cases which require that notice and hearing be granted before deprivations of liberty or property take effect. The importance of notice and meaningful opportunities to be heard has been recognized in criminal proceedings and in numerous areas involving issues less significant than the loss of liberty and the damage to Weiss’s professional hopes which are threatened here. Criminal : See, e. g., Morrisey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) ; of., Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) . Civil: See, e. g., Fuentes v. Shev-in, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) ; Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) ; Mullane v. Central Hanover Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950) ; Morgan v. United States, 304 U.S. 1, 58 S.Ct. 999, 82 L.Ed. 1129 (1938).

        “For more than a century the central meaning of procedural due process has been clear: ‘Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must be notified.’ ” Fuentes v. Shev-in, supra, 407 U.S., at 4698, 92 S.Ct., at 1994, quoting Baldwin v. Hale, 68 U.S. 223, 1 Wall. 223, 17 L.Ed. 531 (1863). Nevertheless, in the past few decades, the Court has vastly expanded the states’ obligation to utilize fair processes of decision-making, involving adequate notice and a meaningful hearing. Terry’s broad language reflects the spirit of an earlier time, when courts were less sensitive to the compelling importance of procedural due process guarantees. Now, when people threatened with only the loss of small chattels or sums of money are entitled to prejudgment hearings, Terry is so archaic that its present viability, in full, is doubtful. Groppi more accurately reflects current concepts.
      Our doubt concerning Terry is heightened by the fact that the criminal nature of contempt proceedings has recently been acknowledged by the Supreme Court. Bloom v. Illinois, 391 U.S. 194, 201-202, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968). Theretofore, it was considered to be sui generis. See Cheff v. Schnackenberg, 384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629 (1966).
      The evolution away from Terry is beneficial and wholly proper:
      “Expressing as it does in its ultimate analysis respect enforced by law for that feeling of just treatment which has been evolved through centuries of Anglo-American constitutional history, ‘due process’ cannot be imprisoned within the treacherous limits of any formula. Representing a profound attitude of fairness between man and man, and more particularly between the individual and government, ‘due process’ is compounded of history, reason, the past course of decisions, and stout faith in the strengtli of the democratic faith we profess.”
      Joint Anti-Facist Refugee Committee v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring) .
      The other basis for distinguishing Terry is that there is a critical factual difference between it and the case before us. In Terry, the contemnor was cited and punished immediately after lie assaulted a marshal and brandished a knife in the courtroom. The Court held that his conduct made it plain “that there should be no delay, upon the part of the court, in exerting its power to punish.” 128 U.S. at 311, 9 S.Ct. at 82. It expressly reserved the question as to whether the offended court had the power to order Terry’s arrest and imprisonment on a later day without first bringing him into court and giving him a reasonable opportunity to be heard. 128 U.S. at 314, 9 S.Ct. at 83. This case presents that undecided issue.
      As Terry indicates, and we think properly, even rights as fundamental as one’s right to speak in his own defense must sometimes yield to other more pressing societal interests. See United States v. Galante, 298 F.2d 72, 78 (2 Cir. 1962) (Friendly, J., dissenting). In those instances in which a judge decides that the need for maintaining courtroom order or the necessity of protecting the safety of court personnel requires that one be immediately cited and punished, it is unnecessary to grant the right of allocution to the contemnor at that time.
      Sacher v. United States, supra, is also inapposite. Although the procedure followed and approved there was similar to that utilized here, the defendants therein were accorded the right of allocution before their incarceration. See 182 F.2d 416, 418 (2d Cir. 1950), aff’d, 343 U.S. 1, 72 S.Ct. 451, 96 L.Ed. 717 (1952). See also Groppi, 404 U.S. at 506, 92 S.Ct. 582.
      “Under the circumstances such as those in this case, neither a court nor a legislative body has any obligation to afford a contemnor a forum to expound his political, economic, or social views; but this does not mean that some brief period to present matters specifically in defense, extenuation, or mitigation is not required.”

      . From the Supreme Court’s opinion, it appears that Groppi was in jail when the contempt citation imposing a six month prison term upon him was issued. He never had any chance to request his right to allocution.

      . The fact that Weiss did not speak in his own defense when he was cited is not evidence of a knowing waiver. On those five occasions, neither the court nor Weiss addressed themselves to the merits of the citations.

      . A third possible distinction between this case and Groppi is that Weiss was cited immediately after his misconduct occurred. Since the need for action without hearing dissipates with time regardless of whether the contemnor was promptly cited, we think this factual- difference is insignificant.

      . Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417 (1961), is not inconsistent with either Groppi or the result we reach in this case. In Ilill, the Supreme Court held that in a federal trial, failure to afford the defendant the right to have a last word before the imposition of sentence, as requix-ed by Rule 32(a), Fed.R.Crim.P., was not a defect of constitutional dimension.
      The opportunity to speak provided by Rule 32 is not constitutionally protected because every defendant who is the subject of a sentencing hearing covered by that Rule has theretofore had a constitutionally guaranteed opportunity to speak concerning his guilt or innocence either at the time he entered his guilty plea [see, e. g., McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969) ] or at his trial.
      For interesting and carefully written comments having some relevance to our present case, see generally American College of Trial Lawyers, Report and Recommendations on Disruption of the Judicial Process (July 1970) ; ABA Project on Standards for Criminal Justice, The Judge’s Role in Dealing with Trial Disruptions (May 1971) ; Hazard, Securing Courtroom Decorum, 80 Yale L.J. 433 (1970) .

      . Groppi v. Leslie, 404 U.S. 496, 92 S.Ct. 582, 30 L.Ed.2d 632 (1972).

      . In truth, this case is much closer on its facts to Sacher v. United States, 343 U.S. 1, 72 S.Ct. 451, 96 L.Ed. 717 (1952) cited with approval by the Court in Groppi (404 U.S. at 506, 92 S.Ct. 582).


source: Caselaw Access Project

author: GODBOLD, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Ingo GRILL, Defendant-Appellant.
    No. 72-3042.
    United States Court of Appeals, Fifth Circuit.
    Aug. 28, 1973.
    Max B. Kogen, Miami, Fla., for defendant-appellant.
    Robert W. Rust, U. S. Atty., Barbara E. Vicevich, Harold F. Keefe, Asst. U. S. Attys., Miami, Fla., for plaintiff-appel-lee.
    Before TUTTLE, GODBOLD and MORGAN, Circuit Judges.
   GODBOLD, Circuit Judge:

The sole issue is whether the District Court correctly refused to suppress evidence claimed to have been obtained in violation of the Fourth Amendment. We hold that the court did not err and affirm appellant’s conviction on a charge of conspiracy to import cocaine.

Appellant Grill was validly arrested by federal officers on June 13, 1972, as he was about to board a commercial plane in Palm Beach, Florida, for New York. His baggage, which was already aboard the plane, was taken off and sent to the customs office. The same day appellant was taken to the county jail to be held as a federal prisoner. He was given a strip search. Pursuant to jail procedure the personal belongings on his person, including a loose single key, were turned over to the jailer who listed them on a printed receipt form which the jailer and appellant signed. The form states that the prisoner is given a copy which he is to submit when released, and it contains a place for the prisoner to sign upon release acknowledging that the listed property has been returned to him.

The key was sealed in an envelope, whether alone or with other items is unclear, and all of appellant’s property was placed in a pouch containing only his property, and the pouch was locked in a vault. Obviously these procedures were rational, in fact necessary, for protection of the prisoner and jail officials as well.

As a result of information given by Grill’s confederate, customs officers located on Bimini Island, Bahamas, a duf-fle bag said by the confederate to contain cocaine and to have been left there by appellant to be brought later to the United States. The bag was secured by a small brass lock. The confederate warned that it contained an explosive device, and the warning proved to be correct. Officers deactivated the device when they found the bag.

On July 12, a month after Grill’s arrest, a federal agent went to the jail, bringing the lock with him, to determine if Grill’s stored personal effects included a key that would fit the lock. He neither obtained nor sought a search warrant but merely asked the officer in charge of the jail if he could look at Grill’s property in the custody of the jail, and the officer produced and laid out the property. The agent saw the key, inserted it into the lock and found that it would open the lock. With the consent of the officer he took possession of the key and gave a receipt for it.

The appellant relies upon Brett v. United States, 412 F.2d 401 (CA5, 1969), in which we held that the fact that police have custody of a prisoner’s property for the purpose of protecting it while he is incarcerated does not alone constitute an exception to the requirement of a search warrant, and that the single fact of police custody is not a surrender by the prisoner of his expectations of privacy. In Brett the officer conducted an exploratory search by going through the prisoner’s effects and was able to turn up in the watch pocket of his trousers cellophane papers found to have on them traces of heroin. Grill’s situation does not, however, fall within Brett but within cases which we considered and distinguished in the Brett opinion. In Evalt v. United States, 382 F.2d 424 (CA9, 1969), at the time of appellant’s arrest a state officer had validly searched defendant’s pack-sack, finding what was thought to be stolen money, and had validly seized the packsack and contents. Subsequently, a federal agent went through the packsack and compared serial numbers on the money with those of money reportedly stolen from the bank, and this was held to be valid. Westover v. United States, 394 F.2d 164 (CA9, 1968), had held that the police could look again at the serial numbers on currency which had been validly taken from the prisoner’s pocket at the time of arrest and subsequently placed in the prisoners’ property room. The underpinning of these cases is that the items in question have been exposed to police view under unobjectionable circumstances, so that no reasonable expectation of privacy is breached by an officer’s taking a second look at matter with respect to which expectation of privacy already has been at least partially dissipated.

The other search was of Grill’s suitcase. On June 21 the Internal Revenue Service filed a lien on Grill’s property and served it on the Bureau of Narcotics agent handling the case. The agent picked up the suitcase, which until then had remained in the customs office at the airport, to place it in storage in a bonded warehouse for safekeeping. Prior to putting it in storage and pursuant to a recommended procedure, he examined the contents of the suitcase for two purposes: to make an inventory of the contents and to see if it contained explosive devices or other materials that might pose a danger to the warehouse or other stored items. In the process the agent discovered and seized hotel receipts and an airline ticket which tended to substantiate the testimony of the confederate concerning Grill’s presence in South America for the purpose of buying cocaine. Warrantless examination of the suitcase contents was not a violation of the Fourth Amendment. United States v. Lipscomb, 435 F.2d 795 (CA5, 1970) , cert, denied, 401 U.S. 980, 91 S. Ct. 1213, 28 L.Ed.2d 331 (1971); United States v. Boyd, 436 F.2d 1203 (CA5, 1971) ; United States v. Edwards, 441 F.2d 749 (CA5, 1971).

The so-called “inventory searches” can, of course, be employed as subterfuges and can be the subject of abuse. It is temptingly simplistic to employ the phrase “inventory” as though uttering it solves everything, and all too easy to state overbroadly the interests which “inventory searches” vindicate, and to automatically give to those interests a primacy which, in the balance between public and private interest, they do not necessarily enjoy. Having said that, we conclude that in this case there is no evidence of overreaching done in the name of inventory which would cause us to doubt the result we reach.

Affirmed.

      . Among other property listed and locked away was more than $4,000 in cash.


author: PER CURIAM:

text:
    Luther B. JACKSON, Plaintiff-Appellant, v. Terry HENSLEY et al., Defendants-Appellees.
    No. 73-2084.
    United States Court of Appeals, Fifth Circuit.
    Sept. 7, 1973.
    Luther B. Jackson, pro se.
    Robert L. Shevin, Atty. Gen., Tallahassee, Fla., for defendants-appellees.
    Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.
   PER CURIAM:

It is hereby ordered that the above styled and numbered appeal be dismissed for want of prosecution in view of the appellant’s failure to file a brief within the time fixed by the rules. Rule 9(b). See Tidwell v. Dees, 5th Cir. 1972, 464 F.2d 1297.

      . It is appropriate to dispose of this pro se case summarily, pursuant to this Court’s Local Rule 9(c)(2), appellant having failed to file a brief within the time fixed by Rule 31, Federal Rules of Appellate Procedure. Kimbrough v. Beto, Director, 5th Cir. 1969, 412 F.2d 981.


text:
    James M. FORET, Plaintiff-Appellant, v. J. Ray McDERMOTT et al., Defendants-Appellees.
    No. 73-2524
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Sept. 6, 1973.

      Donald Soileau, John Saunders, Ma-mou, La., for plaintiff-appellant.
    John G. Torian, II, Lafayette, La., for McDermott & Co.
    John M. Shaw, Opelousas, La., for Atlantic and Reading & Bates.
    Before BELL, GODBOLD and IN-GRAHAM, Circuit Judges.

       Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir. 1970, 431 F.2d 409.

   PER CURIAM:

While working on a drilling rig located on a platform in the Gulf of Mexico, Foret was injured when a railing attached to the rig broke and caused him to fall 90 feet into the Gulf. Alleging that he was a seaman, Foret sued his employer and rig owner Reading and Bates Offshore Drilling Co., the plat,form owner Atlantic Richfield, and the railing manufacturer J. Ray McDermott, Inc. for damages and maintenance under the Jones Act, general maritime law, and Louisiana tort law. The District Court entered an order granting summary judgment for Reading and Bates on the ground that Foret was not a seaman and therefore has no maritime claim against his employer and for Atlantic Richfield on the ground that “it had nothing to do with the operations being conducted by Reading & Bates . . . at the time of the accident.” Foret appeals from this order. We dismiss the appeal for lack of jurisdiction.

“In a multiple party suit, such as this one, a summary judgment adjudicating the claims or rights and liabilities of fewer than all the parties is not a final appealable judgment within the meaning of 28 U.S.C. § 1291 unless the district court makes (1) an ‘express determination that there is no just reason for delay’ and (2) ‘an express direction for the entry of judgment. Fed.R.Civ.P. 54(b).” Melancon v. Ins. Co. of North America, 476 F.2d 594 (1973). Since the District Court did not make either the requisite “express determination” or the requisite “express direction” here, this court "is without jurisdiction to entertain the appeal. Melancon v. Ins. Co. of North America, supra; Bailey v. Rowan Drilling Co., 441 F.2d 57 (CA5, 1971); United States v. Crow, Pope, and Land Enterprises, Inc., 474 F.2d 200 (CA5, 1973). See also 6 J. Moore, Federal Practice, ([ 54.34 [2.-2] n. 10 (2nd Ed. 1972).

If the District Court enters a new judgment and accompanies it with a Rule 54(b) certificate, the appeal from that new judgment may be submitted on the record and briefs prepared for this appeal as supplemented by the new judgment and certificate.

Dismissed.


author: KILKENNY, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Richard Louis BUSBY, Appellant. UNITED STATES of America, Appellee, v. Susan Marie LENZE, Appellant.
    Nos. 73-1537, 73-1538.
    United States Court of Appeals, Ninth Circuit.
    Sept. 26, 1973.
    As Amended On Denial of Rehearing Oct. 24, 1973.
    Barbara Durham (argued) of Waeker & Durham, Seattle, Wash., for appellant Busby.
    Anthony Savage (argued) of Kemp-ton, Savage & Gossard, Seattle, Wash., for appellant Lenze.
    Irwin H. Schwartz, Asst. U. S. Atty., (argued), Stan Pitkin, U. S. Atty., Seattle, Wash., for appellee.
    Before CHAMBERS, WRIGHT and KILKENNY, Circuit Judges.
   OPINION

KILKENNY, Circuit Judge:

Appellant, Richard L. Busby, was convicted by a jury on five counts of an indictment charging: (1) conspiring to traffic in heroin [21 U.S.C. § 174]; (2) conspiring to traffic in heroin [21 U.S.C. § 963]; (3) conspiring to possess and distribute heroin [21 U.S.C. § 846]; (4) importation of heroin [21 U.S.C. §§ 952 and 960(b)(1) and 18 U.S.C. § 2]; and (5) attempted possession with intent to distribute heroin [21 U.S.C. § 846 and 18 U.S.C. § 2], The trial was lengthy, the transcript of testimony consisting of well over 1,000 pages. Appellant, Susan Marie Lenze, was indicted and convicted on Counts Three and Five.

INSTRUCTIONS

Wilson, an admitted member of a mammoth conspiracy to traffic in heroin [70 pounds of pure heroin], was caught in the act and with other conspirators testified for the government.

Aside from challenges to the sufficiency of the evidence, which we reject, the principal thrust of appellants’ appeal is that the court below committed error by failing to give two requested instructions, one involving the weight to be accorded the testimony of an informer, the other involving the weight to be accorded the testimony of an accomplice.

Since there is no evidence that the co-conspirators were attempting to gather evidence or information in an undercover capacity for the government, the informer instruction was properly refused. Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966); On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952).

The record furnished to us pursuant to our order to augment the record does not show a request for an accomplice instruction. Appellant Busby includes such an instruction in his brief and the government seems to agree that the instruction was requested. However, the record is not at all clear on whether the court knew of, or agreed to give the instruction. The only mention of the subject which we can find is a passing reference by counsel for Busby in noting his exceptions as follows:

“But here Mr. Hamman I think is not only an accomplice, but that subject is covered, but also an informer.” [Emphasis supplied.]

On this statement alone, appellants’ counsel ask us to hold that the trial court was aware of and agreed to give an accomplice instruction. To do so, we submit, would be to read something into the record which is not at all apparent.

It is equally consistent with reason to conclude that the language “. . . that subject is covered, . . .” applied to the general instruction on credibility, which was given, as it would to say that it specifically referred to an accomplice instruction. Indeed, it might be a trial tactic of defense counsel in this type of a case not to insist on an accomplice instruction. Throughout the trial, they claimed they had no connection with the conspiracy and, at worst, were innocent dupes. Although in their arguments to the jury, they savagely attack Hamman’s credibility, they never mention the word “accomplice”, let alone refer to Hamman as an accomplice of the appellants. They obviously avoided the use of the word like the mystical Celtic devil avoids the use of the proverbial holy water.

We have before us what are certified to be the instructions handed to counsel for inspection and as given by the court. These do not include a specific instruction on the weight to be given the testimony of an accomplice. They do, however, include a detailed instruction on the factors to be considered in assessing the credibility of a witness. We note that the instruction directs the juryes attention to the witness's motives, interest in the outcome of the case, bias or prejudice, prior inconsistencies and are impressed with the overall thoroughness of the instruction.

Be that as it may, appellants concede that they did not register an objection to the failure of the court to give the alleged request as required by Rule 30, FRCrimP. They argue that under the circumstances here presented they should be relieved of the Rule 30 duty to object. They cite United States v. Davis, 439 F.2d 1105, 1107 (CA9 1971), and say it is reversible error not to give such an instruction where it has been requested. In Davis, however, the court refused to give the accomplice instruction when first requested and when the arguments had been completed again refused to give the instruction. Clearly, there was a compliance with Rule 30. Moreover, Phelps v. United States, 252 F.2d 49 (CA5 1958), is the basis for the Davis statement. In Phelps, the evidence connecting appellant with the marihuana consisted entirely of the now outlawed presumption arising from possession of the drug. There was no direct proof of guilt. Even on that skimpy record, the court did not hold that it was mandatory to give the instruction when requested, but, to the contrary, said:

“Whether the error is reversible error depends on the circumstance of each case and the conduct of the trial as a whole. Requests to charge are ‘not to be considered abstractly or in vacuo .... They must be considered in their relation to the trial as a whole.’ ”
•X- -X* *
“Refusal to charge may be regarded as reversible error if, but only if, (1) it is in itself a correct charge, (2) it is not substantially covered in the main charge, and (3) it is on such a vital point in the case that the failure to give it deprived defendant of a defense and seriously impaired its effective presentation.” (At 53). [Emphasis supplied.]

Here, the court fully instructed the jury on the standards to be employed in measuring the credibility of the witnesses. Not only that, but the appellants’ counsel utilized that instruction to its fullest in their arguments to the jury.

The same language is again used in United States v. Marsh, 451 F.2d 219, 221 (CA9 1971). A casual reading of Marsh will reveal that the statement is pure dictum. The language was used in connection with a claim that the accomplice’s testimony should have been corroborated. There is nothing in the factual recital to indicate that an accomplice instruction was requested or rejected. The same analysis is applicable to DeCarlo v. United States, 422 F.2d 237, 241 (CA9 1970), and United States v. Ketola, 478 F.2d 64, 66 (CA9 1973), where the court, by way of the recital of the phrase, “, . . . in the absence of a special request, . . .”, indicated that the instruction should be given, if requested.

In none of these cases was the Rule 30 problem presented or even discussed.

Appellants would have us emasculate the provisions of Rule 30 by declaring that on this record, we should invoke the plain error provision of Rule 52(b), FRCrimP, and declare that the lower court committed plain error in failing to give the accomplice instruction. True enough, some circuits have held that it is plain error to fail to give an accomplice instruction if the need for such instruction is sufficiently clear. United States v. Reid, 437 F.2d 94 (CA10 1971) and United States v. Griffin, 382 F.2d 823, 829 (CA6 1967).

However, the Ninth Circuit, on numerous occasions, has held that a trial judge’s failure to give such an instruction, sua sponte, does not constitute plain error. United States v. Ketola, supra; Caldwell v. United States, 405 F.2d 613 (CA9 1969); Strangway v. United States, 312 F.2d 283 (CA9 1963).

In any event, on the record before us, we are not prepared to say that the need for the instruction is sufficiently great to invoke the plain error doctrine of Rule 52(b), or to compel us to excuse the failure of appellants to obey the mandate of Rule 30. The testimony of Hamman does not stand alone. It is corroborated, in substantial part by: (1) appellant Lenze’s highly unusual activities and some of her testimony; (2) bank records showing Busby’s transmittal of funds to Hamman in Hong Kong; (3) a group of hotel records documenting Hamman’s travels with Wilson and Mjelde in connection with the conspiracy; and (4) a matching pair of “half dollar bills,” one-half in the possession of Busby, the other half in the possession of co-conspirator Mjelde, and other such incriminating evidence.

Keeping in mind that a conviction in federal court may be based on the uncorroborated testimony of an accomplice, if the testimony is not “incredible or unsubstantial on its face”, Darden v. United States, 405 F.2d 1054, 1056 (CA9 1969), United States v. Ketola, supra, we hold that Hamman’s testimony is not incredible or unsubstantial on its face and that it was sufficiently corroborated to permit us to say that plain error is not here involved. Additionally, upon these facts, we decline to by-pass the explicit requirements of Rule 30.

INDICTMENT DUPLICITY

Here, for the first time, appellant Busby argues that he was indicted and convicted of violating two conspiracy statutes covering the same subject, although, in fact, the evidence showed one continuing conspiracy. The problem grows out of the repeal of 21 U.S.C. § 174, and the enactment of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 966, et seq. and was thoroughly analyzed in United States v. Noah, sub nom. United States v. Stewart, 475 F.2d 688 (CA9 1973). Inasmuch as the issue was not raised in the lower court, we decline to discuss it. We note, however, that the sentences before us are concurrent on all counts. Upon the issuance of the mandate, the trial court should analyze the facts in this case in the light of Stewart and take such action as may be appropriate.

OTHER POINTS

Our examination of the record convinces us that there is no merit in appellants’ other points consisting of: (1) the denial of Busby’s motion for mistrial; (2) the trial court’s limitation of the redirect examination of witness Collins; (3) the denial of defendant Len-ze’s motion for severance; and (4) the denial of the motions for dismissal on the grounds of insufficiency of the evidence.

Affirmed.

      . “In determining whether the government has established the charge against the defendant beyond a reasonable doubt, you must consider and weigh the testimony of all the witnesses who have appeared before you.
      You are the sole judges of the credibility of the witnesses. In other words, you alone are to determine whether to believe any witness and the extent to which any witness should be believed. If there is any conflict in the testimony, it is your function to resolve the conflict and to determine where the truth lies.
      In reaching a conclusion as to the credibility of any witness, and in weighing the testimony of any witness, you may consider any matter that may have a bearing on the subject. You may consider the demeanor and the behavior of the witness on the witness stand; the witness’s manner of testifying; whether the witness impresses you as a truthful individual; whether the witness impresses you as having an accurate memory and recollection; whether the witness has any motive for not telling the truth; whether the witness had full opportunity to observe the matters concerning which he has testified; whether the witness has any interest in the outcome of this case, or friendship or animosity toward other persons concerned with this case.
      You may consider the reasonableness or unreasonableness, the probability or improbability, of the testimony of a witness in determining whether to accept it as true and accurate. You may consider whether he has been contradicted or corroborated by other credible evidence.
      If you believe that any witness has shown himself to be biased or prejudiced, for or against either side in this trial, you may consider and determine whether such bias or prejudice has colored the testimony of such witness so as to affect the desire and capability of that witness to tell the truth.
      You should give the testimony of each witness such weight as in your judgment it is fairly entitled to receive.
      If you believe that any witness has wilfully testified falsely with respect to any material fact about which the witness could not reasonably be mistaken, then you may, if you deem it fit to do so, disregard all or any part of the testimony of that witness, or you may accept such portion of his testimony as you find worthy of belief.” [R.T., pp. 996, 997, 998].

      . “ . . . No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury and, on request of any party, out of the presence of the jury.” [Emphasis supplied.]