493 F.2d 842 (5th Cir. 1974), 73-1061, United States v. Schrimsher

Docket Nº:73-1061.
Citation:493 F.2d 842
Party Name:UNITED STATES of America, Plaintiff, v. David R. SCHRIMSHER, Defendant. In re Charles D. BUTTS, Attorney at Law, Appellant.
Case Date:May 03, 1974
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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493 F.2d 842 (5th Cir. 1974)

UNITED STATES of America, Plaintiff,


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

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.

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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.


The transcript of what occurred immediately before the judge found Butts in contempt is reproduced in an appendix to this opinion. At about 11:30 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 1:30 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 accummulation [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.'



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. Sibron 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,

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'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. 1 Butts' conviction for...

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