571 F.2d 958 (5th Cir. 1978), 77-1458, In re Stewart

Docket Nº:77-1458.
Citation:571 F.2d 958
Party Name:In re Murray STEWART, Appellant.
Case Date:April 24, 1978
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 958

571 F.2d 958 (5th Cir. 1978)

In re Murray STEWART, Appellant.

No. 77-1458.

United States Court of Appeals, Fifth Circuit

April 24, 1978

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[Copyrighted Material Omitted]

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Pat H. Scanlon, E. Stephen Williams, Jackson, Miss., for appellant.

E. Donald Strange, Asst. U. S. Atty., Robert E. Hauberg, U. S. Atty., Jackson, Miss., for appellee.

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Mervyn Hamberg, Dept. of Justice, Crim. Div., Washington, D. C., for amicus curiae.

Appeal from the United States District Court for the Southern District of Mississippi.

Before WISDOM, GODBOLD and CLARK, Circuit Judges.

GODBOLD, Circuit Judge.

The appellant Murray Stewart was adjudged guilty of civil contempt by the district court and sentenced to a fine and a period of probation. The fine has been paid and the period of probation has run its course. The judgment of contempt is invalid and is reversed.

This case is shot through with error. At the invitation of this court, the Department of Justice has appeared as amicus curiae, and it acknowledges that the judgment of contempt was improper and that it must be reversed.

Stewart is county engineer for Hinds County, Mississippi. Thomas Stubblefield was a county employee working as a laborer on the bridge crew. Stubblefield was summoned to serve as a civil juror in the United States District Court for the Southern District of Mississippi, sitting at Jackson, Hinds County, and was selected to sit on a case which ended January 13. On January 13 an unidentified member of the court personnel told District Judge Harold Cox, presiding, that Stubblefield was having some difficulty with his employer because he was serving on the jury. Judge Cox talked with Stubblefield. In his testimony at Stewart's contempt hearing, on January 14, Stubblefield described his conversation with Judge Cox, and the ensuing events, in this way:

Q. Now at or before the time that you came out, or after you had made your report yesterday, was anything indicated to His Honor, Judge Cox, as to whether or not you had any information that you might not have the same position you had when you started jury service?

A. Yes, sir. He had found out that I had had some word, information about my job. I had mentioned that it was that I didn't know whether it was true or not until I got back whether it was true or not because it was hearsay, so when I got back this morning (January 14) was the first I had heard of it, and I went to Mr. Stewart and asked him and at that time he told me I had been transferred. Up until that time I hadn't heard a word about it.

This confusing statement tells us nothing concerning what Judge Cox said to Stubblefield and particularly what Judge Cox may have told Stubblefield to tell his employer or supervisor. Judge Cox's position is clear from the comments which he directed to Stewart during the hearing:

I sent word by him (Stubblefield) to you of a message, and I understand you got it and I understand you didn't think so much of it.

I told him to tell you when I had some word that there was some irregularity about whether or not he had been demoted I understood that yesterday, and I told him to tell you that I didn't want anything like that to happen, that he was on the jury up here; better not happen, so I just assumed that you didn't care about what my message was, so you're just in hot water up here and I just don't intend to cool it off for you because I don't intend to see jurors up here mistreated.

I was very much concerned by what I heard, and that was the reason I told Mr. Stubblefield . . . that if he had any trouble just to let me know and I'll see what about it, and that's the reason we're up here today.

When Stubblefield reported for work on January 14, he was told by the overseer of the solid waste crew that he (Stubblefield) had been transferred to the solid waste crew. Stubblefield went at once to see Stewart and objected, as Stubblefield phrased it, to being put on jury duty and

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coming back and finding his job gone. In the contempt hearing Stubblefield was asked if he had told Stewart what Judge Cox had told him to say, and he answered affirmatively, but at no time did Stubblefield testify to the content of either the message given to him or his restatement of it to Stewart. In answer to more specific questions Stubblefield testified as follows. He asked Stewart if being on the jury had any bearing on the transfer, and Stewart said it did not. Stubblefield inquired whether the transfer had any relation to a rumor that he had been loafing and hauling firewood while off work for jury duty, and Stewart stated it did not. Stewart told Stubblefield that the pay for the two jobs was the same. Finally Stewart told Stubblefield that he could accept the transfer or be dismissed. Stubblefield told Stewart he would call Judge Cox and get the matter straightened out. To this Stewart responded that Judge Cox had nothing to do with him or with running the county.

Stewart testified that Stubblefield originally had worked on the county's asphalt crew. His foreman requested that he be fired or transferred because he was "doing the asphalt crew no good," and Stubblefield himself asked to be transferred. Stewart transferred him to the bridge crew although there was no vacancy on it, and he was a laborer there for three or four months. The bridge crew foreman reported that Stubblefield was "not working out too good." A vacancy for a truck driver occurred on the solid waste crew when a driver was relieved because he had two accidents. Stewart moved an assistant driver up to driver, and because the bridge crew was overstaffed and Stubblefield had the least experience of anyone in the crew, he transferred him to fill the assistant driver vacancy. Stewart notified the foreman of the waste crew of this transfer while Stubblefield was on jury duty but three or four days before January 14. Stewart testified that Stubblefield's jury service had nothing to do with the transfer and that "I have men that are on jury all the time."

Stewart's testimony did not bring out what, if anything, Stubblefield relayed to him from Judge Cox. He stated that he and Stubblefield got their backs up, that Stubblefield threatened to report him to Judge Cox, and he (Stewart) said Judge Cox had nothing to do with the matter and Stubblefield would just have to report him.

Stubblefield left the job site and went home. Later during the morning of January 14 he reported the incident to Judge Cox who either prepared (or had prepared), and signed, a show cause order which recited that Stewart had demoted Stubblefield because of Stubblefield's having served as a juror. The order directed:

that the United States Marshal or his deputy is hereby directed to serve a copy of this order on the said Murray Stewart and to take him into custody and bring him forthwith before this Court for contempt and for Murray Stewart to show cause why he should not be held in contempt of this Court.

The order and subsequent proceedings were captioned and docketed as a separate case and not as part of the civil case on which Stubblefield had sat the preceding day.

Stewart was arrested during the morning and held in custody until his trial. 1 Judge Cox directed...

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