In re Marshall, 28083 Summary Calendar.

• Decision Date: 26 February 1970
• Docket Number: No. 28083 Summary Calendar.,28083 Summary Calendar.
• Citation: 423 F.2d 1130
• Parties: In The Matter of Richard T. MARSHALL, Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

423 F.2d 1130 (1970)

In The Matter of Richard T. MARSHALL, Appellant.

No. 28083 Summary Calendar.

United States Court of Appeals, Fifth Circuit.

February 26, 1970.

Joseph A. Calamia, John L. Fashing, El Paso, Tex., for appellant.

Seagal V. Wheatley, U. S. Atty., San Antonio, Tex., Romualdo Cesar Caballero, Atty., Department of Justice, Tax. Div., Criminal Section, Washington, D. C., for appellee.

Before WISDOM, COLEMAN and SIMPSON, Circuit Judges.

PER CURIAM:

Pursuant to Rule 18 of the Rules of this Court, we have concluded on the merits that this case is of such character as not to justify oral argument and have directed the Clerk to place the case on the Summary Calendar and to notify the parties in writing. See Murphy v. Houma Well Service, 5 Cir. 1969, 409 F.2d 804, Part I, and Huth v. Southern Pacific Company, 5 Cir. 1969, 417 F.2d 526, Part I.

Marshall, an attorney, was found in contempt of court for non-appearance at a scheduled hearing and was fined fifty dollars, apparently under Rule 42, F.R. Crim.P., or under Title 18, U.S.C., Sec. 401(3), or under both.¹ Payment of the fine was stayed pending this appeal. We reverse.

While the discretion of a trial judge in a contempt case is broad, certain guidelines must be considered. In contempt cases against lawyers the evidence must be carefully scrutinized in order to insure that there is no undue interference with the attorney-client relationship. United States v. Schiffer, 6 Cir. 1965, 351 F.2d 91, 94, cert. denied 384 U.S. 1003, 86 S.Ct. 1914, 16 L.Ed.2d 1017. The Seventh Circuit expressed a similar consideration in Parmelee Transportation Company v. Keeshin, 7 Cir. 1961, 294 F.2d 310, 313:

"Power to punish for contempt is one which must be used sparingly and only when it is clearly demonstrated that the respondent\'s conduct is contumacious and tends to bring the administration of justice into disrepute, rather than when his conduct is that of a determined level-headed practitioner who is acting respectfully to the court under considerable pressure in a lengthy and important trial."

Examination of the facts in the instant case in the light of the above comments demonstrates that the appellant's conduct fell far short of contempt of court.

The appellant represented without fee a sixteen year old girl who faced deportation to Mexico unless her American citizenship could be established. Hearing was scheduled for 12:35 P.M., May 14, 1969, before the district judge. The girl's chief witness was a Mexican woman who lived in a Mexican town some thirty to forty miles from El Paso, Texas, where the trial was to be held. This woman was expected to testify, on the basis of a prior affidavit furnished in the administrative deportation hearing, that she was a midwife at the girl's birth which occurred on a Texas ranch near the Mexican border. She remembered the occasion vividly as it was her one and only experience as a midwife.

The appellant had never met or talked with this lead witness. As charity work, a private investigation firm had agreed, but failed, to conduct the preliminary investigation and interview in time for the scheduled hearing and returned the file to the petitioner. The witness was never directly contacted. On the morning of the scheduled trial, the girl and her mother arrived at the appellant's office. They informed him that the witness was ill and could not testify....