Joyce, In re

• Decision Date: 09 January 1975
• Docket Number: No. 74-1543,74-1543
• Citation: 506 F.2d 373
• Parties: In the Matter of John Edward JOYCE.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 373

506 F.2d 373

In the Matter of John Edward JOYCE.

No. 74-1543.

United States Court of Appeals, Fifth Circuit.

Jan. 9, 1975.

W. A. Thurmond, James T. McNutt, Jr., Joseph A. Calamia, John L. Fashing, El Paso, Tex., for appellant.

Ralph Harris, Frank B. Walker, Asst. U.S. Attys., El Paso, Tex., for appellee.

Appeal from the United States District Court for the Western District of Texas.

Before THORNBERRY, GOLDBERG and GODBOLD, Circuit Judges.

THORNBERRY, Circuit Judge:

This is an appeal from a judgment of the district court holding appellant Joyce, an employee of Mountain States Telephone and Telegraph Company ('Mountain Bell'), in criminal contempt of an order issued by a federal Magistrate and approved by the District Judge, directing Mountain Bell to participate with a customs agent in the installation of an electronic surveillance device known as a 'pen register' (a/k/a 'dialed numer recorder'). The judgment entails a thirty day sentence in the custody of the Attorney General, which the district court agreed to stay pending the decision of this appeal. For the reasons developed hereinafter, we reverse.

I. FACTS

For some time prior to February 1974, federal agents had investigated a certain individual in the El Paso, Texas area for illegal drug importation. As the investigation progressed, the officers were able to discover the suspect's address and telephone number. They concluded that the telephone was being used regularly in furtherance of illicit marijuana transactions.

On February 4, 1974, appellant Joyce, with 26 years of service at Mountain Bell, as appointed chief security officer over the operations served by the El Paso facility. In the performance of his duties Joyce was directly responsible to Mr. Clarence Fleming, Area Security Manager in Albuquerque, New Mexico, and indirectly responsible to Mr. J. F. Doherty, Director-- Corporate Security, of the New York parent company, American Telephone and Telegraph. ¹

On Friday, February 8, 1974, the head of the narcotics investigation, special customs agent George R. Brown, met with United States Magistrate Jamie Boyd to discuss obtaining an authorization for a 'pen register' to be installed on the suspected importer's telephone. Agent Brown submitted an affidavit setting forth his belief that probable cause existed for the 'pen register,' and his belief that a record of numbers dialed from the suspect's telephone would yield or lead to evidence of narcotics offenses. Later that day the agent contacted appellant at Mountain Bell and indicated that a court order authorizing the 'pen register' would be issued the next morning. Agent Brown testified that he furnished appellant's office with the suspect's name, address, and telephone number, and informed appellant that Mountain Bell's technical assistance would be needed for the installation.

The next morning agent Brown submitted an amended affidavit, Magistrate Boyd signed a 'pen register' order prepared by agent Brown, and around noon District Judge Guinn also signed the order. Appellant, who was present at the courthouse, received a copy of the order. Sometime during that Saturday afternoon appellant also received a letter from Judge Guinn, in which the Judge emphasized that time was of the essence, concluding: 'I, therefore, request that you (Joyce) do everything possible to expedite this matter in order that the investigation may proceed without any delay. Your cooperation is greatly appreciated.'

Neither the letter from Judge Guinn nor the order itself expressly directed appellant personally to furnish and service to the agents. Whereas the letter was couched in precatory language, the pertinent portion of the order read as follows:

IT IS FURTHER ORDERED, upon request of the applicant (agent Brown), that the Mountain Bell Telephone Company, a communications common carrier as defined in Section 2510(10) of Title 18 U.S.C., shall furnish the applicant forthwith all information, facilities, and technical assistance necessary to enable the installation and operation of the above-described mechanical devices.

It does not appear from the record that any other document, signed by either Magistrate Boyd or Judge Guinn, was ever delivered to appellant in respect to the 'pen register' prior to the district court's issuance of its show cause order.

As the afternoon of Saturday, February 9, wore on, the government's plans for prompt installation of a 'pen register' began to unravel. Appellant testified that at first he was unclear about the kinds of technical assistance he was expected to furnish, not being a technician. Agent Brown corroborated appellant and testified that he, Brown, then requested two types of assistance: cable and pair information for the color pick cable, and a private leased line from the box containing the terminal for the suspect's telephone, whereupon the agents would, as was customary, complete the hook-ups. According to agent Brown, appellant seemed willing to cooperate in executing the court's order, but also indicated a desire to confer with corporate counsel concerning its legal implications for Mountain Bell and participating employees. The agent had also indicated to appellant that some form of physical assistance from Mountain Bell-- for instance the installation of boosters on the line-- might be expected.

In the early evening a conference telephone call transpired among appellant, his supervisor Mr. Fleming, Bell attorney Joseph O'Neil in Denver, and Magistrate Boyd. O'Neil took the position that Mountain Bell policy, adopted pursuant to an AT&T 'recommendation' prepared by Mr. Doherty, ² forbade telephone company participation in a 'pen register' installation effected outside the safeguards of the federal wiretap statutes, 18 U.S.C. 2510 et seq., and inferentially 2516. ³ O'Neil testified, however, that he informed Magistrate Boyd that Bell would supply, pursuant to a subpoena, whatever information the agents might require in order to conduct their own installation of the device. According to O'Neil, Boyd answered: 'I will sign anything to get this moving.' O'Neil then testified that all parties agreed upon the subpoena alternative, that appellant would pick up agent Brown and drive to Boyd's home, and that Boyd would prepare the subpoena for immediate compliance. Magistrate Boyd corroborated O'Neil's testimony concerning the discussion of the subpoena, but stated that he did not understand O'Neil to have offered information in response thereto.

At about 7:30 Saturday evening, and subsequent to the conference call, appellant notified agent Brown by telephone that Mountain Bell had determined not to comply with the court's order, but that the necessary information could be furnished under subpoena. Appellant drove to the agent's motel, but agent Brown had left. Another agent suggested that it was too late to disturb Magistrate Boyd at home, anyway, so appellant returned home. The next morning appellant located agent Brown and again suggested that they obtain the subpoena from the magistrate. Agent Brown quickly rejected the idea, declaring, according to appellant's testimony, that 'the court order would hold.' Asked the reason for the sudden turn of events, agent Brown responded that 'he had talked to the Judge and the Judge said the Court order would hold and that it would be served with papers Monday morning.' Earlier in the day (Sunday) agent Brown had sworn out an affidavit before Magistrate Boyd, representing that 'in the conversation between affiant and Mr. John Edward Joyce at approximately 7:30 p.m., on February 9, 1974, Mr. Joyce stated that he would not follow the Court's Order.'

The next morning, Monday, February 11, 1974, appellant was served with a show cause order, signed by Judge Guinn, charging criminal contempt of court. Appellant's motion for a continuance was overruled, his trial took place two days later, and Judge Guinn entered immediate judgment declaring appellant guilty for having 'deliberately and willfully' defied the court's order and 'personal instructions' to furnish information and assistance incident to the recorder installation.

II. DISCUSSION OF THE EVIDENCE

At the threshold, we note that the great bulk of the foregoing factual summary concerns matters which, in their substance, went undisputed at trial. Appellant does not contest that the District Judge approved the 'pen register' order; that the order directed Mountain Bell to assist in the device's installation; that the Judge 'requested' appellant's cooperation; or that he, appellant, refused ultimately to cooperate. We are mindful of our responsibility under Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1941), to view the evidence and reasonable inferences in the light most favorable to the government. It matters not whether the trial occurred before a judge or a jury, cf. Gorman v. United States, 5th Cir. 1963, 323 F.2d 51, for the test of the sufficiency of evidence is the same: could a fair-minded and reasonable trier of fact accept the evidence as probative of defendant's guilt beyond a reasonable doubt? See United States v. Warner, 5th Cir. 1971, 441 F.2d 821, cert. denied, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58.

Yet, 'while this standard is unequivocal, Glasser does not require complete judicial abdication to the determination of the trier of fact.' United States v. Ferg, 5th Cir. 1974, 504 F.2d 914. We are closely counselled by this countervailing principle in our review of this case, for three reasons: First, at the trial below the United States Attorney did not present a single witness or ask a single question, even though he was present throughout, and even though the alleged contempt was committed, if at all, outside the 'actual presence of the court.' See F.R.Crim.P. 42(a). Instead, the District Judge, who had already made known his interest in the 'pen register' on several occasions, conducted the entire prosecution si...