1

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________________________

No.92-1797

_______________________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FRED TIME,

Defendant-Appellant.

____________________________________________

No. 92-1798

_____________________________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

STANLEY WEINBERG,

Defendant-Appellant.

________________________________________________

No. 93-1300

________________________________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FRED TIME and STANLEY WEINBERG,

Defendants-Appellants.

__________________________________________________________________

Appeals from the United States District Court

for the Northern District of Texas

___________________________________________________________________

(May 17, 1994)
 

1 Chief Judge of the Eastern District of Texas, sitting by

designation.

2

Before REAVLEY and JOLLY, Circuit Judges, PARKER1, District Judge.

PARKER, District Judge:

 Fred Time ("Time") and Stanley Weinberg ("Weinberg") were found

in criminal contempt of court in violation of 18 U.S.C. § 401 and

fined. They appealed and their consolidated appeals are now before

this Court. 

FACTS

 Appellants Time and Weinberg served as attorneys for Russell

Fagan (Fagan), a defendant in a criminal action tried before United

States District Judge Jorge A. Solis. On August 6, 1992, during

Fagan's case-in-chief, Fagan called Gary Jordan (Jordan) to the

stand. Jordan had agreed to testify for Fagan, but his testimony

apparently surprised Fagan's counsel at trial and damaged Fagan's

case. After direct and cross-examination of Jordan, the government

asked the court to instruct Jordan to remain available on a standby

basis, in the event the government decided to call him in rebuttal.

The court instructed Jordan that he was free to go, but to be

available by phone. After the lunch break, at the prosecutor's

request, Federal Bureau of Investigation (FBI) Agent Harris related

to the Judge that he had called Jordan to advise him that he might

be recalled. Agent Harris stated that Jordan told him that Time

had whispered to him, "try not to be available," as he left the

witness stand. Jordan also told Harris that "Weinberg or Time"
3

said that if he "would not be around this afternoon...it would be

a whole lot better." It is unclear from the record whether Agent

Harris was under oath at the time he made these statements to the

court.

 Judge Solis allowed both attorneys to respond to the allegation

briefly. Weinberg told the court that Jordan had approached him

outside the courtroom and asked him, "What did he mean?...Do you

want me around?" Weinberg said that he answered, "I'm not telling

you not to go anywhere. I said be available. I said...I can't

control what you are doing, but I told him be available." Time

flatly denied telling the witness to be unavailable.

 Later that day, Jordan was called back and questioned by the

Judge, and testified under oath to much the same story as Agent

Harris had earlier related to the court. 

 After Fagan's trial concluded on August 7, 1992, the court gave

the Appellants the option of going forward with a contempt hearing

at that time or setting it down for a future hearing. Weinberg,

speaking for both appellants, asked for more time to get counsel

and prepare a defense, which the court granted. The court issued

an order to show cause why each should not be held in criminal

contempt and set a hearing date. After granting one additional

continuance, the court heard the matter on September 4, 1992.

 The court began by asking the Assistant United States Attorneys

(one of whom had participated in the Fagan prosecution) if they had

anything they wished to present. One of the prosecutors responded,

"We have nothing,...other than what's in the record currently."
4

The previous proceedings had been transcribed, and the court stated

on the record that everyone had copies of the transcription.

Although it was never formally offered into evidence at the second

hearing, that transcript was made part of the record on this

appeal.

 Judge Solis then called Valerie Conn, the court reporter during

Fagan's trial, as a witness. The court questioned Conn, who

testified that she heard Time say to Jordan, "be out of pocket,"

but did not know the context of the statement, as she could not

hear the rest of the conversation. The appellants cross examined

her, but the Assistant United States Attorneys asked no questions.

The Assistant United States Attorneys called no witnesses.

 The Appellants both testified, and each called numerous

character witnesses. The prosecutor cross examined only the

Appellants themselves.

 In an Order dated September 30, 1993, the trial court found

that Weinberg told the witness to disregard instructions from the

court, that he was therefore in criminal contempt of court and

fined Weinberg $2,500. The trial court entered a similar order as

to Time, but, finding him more culpable, assessed a fine of $5,000.

 Appellants later learned that Jordan had cooperated with the

FBI in the Fagan prosecution and in other cases. Appellants moved

for a new contempt trial when the government revealed this

information at Fagan's sentencing in November 1992. The trial

court denied the motion for new trial.

THE PROSECUTION OF THE CONTEMPT
5

a. Who prosecuted the contempt?

 Appellants allege that Judge Solis acted as both the prosecutor

and the judge of the contempt proceedings. In a criminal contempt

action conducted pursuant to Federal Rule of Criminal Procedure

42(b), the judge may not prosecute the contempt and at the same

time act as judge. American Airlines, Inc. v. Allied Pilots Ass'n,

968 F.2d 523 (5th Cir. 1992) (citing In re Davidson, 908 F.2d 1249,

1251 (5th Cir. 1990)). A review of the record leads us to the

conclusion that the United States Attorney's office prosecuted the

action against the Appellants. The alleged contempt was discovered

by Assistant U.S. Attorney (AUSA) Hastings who brought it to the

attention of the judge in open court, on the record. Hastings

called Agent Harris, who advised the court of the allegations.

Judge Solis allowed appellants to respond briefly, then continued

Fagan's trial. Jordan, having been requested to return to court by

Agent Harris, responded to questioning by the court, the appellants

and AUSA Hastings. At the later hearing, the court began by asking

AUSA Melsheimer if he was present to represent the government, to

which he replied, "I am, Your Honor, along with Mr. Webster from

our office." AUSA Melsheimer indicated that he would rely on the

testimony already in the record. Prior to asking the court

reporter to testify, the court noted that he had advised "counsel

for the defense, as well as counsel for the government," that the

court reporter had information about the contempt allegations. The

appellants note that the AUSA declined to cross examine the

witnesses called by the Appellants, except the Appellants
6

themselves. However, the court specifically asked the prosecutors

after each direct examination if they had any questions for the

witness, and the prosecutors responded by cross examining the

witness or declining to do so. 

 In summary, the AUSA initiated the proceedings in open court,

on the record, and called the first witness. The court's procedure

thereafter follows the accepted adversary process wherein the

prosecutor makes his case first, and the defendants then call

witnesses that the prosecutor is given the opportunity to cross

examine. The prosecutors exercised their judgment by declining to

cross examine the character witnesses, who did not claim to have

any personal knowledge of the fact issue before the court. It

certainly cannot be error for the judge to accept that decision and

allow the hearing to continue. The judge called one witness and

questioned her, as well as questioning only one other witness, out

of a total of fifteen witnesses. 

 The appellants make much of the fact that the court called and

questioned the court reporter and questioned Jordan. Federal Rules

of Evidence 614(a)(b) and (c) provide:

(a) Calling by court. The court may, on its own motion

or at the suggestion of a party, call witnesses, and all

parties are entitled to cross-examine witnesses thus

called.

(b) Interrogation by court. The court may interrogate

witnesses, whether called by itself or by a party.

(c) Objections. Objections to the calling of witnesses

by the court or to interrogation by it may be made at the

time or at the next available opportunity when the jury

is not present. 

 The judge's right to question a witness is within his
7

discretion so long as he remains impartial and does not exhibit

prosecutorial zeal. United States v. Zepeda-Santana, 569 F.2d

1386, 1289 (5th Cir. 1978). The record indicates that the court

gave advance warning to both parties concerning his intent to call

the witness so that they could prepare for cross examination and

objections and it reveals no prosecutorial zeal in the judge's

exercise of his Rule 614 authority. The Appellants, however, did

not timely object to the calling of the court reporter or to the

questions posed to either witness. In fact they have never

advanced any objection or reason that would lead us to believe that

the evidence adduced from the court reporter or Jordan was

inadmissible or otherwise improper.

 We hold, under the facts of this case, that the judge never

assumed the role of prosecutor of the contempt action, but served

solely as an impartial judge.

b. Disqualification

 Appellant Time complains that Judge Solis should have

disqualified himself from hearing the contempt action. Federal

Rule of Criminal Procedure 42(b) provides that a different judge

must hear the contempt action whenever the conduct is based on

disrespect to, or criticism of, the judge personally. There were

no allegations and no evidence of a personal attack on Judge Solis,

and the record reveals no hint that Judge Solis was personally

aggrieved by the conduct alleged against Appellants. This argument

is without merit.

c. Was the United States Attorney's office precluded from
8

prosecuting this case?

 Appellants argue that the United States Attorney's office was

precluded from prosecuting this action because they represented, in

the underlying criminal case, the party who was the beneficiary of

the Court's order that was at the heart of the contempt action.

The question of whether the Supreme Court's holding in Young v.

U.S. ex rel Vuitton et Fil, S.A., 481 U.S. 787, 107 S.Ct. 2124, 95

L.Ed.2d 740 (1987) requires the disqualification of the local

federal prosecutor when the government was the beneficiary of the

subject order has not been addressed by this or any other circuit

court. 

 In Young, Petitioners were found guilty of criminal contempt by

a jury, for violating the district court's injunction prohibiting

trademark infringement. Vuitton, S.A. was a French leather goods

manufacturer who sued several members of the Klayminc family for

manufacturing imitation Vuitton goods. The suit settled, with an

agreement that the Klaymincs would pay damages and consent to the

entry of a permanent injunction prohibiting them from manufacturing

or distributing imitation Vuitton goods in the future. Less than

a year later, Vuitton began to suspect that the Klaymincs were

violating the injunction, and hired an investigation firm that

confirmed their suspicion. Vuitton's attorney, J. Joseph Bainton

requested that the district court appoint him as special counsel to

prosecute a criminal contempt action for violation of the

injunction. The court found probable cause to believe that

petitioners were engaged in conduct contumacious of the court's
9

injunctive order, and appointed Bainton and his colleague Devlin to

represent the United States in the investigation and prosecution of

the contempt, as proposed by Bainton. The United States Supreme

Court reversed the convictions, holding that counsel for a party

that is the beneficiary of a court order may not be appointed to

undertake contempt prosecutions for alleged violations of that

order. Young, 481 U.S., at 790, 107 S.Ct., at 2128. 

 The Supreme Court began its analysis in Young, by noting that

courts possess inherent authority to initiate contempt proceedings

for disobedience to their orders. The manner in which the court's

prosecution of contempt is exercised may be regulated by Congress,

Michaelson v. United States, 266 U.S. 42, 65-66, 45 S.Ct. 18, 19-

20, 69 L.Ed. 162 (1924), and by the Supreme Court by constitutional

review, Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d

522 (1968), or supervisory power, Cheff v. Schnackenberg, 384 U.S.

373, 86 S.Ct. 1523, 16 L.Ed.2d 629 (1966), but cannot be abrogated

or rendered practically inoperative. Michaelson, supra, 266 U.S.,

at 66, 45 S.Ct., at 20. While a court has the authority to

initiate criminal contempt proceedings, its exercise of that

authority must be restrained by the principle that "only '[t]he

least possible power adequate to the end proposed' should be used

in contempt cases." United States v. Wilson, 421 U.S. 309, 319, 95

S.Ct. 1802, 1808, 44 L.Ed.2d 186 (1975)(quoting Anderson v. Dunn,

6 Wheat., at 231). The principle of restraint in contempt counsels

caution in the exercise of the power to appoint a private

prosecutor. The rationale for the appointment authority is
10

necessity, and logic requires a court to first request the

appropriate prosecuting authority to prosecute contempt action, and

appoint a private prosecutor only if that request is denied.

Young, 481 U.S., at 801, 107 S.Ct., at 2134. Indeed, if the court

finds it necessary to appoint a private attorney to prosecute a

contempt, the standard that the appointee is held to is "as

disinterested as a public prosecutor who undertakes such a

prosecution." Id. at 2136. In a case where an appointed

prosecutor also represents an interested private party, the ethics

of the legal profession require that the prosecutor take into

account an interest other than the Government's, thus subjecting

him to an inherent conflict of roles. Id. at 2138. 

 In the case at bar, three different Assistant United States

Attorneys participated in prosecuting the contempt. Two of them

were also involved in the Fagan prosecution. The record reveals no

interest other than the government's that would require the

allegiance of any of these lawyers. The Young plurality concludes

by saying, "we must have the assurance that those who would wield

this power will be guided solely by their sense of public

responsibility for the attainment of justice. A prosecutor of a

contempt action who represents the private beneficiary of the court

order allegedly violated cannot provide such assurance, for such an

attorney is required by the very standards of the profession to

serve two masters." Id. at 2141. Because the United States

Attorneys did not represent a private beneficiary of the court

order allegedly violated, and because they were responsible solely
11

to the sovereign and therefore were charged with the responsibility

to seek justice, not merely to convict in both the Fagan trial and

Appellants' trial, see MODEL CODE OF PROFESSIONAL RESPONSIBILITY EC 7-13

(1982), we hold that the Assistant United States Attorneys who

prosecuted this case were not precluded from that role by the Young

prohibition.

SUFFICIENCY OF THE EVIDENCE

 Appellants challenge their convictions, claiming that the

evidence was not sufficient to sustain a finding that they were

guilty beyond a reasonable doubt of criminal contempt. In

reviewing the sufficiency of the evidence, we consider the evidence

in the light most favorable to the government. United States v.

Hilburn, 625 F.2d 1177, 1180 (5th Cir. 1980). 

 The court's show cause order does not identify the statutory

source of the contempt allegation, nor does the order of contempt.

Appellants ask us to assume that the court entered its order

pursuant to 18 U.S.C. § 401, which provides as follows:

§ 401 Power of court

A court of the United States shall have power to punish

by fine or imprisonment, at its discretion, such contempt

of its authority, and none other, as --

 (1) Misbehavior of any person in its presence or so

near thereto as to obstruct the administration of

justice;

 (2) Misbehavior of any of its officers in their

official transactions;

 (3) Disobedience or resistance to its lawful writ,

process, order, rule, decree, or command.

 The court cannot have relied on § 401(1), because there is no

support in the record for a finding that the alleged misbehavior

actually obstructed justice. There is no indication that
12

Appellants' acts made more work for the judge, induced error or

imposed unnecessary costs on the other parties. American Airlines,

Inc. v. Allied Pilots Association, 968 F.2d 523, 532 (5th Cir

1992)(citing United States v. Oberhellmann, 946 F.2d 50, 52 (7th

Cir. 1991)). The time consumed by the contempt investigation

itself is not considered in this analysis. Id.

 Likewise, any reliance on § 401(2) would be misplaced. The

term "court officers" in that provision does not apply to counsel

appearing before the court. Cammer v. United States, 350 U.S. 399,

405, 76 S.Ct. 456, 459, 100 L.Ed. 474 (1956). The language refers

to court clerks and other "conventional court officers." Id.

 There is no evidence that Appellants disobeyed the court's

order, since the order did not direct them to do or refrain from

doing any act. Therefore, in order to sustain the contempt decree,

we must find that the Appellants' conduct was a "resistance" to a

lawful order, implying a willful purpose to interfere so as to

prevent the order from being carried out. See, Raymor Ballroom Co.

v. Buck, 110 F.2d 207, 211 (1st Cir. 1940). We find that the

evidence in the record is sufficient to sustain a finding that

Appellants resisted a lawful order of the Court. We find no merit

in Appellants' argument that resistant under § 401(3) is limited to

situations where a person resists service of process or subpoena.

The plain language of the statute lists resistance to "writ,

process, order, rule, decree, and command." The cases relied on by

Appellants, Raymor Ballroom Co. v. Buck, 110 F.2d 207 (1st Cir.

1940); The P.I Nevius, 48 F. 927 (DC NY 1892); In re Noyes, 121 F.
13

209 (9th Cir. 1902), are examples of fact situations where there

was resistance to a process or subpoena, but in no way interpret

the statute in the restrictive way that Appellants propose. 

 Appellant Time also complains that the District Court failed to

find beyond a reasonable doubt that Time acted willfully and with

criminal intent. Appellants point to no authority and we know of

none that requires the district court to recite in his order that

the finding of guilt was made using the appropriate standard of

proof. The court's statements finding Time engaged in the alleged

conduct, was present in court when the order was entered, and was

therefore in contempt of court is sufficient. 

 RULE 42(b) REQUIREMENTS

 Rule 42(b) of the Federal Rules of Civil Procedure

prescribes the procedure regarding the notice which must be given

to one charged with criminal contempt outside the presence of the

court. The rule provides: 

...criminal contempt...shall be prosecuted on notice.

The notice shall state the time and place of hearing,

allowing a reasonable time for the preparation of the

defense, and shall state the essential facts constituting

the criminal contempt charged and describe it as such.

The notice shall be given orally by the judge in open

court in the presence of the defendant or, on application

of the United States Attorney or of an attorney appointed

by the court for that purpose, by an order to show cause

or an order of arrest. 

 Appellants claim that no oral notice was given, and that no

application was made by the United States Attorneys' office,

although they do not challenge the sufficiency of the content of

the show cause order. At the end of the oral proceeding,

Appellants were advised by the trial court of the essential facts
14

constituting the contempt charge, that it was in fact criminal

contempt, and that the time and place for hearing was "here and

now." They requested a continuance for preparation of a defense,

which was granted. The granting of the continuance did not

necessitate new 42(b) notice. We therefore hold that the trial

court complied with the requirements of Rule 42(b). 

 

 JURY TRIAL

 Appellants complain for the first time on appeal that they were

entitled to a jury trial and did not waive that right.

 No right to trial by jury exists for petty crimes. Bloom v.

Illinois, 391 U.S. 194, 210, 88 S.Ct. 1477, 1486, 20 L.Ed.2d 522

(1968). Petty crimes, as defined in 18 U.S.C. § 19, encompass

offenses punishable by fines up to $5000.00. When no maximum

penalty has been affixed through legislation, the courts look to

the penalty actually imposed as the best evidence of the

seriousness of the crime. Id. at 211, 88 S.Ct., at 1487.

Appellants cite cases decided prior to the enactment of the § 19

$5000.00 limit for the proposition that the limit should be ignored

or changed. This argument is not persuasive.

 Appellants also note that if a defendant can demonstrate that

any additional statutory penalties, viewed in conjunction with the

maximum authorized period of incarceration, are so severe that they

clearly reflect a legislative determination that the offense in

question is a "serious" one, he has a right to a jury trial, citing

Blanton v. North Las Vegas, 489 U.S. 538, 109 S.Ct. 1289, 103
15

L.Ed.2d 550 (1989). Appellants have identified two consequences of

their convictions that they urge this court to consider. The

first, damage to their reputations, is not statutory and not

appropriately considered. The second, a potential for Texas State

Bar disciplinary proceedings, is likewise not statutory, but

imposed by a self-regulating bar association. 

 We therefore hold that Appellants had no right to a jury trial

in this case.

 MOTION FOR NEW TRIAL

 Appellant filed a motion for new trial based on newly

discovered evidence. They discovered, after their trial was over,

that Fagan had cooperated with the FBI in the investigation of the

Fagan case and other cases. Under United States v. Bagley, 473

U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), withholding

evidence which the defendant can use to impeach the government's

witness requires reversal if there is a reasonable probability that

had the evidence been disclosed to the defense, the result would

have been different. This Circuit has articulated five factors

which must be satisfied before the granting of a motion for new

trial is appropriate. United States v. Ugalde, 861 F.2d 802, 808

(5th Cir. 1988).

 First the evidence must be discovered following trial and

second, the failure to learn of the evidence must not be caused by

lack of due diligence on the part of the defendant. Although,

there is no indication that the government disclosed this

information to Appellants, Time testified at the contempt hearing
16

that Jordan had been contacted prior to the Fagan trial by the FBI,

who "had him in the U.S. Attorney's Office upstairs for a long

period of time. Somewhere in the area of 45 minutes." Since Time

was aware of the Jordan-FBI connection prior to the hearing, it is

a stretch to categorize it as newly discovered evidence, and there

is no question that Appellants could have pursued this knowledge

through cross examination of Jordan himself, or by investigating

and subpoenaing witnesses who were involved in Jordan's debriefing.

 Additionally, the evidence fails to satisfy the third Ugalde

requirement that the evidence must not be merely cumulative or

impeaching. Evidence of Jordan's cooperation with the FBI does

not directly rebut his testimony, and is relevant only as to

Jordan's credibility. 

 The final two Ugalde factors require that the evidence be

material, and such that a new trial will probably produce an

acquittal. The trial court had the testimony of Weinberg as well

as Jordan to consider on the issue of Weinberg's guilt and Jordan's

testimony concerning Time was corroborated by Conn. Further, the

trial court heard testimony that Jordan cooperated with the

government and so was aware of his possible bias at the time of the

original hearing. 

 The district court's decision to deny the motions for new trial

was not an abuse of discretion. United States v. Alvarado, 898 F.2d

987, 994 (5th Cir. 1990).

CONCLUSION
17

 The record persuades us that Judge Solis carefully protected

Appellants' due process rights and conducted the hearing in a

curteous and professional manner. The Judge in this exercise of

inherent power clearly demonstrated his sensitivity to the dual

role that judges must frequently assume, that is, protecting the

rights of accused persons while at the same time safeguarding the

integrity of the court and its processes.

 The district court's orders as to Time and Weinberg are

AFFIRMED.