* Local Rule 47.5.1 provides: "The publication of opinions that

have no precedential value and merely decide particular cases on the

basis of well-settled principles of law imposes needless expense on the

public and burdens on the legal profession." Pursuant to that rule, the

court has determined that this opinion should not be published.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 95-10306

Summary Calendar

_______________

UNITED STATES OF AMERICA

and

TERI M. KREST, Revenue Agent,

Plaintiffs-Appellees,

VERSUS

EDRIS RIGGS WALKER,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Northern District of Texas

(4:94-CV-0748)

_________________________

November 28, 1995

Before KING, SMITH, and BENAVIDES, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

Edris Walker, voluntarily proceeding pro se, appeals a

conviction of criminal contempt under 18 U.S.C. § 401(3). We

affirm the conviction and sentence, except that we remand the

sentence for reconsideration of the method of payment.
2

I.

Claiming that she is not subject to taxation by the Internal

Revenue Service (“IRS”), Walker failed to respond to a collection

summons issued by the IRS. The district court ordered her to

attend a show cause hearing, but she failed to appear. She then

was ordered to show cause why she should not be held in criminal

contempt for failure to appear in court. The details of these

proceedings and events are comprehensively set forth in the

district court’s memorandum opinion and order entered March 28,

1995.

II.

In all respects except as to the method of payment, we affirm,

essentially on the basis of the district court’s memorandum

opinion. Walker raises several meritless issues on appeal.

A.

Walker claims there is insufficient evidence to support a

finding of contempt. There are three elements to a contempt under

§ 401(3): a reasonably specific order; (2) violation of it; and

(3) a willful intent to violate it. In re Hipp, Inc., 5 F.3d 109,

112 (5th Cir. 1993). There can be little dispute about the first

two elements: The order directed Walker to appear at a specific

place and time, and she failed to do so. 

As to the third element, there is sufficient circumstantial

evidence that Walker had notice of the hearing and willfully
3

violated the order by failing to appear. She was aware that she

had been served through her husband and deliberately ignored

service so she could claim she had no actual knowledge of service.

The district court so found in its written order, and the record

fully supports that finding. Hence, the evidence is sufficient.

B.

Walker claims she was arrested without a valid warrant. The

fact is, however, that Walker was taken into custody pursuant to a

lawful order of the district court entered pursuant to 26 U.S.C.

§ 7604(b). Accordingly, no other authorization was necessary.

C.

Walker contends she was unconstitutionally deprived of a jury

trial. But as the district court carefully explained to her, there

is no right to jury trial for petty offenses. The sentence she

receivedSSno incarceration and a fine of $4,000SSis within the

definition of petty offense under 18 U.S.C. § 19. Therefore, a

bench trial was appropriate.

D.

Walker avers that the district court erred in conducting a

portion of the November 28, 1994, hearing without the presence of

a court reporter. Walker did not object at the time, so we review

for plain error; there is none. Once the reporter arrived, the

district court carefully recited, into the record, what had
4

occurred in the reporter’s absence. Moreover, there is no showing

that anything is missing from the record that is pertinent to this

appeal.

E.

Walker argues that she had inadequate time to prepare her

defense. She did not object or request a continuance, so we review

for plain error. Walker was given more than thirty days from her

arraignment to the contempt hearing. She has shown no prejudice,

and, thus, there is no plain error.

F.

Walker avers that the district court failed to issue findings

of fact and conclusions of law. Assuming, arguendo, that the court

is required to do so, the record plainly contains the court’s

fourteen-page memorandum opinion and order that includes findings

and conclusions. There is no error.

G.

Walker claims that the district judge acted as both prosecutor

and judge during the contempt proceedings. The record shows,

however, that this proceeding was initiated by the government when

it filed application for a show cause order pursuant to FED. R.

CRIM. P. 42. Also, the fact that the district court engaged in

questioning during cross-examination does not mean that the judge

was acting as a prosecutor.
5

H.

Walker argues that the district judge should have recused

himself. This is unnecessary unless the conduct that is the

subject of the contempt hearing “is based on disrespect to, or

criticism of, the judge personally.” United States v. Time,

21 F.3d 635, 639 (5th Cir. 1994). There is no such indication

here.

For the first time, on appeal, Walker contends that the judge

should have recused himself because he is a defendant in a suit she

has filed. Because this ground was not raised in the district

court, we review only for plain error. A judge is not disqualified

merely because a party has sued or threatens to sue him. Hipp, 5

F.3d at 116. There is no plain error.

III.

The only meritorious issue Walker raises is that she was

ordered to pay the $4,000 fine at once, rather than in installments

as she had requested. She argues that in so ordering, the district

court did not consider the factors set forth in 18 U.S.C.

§ 3572(a). Specifically, the statute requires the court to take

into account the defendant’s income, earning capacity, and

financial resources and the burden a fine would impose on the

defendant or his family. See 18 U.S.C. § 3572(a)(1) and (2).

At the sentencing hearing, the defendant recited the following:

[S]ince I have had this going on for the last two months

and was imprisoned, I came out of prison and had pneumo-
6

nia and I had severe ulcers and I have not been able to

go back to work yet, so I have no income. My husband has

been out of work, just started work, so we don’t have

$4,000 to pay right now. And I’ll need to make some form

of payment arrangements on that . . . .

The court responded, “Very good. Well, my order stands. That is

the punishment I’m imposing.” Walker said, “But can I make

arrangements? Can you put that in? I have no way.” The court

answered, “No. I’m not going to discuss arrangements with you, Ms.

Walker. I’m ordering that be paid immediately.”

There is no indication, from this colloquy, that the court

seriously considered the statutory factors. Accordingly, we remand

so that the court may address this problem in whatever manner the

court, in its discretion, deems appropriate.

IV.

In summary, the judgment of contempt is AFFIRMED. The

judgment of sentence is VACATED and REMANDED for reconsideration in

light of this opinion.