United States of America, Plaintiff-appellee, v. Harry William Theriault, Defendant-appellant, 467 F.2d 486 (5th Cir. 1972)

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U.S. Court of Appeals for the Fifth Circuit - 467 F.2d 486 (5th Cir. 1972) Nov. 1, 1972

Joseph M. Matranga, Mobile, Ala., (Court-Appointed), for defendant-appellant.

Charles S. White-Spunner, U. S. Atty., Irwin W. Coleman, Jr., Mobile, Ala., for plaintiff-appellee.

Before JOHN R. BROWN, Chief Judge, and GOLDBERG and MORGAN, Circuit Judges.


Following our decision, United States v. Theriault, 5 Cir., 1970, 434 F.2d 212, affirming the conviction but remanding for resentencing, Appellant, appealing from the new sentence, reasserts his former attacks, the principle one being lack of sufficient evidence to establish escape from Federal custody. We again reject this and the other complaints.

As to the additional contempt conviction, we think that the careful, restrained, moderate and responsible way the Judge-who was not then, nor had he been, engaged in an embroilment or running controversy with Appellant1 -handled this situation which was then interfering with the efficient operation of the court comported with Illinois v. Allen, 1970, 397 U.S. 337, 90 S. Ct. 1057, 25 L. Ed. 2d 353 and Mayberry v. Pennsylvania, 1971, 400 U.S. 455, 91 S. Ct. 499, 27 L. Ed. 2d 532.


Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I


This lack of embroilment clearly distinguishes this case from In Re Dellinger, 7 Cir., 1972, 461 F.2d 389, and United States v. Seale, 7 Cir., 1972, 461 F.2d 345. In Seale, the court stated that "At least in the absence of personal embroilment * * * the trial judge could have cited Seale for contempt instantly even though he was personally attacked." Id., at 351