404 F2d 68 United States v. Lee E B

404 F.2d 68

UNITED STATES of America, Plaintiff-Appellee,
v.
Robert LEE and E. B. Siegel, Defendants-Appellants.

No. 26892.

United States Court of Appeals Fifth Circuit.

November 15, 1968.

David S. Eisenberg, David N. Levine, Atlanta, Ga., for defendants-appellants.

Floyd M. Buford, Macon, Ga., for plaintiff-appellee.

Before JOHN R. BROWN, Chief Judge THORNBERRY, Circuit Judge, and TAYLOR, District Judge.

PER CURIAM.

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1

Appellants, Defendants below, were adjudged guilty of criminal contempt under 18 U.S.C. § 401 for failing to obey a subpoena duces tecum issued and served on behalf of the United States in a criminal prosecution. The judgment required Robert Lee to serve 40 days imprisonment or pay a fine of $400.00 and E. B. Siegel to serve 50 days imprisonment or pay a fine of $500.00. Appellants paid their fines in lieu of imprisonment and thereafter filed notice of appeal. Appellee now moves to dismiss the appeal on the ground that the cause is moot.

2

No application for stay as provided in Rule 38(a) (3), Federal Rules of Criminal Procedure, was sought until November 1, 1968, approximately one month after the fines were paid in full.

3

Appellee's Motion is well taken. Tessmer v. United States, 328 F.2d 306 (5 Cir. 1964), wherein the Court said:

4

We find it unnecessary to discuss the merits of this appeal. The satisfaction of the judgment by the payment of the fine rendered this case moot. Murrell v. United States, 5 Cir., 1958, 253 F.2d 267, cert. den'd 358 U.S. 841, 79 S.Ct. 65, 3 L.Ed.2d 76.

5

The appeal is dismissed.