IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-10306
Summary Calendar
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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.
*
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court has determined that this opinion should not be published.
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
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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
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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.
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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 follow-
ing:
[S]ince I have had this going on for the last two months
and was imprisoned, I came out of prison and had pneumo-
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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.
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