(concurring) .
In the Yates contempt ease, 227 F.2d 848, the record shows the trial court when it (during the course of trial) applied a coercive sanction: immediate commitment to jail, was not proceeding under Rule 42(a) of the Rules of Criminal Procedure for a criminal contempt. But the trial judge when first confining Mrs. Yates to jail assured her, “You carry the key to the jail in your purse.” Thus, there was an affirmative statement from which one would naturally imply that the contemporaneous action was all there was to it.
Here the facts are about as strong for these defendants as they were for Mrs. Yates. So I concur.
Rule 42(a) does not ordinarily contemplate a trial, but I also assume that before the matter leaves the trial court there would always be the opportunity to raise the point that in imposing the civil sanction the court did not before the close of the testimony advise the defendant he had not exculpated himself under Rule 42(a). Notice to the defendant of possible criminal contempt is required under Yates, supra, if the civil sanction is being applied.
After the law in this circuit was settled by Yates in 1955 on notice, I would require the defendant to make the point in district court on lack of notice. It is clear that both civil and criminal sanctions do not violate the double jeopardy rule of the Fifth Amendment, but even double jeopardy may be waived by neglect to timely assert it. So it may be that with the law settled, as it was not when these defendants were in contempt in 1953, a failure to assert in district court the claim of “no advance notice” should be held a waiver and a valid one.
Also, with the law settled I would think that we should not again accept the point of “no advance notice” as a ground of error unless a positive speei-
fication is made. Here the point is made only obliquely.
As I understand it my associates do not reach here the propositions I suggest as a caveat. Dictum is a dangerous thing. However, I believe at the end of the year more decent justice is done if we all adhere strictly to the rules. Therefor, I now try to make it clear that I relax here on the rules on appeal and error because the rule announced in 1955 in Yates was not available to the trial court, the government or the defendants in 1953.