Opinion
No. 26892.
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.
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.
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.
Appellee's Motion is well taken. Tessmer v. United States, 328 F.2d 306 (5 Cir. 1964), wherein the Court said:
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.
The appeal is dismissed.