United States v. Perry

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

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No. 97-1480 



                                    UNITED STATES,



                                      Appellee,



                                          v.



                           GEORGE PERRY, A/K/A KING ANIMAL,



                                Defendant, Appellant.



                                 ____________________


APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF RHODE ISLAND



                       [Hon. Mary M. Lisi, U.S. District Judge]



                                 ____________________



                                        Before



                               Selya, Boudin and Stahl,

                                   Circuit Judges.
                                   ______________



                                 ____________________



            John F. Cicilline on brief for appellant.
            _________________

            Sheldon   Whitehouse,  United  States   Attorney,  and  Gerard  B.
            ____________________                                    __________

        Sullivan, Assistant United States Attorney, on brief for appellee.
        ________


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                                    June 25, 1997

                                 ____________________



SELYA,  Circuit  Judge.    Defendant  George  Perry  has
                 SELYA,  Circuit  Judge
                         ______________



            appealed an  order finding  him guilty of  criminal contempt.



            See 18 U.S.C.   401; Fed. R. Crim. P. 42(a).1  Perry, already
                                                        1
            ___



            incarcerated, was  sentenced to  90 days' imprisonment  to be



            served in isolated confinement.  Perry unsuccessfully sought,



            both in the  district court and in  this court, to stay  this



            order pending his  appeal.  Instead,  we issued an  expedited



            briefing schedule and we now affirm the judgment of contempt.



                                          I.



                 Perry, a/k/a "King Animal," was recently on trial in the



            United  States District  Court in  Rhode Island  before Judge



                                
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               1Section 401 provides:
               1



                           A court of  the United States  shall

                      have   power  to   punish   by  fine   or

                      imprisonment,  at  its  discretion,  such

                      contempt  of  its  authority,   and  none

                      other, as --

                           (1)  Misbehavior  of  any person  in

                      its  presence or  so near  thereto  as to

                      obstruct the administration of justice;

                           (2)  Misbehavior   of  any   of  its

                      officers in their official transactions;

                           (3)  Disobedience  or resistance  to

                      its  lawful  writ, process,  order, rule,

                      decree, or command.


Rule 42(a) states:



                           A criminal contempt may  be punished

                      summarily if the judge certifies that the

                      judge   saw   or   heard    the   conduct

                      constituting the contempt and that it was

                      committed in the  actual presence of  the

                      court.    The  order  of  contempt  shall

                      recite the  facts and shall  be signed by

                      the judge and entered of record.



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Lisi in a multiple defendant, multiple count case.  Perry was



            charged,  inter alia,  with racketeering.    See 18  U.S.C.  
                                                         ___



            1962(c).  Some of  the underlying criminal activities alleged



            included murder, 18 U.S.C.   1959(a)(1), conspiracy to commit



            the murders  of several individuals, 18  U.S.C.   1959(a)(5),



            carjacking,  18 U.S.C.   2119(3), and use of a firearm during



            and in relation to a crime of violence, 18 U.S.C.   924(c).



                 The trial began on January 21, 1997, and lasted 44 days.



            On April 3, 1997, which was day 40,  the government began its



            closing   argument.     After  roughly   two  hours   of  the



            government's  summation, at  about 12:15 pm,  Perry's counsel



            passed a note to  Judge Lisi informing her that  Perry wished



            to use the restroom.  Judge Lisi interrupted the government's



            closing  argument  and  called  both counsel  to  the  bench.



            Government counsel informed her that he had about five to ten



            additional  minutes of  argument.   Judge  Lisi told  Perry's



            counsel  to tell Perry  that proceedings  would end  in about



            five to ten minutes.  Counsel did so.  As government  counsel



            resumed  his argument, Perry stood up, turned his back to the



            jury, unzipped his pants, and urinated on the carpet.



                 Perry was immediately removed  from the courtroom by the



            marshals.  The jury was excused.   Perry was then returned to



            the courtroom  and informed by  Judge Lisi that  his behavior



            was contemptuous.   Judge Lisi  also related  that, after  an



            earlier   outburst  (not  otherwise  described)  during  jury


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selection in January, she  had warned Perry that if  he could



            not  conduct himself in a  proper manner, he  would watch the



            remainder of the proceedings from the cellblock.



                 Perry's counsel was  allowed to address  the court.   He



            stated  that during the ten  minutes prior to  his passing of



            the note to the  bench, Perry had twice informed him  that he



            needed to use the restroom, the second time in a more  urgent



            manner.   Counsel passed the  note to the  bench upon Perry's



            third importuning.   When  counsel returned from  the sidebar



            and  informed Perry that a  recess would not  occur until the



            government had concluded  its closing argument,  Perry stated



            to  counsel: "There's nothing I can do."  Perry then relieved



            himself on the carpet.



                 Counsel moved for a mistrial due to his client's conduct



            and the court's announced intention to exclude Perry from the



            courtroom, contending that, in  the circumstances, it was now



            virtually  impossible   for  Perry  to  get   a  fair  trial.



            Government counsel opposed the request.  Perry's codefendants



            moved  for mistrials  as  well,  and,  alternatively,  sought



            severance,  adding that the  jury may have  seen the marshals



            draw batons and put  handcuffs on all the defendants  as they



            sought to  maintain security while others  removed Perry from



            the courtroom.  Judge Lisi denied the motions for mistrial or



            severance, ordered  Perry removed from the  courtroom for the


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remainder of the government's  summation, and stated that she



            would deal with him after the noon recess.



                 When the  jurors returned, the court  instructed them to



            take  no adverse  inference  from Perry's  conduct, from  the



            actions of  the marshals in  securing Perry, or  from Perry's



            absence  from   the  courtroom.    Government   counsel  then



            concluded  his  argument,   which  took  approximately   five



            minutes.   Perry  watched  this portion  of the  government's



            summation  on a  closed  circuit television  system from  the



            courthouse  cellblock.    He  also  had  available  a  direct



            telephone  line to his counsel.  The court recessed for lunch



            after government counsel had concluded.



                 That afternoon, Judge Lisi convened a session with Perry



            and all counsel in her courtroom, but without the presence of



            the  jury.   She labelled  this as  an opportunity  to permit



            Perry and his counsel  to advise her whether Perry  wished to



            return  to  the courtroom  and  whether  he believed  himself



            capable of appropriate behavior.  Perry apologized and stated



            that he would maintain himself in  a more appropriate manner.



            Judge Lisi informed Perry that she would permit him to remain



            as  long as he conducted himself in a decorous fashion.  When



            a codefendant's  counsel objected to Perry's  presence in the



            courtroom as  prejudicial to his  client in light  of Perry's



            outrageous  conduct and  the government's  prosecuting theory



            that all the  defendants had acted  in concert regarding  the


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charged crimes, Judge Lisi responded that  Perry "has a right



            to  be present during the  proceedings so long  as he behaves



            himself."



                 Defense  counsel then  began  their  closing  arguments,



            which  continued through the next day (Friday, April 4).  The



            government's  rebuttal and  the court's  instructions to  the



            jury  occurred  on  Monday,   April  7.    These  proceedings



            transpired with  Perry in  the courtroom and  without further



            incident.   The jury began  deliberation on the  afternoon of



            April  7,  continued  deliberating  on  April 8  and  9,  and



            rendered verdicts on April 10.2
                                          2



                 On  April 10,  Judge Lisi  held a  hearing at  which the



            following colloquy occurred:



                      THE COURT:     Mr. Perry, would you stand

                      up.



                           Mr. Perry,  on April 3rd, just a few

                      days  ago,  you  behaved   with  contempt

                      toward this Court.   I need not say again

                      what that behavior consisted of.  At  the

                      time, I  told you that your  behavior was

                      in   contempt  of   this  Court   and  in

                      deliberate  and  willful  defiance of  my

                      order that you wait  a few moments  until

                      the  Government   completed  its  closing

                      arguments.



                                
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               2Some of  the defendants were  found guilty on  all counts
               2

            with which they were charged; others received mixed verdicts.

            As for Perry, he was convicted of racketeering, conspiracy to

            commit racketeering, the murder of Jose Mendez, conspiracy to

            murder two  other individuals, carjacking, and  two counts of

            using  a firearm  during  and  in  relation  to  a  crime  of

            violence.  He was acquitted on a charge related to the murder

            of  Temujin Vandergroen.  None of the defendants has yet been

            sentenced.



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At  this time, I'm advising you that

                      you  are  in  criminal contempt  of  this

                      Court.   I think I told you that on April

                      3rd.  I permitted  you to return, because

                      you promised  to behave yourself  and you

                      did  behave  yourself.     However,  your

                      behavior   was   so  outrageous   and  so

                      despicable that  in order to  restore the

                      authority  and dignity  of this  Court, I

                      feel I must impose a punishment.



                           Before  I do  so, is  there anything

                      you want to say in your own behalf?



                      DEFENDANT PERRY:     No.



            Counsel for  Perry was  permitted to  address  the court  and



            raise  arguments in Perry's behalf.  Judge Lisi then issued a



            "certificate of contempt and order."  In accordance with Rule



            42(a), the  certificate recited the facts  outlined above and



            confirmed both  that the  judge saw the  conduct constituting



            the contempt and that it was committed in the actual presence



            of  the  court.   She sentenced  Perry  to 90  days' isolated



            confinement.3  On  appeal, Perry raises  two issues (both  of
                        3



            which were preserved below).



                                        II-A.



                 Perry  contends  that  he  could not  be  sentenced  for



            contempt on April 10  once he had accepted and  complied with


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               3According  to  the  government,  some of  the  crimes  of
               3

            conviction carry mandatory life sentences and Perry faces the

            "near certainty of life  imprisonment."  Judge Lisi may  well

            have ordered that the contempt sanction be served in isolated

            confinement so that the conviction for criminal contempt will

            carry some punitive  effect.   In all events,  Perry has  not

            challenged the  isolated confinement aspect  of the  criminal

            contempt order.



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the court's offer of an opportunity to purge himself on April



            3.   This  contention proceeds  from Perry's  assumption that



            Judge Lisi's permitting Perry to  return to the courtroom for



            the remainder  of the trial proceedings  (defense closing and



            jury  charge) was  a  purge of  his  contempt and  ended  the



            matter.  Nothing in the record, however, indicates that Judge



            Lisi shared  this understanding that the  banishment from the



            courtroom for the remaining  five minutes of the government's



            summation  was punishment at  all  --  its seems  more in the



            nature of a step needed to ensure the orderly progress of the



            trial  -- let alone that  the exclusion sufficed  as the full



            extent of punishment for Perry's contemptuous behavior.



                 Moreover,   "purge"   is  a   term   more  appropriately



            associated  with civil,  not criminal,  contempt.4   Although
                                                             4



            certain court orders might contain indicia of both  civil and



            criminal contempt -- for example, when a contemnor refuses to



            testify in an ongoing trial or grand jury proceeding, a judge



            might craft  a determinate sentence of  incarceration with an



            incentive  of earlier  release  if the  contemnor decides  to



            comply with the order to testify, see, e.g., United States v.
                                              _________  _____________



                                
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               4The term "purge" is not uttered by the court  in any part
               4

            of  the record before us.   Counsel suggests  that Judge Lisi

            used the term "purge" at an (unrecorded) bench conference  on

            April 3.  He  referred to his understanding  at the April  10

            proceeding but  Judge Lisi did not  respond.  We do  not deem

            the matter worth pursuing; even if the court did use the word

            "purge," it was not  reasonable for Perry to assume  that the

            court  thereby  intended  to  foreclose  a  criminal contempt

            sanction.



                                         -8-



Winter, 70 F.3d  655, 660-65 (1st  Cir. 1995), cert.  denied,
            ______                                         _____________



            116 S.  Ct. 1366  (1996) -- the  paradigmatic civil  contempt



            sanction  is coercive,  designed to  exact compliance  with a



            prior  court order.   "[I]mprisonment  for civil  contempt is



            ordered where the defendant has  refused to do an affirmative



            act required by the  provisions of an order which,  either in



            form or substance,  was mandatory in its character."  Gompers
                                                                  _______



            v. Bucks  Stove & Range Co.,  221 U.S. 418, 442  (1911).  The
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            contemnor is confined indefinitely with release  dependent on



            "purging" the contempt by complying with the order.



                 Punishment for criminal contempt,  on the other hand, is



            punitive and imposed to vindicate the authority of the court.



            "Purging"  is  neither  permitted  nor  possible.    "When  a



            contempt  involves   the  prior   conduct  of   an  isolated,



            prohibited  act,  the  resulting  sanction  has  no  coercive



            effect.   '[T]he defendant is furnished no key, and he cannot



            shorten  the term by  promising not to  repeat the offense.'"



            International Union,  United Mine Workers of  Am. v. Bagwell,
            _________________________________________________    _______



            512 U.S. 821, 829 (1994) (quoting Gompers, supra).
                                              _______  _____



                 It  is  a  misreading  of what  actually  transpired  to



            suggest that Judge Lisi was permitting Perry to purge himself



            of  contempt by giving him an opportunity to apologize and to



            agree  that  he  would   behave  more  appropriately  in  the



            courtroom.    Judge  Lisi  allowed  Perry  to  return to  the



            courtroom for  the  remaining  proceedings  because  she  was


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sensitive to Perry's right  (conditioned on good behavior) to



            be present at his trial proceedings.  The court's recognition



            of this right does  not inhibit the right to  punish behavior



            committed in open court that is so obvious an affront  to the



            dignity of the court.



                                        II-B.



                 Perry contends  that the  summary contempt  procedure of



            Rule 42(a) was unavailable to  the court because the  court's



            action in  delaying the  imposition of sentence  was evidence



            that immediate  punishment was  not essential.   If immediate



            punishment   is  not   necessary,  Perry  argues,   then  the



            procedures outlined in  Rule 42(b) -- in  counsel's words, "a



            full fledged  hearing," with concomitant notice  and time for



            the  preparation of  a  defense --  is  required by  the  Due



            Process Clause and the Sixth Amendment.



                 Both the  Supreme Court  and this court  previously have



            rejected  such an argument.  See Sacher v. United States, 343
                                         ___ ______    _____________



            U.S.  1, 11 (1952); Gordon  v. United States,  592 F.2d 1215,
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            1218 (1st Cir. 1979);  see also United States v.  Vachon, 869
                                   ________ _____________     ______



            F.2d  653, 660 (1st  Cir. 1989) (explaining  that, in Sacher,
                                                                  ______



            the  Court  "said  that  'summary'  does  not  need  to  mean



            'immediate'").    Perry's  suggestion  that these  cases  are



            distinguishable  is  not  persuasive.    Perry's contemptuous



            conduct  occurred  in the  midst of  the  final phase  of his



            trial.  The court did not  forgo its authority to use summary


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process by awaiting the completion of this final phase before



            imposing sentence  for the  direct contempt that  occurred in



            the court's presence.


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III.



                 Perry  urinated on the carpet in open court and in plain



            view of  Judge Lisi.  The  court afforded Perry the  right of



            allocution.  He  declined.  In  then concluding that  Perry's



            conduct was  "in deliberate and willful  defiance," the judge



            necessarily rejected  any suggestion  that he had  no control



            over nature's call.



                 We need  go no further.  We review a Rule 42(a) order of



            criminal contempt  for abuse of discretion, and we review the



            court's  underlying factual  findings for  clear error.   See
                                                                      ___



            Winter,  70 F.3d  at 659.   We  see neither  here.   As Chief
            ______



            Justice Burger wrote:



                      Where  a court acts immediately to punish

                      for contemptuous  conduct committed under

                      its eye,  the  contemnor is  present,  of

                      course.   There is  then  no question  of

                      identity,  nor  is  hearing in  a  formal

                      sense  necessary  because  the judge  has

                      personally seen the offense and is acting

                      on the basis of his own observations.



            Groppi v. Leslie, 404 U.S. 496, 504 (1972).  So it is here.
            ______    ______



                 The order of  criminal contempt  is summarily  affirmed.
                 ________________________________________________________



            See Loc. R. 27.1.
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