USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 97-1480
UNITED STATES,
Appellee,
v.
GEORGE PERRY, A/K/A KING ANIMAL,
Defendant, Appellant.
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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. ________
____________________
June 25, 1997
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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
____________________
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.
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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 ________________________
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, ______ _____________
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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