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.

____________________

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
_______

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

________

____________________

June 25, 1997

____________________

SELYA,
SELYA,

Circuit Judge.
Circuit Judge
______________

Defendant

George

Perry

has

appealed an

See 18 U.S.C.

order finding

him guilty of

criminal contempt.

401; Fed. R. Crim. P. 42(a).1

1

Perry, already

___

incarcerated, was

sentenced to

served in isolated confinement.

both in the

90 days' imprisonment

Perry unsuccessfully sought,

district court and in

order pending his

appeal.

to be

this court, to stay

Instead,

we issued an

this

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

imprisonment,
contempt

of

punish

at

its

its

by

fine

or

discretion,

authority,

such

and

none

other, as -(1)
its

Misbehavior

presence or

of

any person

so near

thereto

in

as to

obstruct the administration of justice;

(2)

Misbehavior

of

any

of

its

officers in their official transactions;

(3)
its

Disobedience

lawful

or resistance

writ, process,

to

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
court.
recite the

The

actual presence of

order

of

contempt

facts and shall

shall

be signed by

the judge and entered of record.

-2-

the

Lisi in a multiple defendant, multiple count case.

charged,

inter alia,

1962(c).

Some of

with racketeering.

Perry was

See 18
___

U.S.C.

the underlying criminal activities alleged

included murder, 18 U.S.C.

1959(a)(1), conspiracy to commit

the murders

of several individuals, 18

carjacking,

18 U.S.C.

U.S.C.

1959(a)(5),

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,

closing

argument.

government's

After

summation, at

passed a note to

argument

roughly

two

about 12:15 pm,

hours

and

of

the

Perry's counsel

Judge Lisi informing her that

to use the restroom.

closing

the government began its

Perry wished

Judge Lisi interrupted the government's

called

both counsel

to

the

bench.

Government counsel informed her that he had about five to ten

additional

counsel

minutes of

to tell Perry

five to ten minutes.

resumed

argument.

Judge

that proceedings

Counsel did so.

Lisi told

would end

As government

Perry's

in about

counsel

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.

the courtroom

and informed by

was contemptuous.

Judge Lisi

earlier

(not

outburst

Perry was then returned to

Judge Lisi that

also related

otherwise

his behavior

that, after

described)

during

an

jury

-3-

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

stated

allowed to address

that during the ten

the note to the

the court.

minutes prior to

his passing of

bench, Perry had twice informed him

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

manner.

Counsel passed the

third importuning.

and

When

informed Perry that a

government had concluded

to

note to the

that he

urgent

bench upon Perry's

counsel returned from

recess would not

the sidebar

occur until the

its closing argument,

counsel: "There's nothing I can do."

He

Perry stated

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

virtually

impossible

for

the circumstances, it was now

Perry

to

get

Government counsel opposed the request.

moved

for mistrials

severance,

well,

adding that the

draw batons and put

sought to

as

and,

fair

trial.

Perry's codefendants

alternatively,

jury may have

sought

seen the marshals

handcuffs on all the defendants

maintain security while others

the courtroom.

as they

removed Perry from

Judge Lisi denied the motions for mistrial or

severance, ordered

Perry removed from the

-4-

courtroom for the

remainder of the government's

summation, and stated that she

would deal with him after the noon recess.

When the

take

jurors returned, the court

no adverse

actions of

absence

inference

the marshals in

from

concluded

his

minutes.

Perry

the

from Perry's

watched

conduct, from

securing Perry, or

courtroom.

argument,

instructed them to

which

Government

took

this portion

from Perry's

counsel

approximately

of the

the

then

five

government's

summation

courthouse

telephone

on a

closed

circuit television

cellblock.

He

also

line to his counsel.

had

system from

available

the

direct

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

Perry and his counsel

return

to

an opportunity

to permit

to advise her whether Perry

wished to

the courtroom

this as

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

courtroom as

outrageous

that all the

counsel objected to Perry's

prejudicial to his

conduct and

client in light

the government's

defendants had acted

presence in the

of Perry's

prosecuting theory

in concert regarding

the

-5-

charged crimes, Judge Lisi responded that

Perry "has a right

to

be present during the

proceedings so long

as he behaves

himself."

Defense

which

counsel then

their

closing

arguments,

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

government's

jury

began

rebuttal and

occurred

transpired with

incident.

April

7,

on

the court's

Monday,

Perry in

April

These

the courtroom and

The jury began

continued

7.

instructions to

on

the

proceedings

without further

deliberation on the

deliberating

The

April 8

afternoon of

and

9,

and

rendered verdicts on April 10.2

2

On

April 10,

Judge Lisi

held a

hearing at

following colloquy occurred:

THE COURT:
up.

Mr. Perry, would you stand

which the

Mr. Perry,
days

ago,

on April 3rd, just a few

you

behaved

toward this Court.

with

contempt

I need not say again

what that behavior consisted of.

time, I
in

told you that your

contempt

deliberate

and

of

this
willful

order that you wait

the

Government

At

the

behavior was

Court

and

in

defiance of

my

a few moments

completed

its

until
closing

arguments.

____________________

2Some of
2

the defendants were

found guilty on

all counts

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
using

a firearm

violence.
of

other individuals, carjacking, and

during

and

in

relation

to

two counts of
a

crime

of

He was acquitted on a charge related to the murder

Temujin Vandergroen.

None of the defendants has yet been

sentenced.

-6-

At
you

are

Court.
3rd.

this time, I'm advising you that

in

criminal contempt

this

I think I told you that on April

I permitted

you promised
did

of

behave

behavior

to behave yourself
yourself.

was

despicable that
authority

you to return, because

so

However,

outrageous

in order to

and dignity

and you

and

your
so

restore the

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:

Counsel for

raise

Perry was

No.

permitted to

arguments in Perry's behalf.

address

In accordance with Rule

certificate recited the facts

confirmed both

that the

and

Judge Lisi then issued a

"certificate of contempt and order."

42(a), the

the court

judge saw the

outlined above and

conduct constituting

the contempt and that it was committed in the actual presence

of

the

court.

confinement.3
3

She sentenced

On

Perry

to 90

appeal, Perry raises

days' isolated

two issues (both

of

which were preserved below).

II-A.

Perry

contends

contempt on April 10

that

he

could not

be

once he had accepted and

sentenced

for

complied with

____________________

3According
3

to

the

government,

some of

the

crimes

of

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
challenged the

effect.

In all events,

isolated confinement aspect

contempt order.

-7-

Perry has
of the

not

criminal

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

3.

This

contention proceeds

from Perry's

Judge Lisi's permitting Perry to

the remainder

jury

matter.

return to the courtroom for

of the trial proceedings

charge) was

purge of

assumption that

his

(defense closing and

contempt and

ended

the

Nothing in the record, however, indicates that Judge

Lisi shared

this understanding that the

courtroom for the remaining

summation

banishment from the

five minutes of the government's

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,

associated

"purge"

with civil,

is

term

not criminal,

more

appropriately

contempt.4

Although

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

incentive

a determinate sentence of

of earlier

release

if the

incarceration with an

contemnor decides

to

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

_________ _____________

____________________

4The term "purge" is not uttered by the court

4
of

the record before us.

Counsel suggests

in any part

that Judge Lisi

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

on

April 3.

10

He

proceeding but

referred to his understanding

Judge Lisi did not

respond.

at the April
We do

not deem

the matter worth pursuing; even if the court did use the word
"purge," it was not
court

thereby

sanction.

reasonable for Perry to assume

intended

to

foreclose

that the

criminal contempt

-8-

Winter, 70 F.3d
______

116 S.

Ct. 1366

sanction

prior

655, 660-65 (1st

(1996) -- the

is coercive,

court order.

paradigmatic civil

designed to

"[I]mprisonment

ordered where the defendant has

act required by the

Cir. 1995), cert. denied,

_____________

contempt

exact compliance

for civil

with a

contempt is

refused to do an affirmative

provisions of an order which,

either in

form or substance,

was mandatory in its character."

v. Bucks Stove & Range Co.,

________________________

221 U.S. 418, 442

Gompers
_______

(1911).

contemnor is confined indefinitely with release

The

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

contempt

involves

prohibited

effect.

shorten

neither

act,

permitted

the

the

prior

resulting

nor

possible.

conduct

sanction

of

has

"When

an

no

isolated,

coercive

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

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

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

courtroom.

courtroom for

he

would

Judge

the

Lisi

behave

more

allowed

remaining

appropriately

Perry

proceedings

-9-

to

in

the

return to

the

because

she

was

sensitive to Perry's right

(conditioned on good behavior) to

be present at his trial proceedings.

of this right does

The court's recognition

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

Rule 42(a) was unavailable to

action in

delaying the

that immediate

punishment

is

procedures outlined in

procedure of

the court because the

imposition of sentence

punishment was

not

summary contempt

not essential.

necessary,

Perry

Rule 42(b) -- in

argues,

court's

was evidence

If immediate

then

the

counsel's words, "a

full fledged

the

hearing," with concomitant notice

preparation of

defense --

is

and time for

required by

the

Due

Process Clause and the Sixth Amendment.

Both the

rejected

U.S.

Supreme Court

such an argument.

1, 11 (1952); Gordon
______

1218 (1st Cir. 1979);

F.2d

the

653, 660 (1st

Court

"said

'immediate'").

distinguishable

conduct

occurred

previously have

See Sacher v. United States, 343

___ ______
_____________

v. United States,
_____________

592 F.2d 1215,

see also United States v.

________ _____________

Cir. 1989) (explaining

that

Perry's

is

and this court

'summary'

does

suggestion

not

persuasive.

in the

midst of

not

Vachon, 869
______

that, in Sacher,
______

need

that these

to

mean

cases

are

Perry's contemptuous

the

final phase

of his

trial.

The court did not

forgo its authority to use summary

-10-

process by awaiting the completion of this final phase before

imposing sentence

for the

the court's presence.

direct contempt that

occurred in

-11-

III.

Perry

view of

urinated on the carpet in open court and in plain

Judge Lisi.

The

court afforded Perry the

allocution.

He

declined.

conduct was

"in deliberate and willful

necessarily rejected

In

right of

then concluding that

any suggestion

Perry's

defiance," the judge

that he had

no control

over nature's call.

We need

go no further.

criminal contempt

We review a Rule 42(a) order of

for abuse of discretion, and we review the

court's

underlying factual

Winter,
______

70 F.3d

at 659.

findings for

We

see neither

clear error.

here.

See
___

As Chief

Justice Burger wrote:

Where

a court acts immediately to punish

for contemptuous

conduct committed under

its eye,

the

course.

There is

identity,
sense

contemnor is

nor

necessary

is

then

present,

of

no question

of

hearing in
because

formal

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.

___

-12-