U.S. v. Linney
Decision Date | 20 January 1998 |
Docket Number | No. 96-4916,96-4916 |
Citation | 134 F.3d 274 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Larry R. LINNEY, Defendant-Appellant. |
Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: Milton Gordon Widenhouse, Jr., Assistant Federal Public Defender, Raleigh, NC, for Appellant. Robert James Conrad, Jr., Assistant United States Attorney, Charlotte, NC, for Appellee. ON BRIEF: William Arthur Webb, Federal Public Defender, Raleigh, NC, for Appellant. Mark T. Calloway, United States Attorney, Charlotte, NC, for Appellee.
Before MURNAGHAN and MOTZ, Circuit Judges, and BUTZNER, Senior Circuit Judge.
Affirmed as modified by published opinion. Judge DIANA GRIBBON MOTZ wrote the opinion, in which Judge MURNAGHAN and Senior Judge BUTZNER joined.
Larry R. Linney appeals his conviction for criminal contempt in violation of 18 U.S.C.A. §§ 401(1) and 401(3) (West 1966) and his sentence--a fine of $4,950 or, in the alternative, 300 hours of community service. Linney challenges the sufficiency of the evidence and the adequacy of the notice of the contempt charge. He also maintains that the district court erred in denying his request for a jury trial and in imposing his sentence. We affirm in all respects, except to correct Linney's sentence to bring it in compliance with the law.
In May 1994, Larry R. Linney was appointed counsel for Stevie Twitty, who had been charged with conspiracy to possess with intent to distribute cocaine and cocaine base. Six months later, Linney was elected to the North Carolina General Assembly.
The district court informed Linney on April 7, 1995, that Twitty's case would be called for trial during the term of court beginning May 1, 1995. Although Linney had represented Twitty for a year prior to the scheduled trial date, he had devoted little effort to Twitty's case. For example, Linney had not attempted to conduct any discovery until shortly before the trial date and had filed only a single motion on Twitty's behalf.
The district court set jury selection in Twitty's case for the morning of Monday, May 8, 1995, and mailed Linney a notice so stating. On the Friday morning before that Monday, Linney moved for a continuance and for leave to withdraw from representation of Twitty. Through his law clerk, the district judge informed Linney that both motions would be denied, but that Linney could present any objections to their denial at jury selection on May 8.
At 10:00 a.m. on May 8, the district court called Twitty's case for jury selection. Linney told the court that he was not prepared for trial and then, for the first time, asserted additional arguments as to why the court should grant his motion to withdraw. For example, Linney maintained that his duties as a member of the North Carolina legislature demanded his attention. He also claimed a conflict of interest prevented him from representing Twitty, noting that budget decisions he made as a state legislator affected the State Bureau of Investigation and agents from the Bureau could be called as witnesses in the Twitty case. Linney additionally contended that he had lost faith in the criminal justice system because of the local district attorney's investigation of him on what he deemed "trumped up" charges. The district court denied Linney's motions, informing Linney: "I expect you to be present to participate in the selection of Jury [sic] in the [Twitty] case."
The court then ordered a ten-minute recess. Jury selection in the Twitty case was scheduled to take place at approximately noon, after the jury had been chosen for another case. During the recess, Linney left the courtroom. As he did so, a United States Deputy Marshal heard him say, "You (or Y'all) will have to come and get me." The marshal subsequently reported this to the district judge.
As scheduled, the court called the Twitty case for jury selection at noon. Because Linney was not present, the court continued the case until 2:00 p.m. The court's deputy clerk left a voice mail message instructing Linney to appear at 2:00 p.m. When the court reconvened at 2:00 p.m. and Linney was still absent, the district court issued a warrant for Linney's arrest.
Meanwhile, Linney had taken a flight from Asheville to Raleigh. When he deplaned, police arrested Linney and detained him overnight in jail. The following day Linney returned to Asheville to appear with counsel before the district court.
In a summary contempt hearing, pursuant to Rule 42(a) of the Federal Rules of Criminal Procedure, the court considered arguments made by Linney and his attorney and asked Linney questions about his representation of Twitty. The district court found Linney in criminal contempt, ordered him to reimburse the government for costs and expenses due to the delay of the Twitty case, determined that Linney should not be compensated for his representation of Twitty, and disbarred Linney from practice before the United States District Court for the Western District of North Carolina.
Linney successfully appealed the district court's summary contempt order. On appeal, we held that Linney did not commit any acts of contempt within the presence of the court--a prerequisite to a Rule 42(a) summary finding of contempt. Accordingly, we vacated the contempt order and remanded for a hearing conducted pursuant to Rule 42(b). United States v. Linney, 91 F.3d 135 (4th Cir.1996) (unpublished); see Fed.R.Crim.P. 42(b).
On remand, another district judge, the Honorable Charles E. Simons, Jr., Senior United States District Judge for the District of South Carolina, was designated to preside over the Rule 42(b) contempt proceedings. Immediately before the contempt hearing, Linney requested a jury trial. Judge Simons denied this request stating that if he found Linney in contempt he would not impose a penalty of imprisonment and, therefore, a jury trial was not constitutionally required. Linney then objected to the sufficiency of the contempt notice; the judge rejected this argument, finding that the notice "fully complied" with Rule 42(b).
After considering the evidence, including the testimony of Linney and six other witnesses, Judge Simons found Linney guilty of criminal contempt. The judge then conducted a sentencing hearing and imposed a fine of $4,950, or, in the alternative, if this proved to be "uncollectible," ordered Linney to perform 300 hours of community service. Judge Simons also directed that Linney receive no compensation in connection with the representation of Twitty.
Initially, Linney maintains that the Government presented insufficient evidence to support his conviction of criminal contempt.
On May 8, 1995, in response to Linney's motion for a continuance and for withdrawal from representation of Twitty, the district court told Linney:
[Y]ou have an obligation, in my opinion as presiding Judge, to represent your client to the best of your ability....
That's what I'm directing you to do. And I will expect you to be present. The motions as you've stated them are denied. I expect you to be present to participate in the selection of Jury [sic] in the trial of the case in the representation of your client, Stevie Twitty.
[L]et's take about ten minutes so we won't have to break again when we get the jury in here.
Immediately after receiving these instructions, Linney left the courtroom and took a flight to Raleigh.
Judge Simons found that the Government produced sufficient evidence to prove that Linney's "conduct ... constitute[d] criminal contempt under 18 U.S.C. sections 401(1) and 401(3)." To support a conviction of criminal contempt for violation of a court order, the Government must prove beyond a reasonable doubt that the defendant willfully violated a decree that was clear and left no uncertainty in the minds of those that heard it. See Richmond Black Police Officers Ass'n v. City of Richmond, 548 F.2d 123, 129 (4th Cir.1977). Linney maintains that the district court's "statement of its expectations regarding him" was "not a definite, clear, and specific order." Brief of Appellant at 17. Linney contends that after hearing the above instructions he believed that jury selection for the Twitty case would begin the next day and so in leaving Asheville he did not willfully violate any court order. Cf. United States v. Marx, 553 F.2d 874, 876 (4th Cir.1977) ( ). He claims that he flew to Raleigh with the intention of returning for court proceedings the following day, May 9. Like Judge Simons, we find this argument unpersuasive.
The district court's order--"to be present to participate in the selection of Jury"--like the order we recently considered in United States v. McMahon, 104 F.3d 638, 643 (4th Cir.1997), and unlike that in many contempt cases, is "stunningly simple." Moreover, like the district judge in McMahon, Judge Simons made numerous well-reasoned factual findings supporting his judgment of contempt. Judge Simons noted that a deputy marshal testified that he heard Linney state as he left the courtroom on May 8, "You (or Y'all) will have to come and get me." The judge found that "all other counsel in the case understood the time at which they were to appear, and they did so" and that Linney received a notice from the clerk's office specifying that "jury selection and trial would begin on May 8, 1995." The judge pointed out that the prosecutor in the Twitty case "noted on the record" on May 8 (while Linney was present in the courtroom) that he would have enough evidence "for that day ." (Emphasis added). Additionally, Judge Simons noted that "the evidence of Linney's subsequent petulant behavior demonstrates the court's directive was understood by Linney, who knowingly chose to defy it." Finally, the judge specifically found that "in the overall context of the situation," the directive of the presiding judge in the...
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