United States of America v.  Lawrence Murphy

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 02-4005 
LAWRENCE MURPHY,
Defendant-Appellant. 
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 02-4006 
LAWRENCE MURPHY,
Defendant-Appellant. 
Appeals from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
James C. Fox, Senior District Judge.
(CR-01-87-FO)
Argued: February 27, 2003
Decided: April 16, 2003
Before WILKINS, Chief Judge, MOTZ, Circuit Judge,
and C. Arlen BEAM, Senior Circuit Judge of the
United States Court of Appeals for the Eighth Circuit,
sitting by designation.
Vacated by published opinion. Chief Judge Wilkins wrote the opin-
ion, in which Judge Motz and Senior Judge Beam joined.

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COUNSEL
ARGUED: Jeanette Doran Brooks, Research and Writing Attorney,
Raleigh, North Carolina, for Appellant. Michael Gordon James,
Assistant United States Attorney, Raleigh, North Carolina, for Appel-
lee. ON BRIEF: Thomas P. McNamara, Federal Public Defender,
Stephen C. Gordon, Assistant Federal Public Defender, Raleigh,
North Carolina, for Appellant. Frank D. Whitney, United States
Attorney, Anne M. Hayes, Assistant United States Attorney, Raleigh,
North Carolina, for Appellee.
OPINION
WILKINS, Chief Judge:
Lawrence Murphy appeals a district court order adjudging him
guilty of three counts of criminal contempt. Murphy argues that his
actions constituted only a single contempt offense. We vacate two of
the contempt convictions and sentences.
I.
Murphy pleaded guilty to one count of distributing cocaine base
("Count Nine") and one count of using a firearm during a drug traf-
ficking crime ("Count Ten"). At Murphy’s sentencing hearing, the
district court sentenced him to 130 months imprisonment—seven
months less than the guidelines maximum—on Count Nine and a con-
secutive term of 60 months on Count Ten. At the conclusion of the
hearing, the following exchange occurred:
MURPHY: You should have just gave me the other damn
seven—the other seven months is what you should have
did, stinky mother fucker.
THE COURT: Mr. Benya—Mr. Murphy, you are summarily
found in contempt of this court—
MURPHY: Just give me the other seven months.
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THE COURT: You’re summarily found to be in contempt
of this court. I sentence you to six months to be served
consecutive to any other sentence imposed.
MURPHY: You should have just gave me the other seven
months is what you should have done.
THE COURT: Mr. Murphy, I find you again in contempt of
this court and you’re now summarily found in contempt
for a second time and you’ll serve an additional six
months consecutive to any sentence—
MURPHY: What about that? What about that? Serve that,
mother fucker. . . .
THE COURT: Mr. Stone, just a minute. Mr. Murphy—
MURPHY: Bye.
THE COURT: You just gave the finger to the court. That
will be a third contempt of court and that’s six—
MURPHY: Add another one to it.
THE COURT: —six more months at the end of your sen-
tence. Well, that’s a quick year and a half.
J.A. 57-58. In a written order, the district court noted that Murphy ini-
tiated the exchange, shouting in a loud and agitated voice even as
marshals attempted to remove him from the courtroom. The court
found that Murphy’s conduct constituted three separate instances of
contempt, and sentenced him to three separate six-month terms to be
served consecutively to the sentence he was already serving.
II.
The Supreme Court has long recognized the authority of federal
courts "to impose silence, respect, and decorum, in their presence."
Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 227 (1821). Without this
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authority, "judicial tribunals would be at the mercy of the disorderly
and violent, who respect neither the laws enacted for the vindication
of public and private rights, nor the officers charged with the duty of
administering them." In re Terry, 128 U.S. 289, 313 (1888). One tool
courts use to maintain order is their power to summarily convict for
criminal contempt. This authority derives from 18 U.S.C.A. § 401,
which provides in relevant part:
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. . . .
18 U.S.C.A. § 401 (West 2000); see also Fed. R. Crim. P. 42(b)
("Notwithstanding any other provision of these rules, the court . . .
may summarily punish a person who commits criminal contempt in
its presence if the judge saw or heard the contemptuous conduct and
so certifies . . . .").1
Murphy does not dispute that his conduct rose to the level of crimi-
nal contempt of court. Rather, he argues that the district court erred
in convicting him of, and sentencing him for, three separate contempt
offenses. This argument requires us to determine "[w]hat Congress
has made the allowable unit of prosecution" under 18 U.S.C.A. § 401.
Bell v. United States, 349 U.S. 81, 81 (1955) (internal quotation
marks omitted). We review this question of statutory interpretation de
novo. See Holland v. Pardee Coal Co., 269 F.3d 424, 430 (4th Cir.
2001), cert. denied, 123 S. Ct. 986 (2003).
To determine whether Murphy’s actions justified multiple convic-
tions, we must examine the statutory language.2 See United States v.
1Rule 42 has been amended since Murphy’s sentencing, but the pre-
amendment rule contained language equivalent in substance to the
quoted language.
2Legislative history may also reveal congressional intent. See United
States v. Johnson, 612 F.2d 843, 845 (4th Cir. 1979). Here, however, no
legislative history addresses the issue before us.
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Dunford, 148 F.3d 385, 389 (4th Cir. 1998). The key term here, "mis-
behavior," provides little guidance. Murphy’s outburst—which took
up less than a full page of the transcript and was interrupted only by
the judge’s pronouncements of contempt—could reasonably be
described either as a single instance of misbehavior or as multiple
instances.3 See United States v. Seale, 461 F.2d 345, 354 (7th Cir.
1972) ("There is hardly anything inevitable about whether disruptive
activity occurring during the course of a single trial is viewed as a
continuous course of conduct or as a series of isolated instances
. . . ."). We therefore conclude that § 401 is ambiguous with regard
to the allowable unit of prosecution and that the rule of lenity dictates
that the ambiguity be resolved in Murphy’s favor. See Bell, 349 U.S.
at 83-84; Dunford, 148 F.3d at 390. Thus, we vacate two of the three
contempt convictions and sentences. See Dunford, 148 F.3d at 396.
In reaching this result, we are sensitive to the long-recognized "po-
tential for abuse in exercising the summary power to imprison for
contempt" and the need to "avoid arbitrary or oppressive conclusions"
in the exercise of this authority. Bloom v. Illinois, 391 U.S. 194, 202
(1968) (internal quotation marks omitted); cf. Yates v. United States,
355 U.S. 66, 73-74 (1957) (holding that defendant’s refusal to answer
several questions on the same subject constituted a single contempt
offense).
We also note that our result is consistent with the results reached
by the majority of state courts addressing similar facts. See Williams
v. State, 599 So. 2d 255, 256 (Fla. Dist. Ct. App. 1992) (holding that
facts similar to present case constituted only one contempt offense);
State v. Lingwall, 637 N.W.2d 311, 314-15 (Minn. Ct. App. 2001)
(same); cf. State v. Bullock, 576 So. 2d 453, 458 (La. 1991) (holding
on similar facts that judge should have imposed concurrent, rather
than consecutive, sentences, although judge properly found multiple
3We note that if the statute provided for punishment of each disrespect-
ful action or statement in a single colloquy, a defendant could conceiv-
ably amass decades of prison time in a matter of minutes as the result of
a prolonged diatribe. Of course, a district court need not resort to multi-
ple contempt convictions to end such contemptuous behavior. Under
appropriate circumstances, the court may instead remove a litigant from
the courtroom. See Illinois v. Allen, 397 U.S. 337, 343 (1970).
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contempt offenses); Johnson v. State, 642 A.2d 259, 263-64 (Md. Ct.
Spec. App. 1994) (holding that series of insults interrupted only by
judge’s pronouncements that defendant was guilty of contempt consti-
tuted only one contempt offense because judge arguably provoked
defendant instead of attempting to defuse situation); State v. Harker,
600 N.W.2d 488, 494-95 (Neb. Ct. App. 1999) (holding unconstitu-
tional a total sentence exceeding six months for multiple summary
contempt convictions on facts similar to present case); Common-
wealth v. Williams, 753 A.2d 856, 864-65 (Pa. Super. Ct. 2000) (hold-
ing that verbal insult and contemporaneous hand gesture constituted
only one contempt offense). But see Jackson v. Bailey, 605 A.2d
1350, 1356-57 (Conn. 1992) (upholding multiple convictions and
consecutive sentences on facts similar to present case). Although
these decisions do not interpret the federal contempt statute, we nev-
ertheless find them instructive.
III.
In sum, because we conclude that Murphy’s actions constituted
only a single offense under 18 U.S.C.A. § 401, we vacate two of Mur-
phy’s three contempt convictions and sentences.
VACATED
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