United States District Court, W.D. Pennsylvania
before the Court are the four defendants' motions to
classify the criminal contempt charges filed against them in
these cases as misdemeanor offenses rather than as felony
offenses. See generally Motion to Strike and
Statement of Defendant's Position as to the
Classification of Criminal Contempt ("Def. Battle's
Mot."), Crim. Action No. 17-67, ECF No. 19; Motion to
Reduce Charges ("Def. Brooks' Mot."), Crim.
Action No. 17-69, ECF No. 20; Motion to Classify Contempt as
Class A Misdemeanor ("Def. Morgan's Mot."),
Crim. Action No. 17-74, ECF No. 19; Defendant Bobby
Rodgers' Motion to Classify Contempt as a Misdemeanor
("Def. Rodgers' Mot."), Crim. Action No. 17-77,
ECF No. 19. Upon careful consideration of the parties'
submissions,  the Court concludes that it must deny the
defendants' motions and classify their criminal contempt
charges under 18 U.S.C. § 401(3) as felony offenses
subject to, among other penalties, the penalty of
incarceration with no maximum limitation.
alleged in their indictments, the defendants, who were
already incarcerated due to their convictions in other
criminal matters, were compelled through a written order by
this Court to testify "at the trial of Anthony Pryor and
Lance Yarbough, for a charge of conspiracy to possess with
intent to distribute and to distribute heroin, [in Criminal]
Case Number 14-270 (W.D. Pa.)." Indictment, Crim. Action
No. 17-67, ECF No. 1. Despite the Court's orders
"compelling [the defendants] to testify pursuant to
[their] grant[s] of immunity" by the government, see
id., the defendants, when called by the government to provide
testimony on January 17, 2017, at the above referenced trial,
refused to testify. Upon the defendants' refusals to
testify, the Court engaged in a colloquy with each defendant,
during which the Court explained to each defendant that they
did not have a legal basis to refuse to testify and that if
they elected to not testify, they could be held in criminal
contempt. See, e.g., Jan. 17, 2017 Trial Transcript
("Tr.") at 51. Additionally, the Court informed
each defendant that, if they were held in criminal contempt
by the Court, they faced an additional six-month prison
sentence. The Court also cautioned each defendant that the
government could decide to indict them for their refusal to
testify, and that, if the government did obtain indictments,
the defendants could be "sentenced to life imprisonment
without the possibility of ever being released."
Id. at 52:9-10. Notwithstanding the Court's
warnings, the defendants maintained their refusal to testify.
with refusing to testify, defendant Battle requested that the
Court "issue a show cause order and to schedule a
contempt hearing under [Federal] Rule [of Criminal Procedure]
42." Id. at 53:10-11. In opposition, the
government indicated that it intended to seek indictments
against each defendant because it was the government's
position that the defendants' conduct "[wa]s serious
and deserving of an indictment and a sentence in excess of
six months in jail." Id. at 54:13-14. The Court
agreed with the government, concluding that it was
appropriate for "the [G]overnment [to] have the option
of assessing whether it wants to proceed by way of an
indictment." Id., at 54:17-55:3. Accordingly, to
"give the government adequate opportunity to assess
whether it want[ed] to proceed by way of indictment, "
Id. at 55:4-10, the Court scheduled a status
conference for a later date for each defendant, Id.
at 57. However, the Court noted that the defendants
"would be cited for contempt by the Court and sentenced
appropriately . . . [i]f the government decide[d] not to
proceed" with indictments. Id. at 55:4-10.
March 14, 2017, the government obtained indictments against
each defendant, charging them with criminal contempt in
violation of 18 U.S.C. § 401(3) for "willfully and
knowingly disobey[ing] and resist[ing] the lawful order and
command of a Court of the United States." Indictment,
Crim. Action No. 17-67, ECF No. 1. The indictments also state
that the criminal contempt charges subject the defendants to
"[a]n unlimited period of incarceration[, ] ... [a]n
unlimited period of supervised release[, ] . . . [and a]n
unlimited amount in fines." Indictment Mem., Crim.
Action No. 17-67, ECF No. 2. Thereafter, the Court conducted
status conferences to determine how the parties wished to
proceed in light of the indictments, and at these status
conferences, the Court granted the defendants' oral
requests for leave to file motions requesting that the Court
classify their criminal contempt charges as misdemeanor
offenses. The parties have now completed their briefing of
the defendants' motions, and the Court will therefore now
address whether the criminal contempt offenses as charged in
the indictments are properly classified as misdemeanor or
401(3) authorizes courts "to punish by fine or
imprisonment, or both, at its discretion, such contempt of
its authority, and none other, as [d]isobedience or
resistance to its lawful writ, process, order, rule, decree,
or command." Section 401 therefore does not impose a
maximum possible penalty for its violation, and it does not
designate whether a violation constitutes a felony or
misdemeanor. See generally 18 U.S.C. § 401.
However, the language of the statute explicitly grants courts
broad discretion in their determination of the appropriate
punishment to impose. See id.; see also In re
Solomon, 465 F.3d 114, 121 (3d Cir. 2006) ("Indeed,
there are no statutory limits on the court's discretion
to impose penalties for criminal contempt.").
Nonetheless, the defendants contend for various reasons that
the Court should classify their criminal contempt charges as
alleged in the indictments as misdemeanor offenses. The Court
will address each of the defendants' arguments in turn.
The Court's Jurisdiction to Resolve the Pending
outset, the government asserts that it "belie [ves] that
the Court is without authority to decide this issue at this
point" because the Court's decision on this issue
"would have no impact on the admission of evidence or
any of the defendants' substantive rights, " and
therefore, the Court's decision on "whether these
charges are felony or misdemeanor offenses would be"
nothing more than an advisory opinion, which the Court is
precluded from issuing by Article III of the United States
Constitution. Gov't's Opp'n at 2. Accordingly,
the government contends that "the Court should deny the
defendants' motions because it lacks jurisdiction to
decide [them]." Id. The Court disagrees.
the Court appreciates that it lacks jurisdiction to render
advisory opinions, see Rhone-Poulenc Surfacants and
Specialties. L.P. v. Comm'r, 249 F.3d 175, 181-82
(3d Cir. 2001) (noting that Article III, Section II of the
Constitution "stands as a direct prohibition on the
issuance of advisory opinions" (quoting Travelers
Ins. Co. v. Obusek, 72 F.3d 1148, 1153 (3d Cir. 1995))),
the Court does not consider addressing the issue of whether
the defendants' criminal contempt charges are misdemeanor
or felony offenses as equivalent to rendering "an
opinion advising what the law would be on a hypothetical
state of facts, " PSA, LLC v. Gonzales, 271
F.App'x 218, 220 (3d Cir. 2008) rquoting Step-Saver
Data Sys. Inc. v. Wyse Tech., 912 F.2d 643, 649 (3d Cir.
1990)). Quite to the contrary, this legal issue presents a
"controversy that is real and not hypothetical. . .
[and] that affects [the defendants] in a concrete manner so
as to provide the factual predicate for reasoned
adjudication." Travelers Ins. Co., 72 F.3d at
1154 (quoting Armstrong World Indus., Inc. v. Adams,
961 F.2d 405, 410 (3d Cir. 1992)). And, as defendant Morgan
notes, "the [g]overnment has sought and obtained . . .
indictment[s] against [each of] the defendants], " Def.
Morgan's Reply at 1, for their alleged contemptuous
conduct, which statutorily subjects them to an unspecified
term of punishment, see 18 U.S.C. § 401. Consequently,
there can be no greater controversy than the one presented
here, which among other consequences, directly impacts the
period of time the defendants' liberties may be
involuntarily denied due to the criminal charges brought
against them by their government.
to the government's position that the Court's
decision on this issue would not have any impact on the
defendants' substantive rights, see Gov't's
Opp'n at 2, the defendants' due process rights are
implicated by the Court's decision. Due process embodies
the "[e]lementary notions of fairness enshrined in our
constitutional jurisprudence[, which] dictate that a person
receive fair notice not only of the conduct that will subject
him to punishment, but also of the severity of the penalty
that.. . may [be] impose[d]." BMW of N. Am., Inc. v.
Gore, 517 U.S. 559. 574 (1996V see also Unkford v.
Idaho, 500 U.S. 110, 120-22 (1991) (concluding that due
process was violated because the defendant and his counsel
did not have adequate notice "that the trial judge was
contemplating a death sentence"); United States v.
Spiers, 82 F.3d 1274, 1282 (3d Cir. 1996) (noting that
due process is not violated "[a]s long as the defendant
has adequate notice [of the punishment that] may be
imposed"). Furthermore, the Court's conclusion that
it has jurisdiction to adjudicate the pending motions is
supported by the case law cited by both the defendants and
the government addressing the issue of whether the criminal
contempt the defendants are charged with committing should be
classified as a misdemeanor or a felony. See Gov't's
Opp'n at 3-4 (discussing the defendants' reliance on
cases from the First, Third, Ninth, and Eleventh Circuits
that have addressed this issue). Accordingly, the Court
concludes that it has jurisdiction to address the pending
The Applicability of Federal Rule of Criminal Procedure 42(b)
and 18 U.S.C. § 3691
Summary Disposition Under Rule 42(b)
relevant part, Federal Rule of Criminal Procedure 42 provides
that "[a] 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." Fed. R. Crim. P. 42(b) (emphasis added).
Defendants Battle and Brooks argue that the criminal contempt
offenses they are charged with committing should be
classified as misdemeanor offenses with a maximum sentence of
incarceration of six months because their refusal to testify
in the presence of the Court falls within the purview of the
Court's summary disposition authority under Rule 42(b).
See, e.g., Def. Brooks' Mot.; Def. Battle's
Mot. at 2-3. In response, the government contends that
"Rule 42 provides no guidance as to whether, under the
circumstances of this case, the offenses are felony or
misdemeanor offenses" because Rule 42 does not require
"the Court [to] summarily punish contemptuous conduct
that occurs in [the Court's] presence." Gov't
Opp'n at 6.
on Rule 42(b)'s plain language, summary disposition is an
available tool of punishment for contemptuous conduct made in
a court's presence, if the court, in its discretion,
concludes that summary disposition is appropriate under the
circumstances. See Harris v. United States, 382 U.S.
162, 167 (1965) (noting that summary disposition was
envisioned for situations "where instant action is
necessary to protect the judicial institution itself). And
summary punishment under Rule 42(b) carries a maximum term of
punishment of six months. See Codispoli v.
Pennsylvania, 418 U.S. 506, 513-14 (1974)
("Undoubtedly, where the necessity of circumstances
warrants, a contemnor may be summarily tried for an act of
contempt during trial and punished by a term of no more than
six months."). However, a court is not mandated to
summarily punish contemptuous conduct that occurs in its
presence, as Rule 42 also permits the prosecution of an
individual who commits criminal contempt. See Fed. R. Crim.
P. 42(a) (outlining procedural safeguards for the prosecution
of criminal contempt); see also Harris, 382 U.S. at
166-67 (discussing the procedural safeguards of Rule 42(a)
and providing factual scenarios when a trial pursuant to Rule
42(a) would be appropriate).
the defendants' alleged contemptuous conduct in this case
occurred in the Court's presence and upon a finding of
guilt the Court could have summarily punished them, see
United States v. Wilson, 421 U.S. 309, 314-19 (1975)
(concluding that the trial court's summary punishment of
two witnesses who refused to testify after both witnesses
received immunity was appropriate because their refusal to
testify were "intentional obstructions of court
proceedings that literally disrupted the progress of the
trial and hence the orderly administration of justice"),
the Court, as the government notes, see Gov't Opp'n
at 6, did not summarily act pursuant to Rule 42(b), but
rather provided the government the opportunity to seek
indictments against the defendants as permitted by Rule
42(a), see supra Part I, at 2. Thus, even though the
defendants' contemptuous conduct could have been
summarily punished under Rule 42(b), which would have
rendered their contemptuous conduct as misdemeanor offenses
given the six-month maximum sentence for summary
dispositions, the Court's decision to allow the
prosecution of the defendants' contemptuous conduct under
Rule 42(a), and the fact that the government obtained
indictments against the defendants, removed the
defendants' contemptuous conduct from the purview of Rule
42(b). Therefore, summary disposition under Rule 42(b),
coupled with its six-month maximum sentence, have no bearing
on the Court's decision on whether to classify the
defendants' contemptuous conduct as charged in the
indictments as misdemeanor or felony offenses.
Right to a Jury Trial Pursuant to 18 ...