United States v. Reed

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 95-10800

UNITED STATES OF AMERICA,

Plaintiff,

VERSUS

TERRY LYNN REED, also known
as Terry Miller, also known as TR,

Defendant,

and

JENNIFER BOLEN,

Appellant.

Appeal from the United States District Court
For the Northern District of Texas, Fort Worth Division
(4:95-CR-074-Y)
January 7, 1997

Before WISDOM, DAVIS, and DUHÉ, Circuit Judges.

DUHÉ, Circuit Judge:1

Assistant United States Attorney Jennifer Bolen appeals the

district court’s order sanctioning her for gross prosecutorial

misconduct. We affirm.

1
Pursuant to Local Rule 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in Local Rule 47.5.4.
 BACKGROUND

A grand jury indicted Defendant Terry Lynn Reed in two

separate cases for various drug offenses. Shortly thereafter, AUSA

Bolen entered into plea-bargain discussions with Joe Lobley, Reed’s

court-appointed counsel. These discussions soon fell apart, and

pursuant to Lobley’s request, the district court held a hearing on

June 15, 1995, to determine whether to sanction Bolen for her

actions in attempting to secure a plea bargain. Based on testimony

adduced at the hearing, the court found that Bolen had: (1)

discussed the proposed plea agreement with Reed in Lobley’s

absence; (2) instructed law enforcement agents to speak with Reed

outside Lobley’s presence; and (3) threatened Lobley that if he did

not proceed with the plea as she saw fit, she would inform the

court--as she later did, with no foundation other than inference

and assumption--that Reed wanted a new lawyer. The court concluded

that “the record paints a picture of a prosecutor determined to

obtain a guilty plea from the defendant, even if through improper

means,” and held that Bolen had violated Texas Disciplinary Rule of

Professional Conduct 4.02(a).2 Purporting to use its supervisory

powers, the court sanctioned Bolen in the amount of $500.00. Bolen

2
Rule 4.02(a) provides, in pertinent part:
[A] lawyer shall not communicate or cause or encourage another
to communicate about the subject of the representation with a
person . . . the lawyer knows to be represented by another
lawyer regarding that subject, unless the lawyer has the consent
of the other lawyer or is authorized by law to do so.
Tex. Disciplinary R. Prof. Conduct 4.02(a) (1996).

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unsuccessfully moved for rehearing, and she now appeals.

DISCUSSION

We review a court’s imposition of sanctions under its inherent

powers for abuse of discretion. Chambers v. NASCO, Inc., 501 U.S.

32, 55 (1991); McGuire v. Sigma Coatings, Inc., 48 F.3d 902, 906

(5th Cir. 1995). Because of their potency, “inherent powers must

be exercised with restraint and discretion,” and “the threshold

for the use of inherent power sanctions is high.” Chaves v. M/V

Medina Star, 47 F.3d 153, 156 (5th Cir. 1995) (internal quotations

omitted). Moreover, in order to impose sanctions against an

attorney under its inherent powers, a court must make a “specific”

finding that the attorney acted in bad faith. Dawson v. United

States, 68 F.3d 886, 895 (5th Cir. 1995); Elliott v. Tilton, 64

F.3d 213, 217 (5th Cir. 1995); Chaves, 47 F.3d at 156.

In sanctioning Bolen, however, the district court did not

mention its “inherent” powers; instead it relied upon its

“supervisory” powers, as described in McNabb v. United States, 318

U.S. 332, 340 (1943) and United States v. Hasting, 461 U.S. 499,

505 (1983). To the extent that the court relied upon its

supervisory powers, and not its inherent powers, it committed

error. Supervisory powers are generally used by courts to

establish standards of procedure and evidence, not to sanction

attorneys. See United States v. Williams, 504 U.S. 36, 45 (1992)

(“Hasting, and the cases that rely upon the principle it expresses,

deal strictly with the courts’ power to control their own

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procedures.” (emphasis omitted)). Inherent powers, on the other

hand, are often relied upon by courts as authority upon which to

sanction attorneys. See, e.g., Roadway Exp., Inc. v. Piper, 447

U.S. 752, 764 (1980) (“The most prominent of [a court’s inherent

powers] is the contempt sanction.”); Chambers, 501 U.S. at 43-46;

Dawson, 68 F.3d 886, 895 (5th Cir. 1995); Reed v. Iowa Marine and

Repair Corp., 16 F.3d 82, 84 (5th Cir. 1994). Despite this error,

we affirm the district court’s order levying sanctions against

Bolen. See Vojvodich v. Lopez, 48 F.3d 879, 886 (5th Cir.) (“We

may affirm a decision on grounds other than those upon which the

district court ruled . . . .”); cert. denied, 116 S.Ct. 169 (1995).

First, the district court made the required finding that Bolen

acted in bad faith. As noted previously, the court outlined three

specific factual findings in its sanctions order. As part of its

third finding, the court determined that Bolen, dissatisfied with

the advice that Lobley had been giving Reed regarding the plea

agreement, attempted to “steamroll” Lobley into having his client

enter a guilty plea. After Lobley did not show up in court to

assist Reed in entering a plea, Bolen proceeded to inform the

court, without justifiable basis, that Reed was unhappy with

Lobley’s representation and wanted new counsel. The district court

characterized this action as a “deliberate misrepresentation” on

Bolen’s part. The court was also appalled by the following

message--which it called “repugnant” and “abhorrent”--left by Bolen

on Lobley’s answering machine:

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 I suggest you reevaluate your actions and notify the Court,
because if you don’t, I will notify the Court that I think
your client wants a new lawyer because of your actions, and
we'll get him a new lawyer and we'll get the kid pled, and
then will [sic] cooperate and probably serve a whole lot less
time in jail. You ought to think about it.

Although the court did not explicitly state that it found Bolen to

have acted in bad faith, its finding that Bolen had made a

deliberate misrepresentation to the court is the functional

equivalent to a finding of bad faith.3

Having determined that the district court made the required

finding that Bolen acted in bad faith, we also conclude that the

imposition of the $500 sanction, based upon the finding of bad

faith, was well within the court’s discretion. McGuire, 48 F.3d at

906. The record supports the finding that Bolen misrepresented to

the court that Reed wanted a new attorney after she unsuccessfully

attempted to bully Lobley into counseling Reed to enter a guilty

plea, and the amount of the sanction is reasonable.

Finally, Bolen asserts that the district court erred by not

giving her proper notice that she would be facing sanctions and by

not allowing her to file a written response to Lobley’s motion for

sanctions. Such contentions are without merit.

3
The other two findings support the legal conclusion that Bolen
violated Texas Disciplinary Rule of Professional Conduct 4.02(a).
Bolen asserts, however, that due to the existence of a written
proffer agreement and certain statements made by Lobley, she
believed in good faith that she had permission to talk to Reed
outside the presence of Lobley. Even assuming, arguendo, that
Bolen had permission to talk with Reed outside the presence of
counsel, such permission does not excuse her actions that form the
basis of the court’s third finding of fact.

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AFFIRMED.

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