United States v. Figueroa-Arenas

United States Court of Appeals
For the First Circuit

No. 01-2149

UNTIED STATES OF AMERICA,
Appellee,

v.

ZORAIDA FIGUEROA-ARENAS,
Defendant.

ADALINA DE JESUS-MORALES,
Appellant.
__________

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Héctor M. Laffitte, U.S. District Judge]

Before

Torruella, Selya and Lipez,

Circuit Judges.

Judith Berkan, with whom Berkan/Mendez was on brief, for
appellant.
Stella J. Song, Special Assistant United States Attorney, with
whom Guillermo Gil, United States Attorney, Jorge E. Vega-Pacheco,
Chief, Criminal Division, and Frank J. Bustamonte, Special
Assistant United States Attorney, were on brief, for appellee.

May 6, 2002
 SELYA, Circuit Judge. The efforts of a number of persons

to halt the Navy's use of the island of Vieques for bombing and

other live-fire exercises sometimes have gone beyond what the law

permits. These excesses, and the federal courts' necessary

involvement in bringing lawbreakers to account, have spawned

considerable public controversy. This appeal stems from an

incident related to that controversy. In it, the appellant,

attorney Adalina De Jesús-Morales, asks us to annul sanctions

imposed against her by the district court in the course of a

Vieques protest case. As the recent history of appeals indicates,

the district court has done an admirable job in handling a sudden

influx of several hundred protesters' cases under the microscope of

pervasive media attention; but in this unusual instance, taking

direct account of the need to assure robust advocacy in criminal

matters, we find no legally sufficient basis for the imposition of

sanctions (and, therefore, vacate the challenged order).

The background facts are not disputed. The Navy has used

Vieques for live-fire exercises for upward of sixty years. Its

activities have become increasingly unpopular over that span (at

least among some groups) and protests have erupted from time to

time. E.g., United States v. Parrilla Bonilla, 648 F.2d 1373, 1374

(1st Cir. 1981). A fatal accident (involving an employee of the

Navy) occurred in 1999. This accident drove the dissonance to a

new pitch. As a result, the federal district court has been

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deluged with criminal trespass cases brought against protesters who

were arrested after they entered either the naval base situated on

the island of Vieques or the areas associated therewith. See,

e.g., United States v. Ventura-Meléndez, 275 F.3d 9, 16-18 (1st

Cir. 2001); United States v. Maxwell, 254 F.3d 21, 23-24 (1st Cir.

2001); United States v. Sharpton, 252 F.3d 536, 538-39 (1st Cir.

2001) (per curiam). This massive infusion of cases has thronged

the already congested docket of a busy court.

After the initial batch of arrests — 465 in all — the

chief judge of the district court acted quickly to marshal

available judicial resources. Although the court's standard praxis

called for the random assignment of criminal cases,1 the chief

judge entered an order dated June 28, 2000 (the Presentment Order),

which directed that all Vieques cases be brought to the chief judge

upon filing for assignment by him to available district and

magistrate judges in a rotating sequence (the mechanics of which

were not specified). The Presentment Order bore only the chief

judge's signature.

In April of 2001, another wave of protests occurred and

an additional 181 criminal trespass cases were filed. The chief

judge granted the government's ex parte motion to consolidate and

1
In terms, the operative local rule, D.P.R. R. 302.4, speaks
only of civil cases. The parties agree, however, that the district
court traditionally has applied this rule to criminal cases as
well.

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the cases were segregated into clusters (by arresting officer).

The consolidations left some of the judges with multiple groups of

defendants and others with few or none. To alleviate this unequal

distribution, the senior active judge, temporarily at the court's

helm in the chief judge's absence, ordered groups of cases

reassigned to equalize the judges' workloads.

Although these arrangements proved more efficient in

certain respects, they created a number of anomalies. Some

defendants found themselves lumped with other defendants who had

been arrested at different times and/or places. When certain

defendants complained that they had not received prior notice of

the government's motion to consolidate, and that, at any rate, the

consolidation order violated the joinder provisions of Federal Rule

of Criminal Procedure 8(b), the chief judge rejected their

importunings. He did, however, issue an order explaining in some

detail the rationale for the Presentment Order, the consolidation

order, and the ensuing reassignment of groups of cases. See United

States v. Ayala Ayala, No. 01-211 (D.P.R. June 5, 2001)

(unpublished order). He also explained that the terms of the

Presentment Order were no longer in vogue, but, rather, that

Vieques cases were being assigned randomly by the clerk's office,

and then reassigned by him only when necessary to ensure efficient

handling. See id.

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 The appellant represented a codefendant (Zoraida

Figueroa-Arenas) charged in the very case that yielded the June 5

order. She also represented a second defendant (Juan Nuñez-Reynes)

who had been charged in another case arising out of the most recent

spate of protests. Both groups of cases had been shifted to the

chief judge's calendar by virtue of the consolidation order. On

June 14, 2001, the appellant (acting on behalf of both clients)

moved to dismiss the pending charges or, in the alternative, for

reassignment.2 Noting that the statute authorizing district courts

to promulgate local rules, 28 U.S.C. § 137, requires that the chief

judge respect these rules and assign the cases as provided therein,

the motion papers asserted that an assignment system cannot deviate

from that established by the court's local rules without the

consent of the judicial council for the circuit in which the

district sits. Because the Presentment Order did not explain the

source of the chief judge's ostensible authority to contravene this

statute, the motion argued that the ad hoc assignment system for

Vieques cases was fatally flawed. The motion elaborated on this

thesis, stating in part:

According to the Local Rules of this Court
regarding the assignment of cases, Rule 302.4
and Rule 302.8, civil and criminal case[s]
must be assigned by lot. The chief judge in
this case has usurped the authority of his

2
Although the motion did not elaborate on the prayer for
alternative relief, the appellant presumably had in mind returning
the cases to the judges who originally had drawn them.

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 fellow judges and taken control of the
assignment system for criminal cases. . . .

. . . .

. . . . The recent order of June 5, 2001
suggests that, contrary to [the Presentment
Order], Vieques trespass cases are being
assigned randomly by the clerk's office and
then referred to the Chief Judge for
reassignment. Either way, the interference
with the normal practice of the Court
regarding case[] assignments [is] unlawful and
must be voided as the Chief Judge does not
have the authority to alter this practice
within the district.

The next day, the appellant appeared before the chief

judge for a scheduling conference in the Figueroa-Arenas matter.

The conference was held in chambers, with a court reporter present.

The chief judge expressed concern about the statements contained in

the motion, characterizing those statements as an unfair attack on

the court. Despite the appellant's disclaimer of any defamatory

intent, the chief judge placed her under oath to inquire into the

factual foundation for the statements. The appellant defended her

handiwork as a good-faith interpretation of the Presentment Order,

the district court's praxis, and the governing law. She admitted,

however, that she had done no independent investigation into the

facts (i.e., that she had not contacted the other judges in the

district to ascertain whether they had consented to the new

system).3 The chief judge took no action at that moment.

3
The district court's local rules permit reassignment of cases
in certain circumstances, e.g., if both the transferor and

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 Four days later, the chief judge denied the pending

motion. United States v. Figueroa-Arenas, 150 F. Supp. 2d 333,

335-36 (D.P.R. 2001). He simultaneously denounced the allegations

contained in the motion as unfounded, declared that the appellant

had failed to conduct a suitable investigation before making those

allegations, and worried aloud that the allegations would lead "to

the diminution of public confidence in the Court as an impartial

arbiter of the law, especially when such false allegations find

their way into the media." Id. at 338. Concluding that the

appellant's actions constituted "misconduct" because she had made

statements impugning the integrity of a judge in reckless disregard

of the truth, the chief judge exercised the court's inherent power

and ordered her to pay a $500 fine. Id.

On July 6, 2001, Figueroa-Arenas was convicted on the

underlying charge. This timely appeal of the sanctions order

ensued. In it, the appellant argues that she did not have adequate

notice of the specific charges leveled against her; that the in-

chambers colloquy at the status conference did not constitute a

meaningful opportunity to be heard on the matter; and that, in all

events, she did not commit any sanctionable misconduct.

We review the imposition of sanctions for abuse of

discretion. McClane, Graf, Raulerson & Middleton, P.A. v.

transferee judge assent to the reassignment. See D.P.R. R. 302.2,
302.7-302.9.

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Rechberger, 280 F.3d 26, 42 (1st Cir. 2002); Jones v. Winnepesaukee

Realty, 990 F.2d 1, 5 (1st Cir. 1993). It is common ground that if

a trial judge is to manage a crowded calendar fairly and

efficiently, members of the bar must comport themselves in a

professional manner. When a lawyer goes too far — that is, when a

lawyer's conduct is vexatious, oppressive, or undertaken in bad

faith — the judge must be accorded considerable latitude in dealing

with such excesses. Whitney Bros. Co. v. Sprafkin, 60 F.3d 8, 13

(1st Cir. 1995). Despite this imperative, however, a judge's power

to sanction an attorney is not unbridled — and that power cannot be

used to chill vigorous but legitimate advocacy. See Kale v.

Combined Ins. Co., 861 F.2d 746, 760 (1st Cir. 1988); In re

Bithoney, 486 F.2d 319, 322 (1st Cir. 1973). In short, sanctions

are an integral part of the judicial armamentarium, but a judge

should resort to them only when reasonably necessary — and then

with due circumspection. See Chambers v. NASCO, Inc., 501 U.S. 32,

44 (1991). We think it follows that, in an appeal from the

imposition of sanctions, substantial respect is owed to the trial

court's first-hand appraisal, but that respect "is not to be

confused with automatic acquiescence." United States v. One 1987

BMW 325, 985 F.2d 655, 657 (1st Cir. 1993).

In the ordinary case, the due process issues raised by

the appellant (which implicate notice and the opportunity to be

heard) might form a logical starting point for our analysis. Here,

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however, we find the issue of whether the appellant committed any

sanctionable misconduct to be dispositive. Accordingly, we begin

— and end — with that issue.

Our decision in United States v. Cooper (In re Zalkind),

872 F.2d 1 (1st Cir. 1989), helps to set the stage. There, an

attorney, reacting to comments made by the trial judge, filed a

recusal motion. Id. at 2. The judge took umbrage at the

allegations contained in the motion papers and eventually

sanctioned the attorney for knowingly making false accusations.

Id. On appeal, we noted that a lawyer has a right to file a

recusal motion, even though it offends the judge or puts him in an

unflattering light, "when facts arise which suggest the judge has

exhibited bias or prejudice." Id. at 4. Finding that the record

contained an adequate factual predicate, and did not show

misrepresentation or bad faith on counsel's part, we vacated the

sanctions order. Id. at 4-5.

Even though the case at hand does not involve a recusal

motion, the principles that informed our decision in Cooper are

fully applicable here. The pivotal question is whether the record

furnishes adequate support for the chief judge's determination that

the appellant acted recklessly or in bad faith when she filed the

motion to dismiss or reassign. We think it does not.

On its face, the Presentment Order did not reflect that

the chief judge was acting with the approval of either the circuit

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council or the affected judges. These omissions raised a

reasonable doubt about the chief judge's authority, acting alone,

to exempt a particular class of cases from the random lottery and

to reassign those cases in some other sequence. The appellant

seized upon this doubt and wove a colorable argument from it. She

pointed out, correctly, that under the district court's local rules

and its standard praxis, assignment of cases ordinarily is by lot;

and cases, once assigned, usually require the consent of both the

transferor and transferee judges as a precondition to any

administrative reassignment. The appellant also noted, again

correctly, that the enabling statute, 28 U.S.C. § 137, requires the

chief judge to enforce the local rules as written (at least in the

absence of leave from the circuit council to chart a different

course). Given this factual and legal predicate, the appellant's

characterization of the reassignment of her clients' cases as

irregular was within the bounds of legitimate advocacy. So too her

related argument that reassignment pursuant to the Presentment

Order and the consolidation order was ultra vires.

This conclusion is reinforced by the inclusion, in the

motion papers, of citations to a plenitude of decided cases. E.g.,

United States v. Pearson, 203 F.3d 1243, 1255-67 (10th Cir. 2000);

Cruz v. Abbate, 812 F.2d 571, 573 (9th Cir. 1987); Utah-Idaho Sugar

Co. v. Ritter, 461 F.2d 1100, 1103-04 (10th Cir. 1972). These

decisions gave the appellant's position a patina of plausibility.

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In Utah-Idaho Sugar Company, for example, the chief judge of the

district court took for himself some cases that previously had been

assigned to a judge assuming senior status. 461 F.2d at 1102. An

affected party petitioned for mandamus, and the Tenth Circuit

granted the writ. The court wrote:

[U]nder the terms of 28 U.S.C. § 137, it is
unquestioned that the division of the court's
business in a multi-judge district is the
responsibility of the judges and not the
responsibility of the chief judge acting
unilaterally. The latter's duty is to insure
that the agreed upon rules are enforced and
are administered so as to carry out their
purposes, but it is not his duty to promulgate
rules without the approval of his fellow
judges . . . .

Id. at 1103 (footnote omitted). The Tenth Circuit concluded that

the chief judge could not unilaterally deviate from the district

court's local rules "until such time as it clearly appears that he

is acting with the full concurrence of the [appropriate

authority]." Id.4

A lawyer should be allowed to argue that a case was

wrongly assigned or transferred when circumstances give rise to a

plausible assertion to that effect. Given the facts of record

here, the absence of any factual misrepresentations, and the

colorable legal argument advanced, we conclude that the appellant

4
In 1972, when the Tenth Circuit decided Utah-Idaho Sugar
Company, the judges of the district court, acting collectively, had
the power to modify, rescind, or grant exceptions from the local
rules. 461 F.2d at 1013. That power is now vested in the circuit
council. See 28 U.S.C. § 332(d)(4).

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did not act in objective bad faith in filing the motion. See

Cooper, 872 F.2d at 4 (suggesting that an attorney has a duty to

file a motion that may help his client as long as the factual

proffer supporting the motion is tendered "in good faith and

[contains] no factual misrepresentations"); In re Bithoney, 486

F.2d at 322 (recognizing the need to allow "breathing room for the

fullest possible exercise of the advocacy function"). Although the

court below was free to point out the flaws in the appellant's

reasoning, distinguish the cases on which she relied, and

ultimately deny the requested remedy, the motion nonetheless was an

appropriate vehicle for advancing facially legitimate issues

suggested by the record.

To the extent that the sanctions order can be read to

accuse the appellant of acting in subjective bad faith, that

accusation too lacks record support. Nothing in the wording of the

motion or in the appellant's responses to the chief judge's

questions indicates either that an improper motive inspired the

filing or that she believed that what she had asserted was false.

To cinch matters, the appellant came to this case with clean hands

— insofar as we can tell from the record, she had no prior history

of contumacious conduct — and the motion itself was couched in

respectful (albeit fervent) language. While words such as "usurp"

and "unlawful" might impugn a jurist's character in some contexts,

the appellant appears to have used them only to argue that the

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court had overstepped the limits of its authority. In that sense,

the motion was little more than a challenge to the chief judge's

exercise of jurisdiction, and, as such, was appropriate.

The government has one last string to its bow. It

attempts to justify sanctions based on the chief judge's finding

that the appellant failed to conduct a proper investigation into

the provenance of the Presentment Order. Assuming, for argument's

sake, that the appellant had a duty to investigate the allegations

set forth in the motion, cf. Fed. R. Civ. P. 11(b) (imposing such

an obligation in the civil context),5 we deem her investigation

reasonable under the circumstances. She verified the contents of

the Presentment Order, determined that it remained unrevoked,

factored in the effect of the supplementary order issued by the

senior active judge in the chief judge's absence, and considered

the chief judge's explanatory order of June 5, 2001. To require

more would be to place an undue burden on defense counsel in a

criminal case. See In re Order to Show Cause, 741 F. Supp. 1379,

1383 (N.D. Cal. 1990) (noting that, when preparing motions in a

5
We express some skepticism because there is no counterpart to
Rule 11(b) in the criminal context. That is unlikely to be mere
happenstance: "because of the significant liberty deprivation
often at stake in a criminal prosecution, courts generally tolerate
arguments on behalf of criminal defendants that would likely be met
with sanctions if advanced in a civil proceeding." In re Becraft,
885 F.2d 547, 550 (9th Cir. 1989) (per curiam). As the Seventh
Circuit perspicaciously observed, "novel arguments that may keep
people out of jail ought not to be discouraged by the threat of
[fines]." Wisconsin v. Glick, 782 F.2d 670, 673 (7th Cir. 1986).

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criminal case, it is not defense counsel's responsibility "to

perform the role of the court or the jury to decide ultimate

truth"). We thus conclude that the appellant's conduct was within

the permissible bounds of vigorous advocacy, and, therefore, that

sanctions are unsustainable.

We have one final observation. The motion papers filed

by the appellant do not accuse the chief judge of manipulation;

they merely make the plausible (if ultimately unavailing) legal

argument that he lacked the authority to take the steps that he

took. To the contrary, the record is not only devoid of any

suggestion that the chief judge used the assignment power for an

invidious purpose, but, indeed, reveals that at all relevant times

he was endeavoring to position the court to cope with an

unanticipated deluge of cases that unexpectedly had strained the

institutional resources of the district court.

We need go no further. Because the appellant was guilty

of nothing more sinister than the zealous discharge of her duty to

represent her clients with vigor, we vacate the sanctions order.

So Ordered.

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