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
-2-
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.
-3-
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.
-4-
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.
-5-
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
-6-
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.
-7-
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,
-8-
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
-9-
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.
-10-
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).
-11-
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
-12-
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).
-13-
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.
-14-