United States v. Aleo

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0134p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

X
Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
-
-
-
Nos. 10-1569/1570/1833
v.
,
>
-
Defendant-Appellant (10-1569/1570), -
CRAIG ALEO,
-
-
JOHN FREEMAN, -
Appellant (10-1833). -
-
N
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
Nos. 09-20165-001; 09-20458-001; 09-20165;
Bernard A. Friedman, District Judge.
Argued: January 26, 2012
Decided and Filed: May 15, 2012
Before: BOGGS, ROGERS, and SUTTON, Circuit Judges.

_________________

COUNSEL
ARGUED: Kenneth P. Tableman, KENNETH P. TABLEMAN, P.C., Grand Rapids,
Michigan, Matthew W. Heron, Detroit, Michigan for Appellants. Andrew Goetz,
ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan, for Appellee.
ON BRIEF: Kenneth P. Tableman, KENNETH P. TABLEMAN, P.C., Grand Rapids,
Michigan, Matthew W. Heron, Martin E. Crandall, Detroit, Michigan for Appellants.
Andrew Goetz, ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan, for
Appellee.
BOGGS, J., delivered the opinion of the court, in which ROGERS and SUTTON,
JJ., joined. SUTTON, J. (pp. 23–32), delivered a separate concurring opinion.

1
Nos. 10-1569/1570/1833 United States v. Aleo, et al. Page 2

_________________

OPINION
_________________

BOGGS, Circuit Judge. In this case, we deal with two appeals arising out of the
criminal conviction and sentencing of Craig Aleo. Craig Aleo appeals his sentence (Part
I), and his trial attorney, John Freeman, appeals the sanction imposed upon him by the
district court (Part II).

Craig Aleo was sentenced to the statutory maximum sentence of 720 months of
imprisonment after he pleaded guilty to one count each of producing, possessing, and
transporting and shipping child pornography. His guidelines range was 235–293
months. Because we cannot find a justification within the factors enumerated in 18
U.S.C. § 3553(a) to justify the variance imposed by the district court, we reverse and
remand for resentencing.

Craig Aleo’s trial counsel, John Freeman, was sanctioned $2,000, based on the
district court’s inherent power to sanction, because he filed a motion asking the court to
compel the government to make a formal motion regarding any victim who wanted to
speak at trial pursuant to the Crime Victim Rights Act (CVRA), naming the victim, and
providing a preview of the victim’s statement. Because there is no objective evidence
that trial counsel filed this motion in bad faith, we reverse.

I

On April 14, 2009, Aleo was charged with one count of production of child
pornography (Count One), in violation of 18 U.S.C. § 2251(a) and one count of
possession of child pornography (Count Two), in violation of 18 U.S.C.
§ 2252A(a)(5)(B). This indictment issued from a grand jury in the Eastern District of
Michigan. On April 30, 2009, Craig Aleo was charged with one count of transporting
Nos. 10-1569/1570/1833 United States v. Aleo, et al. Page 3

and shipping child pornography (Count Three), in violation of 18 U.S.C. § 2252A(a)(1).
The indictment for this offense issued from the Northern District of New York.1

Aleo pleaded guilty to all counts. At sentencing, he was sentenced to the
statutory maximum for all three counts—720 months of imprisonment—to be served
consecutively. On appeal, Aleo challenges the procedural and substantive
reasonableness of his sentence, and requests that his case be remanded for resentencing
before a different judge. We reverse his sentence for being substantively unreasonable
and remand for resentencing.

A

Aleo, a 66-year-old resident of Davisburg, Michigan, was identified in October
2006, by agents from the Bureau of Immigration and Customs Enforcement (ICE), as
one of a group of individuals who owned and controlled a certain Paypal account that
was used to make payments to child-pornography websites. While under investigation,
Aleo paid $99.95 and $79.95 into the Paypal account for access to two separate child-
pornography websites. On May 24, 2008, Aleo joined a child-pornography website,
giving his identifying information and credit card number. ICE agents obtained a search
warrant and were able to determine that Aleo’s email address had been used to access
child-pornography images and video on May 26, 2008, May 27, 2008, and June 1
through June 3, 2008.

On March 26, 2009, Aleo and his wife drove into the port of entry at Alexandria
Bay, New York, from Canada. Because he was listed on an ICE database as being under
investigation for violations relating to child pornography, Aleo was stopped for a
secondary inspection. Customs officers inspected Aleo’s car and found a laptop, two
thumb drives, and numerous memory cards. These were inspected, and officers found
13 images of child exploitation, including at least three of prepubescent girls performing
sex acts on men, and one movie file.

1
The Northern District of New York charge was transferred, after Aleo waived personal
appearance, for plea and sentence to the Eastern District of Michigan to be consolidated with Count One
and Count Two, pursuant to FED. R. CRIM. P. 20.
Nos. 10-1569/1570/1833 United States v. Aleo, et al. Page 4

Aleo was arrested and read his Miranda rights. He then asserted ownership of
all the electronics and told the agents that he knew the computer contained images of
child pornography. He also told the agents that he subscribed to two child pornography
websites, Dreamzone.com and HushHush.com. He told the officers that he did not
upload or trade images, but only downloaded and stored images on his computer. He
told the officers that he had another computer at home, and gave a written statement to
that effect. This incident was the basis on which Aleo was charged in New York with
production and shipping of child pornography (Count Three).

On March 27, 2009, ICE agents obtained and executed a search warrant at Aleo’s
residence. Agents seized two computers, CDs, DVDs, and other types of stored
electronic media. A search of these conducted by the Utica (Michigan) Police
Department showed 1,186 images of child pornography. Of these, 912 of the images or
videos showed prepubescent children. Eight still images and one video showed
“sadomasochistic” images. Aleo’s USB drive contained 125 short videos “that appeared
to have been taken with a hidden camera in a bathroom.” These all showed the date
January 7, 2000. The clips showed adults and children in the bathroom, probably filmed
with a motion-sensitive camera. Several images showed a girl, later identified as Aleo’s
five-year-old granddaughter, putting on a dress, and some were of her and other girls “in
various states of dress.”

One of Aleo’s DVDs also shows a girl later identified as Aleo’s five-year-old
granddaughter taking a bath. The DVD appears to have been made on November 8,
2006. This video was described by ICE agent Donald Raymo at Aleo’s detention
hearing, held April 21, 2009, in the United States District Court for the Eastern District
of Michigan. According to Raymo, Aleo puts the girl in the bath, she bathes, and then
Aleo dries her off and, while drying her, penetrates her vaginal area with his finger.
Raymo also offered the following description:

Q: What specifically can you see when you watch the video?
A: Certainly a display of the little girl’s genitalia.
Q: It’s focused on her genitals?
A: Definitely.
Nos. 10-1569/1570/1833 United States v. Aleo, et al. Page 5

...
A: The little girl is standing up on a cupboard and Mr.—the male figure
appears to be drying a child off.
Q: With a towel?
A: With a towel, and in portions there also certainly appears to be some
inappropriate contact. There’s some sexual assault.
Q: Specifically what?
A: Digital penetration.
Q: So you see Mr. Aleo’s finger or what you believe to be Mr. Aleo’s
finger—
Mr. Freeman: Your Honor, I’m going to object. I think we all know what
that means.
The Court: Sustained.

R.62 at 65–66.2

This video was the basis for the Count One. It was also the basis for a “Criminal
Sexual Conduct 1st Degree” charge against Aleo in Michigan state court,3 to which Aleo
pleaded “no contest.”

As a result of his offense, Aleo’s mental health was evaluated by a
psychotherapist referred by defense counsel. The psychotherapist described Aleo as
meeting the clinical definition of a pedophile. Aleo’s risk-assessment score indicated
a low risk to re-offend sexually and a low risk to act out in a violent manner.

B

Aleo pleaded guilty without a plea agreement to all counts against him.

The United States Probation Department prepared a presentence report (PSR) for
Aleo. The PSR calculated a base offense level for Count One of 32. To this base
offense level, four levels were added because the production of child pornography
involved a minor under the age of twelve; two levels were added because the offense

2
The video was submitted to the National Center for Missing and Exploited Children to determine
if it had been identified in any previous law enforcement investigations or if it or images from it had been
distributed or uploaded to the internet. The Center found no information suggesting that the images had
been so used.
3
The statute for “Criminal Sexual Conduct in the First Degree” provides: “(1) A person is guilty
. . . if he or she engages in sexual penetration with another person and if any of the following
circumstances exists: (a) [t]hat other person is under 13 years of age.” MICH. COMP. L. § 750.520b(1).
Nos. 10-1569/1570/1833 United States v. Aleo, et al. Page 6

involved the commission of a sexual act or sexual contact (the PSR described the video
of Aleo’s granddaughter as showing Aleo “penetrat[ing] [the child] vaginally with his
finger”); and two levels were added because Aleo was a relative of the minor in the
offense and the minor was in his custody, care, or supervisory control. Therefore, Aleo
received an Adjusted Offense Level of 40.

Counts One, Two, and Three were grouped, pursuant to U.S.S.G. § 3D1.2.4 One
level was added pursuant to U.S.S.G. § 3D1.4.5 Three levels were subtracted for
acceptance of responsibility. Aleo’s total offense level was thus 38. Aleo had no
criminal history points, making his guidelines range 235–293 months.

The government and Aleo made objections to the PSR. The government
calculated Aleo’s guideline range to be 262–327 months, arguing U.S.S.G. § 3D1.4
required that 2 levels, not 1, be added to the adjusted offense level of 40, because the
counts could not be grouped together. Based on this calculation, the government
recommended that Aleo be sentenced to 300 months, followed by a life term of
supervised release.

Aleo argued that the PSR’s calculation was incorrect because the video did not
show him digitally penetrating his granddaughter. Aleo reiterated his arguments in a
subsequent supplemental sentencing memorandum, in which his trial counsel argued that
he had “reviewed the video and [discussed] it with another experienced criminal defense
attorney” and that the footage depicted Aleo drying the girl off, with no sexual touching.

Aleo acknowledged that his offenses carried a mandatory minimum sentence of
180 months on Count One and 60 months for the Count Three. He requested that these
mandatory minimum sentences be imposed because he was a first-time offender, he had

4
The section states that “closely related counts” should be “grouped together into a single Group.”
Counts are closely related when, as in this case, “one of the counts embodies conduct that is treated as a
specific offense characteristic in, or other adjustment to, the guideline applicable to another of the counts.”
5
Section 3D1.4 provides that grouped counts can result in a specified offense-level increase.
Nos. 10-1569/1570/1833 United States v. Aleo, et al. Page 7

positive past contributions to society, and he had health problems.6 He asked that the
sentences be imposed to run concurrently, so that he would serve 180 months of
imprisonment.

C

Aleo was sentenced on April 15, 2010. The judge stated that he had seen the
objections to the PSR, that he had received the sentencing memoranda from Aleo and
the government and Aleo’s supplemental sentencing memorandum. The judge stated
that as to both parties’ objections he would adopt the response by the Probation
Department. The judge stated that Aleo would thus be held to have an offense level of
38 with a criminal history level of I.

After the judge’s initial statements, Aleo’s daughter and son-in-law, the parents
of the victim in the DVD, both made statements.

The government then made a statement reiterating its recommendation of 300
months of imprisonment followed by a lifetime of supervised release. Aleo’s attorney
then spoke, stating his belief that “there is a legitimate factual dispute concerning the
factual accuracy that there was sexual touching and penetration.” He reiterated his
request that the judge sentence Aleo to the mandatory minimum of 180 months of
imprisonment.

6
Aleo had a history of heart disease, kidney failure, and complications from diabetes. He had a
quadruple heart bypass surgery in 2000, and required a kidney transplant in 2001. Aleo has also had
problems with foot gangrene as a result of diabetes. In 2010, his fifth left toe was amputated; the next
month a toe on his right foot was amputated.
Nos. 10-1569/1570/1833 United States v. Aleo, et al. Page 8

During his allocution, Aleo stated the following:

Your Honor, I want to apologize to my family for all the pain
which I caused them because of my actions and sins. I ask for their
forgiveness.
I apologize to my wife for forgiving me and who has supported
me this past year with letters everyday and a visit every week.
Your Honor, over 30 years ago, we made a promise to each other
that we would work hard and live together, that we would enjoy our love
for each other forever like we were newly weds. I broke that promise,
your Honor. But I made her a new promise. Through prayer and therapy
we will together conquer my affliction and I will walk out of a prison,
God willing, and we will live out our lives in retirement together.
Lastly, but certainly not the least, I apologize to the Court for the
countless hours spent because of my actions. I ask the Court to have
mercy on me in sentencing so I might have a chance for freedom and to
fulfill my promise.

The sentencing judge then assessed Aleo’s sentence and his reasons for choosing
the punishment. In relevant part, he stated:

. . . Number one, I think this is perhaps one of the most despicable cases
that I have ever been involved in, in 28 years on the bench. I’ve been
thinking about it, thinking about it and I can’t think of another case.
. . . I’ve listened to the defendant’s attorney argue today and I’ve
listened to the defendant. I’ve heard not a word of remorse. Not a word.
Everything was about the defendant, his poor health, his age, he lost
some toes, and he’s talking about the love for his wife. But not
a—nothing of remorse. He doesn’t talk about the victims here, that the
victims are going to be emotionally scarred for the rest of their lives.
The fact that images are out there, that he took them. That it was a
relationship of a granddaughter, his granddaughter, his own flesh and
blood. Not one thing. . . . No remorse whatsoever.
The Court . . . believes that the sentencing guidelines are totally
nonapplicable to this case. There is no human committee, and that’s
what the sentencing guideline commission is, it’s a human committee
that tries to equalize a fairness in terms of sentencing. I don’t think they
ever anticipated that a granddaughter would be involved in this kind
of—a victim, in this kind of activity and certainly not a grandfather doing
it. There’s no way they would have been able to even foresee that. So
the guidelines . . . certainly is not a guideline for this kind of case . . . .
Even excluding . . . the sexual touching and all that, even if [that]
didn’t exist, again there’s no way that the sentencing guidelines are
Nos. 10-1569/1570/1833 United States v. Aleo, et al. Page 9

adequate . . . to punish the defendant for what he has done to the victims
and to make this thing right. . . .
The Court believes that the factors in 3553 should be considered.
Number one, punishment, and the Court believes the harshest punishment
to this kind of action should be imposed on the defendant.
In terms of rehabilitation, I don’t know . . . if it’s even possible.
I have listened to the whole thing and there is no remorse and
rehabilitation is very difficult, but there may or may not be.
In terms of deterrence, absolutely. It’s very, very important to
give the harshest sentence possible to deter others . . . .
...
It will be the sentence of the Court that the defendant be
committed to the Bureau of Prisons. As to Count One for 30 years, 360
months. As to Count Two, 120 months, 12 years, that he is to serve
consecutively to each other.
As to [Count Three], it is the sentence of the Court that the
defendant be sentenced to 240 months, or 20 years which is the
maximum. Again, to be consecutive to the other sentences . . . .
...
That should he be released from prison and I hope he isn’t that he
will be placed on a period of supervised release for five years . . . .

The judge stated further, “The discretion of the sentencing is up to me. I believe
[Aleo] has no remorse, but even if he had remorse, I would not change that sentence
because of the despicable act that he did.”

Aleo filed this timely appeal.

D

Aleo challenges the procedural and substantive reasonableness of his sentence.
Aleo asks that his case be remanded for resentencing to a different judge, because he
believes Judge Friedman would have difficulty putting out of his mind his previously
expressed views of the case.

Procedural Reasonableness

Aleo’s first argument is that his sentence was procedurally unreasonable.
Specifically, he argues that the district court failed to rule on the factual dispute as to
whether or not the video depicted Aleo sexually touching his granddaughter, and this
Nos. 10-1569/1570/1833 United States v. Aleo, et al. Page 10

failure violated Federal Rule of Criminal Procedure 32(i)(3)(B). He also argues that the
district court failed to calculate the guidelines range.

We review a district court’s sentence under an abuse-of-discretion standard.
United States v. Baker, 559 F.3d 443, 448 (6th Cir. 2009). A sentence is procedurally
unreasonable if the district court “fails to calculate (or improperly calculates) the
Guidelines range, treats the Guidelines as mandatory, fails to consider the § 3553(a)
factors, selects a sentence based on clearly erroneous facts, or fails to adequately explain
the chosen sentence.” Ibid.

Federal Rule of Criminal Procedure 32(i)(3)(B) provides that, “[a]t sentencing,
the court must—for any disputed portion of the presentence report or other controverted
matter—rule on the dispute or determine that a ruling is unnecessary either because the
matter will not affect sentencing, or because the court will not consider the matter in
sentencing.” The Sixth Circuit requires “literal compliance” with Rule 32. United
States v. Tackett, 113 F.3d 603, 613 (6th Cir. 1997), cert. denied, 522 U.S. 1089 (1998).
Aleo also argues that the district court’s failure to rule on whether or not he sexually
touched his granddaughter deprived him of the right to have sentencing enhancements
proven by the government by a preponderance of the evidence.

The government is required to establish the existence of a factor supporting a
sentencing enhancement by a preponderance of the evidence. United States v. Gibson,
985 F.2d 860, 866 (6th Cir.), cert. denied, 508 U.S. 979 (1993). If a “contested
sentencing enhancement factor appears in the probation report and is not proved by the
government at the hearing, the court must insure that the factor is otherwise proved by
reliable evidence before using it to increase the sentence.” United States v. McMeen,
49 F.3d 225, 226 (6th Cir. 1995).

The district court did rule on Aleo’s objection regarding whether sexual touching
took place. The district court stated that Aleo’s no-contest plea in state court constituted
an admission of the offense charged, which was the same as the contested enhancement.
Therefore, the court ruled that the fact of Aleo’s sexual touching of his granddaughter
had been established, satisfying Rule 32.
Nos. 10-1569/1570/1833 United States v. Aleo, et al. Page 11

Further, sexual contact was proved by a preponderance of the evidence. Officer
Raymo’s testimony about the video and Aleo’s no-contest plea to the charge of
“Criminal Sexual Conduct in the First Degree” in state court suffices to prove the fact
by a preponderance of the evidence. See United States v. Vanbuhler, 558 F. Supp. 2d
760, 765–67 (E.D. Mich. 2008) (imposing a sentencing enhancement based on
defendant’s no-contest plea to a Michigan offense). By pleading no contest to Criminal
Sexual Conduct in the First Degree, Aleo admitted every essential element of the
offense. United States v. Freed, 688 F.2d 24, 25–26 (6th Cir. 1982). Therefore, Aleo
admitted that he “engage[d] in sexual penetration” of the victim. See MICH. COMP. L.
§ 750.520b.

Aleo next argues that his sentence was procedurally unreasonable because the
sentencing judge failed to calculate the guideline range. Baker, 559 F.3d at 448.
Specifically, he argues that the judge did not re-calculate the range after Aleo raised his
objection to the sentencing enhancement regarding sexual contact. Because the district
court resolved the dispute regarding sexual contact, and because the enhancement for
sexual contact was properly proved by a preponderance of the evidence, the district court
did properly calculate the guidelines range as 38, with criminal history category I.
Aleo’s argument that the court failed to calculate the guidelines range is meritless.

Therefore, Aleo’s sentence was procedurally reasonable.

Substantive Reasonableness

Aleo next argues that his 720-month sentence was substantively unreasonable.
In deciding on a sentence, the sentencing judge must impose “a sentence sufficient, but
not greater than necessary, to comply with” the basic aims of sentencing as set forth in
18 U.S.C. § 3553(a).7 In deciding on a defendant’s sentence, the judge should begin by

7
The factors to be taken into account in sentencing are:
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide
just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care,
Nos. 10-1569/1570/1833 United States v. Aleo, et al. Page 12

considering the Sentencing Guidelines range prescribed for the defendant’s offense.
Gall v. United States, 552 U.S. 38, 49 (2007). The judge should then allow the state and
the defendant argue for the sentence they believe should be imposed. The judge should
then consider all of the § 3553(a) factors. If the judge “decides that an outside-
Guidelines sentence is warranted, [the judge] must consider the extent of the deviation
and ensure that the justification is sufficiently compelling to support the degree of the
variance.” Gall, 552 U.S. at 50; see also United States v. Davis, 537 F.3d 611, 614 (6th
Cir.), cert. denied, 555 U.S. 1080 (2008). The “farther the judge’s sentence departs from
the guidelines sentence . . . the more compelling the justification based on factors in
section 3553(a) must be.” United States v. Poynter, 495 F.3d 349, 352 (6th Cir. 2007)
(internal quotation marks omitted). After choosing a sentence, the judge must
adequately explain it to allow “meaningful appellate review and to promote the
perception of fair sentencing.” Gall, 552 U.S. at 50.

We review the sentence imposed for an abuse of discretion. Id. at 51. When a
sentence is outside the guidelines range, the appellate court “may not apply a
presumption of unreasonableness.” Ibid. Instead, the reviewing court must give “due
deference to the district court’s decision that the § 3553(a) factors, on a whole, justify
the extent of the variance.” Ibid. We must respect the fact that the sentencing court
observed the defendant and the witnesses firsthand, and that the sentencing court has a
wide variety of sentencing cases to compare each case to, unlike an appellate court. Our
role is not to usurp the sentencing judge’s position as the best interpreter of the facts.
However, we must ensure that when there is a variance, the greater the variance from the

or other correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for—
(A) the applicable category of offense committed by the applicable category of defendant as
set forth in the guidelines [issued by the Sentencing Commission and in effect on the date defendant
is sentenced]; . . .
(5) any pertinent policy statement [issued by the Sentencing Commission and in effect on the date
defendant is sentenced];
(6) the need to avoid unwarranted sentencing disparities among defendants with similar records who
have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.
18 U.S.C. § 3553(a).
Nos. 10-1569/1570/1833 United States v. Aleo, et al. Page 13

range set by the Sentencing Guidelines, the “more compelling the justification based on
the factors in § 3553(a)” was. See Poynter, 495 F.3d at 352; 18 U.S.C. § 3553(a)(6).

The district judge sentenced Aleo to 720 months of imprisonment, which is
almost two and one-half times longer than 293 months, the top of Aleo’s guidelines
range. As it exceeds the guidelines range, the sentence is not entitled to a presumption
of reasonableness. Gall, 552 U.S. at 51. Further, because the sentence goes so far
beyond the guidelines range, we must determine if the district court provided compelling
reasons for such a variance. We must also determine whether sentencing Aleo at the
statutory maximum will create sentencing disparities between Aleo and similar
offenders. See 18 U.S.C. § 3553(a)(6).

The district judge provided several reasons for the sentencing variance imposed.
The judge stated that he believed the guidelines could not possibly have envisioned a
crime as horrendous as Aleo’s. He stated the strongest possible deterrence was needed
for this type of crime. He also stated repeatedly that Aleo was remorseless. Importantly,
though, the judge also stated that he would have imposed the same sentence even if he
had thought Aleo had been remorseful, based entirely on the “despicable act that he did.”
Therefore, the judge primarily based his variance from the guidelines on the actual act
of Aleo possessing child pornography, transporting child pornography, and filming his
five-year-old granddaughter in the bath and sexually touching her while drying her off.
We must determine whether compelling reasons justified imposing the maximum
statutory penalty on this act.

First, we question the district judge’s belief that the sentencing guidelines could
not have envisioned a crime such as Aleo’s. In fact, the Sentencing Guidelines do
envision a crime such as Aleo’s—Aleo’s guidelines calculation included several
enhancements that specifically addressed the unique characteristics of his offense. Four
levels were added because Aleo produced child pornography with a minor under the age
of twelve. Two levels were added because the offense involved the commission of a
sexual act or sexual contact. Two levels were added because Aleo was a relative of the
minor and the minor was in his custody, care, or supervisory control. Therefore, the
Nos. 10-1569/1570/1833 United States v. Aleo, et al. Page 14

guidelines expressly take into account a defendant who creates child pornography using
a relative, when the relative was under the age of twelve, under the individual’s
supervision, and who the defendant sexually touched during the creation of the
pornography. The guidelines do not specifically differentiate the grandparent/grandchild
relationship from other familial relationships, but neither do they differentiate the
parent/child relationship, which, when involved in an offense, seems equally or more
deserving of condemnation. The guidelines took into account the very factors that the
sentencing judge said that they did not. Therefore, the belief that these factors were not
envisioned by the creators of the guidelines is not a compelling justification for the
judge’s variance from the guidelines range.

The district court justified its variance from the guidelines by stating that “the
strongest possible deterrence” was needed for Aleo’s offense. However, “ not all . . . sex
offenders deserve what amounts to a life sentence; otherwise, Congress would not have
set a statutory range of 0–60 years.” Poynter, 495 F.3d at 354. The 720-month sentence
threatens to cause disparities in sentencing, because it provides a top-of-the-range
sentence for what is not a top-of-the-range offense.

The district court imposed a harsher sentence on Aleo than has been imposed on
defendants who committed similar crimes. In a recent case, a grandfather who possessed
64 images of his minor granddaughter in sexually explicit positions, as well as 908 other
downloaded child-pornography images and files, received a top-of-the-guidelines
sentence of 151 months of imprisonment. United States v. Hunley, 290 F. App’x 884,
885–86 (6th Cir. 2008). In another case, a grandfather persuaded his three-year-old
granddaughter to perform oral sex on him by showing her images of children performing
oral sex. United States v. Gawthrop, 310 F.3d 405, 408 (6th Cir. 2002). He received 70
months of imprisonment, representing the midpoint of his guideline range of 63–78
months, and well under his statutory maximum sentence of 20 years. See id. at 406.
Under Poynter, Aleo’s sentence should avoid unwarranted disparity with sentences
received for similar crimes. It is unwarranted for Aleo to receive a sentence ten times
greater than the sentence in Gawthrop, in which the defendant also had a Criminal
Nos. 10-1569/1570/1833 United States v. Aleo, et al. Page 15

History category of II, as opposed to Aleo’s category of I, or nearly five times greater
than the defendant in Hunley. There is no compelling justification for differentiating his
offense so dramatically from theirs.

Not only did the district court err in its consideration of disparity because similar
offenders have received significantly lighter sentences, it also failed to note that
defendants who received sentences of the statutory maximum committed significantly
worse crimes. For example, in a case in which the defendant was sentenced to 65 years,
the defendant made a pornographic videotape of himself committing sexual acts on his
girlfriend’s eight-year-old daughter on three separate occasions, two while she was
drugged and asleep and one where she was awake and acted out his commands. United
States v. Vowell, 516 F.3d 503, 508 (6th Cir. 2008). The offense conduct included oral-
to-genital contact, and attempted anal and genital penetration. Id. at 507. He also
planned to sell the tape on the internet. Ibid. In order to avoid being apprehended, the
defendant also stole a car and fled authorities. In sentencing him, the district court varied
from a guideline range of 188–235 months to impose a sentence of 65 years followed by
a lifetime of supervised release, where the statutory maximum sentence was 70 years.
Id. at 511.8

This circuit has reversed sentences as substantively unreasonable where the
district court failed to offer a compelling justification for a sentence that varied
dramatically from the guidelines range. In a recent case, we reversed as substantively
unreasonable a 720-month sentence imposed on a repeat child sex offender. Poynter,
495 F.3d at 358. Poynter sexually abused and drugged several boys over a period of
years. Id. at 350. He pleaded guilty to four counts of illicit sexual conduct with minors.

8
Cases from outside our circuit also serve to demonstrate the type of offenses that should be given
the harshest punishment the law can offer. In one, for example, a defendant persuaded his 13-year-old
stepdaughter to engage in a host of sexual activities on camera with an adult male, including oral and
vaginal intercourse. He was sentenced to a within-guidelines sentence of 1,200 months (his four counts
were not grouped because they occurred on four separate occasions and involved “multiple, separate
instances of fear and risk of harm”). United States v. Sarras, 575 F.3d 1191, 1207–10 (11th Cir. 2009).
In another case, where a defendant was sentenced to the statutory maximum for all counts, with the
sentences to run consecutively, for a total of 140 years of imprisonment, the defendant had taken at least
150 images and made at least 24 pornographic videos of three boys over the course of years (he made tapes
of one boy from the time the boy was 8 until he was 15), drugging the boys to facilitate the offenses. The
defendant transmitted these files on the internet. United States v. Johnson, 451 F.3d 1239, 1241–42 (11th
Cir.), cert. denied, 549 U.S. 987 (2006).
Nos. 10-1569/1570/1833 United States v. Aleo, et al. Page 16

His guideline range was calculated to be between 188–235 months. Ibid. The district
judge justified imposing 720 months, the statutory maximum sentence, because Poynter
victimized multiple children, used alcohol or drugs to seduce them, and he was a
recidivist. Ibid. The Sixth Circuit, however, reasoned that the district court’s “primary
ground” for the upward variance was that the court wanted to prevent Poynter from
offending again. Id. at 353. Because the guidelines specifically dealt with “Repeat and
Dangerous Sex Offender[s] Against Minors,” and provided enhancements for this
category of offender, the court held that the variance was not justified. Ibid. The court
discussed offenders who might be more deserving of the statutory maximum: those who,
for example, fled the authorities, did not accept responsibility, or who have been
previously convicted of sex offenses with children.

Even more starkly than in Poynter, the district court in Aleo’s case did not
reasonably distinguish Aleo from other sex offenders who molested young relatives.
The court did not take into account why Aleo should receive the harshest possible
sentence, even though he had not committed the worst possible variation of the crime.
He had, for example, cooperated with authorities, admitted responsibility for his actions,
and only committed one known offense involving sexual contact with a minor. There
was no evidence that he drugged the child or committed more than brief sexual contact.
While we share the district court’s outrage at Aleo’s acts, the justifications offered by
the district court do not support the enormous variance beyond the guidelines range and
the disparity with sentences of other, similar offenders. The sentence was substantively
unreasonable. Therefore, we reverse and remand for resentencing.9

9
Aleo argues that a resentencing should be remanded to a different judge. A decision to remand
to a different judge is based on considerations of whether the judge on remand is capable of providing a
fair and unbiased rehearing of the case, as well as with considerations of efficiency and the preservation
of judicial resources. See, e.g., United States v. Faulks, 201 F.3d 208, 209 (3d Cir. 2000); United States
v. Garcia-Robles, 640 F.3d 159, 168 (6th Cir. 2011) (considering whether there is “evidence in the record
indicating that the district judge will have difficulty conducting de novo sentencing” proceedings.). We
trust that Judge Friedman will revisit the matter with a completely open mind at the de novo resentencing
that must now take place, Faulks, 201 F.3d at 209, and we thus do not accept Aleo’s argument.
Nos. 10-1569/1570/1833 United States v. Aleo, et al. Page 17

II

Part II of this opinion deals with the $2,000 sanction imposed on Aleo’s trial
counsel, John Freeman. Freeman was sanctioned when the district court decided that he
filed a meritless motion in a bad-faith effort to intimidate a victim who wished to speak
during Aleo’s sentencing hearing, pursuant to her rights under the Crime Victims’ Rights
Act (CVRA), 18 U.S.C. § 3771. The court abused its discretion in deciding that
Freeman’s motion was filed in bad faith. Therefore, we reverse the sanctions.

A

On March 23, 2010, when he received the PSR, Freeman learned that victims of
Aleo’s offense—namely Aleo’s daughter and son-in-law, the parents of the abused
granddaughter—planned to speak at the sentencing hearing. Freeman states that he
became concerned about what the victims might say after discussing the issue with Aleo
on April 5. On April 6, Freeman expressed concerns about the victim statements in an
email to the Assistant United States Attorney (AUSA) who was prosecuting the case.
He wrote:

Paragraph 28 refers to the defendant’s daughter and her request to speak
at sentencing. Please let me know whether you intend to seek permission
from the court for her to speak. Also, please provide me with an offer of
proof regarding what you expect her to say.

The AUSA replied, stating that the CVRA did not require him to request permission
from the court for a victim to speak, and that he did not have to tell Freeman what the
victim would say.

On April 13, 2010, Freeman filed a motion to compel. The motion requested that
the court order the prosecutor to file “a formal motion, with notice to defense counsel,
seeking permission for the child complainant’s mother to speak at sentencing.”10

10
The Crime Victim’s Rights Act provides:
(a) Rights of crime victims.–A crime victim has the following rights:
. ..
(4) The right to be reasonably heard at any public proceeding in the district court involving release,
plea, sentencing, or any parole proceeding.
...
Nos. 10-1569/1570/1833 United States v. Aleo, et al. Page 18

Freeman described his fruitless email correspondence with the AUSA. Freeman said
that because the prosecutor had refused to do as he asked that he had no choice but to ask
the court to compel the prosecutor under the “motion and notice requirement of the
CVRA.”

At Aleo’s sentencing, Freeman reiterated the request embodied in his motion.
The district judge indicated that he did not want to discuss the motion, that he was going
to deny the motion, and that he would be issuing a written order.

On May 3, 2010, after it had issued its judgment regarding Aleo, the court issued
an order denying Aleo’s motion to compel and ordered additional briefing from the
parties on the question of sanctioning Freeman. The order described the motion as
unwarranted and baseless. It stated that “Freeman’s motion serves solely as a blatant
attempt to intimidate the minor victim’s mother,” and that “Freeman should know that
his client does not have a right to respond to a statement pursuant to the CVRA, and
Freeman’s intention to do so makes a mockery of the CVRA.” The court did note that
§ 3771(d)(3)—a subsection of the CVRA cited by Freeman—directs the court to “take
up and decide any motion” filed, but stated that this language “certainly does not compel
the victim to file a motion.” The court requested that Freeman and the government
submit briefing on the issue of appropriate sanctions.

In his brief on appropriate sanctions, Freeman stated that the motion had been
filed in good faith to address “a potential conflict between a defendant’s due process

(b) Rights afforded–
(1) In general.–In any court proceeding involving an offense against a crime victim, the court shall
ensure that the crime victim is afforded the rights described in subsection (a). . . .
...
(d) Enforcement and limitations.—
(1) Rights.–The crime victim or the crime victim’s lawful representative, and the attorney for the
Government may assert the rights described in subsection (a). A person accused of the crime may not
obtain any form of relief under this chapter.
...
(3) Motion for relief and writ of mandamus.–The rights described in subsection (a) shall be asserted
in the district court in which a defendant is being prosecuted for the crime or, if no prosecution is
underway, in the district court in the district in which the crime occurred. The district court shall take
up and decide any motion asserting a victim’s right forthwith. If the district court denies the relief
sought, the movant may petition the court of appeals for a writ of mandamus. . . .
18 U.S.C. § 3771 (emphasis added).
Nos. 10-1569/1570/1833 United States v. Aleo, et al. Page 19

rights and a victim’s right to be heard . . . under the [CVRA].” He noted that
§ 3771(d)(3) mentioned the court deciding motions, which led him to believe that
motions were required, and cited an article by Amy Baron-Evans, regarding “Rights and
Procedures Under the Crime Victims’ Rights Act” that had given him this idea.11 He
argued that defendants have a due-process right at sentencing to have notice and be
heard regarding disputed facts, citing United States v. Hayes, 171 F.3d 389, 392 (6th Cir.
1999) and United States v. Silverman, 976 F.2d 1502, 1504 (6th Cir. 1992) (en banc),
cert. denied, 507 U.S. 990 (1993). He stated that he recognized that judges could
consider evidence at sentencing that would be inadmissible at trial, but that any evidence
must nevertheless have sufficient indicia of reliability to support its probable accuracy.
Therefore, Freeman argued, as a “zealous advocate,” he had wanted to determine what
facts might be brought out at sentencing by the child’s mother, in case she brought up
disputed or unreliable facts.

The government’s response to the court’s request for briefing recommended that
Freeman not be sanctioned. The government assumed that the court would, if it decided
to sanction Freeman, do so under Federal Rule of Criminal Procedure 42, which states
the elements of criminal contempt as: (1) that the defendant engaged in misbehavior,
(2) that the misbehavior obstructed the administration of justice, (3) that the misbehavior
occurred in the presence of the court, and (4) that the defendant acted with the intent to
obstruct. Vaughn v. City of Flint, 752 F.2d 1160, 1167 (6th Cir. 1985). The government
stated Freeman’s erroneous reading of the CVRA did not obstruct justice, because the
government never told the victims about the motion and generally ignored it.

Nevertheless, the district court issued an order imposing sanctions of $2,000 on
Freeman. The court stated that “defendant’s brief affirms the Court’s initial impression”

11
Indeed, this article does state that the CVRA requires “[a] victim or alleged victim [to] ‘assert’
any ‘right’ by ‘motion.’” Amy Baron-Evans, Rights and Procedures Under the Crime Victims’ Rights Act
and New Federal Rules of Criminal Procedure, April 30, 2009, at 58, available at
http://www.fd.org/docs/select-topics---rules/rules-article-final.pdf?sfvrsn=2. The article also states that
“the defendant must be given notice and a full and fair opportunity to respond to any motion asserting a
victim’s rights. This is necessary to effectuate the defendant’s right to due process.” Ibid. Baron-Evans
is a resource counsel who has served as the National Sentencing Resource Counsel in the Office of Federal
Public Defenders for Massachusetts, New Hampshire, and Rhode Island. She was ranked as a
Massachusetts Super Lawyer in 2004, 2005, 2006, and 2008.
Nos. 10-1569/1570/1833 United States v. Aleo, et al. Page 20

that Freeman filed the motion to intimidate the victim’s mother. The court stated that
Freeman had been aware that the victim’s mother intended to speak since the PSR was
issued on March 9, 2010. If he had been acting in good faith, the court argued, he would
have filed the motion to compel earlier than April 13, 2010,12 and ideally would have
attached the request for motion and notice as an objection to the PSR. The district court
sanctioned Freeman not under Rule 42, as the government had envisioned, but under its
inherent authority to sanction “bad-faith conduct in litigation.” Chambers v. NASCO,
Inc., 501 U.S. 32, 42 (1991).

On June 21, 2010, Freeman filed a motion for reconsideration of the court’s order
sanctioning him, addressing the court’s inherent power to sanction. He argued that he
did not have an improper purpose in filing the motion, and quoted the Baron-Evans
article on which he had relied.

The district court denied the motion.

Freeman filed this timely appeal.

B

On appeal, Freeman argues that the district court abused its discretion because
it sanctioned him despite the fact that his motion to compel was filed in good faith and
not for an improper purpose.

We review a judge’s decision to impose sanctions under his inherent authority
for an abuse of discretion. Metz v. Unizan Bank, 655 F.3d 485, 489 (6th Cir. 2011).13
A court may exercise its inherent power to sanction when a party has “acted in bad faith,
vexatiously, wantonly, or for oppressive reasons,” or when the conduct was “tantamount
to bad faith.” Ibid. (citing Chambers, 501 U.S. at 45–46; Roadway Express, Inc. v.

12
Aleo’s sentencing hearing was held on April 15, 2010.
13
It may be questionable whether the inherent authority to sanction even exists in a criminal case
such as this one. An argument can be made that Federal Rule of Criminal Procedure 42, covering criminal
contempt, is the sole mechanism for punishing bad-faith conduct in criminal cases. We do not need to
reach this issue because Freeman’s conduct fails to merit sanctions under either the court’s inherent
authority or Rule 42.
Nos. 10-1569/1570/1833 United States v. Aleo, et al. Page 21

Piper, 447 U.S. 752, 767 (1980)). The three-part test to determine whether such bad
faith was present is whether the district court found “(1) that the claims advanced were
meritless, (2) that counsel knew or should have known this, and (3) that the motive for
filing suit was for an improper purpose such as harassment.” Ibid. (citing Big Yank
Corp. v. Liberty Mut. Fire Ins. Co., 125 F.3d 308, 313 (6th Cir. 1997)).

Even if Freeman’s motion was meritless, and even if Freeman should have
known this, the court has not given any evidence to support its position that Freeman
filed the motion to harass the victim’s mother. We may uphold an order of sanctions
even without an “express finding of willfulness, bad faith or recklessness,” but only if
the record sets forth evidence that the party acted in bad faith. Metz, 655 F.3d at 490.
The court “must find something more than that a party knowingly pursued a meritless
claim or action at any stage of the proceedings.” Id. at 489 (internal quotation marks
omitted).

The only tangible evidence the district court pointed to regarding bad faith was
the allegedly belated timing of Freeman’s motion. However, Freeman indeed raised the
matter about ten days before the hearing, in the email correspondence with the AUSA.
Only when the matter could not be resolved by agreement did he file. The subsequent
filing of the motion does not establish that he was acting in bad faith. In fact, Freeman’s
responses to the court provide tangible evidence, in the form of the Baron-Evans article
and § 3771(d)(3) of the CVRA, that he was relying on a colorable litigation strategy and
was not acting in bad faith. Finally, nothing in the tone or wording of his original
motion indicates an intention to harass the victims. It was not sent to them, and, even
if granted, the court would have compelled the government directly, not the victims
themselves. The record demonstrates only that Freeman’s motion was in error, not that
he filed it in bad faith. Without evidence of Freeman’s bad faith, the district court
abused its discretion.
Nos. 10-1569/1570/1833 United States v. Aleo, et al. Page 22

III

Based on the foregoing reasons, we REVERSE Aleo’s sentence and REMAND
for resentencing; we REVERSE the sanctions imposed on Aleo’s trial counsel, John
Freeman.
Nos. 10-1569/1570/1833 United States v. Aleo, et al. Page 23

_______________

CONCURRENCE
_______________

SUTTON, Circuit Judge, concurring. I join the court’s decision in full, including
its conclusion that the district court abused its discretion when it invoked its inherent
power to impose sanctions on defense attorney John Freeman for filing a frivolous
motion. I write separately to express skepticism about a lower federal court’s power
ever to use inherent authority, as opposed to the contempt power established by statute
(18 U.S.C. § 401) and implemented by rule (Fed. R. Crim. P. 42), to punish a defense
attorney in a criminal case for filing a frivolous motion.

Before moving forward with this point, let me take a few steps back. From the
founding to the present, the federal courts have possessed “implied powers” that “are
necessary to the exercise of all others.” United States v. Hudson, 11 U.S. (7 Cranch) 32,
34 (1812); accord Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991). That inherent
power extends to civil and criminal cases. See Chambers, 501 U.S. at 44; Illinois v.
Allen, 397 U.S. 337, 342–43 (1970). And that power would seem to include authority
to sanction attorneys in criminal cases. When the Constitution established a Supreme
Court and Congress later created the lower federal courts, those actions came with an
implied delegation to allow the courts to formulate procedures for their cases, including
a mechanism to control the lawyers before them. One cannot create a court without
giving judges the power to control the courtroom. The First Congress recognized as
much, creating a contempt power for civil and criminal cases that exists to this day. See
Judiciary Act of 1789, ch. 20, § 17, 1 Stat. 73, 83; 18 U.S.C. § 401. In 1944, Rule 42 of
the Federal Rules of Criminal Procedure was adopted to lay out a process for exercising
the criminal-contempt power.

What intrigues me is not whether the lower federal courts, in the absence of this
statute and rule, nonetheless would have power to sanction misbehaving criminal
defense lawyers. They assuredly had that power from the outset as a necessary incident
Nos. 10-1569/1570/1833 United States v. Aleo, et al. Page 24

of creation, whether Congress had codified the common law contempt power in 1789 or
not. My question is what remains of that inherent power today.

Congress’s Article III power to create the “inferior” federal courts includes the
lesser power to limit their authority. Because the lower federal courts “were created by
acts of Congress,” the legislature may “limit[]” their “inherent power . . . by statute and
rule.” Chambers, 501 U.S. at 47; accord Ex parte Robinson, 86 U.S. (19 Wall.) 505, 511
(1873). That explains why the lower federal courts may not use their inherent power to
“circumvent[ ]” or “thwart[ ] the purposes of the other sanctioning mechanisms”
Congress has provided directly by statute or less directly through the Rules Enabling
Act. Chambers, 501 U.S. at 51.

Had this been a civil case, it would have been an easy case. A court’s use of
inherent power to sanction the filing of Mr. Freeman’s (allegedly) frivolous motion
could not be reconciled with the sanctioning regime already in place under the Federal
Rules of Civil Procedure. In a civil case, a district court faced with sharp-elbowed
litigation tactics may, indeed must, sanction attorney misconduct under Civil Rule 11,
which requires attorneys to certify that any “pleading, written motion, or other paper”
is

(1) “not being presented for any improper purpose, such as to harass,
cause unnecessary delay, or needlessly increase the cost of litigation”;
(2) “warranted by existing law or by a nonfrivolous argument for
extending, modifying, or reversing existing law or for establishing new
law”;
(3) based on “fact contentions [that] have evidentiary support or, if
specifically so identified, will likely have evidentiary support after a
reasonable opportunity for further investigation or discovery”; and
(4) “warranted” based on a “reasonabl[e]” belief (or a “lack of
information”) if the lawyer or party is “deny[ing] . . . factual
contentions.”

Fed. R. Civ. P. 11(b). The Rule spells out the procedural prerequisites for imposing a
sanction (“notice and a reasonable opportunity to respond”), who may seek sanctions
(opposing parties and the court), the types of sanctions available (monetary and
nonmonetary) and the purpose and limits of a sanction (“limited to what suffices to deter
Nos. 10-1569/1570/1833 United States v. Aleo, et al. Page 25

repetition of the conduct or comparable conduct by others similarly situated”). Fed. R.
Civ. P. 11(c). Other rules, statutes and regulations grant courts permissive sanctioning
authority to address related problems in civil cases. See Fed. R. Civ. P. 16(f), 26(g)(3),
37, 56(h); 18 U.S.C. § 401; 28 U.S.C. § 1927; see also 8 U.S.C. § 1229a(b)(6)
(immigration proceedings); 37 C.F.R. § 2.120(g) (trademark proceedings); Fed. R. App.
P. 38 (appellate proceedings); Fed. R. Bankr. P. 9011 (bankruptcy proceedings).

In the face of these carefully delineated regulations, it would be one thing to
invoke inherent sanctioning authority to fill a gap in the Civil Rules, such as conduct
outside the court’s jurisdiction. See Chambers, 501 U.S. at 36–37, 50–51 (litigant and
his attorney “attempt[ed] to perpetrate a fraud on the court” by undertaking a series of
bad-faith transactions to thwart the judicial process before filing lawsuit). It would be
quite another to invoke that power to ease the burden of satisfying existing Civil
Rules—to punish practices exempted by a Rule or that fall short of meeting a Rule’s
standard for sanctionable conduct. See United States v. One 1987 BMW 325, 985 F.2d
655, 661 (1st Cir. 1993); cf. Carver v. Bunch, 946 F.2d 451, 453 (6th Cir. 1991) (local
court rules “cannot conflict with the Federal Rules of Civil Procedure, Acts of Congress,
and rules of practice and procedure prescribed by the Supreme Court”). Accordingly,
had this been a civil case, a district court could not have used its gap-filling inherent
power to sanction Mr. Freeman. Any effort to sanction the lawyer would have to rise
or fall based on the relevant rules and statutes already in place.

But this was not a civil case. In contrast to the many rules and statutes
empowering the courts to impose sanctions in civil cases, the number of rules and
statutes directed solely to attorney misconduct in a criminal case is: none. Even the
contempt power authorized by § 401 and Criminal Rule 42 applies to misconduct in
criminal and civil cases. See, e.g., Young v. United States ex rel. Vuitton et Fils S.A.,
481 U.S. 787, 789–90 (1987); United States v. Moncier, 571 F.3d 593, 594, 598 (6th
Cir. 2009). All we have is a void, not a gap, when it comes to the statutes and rules
directed solely to attorney misconduct in criminal cases, leaving just one other power
available—the contempt power—which applies to all federal cases.
Nos. 10-1569/1570/1833 United States v. Aleo, et al. Page 26

What should courts infer from this categorical silence, from the absence of other
statutes and rules applicable to sanctions in criminal cases? Does it mean that the
contempt power is the only tool available to district courts to deal with attorney
misconduct in criminal cases? Or does it mean that Congress and the Rules drafters
assumed courts also could sanction attorneys in criminal cases based on inherent
authority, whether used in ways that mirror the civil rules, ways that mirror inherent
powers innovated in civil cases, see Chambers, 501 U.S. at 50–51, or still other ways?

I lean toward the former view. There are good reasons to think Congress and the
Rules drafters meant to treat civil cases and criminal cases differently when it comes to
regulating attorney misconduct. To ensure that criminal defendants receive zealous
advocacy, 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). Surely the decision not to import Civil Rule 11 into the
Criminal Rules, to take one example, was an intentional and sensible one. Otherwise,
the risk of sanctions could chill legitimate, indeed constitutionally required, advocacy,
and district courts could sanction litigation stances that are utterly appropriate in
criminal cases. A frivolous plea of not guilty is one example of the latter. United States
v. White, 980 F.2d 836, 843 (2d Cir. 1992). A frivolous refusal to admit elements of a
charged offense is another. See ABA Model Rule of Professional Conduct 3.1
(prohibiting lawyers from making frivolous arguments but permitting criminal-defense
attorneys to “defend the proceeding [so] as to require that every element of the case be
established”). What, moreover, if a prosecutor “sign[ed] an unjustified indictment,”
keeping in mind the “doctrine of prosecutorial immunity”? White, 980 F.2d at 843.
What if a court imposed monetary sanctions against the government, implicating its
sovereign immunity and potentially amounting to a sanction greater than Congress
allows for bad-faith prosecutions? See 18 U.S.C. § 3006A, Statutory Notes (allowing
the assessment of costs against the government in a criminal case where “the position
of the United States was vexatious, frivolous, or in bad faith”); United States v. Horn,
29 F.3d 754, 763–64 (1st Cir. 1994).
Nos. 10-1569/1570/1833 United States v. Aleo, et al. Page 27

Perhaps the Rules drafters could tailor a Civil-Rule-11-like sanctioning regime
to the criminal setting. But they conspicuously and, one suspects, consciously have not
done so. Neither has Congress done so by statute. Nor has the President done so by
executive order. See Exec. Order No. 12,778, 56 Fed. Reg. 55,195, 55,197, 55,200 (Oct.
23, 1991) (directing federal government attorneys to “seek sanctions against opposing
counsel and opposing parties where appropriate” but exempting criminal cases).
Sometimes flagrant inaction amounts to action, particularly where the nearly silent
Criminal Rules stand side by side with the many Civil Rules authorizing sanctions. Not
only would it be difficult to import many of the civil-sanctioning powers into the
Criminal Rules, but the passage of more than three-quarters of a century since the Rules
Enabling Act became law without the passage of any comparable rules suggests that the
omission is no accident.

Perhaps the omission reflects something else—the difficulty of drafting sanctions
rules for criminal cases and the resulting utility of allowing district courts to use an
inherent-sanction power on a case-by-case basis. I do not doubt the former, but I cannot
believe the latter is the answer. The reason drafting such rules presents a challenge is
that the stakes of a criminal trial are so high. A fair trial is the objective in civil cases,
but it is the overriding constitutional imperative in criminal cases. The notion that
district courts have a free-floating inherent power to sanction frivolous legal positions
taken by attorneys in criminal cases but not civil cases flips these priorities.

That leaves the best inference: Congress and the Rules makers meant to give the
federal courts just one tool—the contempt power—to discipline attorneys in criminal
cases. Here is how the statute and Rule lay out the power and the process. The statute
says in full:

A court of the United States shall have power to punish by fine or
imprisonment, or both, 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;
(2) Misbehavior of any of its officers in their official
transactions;
Nos. 10-1569/1570/1833 United States v. Aleo, et al. Page 28

(3) Disobedience or resistance to its lawful writ, process,
order, rule, decree, or command.

18 U.S.C. § 401. The statute covers civil and criminal contempt, a “somewhat elusive”
distinction, Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 830
(1994). Generally speaking, civil contempt is used “to coerce future compliance with
a court’s order” or to “compensate for the injuries” resulting from misconduct, In re
Jaques, 761 F.2d 302, 305-06 (6th Cir. 1985), while criminal contempt is “imposed for
punitive purposes” and does not “serve to compensate an aggrieved party or coerce a
future action.” In re Chandler, 906 F.2d 248, 249 (6th Cir. 1990); see also 3A Charles
Alan Wright et al., Federal Practice & Procedure § 703 (4th ed.). In a criminal case,
most if not all contempt citations will be punitive and backward-looking.

Rule 42 of the Federal Rules of Criminal Procedure spells out the process for
criminal contempt. Unless the court personally “saw or heard the contemptuous
conduct,” it must provide notice, allow a reasonable time to prepare a defense, and
appoint an attorney to prosecute the contempt. Fed. R. Crim. P. 42(b), (a). When it
comes to sanctions for attorney misconduct in criminal trials, that is all there is—§ 401
and Rule 42—and one wonders why the federal courts should not leave it at that.

Chambers, it is true, held that a federal court is not “forbidden to sanction bad-
faith conduct by means of the inherent power simply because that conduct could also be
sanctioned under the statute or the Rules.” 501 U.S. at 50. But Chambers was a civil,
not a criminal, case, and there is a difference between the two. The conduct in
Chambers that implicated Civil Rule 11, moreover, was intertwined with “bad-faith
conduct . . . beyond the reach of the Rules . . . that only the inherent power could
address.” Id. at 50–51. In that setting, the Court reasoned, it would “foster extensive
and needless satellite litigation” to require a district court to separate out the conduct
forbidden by the Rules from conduct sanctionable only through the inherent power. Id.
at 51. When a court is faced with conduct not intertwined with other conduct outside the
purview of the Rules, Chambers says that the court “ordinarily should rely on the Rules
Nos. 10-1569/1570/1833 United States v. Aleo, et al. Page 29

rather than the inherent power,” resorting to the latter only when “neither the statute nor
the Rules are up to the task.” Id. at 50.

Since Chambers, the Court has twice admonished lower courts not to use
inherent power to sidestep the Federal Rules of Criminal Procedure. “Whatever the
scope of [a court’s] inherent power, it does not include the power to develop rules that
circumvent or conflict with the Federal Rules of Criminal Procedure.” Carlisle v. United
States, 517 U.S. 416, 426 (1996) (prohibiting district courts from using inherent
authority to grant motions for judgment of acquittal filed outside the time limit
prescribed by Federal Rule of Criminal Procedure 29(c)); accord Bank of Nova Scotia
v. United States, 487 U.S. 250, 254–55 (1988). The Rules represent the relevant Rules
committees’ and Congress’s judgment about how best to balance competing values. In
Bank of Nova Scotia, for instance, the district court tried to use its inherent power to
disregard the harmless-error inquiry prescribed by Federal Rule of Criminal Procedure
52(a). 487 U.S. at 254. In rejecting that effort, the Court reasoned that “[t]he balance
struck by the Rule between societal costs and the rights of the accused may not casually
be overlooked because a court has elected to analyze the question under the supervisory
power.” Id. at 255.

Just so here. Like Rule 52, § 401 and Rule 42 balance competing values: to
deter and punish offensive conduct on the one hand yet to give criminal defense
attorneys the space to represent their clients zealously on the other. The history of the
federal contempt statute shows that the tradeoff is not a figment. The Judiciary Act of
1789 gave federal courts the “power . . . to punish by fine or imprisonment, at the
discretion of said courts, all contempts of authority.” § 17, 1 Stat. at 83. A judge
eventually abused this broad grant of power. In 1826, Judge James Peck, of the United
States District Court for the District of Missouri, imprisoned and disbarred a lawyer for
criticizing his opinion on appeal—a remarkable, if mildly understandable, lapse in
judgment. See Arthur J. Stansbury, Report of the Trial of James H. Peck 2–5 (1833);
Benjamin H. Barton, An Article I Theory of the Inherent Powers of the Federal Courts,
61 Cath. U. L. Rev. 1, 44–45 & n.315 (2011). In response to public outcry over the
Nos. 10-1569/1570/1833 United States v. Aleo, et al. Page 30

judge’s action, Congress imposed new limitations on the federal courts’ contempt power.
See Act of Mar. 2, 1831, ch. 99, § 1, 4 Stat. 487 (establishing the limitations that now
appear in 18 U.S.C. § 401(1)–(3)). The next time an attorney criticized one of Judge
Peck’s rulings on appeal, does anyone think the judge could have disregarded
Congress’s limitations on the contempt power by invoking his inherent sanctioning
authority? Of course not: a judge may not use inherent power to end-run a cabined
power.

That leaves the question whether the conduct at issue here—the filing of a
frivolous motion to harass a potential witness, so we assume—is the sort of behavior that
falls within the purview of, and is thus subject to the limitations imposed by, § 401 and
Rule 42. Yes, it seems to me. A criminal defense attorney’s conduct amounts to
contempt if it satisfies four criteria: (1) it “must constitute misbehavior under 18 U.S.C.
§ 401(1)”; (2) it “must amount to an obstruction of the administration of justice”; (3) it
“must occur in the court’s presence”; and (4) “there must be a form of intent to obstruct.”
Chandler, 906 F.2d at 249. If a criminal defense attorney files a frivolous motion with
no motive other than to obstruct proceedings or intimidate a witness, the contempt power
potentially covers the conduct—and would be accompanied by the procedural
protections of Rule 42, including the requirement that the attorney’s guilt be proved
beyond a reasonable doubt. See In re Smothers, 322 F.3d 438, 442 (6th Cir. 2003).

Why didn’t the district court invoke that power here? It does not say. But the
most likely explanation is that Freeman’s conduct fell short of what § 401 and Rule 42
require, perhaps because his improper motive could not be proved beyond a reasonable
doubt. If so, that is just the sort of “circumvent[ion]” of the Rules that the Court warns
us not to permit. Carlisle, 517 U.S. at 426; Bank of Nova Scotia, 487 U.S. at 254. A
court’s inherent power to sanction is not a second-division contempt power to be used
when an attorney’s conduct is almost, but not quite, punishable under § 401 and Rule 42.
If a court is to invoke its inherent power to punish attorneys at all in the criminal context,
it must be in response to conduct categorically beyond the scope of the contempt power.
Nos. 10-1569/1570/1833 United States v. Aleo, et al. Page 31

In that case, a court resorting to its inherent power is not circumventing any limitations
the Rules impose; it is addressing a situation not contemplated by the Rules at all.

The government calls our attention to a handful of cases in which other courts
of appeals approved the use of inherent-power sanctions in criminal cases. But these
cases illustrate our point. The government cites no case, nor have we found one, in
which a court of appeals affirmed a district court’s use of its inherent power to impose
sanctions on an attorney for filing a frivolous motion in a criminal case. The cited cases
either reverse sanctions orders, see United States v. Gonzalez-Lopez, 403 F.3d 558,
564–67 (8th Cir. 2005); United States v. Figueroa-Arenas, 292 F.3d 276, 279–82 (1st
Cir. 2002), or concern attorney misconduct unrelated to advancing legal arguments, see
United States v. Kouri-Perez, 187 F.3d 1, 4–5, 9 (1st Cir. 1999) (attorney made baseless
ad hominem attacks on prosecutor, including an allegation that she was the
granddaughter of former Dominican Republic dictator Rafael Trujillo); United States v.
Wallace, 964 F.2d 1214, 1215–16, 1218 (D.C. Cir. 1992) (attorney neglected to call
witnesses to appear, forcing trial to be rescheduled); see also United States v. Romero-
Lopez, 661 F.3d 106, 107–08 (1st Cir. 2011) (attorney failed to show up for scheduled
sentencing hearing); Bills v. United States, 11 F. App’x 342, 342–43 (4th Cir. 2001) (per
curiam) (same). When it comes to court filings, Congress and the Rules makers struck
a context-specific balance when they included Rule 11 in the Civil Rules and omitted
any parallel sanction in the criminal context. The most natural inference to draw from
the contrast is that, if courts wish to punish criminal defense attorneys for improper
filings, they should satisfy the strictures of the contempt power, not rework this balance
however they see fit under their inherent power.

But inferences from silence, even seventy-five years of silence, contain risks of
their own. Rather than take the position that lower federal courts may never invoke an
inherent sanctioning power when it comes to frivolous filings in criminal cases, the
better part of valor is to suggest that a district court tempted to invoke its inherent
powers ought to resist the urge unless it can satisfactorily address these considerations:
Nos. 10-1569/1570/1833 United States v. Aleo, et al. Page 32

1. Is there a relevant Criminal Rule? If so, why not invoke it?

2. Is there a Civil Rule covering the same conduct? If so, is it possible that
the drafters of the Criminal Rules opted not to impose similar sanctions in criminal cases
because the Civil Rule does not lend itself to the criminal context?

3. If neither the Criminal Rules nor the Civil Rules speak to the issue,
should a court impose such sanctions on a case-by-case basis or urge the Advisory
Committee on the Federal Rules of Criminal Procedure to invoke the deliberative and
inclusive Rules Enabling Act process to consider the adoption of a new Rule? See Mark
A. Kravitz, To Revise, or Not to Revise: That Is the Question, 87 Denv. U. L. Rev. 213
(2010).

4. If none of this gives a court pause and if imposing a criminal sanction for
a frivolous filing remains consistent with the “restraint and discretion” appropriate for
any exercise of inherent judicial power, Chambers, 501 U.S. at 44, this is a rare case.
And if the court of appeals upholds the sanction, it may be a unique one.