United States v. Colon-Munoz

United States Court of Appeals
For the First Circuit

No. 02-1583

UNITED STATES OF AMERICA,

Appellee,

v.

RAMIRO L. COLON-MUNOZ,

Defendant, Appellant.

ON EMERGENCY MOTION FOR STAY OF VOLUNTARY SURRENDER

AND FOR BAIL PENDING APPEAL

[Hon. Juan M. Pérez-Giménez, U.S. District Judge]

Before

Boudin, Chief Judge,

Selya and Lipez, Circuit Judges.

Peter Goldberger on Emergency Motion for Stay of Voluntary
Surrender and for Bail Pending Appeal for appellant.
Nelson Perez-Sosa, Assistant United States Attorney, and Jorge E.
Vega-Pacheco, Chief, Criminal Division, on Opposition to Appellant's
Motion for Stay of Voluntary Surrender and for Bail Pending Appeal for
the United States.

May 30, 2002
 BOUDIN, Chief Judge. In December 1996, Ramiro L. Colon-

Munoz, was convicted on multiple federal charges relating to events

that occurred when he was president of the Ponce Federal Bank in Puerto

Rico. On appeal this court affirmed his convictions for conspiracy,

misapplication of bank funds, bank fraud and related counts, 18 U.S.C.

§§ 371, 657, 1006, 1344; but because this court ordered a judgment of

acquittal on certain other counts, it remanded for resentencing of

Colon-Munoz on the affirmed convictions. United States v. Colon-Munoz,

192 F.3d 210 (1st Cir. 1999), cert. denied, 529 U.S. 1055 (2000).

Following remand, on September 13, 2000, Colon-Munoz filed

a motion for a new trial, Fed. R. Crim. P. 33. The probation office

prepared a new addendum to the presentence report, and the parties

filed submissions in response. Thereafter, no action was taken on the

new trial motion or the sentencing for over a year and a half.

Accordingly, in early 2002, over five years after his conviction,

Colon-Munoz remained free on bail and without a sentence.1

On April 8, 2002, the Judicial Council of this circuit issued

an order pursuant to 28 U.S.C. § 332(d)(1) (1994). This order

reflected the Judicial Council's concern with the backlog of cases that

1On February 8, 2002, the original district judge held a
hearing on resentencing at which Colon-Munoz argued that an
offer of proof in support of his new trial motion also was
relevant to sentencing issues. Supplemental memoranda were
filed thereafter and the court indicated that it would reset a
date for sentencing "within seven days after the court rules on
the pending motion for a new trial."

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had developed in the docket of the district judge who had presided over

the Colon-Munoz trial and had resumed authority over the case following

this court's remand. The Judicial Council's order, which was not

concerned in particular with the Colon-Munoz case, adopted several

temporary measures to ameliorate the problem. One of these was to

provide that a three-judge committee of the district court headed by

the chief judge be authorized for a limited period to transfer criminal

cases that had been pending before the district judge in question for

more than two years, and civil cases pending for more than three years,

where the committee determined that this would expedite resolution.

On April 12, 2002, the committee entered an order directing

that 24 long-pending criminal cases and a number of long-pending civil

cases on the docket of the district judge in question be randomly

reassigned to other judges. Among the former group was the Colon-Munoz

matter. Shortly thereafter, the Colon-Munoz case was transferred by

the district court clerk's office to a new district judge, randomly

selected. Colon-Munoz then moved to retransfer the case.

On April 24, 2002, the successor judge denied the motion to

retransfer and also denied the new trial motion. In denying the new

trial motion, the successor district judge certified, see Fed. R. Crim.

P. 25, that he was familiar with the trial record and fixed sentencing

for a date in May. The new trial motion was denied in a detailed, 14-

page opinion and order dated April 24, 2002, discussing and rejecting

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the arguments made in Colon-Munoz's September 1999 new trial motion.

Thereafter the successor judge received an amended presentence report

and written objections from Colon-Munoz to the amended presentence

report. The court also heard oral argument on the defense objections

and afforded an opportunity for allocution.

On May 14, 2002, the successor judge resentenced Colon-Munoz,

imposing a sentence of 16 months' imprisonment in lieu of the sentence

of 21 months that had been imposed following the 1996 convictions. The

successor judge also set a reporting date of May 17, 2002, for Colon-

Munoz.2 Colon-Munoz immediately filed a notice of appeal to this court

and sought an emergency stay so that he could remain free on bail

pending appeal. In this motion, Colon-Munoz said that the issues to be

raised on appeal included the denial of the motion for a new trial, the

reassignment of the case to the successor judge, and certain guideline

issues that had arisen in connection with his resentencing. This court

temporarily deferred Colon-Munoz's reporting date to provide time for

adequate consideration of the emergency motion, which we now deny.

Under the Bail Reform Act of 1984, there is no presumption

in favor of release pending appeal; on the contrary, even when the

conviction does not involve a crime of violence or drug offense,

2
The successor judge denied bail on appeal after determining
that none of the issues which defendant sought to raise on
appeal were substantial questions likely to lead to a new trial
or a reduced term of imprisonment.

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detention (following conviction and sentencing) is mandatory unless the

judicial officer finds inter alia "that the appeal is not for the

purpose of delay and raises a substantial question of law or fact

likely to result in" a reversal, new trial, or reduced term of

imprisonment that would expire during the expected duration of the

appeal process. 18 U.S.C. § 3143(b)(1) (1994).

The "likely to result" standard is applied flexibly--a

question that can be regarded as "close" will often suffice, United

States v. Bayko, 774 F.2d 516, 523 (1st Cir. 1985)--but we conclude

that, on the basis of argument so far, none of the issues identified by

Colon-Munoz meets this standard. We start with the reassignment issue;

Colon-Munoz' main arguments are directed to claims that the

reassignment of his own case by the committee, and the actions of the

successor judge, did not comply with Rule 25 of the Federal Rules of

Criminal Procedure.

As background, we note that by statute, each Judicial

Council, composed of both circuit and district judges, has broad

authority to "make all necessary and appropriate orders for the

effective and expeditious administration of justice within its

circuit." 28 U.S.C. 332(d) (1994). One of the intended purposes was

to address judicial delay; and an order of the Judicial Council

reassigning cases or providing an impartial mechanism for doing so

falls within the broad mandate of section 332(d), at least so long as

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the order is directed to administrative concerns and is not based upon

the merits of the case.3

In his motion, Colon-Munoz has not challenged the Judicial

Council's general authority to order reassignment; instead, his claims

turn upon subsequent events in relation to Rule 25. Dealing with

reassignment of criminal cases after the guilty verdict--a different

provision deals with reassignment during trial--Rule 25(b) provides as

follows:

(b) AFTER VERDICT OR FINDING OF GUILT. If
by reason of absence, death, sickness or other
disability the judge before whom the defendant
has been tried is unable to perform the duties to
be performed by the court after a verdict or
finding of guilt, any other judge regularly
sitting in or assigned to the court may perform
those duties; but if that judge is satisfied that
a judge who did not preside at the trial cannot
perform those duties or that it is appropriate
for any other reason, that judge may grant a new
trial.

3
See Chandler v. Judicial Council of the Tenth Circuit, 398
U.S. 74, 98-102 & n.7 (1970) (Harlan, J., concurring)
(addressing legislative history of section 332); In re McBryde,
117 F.3d 208, 227-29 (5th Cir. 1997) (noting that "judicial
council rules promulgated to alleviate judicial delay" have been
upheld and that a judicial council has authority to "reassign
cases for administrative reasons"); cf. McBryde v. Committee to
Review Council Conduct & Disability Orders of the Judicial
Conference of the United States, 83 F. Supp. 2d 135, 139, 164-65
(D.D.C. 1999), vacated in pertinent part as moot, 254 F.3d 52
(D.C. Cir. 2001); Vickers Assocs., Ltd. v. Urice, 151 F.3d 93,
101-03 (3d Cir. 1998); Truesdale v. Moore, 142 F.3d 749, 760
(4th Cir. 1998). See generally Report of the National
Commission on Judicial Discipline & Removal 14-17 (1993); Geyh,
Informal Methods of Judicial Discipline, 142 U. Pa. L. Rev. 243,
264-65 (1993).

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 At the outset, the stay motion contends (without elaboration)

that the reassignment in this case cannot meet the "by reason of"

requirement; but that claim is plainly mistaken. A judge who has been

removed from a case could well be described as "absent" or under a

"disability" but, in any event, the "by reason of" phrase taken as a

whole is surely meant to encompass--or at least not to preclude--any

legitimate reason why a district judge cannot continue in the case.

See United States v. Diaz, 189 F.3d 1239, 1244-45 (10th Cir. 1999),

cert. denied, 529 U.S. 1031 (2000).

This court, by necessary implication, has already assumed

this to be so. "Recusal" is not expressly listed in the sequence

("absence, death, sickness or other disability"), but surely a judge

who had to recuse himself or herself after trial and before sentencing

(an unlikely but perfectly possible event) could be replaced under or

consistent with Rule 25(b). We had just such a case, United States v.

Snyder, 235 F.3d 42 (1st Cir. 2000), cert. denied, 532 U.S. 1057

(2001), and sustained the new sentence against various attacks. This

Rule 25 issue may technically be open in this circuit but we do not

think it is substantial.

Next, the stay motion intimates that Colon-Munoz may

challenge the district judge's denial of the motion to retransfer the

case; but even assuming that the district judge had authority to

retransfer the case--which might well be disputed--it is hard to see

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how the failure to do so in the present circumstances could be

described as an "abuse of discretion." United States v. Bourgeois, 950

F.2d 980, 987-88 (5th Cir. 1992). The motion also asserts that the

successor district judge was not sufficiently familiar with the record

to perform the sentencing, as Rule 25(b) requires; but even though Rule

25(b) does not require an affirmative statement, the district judge

flatly stated that he was familiar, and his detailed treatment of the

new trial motion and the sentencing objections bears this out. Id.

So far, we have proceeded on the arguendo assumption, which

might be debatable, that Colon-Munoz has the right to challenge the

process that led to his sentencing before a different judge than the

judge who presided at his jury trial. Colon-Munoz is entitled to be

sentenced by a competent judge who has become familiar with the case,

but beyond this litigants subject to the authority of the district

court do not normally have any say as to the particular judge who acts

for the court. Reassignment of civil and criminal cases within a

district court occurs regularly, for numerous reasons related to

administrative convenience or necessity, and a litigant has no vested

right to a particular judge. See generally, Sinito v. United States,

750 F.2d 512, 515 (6th Cir. 1984); United States v. Keane, 375 F. Supp.

1201, 1204 (N.D. Ill. 1974).

There remain the guideline claims put forth by Colon-Munoz's

motion, which we have carefully considered. Although he is free to

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pursue them on this appeal--as well as the Rule 25 or other related

claims discussed above--the guideline arguments are routine contentions

as to the choice of the guideline manual to be used and the application

of particular guideline provisions. None of these claims, at least as

so far elaborated, suggests that it is likely to result in reversal or

a greatly shortened sentence.

Accordingly, the motion for stay pending appeal is denied.

This court's temporary stay entered on May 17, 2002, is vacated. The

prior reporting date having passed, the district judge will set a new

reporting date. This order is effective immediately.

It is so ordered.

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