*2 28,1995. uled for HIGGINBOTHAM, M. Before EMILIO Investigations into the boilerrooms contin- DENNIS, Judges. Circuit GARZA early Phoenix Assistant Unit- ued. Darcy Attorney Cerow convened ed States HIGGINBOTHAM, E. Circuit PATRICK jury, began investiga- grand which further Judge: alleged co- into Satz and three óf tions reassign petition This arises out Schwartz, conspirators: Anthony Pe- Lester pending before ment two once Schwartz, After and Robert Schwartz. ter District Texas. in the Northern March negotiations, on extended v. styled The two cases United States pled guilty Judge Ro- before the Sehwartzes Torres, Sanjuana et Michael Eric Satz and arising out of their to certain crimes senblatt Industries, Trinity Inc. al. plea bargains, In their boilerroom activities. McBryde requested the Judicial Council cooperate law agreed to the Sehwartzes reassign Circuit to invalidate these two continuing in- authorities in the enforcement “Judge Bu- ments. The Council found plea At the vestigation the boilerrooms. predicate, on ehmeyer’s factual which colloquy following occurred: proceeding, the orders, ultimately was correct” and based rec- Anything further for the The Court: reassignment by its ordered their own ord? petition then for man filed One, Honor, things. two Ms. Cerow: Your petition this court. The raises damus with number I we need a for believe carries questions difficult information. superintendence into us uncharted waters Clerk: 95-79. CR begin judges. III with a de of Article We Oh, yes. The Court: scription two We return cases. then They need move to seal. petition procedural history of the The Clerk: -, L.Ed.2d 487 enterprise S.Ct. are U.S. (1997);
1. The facts behind Satz’s criminal - -, Gray, United States v. examined in more detail in denied, - 1057(1997). Cir.), (5th L.Ed.2d 961-62 cert. F.3d granted. part using The motion to seal is offense the same levels some of The Court: good A argument conduct. faith existed that minutes of the docket entries The criminal jeopardy. this double-use constituted double cases, corresponding to each of the Schwartz already Circuit that this Fifth held apparently have been available jeopardy double-use did violate double affair, pendency of throughout the public *3 yet principles. The Ninth Circuit had the fact the Schwartzes had reflected question. scheduling decided the Thus stated, “govt’s oral pled seal guilty m/ sentencing Texas after the sentenc- Arizona granted.” jeopardy finesse con- double Cerow then contacted Northern AUSA might tention Satz later make. The motion Phillip Umphres District of Texas AUSA re- sealing did not mention Rosenblatt’s According to testimo- garding Satz case. sentencing. order as reason to continue ny gave Judge McBryde, later she before Meanwhile, difficulty getting Satz had Umphres Cerow told Rosenblatt’s sentencing. Fort for his Worth scheduled investiga- sealing ongoing order and of the He a motion to to Fort filed be transferred particular, tion. Cerow related court, Worth with the Arizona which investigation produced docu- Phoenix had April Rosenblatt on 17. At the denied suggesting that involvement in ments Satz’s court, hearings eventual than certain boilerrooms was more extensive McBryde upon receiving stated that notice of enforcement authorities either Arizona or order, this he called Rosenblatt verified, previously Texas had If believed. got agree him to to transfer Fort longer the information would lead to a sen- Worth. testimony Satz. The tence for AUSAs Umphres regarding Cerow conflicted April Judge McBryde On denied AUSA Umphres which extent to Cerow informed of Umphres’ motion to Texas continue Satz’s government’s position regarding stated, sentencing. The denial order “[t]he scope sealing Rosenblatt’s order. contents motion of the United States of America indicates that government has 4, 1995, April Umphres On moved AUSA information concerning additional activi- sentencing to continue Satz’s Texas until ties of ERIC defendant MICHAEL SATZ June This motion was not under seal. (‘Satz’) that could have the sen- relevance to Judge McBryde The motion asked to contin- tencing of Satz.” ordered April sentencing ue the then for scheduled supplementary United States deliver a problem reasons. three The first was report written to the detail- Probation Office logistics. currently Satz was held in Ari- ing all such relevant and re- information a sentencing zona and had there in scheduled quested the Probation write an Office to May. The second was that AUSA Cerow to the addendum PSR. continuing investigation was the Arizona into Satz’s April Umphres boilerroom activities and associa- On AUSA filed under co-conspirators, tion with certain sentencing seal a renewed motion to continue family. motion identified as along Again, the Schwartz with five exhibits. text of The motion recited the information thus itself sealing motion did not mention generated suggested may far Umphres that Satz have order. Instead stated that had bigger player been a in the boilerrooms than some delivered material to the Probation Of- fice, previously been believed and but that this material was cumulative to may perjury have committed at his Texas already possessed. documents that office Arizona, trial. The motion further that AUSA stated Further documents but remained planned to investigation Umphres Cerow continue the AUSA did not know exact .of their by asking grand subpoena an Arizona jury suggested contents. These documents Satz’s witnesses, perhaps boilerrooms, bank records and live involvement additional prosecution leading uncorroborated, to the yet other unnamed the information was as individuals. The third reason to investigation continuing. continue and the Arizona sentencing motion, According Satz’s was that the Arizona and “disclosure pre-sentence reports Texas calculated Satz’s set out in information Exhibit A at time stated, “The grand jury order material on-going motion. The jeopardize [the] [would] report [government’s] motion and its investigation provided Arizona].” [in sentencing asked also strongly continue that one or attachments indicates McBryde to the Probation Office representatives more the United States from keep all secret defendant information engaged America has conduct calculated Satz. objectives in this frustrate the noncompliance with the action and to cause Umphres to the Pro-
A memorandum signed by the court in this action It stated that Office was attached. bation plea agreements not indicate 1995.” order did Cerow had reached AUSA Satz in the certain individuals above government had raised the issue that these individ- operation, boilerroom sealing instruct- memo- been “debriefed.” The uals had since Cerow, Inspector AUSA Postal Whiteak- ed *4 explained that had informed Cerow randum er, April appear to at an and defendant Satz plea agreements and fac- Umphres “that the bring hearing for the to former two have relating to the defendant tual resumes potentially them all information relevant to filed seal as wanted [Cerow] been that sentencing. The order stated to Satz’s cooperation their secret keep the fact of the would hearing at the court determine in order avoid the moment to Satz] for [from in proceed to camera. whether targets investigation, alerting other of her McBryde April Judge began the Finally, On identify.” she the did who[m] Inspector days hearings Postal on the stated that of three memorandum first possessed certain infor- prior sentencing. Whiteaker once Rex matter AUSA Cerow mation, but that Cerow had asked Whiteaker De- appeared with counsel from the Justice possession his send all in documents Inspector partment along with Whiteaker all Arizona and had told him that information hearing, At this first and defendant Satz. grand jury secrecy rules covered the was that the Judge McBryde made clear view 6(e). in Fed.R.Crim.P. embodied manipulate attempting was government order of the Arizona and Texas sentene- the Umphres as an exhibit also attached jeopardy prob- in ings order to avoid double Umphres 20 from April dated Cerow letter McBryde ordered AUSA Cer- Judge lems. again emphasized continuing grand the that 6(e) potentially to turn over all information ow jury and the Rule concerns investigation letter, response, relevant Satz. disclosing information. This about order, categories in- infor- sealing that three which did not mention a Cerow stated following paragraph: the was information cluded mation existed. first warrant court, generated in relation to a search If, we through an order of pro- second was information Arizona. The secrecy grand of the were to invade Rule time, secrecy requirement of jury at this the investi- tected investigation 6(e). by a covered severely compromised. be The third was information gation would Although targets probably by Judge aware Rosenblatt. sealing are order entered they in the investigation, do know information of the turned over the Cerow jury’s knowledge of grand of the extent But she declined categories. first two investigation If were activities. category their the third provide information record, the public matter of to become a brought had not those docu- that she stated destroy position targets would Citing Judge Rosen- from Arizona. ments forfeiture, documents, avoid move assets to order, attorney also sealing Cerow’s blatt’s country prosecution. flee the to avoid Judge comply with on her behalf to declined essentially bring the These acts re- Inspector Whiteaker order. investigation grand jury halt comply as and referred fused to well key non-prosecution in the would result sealing and to Cerow’s court players. infor- all send previous instructions Arizona. Cerow’s possession Judge mation day Later only that the attorney Umphres’ latest told upon ruled AUSA released, Judge MeBryde questioned was written and dated March sealing order Texas Umphres. Umphres AUSA disclosed Schwartzes, who had been mentioned in Judge MeBryde, was According to trial Judge MeBryde, Satz’s before were sealing heard order. He first he had targets investigation three of of the con- why Rosenblatt had entered it asked Arizona, tinuing and that certain defen- were. Cerow and her and what its contents pled guilty cooperating dants had answering attorney responded either government. Umphres with the also stated sealing violate the question would although he had known existence MeBryde pressed know When sealing early April, of a order since he had itself, sealing order Cerow’s contents of the until previous not known week that the that he attorney responded had asked Attorney’s taking Arizona U.S. office day to make available Rosenblatt earlier position sealing sweep- order was as order, copy a redacted but that ing as AUSA Cerow’s refusal to answer refused to do so. Rosenblatt had Cerow and suggested. questions repeatedly attorneys suggested her MeBryde pub- back then moved into call MeBryde Rosenblatt direct- lic session and stated his belief that had declined, ly; MeBryde stating “it’s to sealing there been the kind de- point posi- I where should not be in Cerow, *5 have scribed would heard about persuade trying Judge to Rosenblatt [of] began. it the hearings before Cerow re- things.” Judge MeBryde to do concluded sponded Umphres that she had told April hearing by suggesting his inch- early April, in in order and that her view the nation to issue show-cause criminal con- disclosure of information contained in tempt against order Cerow or to dismiss the Umphres’ continuance, first motion for a filed Satz, charges against or both. April Judge on itself violated Rosenblatt’s April day, Judge MeBryde The next sealing Judge MeBryde order. ordered a hearings. Inspector He resumed ordered short recess. present him who Whiteaker to tell was at the Judge MeBryde When resumed the hear- hearing Judge when Rosenblatt issued the ings, attorney Cerow’s stated that he had sealing Inspector order. Whiteaker de- Judge again attempt called Rosenblatt in an clined, citing sealing Judge order. sealing to confirmation obtain on the order. camera, MeBryde in to a session moved Judge complied Rosenblatt apparently had attorney ordered Satz and his from the statement, and faxed short the text of courtroom, attorney and directed Cerow’s which read: tell the sealing court more about the 27, 1995, On March a criminal proceeding attorney Cerow’s stated that the was order relating Texas, to a Northern District of written, was March was dated not Division, 4:94-CR-094-A, Ft. Worth [sic] Satz case. Cerow entered in Arizona was filed in this All per- Court. matters already prevented stated that the order had taining to that proceeding placed un- Judge MeBryde seeing per- from information der seal this Court and will so remain. tinent sentencing. to Satz’s When Judge MeBryde responded to this fax with MeBryde information, for asked further in- following vague comment: “It’s so cluding wording Rosenblatt’s general any doesn’t tell me more than I’ve order, attorney Cerow and her also declined already people learned from the here. They to answer. they stated that had called doesn’t tell me that that order is of such a previous morning Rosenblatt character that it would be intended to over- asked him to release the sealed documents provisions [Sentencing ride the G]uide- that Arizona had declined of [18 lines and concerning 3661] information, any make including wording sentencing required information I’m to have order, sealing available for Fort use sentencing purposes.” for Worth. expressing After disappointment government that point had formal April made no At on MeBryde some motion in Arizona have the information received additional fax from Rosen- Satz, letter, information be deliv- ad- such additional Judge Rosenblatt In this blatt. you probation McBryde follows: officer.... “[I]f ered to dressed sentencing, go with the forward decide Darcy I A. Cerow is con- find circumstances, please keep mind under the tempt causing court a violation of the for eventually will returned [Satz] April order of court you sentencing and whatever [Phoenix] States of America directed United my sentence. have ramifications might do hearing present have at the held please consider this and you I ask 24, 1995, April all action on information proceedings other my case or jeopardize potentially relevant the sentenc- added). (alterations my court” pending ing of in this action. The record McBryde again or- Also on possession and reflects that she had con- information release the same Cerow to dered potentially rel- trol information probation This office. to the Fort Worth of Satz in this evant to no finding of fact that seal- included a order action, consciously produce did and she of this preventing the disclosure order it. finding, making this existed. information Darcy I A. Cerow is con- find that he relied stated comply tempt failing court for of AUSA Cerow upon the demeanor (a) signed yester- part of the I Whiteaker, discrepancies in Inspector day, April 25 of the same con- [because testimony, reliance the lateness their their produce], scious choice not sealing as a reason to contin- upon the sentence, implau- and the inherent ue Satz’s sibility proposition that one federal Darcy guilty I A. find Cerow prevent another contempt of court because her failure
using at criminal sen- relevant information questions answer she was ordered an- tencing. *6 during proceed- swer the course April 26. After- Hearings resumed on _ by I ... the contention ings find conversation, some further prohibited by she a Ms. Cerow that was interpreted Judge Rosenblatt’s stated that following the secrecy order above [from in Phoe- that those latest fax verification and is not true.... is fabrication orders] manipulate attempting to the order nix were I Ms. believes that don’t believe Cerow prevent was sentenced Satz which Satz any pro- that has been entered order principles. double-jeopardy invoking delivering that information. hibits her from discussion, Judge McBryde or- After further any I find that she does not believe Umphres’ text second motion dered the complying with prohibited her from sentencing unsealed and revealed continue my orders. unsealing The and his counsel. on the information filed under seal reached exhibit dis- including the attached reflects that all this The overall record guilty pleas and closing the Schwartzes’ we’ve had conduct and the waste time govern- cooperate with the agreements to leading up to this week has this week and the Arizona criminal investi- ment to further part of Ms. Cerow been a desire on emergen- an gation. The United States filed sentencing occur in the case which have order, cy stay unsealing motion en- prosecutor first.... She’s she’s a Judge McBryde conclud- this Court denied. of activities in an gaged in elaborate sets following state- hearings with the ed the that, and in the course accomplish effort ments: and engaged in falsehood doing so has contempt Darcy I A. is in find that Cerow deception. respects. I find a number of court hearing with a Judge McBryde concluded objec- intentionally frustrated that she pursue States suggestion that the United directing my [April] 1995 order tives of The next investigation of Cerow’s conduct. has any information that additional McBryde conducted sen- day, Judge Satz’s potential to affect hearing sign judg- process did not final
teneing approximately That would take ten sentence. weeks. ment of later, days Judge McBryde Six issued an
B
explained
order in
Torres case. He
agree
he did not
FTCA
Grecia
styled
a civil suit
San
October
remedy:
Torres’ exclusive
(Grecia
Torres,
juana
Individually
...
and
disappointed
The
court
that there
Minor)
Torres,
Industries,
Trinity
A
Inc.
Torres,
suggestion
even be a
that Grecia
assignment
fell
to Judge
random
minor, acting through
person
persons
McBryde. The suit arose out of the death of
might legally
qualified
who
be
to act on
Torres,
Mr. Raimundo
Grecia Torres’s fa
behalf,
her
required
go
would be
settled,
parties
ther.
The
and
expense
time
exhaust administra-
McBryde signed
judgment
final
Decem
remedies, through
tive
a tort claims pro-
ber
ordered the
cess, before being able to obtain
$40,000
relief
pay
defendant
Grecia Torres.
from violation of an order of this court....
judgment
final
also ordered
Clerk of
If such order of this court
is to have
Northern District
“invest the amount
integrity, enforcement of the order should
deposited in an
bearing
interest
account at
be
means
causing
Grecia Torres to
highest
rate
available
of interest” until
resulting
made whole for loss
from vio-
majority.
Grecia Torres reached
lation of the order (assuming that the clerk
The clerk’s office did not
follow
unwilling
or unable on her own initiative
plaintiffs attorneys
informed
financial
proper
to take
corrective measures
deputy for the
court
depositing
causing
deposit
a sufficient
to be made to
the funds
the U.S. would
adverse tax
have
account).
plaintiffs
the minor
consequences for Grecia
Torres
asked
Judge McBryde’s order directed Clerk Do-
that the clerk
until
hold
funds
the attor-
herty
analysis
to file an
supporting
docu-
neys
up a
could set
Mexican trust
fund.
ments to determine the
amount
interest
attorneys
deputy
Neither the
nor the
fol-
Torres had lost.
$40,000
up
plan,
lowed
on this
stayed
treasury
in the court’s
than
suggestion
more
three
At
Judge Buehmeyer,2
years earning
Intervening
Doherty
no interest.
responded
au- Clerk
to Judge
letter
dits of the
McBryde,
clerk’s office’s accounts did
attaching
requested
financial
*7
Nancy Doherty,
uncover the mistake.
Following
Clerk
information.
suggested
lan-
District,
despite
the Northern
guage,
testified at
her stated reservations that
hearing
eventual
Fifth
phrasing
court,
Circuit
anger
the let-
Special Investigative
Council’s
expressed
ter
Committee
shock
disappointment
and
that
that her office
Judge McBryde
discovered the mistake in
necessary
felt it
to enter an
March,
early
but that she first contacted
order
to resolve the matter. The letter also
Administrative
Office
the United
Judge McBryde
States
informed
that
the Clerk’s
problem office,
Courts to find a
Office,
solution to the
the Administrative
and the
writing
Judge McBryde.
before
plaintiffs
attorneys
On
together
working
24, 1995,
Doherty
March
Clerk
informed the
reimburse Torres’ account via an FTCA ac-
attorneys for Grecia Torres of the
According
error in
tion.
Doherty,
to Clerk
Grecia
writing
copy
and
McBryde.
sent a
to Judge
Torres’s interest
income would have been
time,
By
$3,762.68
this
$8,112.58,
Administrative Office had
between
depending
and
suggested
only
remedy
Grecia Torres’
on how the clerk’s office had decided to
through
the Federal Tort Claims Act.
invest.
Judge Buchmeyer's
opin-
Chief
memorandum
when
Attorney’s
members of a United States
ion in Torres indicated that he
approached
had become aware
office
him ask his assistance in
Doherty
the case when
having
Clerk
came to
him
an
available
consider
seeking
respond
advice in
Judge
application
how to
corpus
for a writ of habeas
direct-
McBryde's
Cerow,
Judge
March
30 order. The Chief
Judge
release of AUSA
should
also stated that he
contempt.
became aware of the
case
hold her in
Satz
McBryde signed
judg-
responded
day, Judge
Judge McBryde
same
April
On
and
for Satz.
This order labeled ment
conviction
sentence
The
second order.
with a
response
unpro-
Judge Buchmeyer
Doherty’s
day,
“so
issued an
letter
next
Chief
Clerk
disrespectful
file,
of the under-
resealing
so
fessional and
additional order
entire Satz
court,
manifest[ing]
and
signed judge
Judge
May
and
declaring
McBryde’s
order void
insolence,
it
high
borders
entirety,
directing
such a
level
clerk to
in its
and
file
on,
constitute, contempt of court
Buchmeyer
only
by Judge
if it does
signed
materials
statutory
long
In a
officers.”
one of its
By
colleague”
in the Satz case.
“dear
letters
footnote,
Doherty of “inso-
order accused
May
Judge Buchmeyer
in-
and
dated
lence,”
attempting to “avoid
respect,”
“lack of
judges of the
formed the other
Northern
consequences
confrontation
direct
District of Texas
his actions.
noncompliance
judgment,”
with the
12, 1995,
May
Satz filed a
On
defendant
understanding
the court’s re-
[of]
“lack of
corpus, stating
of habeas
petition for writ
suggested
order further
sponsibilities.” The
imprisoned
currently
without
stood
“collaborating
at-
Doherty was
with the
having
petition
The
sentenced.
recited
been
remedy
plaintiffs
pursuing a
torney for the
Buchmeyer
reassigned
had
Judge
that Chief
inappropri-
to be
that ...
court considers
himself,
Judge McBryde
but that
had
striking
Do-
ate.” The order concluded
Two
signed
months
ordering her
file
herty’s last letter and
later,
Buchmeyer
peti-
denied Satz’s
into the Torres record additional documenta-
ground
tion on the
of in-
designed
tion
to calculate the amount
Buchmeyer reassignment
1May
vacated the
income' lost to the Torres account.
terest
signing
judgment
before
convic-
order
sentence,
impris-
and Satz was thus
C
pursuant
judgment
sen-
oned
valid
apparently
appeal
did not
tence. Satz
Buchmeyer,
April
On
ruling.
Gray,
Judge Buchmeyer’s July continued Judge Buchmeyer On filed anoth- stating repeatedly er memorandum in the labeling Torres case *9 rejected government’s suggestions the reassignment the necessary of that case “to Judge he call public Rosenblatt or grant damage continu- humiliation avoid and to the continued, Clerk, ance. The order reputation “In lieu of a District as well as to the of continuance, government suggested facts, the this Court.” detailing After the the Judge McBryde review material in Judge camera so opinion Chief referred to his in Satz 3. AUSA Cerow hearing person, testified at the identify, eventual' at least one whom she did not Special Investigatory escaped before the prosecution altogether. Committee had Satz, Judge MeBryde’s In attack on reassignment order his again rested Inspec- Darcy A. and Postal AUSA Cerow § 137. 28 U.S.C. tor and his accusations Rex Whiteaker against lying contempt of of them D baseless, threatening irrepara- court were the judges of meeting of the After a damage professional reputations ble the Texas, which the of about Northern District of Ms. Cerow and Mr. and careers both us little informa- provide before documents investiga- our Whiteaker. record and tion, “Request for McBryde filed a Judge and con- tion confirm that the statements Dispute” of before Assistance Resolution Darcy duct of Cerow and Postal AUSA Apparent- truthful, Council. the Fifth Circuit Judicial Inspector Rex Whiteaker wrote Department Justice also ly, professional, appropriate of under the the addition, Judge regarding Judge Politz Fifth Chief circumstances. In Circuit proper the Judge MeBryde’s ordered that refusal to accord re- Chief Politz Satz. spect to a to the of another United Request for Assistance referred Committee,” Judge States which sealed sensi- which District “Special Investigatory Rule 11 undermined a proceedings tive arising out of matters would also consider grand investigation. jury pursuant the DOJ’s letter 372(c)(5). 372(c)(1) committee, Torres, investigation §§ In our rec- & Judge con- judges McBryde’s confirmed that comprised and two ord of three circuit against Nancy Doherty, clerk of duct judges, hearing on October district held Texas, was un- the Northern District McBryde, but testimony Judge It heard warranted, abusive, and threatened at request present to be refused reputa- Doherty’s professional damage Ms. witnesses, includ- taking testimony Doherty persuaded that Ms. tion. We are ing Judge Buchmeyer. One member being appropriate upon action advised took trans- expressed concern that the committee problems regarding deposit an by Judge Buchmeyer could effect fers for the minor and conducted funds held process. end-run around professional in a man- affairs of her office response, Buchmeyer emphasized that Judge ner. contempt in the Torres case appeal not decide whether 28 U.S.C. We need unacceptably damaging media would result Buchmeyer’s § 137 authorized Chief Doherty exposure for and that he had Clerk reassigning cases because action these protect the clerk responsibility unanimously concludes the Judicial Council court, Rosenblatt, who as well as MeBryde’s above described remedy might not have impediment to the effective conduct is an McBryde’s “abuses.” justice. Therefore under administration tes- Doherty Clerk and AUSA Cerow also authority of 332 we reas- 28 U.S.C. committee. The committee tified before the Bu- sign Satz and Torres presented then a recommendation chmeyer May 1995 and effective The docu- Fifth Circuit Judicial Council. 27,1995. ments do describe nature before us acquiesced Although Judge never presentation. this untranseribed transfers, did not seek in the the Council 20, the On Judicial Council denied October enforcement, district court. of its order Request for Assistance terms, enforcement practical and real stating: an order already accom- order had been Council’s along with our order of plished by Our review of the record effect of the the combined independent investigation these two the later order court and Council, original overwhelmingly demonstrates to reach back tailored predicate, on court’s orders Buchmeyer’s factual of each of the district date Buchmeyer, orders, was correct. the cases. transferring he based his and Torres already who claimed Judge McBryde’s conduct both cases *10 power under based on were on docket was unwarranted. actions, entering seeing well-meaning public retained the cases without her as a acknowledgment attempting of the Council’s servant a formal smooth over bureau- glitch. cratic reassignments. But we Judge cannot dismiss out of hand II McBryde’s understanding of facts in the the note that the pause to conflict between We suspicions and Torres cases either. His McBryde Judge on the one and Judge hand heightened in Satz understandably were Buchmeyer Council and the on the other when, during day of hearings, the second began struggle conflicting as a between hand Umphres stated that he did not know until facts. interpretations of the As we read the part April latter the Arizona the record, reasonably fact could finders of de- Attorney’s portraying office the sealing was fend either side. reasonableness both protecting virtually every piece order play understandings not does determinative the litigation. information about Arizona Satz analysis, legal appreciating in our but role retrospect, Judge McBryde piece could appreciation of this leads to an the roots case together pointed number facts that the Chief Judge the the larger conclusion that Cerow AUSA was they District and the Council exercised when lying. Umphres’s first motion continue away took the Satz and Torres cases from sentencing was filed seal under even McBryde.
Judge though it family mentioned Schwartz and Buchmeyer investigations. Umphres’s the further Judge sec- Chief and the Council sentencing ond motion to continue was filed chose to believe AUSA Cerow’s insistence seal, but letter sealing prohib- Rosenblatt’s attached from Cerow answering suspiciously neglected from AUSA ited her men- any sealing questions. keep order as a reason to Judge Rosenblatt’s two faxes order, grand jury the Arizona sealing investigation confirmed that there a secret. was and moving after suggested scope hearing their Even curtness was camera counsel, excluding and point From the Satz’s AUSA Cerow broad. view of Chief Council, attorney extraordinarily and her were Judge Buchmeyer reti- McBryde’s reputation for cent about information running tight need- ship wary sentencing. They ed litigants giving made these him refused even to information, wording disclose turn which in order. made Rosenblatt was McBryde suspicious understandably and caused an escalation cautious. dispatches The result distrust. was that from was unreasonable for vague hardly Rosenblatt Buchmeyer and the Council to falsified Judge McBryde’s hunch in the that AUSA Cerow attribute Satz case to mis- difficulties understandings being less give forthright. than At the credence to proceedings, Judge McBryde AUSA Cerow based on the delivered a evidence sealing cogent statement of his presumption rejecting order and reasons for an attorney AUSA Cerow’s reliance on sealing would not a broad fabricate contents of only order. His conclusion flowed not from implausibility of such an order and the Torres, Judge McBryde threatened government fact that raised Doherty contempt Clerk on her based relevant, long after it knew would be conspiring “insolence” and accused her of also the demeanor of the witnesses and plaintiffs’ attorney with the to institute a counsel’s evasiveness. remedy cumbersome in violation of instruc- tions from the court.' As McBryde behind-the-scenes knew that Cerow AUSA participant, Judge Buchmeyer delay had valid rea- sentencing incentive to in the Judge McBryde’s sons to suspicions. dismiss Northern District of According Texas. Indeed, he knew motions, government’s himself was the own author that Judge remarks Fort might, Worth case under Ninth law, adopted viewed as- insolent. The Council Circuit limit the sentences available Judge Buchmeyer’s Doherty’s view of Clerk Phoenix Both government case. *11 clerk, expected language was no fault apparently Judge choice of Judge Rosenblatt McBryde way off on had no to know to hold case, receive as much to ensure that Satz would that. As in the there was room possible. delaying tactics punishment as disagreement for those on the about whether AUSA Cerow’s might have due to MeBryde’s also been receiving end act- barbs obtaining sentences her case interest culpably. ed District of Texas hand-
before the Northern attribute down sentences. We need not ed Ill McBryde irrationality paranoia or to McBryde invokes 28 U.S.C. explain con- his view that AUSA Cerow’s to 1651(a) petition for a writ of his manda- sealing order were un- tentions about the mus, order, juris- ultimately our sealing Even if there is where truthful. was 1651(a) legitimate to there reasons think that rests. Section authorizes this diction sweeping AUSA scope “necessary appro- was not as its court to issue all writs priate jurisdiction.” Cerow contended. in aid of Establish- [its] jurisdiction Judge McBryde’s ing to entertain McBryde’s understanding of the fac- requires ques- petition that we answer two Doherty suspecting that Clerk tual basis First, jurisdiction tions. we have to issue do contempt similarly was verge was on the not, can a writ to the Judicial Council? If we He knew that within the bounds reason. entertain suit on our based $40,000 because earned no interest jurisdiction over the Northern District of requested the plaintiffs’ counsel clerk’s office Only we Texas? after have established our in a account deposit money not U.S. jurisdiction to can issue writ we examine complied, con- and that the clerk’s office had propriety of trary Judge MeBryde’s express order. objects. McBryde Doherty coop-
He knew that Clerk also erating with Office ac- the Administrative rejected. complish prior his an end that A
Furthermore, Judge McBryde’s van- from joined court has the D.C. Circuit in This respect posi- tage point, Doherty his did not 1651(a) as interpreting not authoriz section criticizing enough refrain from his appeals preemptory a court of to issue a earlier order a letter to the court. regarding writ a case over which it would have handled the matter could jurisdiction. Ingalls appellate never have not sensitively. agree more We need Shipbuilding, v. Inc. Asbestos Health Claim to conclude that view of the conclusion Cir.1994) (“As ants, (5th we 17 F.3d reflecting letter as “insolence” was not irra- statutorily jurisdiction have no conferred of lan- tional. evident that tone Director, All Writs over the actions of sig- guage used the Chief differed juris provide Act not this Court with would Doherty nificantly from the tone Clerk Director.”); compel action diction preferred. experienced clerk have She Telecommunications Research & Action reputation. Part of outstanding with an her (D.C.Cir. FCC, 750 F.2d 79-80 undoubtedly ability Center v. success has been an Stone, 1984); In 569 F.2d egos un- re handle the that sometimes flourish (D.C.Cir.1978).4 short, of Article III. In der the shelter (Harlan, J., (1970) concurring). power L.Ed.2d However, These did decide inherent courts, any power exercising emanating we abstain inher of federal from Congress 1651(a), may any preemptory ent we have in case. issue writs to offi- expressed preference upon showing the district cial the United States of clear has type general power. power might See courts exercise this entitlement relief. Such ("The ability courts shall have derived from the of the common U.S.C. 1361 historical compel performance original action the nature of law courts to of ministe- those, officials, employee compel an officer or rial duties such as executive mandamus to normally any agency per subject thereof actions are not the United States whose duty plaintiff."); see also La Coun- form a owed review. Chandler 249, 265-66, States, Co., Buy cil Tenth United v. Howes Leather Circuit 318-19, (1957) 1648, 1667-1670, 74, 111-117, L.Ed.2d 290 77 S.Ct. *12 220 appellate jurisdiction authority supports theory
We have no direct
Some
body
only
the Judicial Council is an administrative
over the Council’s
We have
subordinate to
Circuit.
the Fifth
The Chan
Congress grants
jurisdiction that
us
stat
judicial
court
dler
characterized
as
councils
Despite
suggestions
ute.
of Justices
in dicta.
at
administrative bodies
398 U.S.
Chandler,
Harlan, Black,
Douglas in
398
1667-1670,
7,
occasion,
90
n. 7.
86 n.
S.Ct. at 1655
On
111-117, 133-135, 90
at
at
S.Ct.
U.S.
See,
agreed.
e.g., Henry
have
v.
circuits
1679-1680,5
long
the circuits
since
have
(9th
States,
114,
United
432 F.2d
119-20
1651(a) is not an inde
that section
concluded
(“It
Cir.1970)
is
of a
true
members
jurisdiction.6
grant of
Nor do we
pendent
Appeals, meeting
Court
as a Judicial
jurisdiction by
of some
appellate
have
virtue
Council,
supervisory powers
exercise certain
372(c)(10)
other
of Title 28
statute. Section
expeditious
for the
administration of the
ju
jurisdiction
grants appellate
over certain
circuit,
business
the courts within its
to the
Confer
dicial council action
Judicial
council,
court.”),
they
modified,
act as a
not a
States,
ence of
not to this court.7
the United
1283,
denied,
1011,
F.2d
434
cert.
400 U.S.
91
grant
identifies no statute
576,
(1971);
S.Ct.
27
L.Ed.2d 625
see also
ing
right
review of
Council
Inspect
Copy
Jury
re Petition to
&
Grand
court, and we
action to this
have found none.
Materials,
(11th
1261,
Cir.),
735
1271
F.2d
denied,
884,
254,
cert.
469
105
83
U.S.
S.Ct.
lie if we
might
Mandamus
view the Council
(1984).
addition,
191
L.Ed.2d
the function
body
anás
administrative
subservient to the
assigned
suggests
to the Council
judiciary.
employees
A
collection
facili-
bailiff,
analogous to a
in
both
clerk or
Clerks,
tates the work of the courts.
sher-
in
process
orderly
assist
decisionmak-
iffs,
prime examples.
are
bailiffs
accomplished
by the court.
28
See
power
simply
courts have
over these officers
332(d)(1)
(providing
judi
U.S.C.
that each
they
through
instruments
because
are
necessary
cial council should make orders as
springs
part
Power
the courts function.
justice).
for the effective administration of
part
from statute but also
from the nature
presence
of the administrative services
officers
these
judges
of circuit and district
perform
inherently
nothing
power.
and their
subordinate
Council
adds
to our
system.
role within the
not matter if
Council
would
were com-
(Brennan, J.,
Chandler,
86,
Cir.1972);
dissenting).
Imperial
But see In re
see
398
90
also
U.S. at
Inc.,
National,
41,
(3d Cir.)
("As
opinion)
(majority
"400"
481 F.2d
S.Ct. at 1654
42
the concur-
demonstrate,
(affirming
ring
dissenting opinions amply
a district court's
that it
conclusion
council),
finding
prerequisites
support
jurisdiction
judicial
lacked
conclusion
mandamus
denied,
880,
71,
jurisdiction
that we do have
case
in this
rt.
414 U.S.
38
94 S.Ct.
ce
feat.”).
(1973).
no mean
L.Ed.2d 125
To the extent that
analogy
wishes to invoke the modern
courts,
7. Note
if one
treats
Council’s action
historical
the common law
against Judge McBryde
complaint
28
gone
wrong
as
he has
court.
372(c),
spite
U.S.C.
the Council’s failure
provide
procedural safeguards specified
Malmin,
785,
5.
also
v.
F.
United States
272
372(c)(11),
Congress
28 U.S.C.
then
has made
(3d
1921) (holding
791
predecessor
Cir.
that- the
crystal clear its intent that the
as
federal courts
1651,
"necessary
which did not include the
appellate jurisdiction.
exercise
such
no
28
jurisdiction”
provided
aid
language,
of their
372(c)(10)
(“Except
expressly provid
the court with
to issue a writ to an
paragraph,
ed
all orders and determina
unlawfully
judge ordering
ousted district
him to
tions,
review,
including
petitions
denials of
for
duties).
resume his
be final and
shall
and shall not be
conclusive
otherwise.”).
appeal
judicially reviewable on
See,
NFL,
402,
(8th
e.g.,
v.
41 F.3d
White
Washington,
See also United States v.
98 F.3d
Cir.1994),
denied,
1137,
rt.
(9th
1996) (Kozinski,
ce
1164-65 & n. 2
Cir.
(1995);
The business a court more under rules among than one shall be divided the Tenth Circuit regarding Judicial Council judges provided by assignment Specifically, rules and orders initial cases. rules, of the court. Special Judicial Council’s much like here, “required Order No. 3-130 equal an shall chief district court pre- and random division of civil cases and responsible for the observance of such system appor- scribed which balanced and orders, rules and and shall divide busi- criminal, bankruptcy, immigration tioned assign ness and the eases so far as such and naturalization Id. at cases.” pre- rules do and orders not otherwise holding judge’s reassign- invalid the chief scribe. cases, rejected ment Circuit Tenth judges If the in any district are judge’s argument assignment chief upon agree adoption unable to of rules rule did cover situation when *16 or purpose orders for that the judge active takes senior status. To the council of the circuit shall neces- make the contrary, the Tenth Circuit held that the sary orders. judge’s choosing chief “act of which eases to plainA reading the statutory requires of text keep assign and which to to senior [the First, us questions: to answer two whether judge’s comply not successor] did with the there is a adopted by rule or order either the Council’s assignment mandate that the Northern District Texas or the random, equal subject only civil cases be Council of the Fifth Circuit governs the by agreement to modification written cases; and, reassignment second, whether judges.” active Id. at 1104. judge’s power the chief “assign to the cases so far short, as such rules and orders do not other- the Tenth Circuit held that the prescribe” wise assignment.10 validates the assignment prohibited, by initial implica- rule tion, judge the chief reassigning from cases parties point While the or no rule order already assigned particular judge. Spe- a expressly governing reassignment the cial No. provision Order 3-130’s for the ran- Texas, cases in Spe- the Northern District of assignment prohibits, dom by impli- of cases provides cial Order No. 3-130 “civil cation, a reassignment of those cases. criminal cases in the Fort Worth Division mention requires bears 137 all by draw,” will assigned random 44% judges of agree the the district on the “rules cases going Judge Division’s arid orders.” McBryde. Judge Buchmeyer Chief Special read Or- A rule or governing the reassign- der govern only aside, No. 3-130 to the initial as- of pending Judge ment cases Bu- signment of in the chmeyer cases Fort Worth Divi- lacked the 137 sion, reassignment, not their reassign Judge distinction we Buchmeyer and Torres. Utah-Idaho, conclude to be too fine. In urges empowered reassign 137 him to Judge propriety The Judicial Judge Buchmeyer’s Council’s answer dress of Chief McBryde's petition for mandamus not ad- did
225 indirectly, ministratively, directly litiga Special 3-130 “does Order No. because cases assigned pending to and before another reassignment cases—which cover the not alone, Heath, by an court.” States v. judge the Chief United is done 1, 2 (D.Haw.1952); Judges.” F.Supp. signed all of District see also In re 103 (5th Cir.1965) empowers Brown, § 137 According argument, to this 910 F.2d, subject only course, assign (“[Ojrderly chief cases procedure, forbade formally adopted imposed by the limits handling with the of a Judge Cox to interfere Mize.”). Assuming pur- for the and orders. assigned Although rules case argument Special Order poses of this Buchmeyer disclaims au pro- invalid or does not No. 3-130 is either thority reassign of a cases because dis cases, reassignment pending handled,” hibit “how a case was agreement with Buehmeyer’s interpretation of interpretation §of 137 has no such limi plausible: paragraph of the the second seems tation. assign empowers the Chief section Torres dif- reassignment of Satz and such “so far as rules and do cases judge’s significantly from a chief ac- fers v. prescribe.” See Martinez Win otherwise knowledged power reassign cases situa- (10th Cir.) ner, (noting that 771 F.2d recusal, death, disability, involving the tions “when the judge assigns chief appointment judge. of a those or new provision”), no modi and orders make rules cases, reassignment purely administra- vacated, (10th Cir.1985),
fied, 778 F.2d tive, involving no review of merits of the 1138, 106 L.Ed.2d 333 presiding v. judge’s See Hvass Gra- orders. (1986). (8th Cir.) ven, (noting F.2d two interpretation This 137 creates judge, reassigned originally chief who case First, upholds reas problems. not one case temporary adjudicated by judge whose des- chief signment pending case lapsed, to that district had “did not ignation presiding judge. without the consent of the case revoke old order nor withdraw contrary, wary been To courts have assign it to Mickelson power. endorsing general reassignment merely in due course as an Hieklin. He & example, For McCuin Texas Power routinely assigned act administrative (5th Cir.1983), Co., 1255, 1261 Light 714 F.2d assigned only it to ease on his docket and we held that the Chief Eastern himself, pow who then had judge, aside from *17 power under District of Texas lacked the court.”), jurisdiction the to exercise the er reassign § a ease in which he had 137 58, denied, 3 358 U.S. cert. himself, though no local rule recused even (1958). case, Judge 72 In this L.Ed.2d reassignment. We noted prohibited such Buchmeyer’s forthrightly opinion own dis impropriety counseled appearance prompted entire closes his actions allowing judge, recused even the against the Judge with ly by disagreement power assign § 137 judge chief with the of the two cases. conduct cases, reassign the case. short, provides judge § chief 137 the argu- the point, more to the Second and authority assign a district with broad proves reading the ment too much. Under however, eases; authority is circum- Buchmeyer proposes, nothing pre- particular powerful limits. This scribed judge reassigning eases vents chief statutory of both the limit lies at the core disagrees sub- himself where he with the courts and Article structure of the federal presiding ruling the stance made interpretation. judicial Ill’s command power is antithetical to and judge. But power grant of Implicit within that incompatible with the structure of federal judge cannot sit as express limitation that the chief implied judicial system.11 “No court and review deei- quasi-appellate to affect ad- power granted judge a chief deny judge district his or her acts or to another federal courts does not "[T]he structure of the McKibben, directly jurisdiction.” 682 Dhalluin v. judge to rule lawful allow one of a district court (D.Nev.1988). judicial F.Supp. judge's 1096 legality another judges in via within language other the district courts its circuit.” This re- sions of power. years. assignment § mained unaltered for over Chandler, Supreme Court confront-
V
challenge
judicial
power
ed a
to a
council’s
§ 332.
under
The Judicial Council of the
judicial
limits of ‘a
council’s
precise
The
initially
Tenth Circuit
issued
order reas-
332(d)(1)
§
authority
are uncertain.
under
pending
signing
cases before
Chandler
Council
The
in Chandler
Judicial
Court
judges
prohibiting
assign-
other
Circuit,
6,n.
the Tenth
ment of
cases
Chandler
(1970),
n.
vacation in congested order to clear docket, compelling multi-judge courts to We by any objec have no doubt that arrange staggered vacations, setting tive measure reassign the Judicial Council’s standards of ethics. Torres, ment of Satz accompanied by H.R.Rep. No. Cong., 96th 2d Sess. 9 vacating Judge McBryde’s findings and (1980). The Report House referred to the entry starkly contrary findings, was a *20 proposed § amendment to containing 372 as strong censure of- Judge McBryde for his
229
judicial
Concluding
may
that a
council
not
cases. The Council’s deci-
in those
conduct
judge by reassigning pending
a
cases
judg-
a
censure
required
regarding his “conduct”
sion
332(d)
§
pursuant to
does not mean that the
understanding of the
as to whether
ment
authority
Council lacks the
under
Judicial
prevail. The Judicial Council
should
facts
§
reassign
332 to
cases for administrative
a
under
power to censure
lacks the
Aristeguieta,
reasons.
In Jimenez v.
311
332,
reassigned
a ease
may
it order
nor
(5th
denied,
Cir.1962),
F.2d 547
cert.
with the district
disagreement
on its
based
914,
1302, 10
(1963),
415
L.Ed.2d
we
States
findings.
factual
See United
judge’s
(9th
upheld
authority
of the Judicial Council
1165 n. 1
Washington, 98 F.3d
v.
(“[O]ur
Cir.1996) (Kozinski, J.,
reassign
pending
proceeding
a
extradition
concurring)
case,
judge.
to another
In that
Venezuela
repeatedly that it
has stated
judicial council
sought
presi
extradition of its former
that concerns
may
any matter
not address
dent,
Judge Mathes of the
might
raised
Marcos Gamines.
of
case and
the merits
a
for the Southern District
appellate re U.S. District Court
through normal channels of
California,
by designation
sitting
who was
view.”),
filed, 65
petition
cert.
U.S.L.W.
96-1607).
(No.
Miami,
(U.S.
7, 1997)
an arrest warrant for Ga
issued
Apr.
3713
assignment
Mathes’
mines.
reassign pending cases is an
power
evidently lapsed
of Florida
Southern District
may
appeals
extraordinary one. Courts
during
proceedings,
extradition
and the
pursuant to 28
2106
reassign a case
U.S.C.
for the Fifth Circuit ordered
Judicial Council
order, though that reme-
part
of a remand
reassignment
judge”
“to some other
See, e.g.,
States
dy
rarely invoked.
United
any
“unfinished
Mathes.
business”
Corp.,
F.3d
Microsoft
subsequently or
Whitehurst
curiam).
(D.C.Cir.1995)
contrast,
(per
reassignment of
case to
dered the
Gamines’
372(c)(6)(B)(iv)
expressly
not
does
Judge Whitehurst ordered
himself. Chief
pend-
judicial
reassign
empower a
council
pending
confined
.extradition
Gamines
cases; rather,
judicial
only authorizes a
it
Secretary
sought
Gamines
a writ
of State.
council,
finding
judicial
misconduct
upon a
alia,
corpus
argued,
inter
of habeas
section,
a
pursuant
to order “on tem-
reassignment
was invalid because Chief
certain, no
porary basis for a time
further
did not have
Whitehurst
disciplined judge
assigned” to the
cases be
enter the order of commitment.
added).
(emphasis
Citing the
Coun-
disagreed.
Judicial
We
we concluded that
power
cil’s
under
no ease—and the Ju
We have found
proceeding was ‘the busi-
extradition
“[t]his
pointed
us to one—
dicial Council has
Whitehurst’s
ness of the courts’
power
judicial council to
upholding of a
of criminali-
assignment to hear the evidence
reprimand for
reassign pending cases as a
ty
the order of the Judicial Council
under
Chandler,
judicial
the Judi
misconduct.
and Chief
White-
the Fifth Circuit
reassign
initially ordered the
cial Council
proper exercise of their
order was a
hurst’s
pending
eases but later modified
ment
Significantly, howev-
authority.” Id. at 554.
permit Judge
to continue
order to
Chandler
er,
reassignment
did
“[t]he
we noted
Indeed,
hearing
already before him.
attempt
any
to review
action
constitute
ques
power
pose
would
constitutional
such
magistrate.”
as extradition
Mathes
exclusivity
congres
regarding
tions
Id.
power
sitting
federal
sional
remove
proceeded
Had
the Council
judge.
In re Matter
Certain Com
372(c)(3),
have been confronted
Investigation,
F.2d
plaints
Under
Cir.)
judicial
(11th
reality
complaint of
mis-
(reserving
question of
“directly
to the merits of
related
constitutionality
judicial
council’s conduct was
ruling.” In In re
procedural
assignment of cases
a decision
to forbid further
Misconduct, 685 F.2d
Charge
a time
temporary
on a
basis for
(9th
1982),
certain),
denied,
Jud.C.
Cir.
cert.
(1986).
complaint filed under
council dismissed
judicial ordinarily misconduct will amount to decide, however, a censure. We at need Judge Buehmey- We conclude that Chief point findings what supporting of misconduct er’s and the Judicial Council’s remedy transferring cases become a providing remedy not limited to for miscon- judge beyond censure of authority they duct because rested the invalidation least, granted by § 332. At the that authori- judicial findings pending in a case and ty does findings not extend to of misconduct judge. constituted a censure of the We require the invalidation of factual find- grant petition for a writ of mandamus on ings made an Article III in a case ground reassignment vacate the or- pending before him and over which he has ders. The cases will be returned to jurisdiction. Whether, MeBryde’s in light docket. suggest We do not that the Judicial events here Coun- described and the misunder- cil set out to standings they part, review the merits of which are a he wishes question decision. There is no to retain the cases or recuse is left in the did, however, possi- egregious 13. The Council hold out the that an inference of miscon- arise, case, bility "exceptional developing might anof case where duct but that would be a rare legal the nature and extent of the are so and it has not occurred here.” 685 at errors F.2d *22 Buchmeyer lawful an Article exceeded the exercise judgment to his as instance first prescribed taking the eases the additional do not reach judge. III We reassigning them Council violated that the Judicial claim Accordingly, join majori- I in the right to due to himself. McBryde’s Fifth Amendment ty’s grants insofar as it a writ of decree process. court, mandamus to the district vacates that mandamus is GRANTED. petition orders, reassignment and returns the court’s Judge McBryde’s cases to docket. GARZA, Judge, M. Circuit EMILIO specially concurring: excel- Judge Higginbotham’s
I concur the issues opinion, but would not reach
lent
in Part III.A.
DENNIS, specially Judge, Circuit
concurring: respectfully I concur in the essential ele- Tony CEFALU, Jr., Charles Behalf of his majority opinion. ments and result rpi Tony CEFALU, minor son Charles appellate jurisdic- Because we do not have III, Plaintiff-Appellee, an order of the Judicial Coun- review observes, cil, majority question of whether we can issue a writ BATON PARISH SCHOOL EAST ROUGE jurisdic- of such non-existent Council aid BOARD; Louisiana, Through State of However, be- tion seems to answer itself. Department Education, Defen- necessary to consider the cause it is not dants-Appellants. case, present join I question do No. 95-31045. majority opinion Part III A of the devoted and, believe, unprofitable' I an inconclusive Appeals, United States Court subject. discussion of Fifth Circuit. Buchmey- Due to the fact that Chief July clearly appellate er’s orders lie within our jurisdiction, may writs to the we issue dis- jurisdiction, court in aid of that unless
trict a val-
the Judicial Council’s order constitutes disciplinary order that
id administrative or subject and removed the matter of
subsumed Judge Buchmeyer’s orders from our
Chief essentially
appellate jurisdiction. For majority, assigned by the I
same reasons
conclude Judicial Council’s .order product
was not a of actions confined to delegated
matters within its administrative disciplinary authority but extended directly that bear on the
matters decision Consequently, cases. the Judicial
individual as a ad-
Council order ineffective valid disciplinary
ministrative or order and was capable Judge Bu- removing Chief jurisdic-
chmeyer’s orders from our
tion. majority opinion
As the makes- clear succeeding parts,
Part III B and