*1 were not at Oktoberfest behavior
consistent, therefore to decided and, later, Appellant, fire suspend that, be- Simpson’s conclusion
e. him- reported had Appellant
cause excruciating pain, “reported
self in positions,” and his changing
difficult work,” Appellee “no had told
doctor “by independent two
but was seen walking around Oktober-
witnesses a crowded venue and
fest where it’s thought ... I easily accessed part.” on his
that ... was fraudulent overwhelming that the
I would conclude supports Appellant’s
weight of evidence investigation Appellee’s
contention “un- one-sided as to be poor
was so not sufficient
worthy of and thus credence” At a mini- satisfy an “honest belief.”
mum, presented sufficient has Appellant jury a reasonable permit
evidence Summary judgment
find the same. Therefore, I
Appellee inappropriate.
respectfully dissent. America,
UNITED STATES
Plaintiff-Appellee,
Craig ALEO, Defendant-Appellant
(10-1569/1570), (10-1833). Freeman, Appellant
John 10-1570, 10-1569, 10-1833.
Nos. Appeals, Court of
United States
Sixth Circuit.
Argued: Jan. 2012. May Filed:
Decided and *3 Tableman, Kenneth P. Ken-
ARGUED: Tableman, P.C., Rapids, P. Grand neth Heron, Detroit, Matthew Michigan, W. because he filed a motion asking the court Goetz, Michigan Appellants. compel government for Andrew amake for- Detroit, Attorney, mal regarding Assistant United States motion any victim who Michigan, Appellee. ON BRIEF: wanted to speak pursuant at trial to the Tableman, P. (CVRA), Kenneth Kenneth P. Table- Crime Victim Rights Act naming man, P.C., victim, Rapids, Michigan, Grand Mat- providing preview Heron, Crandall, thew Martin E. De- W. victim’s statement. Because there no troit, Michigan Appellants. objective Andrew evidence that trial counsel filed Goetz, faith, Attorney, Assistant United States this motion in bad we reverse. *4 Detroit, Michigan, Appellee. I BOGGS, ROGERS, Before: 14, 2009, April On Aleo was charged
SUTTON, Judges. Circuit with one count production of of por child (Count One), nography in violation of 18 BOGGS, J., opinion delivered the 2251(a) § U.S.C. and one count of posses court, SUTTON, in which ROGERS and (Count Two), sion of child pornography JJ., SUTTON, 306-12), joined. (pp. J. 2252A(a)(5)(B). § violation of 18 U.S.C. a separate concurring opinion. delivered This grand indictment issued from a jury in the Eastern District of Michigan. On OPINION April 2009, Craig Aleo charged was BOGGS, Judge. Circuit with one count transporting and ship (Count ping Three), child appeals pornography this we deal with two 2252A(a)(l). violation arising out of the criminal of 18 U.S.C. conviction and sentencing Craig indictment for this offense Craig ap- Aleo. Aleo issued from the (Part I), peals his Northern District of New sentence and his trial York.1 attorney, Freeman, John appeals the sanc- Aleo pleaded guilty to all counts. At imposed upon tion him the district sentencing, he was sentenced to the statu- (Part II). tory maximum for all three counts—720 imprisonment months of be served
Craig Aleo was sentenced to the statuto- —to consecutively. appeal, challenges On Aleo ry maximum sentence of 720 months of procedural and substantive reasonable- imprisonment pleaded after he guilty to sentence, requests ness his that his one count each of producing, possessing, case be remanded for resentencing before transporting and shipping por- child judge. a different We reverse his sen- nography. guidelines His range was 235- being substantively tence for unreasonable 293 months. Because we cannot find a resentencing. and remand for justification within the factors enumerated 3553(a) in 18 justify U.S.C. the vari- court,
ance imposed by the district we A resentencing. reverse and remand for Aleo, 66-year-old resident of Davis- counsel, Craig trial burg, Michigan, Aleo’s John Free- was identified October man, $2,000, was by agents sanctioned based on the from the Bureau of Immi- sanction, (ICE), district court’s inherent power gration and Customs Enforcement 1. charge Michigan The Northern District of New York ern District of to be consolidated transferred, Two, personal pursuant after Aleo waived with Count One and Count appearance, plea and sentence to the East- Fed R.Crim.P. 20. 27, 2009, agents obtained On March ICE who owned of individuals group of a
as one at Aleo’s Paypal account a search warrant a certain and executed and controlled to child- payments computers, make two Agents residence. seized that was used under inves- CDs, DVDs, While types websites. and other stored pornography into paid $99.95 $79.95 Aleo tigation, A search of these con- electronic media. sepa- for access to two account Paypal (Michigan) Police De- ducted the Utica May On websites. child-pornography rate 1,186 images of child partment showed child-pornography 24, 2008, joined Aleo these, images 912 of the pornography. Of identifying information website, giving prepubescent children. or videos showed agents ob- number. ICE card and credit and one video showed Eight images still and were able to warrant tained a search images. Aleo’s USB “sadomasochistic” address had Aleo’s email determine ap- “that contained 125 short videos drive im- child-pornography access been used have taken with a hidden peared to been 26, 2008, May May on ages and video all in a bathroom.” These showed camera through June and June January clips 2000. The the date *5 26, 2009, wife Aleo and his March On in the bath- adults and children showed entry at Alexandria port drove into room, a motion-sensi- probably filmed with York, Because from Canada. Bay, New showed a images tive camera. Several being database as on an ICE he was listed five-year-old later identified as Aleo’s girl, relating for violations investigation under dress, and putting on a granddaughter, stopped Aleo was pornography, to child girls of her and other “in vari- some were Customs officers secondary inspection. a ous states of dress.” laptop, a car and found inspected Aleo’s a girl of Aleo’s DVDs also shows One drives, memory and numerous thumb two five-year-old later identified as Aleo’s inspected, were officers cards. These taking a bath. The DVD granddaughter in- images exploitation, of child found 13 on November appears to have been made girls three of cluding prepubescent at least This video was described ICE men, on and one mov- performing sex acts Raymo Donald at Aleo’s detention agent ie file. 21, 2009, in hearing, April held the United arrested and read his Miranda Aleo was for the Eastern Dis- States District Court ownership of all rights. He then asserted Raymo, Michigan. According trict of agents that he and told the the electronics bathes, bath, girl Aleo she puts computer images contained knew and, Aleo dries her off while and then He also told the pornography. child her, drying penetrates vaginal her area child he subscribed two agents that Raymo finger. his also offered the with websites, Dreamzone.com pornography following description: He told the officers and HushHush.com. upload images, or trade but that he did can Q: specifically you see when What images and stored on his only downloaded the video? you watch told the officers that he computer. He display girl’s A: a of the little Certainly home, gave computer had another genitalia. that effect. This inci-
written statement the basis on which Aleo was dent was Q: genitals? on her It’s focused charged production in New York with Definitely. A: (Count pornography of child shipping Three). girl up
A: The little on a standing B cupboard figure and Mr.—the male ap- pleaded guilty Aleo without a plea pears drying to be child off. agreement to all against counts him. Q: aWith towel? The United States Probation Depart- towel, A: in portions With there prepared (PSR) ment a presentence report certainly appears also inap- be some for Aleo. The PSR calculated a base of- propriate contact. There’s some sexual fense level for Count One of 32. To this assault. level, base offense four levels were added because the production of child pornogra- Q: Specifically what? phy involved a minor under the age of A: Digital penetration. twelve; two levels were added because the Q: you So see Mr. finger Aleo’s or offense involved the commission of a sexu- you believe to be Mr. what Aleo’s fin- (the al act or sexual contact PSR described ger— the video of granddaughter Aleo’s as show- ing Aleo “penetrating] vaginal- [the child] Honor, Mr. going Freeman: Your I’m ly with finger”); his and two levels were object. I think we all know what that added Aleo because relative of the means. minor the offense and the minor was in The Court: Sustained. care, custody, or supervisory control. R.62 at 65-66.2 Therefore, Aleo Adjusted received an Of- fense Level of 40. This video was the basis for the Count *6 One. It was also the basis for a “Criminal One, Two, Counts and Three were Sexual Degree” charge Conduct 1st grouped, pursuant § to U.S.S.G. 3D1.2.4 against court,3 Aleo in Michigan state to One level pursuant was added to U.S.S.G. which pleaded Aleo “no contest.” § 3D1.4.5Three levels were subtracted for acceptance responsibility. of Aleo’s total offense, As a result of his Aleo’s mental offense level was thus 38. Aleo had no health was evaluated a psychotherapist history criminal points, making guide his psycho- referred defense counsel. The range lines months. 235-293 therapist meeting described Aleo as the clinical pedophile. definition of a government Aleo’s The objec- and Aleo made risk-assessment score indicated a low government risk tions to the PSR. The calcu- sexually to re-offend and low risk to act range lated Aleo’s guideline to be 262-327 out in months, a violent manner. arguing U.S.S.G. 3D1.4 re- 2. The video was submitted to National the person years age.” er Comp. is under 13 Mich. Missing 750.520b(l). Exploited and Center Children to L. any determine if it had been identified in previous law investigations enforcement “closely or if 4. The states that section related images it or from it had been “grouped together distributed or counts” should be into uploaded to the single internet. The found Group.” closely Center Counts are related when, suggesting no images information that the as this “one of the counts had been so used. specific embodies that is treated conduct as in, adjustment offense characteristic or other to, 3. The statute for guideline applicable "Criminal Sexual Conduct in the to another the "(1) Degree” provides: person the First A counts.” guilty engages pen- ... he if or she in sexual person any etration with another and provides grouped Section 1.4 that 3D counts following (a) circumstances exists: oth- specified [t]hat can result in a offense-level increase. history levels, to the offense level of 38 with criminal be added that 2
quired level of I. level of because adjusted offense grouped together. not be counts could statements, judge’s After initial calculation, government on this Based son-in-law, par- daughter Aleo’s that Aleo be sentenced recommended DVD, in the made ents of the victim both months, by a life term of followed statements. release. supervised government then made a statement calculation argued Aleo that the PSR’s reiterating its recommendation of 300 the video did not incorrect because imprisonment followed a life- months grand- his digitally penetrating him show supervised time of release. Aleo’s attor- arguments his daughter. Aleo reiterated ney spoke, stating then his belief that subsequent supplemental sentencing in a legitimate dispute “there is a factual con- memorandum, trial in which his counsel accuracy that there was cerning the factual he “reviewed the video argued that had touching penetration.” He re- sexual experi- it with another and [discussed] request judge iterated his that sen- attorney” criminal defense enced minimum of mandatory tence Aleo to the footage depicted drying girl Aleo imprisonment. months of off, touching. with no sexual allocution, Aleo stated the During car acknowledged Aleo his offenses following: minimum of 180 mandatory ried a sentence Honor, my apologize Your I want to and 60 months for months on Count One I family pain for all the which caused these requested Three. He Count my them actions and sins. I because imposed be mandatory minimum sentences forgiveness. ask for their offender, was a first-time he because he my I apologize forgiving wife for past society, positive had contributions past supported me and who has me this problems.6 health He asked he had year everyday and a visit with letters imposed to run con that the sentences be *7 every week. currently, so that he would serve 180 Honor, years ago, Your over 30 we imprisonment. months of that promise made a to each other we that together, would work hard and live
C enjoy our love for each other we would newly forever like we were weds. I April Aleo sentenced on was promise, your that Honor. But I broke judge stated that he had seen the The. promise. Through made her a new PSR, objections to the that he had re- prayer therapy together and we will sentencing ceived the memoranda from my I conquer affliction and will walk out sup- government Aleo and the and Aleo’s we live prison, willing, God and will The plemental sentencing memorandum. in together. out our lives retirement objec- judge parties’ stated that as to both least, Lastly, certainly but not the I adopt response tions he would apologize to the for the countless Department. judge Probation The stated Court I spent my that to have an hours because of actions. Aleo would thus be held disease, history kidney problems had with foot 6. Aleo had a of heart 2001. Aleo has also failure, gangrene complications a result of diabetes. In his from diabetes. He as surgery amputated; next month a quadruple bypass had a heart in fifth left toe was kidney transplant right amputated. required a toe on his foot was exist, mercy again way to have on me there’s no ask Court the sen- might guidelines I have a chance for sentencing tencing adequate so are ... to my promise. fulfill punish freedom and to the defendant for what he has done to the victims to make this sentencing judge then assessed thing right.... Aleo’s sentence and his reasons choos- In ing punishment. part, relevant he The Court believes that the factors stated: 3558 should be considered. Number one, one, punishment, and the
... I Court believes perhaps Number think this is punishment the harshest to this kind of despicable one of the most cases that I in, imposed action should be on years have ever been involved in 28 the defen- dant. thinking on the bench. I’ve been about
it, it I can’t think of thinking about In rehabilitation, terms of I don’t another case. possible. know ... if it’s even I have
... I’ve listened to the defendant’s listened to the thing whole and there is attorney argue today and listened I’ve no very remorse and rehabilitation is the defendant. I’ve heard not word of difficult, may may but there or not be. Everything remorse. Not a word. deterrence, absolutely. terms of defendant, health, about the poor his his very, very It’s important give toes, age, talking he lost some and he’s harshest sentence possible to deter oth- about the love for his wife. But not a— ers.... nothing of remorse. He doesn’t talk here, about the victims that the victims It will be the sentence of the Court going emotionally are to be scarred for that the defendant be committed the rest of their lives. The fact that Bureau of Prisons. As to Count One there,
images are out that he took them. Two, years, 360 months. As to Count relationship grand- That it was a of a months, years, ishe to serve daughter, granddaughter, his own consecutively to each other. thing.... flesh and blood. Not one No Three], it [Count remorse whatsoever. As is the sentence the Court the defendant be sen- ... The Court believes that the sen- months, years to 240 tenced or which tencing guidelines totally nonappli- are Again, is the maximum. to be consecu- cable to this case. There is no human tive other sentences.... committee, and that’s what the sentenc- *8 is, ing guideline commission it’s a human equalize committee that tries to a fair- pris- That should he be released from sentencing. ness terms of I don’t hope on and I he isn’t that he will be they anticipated grand-
think ever that a placed period supervised a of on release daughter would be involved this kind years.... for five victim, activity of—a in this kind of further, judge The stated “The discre- certainly grandfather doing not a it. I sentencing up tion of the is to me. way they There’s no would have been remorse, believe has no but even [Aleo] guide- able to even foresee that. the So remorse, I change he had would not certainly guideline lines ... is not a despicable of the act that sentence because this kind of case.... he did.” ... excluding Even the sexual touch- that, ing timely appeal. and all even if didn’t Aleo filed this [that] rule on
D
the district court’s failure to
sexually touched his
whether or not he
procedural
the
and sub-
challenges
Aleo
right
him the
granddaughter deprived
of his sentence.
stantive reasonableness
sentencing
proven
have
enhancements
ease be remanded for
Aleo asks that his
by
government by preponderance
judge, because
resentencing to a different
the evidence.
have
Judge Friedman would
he believes
difficulty putting
previ-
out of his mind his
government
required
The
is
expressed views of the case.
ously
support
the existence of a factor
establish
Reasonableness
Procedural
ing
sentencing
pre
enhancement
the evidence. United
ponderance
argument
first
is that his sen-
Aleo’s
(6th
Gibson,
States v.
985 F.2d
proeedurally
unreasonable.
tence
Cir.),
denied,
cert.
argues
he
the district
Specifically,
(1993).
2981,
Federal Rule of Criminal Proce sexual contact was 32(i)(3)(B) that, provides preponderance dure sen of the evidence. Officer “[a]t tencing, any disputed Raymo’s testimony the court must—for about the video and portion presentence report plea charge or other Aleo’s no-contest to the dispute controverted matter —rule on the Sexual Conduct in the First De- “Criminal ruling unnecessary gree” prove or determine that a in state court suffices to preponderance either because the matter will not affect fact of the evidence. *9 Vanbuhler, sentencing, or because the court will not United States v. 558 See (E.D.Mich.2008) 760, in sentencing.” F.Supp.2d consider the matter The 765-67 requires compliance” (imposing sentencing Sixth “literal enhancement based Circuit Tackett, plea with Rule 32. v. on defendant’s no-contest to a Michi- United States (6th offense). 603, Cir.1997), By 113 to gan pleading F.3d 613 cert. de no contest nied, 1089, 879, 522 139 in the First De- U.S. 118 S.Ct. Criminal Sexual Conduct (1998). argues gree, every L.Ed.2d 868 Aleo also Aleo admitted essential ele-
299
comply
offense. United States v.
to
with” the basic aims of sentenc
ment of the
(6th Cir.1982).
Freed,
24,
3553(a).7
25-26
688 F.2d
ing as set forth
18 U.S.C.
Therefore, Aleo admitted that he “en-
sentence,
deciding
In
on a defendant’s
the
of the vic-
gage[d]
penetration”
sexual
judge
by
begin
considering
should
the Sen
Comp.
§L.
tim.
750.520b.
See
Mich.
tencing
range prescribed
Guidelines
the defendant’s offense. Gall v. United
that his sentence was
argues
Aleo next
States,
38, 49,
586,
128 S.Ct.
169
the
procedurally unreasonable because
(2007).
judge
L.Ed.2d 445
The
sentencing judge failed to calculate the
should
Baker,
range.
The sentenced Aleo district unique characteristics his offense. Four imprisonment, to 720 months of which is levels were produced added because Aleo longer almost two and one-half times than child pornography with a minor under the months, top guidelines of Aleo’s age of twelve. Two levels were added guidelines range. range, As it exceeds the because offense involved the commis- not entitled to a presump sentence is sion of a act sexual or sexual contact. Two Gall, tion of reasonableness. 552 U.S. at levels were added because Aleo was a rela- Further, because tive of the minor and the minor inwas beyond far goes guidelines sentence so care, custody, or supervisory control. range, we must determine the district Therefore, the guidelines expressly take provided compelling reasons such into account defendant who creates child a variance. We must also determine relative, pornography using when the sentencing statutory whether Aleo at the twelve, age relative was under the un- sentencing disparities maximum will create supervision, der the individual’s who between Aleo and similar offenders. See sexually during the defendant touched 3553(a)(6). 18 U.S.C. pornography. creation of the guide- The specifically lines do not differentiate the judge provided The district several rea- grandparent/grandchild sons for from sentencing imposed. relationship variance judge that he other familial relationships, stated believed the but neither do guidelines possibly they could not have envi- differentiate the parent/child relation-
301
offense,
which,
statutory
in an
maximum
years.
when involved
sentence of 20
ship,
of con-
id. at 406.
equally
deserving
Poynter,
or more
See
Under
Aleo’s
seems
took into ac-
sentence
guidelines
dispar-
demnation. The
should avoid unwarranted
very
sentencing
ity
factors that the
with
count the
sentences received for similar
Therefore,
they
did not.
crimes.
It
is
judge said
unwarranted for Aleo to
the belief that these factors were not envi-
receive a sentence ten
greater
times
than
guidelines
sioned
the creators of the
is
in Gawthrop,
sentence
in which the
justification
compelling
not a
for
History
defendant also had a Criminal
cat-
guidelines range.
judge’s
II,
variance from the
egory
opposed
as
category
Aleo’s
I,
nearly
or
five
greater
times
than the
justified
The district court
its variance
defendant in Hunley.
compel-
There is no
by stating that “the
guidelines
from the
ling justification
differentiating
his of-
strongest
was needed
possible deterrence”
fense
dramatically
so
from theirs.
However,
all
for Aleo’s offense.
“not
...
to a
sex offenders deserve what amounts
only
Not
did the district court err in its
sentence; otherwise, Congress
life
would
disparity
consideration of
because similar
statutory range
not have set a
of 0-60
significantly
offenders have received
light
years.” Poynter,
8. Cases from outside our circuit also serve to in a host of sexual activities on camera male, including vagi- type oral and demonstrate the of offenses that should with an adult given punishment be the harshest the law can nal intercourse. He was sentenced to with- one, 1,200 (his example, per- in-guidelines months offer. In a defendant sentence of they 13-year-old stepdaughter grouped because suaded his to en- four counts were not *12 302 deserving statutory has reversed sentences as maximum:
This circuit
where the dis-
substantively
who,
unreasonable
example,
those
for
fled the authori-
compelling jus-
offer a
trict court failed to
ties,
accept
did
responsibility,
not
or who
a
that varied
tification for
sentence
dra-
previously
have been
convicted of sex of-
In
matically
guidelines range.
from the
fenses with children.
case,
substantively
recent
we reversed as
im-
unreasonable
720-month sentence
starkly
Poyn
Even more
than in
posed
repeat
on a
child sex offender.
ter, the district court in Aleo’s case did not
Poynter,
Poynter
II daughter request speak and her deals with the opinion II of this Part *13 sentencing. Please let me know wheth- trial $2,000 imposed on Aleo’s sanction you permission er intend to seek from counsel, Freeman was Freeman. John Also, speak. please the court for her to decided the district court sanctioned when an provide proof me with offer re- in a motion bad- that he filed a meritless garding you expect say. what her to a victim who to intimidate faith effort replied, that the stating The AUSA CVRA sentencing during Aleo’s speak wished to him require request permission did not rights to her under hearing, pursuant speak, from the court for a victim to (CVRA), Rights Act Crime Victims’ that he did not have to tell Freeman what court abused its dis- § 3771. The U.S.C. say. would the victim that motion deciding in Freeman’s cretion Therefore, re- faith. we was filed bad 13, 2010, Freeman a mo April On filed verse the sanctions. that compel. requested tion to The motion “a prosecutor
the court order the
to file
motion,
A
formal
with notice to defense coun
sel, seeking
for the child com
permission
when he received
On March
at sentenc
plainant’s
speak
mother
PSR,
that
Freeman learned
victims
ing.”
Freeman described his fruitless
daughter
namely Aleo’s
Aleo’s offense—
correspondence
email
with
AUSA.
son-in-law,
parents
of the abused
prosecutor
that
Freeman said
because
at the
speak
granddaughter
planned
—
that he had
had refused to do as he asked
hearing. Freeman states
sentencing
compel
court to
no choice but to ask the
concerned about what the vic-
he became
no
prosecutor
under the “motion and
say
discussing
after
the issue
might
tims
requirement
tice
of the CVRA.”
6, Free-
April
April
Aleo on
5. On
with
sentencing,
At Aleo’s
Freeman reiterat-
concerns about the victim
expressed
man
motion.
request
ed the
embodied
in an email to the Assistant
statements
(AUSA)
that he
not
judge
The district
indicated
did
Attorney
who was
United States
motion, that he was
want to discuss the
the ease. He wrote:
prosecuting
may
torney
assert the
Rights
provides:
for the Government
Crime Victim’s
Act
10. The
(a).
per-
rights
in subsection
A
described
(a)
vic-
Rights of crime victims.—A crime
may
obtain
following rights:
accused of the crime
son
tim has the
chapter.
any
under this
form relief
(4)
any
right
reasonably
to be
heard
public proceeding in the district court in-
(3) Motion for relief and writ of manda-
release,
sentencing,
any
volving
plea,
or
rights described in subsection
mus.—The
parole proceeding.
(a)
be asserted in the district court
shall
being prosecuted
is
which
defendant
(b) Rights afforded—
or,
underway,
prosecution
the crime
if no
is
(1)
general.
any
proceeding
court
—In
court in the district in which
in the district
victim,
against
involving
a crime
an offense
court shall
the crime occurred. The district
ensure that the crime victim
the court shall
asserting
any
up and decide
motion
take
rights
afforded the
described in subsec-
right forthwith.
If the district
victim’s
(a)....
tion
sought,
movant
denies the relief
may petition
appeals for a writ
the court of
(d) Enforcement and limitations.—
of mandamus....
the crime
Rights.
crime victim or
—The
added).
(emphasis
18 U.S.C. 3771
representative,
at-
lawful
and the
victim’s
motion,
deny
argued
he He
going to
defendants have
due-
issuing
process right
a written order.
at sentencing
would be
to have notice
facts,
regarding disputed
and be heard
3, 2010, after it
May
On
had issued its
citing
Hayes,
United States v.
171 F.3d
Aleo, the court
judgment regarding
issued
(6th Cir.1999)
389, 392
and United States
denying
compel
an
Aleo’s motion to
order
Silverman,
(6th
briefing
additional
from the
and ordered
Cir.1992) (en banc),
denied,
cert.
parties
question
sanctioning
on the
evidence
B
Metz,
“must
12. Aleo’s 15, April punishing 2010. bad-faith mechanism for sole We do not need to conduct in criminal cases. questionable may be whether the inher- It conduct reach this issue because Freeman’s authority even exists in a ent to sanction under either the fails to merit sanctions argument An criminal case such as this one. authority or Rule 42. court’s inherent that Federal of Criminal can be made Rule 306 in only tangible punish attorney evidence the district a defense a criminal filing a frivolous faith was case for motion. pointed regarding bad timing of Freeman’s allegedly belated moving point, Before forward with this However, indeed raised Freeman motion. a few steps let me take back. From days matter about ten before the hear- present, founding to the the federal courts with the correspondence the email
ing,
possessed “implied powers”
have
that “are
Only
the matter could not be
when
AUSA.
necessary to the exercise of all others.”
by agreement did he file. The
resolved
(7
Hudson,
United States
11 U.S.
subsequent filing of
does not
the motion
Cranch)
(1812);
The First
as
Ill
contempt
creating
power
a
for civil and
day.
criminal cases
exists to this
See
reasons,
RE-
Based on the
we
foregoing
17,
Judiciary
§
Act of
ch.
1 Stat.
Aleo’s
REMAND
VERSE
sentence and
73, 83;
§ 401. In
18 U.S.C.
Rule
resentencing;
for
we
the sanc-
REVERSE
of the Federal Rules of Criminal Proce-
counsel,
imposed on
John
tions
Aleo’s trial
adopted
lay
dure
to
out
process
Freeman.
exercising the criminal-contempt power.
SUTTON,
Judge, concurring.
Circuit
intrigues
What
me is not
whether
courts, in
lower federal
the absence
this
full,
join
I
the court’s decision in
includ-
rule,
statute and
have
nonetheless would
ing its conclusion that
the district court
power
misbehaving
to sanction
criminal
abused its discretion when it invoked its
lawyers. They assuredly
defense
had
power
impose
inherent
to
sanctions on de-
inci-
power
necessary
from the outset as a
attorney
filing
fense
John Freeman for
creation,
had
Congress
dent of
whether
separately
motion.
I
frivolous
write
to
contempt
common law
power
codified the
express skepticism about a lower federal
My
in
not.
re-
question
1789 or
is what
power
court’s
ever to use inherent authori-
inherent power today.
mains of that
ty,
opposed
as
contempt power
to the
es-
(18
401)
by
§
power
tablished
statute
and
Article III
to create
Congress’s
U.S.C.
(Fed.R.Crim.P. 42),
implemented by rule
federal
“inferior”
courts includes
11(b).
spells
The Rule
out
authority. Be- Fed.R.Civ.P.
limit their
power
lesser
procedural prerequisites
imposing
creat-
courts “were
lower federal
cause the
(“notice and a
legislature
oppor-
a sanction
reasonable
Congress,”
by
ed
acts
...
power
tunity
respond”),
may
who
seek sanc-
their “inherent
may “limit[ ]”
Chambers,
court),
501 U.S. at
(opposing parties
rule.”
tions
statute
2123;
Robin-
parte
(monetary
accord Ex
types
of sanctions available
S.Ct.
Wall.)
(19
505, 511, 22
son,
L.Ed.
nonmonetary)
purpose
and the
and limits
86 U.S.
(1873).
(“limited
why the lower
explains
That
of a sanction
to what suffices to
their inherent
may not use
compara-
federal courts
or
repetition
deter
of the conduct
situated”).
“thwart[ ]
or
power
“cireumvent[ ]”
similarly
others
ble conduct
mecha-
sanctioning
other
purposes
11(c).
rules,
Fed.R.Civ.P.
Other
statutes
directly
Congress
provided
has
nisms”
grant
permissive
courts
regulations
through the Rules
directly
or less
statute
authority to address related
sanctioning
Chambers,
Act.
Enabling
problems
civil cases. See Fed.R.Civ.P.
401;
16(f),
37, 56(h);
§
S.Ct.
26(g)(3),
18 U.S.C.
1927;
see also
28 U.S.C.
8 U.S.C.
case, it
have
would
Had this been
civil
1229a(b)(6)
(immigration proceedings);
A
use of inher-
easy
an
case.
court’s
been
(trademark
§ 2.120(g)
proceed-
37 C.F.R.
filing of Mr.
to sanction the
power
ent
R.App.
pro-
P. 38
ings);
(appellate
Fed.
motion
(allegedly)
frivolous
Freeman’s
(bank-
ceedings); Fed. R. Bankr.P. 9011
reconciled with the sanction-
could not be
ruptcy proceedings).
the Fed-
already
place
under
ing regime
In a civil
Procedure.
eral Rules
Civil
carefully
In the face of these
delineated
sharp-
court faced with
district
regulations,
thing
it would be one
invoke
may,
indeed
litigation tactics
elbowed
authority
gap
fill a
sanctioning
inherent
must,
under
attorney misconduct
sanction
Rules,
such as conduct outside
the Civil
requires attorneys to
Rule
which
Civil
Chambers,
jurisdiction.
the court’s
See
*17
motion,
any
written
certify
“pleading,
36-37, 50-51,
at
I lean toward the former view. There Civil-Rule-11-like sanctioning regime to good are reasons to think Congress setting. and the criminal they conspicu- But and, Rules drafters meant ously to treat civil suspects, one consciously have cases and criminal cases differently when not done so. Neither Congress has done it comes to regulating attorney miscon- so statute. Nor has the President done duct. To ensure that criminal defendants so executive order. See Exec. Order receive advocacy, zealous “generally 12,778, 55,195,55,197, courts Fed.Reg. 55,- No. (Oct. 1991) tolerate arguments on behalf of criminal 200 (directing federal gov- (1) any person of in its Misbehavior “seek sanctions attorneys eminent presence or so near thereto as to ob- opposing counsel opposing against justice; of struct the administration exempting but appropriate” where parties any of its officers Misbehavior cases). inac- flagrant Sometimes criminal transactions; in their official action, where particularly tion amounts (3) Disobedience or resistance to its Rules stand side Criminal nearly silent writ, order, rule, de- process, lawful autho- many Civil Rules with the by side cree, or command. only would it be Not rizing sanctions. § 401. The statute covers civil many of the civil-sanc- 18 U.S.C. to import
difficult Rules, a elu- contempt, and criminal “somewhat into the Criminal tioning powers Union, distinction, Int’l United Mine sive” three-quar- than of more passage but the Bagwell, Workers Am. Enabling the Rules century of a since ters 129 L.Ed.2d any passage law without the Act became (1994). contempt Generally speaking, civil omis- that the suggests rules comparable compliance “to coerce future with is used sion is no accident. “compensate or to for the court’s order” something reflects Perhaps the omission misconduct, resulting from In re injuries” drafting sanctions difficulty of else—the (6th 302, 305-06 Cir. Jaques, 761 F.2d resulting criminal cases and rules for 1985), contempt “imposed is while criminal to use an allowing district courts utility of and does not “serve punitive purposes” case-by-case on a power inherent-sanction aggrieved party an or compensate former, I but I do not doubt Chandler, basis. action.” In re coerce future the answer. (6th the latter Cir.1990); cannot believe see also presents al., rules drafting such Federal Wright The reason Alan et 3A Charles (4th ed.). a criminal that the stakes of challenge is Practice & Procedure objec- contempt if not all A fair trial is the a criminal most high. trial are so cases, overriding punitive citations will be and backward- it is the tive in civil but looking. cases. in criminal imperative constitutional a free- that district courts have
The notion Rule 42 of the Federal Rules Criminal frivo- floating power inherent to sanction for crimi- spells process Procedure out the attorneys in taken legal positions lous personally contempt. nal Unless the conduct,” flips not civil cases criminal cases but contemptuous or heard the “saw notice, a reasonable priorities. provide these it must allow defense, an appoint prepare time to inference: Con- That leaves the best contempt. Fed. attorney prosecute give the Rules makers meant gress and 42(b), (a). it comes to When R.Crim.P. tool—the con- just courts one the federal attorney in crimi- misconduct sanctions attorneys power discipline tempt —to trials, 401 and that is all there nal is— *19 is the statute criminal cases. Here how why the federal Rule 42—and one wonders lay power pro- and the and Rule out the it at that. should not leave courts in full: says The statute cess. Chambers, true, held that a federal it is have States shall A court of the United to sanction bad- is not “forbidden court imprison- fine or of the inherent power punish to conduct means faith discretion, ment, both, conduct could at its such because that power simply or or the under the statute authority, and none oth- also be sanctioned contempt of its 50, 2123. at 111 S.Ct. 501 U.S. er, Rules.” as— 310 civil, criminal, rejecting effort, a a 2369. In that the
But
was
not
S.Ct.
Chambers
ais difference between the
“[t]he
and there
Court reasoned that
balance struck
impli-
in Chambers that
two. The conduct
by the Rule between societal costs
the
11, moreover,
inter-
cated
Rule
may
Civil
of
rights
the
not
be
casually
accused
beyond
...
twined with “bad-faith conduct
overlooked because a court has
to
elected
only
...
the reach of the Rules
that
the
analyze
question
supervisory
the
under the
inherent
could address.” Id. at 50-
power
255, 108
power.” Id. at
S.Ct. 2369.
51,
setting,
111
In
S.Ct. 2123.
the
52, §
so here.
Rule
Just
Like
401 and
reasoned, it
Court
would “foster extensive
42
de
competing
Rule
balance
values: to
litigation”
require
and needless satellite
to
punish
ter and
offensive conduct
the
on
conduct
separate
district court to
out the
yet
hand
give
one
to
criminal
at
defense
forbidden
Rules from
sanc-
the
conduct
torneys
represent
space
the
to
their clients
only through
power.
tionable
the inherent
zealously on the
history
other. The
of the
51,
at
2123.
Id.
111 S.Ct.
When a
contempt
federal
shows
the
statute
faced with
not
with
conduct
intertwined
Judiciary
not
figment.
tradeoff is
The
purview
other conduct outside the
gave
Act
1789
“power
of
federal courts the
Rules,
says
Chambers
that the court “ordi-
punish by
...
to
or
at
imprisonment,
fine
narily
rely
should
on the Rules rather than
courts,
of
the discretion
said
all contempts
the
power,” resorting
inherent
to the latter
authority.”
17,
judge
of
1
A
Stat.
only when “neither the statute nor the
eventually
grant
abused
broad
pow
this
of
50,
up
Rules are
to the task.”
Id. at
1826,
Peck,
er.
In
Judge
James
of
S.Ct. 2123.
States
United
District Court for
Dis
Chambers,
Since
the Court has twice
Missouri,
trict
imprisoned
of
and disbarred
courts
admonished lower
not to use inher-
lawyer
for criticizing
opinion
ap
on
power
sidestep
ent
to
Federal Rules of
remarkable,
peal-
mildly
understanda
—a
Criminal
scope
Procedure. “Whatever the
ble, lapse in judgment. See
J.
Arthur
of
power,
inherent
it does not
[a court’s]
Stansbury, Report
Trial
H.
James
of
of
include
power
develop
rules
(1833);
Barton,
2-5
Benjamin
Peck
H.
An
circumvent
conflict with
Federal
or
I Theory
Article
the Inherent Powers
of
of
Rules of
Procedure.”
v.
Criminal
Carlisle
Courts,
the Federal
Cath.
U.L.Rev.
States,
416, 426,
United
517 U.S.
(2011).
&
In response
44-45
n.315
pub
(prohibiting
L.Ed.2d
outcry
action,
lic
over the judge’s
Congress
using
district
authori-
courts from
inherent
imposed new
on
limitations
the federal
ty
grant
judgment
acquit-
motions
contempt power.
courts’
See Act of Mar.
tal filed
the time
prescribed
outside
limit
(establish
1,§
ch.
4 Stat. 487
by Federal
Rule
Criminal Procedure
ing
appear
the limitations that now
in 18
29(c)); accord Bank
Nova
Scotia
401(1)-(3)).
U.S.C.
The
an
next
time
States,
250, 254-55,
United
attorney criticized
of Judge
one
Peck’s rul
(1988).
S.Ct.
311
witness,
it
potential
impose;
addressing
harass a
Rules
a situation
lous motion to
of behavior that
we assume—is the sort
the
at all.
contemplated
so
Rules
of, and is thus
purview
falls within
government
calls our attention to a
imposed by,
subject
to the limitations
handful
cases which other courts of
Yes, it
to me.
§ 401 and Rule 42.
seems
appeals approved the use of inherent-pow
attorney’s
A criminal defense
conduct
er
in criminal
sanctions
cases. But these
contempt if it satisfies four
amounts to
point.
cases illustrate our
The govern
(1)
misbehav-
criteria:
it “must constitute
case,
one,
ment cites no
nor have we found
(2)
401(1)”;
it “must
ior under 18 U.S.C.
in which a court of appeals affirmed a
amount to an
of the adminis-
obstruction
power
district court’s use of its inherent
(3)
justice”;
it
occur in the
tration of
“must
impose
on an attorney
filing
sanctions
for
presence”;
court’s
“there must be
frivolous motion in a criminal case. The
Chandler,
a form of intent to obstruct.”
orders,
cited cases either reverse sanctions
If a criminal defense
ty-five years of risks of Rather than take the position their own. may courts never invoke that lower federal sanctioning power an when it inherent ACQUISITION HUMBOLDT CORPO- cases, filings in comes to frivolous criminal RATION, INC., dba Humboldt Manor that a part suggest
the better of valor is Nursing Home, Defendant-Appellee. tempted to invoke district court its inher- No. 09-6381. powers ought urge to resist the ent unless satisfactorily it can address these consider- Appeals, United States Court of ations: Sixth Circuit. 1. Is there relevant Criminal Rule? so, If why not invoke it? Argued: Nov. 2011. 2. covering Is there a Civil Rule May Decided and Filed: 2012. so, If it possible same conduct? is that the opted drafters the Criminal Rules not to
impose similar sanctions criminal cases
because the Rule Civil does lend itself
to the criminal context?
3. If neither the Criminal Rules nor issue, speak Civil Rules should a impose case-by- such on sanctions urge Advisory
case basis or Committee
on the Federal Rules of Criminal Proce-
dure to invoke the deliberative and inclu-
sive Rules Act Enabling process to consid- adoption
er the of a new Rule? See Mark Kravitz, Revise,
A. To or Not to Revise: Question,
That Is the 87 Denv. U.L.Rev. (2010). gives pause If none of this a court
and if imposing a criminal sanction for a filing
frivolous remains consistent with the
“restraint appropriate and discretion”
any judicial exercise of inherent power,
Chambers, 501 U.S. at
this rare case. And the court of sanction,
appeals it upholds may be a
unique one. Notes the as- ers assumed courts also could sanction against