United States v. Howard

different, ter circuits that harmless error review is those two to decide whether nity in en appropriate, dif should result banc re- occurring require situations commonly hearing. practice automatically avail Our respect with answers ferent reversing convictions when defendant of a error application harmless ability or See, Jordan, timely objects that an element of the of- F.3d at e.g., analysis. the indictment is that, fense was omitted from 1096(holding drug quantity when was Neder, Cotton, Mechanik, of step nor out alleged in the indictment neither reviewing prejudice our cases beyond own a reasonable proved jury from caused the omission of elements doubt, was not harmless be the omission doubt). view, I Accordingly, respectfully my In indictments. yond a reasonable rule dissent. to abolish the ought en banc only the most trou reversal automatic in which of cases: convictions

bling subset of, jury had notice

the defendant regarding, the ele properly

was instructed missing from the indictm of the crime

ment

ent.8

H. Conclusion fail that indictment’s

I am confident banks allege the defrauded ure America, UNITED STATES of federally prejudice insured did not were Plaintiff-Appellee, that he dispute does not Defendant. He federally insured status actually knew that v. Moreover, an element of crime. was HOWARD, Lee Defendant- Jesse federally status for insured certificates Appellant. Defendant provided to each bank were (albeit late), of federal insurance evidence America, States of trial, was in jury introduced was Plaintiff-Appellee, that must find that the banks structed it verdict, and, federally by its insured were v. beyond a reasonable jury did so find plainly Farias-Blanco, This of factors doubt. combination Defendant- Jose Luis satisfy prejudice inquiry Appellant. we would previously untimely challenge used have adopted. and that other circuits America,

cases United States Nonetheless, requires Du Bo reversal for Plaintiff-Appellee, defect alone.9 makes as little common A result Cedillos, Angel Defendant- that, Jose recurring issue on sense Appellant. in our growing consensus sis- prompted contrast, concern, words, By jury was not instructed 9. My other is not re- view, my missing materiality Omer, element. panel analysis that the but the sult both the of the element from omission required use to reach it. was was not and the instructions indictment beyond a reasonable doubt. harmless America, of America, United States United States of Plaintiff-Appellee, Plaintiff-Appellee,

v. V. Boulies, Herman Robert Defendant- Raudales, Christian Defendant- Appellant. Appellant. America, of States United America, United States of Plaintiff-Appellee, Plaintiff-Appellee, v. v. Rivera-Gonzalez, Daniel Defendant- Miguel Lencia, Defendant-Appellant. Appellant. America, United States of America, of

United States Plaintiff-Appellee, Plaintiff-Appellee,

v.

Jorge Pineda-Fernandez, Jorge a/k/a Raymond Cazares, Defendant- Peneda, Defendant-Appellant. Appellant. America,

United of States America, United States of Plaintiff-Appellee, Plaintiff-Appellee, v. v.

Randolph Cisneros, Arthur Crocker, Defendant-Appellant. Vernon Defendant-Appellant. America, United States of America, United States Plaintiff-Appellee, Plaintiff-Appellee, v. v. Garcia-Chavez, Cornelio Defendant- Gallardo, Defendant-Appellant. Lorena

Appellant. America, United States America, United States of Plaintiff-Appellee, Plaintiff-Appellee, v. v. Jeffrey Darryl Wafer, Defendant- Cabanillas-Nunez,

Jose Jose a/k/a Appellant. Cabanillas, Arsenio Jose Arencio Nunez, Defendant-Appellant. America, United States Plaintiff-Appellee, America,

United States Plaintiff-Appellee, v.

v. Sandoval-Sandoval, Pedro F. Raymond Flores, Defendant-Appellant. Defendant-Appellant. America, States of

Plaintiff-Appellee, Alvarez, Defendant-Appellant.

Carlos 03-50526, 03-50524, 03-50525, 03-

Nos. 03-50532, 03-50533, 03-50534, 03-50537, 03-50538,

03-50535, 03-50536,

03-50539, 03-50540, 03-50541, 03-50542,

03-50543, 03-50544, 03-50545. Appeals, States Court

Ninth Circuit. Nov. and Submitted 2004.

Argued

Filed Nov.

United States Marshals Service for the Central District of California after consul- tation magistrate with the judges. cases, each of these seventeen magis- judge trate denied the Federal Public Defender’s motion for the defendant appear without ap- shackles the initial pearance. The district court reviewed these judges’ rulings adverse in a appeal. consolidated The district court, citing general concerns, safety af- magistrate firmed the judges’ shackling decisions. The record contains no docu- mentation or explanation specific prob- of up lems that led to the enactment of the shackling policy. case, reaching Before of merits Gunn, Carlton Frederick Federal Public we must deal appellate jurisdictional Office, CA, Defender’s Angeles, Los for government. obstacles raised defendants-appellants. These questions are of ap- mootness and pellate jurisdiction interlocutory over

Patrick R. or- Fitzgerald, Assistant United ders. We conclude CA, the case is Attorney, Angeles, States Los for the moot because the issues plaintiff-appellee. capable of

repetition review, and will otherwise evade and that we appellate jurisdiction review the orders finally dispose of issues collateral to the merits of the cases. merits, On the because it is undisputed policy effectuates a diminution of liberty of pretrial detainees and dis- tracts from the dignity and the decorum of a stage critical prosecution, criminal we conclude that shackling policy re- quires adequate justification of its necessi- ty. On the basis of the limited record us, before we conclude we must vacate the district upholding court’s order policy, SCHROEDER, Before: Judge, Chief preclude but we do not the reinstatement CLIFTON, GOULD and Judges. Circuit of a policy upon similar a reasoned deter- SCHROEDER, Judge: Chief justified mination that it is on the basis of past experiences or interlocutory present This is an appeal by crim- circumstances inal the Central District. challenging requirement defendants that pretrial making detainees their first BACKGROUND appearance before a magistrate judge wear shackles. The district-wide appeal Defendants the denial of their shackling policy was implemented by appear the motions to unshackled before vari- and further states that appearance,” initial Dis- judges of Central magistrate ous necessary to shackling policy is ensure initial during defendants’ trict of California in the courtroom. He safety and order of the part of the As appearances. for full restraints also states that need for the Service Marshals States staffing the current short- is enhanced California, in-custody District Central The decla- in the Marshals Service. ages in leg restraints are shackled defendants any specific more ration not discuss does front appearances their for was in- security problems that the to the dis- According judges. magistrate address, incidents that tended to the initial court, judges at trict policy. of the preceded the enactment rights, their read defendants appearance have received confirm from also have a memorandum We stating or indictment complaint copy Torres, Marshal Adam N. United States them, counsel appoint charges against California, for the Central District defendants, set indigent represent inci- judges detailing an the district court post- hearings preliminary for dates judge’s court- dent one district prelimi- make arraignment, indictment did of 2003. That incident room June of bond and detention nary determinations in- but appearance, not relate to a first cases, initial appear- the In some issues. of a defendant who was volved conduct evidentiary detention an includes jury ance of his reading restrained testimony by lay witnesses hearing verbally with after he at- verdict of conviction Attorneys officers. law enforcement States tacked Assistant United Agent. FBI and an about little evidence The record contains cases, The shackling policy. In of these consolidated history of the each by the represented by of 2003 the Federal April enacted defendant was policy was court for the and made his initial Marshals Service Public Defender States United The record Federal Public shackled. The appearance District of California. Central con- defendant be the Marshals Service moved that Defender indicates judges before without shackles. magistrate appear to permitted with the sulted cases, allowed magistrate judges it is not clear policy, although enacting the some argue the also indicates Defender to The record Federal Public to what extent. magistrate that, in the district In no case did the historically, defendants motion. ap- evidentiary hearing on the at initial an judge were not shackled hold generally judge have denied appears magistrate The although there motion. pearances, past in the when case. period some motion each been at least and hand- both shackled defendants were interlocu- appeal from In a consolidated appearances. cuffed at Defender orders, Public tory the Federal magis- court review of sought district to explain in the record There is little of the motions. judges’ denials record trate adopted. The why this was affirmed court, hearing, without dis- district any other not indicate whether does shackling decisions. judges’ magistrate has a similar in this or other circuits trict detract shackling may indeed It noted contains the declara- This record policy. judicial decorum of Masaitis, dignity Deputy from the Chief of Robert tion safety in- but concluded proceedings, the Central Dis- Marshal for States The dis- this concern. outweighed that “it is terests He states trict of California. potential other trict court noted an individualized to conduct possible be ad- shackling could problems at the time analysis of a defendant 848 case, necessary.

dressed in an individual if reason. same The defendants could not Therefore, district court that the held brought challenges to the shack- deprive the of did not judge ling to the district process rights. their due This consolidat- court, us, much less to the harm before of ed appeal followed. shackling at proceeding the initial was completed.

MOOTNESS giving This situation rise to this chal- argues that this government lenge capable repetition. also is of We no relief can case is moot because effective acknowledge that we cannot assume that stage be for defen ordered at these criminal conduct will recurring on the pretrial proceedings dants whose criminal County these part over. See Bernhardt v. Los defendants. See O’Shea v. Cir.2002). (9th 862, Angeles, Littleton, F.3d 871 488, 496, 279 669, 414 U.S. 94 S.Ct. III, 2 Article Section the Constitution (1974). L.Ed.2d 674 38 This case is there- jurisdiction limits federal to “cases” distinguishable case, an fore from abortion This contro “controversies.” case or capable repetition yet the classic case versy requirement through exists all review, evading can because we assume a stages judicial proceedings. of federal can pregnant again. woman become See Kemna, Spencer 118 523 U.S. S.Ct. Wade, generally Roe v. (1998). 978, 140 L.Ed.2d 43 A number of (1973). L.Ed.2d This however, developed, per doctrines have difference, however, no makes material be- mit courts to review a case in it is no which charge assuredly cause future will be longer remedy possible particular someone, against brought and the shack- grievance giving litigation. rise to the ling policy similarly escape would review. exception One is the to the mootness reason, For this we held that a “capable repeti doctrine for violations of capable repetition case is of when the de- yet evading See, tion e.g., review.” Ger fendants are an challenging ongoing gov- 103, 11, stein 420 n. Pugh, v. U.S. 111 95 policy. Oregon Advocacy ernment Cntr. v. 854, (1975). 43 L.Ed.2d 54 This is (9th Mink, Cir.2003). 1101, 322 F.3d 1118 Gerstein, such a In Supreme case. Center, Oregon Advocacy plaintiffs very Court pretrial stated that brief deten alleged that hospital, tion the state mental temporary, is nature it is because most that was unlikely given charged evaluating individual which could have his constitutional claim decided treating mentally incapacitated defen- on appeal he is convict before released or dants, accept refused to the defendants on Supreme ed. Id. There Court held the timely plain- basis. Id. at 1105-06. The exception to the mootness doctrine for vio challenged a tiffs state that results “capable repetition lations of yet evading delays. in the Id. at 1118. We held that applied review” because the constitutional although particular situation precip- likely violation repeated, was but itating a challenge gov- constitutional to a long would not enough last to be reviewed policy may moot, ernment have become becoming before moot. Id. the case does not moot if poli- become cy ongoing. Id. “The continued and An proceeding in a criminal uncontested existence of the case is temporary even more than the pretrial gave challenges at rise to legal [the] detention issue in Gerstein. fore- This essentially case evades review for argument.” closes mootness Id. [the] chal- particular this similarly held must understand Circuit The D.C. an acknowl could not be made in the civil con- complaint challenges lenge when text, only policy, government attorney government because available edged contro by arguing that the prevail these criminal is the represent cannot particular moot when versy became Federal Public Defender. The Federal at issue resolved itself. Ukrain situation cannot pursue Defender a civil class Public Baker, 893 Bar Ass’n behalf, ian-American action on their because there is no (D.C.Cir.1998). de F.2d provision appointment for the of a Federal an challenging in this case are fendants action, in a civil and the Public Defender government policy. ongoing Public is barred office Federal Defender instituting any action on See from its own. matter, mate this case is practical As a 3006A(a), § Of- 18 U.S.C. Administrative to a action in which rially similar class Courts, Judiciary of the U.S. Guide to fice may become representative’s claims class Procedures, VII, Policies and Vol. Ch. IV. moot, of the class there members but why This is still another reason we should Supreme not claims are moot. The whose challenge proceed not hold that this can capable held that under the Court doctrine, only a civil action. yet evading review repetition representative’s aof class termination moot of other the claims

claim does APPELLATE JURISDICTION Gerstein, at See 420 U.S. class members. ap holding This 111 n. 95 S.Ct. 854. government contends action context outside of class plies jurisdiction appellate lack because this we the case are the circumstances of when from a final appeal is not an district in class action analogous to those found judgment, ruling but from in consolidat Cntr., 322 F.3d Oregon Advocacy cases. interlocutory appeals. ap ed Courts Gerstein, 1117; at see also jurisdiction peals appeals “shall have n. 95 S.Ct. 854. The defendants all final of the district from decisions seeking represent interests case are of the United 28 U.S.C. courts States.” own, attorney their than and the broader an final exception § 1291. There De the case is a Public bringing Federal interlocutory or judgment rule for certain inter other a live fender with clients with ders, orders,” where known “collateral Gerstein, at in the case. See 420 U.S. est judgment final be una of a would review 11, 854; v. 111 n. 95 S.Ct. Hawkins Com exception the applies This when vailing. (9th 1230, 251 1237 paret-Cassani, F.3d (1) conclusively the order will determine .2001). Cir (2) im question, will resolve an disputed completely from the separate issue portant kind government suggests that this The (3) merits, effectively is unreviewable and challenge to a used procedure of blanket Coopers final judgment. from a appeal brought must be as a civil prosecutions 463, 468, Livesay, Lybrand v. 437 U.S. & rather than the relevant class action within (1978). 2454, 57 L.Ed.2d 351 98 S.Ct. it arose. proceedings criminal in which finality rule of has been Adherence not that a civil case law does establish Our stringent prosecu in criminal Indeed, particularly it remedy. exclusive forum is the tions, delays disruptions because appropriate more to decide this may be interlocutory orders can that come with context of prosecutions case in the actual or hinder the effective fair administration hypotheticals than rather resort level, v. Abney criminal law. United On a we of the generalizations. practical 850 656,

States, 651, 2034, 97 431 S.Ct. 52 would be no appellate U.S. review if the defen- (1977). L.Ed.2d 651 dant was not competent found to stand Friedman, trial acquitted. or 366 F.3d at requirements All the col 979. We find case to analogous. be apply lateral order here. doctrine acquittal An favorably this case would conclusively shackling order determines prosecution terminate the of the defen- disputed question of whether dant, but deprivation would not affect the shackling policy permissible. ques is This liberty that occurred during pretrial wholly separate tion is from the merits of Sell, hearing. 176-77, 539 See U.S. at 123 Therefore, underlying ques action. 2174; Friedman, S.Ct. 366 F.3d at 979. tion before this court whether the order Therefore, defendants’ claims are effec- would be if effectively unreviewable tively on appeal unreviewable from a final delayed appeals the defendants’ until judgment. The district court’s order re- they sentenced, are either convicted and viewing magistrate judges’ determina- acquitted. States v. See United Fried tions an appealable collateral order. (9th man, 975, Cir.2004). 366 F.3d 979 “an important order must involve MERITS ‘lost, right probably which irrep would be This court has not decided a whether arably,’ if to await judg review had final general policy shackling a defendant for 658, ment.” at Abney, U.S. 97 431 S.Ct. a proceeding in front of judge violates process. Nearly due all of the litigation Even assuming that defendants’ concerning claims shackled defendants arises could be appeal reviewed on from proceedings convic- context of front of — tion, See, their jury. Missouri, claims could be reviewed if e.g., v. Deck U.S. they -, are acquitted. See Sell v. United 125 161 S.Ct. L.Ed.2d 953 (2005) States, 166, 176-77, 539 U.S. 123 (extending general S.Ct. prohibition (2003); Friedman, 156 197 L.Ed.2d on the use of shackles to penalty phase cases, 366 F.3d at most trial); 979. In of a jury Godinez, defen- Duckett v. 67 (9th rights sufficiently Cir.1995); dant’s would be vindicat- F.3d 734 v. Meyer, Jones See, (9th acquittal. e.g., ed an Flanagan Cir.1990); v. 899 F.2d 883 Spain v. States, 259, 265, Rushen, (9th Cir.1989). 465 U.S. 104 712 S.Ct. 883 F.2d (1984) 1051, 79 288 (acquittal L.Ed.2d These turn large part cases on fear that remedy would harm order disqualifying jury will prejudiced by seeing counsel); MacDonald, v. Deck, United States 435 defendant in shackles. See 125 S.Ct. 850, 859, 2013; Duckett, U.S. 748; 56 L.Ed.2d 18 F.3d at see also (1978) (acquittal remedy Allen, would harm of Illinois violation). speedy ease, (1970). 1057, trial This howev- S.Ct. 25 L.Ed.2d 353 Fear of er, falls within a subset of cases in prejudice which is not at issue in present the acquittal case, does not undo the harm to the a a judge pretrial hearing pre- held, defendant. The Court Supreme sumably prejudiced by will not be seeing for example, deny that order to an bail and defendants shackles. Other courts have require pretrial disagreed detention cannot effective- about shackling whether a de- ly be reviewed on appeal. Boyle, Stack v. fendant proceeding for a in front of a 1, (1951). judge 72 96 L.Ed. process. 3 violates Compare due Similarly, Zuber, we held that involuntary 101, United States v. 118 F.3d 104 (2d Cir.1997) commitment of a defendant is effectively (finding no process due viola- tion), appeal, Fierro, 173, unreviewable on because there 1 People v. Cal.4th

851 426, 1302, transport 1322 to a first there appearance, 821 P.2d must Cal.Rptr.2d 3 violation). (1992) process justification. (finding Supreme due be some Court “if that or condi- has stated restriction judicial a defendant Shackling reasonably legiti- tion is not to a related negative proceeding can have effects. it is goal- arbitrary purpose- mate Supreme has stated that “the use —-if Court permissibly may less—a court infer that is itself some- [shackling and restraints] purpose governmental action is and very dignity an affront to the thing of constitutionally that punishment may not judicial proceedings that decorum of upon qua be inflicted detainees detainees.” Allen, uphold.” to 397 judge seeking 539, Wolfish, 520, 441 Bell v. 99 S.Ct. Deck, U.S. 1057; 125 U.S. at 90 S.Ct. see (1979). Thus, pre- 60 L.Ed.2d Moreover, Supreme S.Ct. at 2013. pro- trial detainee has due substantive concern that restraints expressed Court right against cess that abili- restrictions amount greatly could reduce defendant’s Id. to ty punishment. communicate with his counsel. shackling may noted that This court has addressing Cases the substantive due defendant, confuse and embarrass process rights pretrial typical- detainees his faculties. thereby impairing mental challenges policies. ly prison involve Duckett, 747-48, citing 67 F.3d at

See See, e.g., ordinarily id. Courts defer Shackling may at Spain, 883 F.2d 720-21. judgments exper- expert professional and emo- physical also cause the defendant and 547-48, tise of corrections officials. Id. at Rowland, 172 Rhoden v. pain. tional See officials must 99 S.Ct. Corrections (9th Cir.1999); Spain, 883 F.3d produce at least some evidence that then- at 720-21. F.2d policies legitimate penological are based on contend that Marshals Defendants Lewis, justifications. 901 F.2d Swift then- shackling policy violates Service’s (9th Cir.1990). 730, 733 rights. due a defendant process Before judi- Restrictions jury, can in front of a be shackled however, proceedings, cial are not within persuaded by compelling must be need- the realm of correctional officials. The circumstances that some measure is judicial do- security, proceedings that no less conduct of is the ed to maintain and digni- alternatives are available. main of the courts. Preservation of restrictive Jones, ty necessary F.2d 884-85. Defendants and decorum for con- process requires judicial that due proceedings contend duct of that determine restraining no without liberty there be whatsoever issues of life. an determination. individualized give cannot For this reason this court issue, observe, deciding without We policies government courtroom farther may go process than due this it would degree same deference requires. But we do not have to reach A government prison policies. give justifi- question. The record no gives here showing insist on that a court should some any circumstances ex- cation or describes on defendants’ freedoms policy impinging support isting district-wide would communicate, as di- ability to as well such requiring district restraint. pro- the court minishing the decorum of legiti- minimum, reasonably ceedings, is related process

At a re due By government goal. requiring the any mate quires that before there is district- policy, for the affecting de to establish need policy wide all incarcerated does not policy must court can ensure that the government whom the fendants 852 punishment pretrial

constitute of rescinded, detainees existing shackling policy but we during judicial proceedings. do not preclude reinstatement of a similar policy upon a of showing adequate justifi- record, In this there explana is no This, minimum, cation. at a means a tion of a similar shackling policy whether showing sufficient to support a reasoned any exists in other districts. There is no determination policy justified that the specific evidence of instances that show a past the basis of experiences present or shackling policy need for this in the Cen circumstances the Central District. Rather, only tral District. support for policy conelusory is the declaration of a We remand the case to the district court single representative of the Marshals Ser for proceedings opin- consistent with this vice that policy necessary because of ion.

safety concerns and financial limitations. REVERSED AND REMANDED. seen, As we have the record contains no safety evidence of concerns necessitating CLIFTON, Judge, Circuit dissenting: policy this district. There is no agree I my colleagues may that we basis on which canwe assume the benefits properly reach the merits this case. I policy outweigh the costs and the also agree that the record seems some- disadvantages. Supreme Court has what thin regarding the benefits and detri- already held that financial concerns should policy ments of the adopted the Central justification not be a for cutting back on District of requiring California of in-custo- rights constitutional of criminal defen dy defendants to wear restraints dants. See v. Inmates Rufo of Suffolk shackles during the initial appear- court Jail, County 112 S.Ct. magistrate ance before a judge. My view 748, 116 (1992). L.Ed.2d 867 For example, of the law require would stronger much we have city’s held that a financial crisis showing to set aside the than has does not it allow to maintain overcrowded here, been made the defendants howev- jails that deprive people of their constitu justification er. The for the tional rights. v. City County Stone —to improve security evident, while Francisco, (9th San 968 F.2d 858 —is there is essentially nothing the record Cir.1992); Johnson, see also Jones v. demonstrates negative actual im- (9th Cir.1986). F.2d As one com pacts practice from the when there is no it, mentator put “[ajllowing govern jury present influenced, to be as there is mental entity plead budgetary con the initial court appearance. straints allows it to second-guess the At a time when concern for court security Court’s determination of what the law re is understandably properly high, I quires essence, and to argue, that it is would accept judgment of the district exempt from constitutional standards.” court—and the judgments collective See Kritchevsky, Barbara Is there a Cost judicial affected, officers most magis- Budgetary Constraints as a De Defense? judges trate of the Central District —and in Civil Rights Litigation, 35 Rut fense affirm. (2004). gers L.J. may good There well be reasons for matter, anAs I disagree with the policy, yet but we don’t know what they majority opinion regarding legal basis are. We therefore reverse the district on which it rests its reversal of the district court’s affirming order court. majority opinion refers to the judges’ shackling decisions. We order the process rights substantive due pretrial

853 (quoting Ingraham Wright, v. that amount restrictions against detainees 651, 674, 1401, on an 51 L.Ed.2d 711 premised that is 97 S.Ct. but punishment, to (1977)). leg-restraint policy is that the inference “ ‘not reason because it is “punishment” any In the absence of evidence of an — n ... it is legitimate goal a ably related to punish, intent to or evidence that a a arbitrary purposeless that] or [such— required leg to wear restraints defendant may pur infer that the permissibly public hearing the initial suffers punish action is governmental the pose of (or harm more than de minimis any actual ” Bell v. (quoting at 851 ment.’ Ante harm), process viola- there can be no due 1861, 441 99 S.Ct. Wolfish, U.S. that certain holding tion. The of Bell was (1979)). 60 L.Ed.2d by complained conditions of confinement of in slightest suggestion There is not the Metropolitan detainees at the Cor- pretrial poli- leg-restraint here that the the record City in New York did not rection Center dis- punitive. to be cy was intended Due Process Clause. The violate the was trict court found by a decision Court reversed Second concerns,” security of adopted “[b]ecause may detainees “pretrial Circuit clearly finding was not erroneous. and that only ‘restrictions and subjected to those case, Bell instructs us being That ‘inhere their confine- privations’ which portion differently to the law. The justified by or com- ment itself which majority opinion pre- was quoted by the jail of administra- pelling necessities ” a by following “[I]f statement: ceded Levi, 118, 124 573 F.2d tion.’ Wolfish pre- condition or restriction particular (2d Cir.1978) Malcolm, Rhem v. (quoting reasonably related to trial detention is Cir.1974)). (2d 507 F.2d objective, it does legitimate governmental majority approach by taken more, not, ‘punish- amount without ” approach the erroneous opinion echoes accompa- Id. That sentence was ment.’ Circuit, which the Court re the Second stated, footnote, part: which nied Bell, by the burden on putting versed showing of intent to the absence of “[I]n and the U.S. Marshals the district court partic- to see if a a court must look punish, necessity leg- for the justify Service condition, may on which ular restriction burden, policy. put restraint Bell in- appear punishment, to be its face “heavy,” on the de which it described as legitimate an incident of a non- stead but the restrictions: objecting to fendants objective.” Id. at governmental punitive their simply have met “Respondents n. 20. And the sentence 99 S.Ct. 1861 showing that these offi heavy burden of majority, regarding pur- by the quoted response their exaggerated cials have may be in- restrictions which poseless security considerations genuine is fol- punishment, to amount to ferred “ practices.” actuated these restrictions is, ‘There lowed another footnote: 561-62, The defen 1861. Id. at course, imposition a de minimis level of “heavy nearly met have not not con- dants the Constitution is with which ” here, either.1 n. 21 burden” Id. at 99 S.Ct. 1861 cerned.’ Nor does custody free of restraints. to be why, part, the observation in 1. That is govern- require the Process Clause opinion the Due majority that "financial concerns pretrial detainees or defendants cutting to hold justification back ment not be a for should that is least in the manner rights criminal defen- courtroom constitutional defendant, no matter what point. There restrictive for misses the Ante dants" making about expense. this decision right a defendant in no constitutional for The Central District California is the members of pres- defendants often are judicial in largest federal district the coun- potential ent to act as sureties and to try. is authorized to The district give support. pres- defendants Their magistrate twenty-two judges, full-time ence, appropriate, while poten- adds to plus parttime position. one As indicated tial security concerns. order, the district court’s in concerns, security Because of the United question was.discussed (“USMS”) States Marshal Service in

judges They of the district 2003. April adopted policies certain after consulta- approve apply decided to and to tions with magistrate judges. As uniformly it appearances to the initial of all part of policy, USMS defendants are in-custody in the district. fully restrained being transported while policy, The district court affirmed the to the courtroom. For ap- their initial announcing findings its the form of the pearances, the waist chains and hand- statement of facts section its order filed removed, cuffs are but the restraints October 2003: (“shackles”) are not removed. United appearances in-custody The initial de- States in properly Marshals are trained place fendants take in a large courtroom applying restraints so that the restraints Roybal the third floor of the Court- pain. do not cause in-custody house. The number of defen- present vary dants the courtroom can Shackling designed to ensure that greatly depending upon the number of orderly.2 courtrooms are safe and Even arrests made. At the initial appearance, while restrained defendants have as magistrate judges read defendants their USMS, saulted members as well confirm rights, that defendants have re- as other members government.3 of the ceived a copy complaint or indict- According to the acting United States stating them, ment charges against Marshal, the need for par restraints is appoint counsel to represent the indi- ticularly given acute the current staffing defendants, gent and set dates for the shortages at the The USMS. USMS cur preliminary defendants’ hearings and rently just 59% of its allocated staff post-indictment arraignment. ing for this district. magistrates prelimi- also make a The USMS believes that it possi- “is not nary determination of bond and deten- ble to an conduct individualized analysis cases, tion issues. In some a full eviden- of a defendant at the time of the initial tiary hearing detention will occur at the appearance,” in part, because “it is not arraignment. Lay Sinitial witnesses or possible law enforcement may testify officers to obtain a criminal history,” hearings. Moreover, these family Friends and magistrates appear security, nothing inappropriate there verbally attacked the Assistant United States about the court and the Marshals Service Attorneys agent prison- and FBI case after the taking into account the resources available. er deputies began was convicted. "When the to handcuff the he defendant resisted and shackles, 2. Angeles Rather than Superior Los pulled away. deputies required were cages Court uses in which defendants must take the defendant to the floor in order to remain appearance. their handcuff custody.” him and take him into (Footnote (citation original) omitted). (Footnote (citations omitted). original) In the courtroom of the Honorable William prisoner Rea on June an unshackled policy Department 2005 which asked the Justice shackling a uniform agree that fully “to appearances..... at initial and the Marshals Service review apply should judicial all expeditiously aspects and omitted). (Citations added.) security.” (Emphasis The follow is policy motivation for the general The month, ing the chair of the Judicial Con found, the the district court plain. As Security ference Committee on and Facili policy adopted “[be- the Marshals Service ties, Circuit, Judge Jane Roth of the Third The is security concerns.” cause subcommittee, reported by told a House that courtrooms intended “to ensure courts, official of the federal the newsletter by confirmed orderly.” That is safe and judicial security that the Marshals Service 10, in which 2003 memorandum April the program “chronically is understaffed and policy. Marshals Service described underfunded.” Marshals Service Re U.S. upon it based It made clear that was by Judiciary, Faulted Federal The sources “provide to court- authority of the Service 2005, Branch, May staffing Third at 1. The Judiciary security for the Federal room eighteen months be shortages described and protection of Federal Jurists [and] court in this are a by fore the district case The document ex- court officers.” other problem. reflection of this chronic greater that “there is no pressly noted tasked to the U.S. Marshals responsibility conclude, simply I cannot as does the ensuring protec- that of than Service gives no majority opinion, that the record Process, includes tion of the Judicial which justification to for the or fails de- (Ju- of all entities personal protection support ap- scribe circumstances which rists, Attorneys, defense coun- jurors, U.S. plication policy. of a district-wide Ante others) sel, safeguarding as well as the it The district court concluded that 851. security prisoners.” of federal possible was not to obtain criminal histo- subject security of court has re- in-custody prior all ries of substantially greater attention since ceived appearances, let alone to do an their tragic episodes of two earlier then because by indi- analysis posed of the threat each murder of the year. One was the Perhaps only a few of defendants vidual. mother of a federal district husband and threat, if it cannot pose a but serious 28, February on judge Chicago, Illinois ap- time of the initial determined disgruntled litigant. a civil are, it is pearance defendants those which by a criminal defen- other was the murder An cautious with all of them. logical to be judge and a court dant of a state court all, is, after worth a prevention ounce of County, Georgia reporter inside the Fulton fully defendants are pound of cure. These courthouse, deputy as well as sheriff handcuffs and waist restrained —with courthouse, on outside the March leg restraints— chains addition in the of these incidents arose Neither appear- their courtroom before and after by a crimi- appearance of an initial context ances, objection to that treatment and no before a federal nal defendant advantage of been made here. The course, judge, they but underscore that control maintaining some of danger that lurks in a courthouse. inherent courtroom, leg by leaving the restraints Many people prone there are chains are handcuffs and waist when the under enormous stress. violence and are removed, particularly clear. That is is under- true when the Marshals Service of the United The Judicial Conference staffed, it is. If we as we know by adopt- events responded States to these there will be sufficient in March cannot be sure that meeting at its ing a resolution deputy security very marshals or other officers dignity judicial and decorum of courtroom present to control all proceedings that judge seeking ” defendants, it unrestrained then makes uphold.’ (quoting Ante at 851 Illinois on, Allen, sense to leave the restraints unless 90 S.Ct. not to. (1970)). there is reason L.Ed.2d 353 But the Court Allen was discussing a defendant com- course, is, very good There reason restrained, pletely gagged,” “bound and doing might prejudice not to when so id., during trial jury, his before a not a notes, majority opinion defendant. As the defendant wearing leg restraints while nearly subject all of the caselaw on this making an initial in appearance a court- proceeding has involved a in front of a room filled with other awaiting jury. Ante at 850. The use of shackles or their initial appearances. Anyone who has restraints in a they might context where present been in a courtroom filled with by jury be observed a nega- could have a defendants, particularly such in busy a ur- prejudicial tive and effect. The law on court, ban understands that “decorum” ais well-established, subject that as most thing. relative point, More to the what recently by Supreme discussed the Court — leg-restraint policy effect the has on the Missouri, -, in Deck v. U.S. decorum of the court and negative what (2005). 161 L.Ed.2d 953 impact that has on the may defendant that case the Court held that the use of impossible precisely, to define I but during visible shackles penalty phase the to believe that the answers are “not much” forbidden, of a capital just murder trial is and “none.” The alternative identified as it guilt phase, forbidden the the district court as that in An- used Los “justified unless that use is by an essential geles Superior cages— Court—the use of state interest —such as the in interest certainly seems much worse. There is courtroom security specific to the defen- — nothing this record that any establishes (internal dant on trial.” at quota- Id. negative impact dignity on the omitted). the court. tion marks But in the current Since the at issue specifically was case, issue, prejudice fear of such is not at approved by judicial the officers af- most majority opinion acknowledges, the ante position fected and the best to evaluate because there is no reason to pre- impact court, the namely on the magis- the magistrate sume that judge will be judges District, trate of the Central I con- prejudiced by seeing in leg defendant clude that this factor any adds little if restraints. weight negative side of the scale. permit regular Reasons not to use of leg restraints the context of the initial The category second focuses more di- appearance before the judge rectly on negative impact on the defen- Indeed, are much pin harder to if down. Thus, majority dants. opinion notes the record in provide this case fails to that the “expressed Court Allen concern support proposition, for some it is the greatly restraints could reduce the proposition any actual harm has re- ability defendant’s to communicate with sulted from the leg use of restraints. On true, counsel.” Ante at 851. That is but score, completely record is blank. in Allen talking the Court was about negative effects identified defendant “gagged,” who was not one sim- majority opinion appear to fall into ply wearing leg two ap- restraints. It is not categories. restraints, One is that parent leg use of re- how gag, without “ straints would constitute ‘an prevent affront to would talking defendant from attorney. nothing There is on which we can assume the benefits of the his outweigh any eighteen defen- the costs and the disad- record from Ante at 852. In view, any vantages.” my of their challenging policy, what dants any attorney, support defense or the record fails to is the notion attorneys, other explains or illustrates how that there are actual costs and disadvan- anyone else tages. potential commu- benefit of leg prevents restraining restraints the use nication, plain. actual defendants is attesting let alone impact poli- from the negative prejudice probability What unknown here is the cy at issue. that some unfortunate incident will occur Similarly, majority opinion subject refers to without the restraints. On that agree I majority in other court decisions with the that the record observations may not demonstrate a risk. “shackling effect that confuse does substantial defendant, But we should not limit thereby impair- ability the court’s embarrass faculties.” Ante at 851. In precautions to take to situations of demon- ing his mental thirty- at strated or risk. appearances the context of the substantial over case, years of I appears pure driving, in this that to be five have never been issue accident, dealing per- with defen- a serious automobile and the speculation. We custody, centage happening held in then chance of that the next dants who have been is, assume, wearing my courtroom time I climb into car I transported to the handcuffs, chains, small, leg incredibly and restraints. but that does not mean waist courtroom, I my handcuffs and waist that should not buckle seat belt and At the everyone That re- make sure that else is chains are removed. buckled unlikely security necessarily too. up, straints are not removed as well is Effective un- protecting against highly to have such a dramatic effect on the means likely may nothing against something there is and Again, defendant. previously the conclusion that it have occurred. The court supports record tragedy should not have to suffer a before does. taking precautions. Finally, majority opinion states that adopt or not to may “physical and emotional The decision whether there the defendant. Ante at balancing per- of the pain” policy suffered involved benefits, a consider- But has attested to ceived which includes no defendant risk, of the pain. nothing There is in the record ation of the amount and such very I see little on supporting Why pain that conclusion. detriments. Because scale, negative at least on uniquely wearing leg would be felt from side record, disagree I would not in the courtroom a defendant the current restraints District leg restraints and also with the decision of the Central who wore the same policy outweigh the chain that the benefits of the handcuffs and a waist before and under the appearance, importantly, while be- detriments. More after the courtroom standard, I do not believe transported proper legal from the court- ing and room, a violation is not evident. The district court demonstrated Clause. here found that the marshals are trained of the Due Process restraints so that the properly applying I that our deci- majority, agree Like the pain. finding That restraints do not cause word, today should not be the last sion clearly was not erroneous. if say my prevailed I that even view would

Thus, should be I in and we affirmed. This disagree the conclusion subject to further consideration and re- majority opinion that there is “no basis view, challenge if a dem- negative impact the court

onstrated

should take that into account. On the record, though, impact

current

not been shown. Breyer’s opinion for the Court

Justice

Deck noted that the rule that a criminal may be shackled a crimi-

defendant only special there is a

nal trial when need common “deep

had roots law.” 125 noted, however, at 2010. It also English

“Blaekstone and other authorities

recognized apply that the rule did not arraignment,’ proceed-

‘the time of or like (citations

ings judge.” before the Id. omit-

ted). right. Blaekstone was That rule apply

should not here. respectfully

I dissent. MIRANDA;

Jorge Miranda, Irene

Plaintiffs-Appellants, CORNELIUS; Towing,

CITY OF Acme

Inc., Defendants-Appellees.

No. 04-35940. Appeals, States Court of

Ninth Circuit.

Argued Sept. and Submitted 2005.

Filed Nov.

Case Details

Case Name: United States v. Howard

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Nov 14, 2005

Citation: 429 F.3d 843

Docket Number: 03-50524, 03-50525, 03-50526, 03-50527, 03-50532, 03-50533, 03-50534, 03-50535, 03-50536, 03-50537, 03-50538, 03-50539, 03-50540, 03-50541, 03-50542, 03-50543, 03-50544, 03-50545

Court Abbreviation: 9th Cir.