U.S. v. Colon-Munoz

• Decision Date: 30 May 2002
• Docket Number: No. 02-1583.,02-1583.
• Citation: 292 F.3d 18
• Parties: UNITED STATES of America, Appellee, v. Ramiro L. COLON-MUNOZ, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 18

292 F.3d 18

UNITED STATES of America, Appellee, v. Ramiro L. COLON-MUNOZ, Defendant, Appellant.

No. 02-1583.

United States Court of Appeals, First Circuit.

May 30, 2002.

Peter Goldberger on Emergency Motion for Stay of Voluntary Surrender and for Bail Pending Appeal for appellant.

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

Before BOUDIN, Chief Judge, SELYA and LIPEZ, Circuit Judges.

BOUDIN, Chief Judge.

In December 1996, Ramiro L. Colon-Munoz, was convicted on multiple federal charges relating to events that occurred when he was president of the Ponce Federal Bank in Puerto Rico. On appeal this court affirmed his convictions for conspiracy, misapplication of bank funds, bank fraud and related counts, 18 U.S.C. §§ 371, 657, 1006, 1344; but because this court ordered a judgment of acquittal on certain other counts, it remanded for resentencing of Colon-Munoz on the affirmed convictions. United States v. Colon-Munoz, 192 F.3d 210 (1st Cir.1999), cert. denied, 529 U.S. 1055, 120 S.Ct. 1559, 146 L.Ed.2d 463 (2000).

Following remand, on September 13, 2000, Colon-Munoz filed a motion for a new trial, Fed.R.Crim.P. 33. The probation office prepared a new addendum to the presentence report, and the parties filed submissions in response. Thereafter, no action was taken on the new trial motion or the sentencing for over a year and a half. Accordingly, in early 2002, over five years after his conviction, Colon-Munoz remained free on bail and without a sentence.¹

On April 8, 2002, the Judicial Council of this circuit issued an order pursuant to 28 U.S.C. § 332(d)(1) (1994). This order reflected the Judicial Council's concern with the backlog of cases that had developed in the docket of the district judge who had presided over the Colon-Munoz trial and had resumed authority over the case following this court's remand. The Judicial Council's order, which was not concerned in particular with the Colon-Munoz case, adopted several temporary measures to ameliorate the problem. One of these was to provide that a three-judge committee of the district court headed by the chief judge be authorized for a limited period to transfer criminal cases that had been pending before the district judge in question for more than two years, and civil cases pending for more than three years, where the committee determined that this would expedite resolution.

On April 12, 2002, the committee entered an order directing that 24 long-pending criminal cases and a number of long-pending civil cases on the docket of the district judge in question be randomly reassigned to other judges. Among the former group was the Colon-Munoz matter. Shortly thereafter, the Colon-Munoz case was transferred by the district court clerk's office to a new district judge, randomly selected. Colon-Munoz then moved to retransfer the case.

On April 24, 2002, the successor judge denied the motion to retransfer and also denied the new trial motion. In denying the new trial motion, the successor district judge certified, see Fed.R.Crim.P. 25, that he was familiar with the trial record and fixed sentencing for a date in May. The new trial motion was denied in a detailed, 14-page opinion and order dated April 24, 2002, discussing and rejecting the arguments made in Colon-Munoz's September 1999 new trial motion. Thereafter the successor judge received an amended presentence report and written objections from Colon-Munoz to the amended presentence report. The court also heard oral argument on the defense objections and afforded an opportunity for allocution.

On May 14, 2002, the successor judge resentenced Colon-Munoz, imposing a sentence of 16 months' imprisonment in lieu of the sentence of 21 months that had been imposed following the 1996 convictions. The successor judge also set a reporting date of May 17, 2002, for Colon-Munoz.² Colon-Munoz immediately filed a notice of appeal to this court and sought an emergency stay so that he could remain free on bail pending appeal. In this motion, Colon-Munoz said that the issues to be raised on appeal included the denial of the motion for a new trial, the reassignment of the case to the successor judge, and certain guideline issues that had arisen in connection with his resentencing. This court temporarily deferred Colon-Munoz's reporting date to provide time for adequate consideration of the emergency motion, which we now deny.

Under the Bail Reform Act of 1984, there is no presumption in favor of release pending appeal; on the contrary, even when the conviction does not involve a crime of violence or drug offense, detention (following conviction and sentencing) is mandatory unless the judicial officer finds inter alia "that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in" a reversal, new trial, or reduced term of imprisonment that would expire during the expected duration of the appeal process. 18 U.S.C. § 3143(b)(1) (1994).

The "likely to result" standard is applied flexibly — a question that can be regarded as "close" will often suffice, United States v. Bayko, 774 F.2d 516, 523 (1st Cir.1985) — but we conclude that, on the basis of argument so far, none of the issues identified by Colon-Munoz meets this standard. We start with the reassignment issue; Colon-Munoz' main arguments are directed to claims that the reassignment of his own case by the committee, and the actions of the successor judge, did not comply with Rule 25 of the Federal Rules of Criminal Procedure.

As background, we note that by statute, each Judicial Council, composed of both circuit and district judges, has broad authority to "make all necessary and appropriate orders for the effective and expeditious administration of justice within its circuit." 28 U.S.C. 332(d) (1994). One of the intended purposes was to address judicial delay; and an order of the Judicial Council reassigning cases or providing an impartial mechanism for doing so falls within the broad mandate of section 332(d), at least so long as the order is directed to administrative concerns and is not based upon the merits of the case.³

In his motion, Colon-Munoz has not challenged the Judicial Council's general authority to order reassignment; instead, his claims turn upon subsequent events in relation to Rule 25. Dealing with reassignment of criminal cases after the guilty verdict — a different provision deals with reassignment during trial — Rule 25(b) provides as follows:

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

At the outset, the stay motion contends (without elaboration) that the reassignment in this case cannot meet the "by reason of" requirement; but that claim is plainly mistaken. A judge who has been removed from a case could well be described as "absent" or under a "disability" but, in any event, the "by reason of" phrase taken as a whole is surely meant to encompass — or at least not to preclude — any legitimate reason why a district...