United States v. Márquez-Pérez

• Decision Date: 30 August 2016
• Docket Number: No. 14–2246,14–2246
• Citation: 835 F.3d 153
• Parties: United States of America, Appellee, v. René Márquez–Pérez, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

835 F.3d 153

United States of America, Appellee,
v.
René Márquez–Pérez, Defendant, Appellant.

No. 14–2246

United States Court of Appeals, First Circuit.

August 30, 2016

Lydia J. Lizarríbar–Masini , with whom Camille Lizarríbar–Buxó and Lizarríbar Law Office , San Juan, PR, were on brief, for appellant.

Thomas F. Klumper , Assistant United States Attorney, with whom Nelson Pérez Sosa , Assistant United States Attorney, Chief, Appellate Division, and Rosa Emilia Rodríguez–Vélez , United States Attorney, were on brief, for appellee.

Before Howard, Chief Judge, Torruella and Lipez, Circuit Judges.

HOWARD, Chief Judge.

A fair proceeding before a fair tribunal is a basic requirement of due process. See In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955). Claiming that judicial misconduct, inadequate preparation time, and attorney ineffectiveness denied him a fair proceeding, René Márquez–Pérez asks us to vacate his conviction and sentence. We hold that the judge's conduct of the trial, though in one instance unfortunate, did not prejudice Márquez; and that the judge did not deny him adequate preparation time. We are less sanguine about counsel's performance; because we find sufficient signs of ineffectiveness, we remand this case to the district court for further proceedings.

I.

A federal jury convicted Márquez of possessing drugs with intent to distribute, see 21 U.S.C. § 841(a)(1), and possessing a firearm in furtherance of a drug trafficking crime, see 18 U.S.C. § 924(c). See generally United States v. Márquez–Perez, 44 F.Supp.3d 175 (D.P.R. 2014). The district court sentenced Márquez to fifty-three months for the drug convictions and sixty months for the firearm conviction, totaling 113 months, or roughly nine-and-a-half years. Márquez timely appealed his conviction and sentence.

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II.

Márquez first contends that the district judge's courtroom behavior denied him a fair trial. Although the judge's comportment was flawless in most respects throughout the trial, he overreacted once, when, in response to counsel's attempt to object, he commanded the courtroom security officer to forcibly seat counsel down. Nevertheless, we sustain Márquez's conviction for lack of prejudice.

A.

Due process guarantees a fair trial, not a perfect one. See United States v. Ayala–Vazquez, 751 F.3d 1, 23–24 (1st Cir. 2014). To prevail on a judicial misconduct claim, a party must show that (1) the judge acted improperly, (2) thereby causing him prejudice. See United States v. Lanza–Vazquez, 799 F.3d 134, 143 (1st Cir. 2015). We consider both elements in light of the whole record. See Ayala–Vazquez, 751 F.3d at 23. We may address the elements in either order, and need not reach both if a party fails on one. See id. at 25.

Our cases have generally confronted two types of judicial misconduct during a trial. The first occurs when judges commit errors of law, as by performing acts categorically beyond their authority. For example, judges exceed their authority when they testify as witnesses, or add to or distort the evidence. See Quercia v. United States, 289 U.S. 466, 471–72, 53 S.Ct. 698, 77 L.Ed. 1321 (1933) ; United States v. Rivera–Rodríguez, 761 F.3d 105, 122 (1st Cir. 2014) ; United States v. Paiva, 892 F.2d 148, 159 (1st Cir. 1989). They also exceed their authority by opining to the jury on the credibility of witnesses, the character of the defendant, or the ultimate issue. See Quercia, 289 U.S. at 471, 53 S.Ct. 698 ; Ayala–Vazquez, 751 F.3d at 28. Such acts are per se misconduct, although the judgment may still be sustained for lack of prejudice. See Ayala–Vazquez, 751 F.3d at 27 ; Paiva, 892 F.2d at 159.

The second type of misconduct occurs when judges abuse their discretion. See Ayala–Vazquez, 751 F.3d at 23. The judge is the governor of the trial, and has broad discretion to participate in it. See Lanza–Vazquez, 799 F.3d at 143. A judge may “question witnesses”; “analyze, dissect, explain, summarize, and comment on the evidence”; and otherwise elicit facts that he deems necessary to a clear presentation of the case. Ayala–Vazquez, 751 F.3d at 24. Judges may also maintain the pace of the trial and ensure its proper conduct. See Lanza–Vazquez, 799 F.3d at 143–44. They may criticize counsel, and express “impatience, dissatisfaction, annoyance, and even anger”: “a stern and short-tempered judge's ordinary efforts at courtroom administration” are not error. Liteky v. United States, 510 U.S. 540, 555–56, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994). Where one party's conduct warrants a relatively heavier hand, the judge may intervene with proportional vigor and frequency. See Lanza–Vazquez, 799 F.3d at 143-44 ; United States v. Rodríguez–Rivera, 473 F.3d 21, 27 (1st Cir. 2007) ; United States v. Gomes, 177 F.3d 76, 79–80 (1st. Cir 1999).

Nonetheless, judges may not misemploy these powers, as by favoring one party or appearing partial. See Rivera–Rodríguez, 761 F.3d at 111 ; Ayala–Vazquez, 751 F.3d at 24. They should be most cautious in front of the jury, which may be vulnerable to judges' “lightest word or intimation.” Ayala–Vazquez, 751 F.3d at 28.

Márquez claims that the judge denied him a fair trial by repeatedly rebuking his counsel. These reproaches ranged from characterizing counsel's questions as

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“misleading,” to chiding him to do his “homework,” to directing the security officer to forcibly seat him. Excepting this last event, they were no more than “a stern ... judge's ordinary efforts at courtroom administration.” Liteky, 510 U.S. at 556, 114 S.Ct. 1147. And although the judge rebuked counsel more often than he did the prosecutor, counsel's behavior warranted the added criticism.

For example, Márquez complains that the judge repeatedly interrupted counsel's cross-examination of a police officer and characterized counsel's questions as “misleading.” Here, the court permissibly exercised its authority over the examination of witnesses to avoid juror confusion. See United States v. Ofray–Campos, 534 F.3d 1, 33 (1st Cir. 2008) ; Rodríguez– Rivera, 473 F.3d at 27. In one instance, counsel asked the officer whether “these are the pills you are referring to, correct?” The court characterized this as “misleading” because “[t]hat wasn't [the officer's] testimony.” Subsequently, counsel rephrased his question, and the court allowed it. Although the court could have spoken more mildly, it permissibly intervened to deter jury confusion.

Márquez also complains that the judge told counsel, at sidebar, that he needed to “do [his] homework.” Here, the court permissibly exercised its discretion to rebuke counsel. See Liteky, 510 U.S. at 555–56, 114 S.Ct. 1147 ; Ofray–Campos, 534 F.3d at 33. Counsel had asked the government's expert whether marijuana could be used as medicine, implying a permissible reason for Márquez's possession. The court called for sidebar, stated that marijuana is illegal in the jurisdiction, and admonished counsel to stop this line of questioning. Perplexingly, counsel responded that marijuana is legal in Colorado. The court retorted, “That's State. Do your homework.” This assessment was supportable: marijuana's legality under Colorado state law was irrelevant to this federal prosecution for drug trafficking in Puerto Rico. Despite its gratuitous cheek, the court acted within its discretion in criticizing counsel.

In one instance, however, the judge overstepped his authority: in response to counsel's attempt to object, he ordered the security officer to force counsel to sit down. This took place during counsel's cross-examination of a police officer. The prosecutor had objected to a question, and midway through the objection, counsel objected to the objection, igniting a judicial flareup:

THE COURT: Wait a minute. You are objecting to an objection?

MR. BURGOS: Yes, sir.

THE COURT: No, you are not. [Government, c]ontinue with your objection.

MR. WALSH: Our understanding is, in his testimony he mentions—he said he did not—

MR. BURGOS: Objection.

THE COURT: Sit down and shut up. Sit down and shut up while he makes his objection. Mr. Burgos, sit down.

MR. BURGOS: Your Honor—

THE COURT: Sit down.

MR. BURGOS: We prefer—

THE COURT: Sit down.

MR. BURGOS: We prefer to go to the record.

THE COURT: Sit down. Sit down, Mr. Burgos. Marshal, have him sit down.

MR. BURGOS: We would like the jury to be—

THE COURT: Sit down, Mr. Burgos. Have a seat, Mr. Burgos. Have a seat, Mr. Burgos.

MR. BURGOS: Let the record show—

THE COURT: Have a seat, Mr. Burgos.

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MR. BURGOS:—the marshals are forcing me to my seat.

(emphasis added).

Subsequently, the back-and-forth continued, with counsel continuing to interrupt; and the judge threatening to find counsel in contempt, again ordering the courtroom security officer to seat him, and eventually removing the jury. Upon the jury's return, the judge gave curative instructions.

Counsel's actions were plainly contumacious. Initially, counsel had the right to press his claim, “even if it appear[ed] farfetched and untenable.” Sacher v. United States, 343 U.S. 1, 9, 72 S.Ct. 451, 96 L.Ed. 717 (1952). “But if the ruling is adverse, it is not counsel's right to resist it or to insult the judge—his right is only respectfully to...