Ramos Colon v. U.S. Atty. for Dist. of Puerto Rico

• Decision Date: 17 May 1978
• Docket Number: No. 76-1537,76-1537
• Citation: 576 F.2d 1
• Parties: Delfin RAMOS COLON, Petitioner, Appellant, v. UNITED STATES ATTORNEY FOR the DISTRICT OF PUERTO RICO, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 1

576 F.2d 1

Delfin RAMOS COLON, Petitioner, Appellant, v. UNITED STATES ATTORNEY FOR the DISTRICT OF PUERTO RICO,

Respondent, Appellee.

No. 76-1537.

United States Court of Appeals,

First Circuit.

Argued Feb. 14, 1978.

Decided May 17, 1978.

Jose Antonio Lugo, New York City, with whom Elizabeth M. Schneider, New York City, Juan Ramon Acevedo, Hato Rey, P.R., William H. Schaap, Washington, D. C., and Jose B. Diaz Asencio, Trujillo Alto, P.R., were on brief, for appellant.

Herbert W. Brown, III, Asst. U.S. Atty., San Juan, P.R., with whom Julio Morales Sanchez, U.S. Atty., San Juan, P.R., was on brief, for appellee.

Before COFFIN, Chief Judge, MOORE, ^* Senior Circuit Judge, BOWNES, Circuit Judge.

COFFIN, Chief Judge.

This case raises questions concerning the duty of a district court to investigate and punish alleged prosecutorial misconduct at the insistence of a private party. Appellant was a defendant in a criminal case who obtained dismissal of the charges against him when, during the second day of trial, the assistant United States Attorney represented to the district court that the government could not prove its case. Appellee is the United States Attorney for the District of Puerto Rico. Appellant seeks review of an order of the district court refusing to conduct a hearing on his allegations that the government had acted in bad faith in prosecuting him for his political beliefs, knowing it had insufficient evidence; declining to appoint a special prosecutor to investigate the matter further; and denying his motion to reconsider. In the alternative, appellant petitions for a writ of mandamus compelling the district court to provide the relief sought below.

On July 21, 1974, approximately 3,650 pounds of iremite, a highly explosive substance, were stolen from the Iremco Manufacturing plant in Manati, Puerto Rico. ¹ Through November and December, 1974, a rash of bombings occurred in the Commonwealth. Puerto Rico police, suspecting sympathizers of the Puerto Rico Socialist Party (PSP) as the perpetrators, searched the homes of a number of party members. Appellant, allegedly a PSP member, was the object of a search on December 3, 1974, but Commonwealth police found nothing inculpatory in his home.

Several days later, a federal informant who was said to have provided reliable information in the past told federal agents he had reason to believe appellant was concealing explosives the Puerto Rican police had overlooked during their search. According to the informant, appellant had been afraid to remove the explosives because the house where he lived was under constant police surveillance. On the basis of that information, a warrant issued for the search of appellant's residence. It was executed by federal agents on December 14, 1974. By moving a work bench on the concrete floor of appellant's basement, agents discovered a hole, five feet in diameter, covered by a concrete slab. In it were three homemade iremite bombs, two blasting caps, detonating cords, and other bomb-making paraphernalia. Appellant was subsequently arrested.

On December 18, 1974, an assistant United States Attorney presented to the Grand Jury four witnesses; two from the Federal Bureau of Investigation who had participated in the search and two agents of the Alcohol, Tobacco and Firearms Unit who had also been participants. The Grand Jury handed down a two count indictment charging Ramos Colon with concealing explosives, knowing them to be stolen, in violation of 18 U.S.C. § 842(h); and storing explosives in an improper facility, in violation of 18 U.S.C. § 842(j).

From the outset this litigation has been highly charged. A steady current of pretrial motions, governmental responses, and objections to the responses filled the seventeen month period between indictment and trial. A jury was finally empaneled on May 3, 1976. On the second day of trial, the assistant United States Attorney represented to the district court that he felt it his duty to report that certain problems in the government's case had come to his attention. In 1974 or early 1975, while the explosives were in transit from Puerto Rico to the Federal Bureau of Investigation headquarters for analysis, an airman aboard the aircraft had stolen the blasting caps. Although the caps were subsequently recovered, the chain of custody necessary to establish their admissibility at trial had been broken. Thus, the government could not proceed on count 1 of the indictment. The assistant further reported that he had been unable to obtain certain documentary evidence relating to ownership of appellant's house and the iremite which was essential to its case against appellant on count 2 of the indictment. A defense motion to dismiss with prejudice was granted.

Defense counsel then orally urged the court to initiate an investigation into the failure of the United States Attorney's office to bring its lack of proof to light earlier, so as to avoid subjecting appellant and the court to protracted and costly litigation. The court commented: "in all of the time that I have been practicing law and in the short time that I have been a Judge, I have never seen such incredible and outrageous conduct on behalf of the government." Some five months later, after having reviewed the record of the prosecution, the court concluded that no further investigation or action was necessary and denied the defense request. A motion to reconsider, which sought the appointment of a special prosecutor to investigate the charge, was also denied. This appeal and petition for writ of mandamus followed.

There is no quarrel between the parties that "the inherent power of a court to manage its affairs necessarily includes the authority to impose reasonable and appropriate sanctions upon errant lawyers practicing before it." Flaksa v. Little River Marine Construction Co., 389 F.2d 885, 888 (5th Cir. 1968). See also Woods v. Covington County Bank, 537 F.2d 804, 810 (5th Cir. 1976); In re Carroll, 416 F.2d 585, 587 (10th Cir. 1969); Sanders v. Russell, 401 F.2d 241, 246 (5th Cir. 1968); Levenson v. Mills, 294 F.2d 397, 398 (1st Cir. 1961). Nor is there question that the court's supervisory power extends to discipline of government attorneys. See Smith v. Katzenbach, 122 U.S.App.D.C. 113, 117, 351 F.2d 810, 814 (1965). Indeed, the public interest demands that prosecutors be held to the highest standard of conduct. See id., 122 U.S.App.D.C. at 119, 351 F.2d at 816; Imbler v. Pachtman, 424 U.S. 409, 420, 96 S.Ct. 984, 47 L.Ed.2d 128 (1975). At issue is whether a criminal defendant claiming to have been the victim of prosecutorial impropriety may insist that sanctions be imposed.

Ordinarily, questions concerning the ethical behavior of prosecutors arise in the context of an appeal by a defendant who complains that an impropriety rendered his conviction invalid. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (failure to disclose exculpatory evidence); Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959) (knowing use of false testimony at trial); United States v. Kelly, 556 F.2d 257 (5th Cir. 1977) (selective prosecution); United States v. Basurto, 497 F.2d 781 (9th Cir. 1974) (use of perjured testimony to procure indictments); Dixon v. District of Columbia, 129 U.S.App.D.C. 341, 394 F.2d 966 (1968) (reneging on agreement not to prosecute in retaliation for defendant filing citizen complaint). Where a factual basis for the allegations is proven, and the misdeeds are found to have impugned the fundamental fairness of the trial, precedent authorizes reversal of the conviction and remand for a new trial. See Brady v. Maryland, supra. In extreme cases, dismissal of the indictment is warranted. ² See United States v. Kelly, supra, 556 F.2d at 264; United States v. Bourque, 541 F.2d 290, 293 (1st Cir. 1976); United States v. Steele, 461 F.2d 1148 (9th Cir. 1972). See also Note, The Supervisory Power of the Federal Courts, 76 Harv.L.Rev. 1656, 1663 (1963).

The government did not challenge the propriety of dismissing the indictment with prejudice once the state of the evidence became known. It argues, however, that dismissal ended appellant's cognizable interest in pursuing the charges of misconduct either before the district court or on appeal. Appellant counters that even after dismissal was granted, the personal anxiety and public ignominy of having been accused of a crime and subjected to seventeen months of litigation gave him standing to insist on further inquiry, either by the court itself or by a special prosecutor judicially appointed to the task. ³

Neither party has pointed to clear authority for his position on this issue. Some light is shed on the problem by an analysis of the sanctions available to a district court in the event of attorney misconduct. In United States v. Colon Lespier, 558 F.2d 624, 629 (1st Cir. 1977), we recently enumerated the disciplinary weapons in a district court's arsenal. They include citation for contempt, suspension for a limited time of the right to practice before the court, censure, informing the appropriate disciplinary bodies of the misconduct, and imposition of costs. See also Flaksa v. Little River Marine Construction Co., supra, 389 F.2d at 888; ABA Standards Relating to the Function of the Trial Judge (Approved Draft 1972) § 6.5. We discuss each in turn. ⁴

At the severe end of the spectrum is citation for contempt. See18 U.S.C. § 401. That sanction takes two forms, civil and criminal, which are distinguishable in the nature of the wrong they are designed to rectify and the recognized interests of litigants in their imposition. Civil contempt exists to recompense a private party for a loss occasioned by the failure of another to comply with a court order. See Universal Athletic Sales Co. v. Salkeld, 511 F.2d 904, 910 (3d Cir. 1975); Parker v. United States, 153 F.2d 66, 70 (1st Cir. 1946). Strictly a remedial action, civil...