U.S. v. Blodgett

• Decision Date: 01 July 1983
• Docket Number: No. 82-5625,82-5625
• Citation: 709 F.2d 608
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Geraldine Marie BLODGETT, Defendant. In re Hector C. PEREZ, Movant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 608

709 F.2d 608

UNITED STATES of America, Plaintiff-Appellee, v. Geraldine Marie BLODGETT, Defendant.

In re Hector C. PEREZ, Movant-Appellant.

No. 82-5625.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 11, 1983.

Decided July 1, 1983.

Patricia Collins, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

William K. Shipley, Shipley & Perez, Newport Beach, Cal., for movant-appellant.

Howard W. Gillingham, Richard H. Kirschner, Edward J. Horowitz, Los Angeles, Cal., Alan Ellis, Philadelphia, Pa., James R. Dunn, Peter M. Horstman, Thomas J. Rannen, Federal Public Defenders Office, Los Angeles, Cal., for amicus curiae.

On Appeal from the United States District Court for the Central District of California.

Before SCHROEDER and PREGERSON, Circuit Judges, and THOMPSON, ^* District Judge.

PREGERSON, Circuit Judge:

In this case we must determine the circumstances under which a district court may impose monetary sanctions on an attorney for filing a frivolous appeal. We hold that a district court has the power to sanction counsel for filing a frivolous appeal in bad faith, which includes one filed solely for purposes of delay. The amount of the sanctions, however, should not exceed expenses reasonably incurred in opposing the appeal, nor should sanctions be imposed without a hearing.

FACTS

Appellant Hector C. Perez was Geraldine Marie Blodgett's defense counsel. Blodgett and three co-defendants were indicted by a federal grand jury for conspiring to distribute controlled substances, 21 U.S.C. Sec. 846, and distributing controlled substances, 21 U.S.C. Sec. 841(a)(1). Before trial, Perez filed a motion to dismiss the indictment against Blodgett on the ground of selective prosecution. The allegation of selective prosecution had two bases: (1) that Blodgett was prosecuted because she was a woman and (2) that she was prosecuted because she was a "non-doctor." In support of the motion, Perez submitted his own declaration, based on information obtained through discovery, that the government had not criminally prosecuted four male doctors suspected of excessively prescribing controlled substances. Perez made this contention despite the fact that all three of Blodgett's co-defendants were male and two were doctors. The district court found that there was insufficient evidence to support the Perez filed an interlocutory appeal from the district court's order. He also moved the district court to stay the proceedings pending disposition of the appeal. In granting the stay, the district court noted that the appeal was "frivolous" and "unmeritorious."

allegation of selective prosecution and denied the motion.

The government filed an emergency motion for summary affirmance of the district court's order, arguing that the selective prosecution motion was frivolous. This court summarily affirmed the order and remanded the matter to the district court without commenting on the appeal's frivolousness.

On remand, the district court ordered Perez to pay $500 in sanctions for bringing a frivolous appeal and for "unnecessarily consuming time." Perez moved the district court to reconsider its order and remit the fine. The district court denied his motions. Perez paid the $500 and filed this appeal. We have jurisdiction under 28 U.S.C. Sec. 1291. See Liew v. Breen, 640 F.2d 1046, 1048 (9th Cir.1981).

ANALYSIS

The district court's authority to sanction counsel is undoubted. The court's order indicates that Perez was sanctioned under 28 U.S.C. Sec. 1927. That section states:

Any attorney ... in any court of the United States ... who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct.

In addition to this statutory authority, a district court has the inherent power to impose sanctions on counsel who "willfully abuse[s] judicial processes." Roadway Express, Inc. v. Piper, 447 U.S. 752, 766, 100 S.Ct. 2455, 2464, 65 L.Ed.2d 488 (1980); accord, Barnd v. City of Tacoma, 664 F.2d 1339, 1342 (9th Cir.1982). ¹ The imposition of sanctions under section 1927 requires a finding that counsel acted "recklessly or in bad faith," Barnd, 664 F.2d at 1343 (9th Cir.1982), while those imposed under the court's inherent power require a finding that counsel's conduct "constituted or was tantamount to bad faith," Roadway, 447 U.S. at 767, 100 S.Ct. at 2465. Accordingly, we conclude that the district court had the power to sanction counsel for filing a frivolous appeal in bad faith, and that filing solely for purposes of delay constitutes bad faith.

However, as the Supreme Court made clear in Roadway, "sanctions ... should not be assessed lightly or without a fair notice and an opportunity for a hearing on the record." 447 U.S. at 767, 100 S.Ct. at 2464. Where, as here, the conduct giving rise to the imposition of sanctions occurred outside the presence of the court, counsel should be provided an opportunity to explain his conduct. See In re Allis, 531 F.2d 1391, 1392 (9th Cir.1976).

No such opportunity was provided in the instant case. While on the facts we cannot conclude that the...