U.S.A. v. Seltzer

• Decision Date: 01 August 1999
• Docket Number: Docket No. 99-6151
• Citation: 227 F.3d 36
• Parties: (2nd Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MARION SELTZER, Esq., Appellant, VAUGHN ROSARIO, a/k/a Vaughn Michaels, Defendant
• Court: U.S. Court of Appeals — Second Circuit

Page 36

227 F.3d 36 (2nd Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MARION SELTZER, Esq., Appellant, VAUGHN ROSARIO, a/k/a Vaughn Michaels, Defendant.

Docket No. 99-6151

August Term, 1999

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: January 20, 2000

Decided: September 25, 2000

Appeal from the June 4, 1999 Order of the United States District Court for the Eastern District of New York (I. Leo Glasser, Judge), which directed Appellant, an attorney for a defendant before Judge Glasser, to pay a $350 fine as a sanction for her late arrival in court.

VACATED AND REMANDED.

John H. Jacobs, New York, NY, (Joshua L. Dratel, Joshua L. Dratel, P.C., New York, NY, on the brief) for Appellant.

Dwight Holton, Assistant United States Attorney, Eastern District of New York, Brooklyn, NY (Loretta Lynch, United States Attorney, Eastern District of New York, Susan Corkery, Assistant United States Attorney, Brooklyn, NY, of counsel) for Appellee.

Before: CARDAMONE, LEVAL, PARKER, Circuit Judges.

PARKER, Circuit Judge:

Appellant Marion Seltzer appeals from the June 4, 1999, Order of the United States District Court for the Eastern District of New York, which directed her to pay a $350 fine for her alleged failure to return to court on time. Following the oral imposition of this sanction, the district court issued a written order on June 22, 1999, stating that it was imposing sanctions for appellant's tardiness in returning to court for the jury verdict, and it was basing its authority on its inherent power to manage its own affairs. On appeal, Seltzer argues that the evidence supporting the sanction was insufficient and that she was not afforded procedural due process. She also contends that the sanction cannot be upheld because there is no indication of bad faith on her part, and bad faith is required prior to imposition of a sanction pursuant to the inherent powers of the court. For the reasons set out below, we reject appellant's argument that a finding of bad faith is a necessary prerequisite to imposing a sanction under the district court's inherent powers, under the circumstances of this case, but we vacate the order and remand to the district court because the record does not contain the facts necessary for our review of the imposition of the sanction.

I. BACKGROUND

Appellant Marion Seltzer is an attorney who represented Vaughn Rosario in a multidefendant criminal case before Judge Glasser in the United States District Court for the Eastern District of New York. During the trial, Seltzer was assisted by Elizabeth Macedonio, an associate who was responsible for many facets of the defense, including delivering the opening statement. On June 3, 1999, the jury began its deliberations. After the jury was led from the courtroom by the United States Marshal, the Court had a brief conference with counsel, including Seltzer:

THE COURT: You can recess for lunch. We'll resume at about 2:15.

* * *

MS. DAVID: Jury deliberation, you require the attorneys be here in the courthouse? My office is about ten minutes from here.

THE COURT: I would like you to be available so we don't have to wait 10 or 15 minutes. We have a verdict sheet that I would like you to look at.

On June 4th, the jury continued deliberations. Still unable to reach a verdict, the jury recessed for lunch. Sometime after 2 p.m. on the same day, the jury sent a note indicating that it had reached a verdict. Court reconvened soon thereafter, with all parties and counsel present with the exception of Seltzer. The court stated, "[a]s soon as Ms. Seltzer gets here, we'll start." Following a pause during which time Seltzer apparently arrived, the court then stated, "Ms. Seltzer, when these proceedings are concluded, I'm going to direct you to remain."

According to the transcript, the jury entered the courtroom with its verdict at 2:26 p.m. A courtroom log sheet, however, indicates that the "[j]ury came into court at 2:20 with the following verdict: . . . ." The district court then took the jury's verdict. After the jury was discharged, the district court set sentencing dates for those defendants who had been convicted, including Seltzer's client.

Following this scheduling, the district court instructed Seltzer to approach, to which Seltzer replied, "[c]an I have one moment to speak to my client?" Following a brief pause for Seltzer to address her client, the court continued:

Ms. Seltzer, you have kept this court, twelve jurors, three or four defendants and their lawyers, . . . the Assistant United States Attorney, approximately twenty some-odd people, waiting for twenty-five minutes. And I would like you to tell me why I shouldn't impose a sanction upon you, Ms. Seltzer, not only for violating the order of this court, which I think, after I charged the jury, I - not advised - told counsel to keep themselves available, so that the court didn't have to go -

Seltzer replied:

I apologize your Honor. I was, frankly, at lunch, and I had my cell phone with me, and I was walking down Court Street when we got the call, and I walked directly here.

Following Seltzer's statement, the court stated that it was "going to direct you, Ms. Seltzer, to pay a fine to the Clerk of Court in the amount of $350 by Monday afternoon." Seltzer then inquired whether the court's decision was appealable, and once again apologized. The district court responded, "[e]xcuse me. You didn't have the courtesy to apologize to the court when you walked in twenty-five minutes late."

Following an additional statement of apology, Seltzer and the court engaged in the following exchange:

MS. SELTZER: I was outside the courthouse just walking down Court Street when I got the telephone call.

If I may just complete the record, your Honor? I don't recall your telling us today any specific time.

THE COURT: I didn't tell you today, and I didn't say I told you today.

MS. SELTZER: On the other days, your Honor has instructed us to come back at 2:15. I came back somewhere between 2:20 and 2:25. I apologize, because you are correct. I shouldn't have been on Court Street. I should have been standing in front of the building.

But I don't want you to think that I mean any disrespect to the court. It's been my experience in the past that a defense lawyer is given five or ten minutes, after receiving a telephone call that there's a verdict, to come into the courtroom. And from the time that I received the telephone call that there was a verdict, I believe was less than ten minutes.

THE COURT: Thank you very much.

On June 7, 1999, Seltzer paid the $350 fine and filed her notice of appeal. On June 16, 1999, the court issued a written order. The order provides, in part:

At approximately 2:25 p.m. Ms. Seltzer entered the courtroom and offered no apology for her lateness. She was directed to remain when the proceedings were over. During the intervening 25 minutes [from the jury's notification at 2:00 p.m. that they had reached a verdict] 12 jurors were waiting in a windowless room, two assistant United [sic] States Attorneys, a case agent, four defendants, three defense attorneys, a court stenographer, a court clerk and the Court, twenty five persons in all were kept waiting. At the conclusion of the proceedings, I gave Ms. Seltzer an opportunity to explain why she shouldn't be sanctioned. Her explanation was at odds with what the court Clerk reported she said when telephoned, and in any event was unacceptable. She was directed to pay a fine of $350 to the Clerk of Court.

The imposition of sanction is warranted, I believe, by the inherent power of the court "governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases." Link v. Wabash Railroad Co., 370 U.S. 626, 630-31 (1962). That inherent power has frequently been invoked by courts to regulate the conduct of members of the Bar. . . . See also, In re Sutter, 543 F.2d 1030 (2d Cir. 1976)[.] Local Civil Rule 1.5(f)[of the] Local Rules of the United States District Courts for the Southern and Eastern Districts of New York, explicitly if not implicitly acknowledges that inherent power.

On October 26, 1999, Seltzer filed a motion to supplement the record. In this motion, Seltzer sought to introduce cellular telephone records, which were not presented to the district court, that she claims establish exactly when she received the call from the clerk informing her that the jury had reached a verdict. On January 10, 2000, this Court granted Seltzer's motion.

II. DISCUSSION

On appeal, Seltzer argues that the district court's order must be reversed because the court did not find that she acted in bad faith. Seltzer claims that such a finding of bad faith is a necessary prerequisite to the imposition of sanctions under the inherent powers of the court.¹ Seltzer also argues that there is insufficient evidence to support the imposition of sanctions and that the award violates her due process rights. Specifically, Seltzer contends that she did not have notice of the order she was sanctioned for violating, and that the district court did not provide her with notice and an opportunity to be heard prior to imposing sanctions.

A. Standard of Review

This Court reviews "all aspects of a District Court's decision to impose sanctions for abuse of discretion." Schlaifer Nance & Co. v. Estate of Andy Warhol, 194 F.3d 323, 333 (2d Cir. 1999) (citing Chambers v. NASCO, Inc., 501 U.S. 32, 50 (1991) (stating that sanctions imposed under district court's inherent power are reviewed for abuse of discretion)). Even under this deferential standard of review, however, this Court must be careful "to ensure that any such decision [to sanction a party or attorney] is made with restraint and discretion." Id. at 334.

B. The Bad Faith Requirement

Seltzer argues that under the case law of this Circuit, a district court imposing sanctions...