US v. Kouri-Perez

• Decision Date: 02 March 1999
• Docket Number: ET,MONSERRATE-MATIENZ,A,APPELLANT,98-1663,Nos. 98-1612,KOURI-PERE,s. 98-1612
• Parties: (1st Cir. 1999) UNITED STATES OF AMERICA, APPELLEE, v. YAMIL H./K/A SEALED DEFENDANT 1, DEFENDANT, APPELLANT. UNITED STATES OF AMERICA, APPELLEE, v. YAMIL H.AL., DEFENDANTS, APPELLANTS, JOAQUIN Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1

187 F.3d 1 (1st Cir. 1999)

UNITED STATES OF AMERICA, APPELLEE, v. YAMIL H. KOURI-PEREZ, A/K/A SEALED DEFENDANT 1, DEFENDANT, APPELLANT.

UNITED STATES OF AMERICA, APPELLEE, v. YAMIL H. KOURI-PEREZ, ET AL., DEFENDANTS, APPELLANTS, JOAQUIN MONSERRATE-MATIENZO, APPELLANT.

Nos. 98-1612, 98-1663

U.S. Court of Appeals, First Circuit

Heard March 2, 1999

Decided May 7, 1999

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Martin G. Weinberg, with whom Osteri, Weinberg & Lawson, Kimberly Homan and Sheketoff & Homan were on brief for appellants Cerezo, et al.

Gerardo Ortiz-Del Rivero and David W. Roman, with whom Monserrate Law Office was on brief for appellant Monserrate-Matienzo.

Jorge E. Vega-Pacheco, Assistant United States Attorney, with whom Guillermo Gil, United States Attorney, Maria Dominguez-Victoriano, Assistant United States Attorney, Camille Velez-Rive, Assistant United States Attorney, and Nelson Perez-Sosa, Assistant United States Attorney, were on brief for appellee.

Before Selya, Circuit Judge, Coffin and Cyr, Senior Circuit Judges.

Cyr, Senior Circuit Judge.

Defense counsel appeal the sanction imposed upon them below for filing a vexatious discovery request. We dismiss for lack of appellate jurisdiction.

I. BACKGROUND

Appellants' clients were indicted in 1997 for theft of federal property and money laundering. Dealings between the prosecution and defense teams were acrimonious from the start. For present purposes, we focus upon the skirmish which began when Assistant United States Attorney ("AUSA") Maria Dominguez informed the court that she had reason to believe that one defendant had paid the retainer for co-defendants' counsel. The defense then charged that AUSA Dominiguez had violated the Sixth Amendment by deliberately infiltrating the defense camp.

Although the district court ultimately found no evidence for the infiltration theory advanced by the defense, it entered a civility order "remind[ing] [counsel] that civility in litigation is a value that this court will protect and enforce[,]" and directed both sides thenceforth to refrain from "[d]isparaging personal remarks or acrimonious conduct."

Round two began in March 1998, when AUSA Dominguez submitted a Brady report which disclosed that during March 1997 the prosecution had interviewed a Dr. Joaquin Perez-Mendez in the Dominican Republic and that Dr. Perez possessed information favorable to the defense but refused to be deposed in Puerto Rico. Appellants then sought to depose Perez at the United States Embassy in the Dominican Republic. Absent opposition by the government, the district court directed that the deposition be taken at the United States Embassy.

Appellants submitted a second motion one month later, for permission to depose Dr. Perez at his own office, rather than the United States Embassy. The motion represented that AUSA Dominguez had telephoned Dr. Perez's spouse, and told her that her husband would go to prison unless he cooperated with the government. Further, appellants reported that Dr. Perez was fearful of confronting AUSA Dominiguez at the United States Embassy, because her "true [sur]name" was Leon-Trujillo, and she was the granddaughter of the former Dominican Republic dictator, Rafael Trujillo, by whom Dr. Perez's father had been confined as a political prisoner. The allegations in appellants' second motion were broadcast by the media.

AUSA Dominiguez promptly denied any improper threats against Dr. Perez or his spouse and moved for sanctions against appellants. She objected to any implication that she used the surname Dominguez to conceal her ancestry, noting that she had been legally adopted in Florida as an infant. She questioned appellants' failure to contact her before filing their second motion to change the location of the deposition, particularly since the government never objected to appellants' unilateral choice of location. Finally, she contended that the only conceivable purpose served by the second motion was to harass or humiliate her, in direct violation of the civility order.

The district court issued a show-cause order, which appellants claimed violated due process because it failed to provide adequate notice of the precise bases upon which the court was considering the imposition of sanctions. Appellants suggested in addition that their duty to represent their clients required that the basis for Dr. Perez's subjective fears be reported, in order that the merits of their motion might be cogently assessed by the district court, even if those fears appeared irrational or baseless.

In due course the district court accepted AUSA Dominiguez's characterization of appellants' motives, and imposed a $4,000 sanction against appellants for violating its civility order and to deter any future noncompliance. The court expressly stated that it was not imposing the sanction pursuant to its criminal or civil contempt powers, but under 28 U.S.C. § 1927 or its inherent powers, with the warning that any future violation "may result in criminal contempt under [Federal Rule of Criminal Procedure] 42." The court directed appellants to pay the $4,000 sanction within ten days, under penalty of civil contempt. Appellants complied, then initiated their interlocutory appeals. In the meantime, the case proceeded to trial.

II. DISCUSSION

First, we must determine our jurisdiction. See Petralia v. AT&T Global Info. Solutions Co., 114 F.3d 352, 353-54 (1st Cir. 1997); In re Licht & Semenoff, 796 F.2d 564, 569-70 (1st Cir. 1986) (noting the "regrettable" fact that many interlocutory appeals from attorney-sanction orders have been entertained without considering appellate jurisdiction). Normally, appellate jurisdiction depends upon the existence of a "final judgment," see 28 U.S.C. § 1291, that conclusively "disposes of all the rights of all the parties to an action," Licht, 796 F.2d at 569, "leav[ing] nothing for the [trial] court to do but execute the judgment," Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 709 (1996) (citation omitted). Thus, the "final judgment" rule minimizes dilatory, piecemeal litigation, and promotes judicial efficiency. See Licht, 796 F.2d at 569 (citing Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374 (1981)).

Where its salutary effects are outweighed by other practical considerations, however, limited exceptions to the final judgment rule are recognized. For example, the Cohen (or "collateral order") exception enables an interlocutory appeal from an otherwise non-"final" order which meets four conditions. Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949). The order must (1) concern a collateral issue so conceptually distinct from other issues being litigated in the underlying action that an immediate appeal would neither disrupt the main action, nor threaten to deprive the appellate court of useful context which might be derived from subsequent developments in the litigation; (2) completely and conclusively resolve the collateral issue; (3) infringe rights which appellant could not effectively vindicate in an appeal after final judgment in the case; and (4) involve an important or unsettled legal issue, rather than merely challenge discretionary trial court rulings. See Licht, 796 F.2d at 570-71 (citing Cohen); United States v. Kane, 955 F.2d 110, 111 (1st Cir. 1992) (reformulating these same Cohen criteria into a three-part test).

On the question whether monetary sanctions against attorneys are "final," either under section 1291 or Cohen, the courts of appeals remain divided. See Chaves v. M/V Medina Star, 47 F.3d 153, 155 n.7 (5th Cir. 1995) (outlining circuit split); compare, e.g., Frazier v. Cast, 771 F.2d 259, 261-62 (7th Cir. 1985) (permitting interlocutory appeal); Cheng v. GAF Corp., 713 F.2d 886, 888-90 (2d Cir. 1983) (same) with Click v. Abilene Nat'l Bank, 822 F.2d 544, 545 (5th Cir. 1987) (dismissing interlocutory appeal); Eastern Maico Distribs., Inc. v. Maico-Fahrzeugfabrik, 658 F.2d 944, 950-51 (3d Cir. 1981) (same). ¹

In siding with the latter authorities some time ago we held that a discovery sanction against a law firm pursuant to Federal Rule of Civil Procedure 26(g) meets neither the section 1291 nor the Cohen finality requirements. See Licht, 796 F.2d at 569-73 (dismissing law firm's interlocutory appeal). Rule 26(g) forbids the interposition of a discovery request by counsel "for any improper purpose, such as to harass," Fed. R. Civ. P. 26(g); see Licht, 796 F.2d at 567 (noting that district court expressly found that attorneys' "primary purpose in deposing [witnesses] was to harass"), and empowers the court to impose an "appropriate sanction" for its violation. Since we are bound by First Circuit precedent closely on point, see Institut Pasteur v. Cambridge Biotech Corp., 104 F.3d 489, 493 n.8 (1st Cir. 1997), appellants face an uphill battle given the clear parallels between Licht and the present case.

Notwithstanding the statements to the contrary by the district court, appellants insist that the challenged sanction issued pursuant to its statutory power to punish counsel for criminal contempt. See 18 U.S.C. § 401; In re Power Recovery Sys., Inc. (Eck v. Dodge Chem. Co.), 950 F.2d 798, 802 (1st Cir. 1991) (in distinguishing between criminal and civil contempt, appellate court must go beyond mere labels, and assess substantive attributes and aims of sanction). Were we to adopt their approach, appellants would achieve two distinct advantages. First, by mischaracterizing the district court sanction as a criminal-contempt order, from which an interlocutory appeal would lie, appellants circumvent the customary barrier to interlocutory appeals from civil-contempt orders. See Licht, 796 F.2d at 568. Second, in so doing appellants would prevail on the merits since the district court did not purport to conform its order with the heightened procedural requirements attending criminal-contempt adjudications. See Fed. R....