FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. Francisco A. Besosa, U.S. District Judge]
J. Lizarríbar-Masini, with whom Camille
Lizarríbar-Buxó and Lizarríbar Law
Office were on brief, for appellant.
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
Howard, Chief Judge, Torruella and Lipez, Circuit Judges.
HOWARD, Chief Judge.
proceeding before a fair tribunal is a basic requirement of
due process. See In re Murchison, 349 U.S. 133, 136
(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.
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.
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
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.
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 (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;
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.
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
(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).
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.
claims that the judge denied him a fair trial by repeatedly
rebuking his counsel. These reproaches ranged from
characterizing counsel's questions as "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. And
although the judge rebuked counsel more often than he did the
prosecutor, counsel's behavior warranted the added
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.
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;
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.
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
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. ...