United States v. Howard ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 03-50524
v.  D.C. No.
JESSE LEE HOWARD, CR-03-00390-GAF
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 03-50525
v.  D.C. No.
JOSE LUIS FARIAS-BLANCO, 03-0861M-ABC
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 03-50526
v.  D.C. No.
JOSE ANGEL CEDILLOS, 03-0890M-ABC
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 03-50527
v.  D.C. No.
ROBERT HERMAN BOULIES, 03-0945M-ABC
Defendant-Appellant.

11417
11418 UNITED STATES v. HOWARD
UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 03-50532
v.  D.C. No.
CR-03-00435-
DANIEL RIVERA-GONZALEZ, RSWL
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
No. 03-50533
v.
 D.C. No.
JORGE PINEDA-FERNANDEZ, a/k/a CR-03-00439-GHK
Jorge Peneda,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 03-50534
v.  D.C. No.
CR-03-00486-
RANDOLPH ARTHUR CISNEROS, RSWL
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 03-50535
v.  D.C. No.
CORNELIO GARCIA-CHAVEZ, CR-03-00493-NMM
Defendant-Appellant.

UNITED STATES v. HOWARD 11419
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v. No. 03-50536
JOSE CABANILLAS-NUNEZ, a/k/a Jose  D.C. No.
Arsenio Cabanillas, Jose Arencio CR-03-00509-DMT
Nunez,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 03-50537
v.  D.C. No.
RAYMOND FLORES, CR-03-00516-R-02
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 03-50538
v.  D.C. No.
CR-03-00533-FMC-
CHRISTIAN RAUDALES, 02
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 03-50539
v.  D.C. No.
MIGUEL LENCIA, 03-0858M-ABC
Defendant-Appellant.

11420 UNITED STATES v. HOWARD
UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 03-50540
v.  D.C. No.
RAYMOND CAZARES, 03-089M-ABC
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 03-50541
v.  D.C. No.
VERNON CROCKER, 03-0899M-ABC
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 03-50542
v.  D.C. No.
LORENA GALLARDO, 03-0944M-ABC
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 03-50543
v.  D.C. No.
JEFFREY DARRYL WAFER, 03-0860M-ABC
Defendant-Appellant.

UNITED STATES v. HOWARD 11421
UNITED STATES OF AMERICA,  No. 03-50544
Plaintiff-Appellee,
v.  D.C. No.
03-0896M-ABC
PEDRO F. SANDOVAL-SANDOVAL,
Defendant-Appellant.

UNITED STATES OF AMERICA,  No. 03-50545
Plaintiff-Appellee,
v.  D.C. No.
03-0942M-ABC
CARLOS ALVAREZ,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Central District of California
Audrey B. Collins, District Judge, Presiding
Argued and Submitted
November 1, 2004—Pasadena, California
Filed September 15, 2006
Before: Mary M. Schroeder, Chief Judge, Ronald M. Gould
and Richard R. Clifton, Circuit Judges.
Opinion by Chief Judge Schroeder
UNITED STATES v. HOWARD 11425
COUNSEL
Carlton Frederick Gunn, Deputy Public Defender, Los Ange-
les, California, for the defendants-appellants.
Patrick R. Fitzgerald and Becky S. Walker, Assistant United
States Attorneys, Los Angeles, California for the plaintiff-
appellee.
OPINION
SCHROEDER, Chief Judge:
This is an interlocutory appeal by criminal defendants chal-
lenging a requirement that pretrial detainees making their first
appearance before a magistrate judge wear leg shackles. The
11426 UNITED STATES v. HOWARD
district-wide shackling policy was implemented by the United
States Marshals Service for the Central District of California
after consultation with the magistrate judges. In each of these
seventeen cases, a magistrate judge denied the Federal Public
Defender’s motion for the defendant to appear without shack-
les at the initial appearance. The district court reviewed these
adverse magistrate judges’ rulings in a consolidated appeal.
The district court, citing safety concerns, affirmed the magis-
trate judges’ shackling decisions. The record contains evi-
dence that the policy was adopted after consultation between
magistrate judges and the United States Marshals Service, and
that the policy was implemented to address the security con-
cerns associated with multi-defendant proceedings in an unse-
cured, large courtroom, in a district in which the security
personnel must cover several courthouses.
Before reaching the merits of the case, we must deal with
appellate jurisdictional obstacles raised by the government.
These are questions of mootness and appellate jurisdiction
over interlocutory orders. We conclude that the case is not
moot because the issues are capable of repetition and will oth-
erwise evade review, and that we have appellate jurisdiction
to review the orders that finally dispose of issues collateral to
the merits of the cases.
On the merits, it is undisputed that the policy effectuates
some diminution of the liberty of pretrial detainees and
detracts to some extent from the dignity and the decorum of
a critical stage of a criminal prosecution. We conclude, how-
ever, that the shackling policy was adopted with an adequate
justification of its necessity. On the basis of the record before
us, we affirm the district court’s order upholding the policy.
BACKGROUND
Defendants seek review of a district-wide policy requiring
leg restraints during defendants’ initial appearances. The pol-
icy adopted by the United States Marshals Service for the
UNITED STATES v. HOWARD 11427
Central District of California applies only to in-custody defen-
dants who are shackled in leg restraints for their initial
appearances in front of magistrate judges. According to the
district court’s order, magistrate judges at the initial appear-
ance read defendants their rights, confirm that defendants
have received a copy of the complaint or indictment stating
the charges against them, appoint counsel to represent the
indigent defendants, set dates for preliminary hearings and
post-indictment arraignment, and make preliminary determi-
nations of bond and detention issues. In some cases, the initial
appearance includes an evidentiary detention hearing with tes-
timony by lay witnesses or law enforcement officers.
The record explains the history of the shackling policy. The
United States Marshals Service for the Central District of Cal-
ifornia enacted the policy in April 2003. The policy applies to
arrested, in-custody defendants, as opposed to defendants
appearing in court in response to a summons. The record indi-
cates that the Marshals Service consulted with the magistrate
judges before enacting the policy and that it was enacted to
address security concerns surrounding the transportation of
varying numbers of in-custody defendants from secure facili-
ties to a less-secure courtroom. The record also indicates that
during at least some period in the past, defendants were nei-
ther shackled nor handcuffed at initial appearances. Before
the policy in question was implemented, however, in-custody
defendants appeared in full restraints, so this policy repre-
sented a reduction of restraints on defendants.
The record contains the declaration of Robert Masaitis,
Chief Deputy United States Marshal for the Central District
of California. He states that “it is not possible to conduct an
individualized analysis of a defendant at the time of the initial
appearance,” and further states that the shackling policy is
necessary to ensure safety and order in the courtroom. He also
states that the need for leg restraints is enhanced by staffing
shortages in the Marshals Service. The declaration also states
that prisoner management is crucial to the Marshals Service’s
11428 UNITED STATES v. HOWARD
duty to provide security for the federal judiciary, and that the
greatest risks of escape and violence occur during transporta-
tion from detention facilities and in the courtroom.
In each of these consolidated cases, the defendant was rep-
resented by the Federal Public Defender and made his initial
court appearance with leg restraints. The Federal Public
Defender moved that the defendant be permitted to appear
without shackles. In some cases, the magistrate judges
allowed the Federal Public Defender to argue the motion. The
magistrate judge denied the motion in each case.
In a consolidated appeal from interlocutory orders, the Fed-
eral Public Defender sought district court review of the mag-
istrate judges’ denials of the motions. The district court
affirmed the magistrate judges’ shackling decisions. It noted
that shackling may indeed detract from the dignity and deco-
rum of judicial proceedings, but concluded that safety inter-
ests outweighed this concern. The district court clarified that
any other potential problems with shackling could be
addressed in an individual case, if necessary. Therefore, the
district court held that the policy did not deprive the defen-
dants of their due process rights. This consolidated appeal fol-
lowed.
MOOTNESS
[1] The government argues that this case is moot because
no effective relief can be ordered at this stage for these defen-
dants whose criminal pretrial proceedings are over. See Bern-
hardt v. County of Los Angeles, 279 F.3d 862, 871 (9th Cir.
2002). Article III, Section 2 of the Constitution limits federal
court jurisdiction to “cases” and “controversies.” This case or
controversy requirement exists through all stages of federal
judicial proceedings. Spencer v. Kemna, 523 U.S. 1, 7 (1998).
A number of doctrines have developed, however, to permit
courts to review a case in which it is no longer possible to
remedy the particular grievance giving rise to the litigation.
UNITED STATES v. HOWARD 11429
[2] One is the exception to the mootness doctrine for viola-
tions “capable of repetition, yet evading review.” See, e.g.,
Gerstein v. Pugh, 420 U.S. 103, 110 n.11 (1975). This is such
a case. In Gerstein, the Supreme Court stated that very brief
pretrial detention is by nature temporary, because it is most
unlikely that any given individual could have his constitu-
tional claim decided on appeal before he is released or con-
victed. Id. There the Supreme Court held the exception to the
mootness doctrine for violations “capable of repetition, yet
evading review” applied because the constitutional violation
was likely to be repeated but would not last long enough to
be reviewed before becoming moot. Id.[3] An initial proceeding in a criminal case is even more
temporary than the pretrial detention at issue in Gerstein. This
case evades review for essentially the same reason. The
defendants could not have brought the challenges to the
shackling by the magistrate judge to the district court, much
less to us, before the harm of shackling at the initial proceed-
ing was completed.
[4] This situation giving rise to this challenge also is capa-
ble of repetition. We acknowledge that we cannot assume that
criminal conduct will be recurring on the part of these defen-
dants. See O’Shea v. Littleton, 414 U.S. 488, 496 (1974). This
case is therefore distinguishable from an abortion case, the
classic case capable of repetition yet evading review, because
we can assume a woman can become pregnant again. See gen-
erally Roe v. Wade, 410 U.S. 113, 125 (1973). This makes no
material difference, however, because a future charge
assuredly will be brought against someone, and the shackling
policy would similarly escape review.
For this reason, we have held that a case is capable of repe-
tition when the defendants are challenging an ongoing gov-
ernment policy. Oregon Advocacy Ctr. v. Mink, 322 F.3d
1101, 1118 (9th Cir. 2003). In Oregon Advocacy Center, the
plaintiffs alleged that the state mental hospital, which was
11430 UNITED STATES v. HOWARD
charged with evaluating and treating mentally incapacitated
defendants, refused to accept the defendants on a timely basis.
Id. at 1105-06. The plaintiffs challenged a state policy that
results in the delays. Id. at 1118. We held that although the
particular situation precipitating a constitutional challenge to
a government policy may have become moot, the case does
not become moot if the policy is ongoing. Id. “The continued
and uncontested existence of the policy that gave rise to [the]
legal challenges forecloses [the] mootness argument.” Id.The D.C. Circuit similarly held that when a complaint chal-
lenges an acknowledged government policy, the government
cannot prevail by arguing that the controversy became moot
when the particular situation at issue resolved itself.
Ukrainian-American Bar Ass’n v. Baker, 893 F.2d 1374, 1377
(D.C. Cir. 1990). The defendants in this case are challenging
an ongoing government policy.
[5] As a practical matter, this case is materially similar to
a class action in which the class representative’s claims may
become moot, but there are members of the class whose
claims are not moot. The Supreme Court has held that under
the capable of repetition, yet evading review doctrine, the ter-
mination of a class representative’s claim does not moot the
claims of other class members. See Gerstein, 420 U.S. at 110
n.11. This holding applies outside of the class action context
when the circumstances of the case are analogous to those
found in class action cases. Oregon Advocacy Ctr., 322 F.3d
at 1117; see also Gerstein, 420 U.S. at 111 n.11. The defen-
dants in this case are seeking to represent interests broader
than their own, and the attorney bringing the case is a Federal
Public Defender with other clients with a live interest in the
case. See Gerstein, 420 U.S. at 111 n.11; Hawkins v.
Comparet-Cassani, 251 F.3d 1230, 1237 (9th Cir. 2001).
[6] The government suggests that this kind of blanket chal-
lenge to a procedure used in prosecutions must be brought as
a civil class action rather than within the relevant criminal
UNITED STATES v. HOWARD 11431
proceedings in which it arose. Our case law does not establish
that a civil forum is the exclusive forum. Indeed, it may be
more appropriate to decide this case in the context of actual
prosecutions rather than by resort to hypotheticals or general-
izations. On a practical level, we must understand that this
particular challenge could not be made in the civil context,
because the only available attorney to represent these criminal
defendants is the Federal Public Defender. The Federal Public
Defender cannot pursue a civil class action on their behalf,
because there is no provision for the appointment of a Federal
Public Defender in a civil action, and the office of Federal
Public Defender is barred from instituting any action on its
own. See 18 U.S.C. § 3006A(a), Administrative Office of the
U.S. Courts, Guide to Judiciary Policies and Procedures,
Vol. VII, Ch. IV. This is still another reason why we should
not hold that this challenge can proceed as only a civil action.
APPELLATE JURISDICTION
[7] The government contends that we lack appellate juris-
diction because this is not an appeal from a final district court
judgment, but from a ruling in consolidated interlocutory
appeals. Courts of appeals “shall have jurisdiction of appeals
from all final decisions of the district courts of the United
States.” 28 U.S.C. § 1291. There is an exception to the final
judgment rule for certain interlocutory orders, known as “col-
lateral orders,” where review of a final judgment would be
unavailing. This exception applies when the order (1) will
conclusively determine the disputed question, (2) will resolve
an important issue completely separate from the merits, and
(3) is effectively unreviewable on appeal from a final judg-
ment. Coopers & Lybrand v. Livesay, 437 U.S. 463, 468
(1978). Adherence to the rule of finality has been particularly
stringent in criminal prosecutions, because the delays and dis-
ruptions that come with interlocutory orders can hinder the
effective and fair administration of the criminal law. Abney v.
United States, 431 U.S. 651, 657 (1977).
11432 UNITED STATES v. HOWARD
[8] All of the requirements of the collateral order doctrine
apply here. The shackling order conclusively determines the
disputed question of whether the shackling policy is permissi-
ble. This question is wholly separate from the merits of the
underlying action. Therefore, the question before this court is
whether the order would be effectively unreviewable if the
court delayed the defendants’ appeals until they are either
convicted and sentenced, or acquitted. See United States v.
Friedman, 366 F.3d 975, 979 (9th Cir. 2004). The order must
involve “an important right which would be ‘lost, probably
irreparably,’ if review had to await final judgment.” Abney,
431 U.S. at 658.
[9] Even assuming that defendants’ claims could be
reviewed on appeal from conviction, their claims could not be
reviewed if they are acquitted. See Sell v. United States, 539
U.S. 166, 176-77 (2003); Friedman, 366 F.3d at 979. In most
cases, a defendant’s rights would be sufficiently vindicated by
an acquittal. See, e.g., Flanagan v. United States, 465 U.S.
259, 266 (1984) (acquittal would remedy harm of order dis-
qualifying counsel); United States v. MacDonald, 435 U.S.
850, 859 (1978) (acquittal would remedy harm of speedy trial
violation). This case, however, falls within a subset of cases
in which acquittal does not undo the harm to the defendant.
The Supreme Court has held, for example, that an order to
deny bail and require pretrial detention cannot effectively be
reviewed on appeal. Stack v. Boyle, 342 U.S. 1, 6 (1951).
Similarly, we have held that involuntary commitment of a
defendant is effectively unreviewable on appeal, because
there would be no appellate review if the defendant was found
not competent to stand trial or acquitted. Friedman, 366 F.3d
at 979. We find this case to be analogous. An acquittal in this
case would favorably terminate the prosecution of the defen-
dant, but would not affect the deprivation of liberty that
occurred during the pretrial hearing. See Sell, 539 U.S. at 176-
77; Friedman, 366 F.3d at 979.
[10] Therefore, defendants’ claims are effectively unre-
viewable on appeal from a final judgment. The district court’s
UNITED STATES v. HOWARD 11433
order reviewing the magistrate judges’ determinations is an
appealable collateral order.
MERITS
[11] This court has not decided whether a general policy of
shackling a defendant for a proceeding in front of a judge vio-
lates due process. Nearly all of the litigation concerning
shackled defendants arises in the context of proceedings in
front of a jury. See, e.g., Deck v. Missouri, 544 U.S. 622(2005) (extending the general prohibition on the use of shack-
les to the penalty phase of a jury trial); Duckett v. Godinez,
67 F.3d 734 (9th Cir. 1995); Jones v. Meyer, 899 F.2d 883(9th Cir. 1990); Spain v. Rushen, 883 F.2d 712 (9th Cir.
1989). These cases turn in large part on fear that the jury will
be prejudiced by seeing the defendant in shackles. See Deck,
544 U.S. at 630; Duckett, 67 F.3d at 748; see also Illinois v.
Allen, 397 U.S. 337, 344 (1970). Fear of prejudice is not at
issue in the present case, as a judge in a pretrial hearing pre-
sumably will not be prejudiced by seeing defendants in shack-
les. In cases involving sentencing before a judge, other courts
have disagreed about whether shackling violated due process.
Compare United States v. Zuber, 118 F.3d 101, 104 (2d Cir.
1997) (finding no due process violation), with People v.
Fierro, 821 P.2d 1302, 1322 (Cal. 1992) (finding due process
violation).
[12] Shackling a defendant in any judicial proceeding can
have negative effects. The Supreme Court has stated that “the
use of [shackling and restraints] is itself something of an
affront to the very dignity and decorum of judicial proceed-
ings that the judge is seeking to uphold.” Allen, 397 U.S. at
344; see Deck, 544 U.S. at 631. Moreover, the Supreme Court
expressed concern that restraints could greatly reduce the
defendant’s ability to communicate with his counsel. Id. This
court has noted that shackling may confuse and embarrass the
defendant, thereby impairing his mental faculties. See
Duckett, 67 F.3d at 747-48, citing Spain, 883 F.2d at 720-21.
11434 UNITED STATES v. HOWARD
Shackling may also cause the defendant physical and emo-
tional pain. See Rhoden v. Rowland, 172 F.3d 633, 637 (9th
Cir. 1999); Spain, 883 F.2d at 720-21.
[13] Defendants contend that the Marshals Service’s shack-
ling policy violates their due process rights. They point out
that before a defendant can be shackled in front of a jury, the
court must be persuaded by compelling circumstances that
some measure is needed to maintain security, and that no less
restrictive alternatives are available. See Jones, 899 F.2d at
884-85. They argue that due process requires that there be no
restraint whatsoever without an individualized determination.
This may go farther than due process requires. But we do not
have to reach this question. This case does not involve the
question of shackling in the presence of a jury or during a
trial.
[14] In this case, due process at a minimum does require
that before there is any district-wide policy affecting all incar-
cerated defendants whom the government must transport to a
first appearance, there must be some justification. The
Supreme Court has stated that “if a restriction or condition is
not reasonably related to a legitimate goal — if it is arbitrary
or purposeless — a court permissibly may infer that the pur-
pose of the governmental action is punishment that may not
constitutionally be inflicted upon detainees qua detainees.”
Bell v. Wolfish, 441 U.S. 520, 539 (1979).
Cases addressing the due process rights of pretrial detainees
typically involve challenges to prison policies. See, e.g., id.Courts ordinarily defer to the expert judgments and profes-
sional expertise of corrections officials. Id. at 547-48. Correc-
tions officials must produce at least some evidence that their
policies are based on legitimate penological justifications.
Swift v. Lewis, 901 F.2d 730, 733 (9th Cir. 1990).
[15] The record in this case reflects that this policy furthers
the legitimate governmental interest of the Marshals Service
UNITED STATES v. HOWARD 11435
in carrying out its statutory mandate. 28 U.S.C. § 566(a) states
that “[i]t is the primary role and mission of the United States
Marshals Service to provide for the security . . . of the United
States [Courts].” The security concerns addressed by this pol-
icy emerge due to the Central District’s practice of conducting
proceedings in a large courtroom on the third floor of the
Roybal Courthouse, in the presence of multiple defendants,
where the risks of conflict, violence, or escape are heightened.
[16] The policy of requiring leg shackles for the initial
court appearance before a magistrate judge is reasonably
related to a legitimate security purpose. It imposes no greater
restriction than necessary on the in-custody defendants. The
record indicates that this policy is less restrictive than the pre-
vious policy requiring full restraints. The policy leaves in
place the option for a defendant to move the court for removal
of the shackles, and an individualized determination may be
made at the time of the motion as to whether extenuating cir-
cumstances warrant removal of the shackles. The policy is
also reasonably related to a legitimate security purpose
because understaffed security officers must provide court-
room security in a large and unsecure space. The policy
comes within the Supreme Court’s admonition that courts
should rely heavily on professional expertise in determining
the proper means for carrying out security responsibilities. In
Bell, the Supreme Court stated that
In determining whether restrictions or conditions are
reasonably related to the Government’s interest in
maintaining security and order and operating the
institution in a manageable fashion, courts must heed
our warning that “[s]uch considerations are pecu-
liarly within the province and professional expertise
of corrections officials, and, in the absence of sub-
stantial evidence in the record to indicate that the
officials have exaggerated their response to these
considerations, courts should ordinarily defer to their
expert judgment in such matters.”
11436 UNITED STATES v. HOWARD
441 U.S. at 540 n.23. We have found no evidence in the
record that the Marshals Service exaggerates the security con-
cerns in the Roybal Courthouse that are the basis of the pol-
icy.
[17] The district court’s judgment to uphold the policy is
AFFIRMED.