United States v. Horn ( 1994 )

  •                   UNITED STATES COURT OF APPEALS
                          FOR THE FIRST CIRCUIT
    No. 93-2041
                        UNITED STATES OF AMERICA,
                         RICHARD A. HORN, ET AL.,
                          Defendants, Appellees.
           [Hon. Joseph A. DiClerico, Jr., U.S. District Judge]
                          Selya, Circuit Judge,
                      Bownes, Senior Circuit Judge,
                        and Boudin, Circuit Judge.
         Ellen R. Meltzer, Special Counsel, Fraud Section, U.S. Dep't
    of Justice, with whom Peter E. Papps, United States Attorney, and
    Alexander Weir III, Trial  Attorney, U.S. Dep't of  Justice, were
    on brief, for the United States.
         Christopher R. Goddu and Peter G. Callaghan, with whom James
    M. Costello, Robert  E. McDaniel, Devine, Millimet & Branch P.A.,
    Steven M. Gordon, Shaheen, Cappiello,  Stein & Gordon, William E.
    Brennan,  Timothy  I. Robinson,  and  Brennan,  Caron, Lenehan  &
    Iacopino were on consolidated brief, for appellees.
                              July 25, 1994
              SELYA, Circuit Judge.   We decide  today a question  of
              SELYA, Circuit Judge.
    first  impression:   Do principles  of sovereign  immunity bar  a
    federal district court,  exercising its  supervisory power,  from
    assessing   attorneys'  fees  and   costs  against   the  federal
    government  in  a  criminal  case?    We   answer  this  question
    affirmatively and,  therefore, annul  the  district court's  fee-
    shifting orders.
              This  appeal  arises  out  of  unpardonable  misconduct
    committed by  a federal prosecutor who should  have known better.
    The  factual  background  of  the  criminal  case  in  which  the
    misconduct occurred    a multi-defendant  prosecution for,  inter
    alia,   conspiracy  to  defraud  a  federally  insured  financial
    institution    is memorialized in a recent opinion of this court.
    See United States v.  Lacroix,     F.3d    ,      (1st Cir. 1994)
    [No. 93-1845,  slip op.  at 2-4].   The  facts pertaining  to the
    misconduct are recounted in the opinion below.  See United States
    v.  Horn, 
    811 F. Supp. 739
    ,  741-44, 748-51 (D.N.H.  1992).  For
    purposes of deciding the abstract question of law that  confronts
    us today, we largely omit  the former set of facts, and  limn the
    latter in less than exegetic detail.
              In mid-1992, a federal  grand jury returned a 102-count
    indictment  against seven  individuals  allegedly  involved in  a
    conspiracy  to  market  and   sell  newly  constructed  homes  by
    fraudulent means.  The indictment charged violations of 18 U.S.C.
        2371, 1014 and 1344.  The prosecutors who controlled the case
    were members of the Justice Department's "New England Bank  Fraud
    Task  Force," so  called.   The  defendants,  none of  whom  were
    indigent, obtained counsel at their own expense.
              During pretrial proceedings,  the government made  more
    than  10,000 documents  available  for inspection  at the  Boston
    office of Aspen Systems,  an independent document management firm
    retained  by the  Task Force.   On November 9,  1992, an attorney
    representing defendants Matthew Zsofka,  John Lee, and Evangelist
    Lacroix visited the document repository to search for papers that
    might prove helpful in cross-examination.  A government paralegal
    volunteered to have a member  of Aspen's clerical staff photocopy
    any document that caught the lawyer's eye.  The attorney accepted
    the  offer.  When the paralegal mentioned this undertaking to the
    lead  prosecutor, she was  instructed to have  the Aspen employee
    make an  extra copy  of each  defense-selected  document for  the
    government's edification.   Defense  counsel was not  informed of
    this added flourish.
              To paraphrase the Scottish poet, the  best-laid schemes
    of mice  and prosecutors often go  awry.  Cf. Robert  Burns, To a
    Mouse (1785).   When the  photocopying of desired  documents took
    longer  than seemed  reasonable, the  defense attorney  smelled a
    rat.    A  cursory   investigation  uncovered  the  prosecution's
    experiment  in  duplicitous  duplication.   The  lawyer  promptly
    demanded that  the government  return its  copies  of the  papers
    culled by the  defense.  When  his demand fell  on deaf ears,  he
    immediately drafted a motion  to seal, filed the motion  with the
    district court, and servedit before theclose of business thatday.
              At this  delicate juncture, the lead  prosecutor poured
    kerosene  on a raging  fire.1   She did  not passively  await the
    court's ruling on the motion, but, instead, during the three days
    that  elapsed before the district  court took up  the motion, the
    prosecutor  reviewed  the  surreptitiously duplicated  documents,
    discussed  them  with two  of her  subalterns,  and used  them to
    prepare  a key prosecution witness  (in the presence  of a second
    possible  witness).  Thus, by  November 13, 1992,  when the court
    granted  the motion  to seal and  explicitly instructed  the lead
    prosecutor not to make  further use of the papers singled  out by
    the  defense   or  take  further  advantage   of  the  situation,
    appreciable damage already had been done.
              The lead  prosecutor then  made a bad  situation worse.
    Two  pages mysteriously  disappeared from  the lead  prosecutor's
    cache of ill-gotten documents before the set was submitted to the
    district  court for  sealing.   And  in  direct defiance  of  the
    court's order,  the lead prosecutor  prepared a complete  new set
    for her own  use.  Adding  insult to injury,  she next signed  an
    affidavit of  somewhat questionable veracity.   Finally, when she
    appeared before  the district court  to discuss the  bizarre game
         1The district court made a  deliberate decision to spare the
    lead prosecutor  public humiliation and revised  its order before
    publication  to  delete any  mention  of  the prosecutor's  name.
    Although  we, if  writing on  a pristine  page, might  not  be so
    solicitous,  we  honor  the  district  court's  exercise  of  its
    discretion, mindful that its choice has substantive implications.
    Cf.  United States  v.  Hasting, 
    461 U.S. 499
    , 506  n.5  (1983)
    (listing public chastisement of  errant attorney as a permissible
    form of sanction for misconduct).
    she  had  been  playing,  she  made  a  series  of   inconsistent
    statements evincing what  the court charitably called  a "lack of
    candor."  Horn, 811 F. Supp. at 749, 750 n.4.
              From  the outset, defendants  Zsofka, Lee,  and Lacroix
    had mounted a cooperative defense.   Thus, the three of them were
    equally  vulnerable  to  the   misconduct  that  occurred.    Not
    surprisingly, the trio moved to dismiss the case on the ground of
    prosecutorial  misconduct.2     The  government  objected.     In
    evaluating the  motions, the lower  court ruled that  the current
    selection  during the  discovery phase of  a pending  case offers
    insight  into  counsel's  thoughts,  and,  therefore, constitutes
    privileged  work product.   See id. at  745-47 (citing In  re San
    Juan  Dupont Plaza  Hotel Fire  Litig., 
    859 F.2d 1007
      (1st Cir.
    1988)).    After rejecting  the  government's  argument that  the
    privilege  had been  waived, the  court determined that  the lead
    prosecutor,  by furtively  copying and  thereafter reviewing  the
    selected  documents, crossed the ethical line.  The court further
    ruled that  this prosecutorial  misconduct not only  violated the
    defendants' work-product privilege, but also abridged their Fifth
    Amendment right to due process and their Sixth Amendment right to
         2For ease  in reference,  we call Zsofka,  Lee, and  Lacroix
    "the  appellees."   Withal,  we  note  that  the  district  court
    permitted three  other defendants    Richard Horn,  Patrick Dion,
    and Patricia  Dion   to join  in the request for  dismissal.  See
    Horn,  811 F. Supp. at 744-45.   Though they had no connection to
    the duped attorney,  these three  defendants ultimately  received
    modest fee  awards.  Notwithstanding, their  monetary interest in
    this  appeal,  they  eschewed  the filing  of  appellate  briefs.
    Consequently,  we make  no  further reference  to  them or  to  a
    seventh  defendant,  Susan  Yildiz,   who  entered  into  a  plea
    agreement before the misconduct occurred.
    effective assistance of counsel.  See id. at 747-52.
              Finding prejudice, but  not a stain so  indelible as to
    justify  dismissing the  indictment,  see id.  at 751,  the court
    stitched  together  a  serviceable  fabric  of narrowly  tailored
    remedies, see id. at 751-52.  The court ordered the government to
    provide the  defense with  summaries of its  witnesses' testimony
    and lists of its exhibits;  permit the defense to depose  the two
    potential  witnesses   who  had  been  exposed   to  the  bootleg
    documents; refrain  from referring at  trial to the  substance of
    the  documents  except in  response  to  defense references;  and
    remove  the  lead prosecutor  from  the case.   See  id.  at 752.
    Additionally,  the  court referred  the  lead  prosecutor to  the
    disciplinary committees of  her two bar associations, and, in the
    portion  of its order  that sparked the  current controversy, the
    court  directed the government to pay the fees and costs incurred
    by  the defendants in litigating  the misconduct issue.   See id.
    Although the court's original order was inexplicit concerning the
    source of its authority to  assess fees and costs, the  court, in
    denying the government's motion  to reconsider, explained that it
    grounded this sanction in the judiciary's supervisory power.  See
    id. at 753-54.
              Zsofka,  Lee, and  Lacroix stood  trial early  in 1993.
    They  were each  convicted  on  at  least  one  count,  and  were
    sentenced  in  July.3   On August  18,  1993, the  district court
         3The  other four  defendants pled  guilty at  various times.
    They were all sentenced in May of 1993.
    quantified  its  earlier  order,   assessing  a  grand  total  of
    $46,477.80  in fees  and costs.   The  other sanctions  have been
    carried out and the defense no longer presses  the claim that the
    district court should  have dismissed the indictment.  Hence, all
    that  remains of  the case  is the  government's appeal  from the
    assessment of fees.
              The government contests the award chiefly on the ground
    that  it  is prohibited  by  principles  of sovereign  immunity.4
    Extracted  from its  complicated  factual  predicate, drained  of
    rancor,   and  separated   from  other,   essentially  extraneous
    disputes, this appeal requires us to serve as the dispatcher at a
    crossing where two powerful engines   the judiciary's supervisory
    power  and  the  government's  sovereign  immunity     are  on  a
    collision course.
              In  ascertaining what  happens  when  doctrines  clash,
    derivation frequently becomes  important.  Thus, we turn  to this
                          A.  Supervisory Power.
              Supervisory  power, sometimes known  as inherent power,
    encompasses those powers which, though "not specifically required
    by  the Constitution or the  Congress," United States v. Hasting,
         4The  government  also  maintains  that it  could  not  have
    violated  any  applicable work-product  privilege, and  cannot be
    penalized  for so  doing,  because the  defense  waived any  such
    privilege by making voluntary  disclosures to a government agent,
    namely,  the  Aspen office  worker.   Because  we agree  that the
    government is shielded  from the monetary award by  principles of
    sovereign immunity, we take no view of this asseveration.
    461 U.S. 499
    , 505  (1983),  are nonetheless  "necessary  to the
    exercise of all others," Roadway Express, Inc. v. Piper, 
    447 U.S. 752
    ,  764 (1980)  (quoting United  States v.  Hudson, 11  U.S. (7
    Cranch)  32, 34 (1812)).  See generally United States v. Santana,
    6 F.3d 1
    , 9-10 (1st Cir. 1993).
              Although the  doctrine's ancestry can be  traced to the
    early days of the Republic, see, e.g., Hudson, 11 U.S. at 34; see
    also  Ex parte  Robinson,  86 U.S.  (19  Wall.) 505,  510  (1873)
    (observing  that the "moment the courts of the United States were
    called into existence .  . . they became possessed  of [inherent]
    power"),  a full-scale  genealogical  dig would  serve no  useful
    purpose.  It suffices to say that the doctrine emerged in  modern
    form roughly a half-century ago, see McNabb v. United States, 
    318 U.S. 332
    , 341 (1943), and it has since developed most robustly in
    the area of criminal procedure, see Sara Sun Beale, Reconsidering
    Supervisory  Power  in Criminal  Cases, 84  Colum. L.  Rev. 1433,
    1435-64 (1984).  While  supervisory power is sometimes understood
    to  derive from  the Constitution,  either as  incidental to  the
    Article III  grant of judicial power,  see id. at 1464-83,  or as
    implicit  in  the  separation  of powers,  see  Eash  v.  Riggins
    Trucking, Inc., 
    757 F.2d 557
    , 562  (3d Cir. 1985), the Court  has
    made it clear that,  at least as a general  proposition, Congress
    may limit the  power of lower federal courts  by rule or statute,
    see Chambers v. NASCO, Inc., 
    501 U.S. 32
    , 47 (1991).5
         5It  is not yet settled whether some residuum of the courts'
    supervisory power is so integral to the judicial function that it
    may  not be regulated by Congress (or, alternatively, may only be
              In what  is not necessarily an  exhaustive listing, the
    Court  has recognized  three  purposes to  which the  supervisory
    power may be dedicated:  "to implement a  remedy for violation of
    recognized rights, to preserve judicial integrity . . . and . . .
    as a remedy  designed to  deter illegal conduct."   Hasting,  461
    U.S. at  505 (internal citations  omitted).  Invoking  this third
    theme,  we  have  warned that  we  will  consider unleashing  the
    supervisory  power  in  criminal cases  "[w]hen  confronted  with
    extreme   misconduct  and   prejudice,"  in   order  "to   secure
    enforcement of `better  prosecutorial practice  and reprimand  of
    those who fail  to observe it.'"   United  States v. Osorio,  
    929 F.2d 753
    , 763 (1st Cir. 1991) (quoting United States v. Pacheco-
    889 F.2d 301
    , 310-11 (1st Cir. 1989)).
              The  supervisory   power  has  definite  limits.    See
    Hasting, 461 U.S. at  505.  For one thing,  the supervisory power
    doctrine is interstitial in  the sense that it applies  only when
    there is no  effective alternative provided by rule,  statute, or
    constitutional clause.   See Chambers,  501 U.S. at  50-51.   For
    another  thing, even  when  inherent powers  legitimately can  be
    invoked,    they   must   be   exercised   with   restraint   and
    circumspection,  both "because  [they] are  shielded  from direct
    regulated up  to a certain  point).  In this  connection, we note
    that, although some courts of appeals have attempted to subdivide
    the  supervisory  power  into  three categories  ranged  along  a
    continuum   according   to  their   degree  of   necessity,  and,
    concomitantly,  the  extent  to  which they  may  be  subject  to
    congressional limitation, see In  re Stone, 
    986 F.2d 898
    , 901-03
    (5th Cir. 1993); Eash, 757 F.2d at 562-63, the Supreme  Court has
    expressly declined to adopt this taxonomy, see Chambers, 501 U.S.
    at 48 n.12.
    democratic  controls,"  Roadway Express,  447  U.S.  at 764,  and
    "[b]ecause of their very potency," Chambers, 501 U.S. at 44.
              In  particular,  it  is  inappropriate  for  courts  to
    attempt to use the supervisory power to justify an extreme remedy
    when, short  of such heroic  measures, the  means are at  hand to
    construct a  satisfactory anodyne  more narrowly tailored  to the
    objective.   See  Hasting, 461  U.S. at  506 (overturning  use of
    supervisory  power  to  deter  prosecutorial  misconduct  through
    reversal of conviction).  It is equally inappropriate for a court
    to gear  up the  supervisory power in  an effort to  circumvent a
    limitation  firmly established under  conventional doctrine.  See
    Bank of Nova Scotia v. United States, 
    487 U.S. 250
    , 254-55 (1988)
    (overturning use of supervisory power to evade the harmless error
    inquiry;  United States v.  Payner, 
    447 U.S. 727
    ,  735-36 (1980)
    (overturning use of supervisory power to craft a new exclusionary
    rule  designed to  reach situations  in which  the constitutional
    exclusionary  rule  is not  triggered).    Illustrating the  same
    point,  this  court  has  ruled   it  inappropriate  to  use  the
    supervisory power to  redress misconduct that  did not result  in
    harm, see Santana, 6 F.3d at 11 (citing cases), or  that resulted
    in harm to someone other than the complaining defendants, see id.
              It  has  been squarely  held  that a  court's  array of
    supervisory powers  includes the power to  assess attorneys' fees
    against   either   parties  or   their  attorneys   in  befitting
    situations.    See Roadway  Express, 447  U.S.  at 764-67;  In re
    Cordova Gonzalez,  
    726 F.2d 16
    ,  20 (1st Cir.  1984).  The  Court
    recently  reaffirmed this rule, see Chambers, 501 U.S. at 49, and
    clarified its contours.  While a court may invoke its supervisory
    power to  assess  fees only  when  the  fees are  intended  as  a
    sanction  responding to a display of bad faith, the bad faith may
    occur  in connection with  "a full  range of  litigation abuses."
    Id.  at 46.  Moreover, even  though a particular abuse is covered
    by  a specific  statute or  rule, a  court  still may  invoke its
    supervisory power to  address the abuse if the  existing remedial
    provision is inadequate to the task.  Id. at 50-51.
                         B.  Sovereign Immunity.
              The principle  of  sovereign immunity,  in its  primary
    form, dictates that the United States may not be sued except with
    its  consent.  This tenet was first  stated, ipse dixit, by Chief
    Justice Marshall in Cohens  v. Virginia, 19 U.S. (6  Wheat.) 264,
    411-12  (1821) (dictum).  It  has been reaffirmed  as recently as
    this past term.  See FDIC v. Meyer, 
    114 S. Ct. 996
    , 1000 (1994);
    see also Gonsalves v. IRS,  
    975 F.2d 13
    , 16 (1st Cir.  1992) (per
              The  secondary principle that monetary penalties cannot
    be collected from  the federal government absent  its consent was
    first articulated,  in the narrow  context of  an assessment  for
    costs, in United  States v.  Hooe, 7  U.S. (3  Cranch) 73,  90-91
    (1805).   However, the Hooe  Court made no  explicit reference to
    sovereign  immunity, and it was not until four decades later that
    the  two  principles formally  converged,  see  United States  v.
    McLemore,  45 U.S. (4 How.)  286, 287-88 (1846).   They have been
    taken in tandem ever since in cases involving costs.  See,  e.g.,
    United States v.  Bodcaw, 
    440 U.S. 202
    , 203-04  n.3 (1979)  (per
    curiam);  Fairmont Creamery Co. v. Minnesota,  
    275 U.S. 70
    , 73-74
    (1927);  United States v. Chemical  Found., Inc., 
    272 U.S. 1
    , 20
    (1926); Shewan v. United States, 
    267 U.S. 86
    , 87 (1925).
              The Supreme Court recently removed any vestige of doubt
    that  may  have lingered  as  to whether  these  cases envisioned
    sovereign  immunity as  a  bar  not only  to  costs  but also  to
    attorneys'  fees.6  See Ruckelshaus v. Sierra Club, 
    463 U.S. 680
    685 (1983)  (holding that, waiver aside,  sovereign immunity bars
    the shifting  of attorneys' fees against  the federal government)
    (citing Alyeska Pipeline Serv. Co. v. Wilderness Soc'y,  
    421 U.S. 240
    , 267-68 &  n.42 (1975)).   Since then,  the proposition  that
    sovereign  immunity  bars the  recovery  of  attorneys' fees  has
    become  ensconced at the circuit level.  See, e.g., In re Turner,
    14 F.3d 637
    , 640 (D.C. Cir. 1994) (per curiam); In  re Perry, 
    882 F.2d 534
    , 543-44 (1st Cir. 1989); Campbell v. United States, 
    835 F.2d 193
    , 195 (9th Cir. 1987);  Ewing & Thomas, P.A. v. Heye, 
    803 F.2d 613
    ,  616  (11th  Cir.  1986).    Civil  and administrative
    penalties  against  the  government   are  subject  to  the  same
    prohibition,  see, e.g., Department of Energy v. Ohio, 
    112 S. Ct. 1627
    , 1631 (1992), as  is interest on (congressionally permitted)
         6We think  it is unlikely that such  doubts were entertained
    in earnest.  After  all, Congress would not have felt impelled to
    enact the many statutes waiving  immunity to attorneys' fees, see
    1 Mary Frances Derfner & Arthur D. Wolf, Court Awarded Attorneys'
    Fees     5.03[12][b]  (1993) (cataloguing  statutes),  unless  it
    understood that, in the absence of such statutes, attorneys' fees
    would not be recoverable against the federal sovereign.
    court  awards, see, e.g., Library  of Congress v.  Shaw, 
    478 U.S. 310
    ,  314 (1986).  Viewed against this austere backdrop, we think
    it  is fair to say  that, by common  understanding, the secondary
    principle of sovereign immunity operates on the broadest possible
    level:  it stands as an obstacle to virtually all direct assaults
    against  the public fisc, save only those incursions from time to
    time authorized by Congress.
              Those  who  seek  a  deep understanding  of  the  law's
    profundities are likely to  find sovereign immunity a frustrating
    topic, for, from the very beginning, sovereign immunity has  been
    "accepted as  a point  of departure unquestioned,"  Cunningham v.
    Macon & Brunswick R.R., 
    109 U.S. 446
    , 451 (1883), or, put another
    way,  simply taken at face  value and "treated  as an established
    doctrine,"  United  States  v.  Lee, 
    106 U.S. 196
    ,  207 (1882).
    Although  we know relatively little, we do know that the doctrine
    derives from the  common law  tradition that the  king should  be
    insulated  from suit  absent his  consent.   See,  e.g., Fairmont
    Creamery, 275 U.S. at 73; see  also Chisolm v. Georgia, 2 U.S. (2
    Dall.) 419,  435-45 (1793) (Iredell,  J., dissenting) (discussing
    historical origins of doctrine).   To  be  sure,  this  tradition
    could not be  transplanted root  and branch into  a system  where
    sovereignty  was diffused  both  vertically  (by federalism)  and
    horizontally  (by the  separation  of powers).   Accordingly,  in
    regard to the federal government, the law adapted the doctrine in
    such a way that  Congress inherited the king's sovereign  role of
    granting  consent  to  be sued.    See  Chisolm,  2 U.S.  at  436
    (Iredell, J., dissenting).  One consequence of this adaptation is
    that  executive officers  lack  the power  to  waive the  federal
    government's sovereign immunity.  See United States v.  Shaw, 
    309 U.S. 495
    ,  501 (1940); Munro  v. United States,  
    303 U.S. 36
    ,  41
    (1938); Chemical Found., 272 U.S. at 20-21.
              Courts  have mentioned two rationales for retaining the
    adapted  doctrine  in a  democratic  society.   Some  judges have
    theorized that  it  is necessary  to  protect the  operations  of
    government from  undue interference and  financial embarrassment.
    See,  e.g., Larson v. Domestic & Foreign Commerce Corp., 
    337 U.S. 682
    , 704 (1949); Lee, 106 U.S. at 226 (Gray, J., dissenting); The
    Siren, 74 U.S. (7 Wall.) 152, 154 (1868).  Other judges, taking a
    more positivist view  of law,  have suggested that  the right  to
    recover against the government cannot exist unless the government
    itself  deigns to create such  a right.7   See, e.g., Kawananakoa
    v. Polybank, 
    205 U.S. 349
    , 353 (1907).
              Regardless  of  whether  sovereign  immunity  rests  on
    tradition, reason, or inertia,  the doctrine is deeply entrenched
    in American law.   Withal, Congress  has liberally exercised  its
    prerogative to abolish particular manifestations of the doctrine.
         7For   its   part,   the  scholarly   community   has   been
    overwhelmingly hostile  to the  doctrine, often denouncing  it as
    mischievous  formalism,   see  Kenneth  Culp  Davis,   Suing  the
    Government by Falsely Pretending to Sue an Officer, 29 U. Chi. L.
    Rev. 435,  436-38 (1962), with  little basis in  English history,
    see  Louis  L.  Jaffe,  Suits Against  Government  and  Officers:
    Sovereign  Immunity,  77  Harv.  L.  Rev.  1,  2-19  (1963),  and
    antithetical to the democratic spirit, see John E. H. Sherry, The
    Myth that the King  Can Do No Wrong, 22 Admin.  L. Rev. 39, 56-57
    See, e.g.,  28 U.S.C.    1346(b), 2671-2678,  2680 (Federal Torts
    Claims  Act)  (subjecting  the  government to  suit  for  various
    torts); 28  U.S.C.   1346(a),  1491 (Tucker Act)  (subjecting the
    government  to suit for damages  in, inter alia, contract cases);
    see also Derfner &  Wolf, supra note 6 (listing  statutes waiving
    governmental  immunity  to claims  for  counsel  fees in  various
    specialized contexts); cf.   18 U.S.C.   3006A  (Criminal Justice
    Act) (requiring government to pay counsel fees and other expenses
    on behalf of indigent criminal defendants).
              In considering legislation that  is claimed to have the
    effect of  waiving sovereign  immunity in  a particular  class of
    cases, courts usually  have been guided by two  maxims.  First, a
    waiver of sovereign immunity must be definitely and unequivocally
    expressed.   See  United States  v. Mitchell,  
    445 U.S. 535
    , 538
    (1980); In re Perry, 882 F.2d at 544.  The Court has gone  so far
    as  to suggest that the unequivocal expression must appear in the
    text of the statute itself.  See United States v. Nordic Village,
    112 S. Ct. 1011
    , 1016  (1992); Ardestani v. INS, 
    112 S. Ct. 515
    , 520 (1991).   Second, a waiver of sovereign  immunity always
    is to be construed  strictly in favor of the  federal government,
    and must not be  enlarged beyond such boundaries as  its language
    plainly requires.   See Nordic  Village, 112 S.  Ct. at  1014-15;
    Ruckelshaus, 463 U.S. at 685; In re Perry, 882 F.2d at 544.
              Applying  these  tests, several  courts have  held that
    monetary  sanctions  for  litigation  abuse  are  not  barred  by
    sovereign immunity in certain classes of cases on the theory that
    an  enacted statute,  typically the Equal  Access to  Justice Act
    (EAJA), 28 U.S.C.   2412  (allowing prevailing parties to recover
    fees  from the  government  in certain  civil and  administrative
    proceedings), serves  to waive  the government's immunity.   See,
    e.g., M. A.  Mortensen Co. v. United States, 
    996 F.2d 1177
    , 1181-
    82 (Fed.  Cir. 1993) (holding  that the  EAJA works  a waiver  of
    immunity sufficient to allow the imposition of fees under Fed. R.
    Civ. P. 37); In re Good Hope Indus., Inc., 
    886 F.2d 480
    , 482 (1st
    Cir. 1989) (same,  in respect to fees under 28  U.S.C.   1912 and
    Fed. R.  App. P. 38); Adamson  v. Bowen, 
    855 F.2d 668
    , 672 (10th
    Cir. 1988) (same, in  respect to monetary sanction under  Fed. R.
    Civ. P. 11); United  States v. Gavilan Joint Comm'y  Coll. Dist.,
    849 F.2d 1246
    , 1251  (9th Cir. 1988) (similar); see  also Schanen
    v. United States DOJ, 
    798 F.2d 348
    , 350 (9th Cir. 1985) (imposing
    monetary penalty against government  under Fed. R. Civ. P.  60(b)
    without addressing sovereign immunity); United States v. National
    Medical Enters.,  Inc.,  
    792 F.2d 906
    ,  910-11 (9th  Cir.  1986)
    (upholding penalty against government  imposed under Fed. R. Civ.
    P. 37(b)  without addressing sovereign immunity).   Two panels in
    the Ninth Circuit have suggested that the Civil Rules themselves,
    having been authorized   by Congress, may provide the basis for a
    waiver of sovereign  immunity.  See  Mattingly v. United  States,
    939 F.2d 816
    , 818  (9th Cir. 1991)  (discussing Fed. R.  Civ. P.
    11); Barry v. Bowen, 
    884 F.2d 442
    , 444 (9th Cir. 1989) (same).8
         8At least one writer  has expressed grave reservations about
    these  decisions.  See Timothy  J. Simeone, Comment,  Rule 11 and
    Federal  Sovereign  Immunity:   Respecting  the  Explicit  Waiver
              At the same time,  monetary penalties under court rules
    have  been  found to  be barred  by  sovereign immunity  in other
    contexts.  See, e.g., United States v. Woodley,  
    9 F.3d 774
    , 781-
    82 (9th Cir. 1993) (holding that neither a local rule nor Fed. R.
    Crim. P. 16(d)(2) works a waiver).   And, moreover, even though a
    federal  statute, 18  U.S.C.    401,  confers  broad powers  upon
    federal  district courts  to punish  contumacious  conduct,9 most
    courts  continue  to hold  that  sovereign  immunity bars  court-
    imposed fines for  contempt against the government.   See Coleman
    v. Espy, 
    986 F.2d 1184
    ,  1191-92 (8th Cir.  1993) (holding  that
    compensatory  contempt   sanctions   are  barred   by   sovereign
    immunity); Barry, 884 F.2d at 444 (holding that coercive contempt
    sanctions are barred  by sovereign immunity); see also McBride v.
    955 F.2d 571
    , 576-77 (8th Cir. 1992) (dictum; expressing
    grave  doubt that  compensatory contempt  sanctions can  override
    Requirement, 60 U. Chi. L. Rev. 1043, 1052-57 (1993) (criticizing
    cases  employing   the  narrow  and  broad   rationale  alike  as
    inconsistent with the  Court's rigid adherence in recent years to
    the unequivocal expression requirement).
         9The statute provides:
              A court of the United States shall have power
              to  punish  by fine  or imprisonment,  at its
              discretion, such contempt  of its  authority,
              and none other, as  
                (1)   Misbehavior  of  any  person  in  its
              presence or  so near thereto  as to  obstruct
              the administration of justice;
                (2) Misbehavior of  any of its  officers in
              their official transactions;
                (3)  Disobedience  or  resistance   to  its
              lawful writ, process, order, rule, decree, or
    18 U.S.C.   401.
    sovereign immunity).   But see Armstrong  v. Executive Office  of
    the  Pres., 
    821 F. Supp. 761
    , 773 (D.D.C. 1993) (holding, without
    undertaking  any  waiver  analysis,  that   a  coercive  contempt
    sanction is not barred by sovereign immunity).
              To our knowledge, no court has considered on the merits
    the  applicability of  sovereign immunity  to a  monetary penalty
    assessed under  the judiciary's  supervisory power in  a criminal
              In this  case, the doctrines of  sovereign immunity and
    supervisory  power, each  formidable  in its  own  right, are  in
    unavoidable  tension.11  Despite the fact  that, in recent years,
         10Although  the  district  court  in  Woodley  shifted  fees
    against the  government partially in reliance  on its supervisory
    power, the  Ninth Circuit overturned the fee  award, reasoning on
    this issue that the availability of other sanctions precluded the
    court from unleashing its supervisory power.  See Woodley, 9 F.3d
    at  781-82.   The  ensuing dictum  to  the effect  that sovereign
    immunity does  not bar fee-shifting under  the supervisory power,
    see id. at 782, is both gratuitous and unsupported.
              Our  research  has  also unearthed  an  occasional near
    miss.   For example, in Andrulonis v. United States, 
    724 F. Supp. 1421
    , 1537 (N.D.N.Y. 1989), aff'd in part, rev'd in part on other
    924 F.2d 1210
     (2d Cir. 1991), vacated on other grounds,
    112 S. Ct. 39
      (1992), the court granted  a motion for sanctions
    against  the federal government made  under Rule 11,  28 U.S.C.  
    1926,  and the  court's inherent  powers, without  specifying the
    source  for  the sanction  imposed.   See  also United  States v.
    Prince, 1994  U.S.  Dist. LEXIS  2962  at *1-*4  (E.D.N.Y.  1994)
    (withdrawing  assessment of  jury costs  against U.S.  Attorney's
    Office under court's supervisory  power, in the face of  a motion
    for  reconsideration  arguing  constraints  imposed  by sovereign
         11We see no  way to avoid this tension by  upholding the fee
    award  on  an alternative  ground.    While government  counsel's
    disobedience  and deception of the court  perhaps could have been
    punished under the  contempt statute,  18 U.S.C.    401, and  the
    entire  fiasco, if conceived as  a discovery violation within the
    the domain of sovereign  immunity has tended to contract  and the
    domain of supervisory power has tended to expand, we believe that
    sovereign immunity  ordinarily will trump supervisory  power in a
    head-to-head confrontation.  The critical determinant is that the
    doctrines are of fundamentally different character:   supervisory
    powers are  discretionary and carefully  circumscribed; sovereign
    immunity is  mandatory and  absolute.  Consequently,  whereas the
    former  may be invoked in  the absence of  an applicable statute,
    the  latter must  be  invoked in  the  absence of  an  applicable
    statute; and  whereas the  former may be  tempered by a  court to
    impose  certain remedial  measures  and to  withhold others,  the
    latter must be  applied mechanically,  come what may.   In  other
    words, unlike the  doctrine of supervisory power, the doctrine of
    sovereign  immunity proceeds by fiat:  if Congress has not waived
    the  sovereign's immunity  in  a given  context,  the courts  are
    obliged to honor that immunity.  See, e.g., Meyer, 114  S. Ct. at
    ambit  of Fed. R. Crim.  P. 16(b)(2), might  have been punishable
    under the broadly worded  sanction authority of Fed. R.  Crim. P.
    16(d)(2), these possibilities afford no hope of  averting a head-
    on collision  between judicial power and sovereign  immunity.  In
    the first place, the district court's order made it pellucid that
    supervisory  power comprised  the  sole foundation  on which  the
    monetary sanction rested.  See Horn, 811 F. Supp. at  753-54.  We
    will  not go behind such  a determination and  speculate what the
    court  might (or  might  not)  have  done  had  it  analyzed  the
    prosecutor's  misconduct under  a different  standard.   See R.W.
    Int'l  Corp. v.  Welch  Foods, Inc.,  
    937 F.2d 11
    , 19  (1st Cir.
    1991).  In  the second  place, neither section  401 nor  Criminal
    Rule 16  offer a  vehicle  powerful enough  to overrun  sovereign
    immunity.  See Woodley,  9 F.3d at 781-82  (holding that Fed.  R.
    Crim. P. 16 does not work  a waiver of sovereign immunity); Espy,
    986  F.2d at 1191 (holding that  18 U.S.C.   401  does not work a
    waiver  of  sovereign immunity).    Thus,  dressing the  district
    court's decision  in different, less  confrontational garb  would
    not sidestep the imminent doctrinal clash.
              The government tells  us that this is  precisely such a
    case:  since Congress has not acted, the government's immunity to
    fee awards in criminal cases remains intact.  At first blush, the
    conclusion  seems sound.    We are  able  to discern  only  three
    avenues  by which  appellees arguably  might tip-toe  around this
    result.  We trace each of these routes.
              The most obvious detour around the barrier presented by
    sovereign immunity depends on waiver.   If appellees can identify
    some statute or rule,  and show that Congress thereby  lifted the
    federal  government's  sovereign  immunity  in   this  particular
    context, they would  have an unobstructed path.   But there is no
    such  statute or rule applicable  here   and  appellees, to their
    credit, do not pretend that one exists.
              The  second detour  embodies  the  assumption that,  in
    appropriate  cases, the  judiciary possesses  the naked  power to
    override  sovereign immunity.  We  believe that this  avenue is a
    dead end.   One of the main purposes of  sovereign immunity is to
    guard against  judicial interference in  executive functions, see
    Larson, 337 U.S.  at 704, and  the notion of a  judicial override
    operating ex proprio vigore would largely frustrate this purpose.
    In  any event,  the proposed  detour runs  headlong into  a stone
    wall:  Congress, not the  courts, is the government's  authorized
    representative for  purposes of waiving sovereign  immunity.  See
    supra p.13 and cases cited; see also Hans  v. Louisiana, 
    134 U.S. 1
    , 21 (1890) (declaring that, because the "legislative department
    of a State represents its polity and its will," "the legislature,
    and  not the  courts, is  the judge"  of when  sovereign immunity
    ought be waived).
              A  third possible route around  the barrier is to argue
    that,  for whatever  reason,  the federal  government's sovereign
    immunity does  not extend to monetary sanctions, such as punitive
    fee awards, levied under a court's supervisory power.  It is this
    avenue  that  appellees  most   vigorously  explore.    Shorn  of
    rhetoric,  they assert  three  basic reasons  why  the shield  of
    immunity does not  cover such situations.  We mull each reason in
              1.   Reward v. Punishment.   Appellees assert that, for
              1.   Reward v. Punishment.
    purposes  of  sovereign   immunity,  the  law   historically  has
    precluded  fee-shifting only when it  is employed as  a reward to
    prevailing  parties and not when  it is employed  as a punishment
    for  litigation abuse.   This  foray suggests  that what  we have
    called  the secondary principle of sovereign immunity   the tenet
    holding  that  the government  is  immune  to monetary  penalties
    imposed  in court  cases   precludes  fee-shifting only  when the
    shifted fees are intended  to reward a prevailing party,  and not
    when they are meant to reprimand a misbehaving party.
              Appellees starts out  on solid ground in the sense that
    the older  cases discussing the secondary  principle of sovereign
    immunity  all  involved  monetary  awards to  prevailing  parties
    directly attributable to litigatory success.  See, e.g., Fairmont
    Creamery, 275 U.S. at 73-74; McLemore, 45 U.S. at 288.  But those
    cases were cases involving costs (or fees taxable as costs)   and
    costs always have been awarded to prevailing parties, at least in
    the  court's discretion.12   Because  costs are  invariably taxed
    pursuant to a  statute (or  a rule having  statutory force)  that
    provides  for the award, the fact that they are routinely awarded
    against the government in civil cases (under 28 U.S.C.   2412) is
    of no assistance to the appellees in this case.
              Once  we move beyond  the realm of  costs to attorneys'
    fees,  appellees' argument makes very little sense.  Apart from a
    statute or rule so providing, counsel fees cannot be shifted as a
    reward  to a  prevailing party  in any  case, civil  or criminal,
    whether  or not the  government is the  fee target.   See Alyeska
    Pipeline, 421 U.S.  at 247 (limning "American rule"). Taking into
    account  the ground  rules  of  American  litigation,  appellees'
    argument  must  mean  that  sovereign immunity  bars  fee  awards
    against  the government only when  the fees are  assessed under a
         12At  early common  law,  costs were  awarded to  prevailing
    parties  as a  matter of  course  in all  cases.   See Arthur  L.
    Goodhart, Costs, 38  Yale L.J.  849, 851-53 (1929).   Before  the
    adoption of  the Civil  Rules,  costs were  generally awarded  to
    prevailing parties as a matter of right in actions at law, and at
    the  judge's discretion  on  the  equity  side.    See  Ex  parte
    253 U.S. 300
    , 317-18 (1920).  In modern practice, costs
    are commonly taxed against non-prevailing parties in civil cases,
    see Crawford  Fitting Co. v. J.  T. Gibbons, Inc., 
    482 U.S. 437
    441 (1987); In re Two Appeals Arising out of the  San Juan Dupont
    Plaza  Hotel Fire Litig., 
    994 F.2d 956
    , 962-64  (1st Cir. 1993);
    see also Fed.  R. Civ. P. 54(d), although  the judge retains some
    discretion,  see   In  re   Two   Appeals,  994   F.2d  at   962.
    Theoretically,  costs  are  similarly taxable  against  convicted
    defendants in criminal  cases, see 28 U.S.C.    1918(b), although
    the  actuality is seldom seen.  The statute listing categories of
    costs  generally available,  28  U.S.C.    1920, applies  to both
    civil and criminal  cases.   See United States  v. Procario,  
    361 F.2d 683
    , 684 (2d Cir. 1966) (per curiam).
    fee-shifting  statute or  rule.   But  the  case law  is  arrayed
    against appellees' position, for the courts have never structured
    the  secondary principle  of  sovereign immunity  in such  an odd
    configuration.    Cf.,  e.g.,  id.  at  267-68  (stating  without
    qualification  that  fee  awards  against  the  government,   "if
    allowable at  all, must be  expressly provided for  by statute").
    What  is more, a number of courts, ruling on comparable bad-faith
    sanctions, have either held  that sovereign immunity applies, see
    supra pp.  16-17, or  taken for  granted that  sovereign immunity
    would apply absent a waiver, see supra pp. 15-16.13
              The  straw that  snaps  the camel's  back  is that  the
    appellees have offered no plausible explanation why the shield of
    immunity  should  leave  the  government exposed  to  fee  awards
    designed as  sanctions for  litigation abuse, but  simultaneously
    protect  it from fees or other monetary awards routinely given to
    prevailing  parties  as  virtual  bonuses  to  reward  litigatory
    success.   The simple, unarguable  fact is that any  and all such
    fee awards  would deplete the public  coffers, and, consequently,
         13In this regard, fines for civil contempt under 18 U.S.C.  
    401,  quoted  supra  note  9,  are of  special  interest  because
    contempt originated  as an aspect  of the supervisory  power, see
    Shillitani v. United  States, 
    384 U.S. 364
    , 370  (1966), and  it
    continues to serve essentially "the same purpose" as do sanctions
    imposed under the supervisory power  in respect to litigants' and
    lawyers' bad-faith  tactics, Chambers,  501 U.S. at  53 (citation
    omitted).   The better reasoned decisions hold that, when the two
    doctrines lock  horns, contempt is barred  by sovereign immunity.
    See  supra p. 17.   Although these decisions  have little bearing
    here because  they turn,  explicitly or implicitly,  on statutory
    interpretation, they  do show that  the principle of  immunity to
    monetary  damages is  understood  by thoughtful  courts to  sweep
    they all must stand  on the same footing vis-a-vis  principles of
    sovereign immunity.  It follows inexorably that, absent a statute
    or  rule  effectuating  a  waiver,  the  secondary  principle  of
    sovereign   immunity   bars  fee-shifting   awards   against  the
    government, whatever their intended purpose.
              2.   The  Eleventh Amendment  Analogy.  It  is "settled
              2.   The  Eleventh Amendment  Analogy.
    that an award of attorney's fees  ancillary to prospective relief
    is  not subject  to the  strictures  of the  Eleventh Amendment."
    Missouri v. Jenkins, 
    491 U.S. 274
    , 279 (1989); see also Fortin v.
    692 F.2d 790
    , 797-98 (1st Cir.  1982) (holding, on
    same theory, that avoidable fines  for contempt against the State
    are not barred by the Eleventh Amendment).  Appellees urge us  to
    extend  this exception to the  law of federal sovereign immunity.
    Although this idea is not original, see McBride,  955 F.2d at 582
    (Lay,   C.J.,   concurring   and  dissenting)   (making   similar
    suggestion),  embracing it would entail  a leap of  faith that we
    are unwilling to take.
              The  Eleventh  Amendment   focuses  exclusively  on  an
    immunity  shared by the several  States.  See  U.S. Const. amend.
    11;  see  also  Hans, 134  U.S.  at  10-11  (explicating text  of
    Eleventh  Amendment).    Freely  transposing  Eleventh  Amendment
    exceptions to  the precincts  patrolled by principles  of federal
    sovereign  immunity would create  a dysfunctional jurisprudential
    motley and, moreover, would constitute an impermissible deviation
    from a course previously charted by the Court.  Jenkins, the very
    case bruited by appellees, definitively rejects the argument they
    advance.  There,  the Court explained  that, had the  controversy
    "dealt with  the sovereign  immunity of the  Federal Government,"
    then  in  such  event  there  would  have  been "no  prospective-
    retrospective  distinction as  there  is when  .  . .  it  is the
    Eleventh  Amendment  immunity  of  a  State  that is  at  issue."
    Jenkins, 491  U.S. at 282  n.4; see also  In re Shafer,  
    146 B.R. 477
    , 480 n.6 (D. Kan. 1992) (echoing Jenkins footnote).
              3.  Separation of  Powers.  Appellees' final contention
              3.  Separation of  Powers.
    is  that stripping away the power to assess monetary penalties in
    criminal cases would leave courts  defenseless against litigation
    abuses committed by the government   which is, after all, a party
    to every criminal case in the federal system   and thereby  would
    offend the separation of  powers.  See McBride,  955 F.2d at  582
    (Lay,  C.J.,  concurring  and  dissenting)   (developing  similar
    thesis);  cf. Chilcutt v. United  States, 
    4 F.3d 1313
    , 1327 (5th
    Cir.  1993)  (making   comparable  suggestion  in   significantly
    different context;  upholding  monetary sanction  levied  against
    federal  prosecutor  personally).     This  contention  seriously
    overstates the case, and, in all events, asks us to do Congress's
              The  fact   that  sovereign  immunity   forecloses  the
    imposition of  monetary sanctions against the  federal government
    in criminal cases  does not leave federal courts  at the mercy of
    cantankerous  prosecutors.   Courts  have many  other weapons  in
    their armamentarium.  This case aptly illustrates the point.  The
    district  judge  ordered, among  other  things,  the removal  and
    quarantine  of the  lead prosecutor,  the suppression  of tainted
    documents, and  the advance disclosure of  the government's trial
    strategy.  In  addition, the  judge could have  ordered the  lead
    prosecutor to pay the  accumulated fees, see Chilcutt, 4  F.3d at
    1319 (upholding  order that  government counsel pay,  inter alia,
    for time  spent by defense  counsel at contempt  hearing, without
    being reimbursed); United States  v. Sumitomo Marine &  Fire Ins.
    617 F.2d 1365
    , 1370-71 (9th Cir. 1980) (upholding imposition
    of  monetary  sanction  for discovery  abuse  against  government
    attorney as the "only available target for such sanctions"),  but
    did  not see  fit to  do so.14   He also  could have  ordered the
    prosecutor  to attend  ethics  seminars at  her own  expense, see
    Chilcutt,  4  F.3d   at  1319,  dispatched  her  to  the  Justice
    Department's internal  disciplinary office, see Hasting, 461 U.S.
    at  506  n.5,  or  publicly reprimanded  the  Justice  Department
    itself, see United States  v. Prince, 1994 U.S. Dist.  LEXIS 2962
    at *1-*4 (E.D.N.Y. 1994).15   While this list is  not exhaustive,
    we are confident that  it shows beyond serious question  that the
    court had ample means at its disposal, even without fee-shifting,
         14There would  seem  to  be  no sovereign  immunity  bar  to
    imposing a  monetary  penalty  as  a  sanction  against  a  rogue
    attorney  merely because  she  happens to  represent the  federal
    government.  See Larson,  337 U.S. at 693 (noting  that sovereign
    immunity does not protect federal officials in the performance of
    acts  that  are   unconstitutional  or  beyond   their  statutory
    authority); see also Chilcutt,  4 F.3d at 1327; Sumitomo  Marine,
    617 F.2d at 1370-71.
         15Although  the  district  court eschewed  these  additional
    remedies,  the  Justice  Department  later  engaged  its internal
    disciplinary mechanism on its own initiative.
    to catch the Justice  Department's attention, punish the culprit,
    and deter future prosecutorial excesses.
              Of  course, there is a more  broadly focused reason why
    the separation-of-powers argument will not wash.  While sovereign
    immunity may  marginally limit  the courts' ability  to function,
    there  is nothing  sacrosanct about  the courts' power  to impose
    sanctions.    Congress  has   wide-ranging  authority  to   limit
    supervisory  powers generally.   See  Chambers,  501 U.S.  at 47.
    This  includes the  authority  to place  restrictions on  courts'
    inherent power  to shift  fees.   See Alyeska,  421  U.S. at  259
    (recognizing "inherent  power in  the courts to  allow attorneys'
    fees in  particular situations, unless  forbidden by  Congress").
    It  also includes the authority  to regulate the courts' inherent
    power in  respect to contempt.  See 18 U.S.C.   401, quoted supra
    note  9.   Circumscription  of  the  fee-shifting  power  by  the
    application of an ancient (but still viable) common law doctrine,
    subject  to  waiver through  congressional  action,  comprises no
    greater insult to the independence of the Judicial Branch.
              Our  last  response to  appellees' separation-of-powers
    argument is to note  its indeterminacy.  The same  argument could
    be,  and has  been, turned  180  degrees.   At  least one  highly
    respected scholar maintains that sovereign immunity "furthers the
    separation of powers by  limiting judicial oversight of executive
    conduct . . .  [and thus] avoid[ing] situations where  the courts
    will impose orders on the other branches of government that might
    be  disregarded."    Erwin  Chemirinsky,  Federal  Jurisdiction  
    9.2.1, at 545-46 (2d ed. 1994) (emphasis supplied).
              We  will  not  paint  the lily.    Neither  policy  nor
    precedent supports the proposition  that the separation of powers
    requires  taking the  quantum leap  essayed by  the  court below.
    Leaving  monetary imposts  to one  side, the  range and  reach of
    other  sanctions, remedial  and punitive,  that are  available to
    federal criminal  courts permit those courts  to administer their
    dockets and  conduct judicial  business with a  sufficiently free
    hand.  Courts, like litigants, must abide by certain rules    and
    to the  extent that sovereign immunity curbs  judicial power, the
    restraint  is tolerable in the constitutional sense.  In the last
    analysis, then,  appellees' contention that  criminal courts  are
    left impotent if they are deprived of the power to  shift fees as
    a  sanction against the government  is as empty  as a mendicant's
              To  summarize, none  of  the  various possible  detours
    manage to bypass  the barrier  of sovereign immunity.   We  hold,
    therefore,  that  fee-shifting  against  the  government  can  be
    accomplished only in  conjunction with the  passage of a  statute
    (or a sufficiently explicit  rule having the force of  a statute)
    that  authorizes  such an  award.    In the  absence  of such  an
    enactment, the  secondary principle  of sovereign  immunity saves
    the federal  government harmless from all  court-imposed monetary
    assessments, regardless of their timing and purpose.
              We have one more  bridge to cross.  It  is hornbook law
    that  a court  cannot  act  in  the  absence  of  subject  matter
    jurisdiction;  and that,  when  such jurisdiction  is lacking,  a
    court is obliged  to note the defect on its  own initiative.  See
    United States v. Pierro,      F.3d    ,     (1st  Cir. 1994) [No.
    93-1313, slip op. at 13-14]; In  re Recticel Foam Corp., 
    859 F.2d 1000
    , 1002  (1st Cir. 1988); see also American Policyholders Ins.
    Co. v.  Nyacol Prods., Inc., 
    989 F.2d 1256
    , 1258 (1st Cir. 1993).
    Thus, even though the appellees have not questioned the existence
    of appellate  jurisdiction, we  must pursue  the point.   Parties
    cannot confer subject matter jurisdiction on either a trial or an
    appellate   court  by  indolence,   oversight,  acquiescence,  or
                         A.  Appeal as of Right.
              The Appellate Rules require  that an appellant's  brief
    contain "a statement of  the basis for jurisdiction in  the court
    of  appeals .  .  . with  reference to  the  applicable facts  to
    establish  such jurisdiction."    Fed. R.  App. P.  28(a)(2)(ii).
    Complying, perhaps, with the letter of the rule, but not with its
    spirit,  the government's  brief  states in  a purely  conclusory
    fashion only that its appeal is authorized under 28 U.S.C.   1291
    (1988).16    Despite  this  blithe  assurance,  the  government's
    entitlement  to an  appeal  as of  right  under section  1291  is
    problematic.  We explain briefly.
         16The  statute provides in  pertinent part,  with exceptions
    not relevant here,  that "the 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.
              An  appeal by the government in a criminal case must be
    specifically authorized by statute.  See United States v. Sanges,
    144 U.S. 310
    , 312  (1892).   The appeal before  us does  not fit
    neatly  into  the confines  of 18  U.S.C.    3731  (affording the
    United  States a right of appeal from certain described orders in
    criminal cases, e.g.,  orders dismissing indictments, suppressing
    evidence, or mandating  the return  of seized  property), or  any
    more  specialized statute  conferring a  right  of appeal  on the
    government  in   criminal  cases,  e.g.,  18   U.S.C.     3742(b)
    (permitting the  United States to appeal  from certain sentencing
    determinations).  And it is settled that, at least in the absence
    of   very  special   circumstances,  the   general  authorization
    contained  in  section  1291  is  not  sufficiently  specific  to
    authorize an appeal by the  government in a criminal case.   See,
    e.g., Arizona v. Manypenny,  
    451 U.S. 232
    , 246-47 (1981)  (citing
    cases); United States v.  Patterson, 
    882 F.2d 595
    , 599  (1st Cir.
    1989), cert. denied, 
    493 U.S. 1027
              Notwithstanding  this  looming  obstacle  to  appellate
    jurisdiction  under  section  1291,  we believe  that  this  case
    involves a  sufficiently special  set of circumstances  to engage
    the exception rather than  the rule.  Some courts  have suggested
    that, under  what we  choose to  call the "special  circumstance"
    exception, a government appeal may  be entertained in a  criminal
    case on the authority of section 1291 if the appeal satisfies the
    conditions  of the  so-called  collateral order  doctrine.   See,
    e.g.,  Carroll  v.  United  States,  
    354 U.S. 394
    ,  403  (1957)
    (dictum); Patterson, 882  F.2d at 599;  United States v.  Powers,
    622 F.2d 317
    , 319-20 n.2 (8th Cir.),  cert. denied, 
    449 U.S. 837
    (1980).  Application of the collateral order doctrine is "limited
    to  orders that  (1) conclusively  determine (2)  important legal
    questions  which are (3)  completely separate from  the merits of
    the  underlying action  and are  (4) effectively  unreviewable on
    appeal  from  a  final judgment."    Doughty  v. Underwriters  at
    Lloyd's, London, 
    6 F.3d 856
    , 862  (1st Cir. 1993); see also Cohen
    v. Beneficial Loan  Corp., 
    337 U.S. 541
    ,  546 (1949) (originating
    doctrine). We think that these conditions are met in  this case.
              Moreover,   the   particular  circumstances   at  hand,
    especially the procedural posture in which this appeal arises and
    the  nature of the relief  sought, are conducive  to allowing the
    appeal  to go  forward.   In criminal  cases, the  policy against
    permitting appeals to be taken too freely is heightened by speedy
    trial and double jeopardy  concerns.  See Will v.  United States,
    389 U.S. 90
    , 96 (1967); DiBella  v. United States, 
    369 U.S. 121
    126 (1962).   Here, those concerns do not come  into play at all:
    the  determination  of  the  defendants'  guilt  has  been  made,
    sentence  has   been  imposed,   the  attempted  appeal   is  not
    interlocutory  in  any  sense,   and  no  prospect  of  piecemeal
    litigation endures.
              We conclude, therefore, that  we have jurisdiction over
    the  instant  appeal  under 28  U.S.C.     1291.   We  emphasize,
    however, that our holding is a narrow one.  Rather than importing
    the  collateral order doctrine  lock, stock, and  barrel into our
    criminal  jurisprudence,  we hold  only  that when,  as  now, the
    conditions  of the  collateral  order  doctrine are  satisfied,17
    and the prudential concerns   that traditionally militate against
    allowing  the government to appeal  in a criminal  case favor, or
    are  at  least  neutral in  respect  to,  the  availability of  a
    government appeal,  then section  1291 affords a  vehicle through
    which  the  government may  seek appellate  review in  a criminal
                              B.  Mandamus.
              We are  fortified in our resolve to  hear and determine
    this appeal by the knowledge  that, even if no appeal lies  as of
    right, we possess   and can appropriately exercise   the power of
    discretionary  review, via  mandamus,18 to address  the important
    question raised in this case.
         17We are not the  first court to deem an  assessment against
    the government  qua  prosecutor  to  be a  collateral  order  for
    jurisdictional  purposes.  See  United States v.  Baker, 
    603 F.2d 759
    , 761-62 (9th Cir. 1979) (per curiam) (entertaining government
    appeal,  under section  1291,  from district  court's Rule  15(c)
    assessment  against  government of  deposition-related attorneys'
    fees);  United States  v. Rogalsky,  
    575 F.2d 457
    , 459  (3d Cir.
    1978) (entertaining  government appeal, under section  1291, from
    district court's assessment  against government of  costs arising
    from psychiatric examination of indigent defendant, see 18 U.S.C.
      3006A);  but see In  re Attorney General,  
    596 F.2d 58
    ,  61 (2d
    Cir.)  (holding that  contempt fine  for discovery  abuse against
    U.S. Attorney General is  not a collateral order for  purposes of
    section 1291), cert. denied, 
    444 U.S. 903
         18Technically, this case calls for the issuance of a writ of
    prohibition rather  than a writ of mandamus.  Because prohibition
    is simply the obverse of mandamus   the two writs derive from the
    same  source,  see 28  U.S.C.    1651,  and incorporate  the same
    standards    we often use the two  terms interchangeably.  See In
    re Pearson, 
    990 F.2d 653
    , 656 (1st Cir. 1993); Recticel, 859 F.2d
    at 1005 n.4.  We do so here.
              A  federal court of appeals  has the power  to treat an
    attempted appeal from an  unappealable (or possibly unappealable)
    order as a petition for  a writ of mandamus or prohibition  under
    the  All-Writs Act, 28 U.S.C.    1651 (1988).   See, e.g., United
    States v. Sorren,  
    605 F.2d 1211
    , 1215 (1st Cir.  1979); see also
    United  States  v. Collamore,  
    868 F.2d 24
    ,  27 (1st  Cir. 1989)
    (proceeding  under  mandamus powers  where  doubt  existed as  to
    propriety   of   asserting  mandatory   appellate  jurisdiction).
    Mandamus is ordinarily  appropriate in those rare  cases in which
    the  issuance (or  nonissuance) of an  order presents  a question
    anent  the limits of judicial  power, poses some  special risk of
    irreparable  harm to  the appellant,  and is  palpably erroneous.
    See  In re  Pearson, 
    900 F.2d 653
    ,  656 &  n.4 (1st  Cir. 1993);
    Recticel,  859 F.2d at 1005-06; see also Mallard v. United States
    Dist. Court,  
    490 U.S. 296
    ,  308-09 (1989).   In a still  smaller
    class  of cases,  mandamus  may lie  even  though all  the  usual
    standards are not met.  See In re Arvedon, 
    523 F.2d 914
    , 915 (1st
    Cir. 1975); In re Ellsberg, 
    446 F.2d 954
    , 956-57 (1st Cir. 1971);
    see generally 16 Charles  A. Wright et al., Federal  Practice and
    Procedure   3934 (1977 &  Supp. 1994).  This tiny class  of cases
    involves what we have come to call advisory mandamus.19
         19We think  it is  wise to distinguish  supervisory mandamus
    from advisory mandamus.   The  former is used  when an  appellate
    court  issues  the writ  to  correct an  established  trial court
    practice  that  significantly distorts  proper  procedure.   See,
    e.g., United States v. Kane,  
    646 F.2d 4
    , 9 n.7 (1st  Cir. 1981);
    Grinnell  Corp. v. Hackett, 
    519 F.2d 595
    , 599  (1st Cir.), cert.
    423 U.S. 1033
     (1975); see  also La Buy v.  Howes Leather
    Co., 35
    2 U.S. 2
    49, 256-60  (1957).  This  differs from  advisory
    mandamus  in that,  far from  being novel,  the  problem sparking
              Advisory  mandamus   has  its  roots  in   the  Court's
    reference to  mandamus review of "basic,  undecided question[s]."
    Schlagenhauf  v. Holder,  
    379 U.S. 104
    ,  110  (1964).    It  is
    appropriate when the  issue presented is  novel, of great  public
    importance, and likely  to recur.  See In re  Justices of Supreme
    Court of Puerto Rico, 
    695 F.2d 17
    , 25 (1st Cir. 1982).  Advisory
    mandamus is not meant to allow review of "interstitial matters of
    case  administration,"   Recticel,  859  F.2d  at   1006,  or  to
    circumvent   limits   on   appellate  review   of   discretionary
    interlocutory  rulings, see  Sorren, 605 F.2d  at 1216.   Rather,
    advisory mandamus is reserved for big game.  It "should primarily
    be  employed   to  address  questions   `likely  of   significant
    repetition prior to  effective review,' so that our opinion would
    assist  other  jurists,  parties,  or lawyers."    In  re Bushkin
    Assocs.,  Inc.,  
    864 F.2d 241
    ,  247  (1st  Cir.  1989) (citation
    supervisory mandamus has by  definition manifested itself on many
         20Because  situations  that properly  call  for  the use  of
    advisory mandamus "are hen's-teeth rare," In re Bushkin, 864 F.2d
    at 247, relatively few prototypes exist.  This is not to say that
    the writ  has fallen  into desuetude.   See,  e.g.,  In re  Globe
    Newspaper Co., 
    920 F.2d 88
    , 90 (1st Cir. 1990)  (issuing writ of
    mandamus  directing  district court  to  grant  members of  press
    access  to  jury  list,  on   theory  that  issue  presented  was
    "sufficiently  novel and  important"  to warrant  review); In  re
    Justices,  695 F.2d  at  25  (indicating  that advisory  writ  of
    prohibition is an appropriate  means by which to direct  district
    court  not  to hear  facial  challenges  to rules  governing  bar
    membership  and dues); see also Nasuti v. Scannell, 
    906 F.2d 802
    811  n.15 (1st Cir. 1990) (suggesting  advisory mandamus would be
    appropriate to clarify status  of federal employee immunity under
    amendments to Federal Tort Claims Act).
              If no right of appeal were to exist, the case before us
    today  would be  a prime  candidate for  advisory mandamus.   The
    issue  presented has never before been  squarely decided; yet, it
    is  likely to recur, given  the pervasiveness of litigation abuse
    in modern practice.  There is a sufficient showing of irreparable
    harm in  the sense that,  were no  court to  entertain either  an
    appeal or a petition  for mandamus, the matter  might perpetually
    evade  review.   Finally,  the  issue  bears  importantly on  the
    relationship  between  the  Judicial  Branch  and  the  Executive
              We  regard the  case  for mandamus  here as  especially
    compelling because it is important in the right way.  It poses an
    elemental  question of  judicial authority    involving precisely
    the sort of "Article III-type jurisdictional considerations" that
    traditionally have  triggered mandamus  review.  In  re Justices,
    695  F.2d at 25; see also In re  Pearson, 990 F.2d at 656 (noting
    that  mandamus  historically  has  been used  to  check  judicial
    usurpation of power); In re Attorney General, 
    596 F.2d 58
    , 64 (2d
    Cir.)  (granting mandamus  relief due in  part to  "separation of
    powers overtones"), cert. denied, 
    444 U.S. 903
              In short, we believe that this attempted appeal, if not
    entertainable as of right under 28 U.S.C.   1291, would present a
    classic  case for the granting of advisory mandamus.  Either way,
    the government is entitled to the relief that it seeks.
              Having satisfied ourselves that  appellate jurisdiction
    inheres, we now recapitulate.  We agree with the lower court that
    the   government  committed   egregious  acts   of  prosecutorial
    misconduct.  We do not  believe, however, that the court had  the
    right  to  ignore  sovereign   immunity  in  responding  to  that
    misconduct.   The  court's  supervisory power,  although  potent,
    cannot   intrude,  unaided,   into   the  sovereign's   protected
              We need go no further.  Because principles of sovereign
    immunity bar a federal court  from invoking its supervisory power
    to compel the federal government to pay attorneys' fees and costs
    as a sanction for prosecutorial misconduct in a criminal case, we
    reverse  the orders of the district court insofar as they purport
    to  shift such fees and costs.   All parties shall bear their own
    costs in this court.
              Reversed.  No costs.