          United States Court of Appeals
                      For the First Circuit

No. 11-1735

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                       BRAULIO AGOSTO-VEGA,

                            Defendant,

                   FRANCISCO REBOLLO-CASALDUC,

                            Appellant.



          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO
       [Hon. Carmen Consuelo Cerezo, U.S. District Judge]



                              Before

                        Lynch, Chief Judge,
              Torruella and Kayatta, Circuit Judges.


          Martin G. Weinberg, with whom Kimberly Homan was on
brief, for appellant.
          Desirée Laborde-Sanfiorenzo, Assistant United States
Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States
Attorney, Nelson Pérez-Sosa, Assistant United States Attorney,
Chief, Appellate Division, and John A. Mathews II, Assistant United
States Attorney, were on brief, for appellee.



                        September 27, 2013
           KAYATTA, Circuit Judge.       Attorney Francisco Rebollo-

Casalduc (“Rebollo”), a criminal defense attorney, appeals from a

$2,000 sanction imposed upon him and his client for filing motions

in limine immediately before his client’s anticipated retrial.     We

reverse.


                           I. Background


           Rebollo represented Braulio Agosto–Vega in a criminal

case relating to the discharge of sewage into public waters.

United States v. Agosto-Vega, 617 F.3d 541, 542-45 (1st Cir. 2010).

On appeal after trial, we vacated the convictions of Agosto-Vega

and his co-defendant because the district court had closed the

courtroom during jury selection.         Id. at 547-48.    We found,

however, that there was enough evidence to sustain the convictions,

and so we remanded for retrial.    Id. at 550-52.

           After remand, the district judge set a trial date and a

cutoff date for plea negotiations.      After the trial was postponed

at the government’s request, Rebollo moved to dismiss Agosto-Vega's

indictment on Speedy Trial Act grounds.1         The district court

continued the trial while it considered that motion, but eventually



     1
       The Speedy Trial Act "generally requires a federal criminal
trial to begin within 70 days after a defendant is charged or makes
an initial appearance, but . . . contains a detailed scheme under
which certain specified periods of delay are not counted." Zedner
v. United States, 547 U.S. 489, 492 (2006).

                                  -2-
denied the motion to dismiss, and then reset the trial for May 19,

2011.

            Although the parties had evidently continued their plea

negotiations, the government informed the district court on May 13,

2011, that no change of plea was forthcoming and trial should

proceed.    Rebollo then filed ten motions in limine, mostly to

exclude or limit certain evidence used in the first trial: four

motions on May 13th, two on May 17th, and four on May 18th.

Collectively,     the   motions     raised      several      classic   evidentiary

objections.      Eight invoked Federal Rules of Evidence 402 and 403;

three objected on hearsay or personal knowledge grounds; and two

challenged testimony under Rule 702.                The motions also pressed a

challenge   to    evidence       based   on    asserted      limitations    in   the

indictment,    and   made    a    request      to   strike    a   portion   of   the

indictment.    The government responded to one motion on the 18th.

That same day, the court sua sponte vacated the trial date.                      The

following day, it issued an order sanctioning Rebollo and Agosto-

Vega jointly (but not severally) $2,000 for having filed the ten

motions in limine over the course of the six days prior to the

scheduled start of the trial.            As justification for the sanction,

the district court declared the filings both "late" and "an abuse

of process."     The court suggested that the motions were filed late

to avoid impacting defendant's Speedy Trial Act motion, and/or to

force a continuance of the trial.

                                         -3-
           Rebollo     asked   the    court    to    reconsider   the   sanction

entered jointly against him and his client.               He argued that they

had violated no announced deadline, that a sanction without

warning or hearing deprived them of due process, and that there

were good reasons not to file the motions earlier -- in particular,

to   preserve   plea    negotiations.          The     district   court   denied

reconsideration,     reasoning       that    because    the   motions   targeted

evidence from the first trial, they should have been filed within

three months after the first appeal.           The court was skeptical that

plea negotiations justified the "late" filing of the motions in

limine.   It maintained that if the plea negotiations were so

substantial, Rebollo should have discussed them in the Speedy Trial

Act motion, because (in the court's view) time spent in plea

negotiations is excluded under the Act.              The court also concluded

that any lack of due process in issuing the sanction without

warning or hearing was cured by the court's consideration of the

motion to reconsider.      Rebollo appeals.2




      2
       This appeal was stayed during Agosto-Vega's criminal case.
That case having been resolved by plea, this matter is ripe for our
review. See United States v. Kouri-Perez, 187 F.3d 1, 13 (1st Cir.
1999). This appeal is not moot; although the district court docket
reflects a $2,000 “deposit” in June 2011, we have been informed
without dispute that the funds were only deposited in escrow
pending appeal, and so the fine has not yet been paid.

                                       -4-
                           II. Standard of Review


            Because the district court relied on its inherent power

to sanction the attorneys before it in imposing the sanctions, we

review the order for an abuse of discretion.          Chambers v. NASCO,

Inc., 501 U.S. 32, 55 (1991); United States v. Romero-López (In re

Armenteros-Chervoni), 661 F.3d 106, 108 (1st Cir. 2011). We do not

review sanctions imposed on criminal defense counsel “in a vacuum,”

but rather bear in mind such counsel's important constitutional

function.    United States v. Cooper (In re Zalkind), 872 F.2d 1, 3

(1st Cir. 1989); see also United States v. Figueroa-Arenas (In re

De Jesús Morales), 292 F.3d 276, 279, 282 (1st Cir. 2002) (noting

that courts should use their inherent sanction power “with due

circumspection” and should not "chill vigorous but legitimate

advocacy”).


                                  III. Analysis


            The district court premised its sanction ruling on an

assertion that the motions in limine were abusively late.         We see

nothing in the rules or the record that supports that conclusion

or, more importantly, that placed Rebollo on notice of the court's

deadline    for   filing   the   motions.   Certain   criminal   motions,

including challenges to an indictment, "must" be made before trial.

Fed. R. Crim. P. 12(b)(3).       However, a party "may" raise pretrial

"any defense, objection, or request that the court can determine

                                     -5-
without a trial of the general issue." Fed. R. Crim. P. 12(b)(2).3

Courts may and often do set scheduling orders in criminal cases

specifying    deadlines   for    the    filing   of   particular   types   of

motions.4    Absent such an order, as in this case, the Federal Rules

of Criminal Procedure require only that motions be filed at least

seven days before any hearing date. See Fed. R. Crim. P. 12(b)(1);

Fed. R. Crim. P. 47(c). Assuming that Rebollo expected the motions

to be heard on the first day of trial, therefore, the motions were

arguably between one and six days late.5              See Fed. R. Crim. P.

45(a) (computational rules).       The court, however, did not base the

sanctions order on Rule 12 or Rule 47, or suggest that the motions

were late by a few days.        Instead, it ruled in the sanction order

that the motions were "late," and then concluded in denying



     3
        Nearly all of Rebollo's objections fall into the category
of those that "may" be raised prior to trial, and so could also be
raised at trial.    Although neither the district court nor the
government raised the point, at least the part of the third motion
that sought to strike part of the indictment arguably falls under
Rule 12(b)(3)(B), and so "must" have been raised pretrial. Even
so, Rule 12 provides the default sanction for such an error --
waiver of the objection. See Fed. R. Crim. P. 12(e).
     4
        Although the district court's standing criminal scheduling
order set a general deadline for pretrial motions, that deadline
(thirty-five days after arraignment) is difficult to apply to this
case, which was on remand after appeal. Furthermore, that standing
order did not match the deadline that the district court announced
in denying the motion for reconsideration, and in any event, the
court did not rely on its standing order in issuing the sanctions.
     5
        We need not decide in this case how this rule would apply
to motions raising objections to evidence to be offered in a
lengthy trial, absent a court-imposed motion deadline.

                                       -6-
reconsideration that they were nearly four months late, having been

due within three months of this Court's October 25, 2010 mandate

after appeal.

           We have reviewed the Local Rules for the United States

District Court for the District of Puerto Rico and the docket in

this case.      We find nothing in any of those sources notifying

Rebollo of the district court's deadline, or that sanctions might

flow from filing the motions when he did.        Cf. In re Richardson,

793 F.2d 37, 40 (1st Cir. 1986) (noting, in a civil case, that

where no rule informed counsel that they must appear at a hearing,

they could not be sanctioned for failing to appear unless they had

been specifically told to do so).          In so concluding, we do not

question the district court's frustration upon receiving so many

written motions so close to the commencement of trial.        Certainly,

if counsel hoped to get rulings on the motions before trial (and it

is not evident that counsel here had such an expectation), he

should have filed them much sooner.        It is also undoubtedly true

that counsel could have filed the motions sooner, as they largely

involved challenges to evidence that was presented at the first

trial.   Counsel therefore could not have been either surprised or

aggrieved had the court simply declined to rule on the motions.

           Absent   any   contrary    order   (and   with   the   possible

exception noted in footnote three above), defense counsel properly



                                     -7-
could have filed no written motions, waited until witnesses were

called and questions posed, and then objected orally, arguing the

objections at sidebar.     By instead raising the objections before

trial, counsel acted not merely to preserve the objections, but to

seek the advantage of briefing the court, and perhaps securing an

answer prior to trial in order to plan accordingly and keep

opposing counsel from mentioning the challenged evidence before an

objection is made.6    See Black's Law Dictionary 1109 (9th ed. 2009)

(defining a motion in limine as a "pretrial request that certain

inadmissible evidence not be mentioned at trial.").7    The court, in

turn, may find such written motions helpful, or in some cases a

burden.     In either event, the trial judge certainly retains ample

discretion in setting deadlines for counsel who wish to seek

pretrial rulings, and in deciding whether to rule on such motions

pretrial, or to rule tentatively and revisit the decision at trial,

etc.       Fed. R. Crim. P. 12 (b)(2), (c), (d), (e); see also

Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 58

(1st Cir. 2000) (district courts have "wide latitude" in managing



       6
        Indeed, merely making a motion in limine, without renewal
at trial, will not always preserve an objection. See Fed. R. Evid.
103(b); cf. United States v. Mahone, 453 F.3d 68, 70 (1st Cir.
2006)(objection was preserved because court's pre-trial ruling was
"definitive").
       7
        Motions in limine are alluded to in Fed. R. Evid. 103(b),
and referenced in the commentary to that rule's 2000 amendments
and in the 1991 commentary on Rule 404. As noted above, Fed. R.
Crim. P. 12 provides a vehicle for filing such motions.

                                  -8-
their cases).    What a court cannot do in exercising that authority

is what the court did here: set no clear deadline for the filing of

such motions and then sanction counsel for defying the court's

unstated expectations.8   See Richardson, 793 F.2d at 40 (reversing

sanctions imposed "for violating an unwritten rule . . . of which

the court thought appellants should be aware"); Boettcher v.

Hartford Ins. Grp. (In re Kiselica), 927 F.2d 23, 26 (1st Cir.

1991) ("We do not doubt the inherent power of a district court to

act promptly and forcefully in the face of egregious or outrageous

conduct . . ., but this conduct, violating no previously declared

rule and not on its face outrageous, does not reach any such

level.").

            We note that in denying the motion to reconsider, the

district court sharply criticized Rebollo's explanation that he

delayed filing the motions because of ongoing plea negotiations.

It is not clear whether the court objected that counsel failed to

disclose the negotiations as excludable time in calculating Speedy

Trial Act deadlines or whether the court questioned whether the

negotiations had taken place when claimed. As to the former, there



     8
         We also find the court to have read far too much into
Rebollo's explanation as to when the motions were drafted. We read
counsel's reference to "working on . . . the motions" after the
government's May 13th notice as asserting that the motions were
filed as they were worked on and finalized over the ensuing days --
not as a facially implausible claim that Rebollo had not first
begun working on them at all until that date.

                                 -9-
was no binding precedent establishing that time spent in plea

negotiations is automatically excluded.               See United States v.

Valdivia, 680 F.3d 33, 42 (1st Cir. 2012) ("We have yet to address

whether plea negotiations are automatically excludable . . . and

there is no consensus among the circuits on the issue[.]"); United

States v. Huete-Sandoval, 668 F.3d 1, 7 n.8 (1st Cir. 2011).              As to

the   latter,   we   see   no   basis   in   the   record   for   the   judge's

skepticism.     (We also note with some dismay that the government --

which of course was privy to the plea negotiations, and which also

failed to discuss them in briefing the motion to dismiss -- offered

no clarifying information regarding the plea negotiations, either

after the district court's ruling or even to this Court.)

           We must comment, too, that the sua sponte issuance of a

sanction order, staking out a view and judgment without any warning

or opportunity to be heard, increases the likelihood of error and

the appearance of unfairness.           This Court has often noted "the

general desirability and sometime necessity of affording notice and

an opportunity to be heard when monetary sanctions are imposed."

Lamboy-Ortiz v. Ortiz-Vélez, 630 F.3d 228, 246 (1st Cir. 2010)

(quoting Media Duplication Servs., Ltd. v. HDG Software, Inc., 928

F.2d 1228, 1238 (1st Cir. 1991)).            Imposing sanctions without a

hearing does not necessarily violate due process or constitute an

abuse of discretion, particularly if the objectionable conduct took

place in the court's presence.          See id.    However, when "a court is

                                    -10-
considering invoking its inherent power to sanction, the much

better practice is for the court to hear from the offending

attorney before imposing any sanctions." Romero-López, 661 F.3d at

108-09.   The difficult position into which Rebollo and Agosto-Vega

were placed in this case only underscores the importance of care

and circumspection in the exercise of the court's inherent sanction

power, as a matter both of substance and procedure.


                             IV. Conclusion


           For the foregoing reasons, we reverse the sanctions

order.




                                -11-
