Case: 15-30643      Document: 00513468177    Page: 1   Date Filed: 04/18/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                  No. 15-30643                    United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
In re: WILLIAM L. GOODE,                                             April 18, 2016
                                                                    Lyle W. Cayce
                Appellant.                                               Clerk




                   Appeal from the United States District Court
                      for the Western District of Louisiana


Before KING, JOLLY, and PRADO, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
      This appeal involves a challenge to Western District of Louisiana Local
Criminal Rule 53.5 (“L. Crim. R. 53.5”), which operates as a prior restraint
against attorney speech during the pendency of a criminal trial. William L.
Goode, a criminal defense attorney practicing in Lafayette, Louisiana, appeals
his six-month suspension from the Western District of Louisiana, which was
imposed due to his violation of L. Crim. R. 53.5. For the following reasons, we
reverse and remand to the district court for further proceedings consistent with
this opinion.
           I. FACTUAL AND PROCEDURAL BACKGROUND
      Central to this appeal is the extent of Goode’s involvement in the
underlying criminal trial. In June 2012, Goode represented a client, Joshua
Espinoza, at his initial appearance and arraignment. Goode later withdrew as
counsel of record, and new counsel was appointed under the Criminal Justice
Act. A superseding indictment was issued in September 2012, adding seven
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new defendants, including two attorneys, Daniel Stanford and Barry
Domingue. Stanford and Domingue went to trial, while the remaining
defendants pleaded guilty.
      Stanford and Domingue proceeded to trial under an informal defense
agreement and represented themselves pro se. Goode was never enrolled as
counsel of record for either defendant, but both Stanford and Goode
represented to the district court that Goode “would be ‘assisting’ Stanford.” In
response, the Government filed a motion to determine whether Goode should
be disqualified to represent Stanford “in any capacity” based on his previous
representation of Espinoza. The Government moved to withdraw its motion
once it was determined that Goode had “no intention to represent Defendant
Stanford in any capacity,” which the district court granted.
      The trial began on March 31, 2014. During the trial, Goode “sat in front
of the bar and conferred with, and passed notes to, both defendants.” On April
2, 2014, Domingue suffered from a self-inflicted gunshot wound. That morning,
the district court held a hearing to evaluate its options in proceeding with the
trial against Stanford. At the hearing, the Government stated it would not
oppose if the court declared a mistrial. A decision on the matter was postponed
until later that afternoon in order to give Stanford the opportunity to visit
Domingue in the hospital before he died. When the hearing reconvened,
Stanford requested a mistrial, which the district court granted.
      Between the morning and afternoon hearings, Goode gave interviews to
two media outlets, The Advocate and The Independent regarding Domingue.
According to Goode, he spoke to the media in an attempt to “protect [his]
friend’s good name” and only under the belief that a mistrial would be declared.
Goode claims he told the reporter for The Advocate, the first reporter he spoke
with, not to publish anything until he had called back to confirm that a mistrial
had been declared. But, the reporter did not abide by his request, and an article
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was published online before a mistrial was officially granted. Goode’s
statements to the media related to the following facts: Domingue had shot
himself in the head with a 9 mm pistol; Domingue was Goode’s friend;
Domingue had to shut down his law practice and spend the majority of his time
preparing for his defense; Domingue was innocent of the charges against him;
and the Government’s case was “made up.” Goode’s two interviews that day
ultimately resulted in the publication of five articles.
      By the afternoon hearing, the district court had become aware of and
expressed its displeasure with Goode’s statements to the media. The
Government moved for sanctions and a protective order barring Goode from
further speaking to the press. The court refrained from ruling on the issue at
that time and directed the Government to file a motion for sanctions instead.
But, the Government never filed such a motion, and on May 23, 2014, the
district court sua sponte issued an order directing Goode “to show cause why
sanctions should not be imposed based on allegations of inappropriate,
extrajudicial commentary to news media during the course of this proceeding,
and most significantly, during the time immediately surrounding the recent
mistrial granted on April 2, 2014.”
      Following a show cause hearing, the district court found that Goode
violated both the local rules for the Western District of Louisiana and
Louisiana’s Rules of Professional Conduct, and it referred the matter to the
Chief Judge of the Western District “for the appropriate suspension of practice
from the Western District.” Goode was permitted to file a brief before the Chief
Judge in which he argued that the applicable local and professional rules
violated his free speech rights afforded by the United States Constitution and
the Constitution of the State of Louisiana. Specifically, Goode cited the
Supreme Court’s decision in Gentile v. State Bar of Nevada, 

(1991), in support of this argument.
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       On January 30, 2015, the Chief Judge of the Western District of
Louisiana, Chief Judge Drell, issued an opinion and order sanctioning Goode
pursuant to Local Rule 83.2.10 for violating L. Crim. R. 53.5. The rule states:
       During the trial of any criminal matter, including the period of
       selection of the jury, no lawyer associated with the prosecution or
       defense shall give or authorize any extrajudicial statement or
       interview, relating to the trial or the parties or issues in the trial,
       for dissemination by any means of public communication, except
       that the lawyer may quote from or refer without comment to public
       records of the court in the case.
In his order, Chief Judge Drell found that a sanction was appropriate under
the rule because Goode was an attorney “associated” with the defense. In
support of his conclusion, Chief Judge Drell noted that: 1) Goode helped
Stanford in both preparing for the case and during the two days of trial; 2)
Goode “sat in front of the bar (where lawyers who are participating in court
proceedings sit)”; 3) and Goode “passed notes and made comments” to both
defendants during the two days of trial. In response to Goode’s briefing, Chief
Judge Drell agreed that Gentile controlled but found that the application of L.
Crim. R. 53.5 was constitutional, explaining that Goode’s statements “involved
a substantial likelihood of prejudice in the pending case” because “[i]f a mistrial
had not been declared, there was a significant likelihood that even the
empaneled jury could be prejudiced simply because the news of suicide by
defendant was such big news, it would have been difficult to contain even for
those empaneled jurors.”
       Based on his violation of L. Crim. R. 53.5, 1 Goode was suspended from
practice in the Western District of Louisiana for a six-month period. Following



       1 Initially, Goode was referred to Chief Judge Drell for sanction based on L. Crim. R.
53.3, L. Crim R. 53.5, and Louisiana Rule of Professional Conduct 3.6, for statements he made
to the media initially after indictments were issued and statements he made to the media
after Domingue’s suicide. Because Goode was ultimately only sanctioned for violating L.
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                                   No. 15-30643
this period, Goode could petition to be readmitted to the Western District
pursuant to Local Rule 83.2.10. Goode appealed the sanction, and the district
court stayed its suspension pending appeal.
                                II. DISCUSSION
      The Rules Enabling Act provides the Western District of Louisiana with
the power to “prescribe rules for the conduct of [its] business.” 28 U.S.C.
§ 2071(a); see also Fed. R. Civ. P. 83(a)(1) (“After giving public notice and an
opportunity for comment, a district court, acting by a majority of its district
judges, may adopt and amend rules governing its practice.”). This Court has
jurisdiction over this appeal under 28 U.S.C. § 1291.
      On appeal, Goode makes three primary arguments. As a preliminary
matter, he disputes whether his conduct during Domingue and Stanford’s trial
falls within the scope of L. Crim. R. 53.5. Next, he argues that if his conduct is
covered by the rule, the district court failed to make a necessary finding of bad
faith, which was required in order to impose sanction. Finally, he brings both
an as applied and facial challenge to the constitutionality of L. Crim. R. 53.5.
A.    The Scope of L. Crim. R. 53.5
      Goode argues that he does not fall within the scope of L. Crim. R. 53.5 as
he was not “‘a lawyer associated with the . . . defense.’” Goode urges this Court
to adopt a “bright-line rule” in interpreting L. Crim. R. 53.5 that limits its scope
to “trial participants,” specifically counsels of record. Appellee 2 counters that,
by its terms, the rule is not limited to counsels of record and urges a broader
interpretation of the rule that focuses on an attorney’s “unique access to
information,” not his or her official status in the underlying trial.




Crim. R. 53.5, we need not discuss L. Crim. R. 53.3 and Louisiana Rule of Professional
Conduct 3.6.
      2 Counsel was appointed to represent the district court’s interest.

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      Goode does not dispute any of the facts underlying his sanction and does
not argue that the district court abused its discretion in imposing a particular
sanction. He only challenges whether his conduct violates L. Crim. R. 53.5,
which is a legal conclusion subject to de novo review. See United States v.
Nolen, 

, 371 (5th Cir. 2006).
      Goode argues that the Supreme Court’s opinion in Gentile and our
opinion in United States v. Brown, 

(5th Cir. 2000), demonstrate
that prior restraints on attorney speech, such as L. Crim. R. 53.5, apply only
to counsels of record. But, neither Gentile nor Brown can be read to require
such a limitation. In Gentile, the Supreme Court held that “the speech of
lawyers representing clients in pending cases may be regulated under a less
demanding standard than that established for regulation of the 

(emphasis added). From this holding, Goode asks us to infer that
no attorney speech may be regulated unless the attorney is a “lawyer[]
representing clients,” which he appears to define as counsels of record.
      But, the Supreme Court’s holding was not so expansive. Gentile only
involved the appeal of a specific Nevada ethics rule that just happens to have
consistently been interpreted “as applying only to lawyers in pending cases,
and not to other lawyers or nonlawyers.” 

n.5. The Court expressly
provided “no opinion on the constitutionality of a rule regulating the
statements of a lawyer who is not participating in the pending case about
which the statements are made.” 

opinion in Brown was similarly limited, addressing the
constitutionality of a specific gag 

. The gag order at issue
applied to “parties, lawyers, and potential witnesses.” 

This Court
stated that the gag order was “directed at trial participants,” 

and
Goode asks this Court to infer that “trial participants” only includes counsels
of record because they were the only lawyers covered by the gag order at issue.
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However, like Gentile, nowhere in Brown did this Court announce a blanket
rule limiting restrictions on attorney speech to only counsels of record. 3
       Therefore, the scope of L. Crim. R. 53.5 rests on an interpretation of its
language, specifically the phrase “lawyer associated with the prosecution or
defense.” Goode urges an interpretation of “associated” “in the conventional
sense that ‘associate’ is used in law to mean being ‘connected [] as a business
partner or companion.’”
       Suspending an attorney is a “quasi-criminal punishment” and “any
disciplinary rules used to impose this sanction . . . must be strictly construed
resolving ambiguities in favor of the person charged.” United States v. Brown,

, 29 (5th Cir. 1995). Even strictly construing L. Crim. R. 53.5, the
plain language of the rule does not support Goode’s interpretation. The rule
does not expressly limit its scope to counsels of record. But most importantly,
Goode’s emphasis on “associate” focuses on the use of the word as a noun, while
“associated” in L. Crim. R. 53.5 is a verb.
       The Oxford English Dictionary defines “associate” when used as a verb
as “[t]o join (persons, or one person with . . . another), in . . . common purpose,
action, or condition; to link together, unite, combine, ally, confederate.” Oxford
English Dictionary (2015) (emphasis omitted). Throughout the trial, in the
media, and at his disciplinary proceedings, Goode stressed that, although he
was not counsel of record, he was helping Stanford with his case. Goode
assisted Stanford with trial preparation, attended several of the pretrial
hearings, and passed notes to Stanford during the proceedings. Under the



       3Goode has pointed to no case in our Circuit interpreting the phrase “associated with.”
However, he does point to one case, United States v. Aldawsari, 

(5th Cir. 2012),
that he argues interpreted language similar to L. Crim. R. 53.5—“involved with the
proceedings.” But, his argument is without merit as there is no indication in the opinion that
the phrase “involved with the proceedings” was actually used in the gag order at issue. See

.
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plain language of the rule, we hold that Goode falls within the scope of L. Crim.
R. 53.5 as an “attorney associated with . . . the defense.”
B.    Finding of Bad Faith
      Goode argues that the district court was required to make a finding of
bad faith in order to discipline him under L. Crim. R. 53.5. In response,
Appellee distinguishes between sanctions imposed pursuant to a court’s
inherent power and sanctions imposed pursuant to a district court’s local rules,
arguing that a finding of bad faith is only a prerequisite to sanctions imposed
through the former.
      This Court has consistently distinguished between a court’s inherent
power and its local rules. See, e.g., Carroll v. The Jaques Admiralty Law Firm,
P.C., 

, 292–93 (5th Cir. 1997); Ehm v. Amtrak Bd. of Dirs., 

, 517 (5th Cir. 1986) (per curiam); Martin-Trigona v. Morris, 

, 682 n.1 (5th Cir. 1980) (per curiam). Federal courts enjoy the inherent
power to “manage their own affairs so as to achieve the orderly and expeditious
disposition of cases.” Chambers v. NASCO, Inc., 

, 43 (1991) (quoting
Link v. Wabash R.R. Co., 

, 630–31 (1962)). This power includes
the ability to discipline attorneys, punish for contempt, control admission to its
bar, and vacate judgments. 

Most relevant to the instant suit is
the ability of federal courts to “suspend or dismiss an attorney as an exercise
of [their] inherent powers.” Resolution Tr. Corp. v. Bright, 

, 340 (5th
Cir. 1993).
      It is well settled that in order for a federal court to sanction an attorney
under its inherent powers, it must make a specific finding that the attorney
acted in bad faith. E.g., Dawson v. United States, 

, 895 (5th Cir.
1995). But, this Circuit has never explicitly extended this requirement to




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                                      No. 15-30643
sanctions imposed pursuant to a local rule, and we decline to do so here. 4 As
we conclude that the district court was not required to make a finding of bad
faith before sanctioning Goode under L. Crim R. 53.5, we turn to Goode’s
constitutional challenge.
C.     First Amendment Challenge
       Goode argues that L. Crim. R. 53.5 is unconstitutional both on its face
and as applied in his case. Whether the First Amendment has been violated is
a mixed question of law and fact; therefore, our review is de novo. LLEH, Inc.
v. Wichita Cty., 

, 364–65 (5th Cir. 2002). Because it is preferable
to avoid addressing an overbreadth facial challenge if an as-applied challenge
prevails, Bd. of Trs. of State Univ. of N.Y. v. Fox, 

, 484–85 (1989),
we will address Goode’s as-applied challenge first.
       Prior restraints—defined as “predetermined judicial prohibition[s]
restraining specific expression”—such as L. Crim R. 53.5, 5 receive a
“presumption against their constitutionality.” 

–25
(quoting Bernard v. Gulf Oil Co., 

, 467 (5th Cir. 1980)). Generally,
a prior restraint is constitutional only if the Government “can establish that
‘the activity restrained poses either a clear and present danger or a serious and
imminent threat to a protected competing interest.’” 

(quoting Levine
v. U.S. Dist. Court for Cent. Dist. of Cal., 

, 595 (9th Cir. 1985)).
The Government must also demonstrate that the prior restraint is narrowly
tailored and provides the least restrictive means to achieve the Government’s
goal. 

points to In re Thalheim, 

(5th Cir. 1988), to support his
argument that the district court needed to make a finding of bad faith before imposing any
sanction. But, the discussion of bad faith in Thalheim appears only in dicta and, therefore,
cannot be interpreted as an explicit extension of the bad faith requirement. See 

.
       5 Neither party disputes that L. Crim. R. 53.5 is a prior restraint.

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      In the context of criminal trials, an individual’s right to free speech must
be balanced with the state and the defendant’s interest in a fair trial. 

“Intense publicity surrounding a criminal proceeding,” otherwise referred
to as “trial by newspaper,” “poses significant and well-known dangers to a fair
trial.” 

(quoting Pennekamp v. Florida, 

, 359 (1946)
(Frankfurter, J., concurring)). The most significant of these dangers is the
possibility that pretrial publicity will taint the jury venire. 

therefore balance the First Amendment rights of trial participants with our
‘affirmative constitutional duty to minimize the effects of prejudicial pretrial
publicity.’” Marceaux v. Lafayette City-Par. Consol. Gov’t, 

, 493
(5th Cir. 2013) (quoting 

). Citing this concern, the
Supreme Court has upheld stronger limitations on the speech of “those
participating before the courts” as compared to members of the press. 

(emphasis omitted); see also Seattle Times Co. v. Rhinehart,

, 32 n.18 (1984) (collecting cases).
      Specifically, in Gentile, the Supreme Court held that “the speech of
lawyers representing clients in pending cases may be regulated under a less
demanding standard than that established for regulation of the 

. Central to the Supreme Court’s decision was the fact that
“lawyers have special access to information through discovery and client
communications.” 

extrajudicial statements pose a threat
to the fairness of a pending proceeding since lawyers’ statements are likely to
be received as especially authoritative.” 

did not set a
controlling standard for all restraints on attorney speech. See 

(explaining that “the Supreme Court merely approved Nevada’s
‘substantial likelihood’ standard . . . but did not mandate it as a constitutional
minimum necessary to justify a judicially-imposed restriction on attorney
speech”).
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      Instead, the Court was tasked to review a First Amendment challenge to
a specific Nevada attorney ethics rule that stated: “A lawyer shall not make an
extrajudicial statement that a reasonable person would expect to be
disseminated by means of public communication if the lawyer knows or
reasonably should know that it will have a substantial likelihood of materially
prejudicing an adjudicative proceeding.” 

. The
Supreme Court upheld the rule, explaining that it “constitutes a
constitutionally permissible balance between the First Amendment rights of
attorneys in pending cases and the State’s interest in fair trials.” 

The Court went on to explain that the test is constitutional because “it is
designed to protect the integrity and fairness of a State’s judicial system, and
it imposes only narrow and necessary limitations on lawyers’ speech.” 

our Court considered a First Amendment challenge to a
district court’s gag order that prohibited “attorneys, parties, or witnesses from
discussing with ‘any public communications media’ anything about the case
‘which could interfere with a fair trial,’ including statements ‘intended to
influence public opinion regarding the merits of this case,’ with exceptions for
matters of public record and matters such as assertions of innocence.” 

. As described above, in the typical prior restraint case, a court
must find the restrained activity “poses either a clear and present danger or a
serious and imminent threat to a protected competing interest.” 

(quoting 

). In Brown, our Court lowered the “showing
of harm necessary” to impose a prior restraint on trial participants stating that
“a district court may . . . impose an appropriate gag order on parties and/or
their lawyers if it determines that extrajudicial commentary by those
individuals would present a ‘substantial likelihood’ of prejudicing the court’s
ability to conduct a fair trial,” leaving open the question whether a “reasonable
likelihood” standard would suffice. 

, 427 (emphasis added).
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Additionally, the Court explained that prior restraints on trial participants
must be narrowly tailored to only prohibit speech that has a “meaningful
likelihood of materially impairing the court’s ability to conduct a fair trial.” 

The prior restraint must also be the least restrictive means
available. 

.
       On its face, L. Crim. R. 53.5 does not incorporate either a “substantial
likelihood standard” or even a “reasonable likelihood” standard, as required
under Brown. Instead, it operated as a complete bar on any of Goode’s speech
“relat[ed] to the trial or the parties or issues in the trial” and disseminated
through public communication during the pendency of the trial. The only
exception to the rule would have allowed Goode to read from the public record
without comment. Complicating the as-applied challenge, in his opinion and
order imposing sanction, Chief Judge Drell cited Gentile and found that a
sanction was appropriate because Goode’s comments to the media were
substantially likely to prejudice the jury because “[i]f a mistrial had not been
declared, there was a significant likelihood that even the empaneled jury could
be prejudiced simply because the news of suicide by defendant was such big
news.” But, even assuming without deciding that this finding, which was made
after the trial had ended and the potential for prejudice was over, is sufficient
to comply with the requirements of Brown, L. Crim. R. 53.5 must also be
narrowly tailored and the least restrictive means of achieving a government
interest. 6
       In Brown, this Court determined that the gag order at issue was
narrowly      tailored   because it   was “sufficiently       narrow to    eliminate
substantially only that speech having a meaningful likelihood of materially



       6The district court did not address either requirement in its opinion and order
imposing sanction.
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                                     No. 15-30643
impairing the court’s ability to conduct a fair trial.” 

But, L. Crim. R.
53.5 is not so limited. As applied to Goode, the rule acted as a complete bar on
any speech “relat[ed] to the trial or the parties or issues in the trial” and
disseminated through public communication during the pendency of the trial.
Appellee has failed to demonstrate how such an expansive rule is narrowly
tailored. See 

–30 (“[W]e observe that the district court
did not impose a ‘no comment’ rule, but instead left available to the parties
various avenues of expression, including assertions of innocence, general
statements about the nature of an allegation or defense, and statements of
matters of public record.”); Chi. Council of Lawyers v. Bauer, 

, 251
(7th Cir. 1975) (“We do not believe that there can be a blanket prohibition on
certain areas of comment[,] a per se proscription without any consideration of
whether the particular statement posed a serious and imminent threat of
interference with a fair trial.”).
      Similarly, Appellee has failed to demonstrate how L. Crim. R. 53.5 is the
least restrictive means available to achieve its goal. Alternatives to prior
restraints include “change of venue, jury sequestration, ‘searching’ voir dire,
and ‘emphatic’ jury instructions.” 

. L. Crim. R. 53.5
operated as a prior restraint on Goode regardless of the feasibility of other
options. While it was not necessary for the district court to provide a full
analysis of all of the alternative means available, see 

this Court
cannot imply from the record that L. Crim. R. 53.5 provided the least restrictive
means of safeguarding against the risk of prejudice, particularly in light of the
fact that the rule applied prior to Domingue’s suicide and prior to the increased
risk noted by the district court, see 

that L. Crim. R. 53.5, as applied by the district court,
complies with Brown’s holding that a court may impose a prior restraint on
trial participants’ speech if it is “substantially likely to materially prejudice” a
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case, Appellee has failed to demonstrate that L. Crim. R. 53.5 was narrowly
tailored to only prohibit such speech and that it was the least restrictive means
of safeguarding against prejudice. Therefore, we hold that L. Crim. R. 53.5 is
unconstitutional as applied to Goode. In light of this holding, we need not
address Goode’s facial challenge. See Fox, 492 U.S at 484–85.
                             III. CONCLUSION
      For the foregoing reasons, we REVERSE and REMAND for further
proceedings consistent with this opinion




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