UNITED STATES DISTRICT COURT

District of New Jersey

Chambers of 

William H. Walls

Senior District Judge

 _________ 

(973) 645-2564 

(973) 645-3436 Fax

Martin Luther King Jr. 

Federal Courthouse 

50 Walnut Street 

Newark, New Jersey 07102

NOT FOR PUBLICATION

 LETTER ORDER 

December 5, 2011 

Michael A. Baldassare 

Baldassare & Mara, LLC 

570 Broad Street, Suite 900 

Newark, NJ 07102 

Re: United States of America v. Kelvin L. Jones; Crim. No. 10-366 (WHW) 

 Hearing on Order to Show Cause for Sanctions on Michael A. Orozco, Esq. 

Dear Mr. Baldassare: 

 I have reviewed the letters dated November 30, 2011 and December 2, 2011 submitted on 

behalf of Mr. Orozco concerning this Court’s November 22, 2011 Order to Show Cause for 

sanctions. The letters request an adjournment of the December 7, 2011 hearing at which Mr. 

Orozco is to show cause why the Court should not exercise its inherent power to impose a 

monetary sanction for his conduct on November 9, 2011. The letter dated December 2, 2011 also 

requests that I recuse myself from the hearing on sanctions pursuant to 28 U.S.C. § 455(b). 

 First, the request for adjournment of the December 7, 2011 hearing to allow additional 

time to secure and prepare for the appearance of witnesses is denied because the Court will not 

hold an evidentiary hearing at that time. At the hearing, you and your client will be afforded 

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ample opportunity to be heard on why the Court should not exercise its inherent power to impose 

a monetary sanction of $200 on Mr. Orozco for his failure to appear as directed before this Court 

at 12:15 p.m. on November 9, 2011 and for his failure to timely notify the Court of a time 

conflict with another proceeding prior to that time. At the hearing, you and your client may 

present argument regarding whether the challenged conduct is sanctionable and whether the 

proposed sanction is sufficiently tailored to this conduct. See Republic of Philippines v. 

Westinghouse Elec. Corp., 43 F.3d 65, 74 (3d Cir. 1994). See also United States v. Seltzer, 227 

F.3d 36, 42 (2d Cir. 2000). You will not be afforded an opportunity to present testimony of 

outside witnesses at that time because a full evidentiary hearing is neither required under due 

process nor relevant to a determination of this issue. 

 The Third Circuit has explained that although monetary sanctions should not be imposed 

“‘without fair notice and an opportunity for a hearing on the record,’ we have not interpreted the 

‘opportunity for a hearing on the record’ discussed by the Supreme Court to require an 

evidentiary hearing in every case.” Angelico v. Lehigh Valley Hosp., Inc., 184 F.3d 268, 279 (3d 

Cir. 1999) (quoting Roadway Express, Inc. v. Piper, 447 U.S. 752, 767 (1980)). The due process 

requirement for an opportunity to be heard “at a meaningful time and in a meaningful manner” is 

instead defined based on a “flexible” standard under which the “circumstances must dictate what 

is required” on a case-by-case basis. Rogal v. Am. Broad. Cos., 74 F.3d 40, 44 (3d Cir. 1996) 

(internal citations omitted). As a result, before imposing monetary sanctions, a district court “in 

the sound exercise of its discretion must identify and determine the legal basis for each sanction 

charge sought to be imposed, and whether its further resolution requires further proceedings, 

including the need for an evidentiary hearing.” Id. (citing Jones v. Pittsburgh Nat. Corp., 899 

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F.2d 1350, 1359 (3d Cir. 1990)). In a deliberately narrow and fact-specific holding in Rogal, the 

Third Circuit found only that an evidentiary hearing was required where a sanction imposed for 

alleged misrepresentations in the defendant’s disputed trial testimony was based solely on 

inferences from apparent contradictions and inconsistencies during trial. Id. at 44–45. 

 I find at this stage that there are no facts in contention which would similarly bear on this 

Court’s determination of whether the Court should exercise its inherent power to impose a 

monetary sanction on Mr. Orozco for his failure to appear as directed before this Court at 12:15 

p.m. on November 9, 2011 and for his failure to timely notify the Court of a time conflict with 

another proceeding prior to that time. This finding is supported by the representations made at 

the November 9, 2011 contempt hearing and a review of Mr. Orozco’s affidavit dated November 

14, 2011 supporting the request for reconsideration of the contempt of court order, both of which 

addressed the same underlying conduct. An evidentiary hearing would not further assist me in 

making any determination regarding the imposition of sanctions here and is therefore not 

necessary to satisfy the requirements of due process. 

 Second, the motion for recusal pursuant to 28 U.S.C. § 455(b) is also denied. This motion 

for recusal relies on my “personal knowledge of disputed evidentiary facts” and my status as a 

“material witness” based on a phone call to the chambers of my colleague Judge Linares. 

Recusal is not appropriate because the representations made by and on behalf of Mr. Orozco so 

far have not raised any disputed evidentiary facts related to Mr. Orozco’s conduct before either 

me or Judge Linares or the substance of any conversation between myself and Judge Linares. It 

follows that the substance of any telephone call with his chambers is irrelevant to whether the 

Court should impose a monetary sanction on Mr. Orozco for his failure to appear as directed 

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before this Court at 12:15 p.m. on November 9, 2011 and for his failure to timely notify the 

Court of a time conflict with another proceeding prior to that time. 

 It is on this 5th day of December, 2011: 

 ORDERED that Michael A. Orozco, Esq.’s request for adjournment of the December 7, 

2011 hearing on this Court’s November 22, 2011 Order to Show Cause is DENIED; and 

 ORDERED that Michael A. Orozco, Esq.’s motion for recusal is DENIED. 

 Sincerely, 

 /s/ William H. Walls 

 United States Senior District Judge 

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