United States v. Brocato, 4 F.4th 296

Background:

Judith and Dick Brocato owned Superior Lawn Service and were convicted by a jury of conspiracy to commit tax fraud and filing false returns after concealing about $1.7 million in business income.
At trial Judith testified she used $9,000 from her mother’s estate toward a 2013 Maserati down payment; the Government did not impeach that testimony.
Court staff conducted an internet search that located an obituary indicating Judith’s mother died in 2015, leading the judge (in chambers) to state that Judith had committed "perjury" and to instruct defense counsel not to argue the estate-source during closing.
After conviction the judge required higher postconviction bonds, citing shredding of documents and the perceived perjury; probation rejected an obstruction enhancement and the judge sentenced both defendants at the low end of the 33–41 month guideline range to 33 months.
The Brocatos moved to recuse under 28 U.S.C. §§ 144 and 455 and the Due Process Clause, alleging an ex parte, extrajudicial investigation by court staff and resulting judicial bias; the district court denied recusal and the Fifth Circuit affirmed.

Issues:

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether judge/staff internet search producing obituary was an extrajudicial source requiring recusal under § 455/§144	Staff’s independent internet search produced an extrajudicial fact (obituary) that led judge to conclude Judith committed perjury	Judge’s view flowed from trial testimony; staff acted passively and any death-date verification was judicially appropriate	The search was an extrajudicial source, but on balance did not create an appearance of partiality; no recusal required
Whether the judge’s labelling of testimony as "perjury" and bond increase showed actual bias affecting sentencing	The perjury accusation and bond decision reflect personal bias that infected sentencing	Court did not apply obstruction enhancement, adopted PSR, sentenced at guideline bottom, and did not reference perjury at sentencing	No abuse of discretion; context dispelled appearance of bias
Whether the Brocatos’ delay in moving to recuse undermines their claim	Delay was excusable because judge requested certified death certificate shortly before motion	Delay (>6 months) cuts against credibility of recusal claim	Delay noted as relevant but not dispositive; did not change outcome
Whether failure to recuse violated Due Process (objective probability of bias)	Due process violated because judge’s conduct created unacceptable risk of actual bias	Due process requires extreme facts; circumstances here are not extreme and average judge likely neutral	No due process violation; Fifth Circuit affirmed denial of recusal

Key Cases Cited

Liteky v. United States, 510 U.S. 540 (1994) (judicial remarks or opinions are not disqualifying unless they rest on extrajudicial sources or show antagonism making fair judgment impossible)
Tejero v. Portfolio Recovery Assocs, L.L.C., 955 F.3d 453 (5th Cir. 2020) (distinguishing normal judicial records searches from problematic extra-record factual investigation)
Kennedy v. Great Atlantic & Pacific Tea Co., Inc., 551 F.2d 593 (5th Cir. 1977) (law clerk’s out-of-record site investigation and reporting to judge is unacceptable and warrants recusal)
Patterson v. Mobil Oil Corp., 335 F.3d 476 (5th Cir. 2003) (standards for sufficiency of affidavit under § 144)
Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009) (Due Process requires recusal only in extraordinary circumstances creating a significant probability of actual bias)
Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847 (1988) (appearance-of-justice standard relevant to recusal analysis)