30 F.4th 646
7th Cir.2022Background
- Jason Gmoser operated a dark‑web child‑pornography distribution enterprise; a jury rejected his insanity defense and convicted him under 18 U.S.C. §2252A(g).
- After remand to merge lesser included offenses, he was resentenced to 360 months (30 years) imprisonment; he does not contest the sufficiency of the evidence or the sentence length.
- Gmoser raised two evidentiary challenges: (1) the prosecution’s rebuttal psychiatrist, Dr. Leventhal, testified without personally examining him; (2) Carnegie Mellon University produced records to the FBI pursuant to a subpoena Gmoser claims was invalidly authorized.
- The court concluded both evidentiary objections were forfeited because Gmoser failed to develop them in the district court and did not show controlling authorities or procedural objections there.
- Gmoser’s principal claim sought a new trial under the Due Process Clause and 28 U.S.C. §455(a) based on Judge Colin Bruce’s ex parte email communications with the U.S. Attorney’s Office (not copied to defense). A Judicial Council found Judge Bruce’s conduct unethical and limited his criminal work.
- The district court (Judge Shadid) found a single trial‑period email reading—"My bad. You’re doing fine. Let’s get this thing done."—was not evidence of actual bias in context; the Seventh Circuit affirmed, holding the email was not clearly erroneous proof of bias requiring a new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of expert testimony by a psychiatrist who did not personally examine the defendant | Leventhal should be barred because psychiatric experts must personally interview subjects before testifying | Rule 703 permits experts to rely on reports and records; no evidence experts must personally interview; Gmoser forfeited the argument | Forfeited; Rule 703 allows testimony based on facts or data made known to the expert and no constitutional personal‑interview rule established |
| Validity of university subpoena to Carnegie Mellon (authorization under 18 U.S.C. §3486) | Subpoena invalid because signed by a Supervisory Special Agent rather than a Senior Supervisory Special Agent | University produced records without objection; Gmoser lacks standing to enforce third party’s defect and forfeited the issue in district court | Forfeited; university did not object and Gmoser cannot enforce its rights |
| Whether Judge Bruce’s ex parte communications required disqualification or a new trial (Due Process / §455) | Ex parte emails show appearance or risk of bias requiring a new judge and new trial | Prior Seventh Circuit decisions draw line; only actual conflict or serious risk of bias requires new proceedings; here no material discretionary decision affected verdict or sentence | No new trial; when no material discretionary decision was affected and no actual bias shown, reversal is not required |
| Effect of the single trial‑period email (“Let’s get this thing done”) | That phrase, in context, shows bias (equivalent to “Let’s get a conviction”) and mandates a new trial | Context supports innocent reading (advance to trial now that discovery compliance shown); district judge’s factual finding on meaning is not clearly erroneous | Held not clearly erroneous; email, read in context, did not demonstrate actual or probable bias; appeal affirmed |
Key Cases Cited
- United States v. Atwood, 941 F.3d 883 (7th Cir. 2019) (remand required when an ethically impaired judge made discretionary rulings that materially affected outcome)
- United States v. Williams, 949 F.3d 1056 (7th Cir. 2020) (ex parte communications that create mere appearance, absent actual or serious potential bias or material discretionary acts, do not automatically require a new trial)
- United States v. Orr, 969 F.3d 732 (7th Cir. 2020) (applies Atwood/Williams framework to judge Bruce’s communications)
- Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009) (Due Process requires recusal where extreme facts create serious risk of actual bias)
- Del Vecchio v. Illinois Department of Corrections, 31 F.3d 1363 (7th Cir. 1994) (appearance of bias alone insufficient; must show significant potential for prejudice)