Belton v. United States

* FERREN, Before TERRY and SCHWELB, Judges. Associate * Pryor Senior was member of the divi- sion that heard this on November case

FERREN, Judge: argues Associate severance motion. Cowan that the evidence was insufficient to convict him of Although appellants variety raise a attempted cocaine and that distribution of appeal, issues appli- not all of which are engaged improper the trial court ex them, principal ques- cable to each of denied him a communication which appellant tion we must answer is whether sentencing hearing. Finally, this court fair sentencing hearing was unfair be- sponte propriety has considered the sua engaged cause the trial in ex twenty prison sentences of months that, communication Cowan con- years imposed attempted distribu- five tends, 3(C)(1) 3(A)(4) violated Canons pursuant of a controlled substance tion the ABA Code of Judicial Conduct. We indictment cited D.C.Code an III, resolving deal with that in Part issue manufacture, 33-541(a) (concerning dis- § summarily the other issues Part II. tribution, possession of controlled sub- or A jury appellants convicted and two co- stances) (1988) (concern- and 33-103 id. § conspiracy possess defendants of to and articles) ing definition of adulterated but cocaine, distribute 33- D.C.Code §§ (concerning attempt and not id. 33-549 § 541(a)(1), (1988), a -549 assault with dan- distribute, manufacture, conspiracy or to (1989), gerous weapon, id. 22-502 and § substances). affirm possess controlled We cocaine, attempted distribution of id. convictions, resen- except all to remand for 33-541(a)(l), Appellant -549. Cowan §§ tencing a different be- Cowan carrying pistol a was convicted of without appearance impropriety at- cause of an of license, (1989).1 id. For the con- § unexplained to the trial tributable convictions, spiracy appellants were sen- original at the hear- reference prison twenty tenced to terms of months to ing persons contact with to an ex addition, years; appellant five Belton highly critical of Cowan. $10,000. attempted was fined For distribu- tion, appellant to im- each was sentenced I. prisonment period twenty for a of months addition, evidence, appellant years; According government’s to five Belton $10,000. conspiracy fined For assault with a dan- to appellants of a were weapon, and Belton were gerous Cowan “crack” cocaine the Paradise distribute prison period complexes for a of apartment each sentenced to appellant forty years, Washington, months to ten All three of northeast D.C. thirty a term of was sentenced to and recruited run- appellants Gordon sold cocaine also was years.2 months to ten to additional sales. Belton and ners make “enforcers,” year protect- incarceration for sentenced to one also acted as carrying pistol conspirators against without a license. embezzlement robbery by outsiders. by the runners and that the evi- appeal, Belton contends On times, and assist- At Gordon cooked cocaine for conviction of dence was insufficient handling. money ed in and that the trial each of the three offenses Giles, plead- co-conspirator who mo- Samuel denying his severance court erred second-degree guilty to two counts of only appeal ed contention tion. Gordon’s murder, govern- on behalf of the alleged denying his testified trial court’s error substance, replaced by id. 33- §§ tribution of a controlled himself and was He later recused -549, 541(a)(1), reargument plea agreement pursuant for on Febru- Associate to Tsrry ary yet 1990. were dis- which as untried offenses under missed. (felo- first-degree Appellants acquitted 22-2401, armed, ny) §§ while D.C.Code murder all of Belton’s and Cowan's 2. The court ordered (1989), first-degree (premeditated) -3202 consecutively. The court or- to run sentences armed, id., second-degree and of while murder conspiracy and sentences for dered Gordon’s 22-2403, armed, §§ D.C.Code murder while concurrently attempted to run distribution (1989), Dozier on November of Kevin -3202 consecutively the sentence for pled each other but subsequently Appellant Gordon dangerous weapon. charge attempted with a dis- assault guilty an additional ment about the events of November bags. like came out of it. It in little * * * ” 1986, the day many of the events was a whole lot [I]t [co]caine.... described in the allegedly indictment took

place. According Giles, Cowan, he and II. “enforcers,” both went to a “base house” may readily dispose of all We the issues conspiracy looking Leroy for Hines. except alleged unfairness Cow- Apparently Hines owed money to the lead- sentencing hearing. an’s er conspiracy, (also Tony Adams known Fats), as Kenilworth and Adams A. had told Cowan and Giles to “see [Hines] The evidence was sufficient money.” had that Cowan and found Giles conspiracy, attempted convict Belton of dis Hines, hit him repeatedly, “dragged tribution cocaine and with a dan assault him over to Adams told Cowan [Adams].” gerous weapon, convict Cowan of Hines, and, to kill but Giles in- intervened attempted government’s distribution. The stead, “just whipped Cowan and Giles persons, evidence showed that two more tail.” carrying Both Cowan and Giles were including Belton, agreement formed guns. One witness testified that Cowan cocaine; possess and distribute that Belton “pistol whipped” and Giles Hines. knowingly voluntarily participated in beating Hines, After both Cowan and conspiracy; least one overt Giles walked first to then Adams and to a act committed in was furtherance lamppost, they by were met Belton common scheme. See United States v. Os and James Madison. Giles testified (5th good, 1087, Cir.), 794 cert. F.2d 1094 denied, 994, 596, 479 U.S. 107 S.Ct. 93 somebody get- said that was [Madison] (1986); United States v. L.Ed.2d 596 ting ready to come and buy some coke Treadwell, 257, 263, 245 U.S.App.D.C. 760 About time a [Adams].... denied, 327, (1985), cert. F.2d 333 474 U.S. up man walked When he [Adams]. 814, 1064, (1986). 106 S.Ct. 88 L.Ed.2d 788 up [Adams,] walked like stood [Belton] Moreover, under Pinkerton v. United catty-corner, know, front like you States, 646-48, 640, 1180, 328 U.S. over, [Adams], when I looked looked at 1183-84, (1946), party 90 L.Ed. 1489 to a up the dude was to him. Then that’s responsible conspiracy may be held for sub coming when around [another man] by stantive offenses committed a co-con the back.... when I heard the [T]hat’s spirator conspiracy. furtherance gunshot. fell on the down [Adams] Tarantino, See also United States v. 269 ground hollering. and started [Cowan] 398, 1384, 412, U.S.App.D.C. 846 F.2d 1398 running_ running. started I started (where appellant’s co-conspirators, but not firing We started at the dude. appellant, profits, “laundered” cocaine Cowan and chased the Giles man —Kevin laundering acts were also attributable standing had Dozier —who been with denied, 840, 867, appellant), cert. 488 U.S. Adams; fired each three shots him. 174, 83, L.Ed.2d 109 108 & 102 143 S.Ct. apartment building. Dozier entered an Lemire, (1988); United States v. 232 U.S. When and Cowan Giles reached the build- 100, 1327, 125, App.D.C. F.2d 1352 720 ing, Cowan told Giles he saw Dozier (1983) (upholding conspirator’s conviction building “l[]ying ground.” on the on offenses based foreseea substantive chase, running perpetrated co-conspirators After Giles “went ble acts denied, cert. conspiracy), down to see what was the matter with furtherance of 1226, 2678, standing up Adams was 104 81 L.Ed.2d 467 U.S. S.Ct. [Adams].” Thus, brushing bag (1984). properly off. con zip-lock himself 874 Belton was dangerous carrying weapon cocaine which Adams had assault victed for ground According pistol-whipping Leroy near was on the him. based Giles, bag] co-conspirators Adams “must have Cowan and Giles. had Hines [the open[,] Similarly, lawfully when he Belton and were fell the [co]caine [b]eeause 1210 co-conspirator convicted for at- light Adams’ fact that §

tempted citation, distribution of obviously appellant cocaine.3 incorrect relying

could have had no sound reason for But, event, any on it.5 stated facts B. count, coupled the fifth with the refer (unlawful 33-541(a)(1) ence to D.C.Code § did the deny Nor err in court possession or of controlled sub distribution ing Belton’s and Gordon’s motions for sev stance), gave appellants clear notice of a Contrary erance. con appellant’s to each charge attempted of a con distribution tention, in neither case was the evidence substance, trolled District which under the against appellant insignificant when Code, of Columbia the federal as under compared against with the evidence statute, degree punishable “is to the same co-defendants. See Christian United object as the offense which (D.C.1978), 394 A.2d 21 cert. de conspiracy.” Kenning United States v. nied, 442 U.S. S.Ct. ton, (5th Cir.1981) (per 650 F.2d (1979). case, Nor, L.Ed.2d 315 in Belton’s curiam); 33-549; see D.C.Code also § was his defense the de irreconcilable with 7(c) (indictment Super.Ct.Crim.R. shall id.; (Kirk fenses of his co-defendants. See customary state for each count official or D.) Williams v. citation; shall not error in citation (D.C.1978). ground mis for dismissal if it “did not preju lead the defendant to his her] [or C. dice”). appellants We would so rule even Belton, Gordon, and here, no one raised the issue trial. But prison to twenty sentenced for months to questioned the citation until to 33-103 § years for of a attempted five distribution Accordingly, sponte. this court did so sua (cocaine), controlled substance D.C.Code concluding appellant that clear received 33-541(a)(l), response -549. In to this §§ attempted charge, notice of distribution sponte argue inquiry, they court’s sua convinced that the we are without doubt sentences these cannot stand because “ to indictment is not ‘so deficient as be fifth count of the indictment cited D.C.Code totally lacking in the of an of- statement instead of the “at 33-103 33-549 for § § ” fense,’ States, Driver v. 521 A.2d United tempt” portion argu the offense. 254, (D.C.1987) M.) (quoting (Joseph 257 premised for invalidation on an ment 189, States, 404 A.2d v. United Williams mistyped assumption that 33-1034 was a § (D.C.1979)). appel- a consequence, 192 As (1989), to 22-103 reference D.C.Code § must deemed lants to waived permit general attempt provision criminal argument appeal. miscitation Id. on imprisonment year, ting maximum of one grand jury accordingly that the intend and charge attempt to offense under

ed III. 33-549, a more 22-103 instead under § § A. (and attempt conspiracy) provision specific longer argues im that conversa- permitting prison sentences Cowan an ex par- the trial third posed judge in this case. tion between and charged any appellant thought appellants at 22-103 § Because were with 5.If that substance, tempted might distribution of a controlled or doubt be involved had had other impossibility available to defense of was not charge punishment, and he about the related States, Seeney v. United 563 A.2d them. particu- could have filed a motion for a bill of (D.C.1989) history (analyzing legislative 1083 lars, respect did with to count as Cowan the first 33-549), analogue petition § federal D.C.Code M.) (Joseph of the indictment. Williams (1990). filed, No. cert. for (D.C.1979) (cit- Hsu v. United "adulterated ar- D.C.Code 33-103 defines an § (D.C.1978)). sale, ticle,” delivery exchange, or of which is (1988). proscribed D.C.Code 33-101 § ties protects undermined the fairness of his sentenc- the law and know that cares about ing hearing. hearing, Judge At that Wal- them. The then Cowan sentenced to anything ton asked Cowan he had sentence each of the the maximum on say. wished to Cowan his re- concluded for which crimes he had been convicted. sponse the following comments: Moreover, imposed Judge the sen- Walton just I consecutively, resulting feel there is a lot of in a whole tences cumula- your face, you times I look eight I look years tive sentence of from six and say myself, I and this know man don’t years twenty years felony guy me from no where. This know don’t plus charges, year carrying pistol one way me from no where. He this feels a license. without way. why, and that I don’t know man. hearing May At the you But I all feel should take an invento- 1988, Judge Walton did disclose the ry yourself you before all look at surrounding his conversa- circumstances else somebody say you way, this are Mayfair tion with residents from Manor. you way. got I are So that is all Cowan, moreover, object at failed to say. incarcerated, After he had time. how- Judge replied: ever, Cowan wrote a letter All I your need do is look at record August which the received on your history sys juvenile in the letter, requested 1988. In the you tem felony were convicted of Walton recuse himself Cowan’s mean, says something murder. related, upcoming previously trial on sev- person. you about a And all need do charges. denying ered order written go Mayfair Friday night. out to Manor recusal, pro se motion for talking I was some women live following explanation: Walton offered the they out in Manor know This did attend an affair which said And [James Cowan].[6] in Mayfair residents several who live was making their [James Cowan] li[ves] apartment present. complex were miserable.... my presence, they inWhile started to the court engaged then problems they experi- discuss dialogue: following trafficking encing drug due to in their THE They say they DEFENDANT: they area. As soon as defen- mentioned knew me? names of dant name and the his Cowan’s Yes, they THE heard co-defendants, COURT: immediately I told them I you. could not discuss or be a of a con- concerning it They per- THE DEFENDANT: me versation the case because know pending sonally? before me. There were still drug no further discussions about May- THE you go COURT: And out trafficking problem thereafter. More- Manor, peo- fair or Paradise and talk to over, subsequently speaking a declined there, ple you know, say out complex apartment at the invitation be- you running part- your because and my in defendant’s cause involvement selling drugs, ners were out there case. you making life miserable probably any- it mean them and doesn’t my pres- brief remarks made The doesn’t, thing you. I am sure it Mr. way the defendant in no influ- ence about Cowan. imposed. the sentence enced the court Furthermore, confident that continued, the court is stating several The on trial, a fair the defendant was afforded obligation that he had an take occasions period received favorable rul- having off the street for at least a numerous court, community from will also re- people ing[s] of time to let in the himself, incorrectly, making initially, he knew he re- rected clear that Giles, govern- Sammy speaking ferred to Cowan to James Cowan. however, judge, key cor- ment’s witness. The first time impropriety ceive a fair from this court in was disclosed for the however, impending quoted language, trial. after trial. The as it present is as relevant in the context B. analysis in was in the harmless error Scott. earlier, in than months Turman Less two Although Cowan did ask States, (D.C.1989) A.2d 1037 Judge Walton to recuse himself at the sen United tencing hearing curiam), because of the ex be- (per we reversed conviction conversation with resi judge’s appearance of the trial cause dents, we do not believe this affects our trial, though the defen- partiality at even standard of review under the circum objected the time. The fact dant had not First, stances of this case. it would be object was not ad- this failure to expecting defendant too much to hold a opinion is an indication that dressed our effect, failing, accountable for to accuse per- this court government neither the nor hearing just of bias at the before principal ceived that the defense had discretionary, virtually non-reviewable identifying expressing burden of Second, place.7 act of takes concern at trial. ethical judge should know the ethical restraints on event, did call his concern office; judicial a defendant should not about the ex communication penalized for failure appellate be review than three months judge’s attention less point judge the ethical rules out to a sentencing, with a view to the after the should without know upcoming tri- recusal dif coaching. As we noted a somewhat charges. the severed We believe al on ferent context Scott United Walton, having made aware (D.C.1989)(en banc), concern, have treated the ethical relying Ac Liljeberg v. Health Servs. re- timely motion for Cowan’s letter as quisition Corp., 486 U.S. (1988): present in the case as well. consideration 100 L.Ed.2d 855 Pettaway v. special error test Liljeberg harmless (D.C.1978) indulgent of (duty to be hardly clear that it would be makes ... (mo- pleadings); Super.Ct.Crim.R. 35 pro se appropriate place on a criminal defen- sen- judge’s integ- sentence or to correct to attack a tion to reduce dant burden Rather, duty illegal may to ensure manner rity. imposed tence the Canons days conduct in accordance with sen- than 120 after made not later resides, this court. part, at least in therefore see no imposed). We tence [Footnote omitted.] that Cowan has waived reason to conclude entitled compromised objection; failure to the issue of did not address Scott any to of review available to the standard object judicial impropriety because to identify issue on defendant and dissenting colleague's apparent to counsel, the ethical Despite our sentencing judge, defendants at than on the at a sentenc- view that all criminal rather ought judges impartial, defen- as hearing, consequence to view all trial with the of diluted confident, always likely review, to be so dants are not especially under the appellate would be unfair kind of re- if a defendant hears the Moreover, dissenting col- our circumstances. by parte about an ex contact made mark trial giving league's defendants concern that we are why judge a We here. can understand hip pocket[s],” ground in [their] "a for reversal counsel, ex- without defendant and confronted 3, post Whether an at 1216 n. is overstated. by parte planation a about an ex con- comment ground appearance impropriety is a for re- of defendant, highly critical of the would tact skeptical Liljeberg by applying the versal is determined reaction in the event about the Liljeberg v. special error test. See harmless judge's questioned the ethics defense counsel 847, Acquisition Corp., U.S. Health Servs. If, pronounced. just as our sentence was before 2204, 2194, 864, 100 L.Ed.2d 855 108 S.Ct. surely says, expect colleague can all com- "[w]e (1988); Part III.D. Under this see also infra judges lawyers are not petent to know that ... test, only appropriate in cases where reversal is parte with third 1217, supposed have ex discussions to injustice contrary produce an would result case,” post parties pending then about a public's in confidence undermine the and/or certainly expect the to we can even more judicial process. put ultimate failure as well. To know this Scott, criminal timely defendant who has made a by guided we were the recent request Supreme relief. in Liljeberg Court decision inter- 455(a) (1988), preting 28 U.S.C. a federal §

C. statute “substantially similar” to Canon 3(C)(1). Scott, at 749 n. 559 A.2d 8. In our question We turn whether analysis here, therefore, rely pri- we shall Judge Walton’s conduct violated Canons Liljeberg marily Scott 3(A)(4) 3(C)(1) determine or of the ABA Code of Judi 3(A)(4) whether either 3(A)(4) cial Canon or Canon provides Conduct.8 Canon 3(C)(1) has part: relevant been violated. A every should person accord At sentencing hearing, Judge legally interested in proceeding, stated in open partici- court that he had lawyer, or his right full to be [or her] pated in an parte ex conversation with resi- law, and, heard according except dents of apartment complex where law, authorized neither initiate nor Cowan conspired and his co-defendants had ex consider or other communica- sell, sold, and had crack cocaine. At tions concerning pending impending or time the no offered assurance proceeding. that he “would not consider the contact as 3(C)(1) sentencing Canon provides made his where relevant: deliberations.” Sloan, Therefore, A judge disqualify himself [or considering of the record as the time of the proceeding in which his herself] [or sentencing course, hearing which, of did impartiality might reasonably be her] — not include subsequent ex- Walton’s questioned.... planation confident cannot be that he —we This court has addressed the reach of obligation was aware of his under Canon times, these Canons several most recently 3(A)(4)not ex to consider conver- (reversible error, in Scott appear based on sation in his deliberations or ance of partiality, judge, who was statement, that he any was aware his negotiating for employment future event, might appearance par- create an of Department of Justice’s Executive Office 3(C)(1). tiality in violation of Canon Attorneys, for United presided States prosecuted by Department true, course, of Justice It that a through Attorney’s office). may United States range consider a wide information See also Turman (judge appear created See Williams v. New sentencing. aid of reversal, York, ance partiality, requiring 1079, 337 U.S. 93 L.Ed. parties where he (1949) announced to (judge’s presentence he had use in good impression credibility police vestigation imposing offi death sentence did witness, cer see also Wasman past ap process); based on witness’s not violate due pearances him, United before and then assessed 468 U.S. 3217, 3220, credibility assuring par (1984) (sen

witness’s without S.Ct. 82 L.Ed.2d 424 previous impressions ties that play tencing permitted jury court or must be ease); no in pending Sloan v. United role consider and all information that rea (D.C.1987) (per sonably might proper sentence); 527 A.2d 1277 cu bear on Tucker, riam) (no 3(A)(4) ap violation Canon States 404 U.S. pearance 589, 591, (1972) impropriety judge, at 92 S.Ct. L.Ed.2d 592 30 (before sentence, sentencing, he had determining “may announced learned after court jury appropriately inquiry trial that misunderstood had instruc conduct an broad in charge acquitted, scope, tion on it had either as largely which unlimited judge that would revise instruction in the kind of information or the source from ... future, come”). judge Accordingly, and that would not which may consider it Cow- decision). sentencing relationship that information in an’s character and his with the (D.C.1987) curiam). governs (per 8. The ABA Conduct The Code of Judicial the text of Canon 3 is Scott, judges appendix conduct of District set to in the of Columbia. out in full in an Sloan v. United A.2d at 527 1287 n. 12 757-60. (internal omitted). neighborhood sentencing. quotations were relevant to S.Ct. at 2204 Williams, Accordingly, Judge 337 U.S. at 250 n. must ask whether we at sentencing S.Ct. 1084 n. S.Ct. at 1084 n.15 Walton’s statements at the (probation report properly observer,” infor- hearing objective includes “an could lead record, offense, on appellant’s prior mation reasonably to id. family ed- history, neighborhood, home question judge’s impartiality, Canon the ucation, activities, religion, interests and 3(C)(1), an appeared he to consider because health, resources). employment, and The concerning parte “ex ... communication[] issue, therefore, matter; subject is not the pending impending proceeding.” a Can- Judge it is the Walton manner 3(A)(4). resulting obtained the information and the therefore, Specifically, we consider concern about whether he relied on that hypothetical objective observer who heard appeared rely information—or to on it—in Judge say sentencing Walton at the hear- 3(A)(4) 3(C)(1) violation of Canon or Canon “talking had been to some try opportunity when Cowan had no to to Manor,” who live out in women the discredit it. Given ex Cowan, “know” and who said James contact, effectively could not chal- making their that James Cowan “was lenge way information a defen- miserable.” observer li[ves] through challenge dant can a live witness had heard these know about way cross-examination or even in the sentencing for the first time at the women question defendant can foundation hearing opportunity pur- no to had had presentence report, Super.Ct.Crim.R. what had accuracy sue the 32(b)(3),or im- the foundation of a victim have reported. The observer would not 23-103(b) statement, pact see D.C.Code § anything heard about whether (1989). Thus, prohibi- the reason for the going or was to use that informa- 3(C)(1) 3(A)(4) tions of Canons clear: no sentencing tion in his decision. We have apparent partiality actual or undermines objective in concluding that this hesitation judiciary in the ... essen- “confidence reasonably have believed observer would functioning of our tial to successful com- Judge considered ex Scott, government.” democratic form of thus sentencing munication in (internal omit- quotations at 748 reasonably might be “impartiality that his ted). 3(C)(1). questioned,” in violation Canon Given our conclusion that Cowan sentencing There was a hint at the compromise right did not waive or hearing Judge Walton considered at sen Judge review of Walton’s comments irrelevant. communication tencing by failing object impro for actual Our review given the the re time—and fact that thus 3(A)(4) differs priety violation of Canon sponsibility lay squarely those remarks apparent impropriety from a review for say Judge cannot with the —we reply because, reviewing to actuali determine bearing on had Walton’s later ties, must include considera necessarily we Any ap 3(C)(1) problem issue. Canon all the relevant evidence extrinsic tion of definition—must con pearances by — hearing. Walton’s way sidered reference events denying Cow- explanation written later way a situa actually appeared, not recusal, therefore, becomes an's motion for might appeared tion if the of this evaluation. what he said several said at time months later. reject Judge reason to Wal- We have no explanation. appellant Nor has Cow- ton’s 3(C)(1), Canon we are applying explanation. questioned that Supreme Court’s statement mindful Walton, uphold officer sworn continuously must bear Liljeberg: “We law, brief represented the has high its function in perform “[t]he in mind Mayfair Manor ap remarks” residents of satisfy the way justice must the best way in no influenced the defendant “about pearance justice.” U.S. the imposed. sentence” he We are satis- will never be sure as we are that the fied that the did impression not “consider” conveyed sentencing the not information Second, he had inadvertently prejudicial received. to him. there is a sub- Sloan, 1287; that, 527 A.2d at Canon stantial risk failure unless to disclose 3(A)(4). accept We Judge also Walton’s parte such ex communications has conse- that, response when began others quences, discuss- judges may guards relax their drug trafficking problem the at May- against thus, appearances impropriety; Manor, interrupted discussion, fair the the risk that denial of relief in this will case it, stating part he could not be produce injustice insig- in other cases is not “were there no further discussions about Finally, nificant. we believe the risk drug trafficking problem the public judi- thereafter.” undermining confidence in the We are persuaded therefore also process great cial would be if no conse- Judge Walton did “initiate” the quences ex flow from the con- 3(A)(4). communication. See Canon duct at here. issue Someone who heard short, In we Judge conclude that sentencing what went on at and never engaged in an apparent aftermath, impropriety, i.e., see judge’s learned of the the 3(C)(1), improprie- Canon but that no explanation, actual would assume that occurred, ty 3(A)(4). see Canon went outside the record for information germane sentencing Cow- —information

D. an opportunity dispute. had no Having 3(C)(1) found a Canon vio Accordingly, we re- remand case for lation, apply special we must “the harmless sentencing Cowan before different Scott, of Liljeberg,” error test 559 A.2d at judge.9 respects In other all appellants’ all 747, since “a review record actu convictions are affirmed. prejudice al under the traditional harmless So ordered. error standard would be inconsistent with 3(C)(1) goal prevent Canon even SCHWELB, Associate appearance impropriety.” Id. part (concurring dissenting We therefore consider three criteria: “[1] part): injustice parties the risk to the in the particular case, ^[2] the risk that the denial agree majority that when Cow- of relief will cases, ^[3] the risk of produce injustice undermining in other proceedings an told judge during “you don’t know me from public’s judicial process.” confidence in the nowhere,” judge responded Liljeberg, 486 U.S. at S.Ct. at that some women at Manor had 2204; Scott, 559 A.2d at 752-53. told him their making that Cowan “was miserable,” impartial lives observer Here, analysis present can be obliged to would have been conclude summarily ed is clearly because the result things A were not as should be. place, indicated. the first risk of supposed private dis- injustice government granting from parties cussions with third about criminal virtually only Cowan relief is nil since him, are defendants in cases that before resentencing, retrial, not a is involved. may nor of those discus- he use fruits injustice appar Risk of to Cowan from an negate complaints. sions to the defendant’s damaging ent reliance ex com Appearances changed considerably is far He heard how- munication more serious. ever, convincing heard. matter after an issue of the what he No how made explanation three later in judge’s the trial months remark. impro incident, colleagues articulating why my was no actual there accept, reasonably properly are was that as priety, majority quite we certain Cowan resigned judge. Walton has bench to different event would before resentencing appointment, take a so federal unconven- majority’s names of rather soon as the women mentioned the Under co-defendants, then, judge attorney did approach, Cowan and of his tional Cowan’s improper for advised them that it would be by objecting not when his client a favor him to discuss the matter further because contemporaneous If could have done so. pending the case was before him. He still judge and the objection had been made indicated his written order that he was contemporaneous disclo- responded with a influenced, Cowan,1 sentencing by not sure, evidently deny my colleagues would during the brief remarks which made objection no any relief. Since colleagues Mayfair My his visit to Manor.2 made, however, they vacate the sentence op at 1211- apparently acknowledge, maj. resentencing by another and remand for explanation pro- if this had been signal extraordinary judge. This is an contemporaneously the disclo- vided with you if make a send to the defense bar: comments, ap- sure of the women’s lose; you silent- timely objection, you sit pearance impropriety would have been possibili- preclude the ly by and thus all but proper- dissipated, judgment and the could timely judge provide a ty that the trial will not ly judge be affirmed. Since the did Objections are ordi- explanation, you win! provide explanation his until several court to narily required permit “to the trial fact, however, my col- after the months thereby to avoid fully rule on the issue impro- leagues say appearance that the error.” Dixon v. United potential persisted and that sentence priety Cowan’s ease, (D.C.1989). In this must be vacated. however, acceptable it majority finds by represented sentencing Cowan was appear- prolong the any objection, defer from the Public Defender Ser- able counsel prevail on impropriety, and then ance of judge alluded to the re- vice. When the very mischief which appeal because Mayfair Manor which residents of marks by objecting con- might ended counsel have Cowan, attorney his could had made about temporaneously.3 brought judge’s attention have “it According majority, knowledge of had no these fact that Cowan hold a defendant expecting too much to parte discussions and that apparently ex effect, to accuse failing, for accountable incon- of them was invocation bias[4] hearing just before judge rights. could with Counsel sistent virtually non-reviewable discretionary, any appropriate relief. requested then have op. Maj. place.” takes act of done, then the could If this had been was intended 1212. If this statement provided have presumably would have and my col say, then what it seems to mean explanation of the circum- spot the on the justified leagues think that a defendant gave Cowan raised which he when stances assumption that the proceeding on the evidently agrees majority the issue. will tyrant who is a the need eliminated this would have by sub objection respond legitimate to a resentencing. for spot, dealt with on the corrected or obviously have been had the 1. The object is coun- when he told Cowan failure to in mind and the defendant's conversation it, court, necessarily mean that conse- by appellate about but this does tenanced appropriate determining the it in ground he considered has a quence defendant is that the sentence. hip pocket. can use it if he is He in his reversal outcome, hold but forever dissatisfied Although influenced agree that a peace I cannot if he is satisfied. remarks, though he acted cor- and even these rectly option, espe- have such an defendant perhaps terminating discussion and appearance problem cially is an thought, it would have been gave it no further actual he suffered no impropriety from which to counsel the contact prudent to disclose prejudice. sentencing hearing. See Sloan advance (D.C.1987) curiam). could, incidentally, (per point defense’s 4.The inflammatory the use of the made without approach intractable majority’s creates 3. The 1215-1216, supra. pages term “bias.” occurs which could problems. an "error" When

1217 (the defendant) jecting him repris injustice, litigant ordinarily to cruel or manifest a prolonged als and incarceration for exercis point appeal waives a on if he not does rights. his I suggest basic that counsel court, press it in the trial even where the knew, for Cowan certainly and should have ruling evidence or to which he failed to known,5 that judge thé would entertain Dixon, object to him. prejudicial was on motion its violating merits6 rather than supra, M.T., D.D. v. 80-81; A.2d at 550 565 by his oath of penalizing office Cowan for Here, (D.C.1988). majority A.2d 48 making legitimate objection.7 a agrees prejudice. there was actual no In further defense of a doctrine present might perhaps case call for would reward a defendant’s failure to v. Dixon D.D. different and result timely objection, my colleagues make a M.T. if the judge’s alleged violation maintain, maj. op. provision been of obscure of the some Code judge know the ethical should re- of Judicial Conduct with which counsel office; straints on the a defen- might have can been familiar. We penalized appellate should dant not be surely expect competent lawyers, all how- point judge review for failure to to a out ever, judges supposed to are not know the ethical which the rules should parte to have ex discussions with third coaching. without know parties pending rely about a case and surely proves But this too A judge much. objec- them in a defendant. An know, supposed is also “without coach- plainly tion was called for. ing,” procedure the rules of evidence and My colleagues support claim to find and agency, the law of not to mention the States, Scott v. (D.C. United title, 559 A.2d 745 Shel- doctrine worthier Rule Case, 1989) (en banc), ley’s Turman and the and in renvoi. intricacies Nevertheless, cu- (D.C.1989) (per plain the absence of error A.2d 1037 555 Felder, colleagues 5. See United agree my States A.2d 548 69 cannot with that either (D.C.1988): may legitimately defense or this counsel court Felder, through objection premise ex Defender act on the that an [Public Service] counsel, urging parte us to use a deferential request explana- conversation and for an Judge it, measure of review referred to respectfully, politely tion of if made and Indeed, experienced judge. Judge as an appreciable possibility would have created some experience Walton's in the criminal law is part improper judge. retaliation on broad, deep, insightful. and often We think by Every "exception, your generated is honor” Walton, give Judge best tribute we can ruling by some kind of or action the trial hold, do, is to as we after our de novo review client, simply adverse we can- to counsel’s question, ruling eminently that his was presume that a make a will defendant correct. pay attorney challenges an error on where, say here, judge, This not to Walton would even the error necessarily expected impose le- parte ex an undisclosed contact. merits, regard nient sentence if the without As for this Newman stated court counsel, by justified objection punish- an severe n. Johnson v. United 398 ment. (D.C.1979) (quoting deletions Magruder, The Trials and Tribulations Intermediate According majority, Judge Walton’s al- Court, (1958)), L.Q. Appellate Cornell lusion, explanation," "without ex to his always they we must bear in mind [trial conversation about Cowan with women at some good lawyers judges] may be as as we are provided justification for a de- They disadvantage of are under the better. perception consequences fense terrible rulings having to off the ... often make cuff "questioned ensure if would counsel press urgency of a trial.... in the just pronounced.” before sentence was ethics Maj. Hence, approach judi- our task of we op. appreciate at 1212 n. 7. I fact that genuine humility. cial with a review certain been aston- his counsel must have judges may “rogue” punish a few disclosure, There be judge's but ished unusual rights, litigants exercising their but at least for remained ex contact would not have excep- jurisdiction in this the rare explanation” if "without defense counsel had legal principle A tion rather than rule. requested for counsel one. There no need contrary Walton, assumption you on a say "Judge which is based are and uneth- to ical,” biased logic unjust comparable flawed in its conse- or to in some its insult the way. quences.

nam), record, proposition timely brought lurk that no in the neither objection required upon, is where reversal is of nor are attention the court ruled sought appearance on the basis of an of having not as been so to be considered impropriety part judge. on the the of trial precedents. decided as to constitute supports Neither case their thesis. In 511, Fall, 507, v. 266 U.S. Webster Scott, the defendant could not have filed a 148, 149, (1925); 411 69 L.Ed. also timely objection proceedings, based 414, Thompson v. judge’s employment negotia- on the trial (D.C.1988).9 n. 423 14 Justice, Department tions with the of be- My colleagues say they are “satis- cause the had not disclosed those Cowan, the fied” that negotiations at the time of trial and the did the information he had not consider Indeed, of them. defendant was not aware inadvertently at received Manor. court noted that defendant had prej- Maj. op. They at 1214. find no actual timely filed a motion to vacate after the that, udice I to Cowan. would hold came A.2d facts to his attention. 559 his conviction contemporaneous objection A a defendant seeks reversal of not Scott, sentence) (or case, having possible in as in this vacation of his been the court assuredly holding litigant solely appearance an not on the basis of not if he she partiality part need make one even or has impropriety or opportunity to do so.8 timely objec- judge, but fails to make a which, tion in the trial court under Turman, In this court reversed the de- circumstances, reasonably or she could he a result of fendant’s conviction as made, will have the conviction or sentence that, judge’s improper having comment aside the misconduct was set unless presided pros- prior over trials in which the so serious that reversal would testified, had ecution’s chief witness provided a even if the warranted this credible. knew witness was explanation. No such contemporaneous opin- There was not a word in this court’s Accordingly, showing has been made here. ion, however, objection as to an whether judgment of the trial I would affirm the had been should have been made court, respectfully I therefore dissent Accordingly, trial court. cannot Turman In from the vacation of Cowan’s sentence. properly authority be invoked as on the respects, join judgment I question objection all other whether such rely necessary. purporting opinion I fear that in court.10 my colleagues have failed to on Turman admonition, Supreme Court’s as

heed almost

cogent today as when it was written century ago, that

two-thirds of a that can be said is that the most

[t]he anyone was in the case if had seen

point Questions merely

fit to raise it. which (1944) (words opinions portion opinion are to be to the effect 89 L.Ed. 118 8. The of the Scott discussion; place transpo- “hardly appropriate light it would be read under facts misleading). the burden to attack a a criminal defendant often sition other facts is 755, by my judge’s integrity,” 559 A.2d at is cited colleagues, maj. op. at somewhat out of my colleagues, respect do 9. With due inter It of a discussion of the context. principle as a think becomes established appearance play error between harmless government precedent "neither the nor because with the partiality, does not deal all something perceived” that was neither this court timely objection is neces question whether a maj. op. at 1212. decided. See raised nor event, sary. is well to remember ”[i]t given general significance is to broad and majority points de- which the 10. Four other only comparing law facts statements of indicated,” op. “clearly maj. scribes arise with those facts which response. also merit Kraft, they supposedly apply.” v. 155 Kraft id., First, say, (D.C. 1959); my colleagues risk & Co. see also Armour nil, Wantock, 126, 132-33, government virtually injustice be- U.S. S.Ct. FLEMING, Joseph al., Equity W. et t/a 80F, Leasing Appellants/Cross

Appellees, COMPANY,

CARROLL PUBLISHING

Appellee/Cross Appellant. 88-751,

Nos. 88-640.

District of Appeals. Columbia Court of 24,

Argued April 1990.

Decided Oct. retrial, only resentencing, cause not is involved. sentence will contribute additional inhibi- agree Moreover, I question that the cost in Scott—a new trial —was tion. I whether a deter- time, substantially greater. where, productively But aside from rence rationale invoked money, here, expended concededly and effort which must be there no intentional vacated, wrongdoing judge. sentence is have to be will the by judge sentenced preside Finally, my colleagues who did apprehend public over trial, familiarity the judicial system who will have far less confidence the will be under- sentence, Judge Super.Ct. with him than Walton had. See we do not mined if vacate Cowan’s 25(b); Gaffney hypothetical Crim.R. person persons some because or denied, (D.C.1980), may present cert. who when Cowan was (1981). sentenced, U.S. 68 L.Ed.2d 330 and who never of the learned conversation, (Ironically, implied explanation that he wanted to be him, by judge might judges sentenced who knew and it was continue to believe that sentence complaint people parte Walton did not know the basis of ex information. Id. case.) precipitated problem theory logic. him that in this own This founders on its If a sentencing by hypothetical spectator A real at the does not read benefit — opinions, knows the most thus about defendant —will our then in most cases he or she will out, case, solely be appearances. sacrificed sake of however we find decide Second, according majority, judgment Accordingly, "Cowan has been reversed. impres- reputation never will be as sure as we are that the will not redeem reversal conveyed prejudicial spectator’s eyes. spectator sion judiciary was not in that If a Maj. op. propriety opinion, to him.” the case read our 1215. The does follow and does vacating opinion dependent, or Cowan’s sentence is not then he she will learn from however, my colleagues’ speculation explanation parte as to the ex con- Walton’s Rather, may problem, may it what he not believe. tact and of our resolution of “objective, respect turns on how an disinterested ob- restore his or her for the system fully server of the facts” view whether we affirm or reverse. I informed McMillen, theoretically suppose that Pepsico, the situation. it is conceivable that Inc. Scott, (7th Cir.1985); accord, opinion F.2d su- who does not read this court’s someone independently pra, 559 A.2d at will learn was resen- Third, tenced, my according colleagues, person will is a that this conclude that there resentencing risk that "unless must have occurred because the ex failure disclose such ex may improper, consequences, judges to be communications was found has conversation guards against appearances impro- develop relax their and therefore renewed confidence in suggest, though, priety.” Maj. op. judiciary. publication 1215. But I this even- vacating opinion tuality of an the court far too remote to warrant in which holds that Conduct, really Code of do not think that we should violated the Judicial sentence. surely provides adequate remanding specu- inadvertently, cases on the of such albeit deterrence; basis illusory possibilities. I do not how the vacation lative and

Case Details

Case Name: Belton v. United States

Court Name: District of Columbia Court of Appeals

Date Published: Sep 6, 1990

Citation: 581 A.2d 1205

Docket Number: 88-446, 88-573 and 88-773

Court Abbreviation: D.C.