United States v. Anderson

GARZA, Bеfore REYNALDO G. JONES DeMOSS, Judges. Circuit GARZA, REYNALDO Judge: G. Tony Leroy appeals Anderson his sentence forty-six months pleading guilty after robbery. one count of bank We vacate his sentence resentencing and remand for be- cause we find the district should prior have recused sentencing. himself Background I. Factual July Anderson, Tony Leroy On pled guilty to robbery one count of bank reasonably questioned. A motion for recusal McBryde, United Honorable Jоhn before the of the is within the discretion district the Northern Dis- District States will not be and the denial such motion trict of Texas. appeal judge has reversed on unless the August During the week his discretion. v. Woman’s abused Garcia counsel, First Assistant Pub- trial Anderson’s (5th Texas, 227, Hosp. 230 Cir. 143 F.3d of Striekney, subpoe- Paul D. lic Defender 1998). witness, as a and testified naed recognized This Circuit has that spe- a McBryde proceedings in before Judge 455(a) extremely sectiоn case is fact each Fifth investigatory committee of the Cir- cial bound, judged intensive and fact and must be 9, 1997, On October cuit Judicial Council. unique circumstances rather on its facts and sentencing, moved day prior to Anderson one by comparison con than to similar situations McBryde reassign- Judge and for recusal of prior jurisprudence. in sidered United judge. case to another district ment of the (5th Jordan, 152, 157 Cir. States motion on Judge McBryde denied the recusal 1995). party seeking recusal must dem not create an ground that these facts did that, person onstrate if a knew of reasonable prejudice against appearance of bias or circumstances, they all would harbor or his counsel. Anderson judge’s impartiality. about the Trav doubts government or Anderson ob- Neither the Inc., Liljeberg Enterprises, elers Ins. Co. v. (PSR), presentence report jected to the Cir.1994). 1404, Thus, if a adopted the factual court PSR’s district impartiality might concludes that noted findings conclusions. The PSR reasonably questioned, he should be then years punishment maximum was 20 that the In requires that the statute his recusal. find to to guideline range be 37 and calculated (5th Cir.1988) Faulkner, re 10, 1997, Anderson 46 months. On October Acquisi (citing Liljeberg v. Health Services McBryde to 46 by Judge was sentenced 847, 860, Corp., 486 tion U.S. by three imprisonment, followed months (1988)). goal of sеction 100 L.Ed.2d supervised Anderson then years of release. 455(a) appearance is to avoid even the timely appealed to this Court. Liljeberg, 486 U.S. at 860. partiality. specific this case we hold light of the facts of II. Discussion Judge McBryde abused his discre that the reversibly failing in to recuse tion and erred challenge not his convic- Anderson does It is clear from Anderson’s case. himself requests that his sentence appeаl tion. His appraised of person, reasonable when that a that the ease be remanded be vacated and this that surround the relevant circumstances resentencing before a different district case, Judge harbor doubts about would that judge. court Anderson contends average person McBryde’s impartiality. The and revers- McBryde abused his discretion situation, specific viewing when this refusing himself from ibly to recuse erred McBryde’s ability to be im question attorney ease after Anderson’s Anderson’s attorney involving an who partial in a case McBryde in the Fifth against Judge testified adversely testified proceedings. Council Judicial proceeding. McBryde in a Council Judicial person that a reasonable Anderson asserts attorneys are fear many As Anderson notes Judge McBryde’s about would harbor doubts complaint against filing a ful of even ‍‌‌‌​​‌‌​‌‌‌​​‌​​‌​​​‌​‌‌‌‌​​‌‌‌​​​​​‌​​‌​​‌​​​​​‍involving ability imрartial in a ease to remain council, due to fear to a circuit adversely to attorney who had testified complained-against that retaliation from proceed- McBryde in Judicial Council merely filing a fear in judge. If there is reprimand- being him ings that could lead to that a judge, it is evident complaint We find Anderson’s ed or even sanctioned. actually testifying from greater fear arises valid. contentions that hear judgе, present against a who circumstances under these provides ing. It is difficult Title 28 U.S.C. person would any argue in to that a reasonable disqualify himself a federal shall McBryde’s any harbor doubt about impartiality might be proceeding in which his Rather, recognizes impartiality. This Court that it is move for recusal. Anderson raised appearance essential to avoid even ground any for recusal before sentence impropriеty important because is as in imposed. litigation There was no con- judi- developing the confidence our cerning guilt, Anderson’s all that remained avoiding impropriety system cial itself. be determined was the duration of his sen- Jordan, 49 F.3d at 155-56. Therefore, tence. because Anderson filed his prior motion to sentencing, recuse we find February On the Fifth Circuit timely challenging that the motion is making issued an Judicial Council order ex- sentence. ecutory portion of a Judicial Council ordering Judge Order December This Court also holds that Anderson’s re- participate in involving not to cases reasonably specific, cusal motion is attorneys who have testified him for Governing under the Fifth Circuit Rules period years. Although of three not dis- Complaints of Judicial Misconduct or Disabil- positive, group this demonstrates that a ity, attorney prohibited Anderson’s from Judge McBryde’s colleagues own have con- discussing the testimony given content of the cluded that there is reasonable doubt of Moreover, at proceedings. Judge Judge McBryde’s ability to be aris- McBryde present proceed- was either at the ing attorney’s testifying against from an him. ings transcript or had access to a obligates party Section 455 also Thus, attorney’s testimony. Anderson’s disqualification argument to raise the at a Judge McBryde fully pаr- aware of the litigation. Hollywood reasonable time in the grounds provided ticular requiring recu- Gabor,

Fantasy Corp. v. 151 F.3d 216-17 sal. (5th Cir.1998). Moreover, party seeking “disqualification must so at do the earli Accordingly, Anderson’s SENTENCE is knowledge est moment after of the facts VACATED and his case REMANDED for demonstrating the disqualifica basis of such reassignment pro- to a different Co., tion.” Travelers Ins. 38 F.3d 1410. ceedings opinion. consistent with this addition, ‍‌‌‌​​‌‌​‌‌‌​​‌​​‌​​​‌​‌‌‌‌​​‌‌‌​​​​​‌​​‌​​‌​​​​​‍In party “when a seeking recusal knows or should know the facts on which JONES, EDITH H. Judge, Circuit recusal timely is based he must make a mo dissenting: disqualify tion to right or lose his to do so.” Acquisition Health Services Corp. Lilje Tony Leroy Anderson and Ricardo Avilez- (5th Cir.1986) berg, aff'd, Reyes, represented by the Federal Public 847, 108 486 U.S. S.Ct. 100 L.Ed.2d 855 Office, pleaded Defender’s guilty, respective- (1988). ly, robbery possession to bank and in- with tent methamphetamine. distribute Be- This Court finds that Anderson’s plea agreements tween them and timely. motion for recusal was Anderson hearings, a unique event pled occurred. The dis- guilty robbery only to bank and chal judge responsible trict for their lenges cases was imposed by the sentence brought McBryde. before a conduct and disci- Anderson made his motion for plinary hearing day prior recusal convened the Fifth sentencing, one but had known Judicial Council. In attorney’s hearing, of his testimony against attor- neys Judgе McBryde who for over testified six weeks. Al Honorable though McBryde John predominantly Anderson knew of were govern- the basis for the time, lawyers: recusal for a ment six lawyers considerable this current or former Court finds that from the Judge McBryde’s Attorney’s Anderson raised United States Office in disqualification Texas, at a the Northern reasonable time. It is District of five from the clear that Anderson wait to see what Federal Public Defender’s Office.1 Because sentence impose, and Chief of this circuit has refused to then, unfavorable, when that sentence was make the disciplinary hearing records of the attorney-witnesses against Judge McBryde The McBryde's are listed in Memorandum at 8-10. nought. A complaints come to reasonable testimony was know what we do not public,2 circumstances, would Nevertheless, person, knowing all the by whom.3 presented or judge’s reason to doubt the not have had represented who public defenders federal impartiality these defendants. See toward MeBryde’s sought these defendants Inc., 109, 116 Cir. Hipp, re they them- sentencing because recusal from 1993). hearing. at the against him testified selves Both defen- their motions. denied responsible public defenders were not applicable sentenced within were dants There is no convening hearing. only as their ranges and raise Guidelines their testimo- meaningful distinction between of recusal. appellate point the denial hearing ny against Judge McBryde presiding questioning a lawyers’ publicly Judge McBryde My colleagues hold ability impartiality to handle judge’s further, and, that defen- have recused should impact this criticism is Yet the ease.4 respectfully I are vacated. sentences dants’ panel, apparently differently by treatеd interpretation of My colleagues’ dissent. it later resulted sanctions with our in these cases conflicts McBryde. and, unnecessarily provoking precedents recusals, more requiring stringent motions and more unwarranted the efficient problems for will create serious will hinder the effective for recusals standard federal justice justice. Although courts of of administration administration addition, analy- appear- in no they engage maintaining the In mindful that courts. must be important the remedy, although partiality at least as of is sis the ance of equally in these have a actuality, judges error was harmless federal defendants its unfairly pile Finally, properly before them. duty their decisions to sit on cases cases. Inc., already been that Lambert punishments the have In re Drexel Burnham on See (“A (2d Cir.1988) by judge Fifth McBryde is as imposed Judge on F.2d it is obliged himself when Judicial Counсil. not to recuse much is.”); obliged when it as he is not called for Rogers, I. F.2d Hinman Cir.1987) (“There obligation for a is as much principal is to review panel’s error The there is no occasion judge not to recuse when only in MeBryde’s decision recusal Judge so is for him to do him to do so as there recusal motions hindsight. The defendants’ is.”). not cower be- They must there when as the in terms of events must be viewed heavy-handed attempts to stifle their fоre public at time. The parties knew them the integ- on their independence false attacks Judge against had testified defenders rity. disciplinary hearing was McBryde and the three opinion raises at least over, rendered. yet no had been but decision First, public these federal problems. of proceeding sets potential seriousness of judge essentially that assert stage, partic- that beyond dispute, but defenders wаs their clients because not be to proceeding, its ularly novelty of the could given the (the him, which they lawyers) to foreseen. what hardly been of outcome could have extrajudicial source they allege created an Judge to think that is no reason There suggest Does this prejudice. or clients influence had for the McBryde would have it lawyer who faces any aggressive testifying against him. that people who wеre judge he dislikes of a trial before develop prospect skin judge must a thick Every complaint spurious misconduct criticism, file a judicial conduct could against most fact, hearing testimony 372(c)(14)(C). disciplinary § 4.In 2. 28 U.S.C. See garden- threatening proceedings, regard but than publication of all the even less requested in one preroga- proceedings exercised unilateral variety public Chief because the the tive to criticisms request. deny that not be made in secret and could were held McBiyde’s consent. without panel Judicial was on the member of this One hearing but was not at the time of the Council hearing. participant in the direct judge, give unflattering favorably disposed inter- any attorneys toward — press, publicly view to the or otherwise re- who testified on his behalf? judge, buke the and then seek recusal? panel’s holding allow some will attor- fact, rejected typically “courts have recu- neys get to judges unfavorable disqualified sal ... litigant’s motions on based deliber- from their cases. Simultaneously, it will ate act of criticizing judge eliminate attorneys incentives for other to system.” Owens, States v. United up stand for a allegations once (4th Cir.1990). 1154, 1156 The First Circuit lodged him, misconduct are for fear repeated Judge once Wyzanski’s Charles col- having disqualified him from their future orful cоmments on such a situation: “[I]t nothing cases. This is perverse short surprises person rather me that a any cannot Congress contemplated be what when status at the end of the game first half of the 455(a). § it created suggest referee, quali- who was Where recusal many prob- could lead to so fied at the beginning, disqualified at the lems and where McBryde was neces- middle because player in the meantime the sarily unaware оf the ultimate conclusion of cursing has been the referee outside of disciplinary proceeding, I would hold that court.” In re Corp., Union Leader not an abuse of discretion for (1st Cir.1961). 381, 388 See also 13A Charles McBryde not to recuse. al., Wright Alan et Federal Practice and (2d 1984) Procedure at 577-78 ed. II. (“A party disqualification cannot force attacking claiming and then if Judge McBryde’s Even failure to recuse these attacks must hаve caused error, himself were it would be harmless him_”). be biased My error. colleagues conclude summarily “reversibl[ej” that the error is in both cases. Second, there is even less reason to think Their ignores method Supreme the Court’s that a impartially react to a approval of harmless analysis error represented by defendant ‍‌‌‌​​‌‌​‌‌‌​​‌​​‌​​​‌​‌‌‌‌​​‌‌‌​​​​​‌​​‌​​‌​​​​​‍the Federal Public 455(a) § context. See Liljeberg v. Health Defender’s Office. knows that the Acquisition Servs. 847, 862, Corp., 486 U.S. client had no of choice counsel that no and 2194, 2203-04, 108 S.Ct. 100 L.Ed.2d 855 significant “punishment” could be inflicted on (1988) (“There need not be a draconian reme by treating counsel the criminal defendant dy every 455(a).”). § for violation of unfairly. Moreover, general the rule is that court generally This applied a three- disqualification motions should focus on the prong harmless error finding test after appearance partiality of against party, the § See, e.g., violation. United States v. not counsel. See Davis v. Board Sch. 885, (5th O’Keefe, 128 Cir.1997), F.3d Comm’rs, (5th 517 F.2d — denied, -, cert. 1525, U.S. Cir.1975); see also 13A Federal Practice and (1998); 140 L.Ed.2d 676 Air Line Pilots Procedure at 575-76. That rule has Ass’n, Airlines, Int’l v. (In Continental Inc. passed unnoticed majority.5 the re Corp.), Continental Airlines Third, panel’s the reasoning provides no Cir.1990). That test involves basis for that believing attorneys who testi- “(1) weighing injustice the risk of to the fied in favor of Judge McBryde should be parties (2) particular case, in this the risk treated differently from those who testified that produce denial relief will injustice in against him. Partiality includes cases, (3) favoritism other and the risk of undermining for, as well as antipathy against, a party. If public’s the in confidence the pro a supposed cannot be to be O’Keefe, cess.” at 891. The full toward him, those who testified how analysis shows that the sentences here were could he not equally grateful be to—and harmless error. general

5. The rule is a exceptions. prior one with Po contacts with plaintiffs ‍‌‌‌​​‌‌​‌‌‌​​‌​​‌​​​‌​‌‌‌‌​​‌‌‌​​​​​‌​​‌​​‌​​​​​‍attorney justi- the Co., City tashnick v. Port Constr. disqualification, 609 F.2d 1101 fied but involved much more (5th Cir.1980), example, judge’s found egregious the circumstances than these cases. public little risk that confi- Finally, there is miti- parties is injustice to the risk of judicial process would be under- in dence ability to re- court’s appellate gated sentences by allowing the defendants’ mined Here, no challenged decision. view publi- much The Judicial Council’s to stand. alleged, sentencing is in of discretion abuse public order should reassure cized in fact, alleged is at all in no error upon retaliation cannot visit other pleas or sentences guilty regard to the him. In these who testified those rights parties’ recuse. failure to than casеs, contrary, only legal technicali- to the arbitrariness inherently protected from were “relate of retaliation to ty can cause that fear The mere fact Sentencing Guidelines. by the disciplinary beginning of the back” to the beyond defendants judge sentenced that the that the it was not clear proceedings, when ranges does of the Guidelines the minimum weight testimony had more public defenders’ easily articu- imply partiality. Given criticisms de- any out-of-court than other explanations greater-than-minimum likely lable judge. It fenses of the sentences, vacatur of public said that defendants will see the needless it cannot be a strike case, sentences the defendants’ In Anderson’s prejudice. have suffered O’Keefe,128 F.3d at judicial process. prejudice: hint of was no Cf. especially, there (“decisions on technicali- that are based (only nine range narrow the Guidelines of the ease not reach the merits ties and do variation) probation officer months’ legal system”). increase distrust upward departure be- had recommended Thus, three-prong harmless er- under two-year-old son Anderson carried cause should stand. analysis, these sentences ror In Avilez^- as he robbed bank. in arms Jordan, my case, range upon by a ease Reyes’s the Guidelines Evеn in relied weighed reme- colleagues, the court different in broader, Avilez-Reyes was sentenced but dies,6 convic- ultimately refusing to reverse a was evidence half and there the lower “excessively sen- vacating an harsh” tion but more than 1.7 possessed that he had show Jordan, tence. United States Allowing methamphetamine. kilograms of (5th Cir.1995). vacating the sen- 158-59 signifi- creates no to stand sentences these tence, both its highlighted court the Jordan injustice parties these cant risk judge’s “unbri- “apparent harshness” and the cases. pre- ... [that] discretion dled contrast, By case.” Id. Guidelines injustice in future is also no risk There in defendants McBryde sentenced the because, Council’s order if the Judicial cases Guidelines, and, as within these cases to stands, required recuse above, argument be no there can discussed attorneys for involving these from cases No abuse of were harsh. that his sentences Furthermore, assuming, as years. three alleged prerogative has been does, is a viola- majority that there by either defendant. here, fail will not in judges district tion in- cases from to recuse themselves future III. in testify against them volving attorneys who in cases need- decisions these proceedings. disciplinary Cf. of the Judicial prior actions lessly pile on the (“our aids decision O’Keеfe, 128 F.3d Circuit, pub- which has Fifth of the Council it clarifies in justice ... other cases McBryde and sub- licly reprimanded as a law and serves area of an unclear im- temporary essentially to a jected him v. judges”); O’Neill to district court caution hold only the Council Not peachment. (In Airlines, re Continental Inc. Continental new cases may assigned no be that the (5th Cir.1993); Airlines), require purported to year, it also but one (“rather, Pilots, at 1263 Febru- years after McBryde, Air Line for three in his all matters to recuse from ary serve as caution to ruling here should our testified attorneys who situation]”). involving court the same judges [in other concerns. many same of the it did on apply three-prong touch court did 6. Jordan not used, panels but have other Fifth Circuit test disciplinary him proceeding (including public the federal defenders COMPANY, UNIROYAL CHEMICAL cases). propriety these two of the Coun- INC., Plaintiff-Appellant, cil’s order is not an issue in these cases and majority’s should be basis for the deci- CORP.; al., Defendants, DELTECH et sion. But propriety, whatever the order’s entirely is an different matter to “sanction” Safeway Transportation, Inc.; TMI Judge McBryde by enforced recusal after the Enterprise, Inc., Defendants- disciplinary proceedings have been conclud- Appellees. ed, than it tois use that sanction as a basis challenging impartiality in decisions No. 96-31226. he made proceed- the outcome of the before United States Appeals, Court ings Many had been determined. accusa- Fifth Circuit. charges tions and were made McBryde, the exact substance and nature of Nov. 1998. unclear, which unspecified are Rehearing Order on Jan. record, even unknown most members Nevertheless, the Fifth Circuit.7 as far as aware, amI no one has questioned ever

Judge McBryde’s integrity ability or his impartial

render decisions to the parties be- anything,

fore him. If the substance of the

allegations against him alleged concerned lawyers

abuse of all appearing in his court.

Ironically, publie what is is that one of the charges

initial against Judge McBryde, later

apparently dropped, was that investigated he vigorously

too government actions of the

in regard to a criminal defendant and inter- protect

vened too actively the defendant’s

rights.

Our court would be better off and would

itself look more if simply ap- we

plied pre-existing precedents our to these cases and appellants’ ‍‌‌‌​​‌‌​‌‌‌​​‌​​‌​​​‌​‌‌‌‌​​‌‌‌​​​​​‌​​‌​​‌​​​​​‍affirmed the sentences having imposed been well within the

guidelines set Congress through the Unit-

ed States Sentencing Commission.

I respectfully dissent. Judge McBryde the lawsuit has filed in the rulings cutting statements and his repetitive off Columbia, District Court for the District of questioning. he testimony against characterizes the ¶ 43, Complaint him as hav- McBrydev. Committee to Review ing following topics: focused on the Orders, Disability Circuit Council Conduct and Judge McBiyde’s imposition (D.D.C). of sanctions No. 1:98CV02457 misconduct; litigation reject his Judge McBryde's rulings decisions and Torres Satz plea agreements; practices respect his with genesis cases were at of the conduct conferences; settlement neys proceeding. of attor- Judge McBiyde’s criticisms authority to make good for lack compliance faith with rulings upheld by those this court in In re orders; denied, rules and rulings McBryde, Cir.1997), Satz 117 F.3d 208 cert. cases; procedural Tones rulings U.S. -, and his - L.Ed.2d trial, such as (1998). time opening allotted for

Case Details

Case Name: United States v. Anderson

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Nov 10, 1998

Citation: 160 F.3d 231

Docket Number: 97-11205

Court Abbreviation: 5th Cir.