UNITED STATES OF AMERICA, Plaintiff—Appellee, versus JUDITH L. BROCATO; DICK BROCATO, JR., Defendants—Appellants.
No. 20-40624
United States Court of Appeals for the Fifth Circuit
July 9, 2021
Appeal from the United States District Court for the Eastern Division of Texas, USDC No. 1:19-CR-133
Before KING, DENNIS, and HO, Circuit Judges.
Judith and Dick Brocato were convicted by a jury of conspiracy to commit tax fraud, in violation of
I.
The Brocatos, a married couple, owned a lawn care company, Superior Lawn Service. Judith was the president and bookkeeper of Superior. Over a three-year period, the Brocatos concealed approximately $1.7 million of business income. They were charged with conspiracy to commit tax fraud and multiple counts of filing false tax returns. After a three-day trial, the jury convicted on all counts.
On the second day of trial, Internal Revenue Service (IRS) special agent Regina Kelley testified for the Government. Kelley testified, among other matters, that Judith purchased a Maserati sedan in 2013 and paid part of the down payment with $9,000 in cash. Judith also testified on the second day of trial. She admitted to routinely shredding business documents, including immediately after receiving a records request from the IRS. On direct examination, Judith was also asked about the source of the $9,000 in cash that she used to cover part of the Maserati down payment:
Q. Where did that $9,000 come from?
A. My mother. She passed away.
Q. Okay. And you got that $9,000 from her estate?
A. Yes, sir.
Q. And that‘s what you used?
A. Yes, sir.
The Government did not attempt to impeach or otherwise contest Judith‘s testimony about the source of the $9,000.
The next day, February 5, 2020, before closing arguments, Judith‘s testimony was discussed in an unrecorded, in-chambers conference. The district court later recounted that “the court convened a meeting with counsel in chambers to discuss the jury charge, consistent with the court‘s practice, and merely instructed counsel for the Brocatos not to represent during closing argument that the source of the $9,000.00 cash was the estate of Mrs. Brocato‘s deceased mother.” According to the Brocatos, the judge advised that “her staff had conducted an Internet search and found an obituary” that suggested “Mrs. Brocato could not have obtained the $9,000 from her mother‘s estate,” leading the judge to conclude “that Mrs. Brocato had committed perjury during her testimony.”
That same day, after the Brocatos were convicted, the district court outlined the sentencing process to them and addressed the issue of their release pending sentencing. The Government stated it had no objections to the Brocatos “remaining out on bond” and defense counsel proposed “continu[ing] on the same conditions of release,” but the court said that it “d[id]n‘t feel comfortable” with that and would require each defendant to post a $100,000 bond. It gave the following explanation:
The Court is very troubled about testimony about shredding documents, discarding evidence, and the perjury that occurred in this courtroom about the source of the $9,000 cash where Mrs. Brocato said that it was from her mother‘s estate. But the transaction with the Maserati occurred in 2013 and it appears from the obituary of her mother that she died in 2015; so, I don‘t think she would
have gotten money in 2013 from her mother‘s estate. The Court takes a very dim view of perjury in proceedings; so, you need to keep that in mind.
The presentence report (PSR) for each defendant identified a guidelines range of 33 to 41 months in prison based on a criminal history category of I and a total offense level of 20. Although Judith‘s PSR referred to her testimony about the $9,000 as potential grounds for an obstruction-of-justice enhancement, it deemed the enhancement unwarranted because “the misinformation does not appear purposeful.” The probation officer noted that Judith had explained that she received money from her mother before the latter died and that “she was nervous while testifying and any statement suggesting she received the [$9,000] from her mother after her mother‘s death was simply a mistake.” The final PSRs were filed on August 10.
On August 14, the court requested a certified copy of Judith‘s mother‘s death certificate from defense counsel. A week later, the Brocatos filed a motion to recuse the district judge. Invoking
The district court denied the recusal motion on September 2. It acknowledged that “[c]ourt staff discovered that Mrs. Brocato‘s mother, Verna Jo Carter (‘Mrs. Carter‘), died in 2015, at least two years after the [Maserati sedan] was purchased.” However, the court wrote, “staff was not instructed to investigate any of the parties and did not bring this information to the judge‘s attention until after Mrs. Brocato finished testifying and the Government had not cross-examined her on the issue.” The district court first determined that the Brocatos’ reliance on
At sentencing hearings on September 9, the district court adopted both PSRs in full, denied defense requests for an adjustment for acceptance of responsibility or for a downward variance, and sentenced both Judith and Dick at the low-end of the guidelines range to 33-months imprisonment to be followed by one year of supervised release. The district court also imposed $617,762 in restitution. This appeal followed.
II.
On appeal, the Brocatos do not challenge their convictions or sentences. Rather, they argue that the district court abused its discretion in denying their motion to recuse, and they seek resentencing by a different district judge. In response, the Government asserts that the judge was not
We review the denial of recusal motions under
III.
Two federal statutes govern recusal of district court judges for bias:
Section 144 requires recusal when a judge “has a personal bias or prejudice” against or in favor of a party. The statute includes a procedure by which a party asserting that a judge is biased shall “make[ ] and file[ ] a timely and sufficient affidavit” that “shall state the facts and the reasons for the belief that bias or prejudice exists[.]”
Section 455(a) sweeps broader than
Of course, not all favorable or unfavorable opinions can be described as bias or partiality within the meaning of
A.
First, addressing the distinction between an opinion that derives from an extrajudicial source and an opinion that arises in the context of judicial proceedings, see Liteky, 510 U.S. at 554–55, the Brocatos argue that the judge‘s opinion that Judith committed perjury derived from an extrajudicial source: the online obituary of Mrs. Carter discovered by the judge‘s staff as a result of an Internet search. In denying the Brocatos’ recusal motion, the district court disagreed, writing that the court‘s notion that Judith committed perjury derived from her testimony itself, and further, that Mrs. Carter‘s death certificate was a public record properly subject to judicial notice (and, therefore, non-extrajudicial). On appeal, the Government argues likewise that Judith‘s testimony put the date of her mother‘s death at issue and led to the judge‘s opinion that Judith had committed perjury. The Government further argues that the district court learned of and verified the date of Judith‘s mother‘s death in a “judicial capacity” and that it was proper for the court to consider the information at sentencing because the probation office had identified and discussed the possibility that Judith‘s testimony had obstructed justice in her PSR.
The situation presented by this case is not squarely covered by our cases, and, in any event, each recusal case “is extremely fact intensive and fact bound, and must be judged on its unique facts and circumstances more than by comparison to
The Brocatos rely on Kennedy v. Great Atlantic & Pacific Tea Co., Inc., 551 F.2d 593 (5th Cir. 1977). In Kennedy, the law clerk for the district judge presiding over a slip-and-fall case decided to visit the scene of the accident. Id. at 594. The law clerk then recounted his observations to the judge and eventually the visit was disclosed to counsel, which resulted in the clerk being called as a witness at the subsequent trial. Id. at 594–95. On appeal, this court reversed the denial of defense counsel‘s motion to recuse the trial judge and prevent the law clerk from testifying. Id. at 598–99. The court in Kennedy characterized “the intervention of a court official in the accumulation of evidence” as “unacceptable” in “our adversary system of justice.” Id. at 596. We also likened the law clerk‘s investigation to a prohibited ex parte communication and stated that “[i]t was [the law clerk‘s] duty as much as that of the trial judge to avoid any contacts outside the record that might affect the outcome of the litigation.” Id.; see also Hall v. Small Bus. Admin., 695 F.2d 175, 179 (5th Cir. 1983) (describing “law clerks” as “sounding boards for tentative opinions” who are “privy to the judge‘s thoughts in a way that neither parties to the lawsuit nor his most intimate family members may be” such that “the clerk is forbidden to do all that is prohibited to the judge“).
We think the circumstances in this case are clearly distinguishable from Tejero. The online search that revealed Mrs. Carter‘s obituary, presumably undertaken to discover additional facts relating to the case, is not “within the normal day-to-day activities of a judge” or her staff. Tejero, 955 F.3d at 464. While we acknowledge that the online search in this case was not as disruptive to the proceedings as the law clerk‘s activities in Kennedy—in Kennedy, our court had to reverse the judgment entered upon the jury verdict and remand for new proceedings, see 551 F.2d at 598–99, while the Brocatos do not challenge their convictions, but only seek resentencing—in both cases judicial staff engaged in independent factual research and, in doing so, discovered and brought to the attention of the judge factual information that had not been introduced into evidence by the parties. This type of factual research is of a different nature than searching the district court‘s ECF system. See Tejero, 955 F.3d at 464; see also Sovereign Mil. Hospitaller v. Fla. Priory of Knights Hospitallers, 702 F.3d 1279, 1296 (11th Cir. 2012) (criticizing district judge‘s “extra-record Internet research into similarly named organizations” in a trademark case and cautioning the judge to “limit its analysis to facts in the record“).
We think the Brocatos are correct that the judge‘s opinion was derived from information that came from an extrajudicial source. The online obituary was discovered through an Internet search by the judge‘s staff. It seems likely that but for
B.
Of course, while an extrajudicial source weighs in favor of recusal, it alone may not be sufficient to find bias or the appearance of partiality. Liteky, 510 U.S. at 555; Tejero, 955 F.3d at 463. The ultimate standard remains, under
The Brocatos argue that the district judge was biased as evinced by her stated opinion that Judith committed perjury and because that opinion was based on an extrajudicial source. They assert that the judge‘s bias had an effect on sentencing, and that they should have been assessed a lower restitution amount and granted a downward variance. However, as the Government points out, the Brocatos do not challenge their sentences on appeal or identify any specific error made by the district court at sentencing. Rather, the Brocatos merely recite what they consider “valid reasons” that a different judge could rely on to give them a lesser sentence, i.e. one below the guidelines range.
The Government argues that, even assuming Mrs. Carter‘s date of death was an extrajudicial fact, there was no appearance of impartiality under
After a careful review of the record, we conclude that a reasonable and objective observer, aware of all of the facts and circumstances, would not harbor doubts about the judge‘s impartiality. To start, we do not in any way condone Internet searches concerning a witness‘s credibility, or any type of similar investigation by court staff into factual matters. This sort of ex parte fact-gathering is improper. See Kennedy, 551 F.2d at 596; Sovereign Mil. Hospitaller, 702 F.3d at 1296. Such activity has the potential to raise reasonable questions concerning impartiality, and it should not occur. We also find the district
Here, we find it significant that the district court did not apply an obstruction-of-justice enhancement for perjury, but instead adopted the PSR‘s determination that “misinformation” in Judith‘s testimony concerning the source of the $9,000 was not “purposeful,” and that the district court sentenced both Judith and Dick at the bottom of the guidelines range. Further, the district judge‘s rulings at sentencing were consistent with the guidelines rather than indicative of bias, the Brocatos do not challenge their sentences on appeal, and we do not think the district judge‘s denial of the Brocatos’ requests for downward variances creates a reasonable appearance of bias. Also, regarding the reasons for setting postconviction bond, the record reflects that the district judge cited “testimony about shredding documents” and “discarding evidence,” in addition to “perjury.”
Finally, we note that the Brocatos waited more than six months after the judge‘s remarks were made to move for recusal; the in-chambers conference and setting of postconviction bond both occurred on February 5, but the motion to recuse was not filed until August 21. See Travelers Ins. Co. v. Liljeberg Enters., Inc., 38 F.3d 1404, 1410 (5th Cir. 1994) (stating general rule that “one seeking disqualification must do so at the earliest moment after knowledge of the facts demonstrating the basis for such disqualification“). However, we also note that on August 14—a week before the motion was filed—the district judge requested a certified copy of Mrs. Carter‘s death certificate. Altogether, we do not consider the Brocatos’ delay as a dispositive fact, but we note it as a relevant circumstance.
Considering all of these facts and circumstances, a reasonable and objective person would not harbor doubts concerning the judge‘s impartiality or question whether bias affected the Brocatos’ sentences. The Brocatos have not shown an abuse of discretion under
As there was no abuse of discretion under
IV.
Because the Brocatos have shown no due process violation or abuse of discretion