*1 63 8 сontend that the Jackson did not wrong are about if we
Even severed, ir have been being unfairly prejudicial, Heelan count should postings web misjoinder relevant, hearsay, Judge Norgle argument still the usual twin to a claim, excluding argument the evidence be such an justified in but was Fed. pro See authentication. to no avail. Fed.R.Crim.P. cause lacked been to show that needed if the defendant would R.Evid. 901. Jackson vides for severance the white su by joinder in which of offenses. postings prejudiced the web responsibility always took groups danger There is some cumulative premacist actually posted were mailings getting start prejudice the racist offenses being defendant, opposed slipped groups, up against stacked multiple charges jury sites Jackson are groups’ web real hazards of onto herself, computer user. jury a skilled if it hears evidence who was confusion or bias are admis сompilations B that it would not have heard “[Cjomputer data crime about records under Fed. A. The considering business if it crime sible as 803(6) if a foundation as to proper jury keeping would have had no trouble R.Evid. the records is estab reliability attempt to discredit straight Jackson’s Briscoe, attempts lished.” United States Heelan from her UPS. .smear Cir.1990). deny Even' took the stand to Because Jackson qualify did for the busi postings these web her ef ploy, the evidence about UPS hearsay exception, busi ness records up Heelan would have forts to set .“the if the soured are inadmissible ness records admissible on cross-examination or circum 608(b) or the method information anyway. Evidence Federal Rule of a lack of indicate preparation testified, stances of Even if had not her mo- Jackson Croft, trustworthiness.” United that the Hee- operandi dus so unusual Jack lan have been evidence would admissible рostings these unable to show that son was charges a trial on the UPS under Federal were authentic. 404(b). Rule of Evidence reasons, judgment these evidentiary com For
In her addition to conviction is Affirmed. fraud count of Jackson plaints, says the one Jackson Heelan, Chicago police ser concerning joined
geant, improperly and the one count of
eight counts of fraud concerning UPS. justice
obstruction of reviewed de joinder proper Whether is is America, UNITED STATES Jamal, novo. United Plaintiff-Appellee, (7th Cir.1996). Federal Rule joinder allows the Criminal Procedure or similar of offenses that “are of same BOYD, Green, Sammy Charles Jeff efficiency motivates a character.” Judicial Knox, Robinson, Mel Noah R. joinder in favor of strong policy preference Mays, Defendants-Appellants. vin compared cate offenses should be Nos. 98-2035 to 98-2038 and 98-2060.
gorical, evidentiary, similarities. Unit Appeals, States Court of Alexander, ed States v. Circuit. Seventh Cir.), denied, cert. 136, Be S.Ct. L.Ed.2d Sept. Argued against pertain cause the Jackson charge April Decided Heelan, ing attempted fraud violation May 2000. Rehearings Denied of 18 identical to the U.S.C. UPS, charge against pertaining Jackson Jamal,
joinder 87 F.3d at proper. See
914. *3 (argued), E. Bindi Office
David Division, Attorney, Criminal IL, in Nos. Chicago, Plaintiff-Appellee for 98-2035 and 98-2036. (argued), Barry E. Rand
David Bindi Elden, of the Unit- Appeals, Chief of Office Division, Attorney, Chi- ed States Criminal IL, Plaintiff-Appellee for Nos. 98- cago, 2037, 98-2038and 98-2060. IL, (argued), Chicago, for De-
Jed Stone Boyd. fendant-Appellant (argued), & Douglas P. Roller Roller Associates, IL, for Defendant Chicago, Appellant Green. (argued),
Richard H. McLeese
Decker &
Associates,
Falconer, Chicago,
Michael J.
IL,
Defendant-Appellant Knox.
IL,
(argued), Chicago,
M. Beal
John
Defendant-Appellant Robinson.
(argued),
Richard H.
Decker &
McLeése
Associates,
IL,
Chicago,
for Defendant-
Mays.
Appellant
POSNER,
Judge,
Chief
Before
ROVNER,
Judges.
RIPPLE and
Circuit
POSNER,
Judge.
Chief
defendants,
Chicago’s
members of
were indicted
gang,
“El Rukn” street
gang
with other members of
along
government
and he testified for the
at the
variety
of serious federal
1989 on
jury
tried
charges. They were
before
second trial. The examination of Cooksey
(all
Mays) and convict-
appellant
but
government’s lawyer
both
ed;
(Judge Aspen) or-
the trial
lawyers,
one of the defense
which was
government
dered a new
period
days,
conducted over a
of three
to con-
knowingly
testimony
had
used false
brought out
Cooksey
the fact that
materi-
vict them and had failed
disclose
been a codefendant of at least some of the
could have
als that the defendants
used
defendants,
current
had been
witnesses. Af-
impeach
government’s
indicted
that he had testified at a
order,
we affirmed his
At the first trial —the one set aside ously guilty; right, been found he was prosecutorial because of misconduct —Ed jury question whether the could have gar Cooksey he was defendant and knowledge of the fact would convicted with the others. But after the set aside their ordered, pleaded guilty, new trial was he not even arise. recordings requires ic jury of what the is question surveillance — way protect from statements done such as will have inferred “be
likely to question recording editing like the or other altera- presence, its from made in 2518(8)(a). likely to have been jury is To this whether tions.” 18 U.S.C. they hearing things end, prejudiсed that the record- requires the section States, have, Marshall United shouldn’t ings judicially sealed as soon as 310, 312, L.Ed.2d 360 U.S. to which interception pursuant order (1959) curiam); United States (per Id.; States v. United expires. were made Bruscino, 940-41; supra, F.2d at Rios, 257, 263, Ojeda S.Ct. Zizzo, United States (1990); 109 L.Ed.2d (7th Cir.1997), one for quintessentially Jackson, 910, 915-16 answer, subject only to Plescia, review. Because he has light appellate 1463; supra, of the trial and moni finger pulse on the (2d Cir.1994). Wong, and attentiveness of the alertness tors the here, in 1985 and 1986. This was done back position in a than the jury, he is better recordings placed original whether judges to determine appellate envelopes, envelopes and the sealed at the trial is presented matter prejudicial seals, both on sealed boxes. Some Judge the outcome. likely to have affected *5 broken, envelopes, and on were later boxes jurors the seemed to Zagеl could tell how that were actu- anyway recordings the concerning the revelations “taking” be origi- were not the ally placed evidence circum Cooksey’s previous trial. In the recordings. They copies dupli- nal of stances, not think he we do abused at the time as originals cate made same refusing grant a mistrial. discretion recordings and intended to be original had been scattered over The revelations They differed —or at identical to them. and cross-exam days three of examination supposed in hav- least were differ — and, they em Cooksey ination of since machine, a different ing been made on (such legal terminology as ployed technical recording conversations. Neither the same “allocution”) susceptible and were thus of duplicate originals copies nor the made lay interpretations by jury per of other against tamper- from them wеre secured sons, compel did not an inference that ing. previously current defendants had been admissibility copies convicted. of the trial, challenged at the first and the not The next issue concerns the admissibili- district ruled that this waived the ty tape recordings telephone conver- appellants Mays, issue as to all the in 1985 and in which the sations 1986 who was not a defendant that trial. The incriminating made admissions. defendants wrong. Rulings pre made at a judge was reliability argue The defendants only presump vious trial of the same case recordings adequately was never of the trial, tively control under the second determined, may some have been King, Alston v. doctrine law of with, government and that the tampered (7th Cir.1998), 1113, 157 1116 F.3d Brady failing violated the rule to dis- admissibility ruling when the concerns the accuracy specific problem with the close non presumption of evidence the is either that could have used to tapes of the Island, existent, 7, Tang v. Rhode 163 F.3d Brady impeach government’s evidence. Akers, (1st v. Cir.1998); United States 11 83, 1194, Maryland, v. 83 10 373 U.S. S.Ct. (D.C. Cir.1983), 1145, 702 F.2d 1147-48 tape L.Ed.2d 215 Because record- States, weak, Menzer v. United ings devastatingly are effective at once (7th Cir.2000); United 1004-05 susceptible tampering evidence and are Williams, (2d v. Title III— discover, very that is difficult to Todd, States v. United F.2d regulates electron- the federal statute (6th Cir.1990); The contents of a com recorded United (2d Cir.1982), governed by munication Title III can law Birney, 686 fully recording even if high be disclosed admissibility are often issues of since seal, provided trial absence of and evidence at second ly contextual satisfactorily explained. seal is 18 U.S.C. significantly from that at deviate will often Jackson, Resources, 2518(8)(a); See, cf. United States v. Inc. v. e.g., Coal the first. Industries, Inc., supra, satisfactory at 915-16. The usual & Western Gulf (The (6th Cir.1992). judicial unsealing order pre explanation is a 1265-66 it can ruling recording con so be used strongest when the sumption is evidence, law, and such orders were indeed is might and some cases cerns a rule of tapes sued here for both that are at operates only that it sets suggest taken to be trials, In the of successive as California, v. issue. then. Arizona (1983); here, recording L.Ed.2d 318 we should trial, Churchich, n. resealed after the first United States v. Payne (2d Cir.1998).) Circuit, Long, Ninth 699-700 Even the 1990); Scopo, binding takes a harder line on Cir.1988) promptly, rulings too. evidentiary made effect —and trial, Tham, Although But this done. defendants first brief, Cir.1991), reply Em argue belatedly, not re their does 1397-98 — Browner, ployers an Ins. Wausau object at the first gard failure (7th Cir.1995) 1398; one Id. at irrevocable waiver. —that Seidman, had been unsealed for the nine tapes F.2d 1027 set of the trial years since the first supposing error contrary from was entitled to and did credit the absolutely precluded the defendants government agent admissibility copies testimony who challenging the *6 harmless, them in for the preparation examined sec peculiarly at the second trial was trial. however, he had the mer ond since to discuss regard admissibility of its of the issue But it case that is not the these equally Mays, and that discussion is to merely from the recordings were removed admissibility tape to applicable the judicial envelopes pursuant boxes and recordings against the other defendants. (cid:127) played jury; and the were order
And so let us turn to those merits. at-all; copies jury not to the were played played jury at the to the and the second recordings The fact that the used not, their concerning issue admissibili separate not been sealed was as the fatal; copies adequately the were ty nor the fact that is whether argue, defendants (the types two seals have authenticated. On this issue the seals had been broken judge that the point, presented at somе the record- evidence were to be broken evidence). First, one of the turn convincing. in found ings placed are to be Neither witnesses, Clay, testified that places specific Title III nor the case law coat Jackie conversation that recording telephone manner in the of a restrictions the which in participated in back 1986 was tape-recorded contents of conversations he had testifying years ten jury Although at trial. accurate. can communicated to the certain 2517(3); Clay hardly have been United States v. later See 18 U.S.C. (7th Cir.1998). Rivera, any pretense of certain about the matter — are, rather, on his ty merely have east doubt The relevant issues whether credibility participants other recorded permitted Title III the disclosure the — all, govern testified for the at and conversations who contents of the conversations (if so) by the defendants’ con- mеnt were not asked particular whether the evidence accu recordings the were jury lawyers the was ade- whether veying those contents to inferred from tes- judge rate. The district quately authenticated. agents that the oth- The defendants were entitled to and did timony by government jury had been recorded like that should question weight the er conversations' the, testified Clay one about manner to give tape recordings light and, any contrary from the absence tampering, questions possibility of those con- evidence, recordings governed authentication are Fed. accurate too. probably versations were 901(a), merely requires R.Evid. “evi- which Second, agent testified that government support finding dence sufficient to of the sealed evidence some opened he question propo- matter in is what its unsealing to an order envelopes pursuant claims,” is, recordings that the nent compared by the district jury recordings in fact played to the tapes played to the at in them tapes of the defendants’ conversations. Testimo- discrepancies. found no witness, Clay, an “ear” as is ny such Clay’s testimony weak because sufficient, Brown, agent’s The lapse of .time. Cir.1998); there is airtight. not For one stronger, although here; previous more we have said in tapes all the compare thing, he didn’t “extraordinary” circum- cases Rather, originals. played at.trial with stances will we reverse the trial check, having spot conducted a he tape recordings decision admit over ob- tapes discrepancies no discovered jections based on lack of authentication. fur- decided not check sampled that he Magana, another, an unex- there ther. . For is (7th Cir.1997); one of the plained discrepancy between Welch, origi- original recordings duplicаte and its Vega, identi- nal, supposed to be although 788(7th Cir.1988). high That standard is not audible on cal contained conversations met here. who examined original. expert Brady requires rule determine the tapes the two could not it government to disclose evidence knows discrepancy. It could have cause of the defense, helpful about that would be to the malfunction, or it could have been exculpato whether the evidence because editing, but the latter a bit of creative ry impeach used to could be determined, inference, government’s Brady evidence. v. Ma likely, dupli- because the precisely less ryland, supra, than the cate contained more conversation *7 263, 1194; Greene, v. Strickler duplicate that was original. It was the -, 1936, 1948, 144 119 S.Ct. L.Ed.2d 286 evidence, government the used discrepancy between one of that favored the portions out edited defendants, the a original original tapes duplicate,, the would have con- its dis dupli- than the crepancy tained more conversation that could have been used to it, Although possible principle impeach government’s cate. some effect to the that the “edited-in” additional government evidence, early taped may have arisen as duplicate, the there is no 1986, conversation to recordings the two more indication all of this elaborate made; recent, it event was not , Similarly, form of while it tampering. us infer from the defendants ask to preferable agent had the would have been government must have known the no reasons have tapes, checked all the no other about it. But of this there is doubting suggested either the for implausible evidence and the inference is of his sam- good adequacy faith or the government prepared the its case pling. while the duplicate originals from the storage. remained in “original originals” distinguish It between is essential to discrepancy adequate appears, So far as excluding evidence for want of n defendants, authentication, by the who challenging weight. first discovered its Brock, 1077, v. 159 F.3d something odd one United States they heard thought 1079(7th 1998); also 28 this to the Cir. see U.S.C. they drew tapes; requirement Yet the of the certif- comparison then the 1654. attention and conducted, the existence salutary, given confirmed icate is the statute which strict; Brady liability is anomaly. party’s makes the affidavit conclusive for Brady violate alleges requisite does not government provided recusal (or that it its solution, information failing to disclose The obvious prejudice. bias or Whitley, 514 Kyles v. U.S. agents, e.g., suggested by op- Robinson himself but 1555, L.Ed.2d 490 rejected by posed by government (1995) include the category that doesn’t lawyer a judge, appoint is to —a it prosecutes!) whоm criminal defendants purpose for the limited pro se defendant v. Bhu doesn’t know about. United enabling him to determine whether file (7th Cir.1999); tani, 175 F.3d rejection the certificate. The of this mea- Earnest, 129 F.3d v. United States sure —a measure we commend to the dis- (7th Cir.1997); v. Avelli trict courts in future cases—turns out to no, harmless, however, have been because the in tapes is such discrepancy between facts in affidavit were relevant Robinson’s formation. conceded. to the most trou We come now Section Judicial Code Judge in the case—whether bling issue “in requires disqualify himself disqualified himself Zagel should have impartiality any proceeding trial. have al presiding at this We from might reasonably questioned.” Our held, involving the ready in another case appellate hold that review of cases Rukns, Judge Zagel’s refusal to El disqualify himself under judge’s refusal error, was not a disqualify plain himself possible only by petitioning this section is Franklin, United States appellate court mandamus before (7th Cir.1999), question re Hatcher, E.g., In re trial. is a it was error. There mains whether (7th Cir.1998); United States Hor procedural question, which is threshold 316-17(7th Cir.1996); ton, unnecessary to resolve. novel and
both
Taylor
O’Grady,
entitles a
144 of the Judicial Code
Section
(7th Cir.1989);
Balistri
judge (only
per
once
party
disqualify
1985).
eri,
Cir.
however)
just of an
on the basis
see,
In re
minority position,
e.g.,
This is
sufficiently
the existence
alleging
affidavit
Inc.,
1256, 1264 and n. 10
Cargill,
prejudice
bias or
favor of
personal
of a
(1st Cir.1995);
Cooley,
affiant; but
party
against
an adverse
(10th Cir.1993);
n. 9
In re
by a
“accompanied
affidavit must be
Litigation, 977 F.2d
School Asbestos
stating
record
certificate of counsel of
*8
12(3d Cir.1992);
n.
Chitimacha Tribe
in
faith.” Defendant Rob
good
is made
Co.,
L. Laws
Harry
against
144 affidavit
inson filed a section
(5th Cir.1982),
do
n.
but the defendants
required
cer
Zagel, but without
Judge
reexamine it. On the con
not ask us to
tificate,
proceeding
Robinson was
any challenge
wаive
trary, they expressly
that the absence
pro
judge
se. The
ruled
in their consolidated
by stating
to the rule
ruling
was fatal. The
de
of the certificate
under 28
that “the motion for recusal
brief
pro
parties the
of
stat
nies
se
benefit
455(a)
was,
be,
only
U.S.C.
ute,
thought
that
an
might
a result
this ex
by mandamus.” Given
appealed
right
constitutional
undue burden on the
counsel, it
by experienced
press waiver
proceed pro
se.
a criminal defendant
806, 834,
for us to reexamine
inappropriate
would be
California,
U.S.
Faretta v.
(1975);
the rule in this case.
Rukns. Had
particular
merits of “the
in
case
controver-
investigation of
connection from the 1986
sy,” and we have held that the use of the
SMS,
would be entitled
a new
Robinson
judge.
Zagel
“particular”
But
word
narrows the clause to
trial before a different
in
press
judge expressed
not mention Robinson at the
the situation which the
did
conference,
is no basis in the
and there
in “the
not a
opinion
present
Zagel
for Robinson’s claim
Lane,
record
related former case.” Russell v.
and
“point
investigation
man” for the
(7th
Cir.1989);
F.2d
cf. Rice v.
knowledge”
“full
of its details.
(4th
McKenzie,
F.2d
Cir.
record,
charge on the
judge denied this
1978).
event,
nothing Zagel
In
since
contrary
the absence
evidence
press
said
conference
reason-
(Robinson’s
being
evi-
mere assertion
ably
expression
opin-
be construed as an
dence), we must credit the denial. United
of the
that he
ion on the merits
Balistrieri,
supra, 779 F.2d at
States v.
over,
pursue
we need not
presided
1202.
interpretive question.
interesting
novel and
superficially
This conclusion is
interpreting
participation
The cases
(and Judge Zagel’s)
tension with our
cred
identity
require
clause do not
formal
iting
alleged
the facts
in Robinson’s affida
gov
proceeding
between the
which the
support
of his motion to recuse
vit
employee
who is now a
ernment
§ 144. The
Judge Zagel under 28 U.S.C.
about;
participated
expressed
opinion
an
in such an affidavit that must be
only facts
enough
overlap significantly.
it is
credited,
only facts in
plainly
Rob
Outler,
See,
e.g., United States v.
Judge Zagel
inson’s affidavit that
did cred
1312-13
Jenkins
it,
“sufficiently
are
that are
definite
those
Bordenkircher,
Cir.
to convince a reasonable
particular
1979);
States, 608 F.2d
Mixon v. United
exists;
conclu
person
simple
that bias
(5th Cir.1979).
there was
591-92
And
sions, opinions, or rumors are insufficient.”
here,
overlap
part
an
SMS
Sykes, 7
thаt linked
to the
investigation
Robinson
(7th Cir.1993); see also United States v.
Zagel
El
But Director
never ex
Rukns.
Balistrieri,
1199;
779 F.2d at
Jones
supra,
pressed
opinion
aspect
an
about
Pittsburgh
Corp.,
Nat’l
requisite “partic
and the
investigation,
Cir.1990); 13A Charles Alan
imputed
supervisor by
to a
ipation” is not
Arthur R. Miller & Edward H.
Wright,
authority;
it must
supervisory
virtue of his
Practice
Procedure
Cooper, Federal
(2d ed.1984).
E.g.,
not.
Man
personal,
it was
pp.
Robin
gum Hargett,
Zagel
“point
was the
son’s assertions
1995);
Carlson,
and had “full
Kendrick v.
investigation
man” of the
*10
Cir.1998);
v. Di
United
(8th Cir.1993);
United States
134 F.3d
Williams,
(3d Cir.1988).
Pasquale,
Diaz,
Cir.1996);
noted in the last-two cited
exception
The
98(2d
1999).
Mays’s argument
supervisor is the U.S.
Cir.
for where the
cases
fugi-
a
here.
that he withdrew when he became
Attorney
applicable
is not
frivolous,
justice
from
borders
the
tive
455(a),
Recurring briefly to section
we
Pandiello,
United States
compli-
emphasize
to
our belief
wish
(7th Cir.1999),
merely
it
re-
as would
perceived
essential to the
ance with
anywаy
there is noth-
fugitives;
ward
judicial process, especial-
legitimacy
ing
hiding
suggest
about
withdrawal—
the defendants are vicious crimi-
ly when
Mays
police
from the
rather
hiding
prose-
and the
facing long sentences
nals
El
than from the
Rukns.
by irregularities.
has been marred
cution
far, far
for
It would have been
better
a
argument,
Green has
better
himself in
Judge Zagel to have recused
sentencing
given
that he could not be
a
involvement with the
light of his earlier
having
enhancement for
leader of
El
proceeding against the
Rukns
parallel
(U.S.S.G. 3Bl.l(a))
§
conspiracy
El
fact that
two of the
Rukns
and the
leadership
gov
role had' —and this the
proceeding
in that
testified
involved
acknowledges-
ernment
with his
—ended
panel
But the
that consid-
present case.
pri
El Rukn
demotion from
“General”
petition
for mandamus ruled that
ered
guideline
vate
under which his
before
455(a),
no
there was
violation of section
(as
enhanced went into effect
sentence was
disagree
ruling,
and while we
original guidelines)
one of the
on Novem
of its soundness is not before us.
issue
conspiracy
The
of which he
ber
1987.
pro
was a
straddled the date of
member
sentencing
re
Several
issues
mulgation,
a crime that
can
straddles
Mays
main to be discussed. Green
punished
guideline promulgat
under a
the ex
argue that their sentences violate
United
E.g.,
ed
the straddle date.
after
clause,
I,
Const.,
facto
art.
post
U.S.
Kramer,
States v.
conspiracies
per
cl.
did not
because
Hargus,
beyond the date on which the statutes
sist
(10th Cir.1997),
and Unit
they
under which
were sentenced were
Smith,
(1st
ed
or
had withdrawn
enacted
implies pun
rule
straddle
conspiracies prior
from the
to that date.
for conduct committed before the
ishment
just wrong,
although
claim is
first
guideline
that determined the
date
great
deal of evidence of
there wasn’t
severity
punishment,
and we cannot
drug dealing by the El Rukns
continued
what difference it can make whether
see
(November
subsequent to the crucial dates
pre-guideline
conduct was the sale of
1,1987, for one of the statutes under which
greater
much
quantity
drugs perhaps
and No
these defendants were sentenced
than
that occurred after the critical
18, 1988,
another),
vember
there was
responsi
of leadership
date or
exercise
enough
place
finding
district
by that date.
relinquished
bilities
beyond possibility
for clear er
of reversal
is conspiracy
ror. Withdrawal
from a
re
Green’s best
Torres,
Cir.1990),
break,
than
quires a definitive
rather
mere
post
which held that
the ex
facto clause
cessation of activities even when combined
“prin
subjective
punishing
with a
not to re
the defendants
determination
forbids
administrators,
sume;
or lead
conspirator
cipal
organizers,
could sit
otherwise
enterprise
criminal
conspira
continuing
bаck
ers” of a
and wait
see whether
after
cy
leadership
then
their
role did
continue
succeeded
failed
creating the
decide
announce that he had
the enactment of the statute
whether to
Wilson, offense,
though
enterprise
itself
E.g.,
withdrawn.
even
*11
did file a petition
See also mus. The .defendants
past
that date.
did continue
Williams-Davis,
judge’s
for mandamus relief from the trial
States
United
(D.C.Cir.1996) (acknowledging
himself,
decision not to recuse
and
510-11
another
Torres).
panel
The statute
of this court denied that
distinguishing
petition
n
in Torres created a new substantive
opinion.
issue
without
of its ele-
required
one
offense
rule that
only
The
mandamus is the
have had a lead-
ments that the defendant
can
party
avenue
which a
seek review
role,
punished
and
Torres
ership
so
455(a)
§
a ruling
is well-estab-
the statute was
in conduct before
engaging
in
lished
this circuit. See United States v.
case the defendant com-
рassed.
In our
(7th
Horton,
Cir.1996);
after
all
elements of the offense
mitted
McDade,
Hook v.
353 n.2
change
sentencing guideline
Cir.1996);
Towns,
responsible
became
by doing so
(7th Cir.1990).
This circuit’s
engaged
in
he had
before
conduct which
455(a)
§
view has been that
is intended to
a
change.
Torres
not
straddle
impro-
protect against
appearance of
is;
case;
seems tenu-
ours
the difference
that,
in
priety,
proceedings
once the
Torres,
ous,
reject
are
we must
as we
then
completed,
the district court have been
to the straddle
committed
doctrine—and
455(a)
§
prevent
harm
seeks to
has al-
matter,
Circuit,
so,
is the Second
for that
ready occurred. See United
doctrine in
reaffirmed the straddle
which
(7th Cir.1989).
Troxell,
Torres itself. We add
Green
Thus,
required litigants
bring
we have
by quitting
guideline
have avoided the new
petitions
potential prob-
mandamus
to cure
an-
conspiracy
guideline
when the
455(a)
§
prevеnt
po-
lems under
nounced but before it took effect.
tentially
trial
taking
tainted
from ever
Last,
we note some clerical mistakes
id.
place. See
should
judgments. Mays’s judgment
of appeals
No other court
has' followed
on count 3
guidelines
reflect a
life sentence
Fall, Note,
approach.
our
See Kenneth M.
months on count
rather than vice
and 60
Liljeberg
Acquisition
v. Health Services
versa,
reflect
judgment
should
Green’s
Encourages
Corp.:
Supreme
Court
1 and 3 and
a life sentence on counts
Disqualification
Judges
Federal
Under
10-year terms on counts
concurrent
455(a),
1989 Wis. L. Rev.
Section
5, rather than a life sentence on counts
rejected explicit
1056. Some circuits have
10-year
and 5 and a
sentence on count
ly
position.
our
The Third Circuit has said
mistakes,
modified to correct these
3. As
preferred
that mandamus is the
method of
are
judgments
appeal
review on direct
appeal, but allows
may
“partial
cure” to
provide
Affirmed.
public perception
harm to the
any
RIPPLE,
Judge, dissenting.
Circuit
judiciary.
In re School Asbestos Li
See
Cir.1992).
tig.,
in its
n.12
panel
is unanimous
view
that, although
him- The Tenth Circuit has held
the trial
should have recused
455(a)
455(a),
rights
§
requires
§
is concerned with the
self under
which
parties
retain some
“disqualify
any pro-
public,
himself
do
thereunder,
appeal may
and direct
impartiality might
rights
ceeding
appropriate.
the cir-
therefore be
See United
reasonably
questioned.” Under
be
Cooley,
996 n. 9
forth in detail
the ma- States
cumstances set
here,
circuits have entertained
jority
other circuit new
Other
and,
circuit, however,
arguments
appeal
on direct
ordered. In this
indeed,
the merits or
deci-
have addressed
we can
review the trial
the issue waived because it was
against
pre-
recusal when the issue is
found
sion
See, e.g., Unit-
raised in the district court.
petitiоn
in a
for a writ of manda-
sented
Litig.,
1068-69 Asbestos
raise
Circuit
Singleton,
Ninth
Prior to
inter-
in the
own
it on our
raising
might
ed from
explained
circumstances
has
Court
justice.
Supreme
of
ests
to address
appeals
of
a court
motivate
cases
decides
that it often
acknowledged
briefing
full
the benefit
without
matter
fully by
argued
than those
other
on issues
parties:
by the
parties:
undeviating
rigid
... no
There
occasions, this Court
under which
practice
judicially
number
declared
“On
all
by
par-
invariably
and under
issues waived
of review
considered
courts
has
all
certio-
consider
petition for
to
decline
below
circumstances
ties
integral
previously
so
not
the issues
which
questions
rari
be
Indeed there
urged.
the case
specifically
to
decision
to
actu-
by
doing
violence
‘fairly subsumed’
be without
could not
considered
appellate
In-
give
Gilmer
federal
presented.”
the statutes
questions
al
or
Corp.,
modify,
reverse
Lane
to
power
courts
terstate/Johnson
may
just
L.Ed.2d
under
be
20, 37, 111
decisions
S.Ct.
remand
(citing
or
J., dissenting)
cases
(1991) (Stevens,
Exceptional
the circumstances.
may
con-
cases).
always
prompt
The court has
circumstances
particular
might
court,
injustice
issues addressed
the set of
where
reviewing
itself
fined
policy
public
where
result
parties.
otherwise
neither
questions
consider
requires,
Assoc., 527
Dental
v. American
Kolstad
below.
upon
passed
nor
pressed
2118, 2127, 144
526, -,
U.S.
454, Sorensen, 293 F.2d
Nuelsen
also
Court has
L.Ed.2d
1961) (citation
quotations
(9th Cir.
appeals
courts
instructed
specifically
instead,
course,
appellate
datory, of
fully formed
make a
party does not
1. When
argu-
to find that
the discretion
courts have
earlier
overrule our
that we should
argument
See, e.g.,
v. Free-
Smith
waived.
ments are
man,
other
align
ourselves
precedent
Cir.1989)
n. 12
argument
courts,
may
consider
the court
cases).
no
therefore
(collecting
We are
Martin,
See United
waived.
question.
obligation to avoid
not man-
Waiver is
omitted).2 As we did in
Andrews,
Niedert (N.D.Ill.1993);
If we sponte sua raise and decide law, questions substantive then surely It is time join for us to the rest of the we power sponte have the to sua alter the Country permit review appeal of a *14 procedures litigants ask we to follow in 455(a). failure to recuse under I would their efforts to seek resolution of their vacate the judgments of conviction and questions substantive of law. It is well order a new trial. settled that stare decisis has less effect procedural rules, context of which do guide serve as a to lawful behavior. States,
See Hohn v. 236, 524 U.S.
251-52,
1969,
118 S.Ct.
1995). Two other El Rukn trials were also
declared mistrials. See United States v. Serv., 2. Nursing See also All Care Inc. v. not an absolute may proceed one review Bethesda Hosp., Mem. F.2d (even 1538 n. completely sponte) equi- sua when the 1989) Nuelsen); (quoting Cir. Boals v. (citation require.” omitted)); ties Lambert v. Gray, (6th Cir.1985) (2d Hosp., Cir.1993) Genesee ("However, (same); Cohen v. West Haven Bd. Police we discretion to consider Comm’rs, 1980) n.6 sponte decide sua dispositive issue of Nuelsen); (citing States, McKissick United law."); Serv., Counts v. Kissack Water & Oil (5th Cir.1967) (quoting Inc., (10th Cir.1993) Nuelsen). ("Although rarely appellate is done an court may, sponte, dispositive sua raise a issue of Curry Co., 3. See v. Beatrice Coal Pocahontas proper law when the beyond resolution is Cir.1995) ("The 522 n. 8 doubt and the failure to address issue normal rule of course that the failure to miscarriage result in a justice.”). raise an issue for prescribed review manner constitutes a waiver. But the rule is