United States v. Jordan

trial, jury laundering. GARZA, money After G. Before REYNALDO of two counts GARZA, was convicted Defendant M. and EMILIO WIENER counts of wire laundering and nine money Judges. accounts. on these Factoring buying accounts re- collect involves the attempting to and then at a discount ceivable (quoting Brown, fraud. The Honorable Melinda Har- United States v. Cir.1976)), mon sentenced Defendant to concurrent 502 U.S. years’ imprisonment (1991); terms of five for each Murchison, conviction, 133, 136, In re fraud and to 349 U.S. wire consecutive 623, 625, 99 L.Ed. twenty years’ imprisonment right terms of for the to a fair impartial money laundering trial is convictions.2 Defendant fundamental to the litigant; pay unpaid judiciary fundamental to the was also ordered balance is the public’s $418,921.00. impartiality confidence in the appeal of our This ensued. proceedings and the over which preside. satisfy “Justice must appear I. justice.” Murchison, ance of In re The substance of com 75 S.Ct. at very 625. This is the that, plaint is because of the purpose 455(a); 455(a) relations be § of 28 U.S.C. tween Melinda Harmon provides and Michael that a shall recuse herself Wood, publicity feelings and arising bad from proceeding in impartiali which her legal ty from a incidents that might reasonably series occurred questioned. The Su earlier, years lengthy Court, several and preme sen in Liljeberg v. Health Services imposed, person tence term a Acquisition 847, reasonable Corp., 860-61, 108 question Judge 2194, 2203, would Melinda Harmon’s im (1988), S.Ct. 100 855 L.Ed.2d partiality. repeatedly have expressed Courts described the standard as whether a reason importance impartial judiciary: of an able and person, knowing all of the facts, rights litigant of the fundamental “[o]ne of a would concerning harbor doubts judicial system under our judge’s is that he is enti impartiality.3 goal “The of section 455(a) tribunal, tled to a fair trial in a fair and that is to avoid appearance even the requires an partiality.” 860, fairness absence of actual bias or Id. at S.Ct. prejudice in the trial of the case.” simply, avoiding United Put of im Wade, Cir.) States v. propriety important developing as public money laundering plant One sentences person the reasonable standard in cases suspended pending years' probation. later five involving alleged extrajudicial bias from an source. The Court found recusal unwarranted in Liteky 3. The dissent contends that v. United Liteky grounds [the because "all recusal] for oc- — States, —, judicial curred in proceedings the course of and (1994), L.Ed.2d 474 has modified this standard (1) upon knowledge neither acquired relied out- require “impossibility judgment” an of fair (2) proceedings, display deep-seat- side such nor thorough reading opinion, test. A of the howev unequivocal antagonism ed and that would ren- er, Liteky changed reveals that has not judgment impossible.” der fair It is clear that if standard, § impossibili recusal nor is the only allegations if the of bias arose from the ty judgment implicated of fair test in the case sub proceedings impossibility judgment is the of fair judice, proposed by nor is the extension the dis fact, implicated. test In the concurrence criti- Supreme sent warranted. The Court was faced majority creating cized the for a different and determining with the issue of whether the “extra stringent allegations more standard for of intra- judicial source” doctrine survived the amended judicial bias. The concurrence discerned no rea- 455(a). § meaning version of The traditional standards, requiring son for two different one for extrajudicial source doctrine is that a recusal source, extrajudicial intraju- and one for the motion must be based on a source outside of the alleged dicial source of bias. proceedings. negative, To state in the recusal Moreover, disagree with the dissent and opinion can developed not be based on an or bias impossibility refuse to judg- extend the of fair during judicial proceedings. the course of The ment test to situations for which the standard require Court held that while does not designed. apply was not To this limited standard originate of a from a source universally destroy appear- proceedings would appear outside of the to create an impropriety, opinions impropriety during effectively ance of ance of formed standard re- proceedings quiring showing judge actually do not constitute a a basis for recusal har- opinion "display[s] deep-seated “deep-seated unless the antagonism fa bored favoritism or antagonism voritism or that would make fair judgment impossible.” that would make fair at —, judgment impossible.” Id. 114 S.Ct. at standard for recusal in situations like the case 1161, 127 L.Ed.2d at 491. judice, sub continues to be whether reasonable facts, person, implied knowing question The Court neither stated nor all the that this impossibility judgment sup- judge's impartiality. of fair test would fact, quoted Francis Harmon is In avoiding incidents. system as judicial in our

confidence the district did not visit stating that he itself. impropriety charges as concerning the assault attorney judgment owed Appellant attorney as his friend. but Wood’s Michael appointed Wood court.4 Michael in state had been and Michael Wood Francis Harmon ICT, company. Appellant’s over receiver years. for six partners law relationship a hostile Both sides concede Appel Michael Wood developed between no small there exists is clear that It receivership appointment. animosity, if not due to the lant amount of resentment allegedly Ap- November Michael Wood On hatred blind between property off ICT drive a truck Me- attempted whether pellant. receivership arrangement. in violation with Michael Harmon’s linda stop Appel attempted to her. person, who Wood might Michael a reasonable Wood cause interposed facts, her car between daughter underlying lant’s to harbor knew of the effectuating Appellant, Wood and im- Michael Melinda Harmon’s about doubts 29, 1989, escape. On November long and continuous whether their partiality; contempt filed motion Michael Wood incidents friendship and the above-discussed receivership case. The bankruptcy appearance. civil Because raise a Section granted the motion and district court sound state committed to the motions recusal are custody. appeal placed court, On Appellant was on the issue of the district discretion 5, January On order was overturned. its discre- the court abused appeal is whether charges 1990, filed theft Michael Wood by the above answering tion daughter. On her and against negative. 1990,5 daughter filed

February charges against Michael assault criminal II. threatening as her slapping for and Wood ear. running Michael as for into well person the reasonable that We hold incarcerated. Fran arrested was and Wood Judge about Melinda would harbor doubts Harmon, Judge Harmon’s hus Melinda cis Liljeberg that impartiality. held Harmon’s band, in this represented Michael Wood 455(a) objective inquiry. This is an Finally, Appel proceeding. criminal ap question involves when the is essential money fraud and indicted for wire lant was Therefore, things ap we ask how pearance. ICT, company laundering involving the same well-informed, thoughtful and pear to appointed Michael Wood re for which observer, hypersen than the objective rather ceiver. sitive, person. cynical, suspicious and Cir.1990). Mason, Wood, Judge Sharolyn re Michael Wood and recognized.the problem wife, Circuit law school Seventh class- Wood’s were Michael implementing this standard. her with Judge Harmon and of Melinda mates how a twenty-two Judges ascertain reasonable Id. must They were friends of husband. to the facts. Problematic person would react above-mentioned years of the time of the clear, Liljeberg has made did not know. As underlying of she the series incidents 4. The facts Appellant are motion and not the time of the recusal between Michael Wood facts not known at crystal in the trial record is determining clear. Provided considered in whether are still request Additionally, upon Appellant’s affidavit. Liljeberg, have been recused. should Court, parties supplied us additional of this at 2203. Section U.S. at facts discussed in this information. The retroactively by rectifying an may applied be pro- compiled mainly the information from are steps necessary oversight taking to main- and appeal. by parties It on to this Court vided impartiality of the public in the tain confidence Harmon Judge Melinda not clear whether judiciary. underlying the incidents the details aware of Appellant. Assum- between Michael Wood provided According to materials unaware ing Judge Harmon was of Melinda attempted daughter three Appellant's parties, facts, however, not foreclose recusal. does all against charges Michael Wood for times to level asking the Honorable We are not incident. the November impossible, performed the Harmon have Melinda complaints. is, allegedly the first two lost disqualify DA’soffice based on some facts to herself sault; appears subject not the fact that do stand outside of that he was the of intimately process judicial system; through charges are in- an abuse of criminal brought by Appellant.7 process obtaining justice. of Michael Wood and volved in the Appellant were embroiled in a series of vin- Judges who are asked to recuse themselves legal resulting great dictive actions in a deal impugn are reluctant to their own standards. publicity, potentially besmirching of Michael Likewise, judges sitting in review of others Wood’s name. publicity Some of aspersions. drawing do not like to cast “Yet brought out the fact that Michael Wood’s honesty all favorable to the inferences judge, brought wife was a state district care of the whose conduct has been relationship out the between Michael Wood questioned collapse could lawyer-hus- Melinda Harmon’s impropriety standard under into a circumstances, particular band. Under these proof impropriety.” of actual demand Id. happened is what enough to Michael Wood to Accordingly, we are mindful that an observer person cause a reasonable im- doubt the judicial system likely our is less credit partiality Melinda Harmon —Mi- judges’ impartiality judiciary. than the friend, good chael Wood’s Michael Wood’s body The Fifth has established friend, good wife’s and Michael Wood’s law- applying ease law the Section stan- yer partner’s plays and former wife—as she Unfortunately, surprisingly, dard. but not part determining no small the fate of the all, precisely point; no on each case is after person who caused Michael in- Wood be extremely fact case is intensive and yes.8 carcerated? think respect Public bound, judged unique fact and must its judiciary for the demands this result. facts and circumstances more than com- stringent [Our] rule sometimes bar parison prior ju- situations considered by judges trial who no have actual bias and ruled, risprudence. This Court has factu- very weigh who would do their best the circumstances, ally limiting friendship that justice equally scales of between contend- judge person between the and a with an ing parties. perform high But to its func- grounds interest in the case is not sufficient “justice way satisfy tion in the best must judge’s to reverse a failure to recuse.6 Nev- appearance justice.” the of ertheless, facts before us create a Section the 455(a) appearance. judges’s per- Appellant close Where was involved an extreme- friend, prominent ly relationship sonal and successful person hostile with a of such a close, lawyer, long, Houston of was accused criminal as- and multi-faceted with example, Property charges actually brought by Appel- 6.For in VieuxCarre Owners v. were but, Brown, (5th Cir.1991), daughter, government judge lant's as the con- 948 F.2d 1436 the ceded, daughter Appellant the actions of the and personal political relationship had a close and separated cannot be because acted in con- Mayor, significant political the who had cert. stake in the outcome of the case. The sole rea urged by son Vieux Carre’s motion to recuse was government argued 8. The that Michael Wood temporal proximity mayoral the of election fully allega- vindicated from the criminal hearing. and the mootness Because the district Therefore, Judge tions. Harmon would not har- adequately any possible court removed harm any against Appellant. bor actual bias We do not public’s perception impropriety by from the of contest this. We offer no as to whether election, postponing hearing that until after the biased; actually Harmon was it is the necessary. this Court held that recusal was not appearance impropriety with which we are of Dept. Safety, See also Henderson v. Public many concerned. How times has one heard the (5th Cir.1990) (holding appel F.2d 1288 that the following say anything statement: "He can he allegations op lant’s that the has known me, my wants about but he can’t talk about posing good counsel since he was a kid and were may Ap- friend.” Michael Wood not care what recusal; friends was not sufficient for "an inves him, pellant good said about but a friend has tigation into the facts would have undermined animosity against forever harbor someone the tenuous of bias conclusion that even Penn prominent lawyer put who has taken a and him hearsay upon would draw through proceedings from the statements and unwarranted criminal motion”). negative publicity. which he based his requiring a new process Harmon, defect due relationship that tal Judge Melinda trial). Disqualification under Section negative publicity, in extensive resulted judicial before benefit of liberty designed stake for the at where failing to that a errs in Judge, system, we are convinced even if a very this impar- necessarily question herself, person would does not the error reasonable recuse Accordingly, judge.9 we the court. tiality of the district the decisions of into call Harmon abused Judge Melinda hold that trial thorough review of the After failing to recuse herself.10 discretion record, conviction that the are convinced III. First, con Appellant does not should stand. actu appropri Harmon was must now consider Melinda tend that 455(a). phase, nor does remedy during breach of Section the trial ally for the biased ate the circum al Although explicit defines nexus between the allege Section she of fed disqualification of bias. appearance that mandate leged stances errors and judi silently delegates to the judges, Second, that she Appellant eral never contends fashioning the remedies ciary during the task of trial because of any harm suffered legislation. Third, purpose will best serve we find prejudice. any alleged bias or at 2204. Liljeberg, 486 U.S. trial rec indication of bias neither an that a violation We hold requiring nor error reversal. ord trial. automatically require a new does not errors, Appellant asserts several surely room for (stating that “there is id. misconduct, improper including prosecutorial by busy judges committed error harmless jury in rulings, improper evidentiary disqualifying inadvertently overlook a who argument both During closing structions. Wade, circumstance”); United States on the Appellee commented Cir.) (5th (stating n. 5 F.2d Both a witness had not been called. fact that were to meet the a movant even if witness implied failing to call parties recusal, may not suffi requiring test hurt the witness would trial), indicated ordering of a new cient for case, Appellant argues respectively. other’s 888, 112 improperly Couch, prosecution’s comments that the (1991); L.Ed.2d 202 United States Cir.1990) proof. Melinda burden of shifted the (holding that the 896 F.2d 78 jury Harmon instructed impro properly of an appellant’s claims upon prosecution and that the burden a fundamen- priety do not rise to the level of impropriety appearance is majority for not the dissent. takes the task dissent to Second, jurisprudence on facts before regurgitating of this circuit’s unmistakable in the us. all 455(a), jurisprudence spouse dissent views although Judge which the was Melinda Harmon’s creating "situation," no such a "continuum.” discern as continuum; that is the focus in the not involved we find a mandate neither do circuit analysis. Judge friend- Harmon's close of our actually does is imply What the dissent to one. jurist-spouse and ship and his John Wood with recusal, cases, requiring one two lines discuss besmirching taken and vindictive actions the affirming to recuse. the court’s refusal the other Judge against than Har- him concerns us more places case in the the facts of this The dissent relationship incidents. to the mon's husband’s cases, concerning "especially latter line of those Third, integri- Appellant's liberty is at stake. The disagree judge's spouse." We of the involvement ty judiciary impugned. the stan- is While of the First, nothing more reasons. we see for several civil and is the same in both dard of recusal pots, parsing prior two of our cases into than a cases, blindly in we are uncomfortable criminal appear- containing cases in an those which one determining upon whether a relying cases in civil impropriety and the other was found ance of presiding felony recuse. over a trial should appearance containing in which those cases such Supreme engages in Though Court even the certainly "contin- no found. That not citations, ways we both must look cross-over Next, uum”; inventory just we be- an exercise. crossing dangerous carefully when this more judice fit more facts of the case sub lieve the side than side to the criminal street the civil from category. deal- closely We are not in the former opposite crossing direction. in the we do when judge making a ing minor to a contributions with campaign, having sporadic party’s a the district counsel, we have determined that Because presiding where the over case 455(a), we not reach do court breached spouse defendant’s judge's was a student at the Section 144. the raised under university, any listed in issues or of the other situations testimony, years’ imprisonment bring any for each of her two not forth defense need money witnesses, Considering laundering convictions to run the re- consecu- or evidence. tively to her wire fraud prosecution’s comment convictions. One of of the sponsive nature money laundering her charge given sentences was sus- to the and the instruction pended, placed proba- she was to be any nor indication jury, find neither error we years tion upon for five to commence Appellant contends that the of bias.11 also release from confinement. admitting in Exhibits 282 court erred trial, During the witness went through 2032. excessively This sentence seems one, through by through Exhibits 1 one Appellant, offender, harsh. a first time prepared identifying each as document she prison, to serve 300 months in followed recognized prepared by a or one that she as years’ probation, five for non-violent white speed up In to the specific co-worker. order apparent collar crimes. The harshness of process, Judge Melinda Harmon admitted all sentence, essentially unbridled sen exhibits, making abundantly clear that tencing discretion of Melinda Harmon any Appellant was free to witness ease,14 pre-Guidelines appearance any on cross-examination. about exhibit impropriety, allegations by Appel with Fifth procedure This accord lant that her fears of bias were realized in law;12 again, find neither error nor case sentencing requires this Court to vacate indication of bias. also com- integrity judicial the sentence.15 The properly did instruct plains that the court not system needs the rehabilitation would be indictment, jury. Upon review of the gained by vacating the sentence and resen instructions, applicable we are' of and the law tencing Appellant. Affirming the sentence “jury ... instructions only compound damage done. a correct statement of the law.” [are] whole We embrace method utilized Faulkner, 17 F.3d United States Couch,16 dealing United States v. with this (5th Cir.1994). sum, appears the trial sensitive situation. In Couch the Chief managed properly have- been and we find assigned of the Fifth Circuit the case of bias nor an error neither indication outside of the district which it requiring reversal.13 originated adjudicate partiali the claims of ty. The sentence is a different matter alto- confirmed Walter the conviction gether. Appellant concluding partiality was sentenced to five that no actual existed.17 years’ imprisonment for each of her wire in order to avoid convictions, partiality, Judge fraud which would run concur- Walter resentenced the de rently. Appellant twenty Although fendant. Couch dealt with a habe- was sentenced Ivey, 11. See United States (5th Cir.) prosecu (holding that comments improper were not because were in tion points 13. We have considered other response argument, to defense's and an instruc error, though do not them of we find merit- denied, 943, given), 431 U.S. 97 tion was cert. less, they require do not reversal. 2662, (1977); S.Ct. 53 L.Ed.2d 263 United States Celcer, 345, Cir.1974) (5th 500 F.2d 346-47 Report 14. The fact that the Presentence recom- comment, error, (holding that if was rendered dispositive. mended the is not The maximum charge harmless an instruction and that the report negate appear- does not insulate or government burden was on and that person impropriety; ance of a reasonable any duty present defendant was not under question impartiality Judge of Melinda Har- denied, 911, evidence), cert. 421 U.S. 95 S.Ct. mon. 1563, 43 L.Ed.2d 776 Again, offering we are 15. must stress that not on whether Harmon our Melinda Evans, 455, 12. United States v. 572 F.2d 490 biased; actually appearance im- it is the of Cir.) (finding no error when "the district court judicial system propriety and its effect on our long together, [pro [a] admitted series of exhibits with which we are concerned. viding] provision repeatedly it was done with the any specific objection that defense counsel (5th Cir.1990). 16. 896 F.2d 78 regarding partic desired to raise at a later time denied, entertained”), 17. As we have done here. ular exhibit would be cert. 160 455(a)1 applies § nor dis- and neither situation, stan- U.S.C. which called for lesser

as existing Fifth appeal, tinguishes plethora our we nonetheless of Cir- than does dard in approach is needed 455(a), that a similar respectfully § believe I dis- cuit caselaw 455(a) silently the case before us. Section sent. judiciary fashion- the task of delegates to the Supreme case on The most recent Court that will best serve ing the remedies — States, 455(a), Liteky United § U.S. Liljeberg, 486 legislation. purpose of the (1994), —, 1147, 114 127 L.Ed.2d 474 S.Ct. 862, goal “The of at 2204. U.S. at 455(a)’s standard, 455(a) objective § first appear- modifies is to avoid even 860, Ac Liljeberg Id. v. Health Servs. at 108 S.Ct. at partiality.” in ance of announced goal, 2194, in this 847, 108 In order to serve that quisition Corp., S.Ct. 486 U.S. case, must be vacated. the sentence (1988). Although the factu 100 L.Ed.2d 855 Liteky primarily con al of circumstances opinion, we AFFIRM with this Consistent doctrine, sentence, “extrajudicial conviction, cerned the source” VACATE the 455(a) § analyzed the Fifth Circuit to ask the Chief of Justice Scalia also judge of the Specifically, Liteky de designate a outside Southern broader terms. Appellant'and 455(a)2 of to resentence District Texas § objective scribes the standard of proceedings nec- any appropriate hold other test, id. at judgment” “impossibility of fair essary opinion.18 to effectuate this at —, see also id. —, 1157; 114 at S.Ct. J., (Kennedy, concurring) 114 S.Ct. 1161 part. part, AFFIRMED VACATED ‘impossibility of (discussing Court’s “[t]he GARZA, Judge, M. EMILIO test”), deep- judgment’ requires fair “a dissenting: antagonism or that would seated favoritism I judgment impossible,” make fair id3 fail apply majority fails to Because the Liteky guidance to find indication in limits Supreme most Court on 28 recent 21, dissent, is an in footnote contends that our The resolution of 18. judge remedy implies disqualification objective inquiry. Liteky, of one — disqualifies judges at — —, all the of that district. This is (requiring §all 114 S.Ct. at 1153-54 impression we want to leave the reader. not the basis, objective questions "to be evaluated on an Harmon had recused herself If Melinda reality really so that what matters is not the of. proceedings, judge another of the from the Liljeberg, prejudice appearance”); bias but its or easily pre- Southern District of Texas could have 860-61, (imposing 486 U.S. at 108 S.Ct. at 2203 sided over the case. Because we find the district standard); City objective Potashnick v. Port discretion, judge we want to avoid abused her Co., 1101, (5th Cir.) (hold 609 F.2d Constr. 1111 placing colleagues one of her in the uncomforta- ing "goal judicial disqualification position effectively passing rulings on her ble of impartiality”), appearance of statute is to foster Moreover, having sentencing hearing. one denied, 78, S.Ct. rt. 449 U.S. ce colleagues pass in her district on her her own (1980); (noting L.Ed.2d 22 id. itself, past might, well in and of exacer- actions appearance impartiality, actual deals not public impropriety. bate the prejudice); bias or see also In re Drexel Burnham favorably upon system that allows not look Inc., Cir.1988) (2d Lambert 861 F.2d impartiality colleague pass one on the of an- (“[T]he applied test to is an one colleague closely ques- with the other who works person which assumes that a reasonable knows judge. supra, judges sitting As tioned discussed (empha in review of other do not like to cast and understands all the relevant facts." upon colleagues aspersions, especially original)), sis in intimately (1989); work so same district with whom In re Ma frequently. Accordingly, son, ("Section and confer so we have (7th Cir.1990) precaution asking that a the additional taken person per asks whether a reasonable appointed from another district be to re- significant ceives a risk that the will re Appellant. imputing We are not one sentence merits.”). solve the case on a basis other than the disqualification judge's in which to the district sits; taking proven precaution she we are hand, Liljeberg, on the other describes the stan- 3. particu- appropriate that we feel is to handle this observer, reasonable, objective dard as whether a lar kind of situation. facts, judge's knowing question the all the 860-61, impartiality. 108 S.Ct. at 486 U.S. at "[a]ny justice, judge, 1.Section states that Liteky's "impossibility judgment” of fair 2203. magistrate disqualify or of the United States shall of "rea- any proceeding impartial- standard therefore clarifies threshold his himself in which reasonably questioned.” ity might sonableness” in this context.

161 require of bias anees alone should not description disqualifica to the during by judicial comments the tri- created prevent tion to an unfair trial.” Del Vecchio Accordingly, Liteky prescribe I a al. read Corrections, Dep’t 1363, v. Illinois 31 F.3d “person narrower than the on standard (7th Cir.1994). every 1371 ‘possible “Not majority appears to use. street” standard temptation’ presents to be biased a sufficient probability require disqualifica of bias to Second, Property other than Vieux Carre tion.” Id. at 1372. Because recusal is war (5th Brown, F.2d 1436 Owners v. 948 Cir. judge ranted a personal “when has a direct 1991), Department Pub and Henderson interest,” fiduciary or United States v. Lo Corrections, (5th Safety & 901 F.2d 1288 lic (2d vaglia, 811, Cir.1992), 954 F.2d 815 Cir.1990), 6, majority op. at 157 n. see courts have required recusal where the many does not discuss the Fifth Circuit and 455(a). judge’s case,4 relative was involved applying other cases This line of up opposite a continuum judge’s accepted cases sets between where the employ law clerk recusal; other, poles requiring not. counsel,5 party’s ment with a where counsel —one majority attempt place no makes Jor party represented judge,6 for one had continuum, dan on this and it does not distin partner party’s where a of one counsel was guish support or in ac Jordan decision clerk,7 judge’s former law or where the cordance with this caselaw. judge fiduciary responsibility par had a to a contrast, ty in interest.8 In courts do not critically important in a case of this “[I]t is judge’s insist on recusal where the interest is identify might kind to the facts that reason- “remote, contingent, speculative,” indirect or ably cause an observer to 815, Lovaglia, 954 F.2d at such as where the judge’s] impartiality.” Liljeberg, 486 U.S. [a judge only had made minor contributions to a 865, Special emphasis at 108 S.Ct. at 2205. party’s campaign,9 judge delayed where the placed identifying should be those facts See, analysis. e.g., hearing material to our until a longer close friend would no 865-67, my 108 at id. at S.Ct. 2205-06. outcome,10 be interested where the view, requires this case us determine judge’s spouse was a student at the defen longstanding friendship, coupled whether university,11 dant where the had a supposed judge’s “bad blood” between a counsel,12 sporadic friendship with where the defendant, enough sup- friend between the and the victim port holding of abuse of discretion in rela- case,13 years had ended several before the “appearance partiality.” tion to judge’s represented where the son non- party entity party in which a had an intere “‘Partiality’ does not refer to all favorit st,14 judge’s spouse where the was involved ism, is, reason, only but to such as for some — separate party,15 in a transaction with a or wrongful inappropriate.” Liteky, or at —, appear- judge’s spouse partner 114 at “[B]ad S.Ct. 1156. where the was a Faulkner, (5th Owners, 716, Property 4. F.2d In re 856 721 Cir. 10. Vieux Carre 948 F.2d at 1988). 1448. Paso, University 11. Levitt v. Texas at El 847 Admin., 175, 5. Hall v. Small Business 695 F.2d denied, 221, (5th Cir.), F.2d 225-26 488 U.S. (5th 1983). 179 Cir. 984, 536, (1988). 109 S.Ct. 102 L.Ed.2d 567 Potashnick, 6. F.2d at 1111. Henderson, at 12. 901 F.2d 1295-96. Co., 1510,

7. Parker v. Connors Steel 855 F.2d Lovaglia, 13. at 954 F.2d 816. Cir.1988), denied, 1524-25 rt. 490 U.S. ce (1989). 104 L.Ed.2d 631 Miranne, 14. United States v. (5th Cir.1982), cert. 866-70, Liljeberg, 486 U.S. at S.Ct. 2206-07. Inc., Lambert F.2d In re Drexel Burnham Mason, 916 F.2d at 387. at 1314-15. cases,” simply that —an op. n. is at 158 represented party a firm that had the law view, my identify principled the facts of this a basis attempt other matters.16 group of closely the latter underlying fit most with of each case the resolution decision cases, concerning involve- especially those quote a majority’s opinion, case. The the judge’s spouse, which ment of the Liljeberg, “long on ethics is dissenter Indeed, discretion.17 judge did not abuse his abstract, of on workable rules but short cases, required even in these no recusal 870, 108 at Liljeberg, at law.” 486 U.S. judge’s spouse was connected though the C.J., dissenting).20 (Rehnquist, Here, the source party a to the case.18 with firm- majority anchor this case fails to The challenged connection —Michael of existing jurisprudence. § ly in the Friendship plus the party. a Wood—is not pre- generalization without Imprecision and enough.19 is not speculation of retaliation applied legal standards articulated cise Liteky’s “impossibility of apply Whether we objective standard supposedly a will reduce prece- judgment” or Fifth Circuit fair test panel. subjective appellate of the whim dent, Judge Harmon’s deci- I affirm majority’s sympathize I with the Although sion. concerns, satisfy of this case the facts § majority that The states “each Fifth law: Liteky of test extremely fact intensive and fact case is Judge did not abuse her discretion Harmon bound, unique judged on its and must be denying motion to recuse herself. circumstances, than com- facts and more Therefore, respectfully I dissent.21 ju- prior parison to situations considered Having said risprudence.” op. at 157.

that, prior majority ignore free to feels However, appellate an

§ caselaw.

court, provide obligation an dis- we have of

trict court with some semblance they may

legal principles against which mea- My “parsing prior our

sure their conduct. of Indeed, Billedeaux, partner. judge's former law 972 F.2d 105-06 16. In re colleague. Cir.1992). may judge’s party have murdered Harrelson, 754 F.2d 1153 See United States v. Billedeaux, 105-06; (5th Cir.), 972 F.2d at In re 17. See In re Inc., specter Drexel Burnham Lambert 1314- The 225-26; 15; Levitt, supra judge present F.2d at see also in each of retaliation 11, 15, accompanying require ENTERPRISES, as Receiver REW INC. Jackson, Bank

for Federal Land

Plaintiff-Appellee, Cross-Appellant, BANK, N.A.,

PREMIER Ouachita f/k/a Bank, Defendant-Appellant, National

Cross-Appellee.

No. 93-3829. Appeals,

United States Court of

Fifth Circuit.

March

Rehearing Suggestion Rehearing April

En Banc Denied impression [they] judge may preside want to leave the reader.” if a over the trial of the Op. by stating colleague disqualification, at 160 n. 18. murder of a without Harrelson, "having colleagues one of own her in her district see United States (5th Cir.), pass past might, actions well in and of 1164-66 itself, (1985), improprie- exacerbate the 88 L.Ed.2d I see no id., ty," impres- disqualify I cannot see how avoid that reason to the entire Southern District Moreover, reasons, system requires sion. our often of Texas in this case. For these I find involving colleague— majority’s remedy to rule on matters extreme. notes 16 and text. examples, yet in none of these recusal equally possibility in this case is them. Judge majority suggests Harmon's 18. The higher probability, it is insuf remote—without important to Wood is more than connection ficient. spouse. Op. at 158 n. 9. I because Mr. Harmon's connection to conclusion majority from address- 20. The also excuses itself was much closer and more involved Mr. Wood ing prior “uncomfortable in caselaw because judge. Because a mere friend- than that of ship determining blindly relying upon civil cases in Judge and Wood would between Harmon felony judge presiding over a trial whether case, required only in this not have past recusal 455(a), language The clear should recuse.” and the defendant interactions of Wood however, makes no distinction between civE and brought question. into could have equal- litigants criminal cases. I believe civE are argument, as counsel stated at oral ly impartial judge as are those as entitled to knowledge, any, past if of the Harmon's case. involved in a criminal spouse’s informing altercation derived from her Accordingly, I maintain that the con- her of it. remaining issue—the I have not addressed spouse Harmon's is a critical nection remedy Even if I for a violation. focus of this case. agreed Harmon abused her discre- tion, why judge another I see no reason may example, party 19. For or counsel have case, could not conduct the Southern District of Texas prior in a or even the offended the remedy resentencing. majority's im- Couch judge may disagree with the same case. The See, single judge disqualification auto- plies of a party political or counsel's or moral views. at —, every matically disqualifies of that e.g., Liteky, other 114 S.Ct. at 1150- —U.S. majority protests fought bitterly that "this is not party district. The 51. A or counsel have

Case Details

Case Name: United States v. Jordan

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Mar 30, 1995

Citation: 49 F.3d 152

Docket Number: 93-02376

Court Abbreviation: 5th Cir.