Case Information
*1 Before LOKEN, BOWMAN, and MURPHY, Circuit Judges.
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PER CURIAM.
Mаrion Anthony Norwood appeals the judgment of the district court entered [1] after a jury found him guilty of conspiracy to commit bank fraud. See 18 U.S.C. *2 §§ 1344, 1349. Norwood’s counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), challenging the sufficiency of the evidence, the admission of certain evidence, and certain sentence enhancements. In a pro se brief, Norwood challenges the ruling of District Judge Phillips at sentencing that she need not recuse; hе also challenges sentence enhancements and argues that he received ineffective assistance of counsel. For the reasons that follow, we affirm.
The indictment charged that Norwood conspired with others to commit bank
fraud from December 10, 2012 to about January 4, 2013. The evidеnce at a three-day
trial showed that United States Postal Service investigators uncovered a scheme in
which groups from Atlanta, Georgia, traveled throughout the United States, stole
business mail from industrial business parks, and used the stolen mail to create
counterfeit payroll checks. Norwood’s conspiracy involved transactions that occurred
primarily in the Kansas City area. According to the Postal Inspector, conspirаtors
known as “handlers” recruited homeless individuals who had state-issued
identification cards and were willing to cash counterfeit checks for a small fee. The
handlers provided the recruits with clothing, transportation, and instructions on what
to do upon entering the bank and leaving with the cash. The handlers exchanged text
messages with conspirators creating counterfeit checks and then picked up the
counterfeit checks on the way to FDIC-insured banks. The check makers ran the
crew and divided the proceeds. Law enforcement officials and cooperating witnesses
confirmed the Postal Inspector’s description of the scheme and Norwood’s
participation as a check maker. The jury found him guilty. Upon careful review, we
conclude that the evidence was sufficient to sustain the jury’s verdict, and that
evidence about past events was properly admitted under Federal Rule of Evidence
404(b). See United States v. Maxwell,
*3 At the beginning of the multi-day sentencing hearing, Judge Phillips noted that, according to the presentence report, the conspiracy for which Norwood was convicted “is part of a nationwide counterfeit check ring out of Atlanta, Georgia, that has been under investigation by the United States Postal Inspection Service since 2010” -- before Judge Phillips left her position as United States Attorney for the Western District of Missouri on March 22, 2012. Judge Phillips asked the government for clarification as to when investigation of the conspiracy involving Norwood had begun, so that she could determine whether she had a conflict of interest. Assistant United States Attorney John Cowles responded that, while the first arrests of persons recruiting homeless persons in Kansas City occurred in December 2011, the govеrnment “had literally no information about Mr. Norwood” prior to January 2013. Norwood was not indicted until November 2013, and the counterfeit checks used in prоsecuting his conspiracy were collected no earlier than September 2012, although evidence gathered later showed that Norwoоd’s involvement pre-dated the acts for which he was charged. Judge Phillips determined that the investigation and prosecution of Norwood’s conspiracy offense occurred after she was U.S. Attorney, so she had no conflict of interest and recusal was not required. We agree.
The federal statute governing judicial disqualification provides that a judge
“shall” disqualify if she “has served in governmental employment and in such
capacity
participated
as сounsel . . . or expressed an opinion concerning the merits
of the particular case in controversy.” 28 U.S.C. § 455(b)(3) (emphasis added).
Before Congress adopted this language in 1974, the statute provided that a judge shall
disqualify “in any case in which [she] . . . has been of counsel . . . .” 28 U.S.C. § 455
(1970). As the U.S. Attorney serves as counsеl for the United States in all
prosecutions brought in her District, the term “of counsel” was construed as requiring
a federal judge to recuse in all cases whеre the prosecution was brought while she
was in office. Barry v. United States,
The 1974 revision did, however, replace the reference to “of counsel,” which
suggested a
per se
rule of disqualification for U.S. Attorneys, with the more limited
standard in § 455(b)(3) -- a judge must recuse if she served in governmеnt employ
“and in such capacity
participated
as counsel.” Under this standard, a party seeking
recusal must show that the judge while serving as U.S. Attorney actually partiсipated
as counsel for the government in investigating or prosecuting the specific conspiracy
underlying the present indictment. See United States v. Di Pasquale,
At sentencing, following the presentation of evidence in support of the recommended Guidelines calculations, the district court sustained Norwood’s objections to enhancements involving the number of victims and the amount of intended losses (assessing 49 victims rather than 50 or more, and finding an intended *5 loss of $389,172.89 rаther than $50 million or more). The court overruled his objections to enhancements for the use of sophisticated means, the unauthorized use of idеntification, and his leadership role. We conclude that the district court properly applied the Guidelines and made no clearly errоneous factual finding. See United States v. Jenkins, 578 F.3d 745, 748-49 (8th Cir. 2009). The resulting advisory guidelines range was 140-175 months in prison. The district court imposed a 144- month sentence and ordered restitution of $275,747.34. We find nothing in the record to indicate that sentence is substantively unreasonable.
Finally, as in most cases, Norwood’s pro se ineffeсtive-assistance claims are best left for proceedings under 28 U.S.C. § 2255. See United States v. Davies, 583 F.3d 1081, 1091 (8th Cir. 2009). Following review under Penson v. Ohio, 488 U.S. 75, 80 (1988), we find no other nonfrivolous issue for direct appeal. Accordingly, the judgment of the district court is affirmed. We grant counsel’s motion to withdraw.
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Notes
[1] The Honorable Beth Phillips, United States District Judge for the Western District of Missouri.