*1 175,- of commitment to the pre-SPA level possibility. expansion
000 B/D
(cid:127) 5/7/84, Bank First National of Chica- “Aso under
go’s Annual Review KII:. replacement are the
consideration efficiency unit for and the
No. crude revamping of the fluid unit.”
expansion and documents, prior two this
Contrary to May late as
review indicates that as only KII “considering” was still
expansion.
(cid:127) deposition In Bernard Paulson’s testi- stated,
mony, he possibil-
“We did have Litwin review the No. 1 crude
ity expanding cursory It was a rather short
unit.... it, January I
look at this is assume they I don’t think part
the latter of ’82.
spent a lot of time at it.... did [W]e rejected I
not do it and think because know, money, you
it was too much it was
not effective.” America,
UNITED STATES
Plaintiff-Appellee, PEARSON,
Eric D. Defendant-
Appellant.
No. 97-3268. of Appeals,
United States Court
Tenth Circuit.
Feb.
Timothy Henry, J. Assistant Federal (David Phillips, Public Defender J. Federal Defender, brief), Public with him on the Wichita, Kansas, Defendanb-Appellant. for Welch, Lanny D. Assistant United (Debra Barnett, Attorney L. Assis- Attorney, tant United States and Jackie N. Williams, Attorney, United States brief), Wichita, Kansas, him on the Plaintiff-Appellee. EBEL, HENRY,
Before BRISCOE, Judges, Circuit *6 HENRY, Judge. Circuit juryA Eric convicted Pearson of the (1) following conspiring offenses: to ob- (in by robbery struct commerce violation (2) Act, 1951); § of the Hobbs 18 U.S.C. (also obstructing by robbery commerce (3) Act); carry- violation of the Hobbs and or ing using a firearm connection with a (in murder violation of 18 U.S.C. 924(c)(1) §§ (j)(l)). and The district court imposed concurrent sentences of 240 months for each Hobbs Act and violation prison § life in for the violation. Mr. appeals Pearson now his convictions and grounds, argu- sentences thirteen (1) ing erroneously that: the district court denied his motion for reassign- random (2) case; ment of jury his selection system in the Wichita-Hutchinson division of the District of Kansas violated his Sixth (3) statutory rights; Amendment and Con- gress authority lacked the constitutional (4) 1951; § enact 18 U.S.C. the convictions § under 18 as U.S.C. well as under super- nineteen-year-old shift 924(c)(1) gomery, the Double (j)(l), violated § and (5) duty. The fled Clause; court who was on robbers visor the district Jeopardy $2,500. roughly his state- with suppress erroneously refused (6) arrest; his police to the after ments in- interviews with various upon Based support was insufficient evidence formants, Investiga- Bureau the Federal felony he committed finding that jury’s (“Mr. (“FBI”) arrested Eric Pearson tion 1111(a) § by 18 defined U.S.C. murder as Pearson”) others in relation to and several under 18 required for his conviction and as According Mr. the events at Goodcents. (7) 924(c)(1) (j)(l); the dis- § and U.S.C. him, interrogated FBI agents to the who erroneously jury court instructed trict being involved in Mr. Pearson confessed to (8) murder; felony on the elements robbery the Mr. Goodcents and implicated to sub- erroneously court refused district cousin, (“Dominic”), his Dominic included offense requested lesser mit his Courtney Martin. and their friend (9) jury; the district instructions (cid:127) 1997, the United February of his admitting evidence court erred in- separate three (10) Attorney’s im- Office filed character; jury instructions District in the United States necessary to formations omitted element properly (11) charging of Kansas 1951;' for the District § Court of 18 a violation U.S.C. prove Courtney Eric and Dominic Pearson and process violated his due the district court 2, 924, §§§ violating Martin 18 U.S.C. his motion for new when it denied rights killing 1951 for their roles wit- government’s trial after one of (12) Montgomery robbery and the Amie recanted; the district nesses later, jury days grand Three Goodcents. Sentencing 2A1.1 of misapplied in- (13) separate superseding Guidelines; returned three district court was charging the Pearsons dictments in violation of his due against him biased March with those offenses. On Martin process rights. jury grand issued consolidated below, forth the reasons set For other adding indictment two superseding convictions and sen- Mr. Pearson’s affirm defendants, Meyer and Gracie Deborah tences. Eric cousin of Pearson. Ginyard, another indictment also added superseding I. BACKGROUND *7 §§§ new counts under 18 U.S.C. several summarizing the events begin by We Eric and Dominic against and 1951 arrest and the leading up to Mr. Pearson’s 17, 1997, govern- the April On Pearson. Then, presented at trial. because evidence indict- superseding ment filed a second in concerns the issue the case a central defendants. against ment the same adopted by procedures judicial assignment Kansas; the we discuss the District Martin, Mey- Ginyard, and Ms. Mr. Ms. assigned to in which the case was manner testify at agreed to pleaded guilty er L. Judge Monti Be- States District had Meyer, Ms. who Mr. Pearson’s trial. lot. manager at Mr. Good- an been assistant Pearson, boy- cents, her stated that Mr. at Mr. Robbery The and Murder
A. time, with her had .discussed friend Goodcents money from Mr. plans to take various that she also met testified men, handgun, She wielding a Goodcents. Two one Dominic Mr. and his cousin with Pearson Subs & Pastas Mr. Goodcents robbed restaurant Goodcents”) Wichita, Kansas, where the (“Mr. and talked about would be the money and when Monday, kept its on Feb- p.m. 9:55 approximately that to it. She stated before time rob emptied the men best ruary 1997. As left robbery, Pearsons safe, acci- the date of handgun register and cash Goodcents, Mr. intending tо rob her house killing Amie Mont- dentally discharged, they complete p.m., but her not son’s residence around 9:00 Mr. later told could police the crime because there were Pearson and Dominic conversed another However, discussing robbery accord- room before with around restaurant. Mr. ing Meyer, to Ms. Mr. Pearson continued him. Martin claimed that Mr. Pear- plan money robbery go to to take from Mr. Goodcents son assured him that the would February Finally, Meyer given until Ms. well because Ms. had Mr. Meyer that Mr. not testified Pearson was Pearson detailed information about how to employed during the time she knew him commit the crime. Mr. Pearson ex- also supported but that he a “hus- could enter plained himself as he the restau- pimp just employees might recog- tler” and “a had women.” rant because the [who] VII, Upon objection Rec. vol. at 132. him. nize Mr. Martin stated that Mr. counsel, the court instructed supplied gun clothing defense the Pearson and the wear, jury disregard Meyer’s Ms. Mr. reference to for Martin and Dominic to drove However, Goodcents, car, “pimp.” Mr. Pearson as a them Mr. waited objection away court overruled the as to the them and then drove after the crime. term holding “hustler.” Mr. Martin admitted that he was fired, gun killing when it Mont- Ms. Ginyard Ms. testified that she had heard gomery. He also testified that the three talking robbing Mr. Pearson about Mr. split robbery proceeds. of them had January. Goodcents in She further testi- that, February, fied approached government presented he her also several Meyer working while she and Ms. were at witnesses who were involved in the restaurant her him help Special Agent and asked crime. FBI Pritch- Charles that, stage robbery Meyer when during interrogation Ms. she ett testified arrest, deposit receipts. just went to after store’s Ms. his Mr. Pearson confess- Ginyard agreed plan, stated that she ed Mr. robbing Goodcents with Dominic changed speaking but then her mind after Mr. According Special Martin. Meyer. Pritchett, According Ms. to Ms. Gin- Mr. him Agent Pearson told yard, Meyer Ms. subsequently told her he drove Dominic and Mr. Martin to Mr. Goodcents, going Pearson was parked rob on the north side of the evening February store, store on the waited while Dominic and Mr. Mar- Ginyard working store, Ms. and could ensure tin robbed the split then However, proceeds no one would be hurt. she with them. noted that Mr. did not rob the Dyer, girlfriend Monie a former of Mr. night. restaurant During her testi- Pearson’s, 20th, testified that February on mony, Ginyard Ms. also identified the mur- paged Mr. Pearson her. She stated that weapon der gun. as house, she drove Mr. Pearson to his where that,
Mr. Martin February blanket, testified he a rifle gave wrapped her *8 17, he and Dominic had robbed the restau- which she garage. took to her added She that, rant while Mr. Pearson waited the car. as she taking was the rifle out of the Mr. girl- car, Martin claimed he was at his trunk of her something she noticed prior robbery friend’s house and falling out of the blanket. When she trunk, p.m. Dominic arrived around 8:30 Mr. handgun looked her she saw a that, prior going Martin stated Mr. clip.1 and a rifle She claimed that on the residence, around, Pearson’s they following day drove disposed handgun she of the marijuana. smoking According dumpster to Mr. after she learned of Mr. Martin, they when arrived at Mr. Pear- Pearson’s arrest and after Bruce Dikes During testimony discovering 1. thought guns her about and my at the time I it was two [in disposing handgun, Dyer of the Ms. revealed But I talked trank]. to Eric since then...." VIII, she had been in says contact with the defendant Rec. vol. and he "[Eric] stated, "Well, regarding testimony. give gun,” her She didn’t me the ... id. at cousin) (Mr. robbery killing, dispose money told her to and stolen Pearson’s Id. vol. have used to good.” purchase goods “for own would been gun [her] of the VIII, receiving anony- produced After an outside of Kansas. Mr. Peterson at 372-78. Pearson, call, they stated that he knew Mr. phone which later deter- because mous Meyer he had taken Mr. Pearson and Ms. Dyer, police was Ms. mined made dinner, recognized and would have him dump- the same handgun retrieved a if Mr. Pearson had robbed the store while gun Forensic tests on the showed ster. working. Mr. Peterson had been Ms. that it had fired the bullet killed cross-examination, Montgomery. Ms. On case, government’s After the close of the Dyer testified that she was not sure how Mr. Pearson called Kenneth Hawkins as handgun got into her trunk and that an alibi witness. Mr. Hawkins testified who borrowed her car on the someone that Mr. Pearson was аt his house on the put gun twentieth in the must night robbery of the from before sundown repeatedly trunk. When asked who had (around p.m.) 6:10 until 3:00 a.m. Accord- twentieth, responded: car on the she her Hawkins, ing only to Mr. Mr. Pearson left just get my I couldn’t car. during the after 10:00 evening, p.m., once gone twenty and was more no than riding my I with a car friend cross-examination, minutes. On Mr. Haw- fact, my I don’t house. Matter questioned by kins admitted But my night. know where car was that agents during investigation, FBI he couldn’t, get I I couldn’t to it at that did not tell FBI that Mr. Pearson was riding I was with someone else. time. night robbery. with him on the He way I was across town. explained his failure to disclose this infor- by noting agents FBI mation nev- exactly. I don’t know don’t know if specifically er asked him he knew where Mr. during
Mr. Pearson was Good- robbery. eents Mr. Hawkins further ex- any I don’t think let men borrow [I only plained person that he was work- my car]. FBI ing agents his store when the came him, busy. and he was interview People me telling were man [a put named was the one that Bernard] hearing testimony, gov- After No, gun my car.... [Bernard] witnesses, ernment called rebuttal includ- my didn’t use car. Fowler, ing Kaleb who worked at Mr. Go- 353-54, Id. at 368-69. Pearson, and knew odcents Miller, girlfriend a former Shannon Starks, employee of Mr. Angela Go- Mr. Fowler testified that Pearson’s. present during odcents who was the rob- Meyer’s he Ms. house between 7:15 called bery, testified to the details of the crime. dark, p.m., night and 7:30 after on the stated that she knew Mr. Pearson and She Pearson, robbery and that Mr. whose recognized would have him had he robbed answered tele- recognized, voice he the store. She admitted that she did not testimony, her Ms. Miller phone. see Mr. Pearson rob the store and did not letter to her in Mr. identified a sent any during see cars or movement the rob- handwriting. The letter was bery. *9 nickname, Ace, signed with Mr. Pearson’s Peterson, the owner of Mr. Good- Steve Harvey County jail, from the and sent cents, part testified that the restaurant is being Pearson held. The where Mr. purchases goods of a national chain and read, part: in pertinent letter compa- Kansas and out-of-state both trying get hell According nies for sale to customers. feds been [T]hese lies, Peterson, dirty Telling saying on me. business suffered after the and preys who predator, manipulator a things that I haven’t. Re- that I’ve said “has sitting [n]ever me. I was women” and as someone who ally trying to screw I thinking night and in his life” and “has anything here about done decent talking X, at 10:00 I was at going remembered for him.” Id. vol. BB- nothing we talked on you phone. on the First Observing that Mr. Pearson smirked SS. I called back on my phone. cell Then if it were “entertain through the trial as cheaper. phone so it would be ment,” the studio called Mr. Pearson the court also coming talked about me That’s when we “poster boy a for a life “repulsive” and very impor- It was 10:00. This is over. in a Id. at penitentiary.” sentence federal my you willing be tant to case. Would reacting disruption to a Finally, 35. you talking them know were to let sentencing, Mr. Pearson’s during audience Please, If baby, important. me? it’s stated, “Another one of the district say 10:00 they you how know it was ask A stupid I lot of your girlfriends, assume. - talking. came on while we the news were at When people around here.” Id. . talking about me com- Don’t mention us spoke in his de Mr Pearson’s counsel I I let them know was ing over because fense, court, recalling testimony, trial But we did at the studio until 2:45 a.m. responded: I’m from about 9:50 until 10:10. talk are there redeeming qualities What tonight.... you’re If gonna you call claim to fame about someone whose is you I’ll all say down when I call “are different women impregnating three just say yes. Then I’ll good.” You his children? supporting [and] not know. IX, averred Id. vol. at 690-91. Ms. Miller [Wjhere you those chil- suppose do that Mr. called her to ensure that Pearson going years? to be in 15 or 20 dren are letter, testify as he asked in the she would apparently 25? With mothers who Or “I him that I but she refused: told didn’t prostitutes who are and father appreciate involving ... him me spending the rest of his life in federal him, ordeal, that I would not lie for whole penitentiary. perjure myself.” I Id. at 692. would 39-40; Id. at see also Rec. vol. VII evidence, At the conclusion of all the (testimony Meyer noting from Ms. jury convicted Mr. Pearson on all counts. that Mr. Pearson had three children with hearing judge At over- sentencing women). three different objections pre- ruled Mr. imposed report sentence concurrent Assignment B. The Case 240 month sentences for the Hobbs Act Judge Belot and a life sentence for the
violations violation. government sepa- filed three When the Pearson, Eric against rate informations trial, judge made several During the Pearson, Courtney Dominic Martin remarks about Mr. Pearson’s character. February the court clerk’s office as- conference, report- After a bench the court signed each case to a different United er told the that she saw Eric Judge: States District Pearson’s case gestures to -a making threatening witness. assigned to States District In discussing reporter’s the court observa- Marten; Judge John Thomas Dominic attorneys, tion with the referred Judge assigned Pearson’s case was class, “a ... punk, to Mr. Pearson as first Belot; L. case was Monti Mr. Martin’s ..'. manipulator ... whores [who] runs Judge assigned to United States District VII, lives off ... women.” Id. vol. [and] Frank Theis. G. 276-77. However, sentencing hearing, grand jury the dis when the returned During “a indictment superseding trict court referred to Mr. Pearson as the consolidated *10 Pearson, Pearson, Eric Dominic son as first on the Information and against first Martin, Meyer, and on the individual Mr. Deborah Gracie Indictment numbered 12, 1997, 97-10026-01; Ginyard on March assigned office the consolidated clerk’s Indictment, Superseding b. On the Judges Belot. Marten and Judge case to Eric Pearson was listed second. Inex- previous dismissed the indict- Theis then plicably, and for the first time in this Courtney Eric against ments Pearson caSe, Mr. Dominic Pearson was listed Martin. first. belief, Upon c. information and assigned
After the case was consolidated practice Attorney normal of the U.S. Belot, Judge government filed a thought to list the defendant the most motion to sever the trials of Dominic Pear- first, lead, culpable as the or defendant. Courtney Martin from son and those Pearson, Meyer, Eric Ms. and Ms. Gin- d. The place Clerk’s office did not yard. government based its motion Superseding Indictment the ran- Pearson, Meyer, Eric on the fact that Ms. assignment dom pool, because there Ginyard and Ms. had each made state- already judicial were assignments on the and therefore implicated related, ments that others technically superseded, individu- deal with would be easier to those “[i]t al Indictments.
people first and deal with others that Instead, e. the Clerk’s office contin- don’t have statements from second.” Rec. prior assignment. ued a Ill, Judge granted vol. at 2. Belot doc. f. prior assign- There were three sever, the motion to but all of the cases [i.e., ... ments available to the Clerk assigned remained to him. pending Judges the cases before Mar- ten, Belot, and Theis].
Subsequently, Mr. Pearson filed a mo- seeking reassignment tion random to a g. selecting among Instead of judge, new contending govern- randomly, choosing alleged- three or purposely charges ment had filed the defendant, ly culpable choosing most or against the defendants in such a manner assign Superseding Indictment to the consolidated case would be as- Judge already who had first filed Mr. signed Judge (United Belot. Pearson ex- Indictment States v. Eric D. plained employed by gov- the method Pearson, 97-10025), Case No. the clerk ernment as follows: judicial assignment based the on how Superseding pled. Indictment was
This case was not a random Rec. vol. I doc. at 2-3.2 assignment. formerly gov-
a. the order of the maintained that Where Pearson Eric persons “judge-shopping” accused had listed D. Pear- ernment’s motive for record, contrast, 2. From our review of the it is some- an affidavit attached to the against what unclear what Mr. Pearson meant when initial information Dominic Pearson per- perpetrators. he described "the order the accused does contain the names of three initial and indict- It of information indicat- sons” information states "sources ment. Both the initial information and the ed that Eric Pearson had contacted two Martin, friends, Courtney against initial men- and Dominic Pear- indictment son[,] only perpetrator by robbery.” tion one name —Eric to assist him in the Rec. vol. Subsequently, describing an Pearson. An affidavit attached to the infor- I doc. at 3. Pearson, against affidavit mation Mr. Pearson does state that FBI interview with Eric states, he robbed the Mr. Pearson "indicated that he robbed the "Eric Pearson indicated individuals,” Martin and Pearson.” Id. store with two other see Rec. store with Dominic Thus, against XV Dominic Pear- vol. doc. but it does not name the information Thus, perpetrators charging in an thesе individuals. the initial son does contain a list Martin, (Eric Pearson, Courtney Eric no documents as to Pearson contain list order Pearson), government that differs from the order of defendants that could Dominic subsequent superseding in the indictment reorder in a indictment. of defendants *11 Judge before Be- placing all defendants Judge Belot had rulings that a series of cases, lot. rulings in two similar murder made large part “in favor- allegedly were that motion for response In to Mr. Pearson’s Al- Id. at 3. government.” able to the de government reassignment, random some maintained that
though Mr. Pearson purposefully it allegation nied directly dictated rulings “were not of these Judge assigned the case to sought to have id., he also precedent,” by higher that it had left the case Belot. It stressed true, are, it is acknowledged that “[s]ome superseding indictment number on the at 5. Id. precedent.” dictated the U.S. District Court blank “so assignment make the would Clerk’s Office hearing on the mo- Judge Belot held deemed manner it or the Court testimony introduced tion. Mr. Pearson II, doc.-129, vol. but appropriate,” id. Stinson, in the employee an from Bonnie why it explanation as to it offered no in the Wichita branch clerk’s office in which it listed the changed the order Court for the Dis- United States District did, government names. The defendants’ of her testi- purpose trict of Kansas. however, “if to state that this Court wishes assignment mony was to show that herein, judicial assignment make another manipulation. system susceptible object.” Id. United States would that, general as a Ms. Stinson testified at 3. rule, indict- involving superseding cases randomly reassigned to a
ments were not
testimony
Ms.
hearing
After
Stinson’s
Instead,
judge.
the United States
new
assignment procedures
about the case
Attorney’s
superseding
office labeled the
Kansas, Judge
denied
the District of
Belot
case number
indictment with
same
reassignment
for random
the motion
previously assigned
had been
to.
bench, stating that it was “much ado
listed first in
involving
case
the defendant
XI,
Id.
doc.
nothing.”
about
vol.
indictment. The new case
superseding
government
that if the
He reasoned
assigned
han-
would then be
they
me
could
assigned
“had wanted it
prior
dling the
case.
just
put
for Dominic
[the
number
indictmеnt
original case] on the
instance,
However,
govern-
this
it.” Id. at 15. He
they
didn’t do
not include a case number on the
ment did
explained his view of the record as follows:
tes-
superseding indictment. Ms. Stinson
I’ve been around here
The Court:....
that,
tele-
tified
when the clerk’s office
years
guaran-
I’ll
off and on for 25
in-
Attorney’s
office to
phoned
U.S.
you
judges
that I
in this
tee
know
blank,
left
quire why the number had been
Henry
district better than Mr.
[one
Attorney’s
responded
office
“that
the U.S.
attorneys] does. And I
Mr. Pearson’s
up
office]
be
clerk’s
[the
would
.
any
know that there aren’t
of them
also
would
as-
decide what case number
be
likely
that are more
to favor the defense
Attorney’s
signed,
office]
U.S.
did
[the
government. And I do not
or favor the
Id. vol.
not want to make
decision.”
that I
implication
like the
on the record
indictment,
XI,
superseding
at 6.
theOn
government.
somehow favor the
then filled
the court clerk’s office
Well,
Honor,
Your
we’re
prior
Mr. Gradert:
originally assigned
number
(who
implication.
make that
trying
involving only
Dominic Pearson
defense,
fact,
Henry
Henry’s
in Mr.
the first defendant listed
the consol-
indictment).
prepare
motion. And this
The se-
did not
superseding
idated
by someone other
prepared
had the effect
motion was
lection of that case number
Pearson,
Pearson,
(Dominic
employed
Courtney
of Kansas
Eric
District
Martin,
circumstances,
that,
Meyer,
Ginyard).
system
Deborah
Grade
could be
in these
below,
allega-
explained
Mr. Pearson’s
As
particular judge.
manipulated to
obtain
demonstrate that the
tions are sufficient to
*12
however,
Henry
myself;
than Mr.
fair
justice.
administration of
According-
ly,
we all discussed.
we will consider his challenge
only
also,
under the Due Process Clause but
Well,
prepared
The Court:
who was it
pursuant
supervisory
to our
authority over
by?
the district
courts under 28 U.S.C.
Mr.
It
prepared by
Gradert:
That section codifies this
power
court’s
Dedmon, Your Honor.
order such
“just
relief as is
under the
The Court: That’s another one that I
circumstances.” Id.
would think —Mr. Dedmon has never
appeared my
court. Knows absolute-
1. Due Process Challenge
ly nothing about me. Yet
implica-
In his motion for
reassignment,
random
tion of this is that I will not be fair to a
argued
that there was a sig
dеfendant.
implication
That’s the entire
nificant difference between the judge
this,
I
government.
that
favor the
by
sought
the government Judge Belot—
—
Honor,
Mr. Gradert: Your
it’s not so
judges
the other
who could have been
you
much that
will favor one or the
assigned to the case.
Judge
He noted that
other; but it’s the
percep-
Government’s
recently
Belot had
rulings
issued
in two
frequently
you
tion
might
that
be that
capital cases that
“in large part
were
fa
way and that
purpose
was their
for—
government
vorable to the
and were not
The Court:
is no
There
evidence on
directly
dictated
higher court prece
the record in
You
this case.
had an
I,
3;
dent.” Rec. vol.
doc. 77 at
see id. at
opportunity. You could have called the
(discussing
3-5
United States v. Chantha
Attorney.
United States
You could have
dara,
(D.Kan.1996),
F.Supp.
928
1055
any
called
of the assistants to establish
Nguyen,
United States v.
F.Supp.
928
1525
if you
that
could.
(10th
(D.Kan.1996), aff'd,
II. DISCUSSION
mental
the constitution of the
“defect[ ]
Alleged
A.
Manipulation
the Judi-
mechanism,
trial
analysis by
which def[ies]
Assignment
cial
System
Aplt’s
‘harmless-error’ standards.”
See
Reply
2 (quoting
Br. at
Arizona v. Fulmi
appeal, Mr.
argues
On
Pearson first
nante,
279, 309,
1246,
111
U.S.
S.Ct.
government
violated the Due Process
(1991)).
tum, 824, 834, 34 of this 409 U.S. J.) (1972) not have (quoting that “a defendant does (Rehnquist, concluded L.Ed.2d Tenth by particu v. Judicial Council have his case heard right Chandler States, States, 398 U.S. Circuit v. United judge,” lar see Sinito (1970) 26 L.Ed.2d Cir.1984), S.Ct. that “a defen F.2d J., dissenting)): (Douglas, proce right any particular dant has no spec- constitutional [T]hey cover the judge,” Cruz selection of the dure for the *13 emphasis trum; particular judge’s (9th and a Cir.1987), Abbate, 812 F.2d 574 v. when a world of difference may make “the enjoy he or and that she.does evidence, temper rulings to on comes by a selected judge [the] to have right courtroom, a for the tolerance of the 515; Sinito, 750 F.2d at draw.” random defense, like. Law- and proffered City Board School Directors see also of of they talk about recognize this when yers Wisconsin, F.R.D. v. 102 Milwaukee of recog- judge; Senators for a “shopping” (“Even (E.D.Wis.1984) criminal a 598 this, give to they are nize when asked in the process has no due rights defendant judicial to and consent” “advice their case.”); v. of his United States assignment recognize this laymen appointments; (N.D.Ill. Keane, F.Supp. 1204 im- they appraise quality and 1974) has no (concluding that “a defendant judiciary in their own commu- age of the before right to have his case tried vested nity. nor does have the any particular judge, he 834-35, 93 Id. S.Ct. his the manner in which right to determine has recently, More the Seventh Circuit a assigned judge”). case is a similar observation: offered judicial has considered the This circuit shaped by of discretion is exercise [T]he only adjudication on a phase assignment intuitions, values and which judge’s a Recently, United States few occasions. by the back- shaped judge’s turn are (10th Diaz, 1239, 1243-45 Cir. 189 F.3d Among a ground experiences. § 1999), concluded that 28 U.S.C. we judges, American even of group of six discre the district courts with vests broad county, same there same court particu assignment of cases tion considerable, relevant, likely to be rejected a due judges. lar We defendant’s experience. diversity background rotating assignment a process challenge to may a differ- prosecutors Former judges different were as system in which lawyers, from former ent bent defense case. phases a to various same lawyers plaintiffs signed for tort dif- former Diaz, in- lawyers (stating from former at 1243 ferent bent 189 F.3d See companies. argument surance “under the defendant’s § vests the which mined 28 U.S.C. (7th Trigg, 50 F.3d Tyson discretion in as court with broad II). district Cir.1995) (hereafter Tyson to individual signing court business significant In these differences spite of Previously, in v. Win judges”). Martinez authority there is judges, scant between (10th Cir.1985), ner, 424, 434 (if im any) discussing requirements moot, F.2d 230 Cir. as vacated on the by the Due Process posed Clause 1986), judge concluded that district adjudication. judicial assignment phase of violating the Process accused of Due broad discretion Congress granted has case by improperly assigning a Clause assign courts in the the federal district immunity. to absolute himself was entitled particular judges. See 28 ment of cases observed, it is ‘adminis “Although an (“The We a court business U.S.C act, in the sense that it does trative’ judge be divid having more than one shall case, who shall the decision win concern judges provided as among ed court.”). judicial is still a assignment In of cases light rules and orders law, directly function in the sense that it con facts and application pre- and in case-deciding process.” cerns Id. serving open process a fair and for deci- sion, are not to degree the same implicat- these decisions both concern Although ed.” Id. assignment the district court’s cases particular judges, neither Diaz nor Mar- In light of the role that prosecutors play process tinez addresses the due limita- advocates, as two state courts have con- tions, if any, prosecutorial involvement judicial cluded that assignment systems in the process. Accordingly, allowing prosecutors to select the helpful analy- we turn to a sister circuit for assigned particular to a case violate due sis. process. v. Simpson, State 551 So.2d involving allegation
In a im- (La.1989) (per curiam), the defendant manipulation proper assign- of the case application filed an supervisory for a writ system by ment than a rather seeking reassignment оf his case to anoth- *14 prosecutor, the Ninth Circuit concluded: judge. Noting prosecutor er that the a right any
While
defendant has no
the
attorney
stipulated
defense
had
that in
particular procedure
the
for
selection of
issue,
the
prosecu-
Louisiana district at
the
judge
being
judi-
a
of
matter
tion was allowed
judge
to select the
who
—that
cial administration committed to the
cases,
presided over criminal
the Louisiana
sound discretion of the court—-he is enti- Supreme
granted
Court
the writ. The
tled to have that
in
decision made
court reasoned:
manner free
bias or the desire to
process requirements,
To meet due
capi-
influence the outcome of
proceed-
felony
tal and other
cases must be allot-
ings.
ted for trial to the various divisions of
Cruz,
574;
F.2d at
812
see also Schweiker
court,
judges assigned
or to
criminal
McClure,
188, 195,
v.
456 U.S.
duty,
court
rotating
on a random or
(1982)
1665, 72
1
(noting
L.Ed.2d
that the
basis or under some other procedure
Supreme
“repeatedly
Court
has recognized
adopted by the court which does not
process
due
impartiality
[that]
demands
on
attorney
power
vest the district
part
judicial
of those who function in
or
judge
particular
choose the
to whom a
view,
quasi-judicial capacities”).
In our
if
assigned.
case is
of a case to an individual
N.Y.S.2d the trial judge did not render attorney’s challenge select a district rejected id. at 440-41. fundamentally unfair. See long- his office of its divesting an order system that the American It reasoned judges authority to select accepted equally is not balanced (noting procedure criminal id. at 622 cases. criminal See. defense prosecution Attorney past for some time between District “[t]he “an represents stage, rather by every at but judge in each case has selected Id. directly aggregate imbalances.” for trial indictments moving court”). Thus, advantages have certain prosecutors The court parts of the several impeach- stage and investigative principles general ruling its based witnesses, rules on burdens while the noting judges ing judicial independence, control, See id. Absent proof favor defendants. espe- from outside should be free selected any allegation See id. any litigants. cially by actually against biased (“It prosecutor not the people’s prerogative, defendant, caused the imbalance say preside who will Attorney’s to District egregious was not so County.”). system Indiana Kings County over the Court of the trial. affect as to the fairness McDonald, Simpson and In contrast to that have addressed courts most federal courts have other federal held Several involvement in prosecutorial the issue of that, process a due order establish not found due judicial assignments have *15 judge-shopping, prosecutorial violation Trigg, 50 Tyson violations. process that he demonstrate has a defendant must Cir.1995) (7th (“Tyson F.3d 439-42 actually prejudiced by assign- been II”), thorough of the most recent judge a to his case. particular ment of decisions, the Seventh Cir these federal Gallo, States v. example, For in United in a rejected argument raised habe- cuit (6th Cir.1985), 763 F.2d 1532 assign that the case proceeding corpus as rejected the defendant’s ar- Sixth Circuit in state court system ment an Indiana trial entitled to a new that he was gument process due violated the defendant’s engaged had in a prosecutors because question in allowed rights. system The criminal steering significant of pattern grand one of six prosecutor to select of their choice. See id. judges cases to the proposed indictment juries to which a on its earlier 1532. The relied at grand jury Each presented. was would be States, 750 in v. United decision Sinito thus, by judge, and assigned specific to a (6th Cir.1984), which it in had F.2d 512 grand jury, prosecutors could selecting the were not process that due concerns held judge which the case would choose the resulting error implicated by a clerical Ty assigned. petitioner The habeas be particular a case to a assigned that argue II did not son Gallo, F.2d at 1532. The judge. See 763 “ him. In judge prejudiced against that ‘a had defen- panel Sinito concluded stead, prosecutor “to allow the he asserted does, right have his not dant ” greatly so stacks the pick judge judge,’ by particular heard a does “ as to make the against the deck defendant right a to have his select- not ‘have ” “ deny pro due trial unfair —so unfair as draw,’ and ‘is not de- ed a random law.” Id. at 439. cess of as a result of the error process nied due prej- resulting argu- point unless he can to some rejected that The Seventh Circuit Gallo, (quoting F.2d at 1532 First, udice.’” precedent a lack of ment. noted 515). Sinito, panel 750 F.2d Gallo steering could at holding prosecutorial reasoning dispositive, rejecting found this violation process a due warrant- constitute argument he had the defendant’s because conviction. Addition- the reversal of a ing prejudiced alleged that he fact that not ally, it concluded that steering of cases. alleged advantage prosecutor’s might gain a certain prosecutor other containing sweeping F.2d 1532. Several decisions have language about the similarly required showing prejudice. a impropriety allowing prosecutors to se- See, Erwin, e.g., United States v. lect judges, F.3d address the judge-shopping (6th Cir.1998); United States issue before the defendant was convicted. (5th Osum, Cir.1991). Thus, 943 F.2d they too do not address the situation that confronts us—the alleged manipu- all of Although these decisions offer lation of assignment system the case in an helpful analysis, they and relevant differ individual case and the contention that a important from instant case several conviction should be overturned because of respects. Tyson The Seventh Circuit’s II manipulation. rejects prosecutorial decision a claim of steering, but applies some of its discussion In the guidance absence of only to corpus proceedings habeas and not Supreme Court on process the due II, appeals. Tyson to direct See 50 F.3d limitations, if any, prosecutorial steer (noting precedent at 439-40 absence ing, we are presented therefore with an observing on the issue and that new rules impression issue of first in this circuit. may of constitutional law not applied be Upon record, review of the we conclude Moreover, proceedings). Tyson habeas II the resolution of the constitutional does not address the situation which a question presented by Mr. Pearson’s alle prosecutor succeeds in having case as- gation prosecutorial steering is not nec signed to a particular judge due to some essary disposition appeal. of this perceived advantage will afford Cusumano, See United States v. government. See id. at 441-42. Cir.1996) (en banc) (“The Erwin, endorsed, Supreme long Court has if Cases like Gallo and which re- to, always quire showing adhered prejudice in order to notion federal claim, judge-shopping establish a do courts should address ques constitutional only discuss how showing may necessary such be made. tions to a resolution *16 Although suggest these cases of prosecu- controversy that the case or it. before This torial judge-shopping may violate the Due is a judicial ‘fundamental rule of re ”) Clause, they Process (quoting do not сontain sub- straint.’ Three Tribes Affiliated analysis support 138, 157, stantial of proposi- Engineering, that v. Wold 467 U.S. tion, 2267, (1984)). they do not set forth a standard 104 81 113 S.Ct. L.Ed.2d determining Instead, assume, for what prosecutori- kinds of we deciding, will without judge-shopping al constitutionally pro- are that the Due Process Clause of the Fifth hibited. These cases also do not address Amendment entitles Mr. Pearson to an of type the conduct at issue here: the impartial judicial assignment.3 method of alleged manipulation assume, of a assignment deciding, case We further will without system appears that prosecu- prosecution deprived to afford the that the Mr. Pearson selecting tor discretion in right by manipulating system the of that the Finally, certain instances. assigned Judge the state court so that his case was Simpson and although Affording Belot.4 Mr. Pearson the benefit cases— McDonald — approach challenged allega- 3. This circuit has followed a similar court’s failure to redact the prior involving alleged cases constitutional tions from the indictment was an error of See, Ward, dimension.’’). e.g., violations. v. 182 Foster F.3d constitutional 1177, (10th Cir.1999) (assuming 1184 without case, deciding petitioner’s that counsel was consti- 4. In this Mr. Pearson introduced evi- tutionally concluding employee deficient but that the dence from an of the clerk’s office that, performance prejudicial); government supersed- deficient was not when the filed the Klein, 698, indictment, ing randomly United Cir.1996) ("Because v. 703 the case was not Instead, assigned judge. it does not alter our con- to an individual assigned clusion that the district court’s error was clerk's office the case to the harmless, assume, deciding, previously assigned we without who had been the case involving is correct [the defendant] the district the defendant who was listed first 1260 e Clark, 478 (quoting 1246 Rose S.Ct. assumptions, favorabl of those two 3101, 577-78, 670, 106 S.Ct. the assumed conclude U.S.
nevertheless (1986)). type warrant re does not “Errors of violation L.Ed.2d 460 process due require of his as to intrinsically versal convictions. harmful so are regard ... without reversal automatic Question Error Structural b. The of Neder v. effect on the outcome.” their States, 1, -, characterizes Mr. Pearson 119 S.Ct. 527 U.S. United s manipulation (1999). of alleged prosecution’ If a 1827, 1833, 144 L.Ed.2d system as a structural error, includes such proceeding criminal in the constitution “defect[] error —a “may be punishment [not] resulting analy mechanism, def[ies] which the trial Rose, fundamentally fair.” regarded as Ari standards.” error sis harmless 577-78, 106 S.Ct. 478 U.S. Fulminante, 499 U.S. zona have found decisions Court Supreme (1991). Such 113 L.Ed.2d S.Ct. ‘very limited “only in a error structural conduct of the entire “[t]he affect errors ” at -, Neder, cases,’ 527 U.S. class deprive to end” and beginning trial from (quoting Johnson v. at 1833. with protections,” “basic the defendant of “ States, 461, 468, 117 S.Ct. 520 U.S. reliably ‘a criminal trial cannot which out (1997)), including L.Ed.2d for determi as a vehicle serve its function ” (1) deprivation the total involving: thosé innocence.’ Id. guilt nation of or (in unsatisfying explanation when one considers this in- superseding indictment on the Pearson, stance, Dominic that the indictment listed case had whose Dominic Belot). Courtney Ginyard and assigned Judge both Gracie previously Thus, before been pas may have judicial Although this faux employed a the clerk's office Martin. that, appellate circum- in the bat- assignment system under these uttered heat been tle, stances, govern- manipulated by suggests easily be it nevertheless could satisfactory by arranging the reason to offer prosecution: names had no ment style particular making change. order in defendants in indictment, Moreover, hearing prosecution evidentiary superseding at the district one of the proceedings, could dictate which Kansas the district court district court assigned attorneys judges would be the case. Mr. Pearson's refused to allow might inquiry pursue a line of un- Nevertheless, entirely it is we note that prosecution’s motive evidence covered that, easily mani- with such an possible faced filing superseding indictment and list- arranged government pulable system, the partic- ing first. Dominic.Pearson's name superseding indict- on the defendants' names ular, attorneys asked Mr. Pearson’s (i.e., a by using *17 method some neutral ment Attorney’s employee if the U.S. clerk's office judi- the on factors other than method based a number blank in had ever left the case office the assignment that would from cial result indictment, superseding the district court sus- names). example, the ordering For of the stating prosecution's objection, tained the arranged prosecution the defen- could have question was not to the current the relevant alphabetically or on the basis dants’ names attorneys By preventing case. charged culpability relative their the prac- introducing past of such evidence from crimes. deprived prosecution, the court the case, tices does assure us the record not In opportunity to discover evidence of an them As a method used. that such neutral question might relevant to the have been above, response Mr. Pearson’s to noted motion, sought prosecution to have the the of whether prosecution that it had the insisted Judge assigned to Belot. case in the second the number blank left case disposition Mr. Pearson's light our U.S. Dis- In superseding "so that the indictment challenge error process on harmless due make the Court Office would trict Clerk's below), (as we need grounds Court discussed the manner it or the 129, II, court to allow the case to the district doc. remand appropriate.” Rec. vol. deemed However, inquiry. However, pursue this line explanation as to to offered no him at 2. cases in which the we note that in future first why it listed Dominic Pearson's name issue, a more ex- argu- prosecutors' motives are superseding At oral indictment. the court’s of suggest- pansive view than the the appeal, prosecution district the ment in this admissibility and of evidence of relevance the defendants’ ed for the time first may practices be prosecutorial an alphabetically, had been ordered names warranted.
1261
trial,
Thus,
right
the
to counsel at
v.
see Gideon
the determination of whether an
335,
Wainwright,
344-45,
372 U.S.
83
error is
depends
S.Ct.
structural
only
792,
(2)
violated,
(1963);
right
“nature,
the
9
799
a
but also the
L.Ed.2d
biased
context,
Ohio,
significance
and
of the
presiding judge,
Tumey
see
v.
273
violation.”
Id. For
the
510, 523,
437,
example,
deprivation
total
U.S.
47
71
S.Ct.
L.Ed. 749
right
the
to counsel
(3)
constitutes structural
(1927);
systematic
exclusion of
error, while the denial of
right
to
members of the defendant’s own race from
counsel at preliminary
hearing
subject
grand jury,
Vasquez Hillery,
see
474
(con-
to harmless error review. See id.
254, 262-63,
617,
U.S.
106 S.Ct.
L.Ed.2d
88
trasting
v. Wainwright,
Gideon
372 U.S.
(4)
(1986);
598
right
the denial of the
335,
(1963)
792,
83 S.Ct.
1262 ren- consequently and or innocence” guilt of process undergone have who group fundamen- resulting punishment any have ders who appointment, and selection 577-78, Rose, at 478 U.S. tally law and defend unfair. uphold the sworn can be Constitution, conduct whose and review. appellate through scrutinized no have unearthed decision Finally, we honesty and of “a presumption There cir analogous error finding structural adjudicators,” serving as integrity those above, the Seventh As stated cumstances. 47, Larkin, 85, 421 U.S. v. Withrow argu rejected the expressly has Circuit and, (1975), as a 43 L.Ed.2d S.Ct. select allowing prosecutor a ment that that a federal result, presume cannot error. See structural constitutes judge will be by prosecutor selected
judge
II,
(characterizing
at 442
50 F.3d
Tyson
Additionally, we
agent or henchman.
his
involving a “denial
error as
structural
the case
may
prosecutor
a
want
note
due
constituents of
fundamental
the most
variety
a
judge for
particular
to a
assigned
courts, although
The Louisiana
process”).
reasons,
may
involve
which
some of
pros
that the
holding
following Simpson’s
at all: a
disadvantage to the defendant
any
due
judge
violates
selection
ecutor’s
random
simply make a
may
prosecutor
harm
applied
have nevertheless
process,
may
out the
she
seek
or he or
selection
En-
L.
analysis. See Jonathan
less error
experienced
the most
intelligent or
most
As
tin,
Four”: Judicial
Sign
“the
with a
most familiar
or the one
judge,
Law, Miss.
signment and the Rule of
area
law.
particular
(1998) (“Even
post-Simpson
L.J. 369
Moreover,
pro-
who
a
must
defendant
Louisiаna,
rejected
numer
the courts
by the
judge
a
selected
to trial before
ceed
grounds be
error
ous claims on harmless
If the
without
is not
remedies.
prosecutor
could not show
party
aggrieved
cause
biased,
may file
a defendant
appears
judge
prejudiced
assignment
how the defective
455;
28 U.S.C.
for recusal. See
motion
a
Huls,
case.”);
v.
So.2d
State
(10th
71 F.3d at
Alley,
v.
Nichols
(applying harm
(La.Ct.App.1996)
167-68
Cir.1995).
that re-
judge denies
If the
affirming conviction
analysis
error
and
less
challenge that
may
the defendant
quest,
system vio
though case
even
filing
petition
by
trial
a
prior to
decision
Romero, 552
process);
due
State
lated
prohibition
or
a writ of mandamus
(same).
(La.Ct.App.1989)
So.2d
Nichols,
doubt.” Id. (citing Chapman v. Califor- 2. Review the case assignment nia, 18, 24, 386 U.S. 87 S.Ct. of system pursuant to the (1967)). court’s L.Ed.2d 705 In variety a cir- supervisory powers cumstances, courts have applied this kind of harmless analysis error to violations of allegations Mr. process. due See Spain, Rushen v. 464 directs at government raise concerns 114, 118-19, U.S. 104 S.Ct. 78 L.Ed.2d beyond the requirements of the Due Pro (1983) (applying harmless analy- error cess In Clause. addition to the due pro process sis to due involving violation ex problems cess discussed, we have our re parte with jurors contacts and noting that view of prior decisions and scholarly “ ‘[cjases involving [such constitutional] de- commentary reveals four prob related privations subject are [therefore] lems with practice allowing prose general rule that remedies should tai- be cutors to particular steer cases to judges. lored to injury suffered ... and should First, practice arguably affords the not unnecessarily infringe on competing government an unfair advantage in litigat- ” (quoting interests’ States Mor- ing the case. a litigant “[I]f can choose rison, 361, 364, 449 U.S. which of group [a judges of] preside shall (1981) (alterations L.Ed.2d 564 in origi- trial, at the that party may be able to nal))). obtain a subtle advantage over the other
Here, upon a thorough
review of
selecting judge
likely
more
to resolve
record,
govern
conclude that the
questions
close
favor,
in that party’s
even
beyond
ment has
established
reasonable
if the trial is to
a jury
be
trial so that the
doubt
process
due
alleged
judge
viola
will not make the ultimate decision.”
arising
judicial
II,
tion
out of
Tyson
of an improper manipulation of the case obtaining means of a particular judge, a assignment system raise substantial prosecutor’s due may conduct violate ethical process However, concerns. even if we prohibiting rules the filing of actions “ accept Mr. Pearson’s contentions as ‘delay[,] ... harass or maliciously injure ” prosecution’s motivation in Note, reordering the another.’ Forum Shopping Recon- defendants’ sidered, names in- superseding 103 Harvard L.Rev. (1990) so
dictment the case would as- be (quoting Model Code of Professional Belot, Judge signed (1981)) (al- 7-102(A)(l) assumed due Responsibility, DR process arising violation out of that con- teration in original); generally see id.
1264 of- attorney’s the district allowing system prosecutorial
Third, system a allows cases judges particular for “the fice to select ap- lacks arguably judge-shopping should judge a ever required concluding “[t]hat that is impartiality of pearance that his thought and the the public of with the be burdened obtain the confidence at- Tyson v. the district system.” depended See on assignments in the accused State, (Ind.App.1993) is un- 300 his work 619 N.E.2d of court torney’s appraisal II, F.3d ”); Tyson 50 I also (“Tyson jurisprudence”). see American thinkable in practice [in the (concluding “[t]he concerns about of these serious light In allowing prose- the of courts] Indiana state steering, prosecutorial we of practice the jury and hence grand the to choose cutor war- allegations believe ...; certainly unsightly judge trial is the power supervisory of our rant the exercise impartiali- of appearance it does lack See 28 U.S.C. district court. over the by prosecu- a is ty”). judge If a selected may § that the order (providing procedure, a neutral than tor rather under the “may just as be such relief reasonably question might one then circumstances”). therefore We consider judge. Al- by the selected decisions made whether, claim process the due aside from might well be judge’s decisions though the Pearson, allegations of by Mr. his raised applicable facts and justified case as- manipulation an improper the real law, arises that rea- suspicion of his warrant reversal signment process lie in some may for the decisions sons conviction. understanding shared values or unspoken the partic- to select prosecutor that led the we analysis, this will conducting In handle the Prosecuto- judge ular case. adopted the standard apply tension “exposes the be- steering rial thus of the recu reviewing certain violations rule of law and the ideal of the tween there is statute, § 28 U.S.C. sal created and adminis- reality system of a actually that the no indication tribunal beings.” Shop- Forum by human tered case, in these recusal As biased. Reconsidered, supra, at ping “public of confi promotion cases view a Fourth, if undertaken on practice, pro judicial integrity of dence .the scale, threatens the inde- arguably broad Liljeberg v. policy. important an cess” as judge judiciary. If a re- pendence of Corp., 486 Acquisition U.S. Health Servs. through some assignments case ceives L.Ed.2d n. rather because of system, but neutral (1988). prosecutorial steering, As or she is more opinion that he prosecutors’ elimination, of even the possible, if ar- favorably disposed government’s is desirable. impropriety of appearance the same another guments than 860, 108 S.Ct. 2194. See id. district, might judge’s a caseload be then F.3d Champion, In Harris evaluations part prosecutors’ on based (10th Cir.1994), that a we concluded Under sce- judicial performance. from case have recused himself should nario; meeting prosecu- with the judges participation his pursuant 455 because have future cases as- approval might tors’ im- appearance in the created case judges thеm whom signed to whereas related to he was propriety and because receive might not fu- prosecutors dislike following then considered party. We rendering judges’ assignments. ture determining whether error factors in on assess- dependent advocates’ workloads (1) injustice “the risk was harmless: decisions, widespread toler- ment their (2) case”; “the particular parties steering might tempt prosecutorial ance of produce will denial of relief risk that the given in a decisions judges to their base (3) cases”; “the injustice other risk decisions on the effect those confidence in McDonald, public’s undermining assignments. See their future Harris, 15 F.3d at judicial process.” county the (criticizing a at 626 83 N.Y.S.2d
1265 (quoting Liljeberg, 1571-72 in U.S. instances in govern- which the 864, 2194). Because ap- ment files separate several but related proach addresses both the individual and cases and then obtains consolidated su- systemic interests at issue in this instance perseding indictment. strongly We urge alleged prosecutorial of steering, apply we the District of Kansas to adopt such a it to Mr. Pearson’s claim. system, that, and we note even under the current system, in defendants other cases Having already concluded that the may still reassignment seek or recusal if alleged selection Judge Belot did not the facts Thus, warrant such relief. this case, affect this result in proceed too, factor suggests that the error in the to the second injustice factor—the risk of assignment of the case was harmless. Here, other cases. significant the District of practice The operates Kansas’s third factor —the risk of undermin- prosecutors allow ing public’s to select judges in judicial confidence in the only a narrow set of circumstances: process presents when question. closer Un- — a superseding indictment is filed fortunately, after the cases applying this harm- series related cases have been less assigned error test do not set forth a clear to different judges. There is no indication standard for determining a particu- alleged that the manipulation of the case lar violation public’s undermines the confi- assignment system will recur a large judiciаl dence in the process. Liljeberg, II, number of cases. Tyson Supreme F.3d at Court decision from which Cf. (observing general a law of appli derived, this standard is indicates that the “provided cation that that the U.S. Attor determination must be on a case-by- made ney in each designate district shall case 862-87, basis. See 486 U.S. at preside federal in criminal view, S.Ct. 2210. In cases our several consider- ... would profound raise issues under the ations support a finding of harmlessness clause”). process due here.5 (an
Here, Ms. Stinson employee First, of the in contrast to other instances of Kansas) office in clerk’s the District of prosecutorial steering, Mr. Pearson has that, instances, testified most alleged dis- not government that the has violat- trict follows a random assignment system. particular ed ethical rules or criminal laws. view, In our such assignment system See August, States v. usually protect
will against egre- Cir.1984) the most 401-04 (affirming conviction gious forms of prosecutorial steering. for interfering with the due administration Moreover, specific practice at justice issue §§ in violation of 18 U.S.C. appears here remediable in be other and 1503 circumventing the assign- case In particular, cases. the record suggests system ment court); a bankruptcy State no why reason the District Jurek, of Kansas could v. App.3d 52 Ohio 556 N.E.2d not employ a (Ohio system Ct.App.1989) (affirming does not allow the prosecutor to select the conviction for bribing bond commissioners id.; cess,” (5) Error Dichotomy: Trial/Structural "[i]f error is attributable to Erroneous, Harmless, and Not 45 Kan. L. prosecution, Rev. the extent of the willfulness (1997), 1454-59 id.; (6) Professor David infringement,” L. of the degree "[t]he McCord criticizes fault,” the distinction between which the defendant is at id. at 1456- that, 57; structural and trial suggests (7) error. He the "[l]ikelihood that result would case, every courts should error,” consider fol- have been different absent the id. at lowing 1457; determining "[bjasic factors in (8) fairness,” whether id. Al- (1) importance error harmless: though "[t]he precedent our does allow us defendant,” right 1455; (2) to the dispose id. at dichoto- structural/harmless importance right public,” "[t]he my, our review of Mr. Pearson's conviction id.; (3) degree infringement ”[t]he pursuant [of the supervisory to our pоwers involves 1456; right,]” (4) id. at significance "[t]he range consideration of the broad of factors error-causing pro- actor to the criminal that Professor McCord describes. prosecution favor which some of particu- criminal cases to steer
in order *22 defendant. which favor of and some that the if we assume Even judges). lar as- judicial manipulated prosecution discussed further as importantly, Most the defen- reordering by system signment Pear Mr. opinion, of later sections in the indict- of style on the names dants’ impartial judge, an tried before “was son we are not suggests, ment, as Mr. Person and proof of standard correct under the prosecutori- egregious Neder, with such presented of counsel.” assistance with the his conviction reversal of that al conduct at -, “[A] at 1834. 527 U.S. public’s protect in order to necessary jury instruct selected, impartial fairly system. judicial in the and confidence the evidence of consider all ed to Moreover, alleged Id. argument....” a that acknowledge Second, must no committed selected ly improperly in inheres judge-shopping of type certain and was legal errors reversible v. McCuin system. See our federalist Jordan, United States fact. See trier of Co., F.2d Light Power & Texas Cir.1995) (5th (affirming F.3d us, Cir.1983). before In the case resentencing remanding for but conviction although rob that we note example, for failing to recuse in judge erred when the federal charges outside bery murder and between the distinguishing herself in state typically filed land are or Indian legal questions ruling role in judge’s Act, 18 of the Hobbs courts, provisions as a factfinder sen trial her role United § authorized U.S.C. in confidence Although public tencing). charges bring Attorney’s office States may be undermined system judicial our court. The in federal Mr. Pearson against manipu by prosecutor’s a degree some (rather in federal proceed decision system, we lation of the case try prosecutors allow the state than to undermined it also be that would believe court) have been could in state the case a defendant a trial of second by requiring See variety of reasons. a made for a selected by properly was сonvicted who However, if McCuin, at 1261. jury that considered and instructed it that chose admitted prosecution here guilty found the defendant evidence thought that because forum the federal trial doubt in a con a beyond reasonable were more in judges Kansas the federal no re who committed ducted than the state government to the favorable errors. versible form such'a that we do not judges, believe instance, that arewe confident In this undermine would judge-shopping of adopt assign- an can of Kansas the District integrity of the in the public’s confidence prevents prosecutors system ment that of reversal extent that proceedings of basis judges on the selecting from be warranted. would the conviction Cf. names su- the defendants’ order of Andersen, F.2d confidence Our indictments. perseding (10th Cir.1991) a defen (holding that system and our such adoption of are violated rights process dant’s due trial that of the fairness assessment decision to government’s federal by the us convince actually received Mr Pearson federal, rather than under prosecute supervisory that, of our the exercise statute, the harsher state, notwithstanding Pearson’s vacate Mr. we need not powers, for cer tolerance This limited penalties). conviction. (in contrast, judge-shopping of tain kinds com judicial system’s to our example, Summary judges) echoes biased plete intolerance of assumed, without we have summary, Tyson II Judge Posner’s observation Clause Due Process deciding, procedure “far system criminal our Mr. Pearson entitles the Fifth Amendment every step way, being balanced assigning his impartial method imbalances,” 50 F.3d at is an aggregate particular to a judge. We have fur: appeal, which challenges the same jury assumed, ther deciding, without system selection on the grounds.6 same prosecution here deprived Congress’s C. authority to enact 18
that right manipulating system so U.S.C. 1951 that his case assigned Judge Belot.
Viewing arguments light Mr. Pearson moved to dismiss of these assumptions, we conclude indictment, his claiming Congress these assumed errors are not structural lacked the constitutional authority to en *23 and are beyond harmless a reasonable § act 1951. district court denied his We also doubt. conclude that these errors motion. “We challenges review are pursuant harmless to our supervisory constitutionality of a statute de novo.” power Thus, over the district court. Bolton, United States v. 396, 68 F.3d 398 allegations (10th Pearson’s prosecution Cir.1995). We have previously con manipulated system § cluded that 1951 “regulates activities do not warrant a new trial. aggregate have a ef substantial
fect on interstate commerce.” Id. at 399. Therefore, § “represents permissi 1951 B.The Jury System Selection ble exercise of the authority granted to In the district court proceedings, Mr. Congress under the Commerce Clause.” that, the jury contended selection § Id. Because 1951 is within Congress’s system in the District Kansas violated Commerce Clause authority, Mr. Pear his right constitutional to a trial before a son’s constitutional challenge to his con fair cross-section the community by im victions fails.
properly excluding
appeal,
minorities. On
D. Double
argues
Jeopardy
he
Clause
that he has
prima
established a
facie violation of the fair-cross section re
Mr. Pearson
contends
his
quirement. According
Pearson,
to Mr.
convictions
§§
18
under
U.S.C.
1951 and
government should now be required to
924(c)(1) and (j)(l) violate the Double
show
a fair
“attaining
cross-section of
Jeopardy Clause
they
because
require
the community
incompatible
would be
with
proof of the same elements. We review
a significant government
Aplt’s
interest.”
Mr. Pearson’s Double Jeopardy Clause
Br. at 20. We
review
factual decisions
challenge de novo. See
States v.
United
underlying the
ruling
district court’s
for Cordoba,
1543,
(10th
71 F.3d
1545
Cir.
clear error and the legal determination of 1995). In light of our holdings in United
prima
whether a
facie violation
the fair
Overstreet,
1090,
v.
States
40 F.3d
1094-95
requirement
cross-section
has occurred de
(10th Cir.1994), and United
v.
States
Lan
Shinault,
See
novo.
United States v.
147
(10th
824,
Cir.1991),
826
we
zi
(10th
1266, 1271
Cir.1998).
F.3d
persuaded
are
argu
ment.
Shinault,
we
rejected
considered and
a Sixth
Jury
Amendment and
Selection
person
A
may
prosecuted
be
for
and Service Act challenge to
selection
more than one crime based on the same
system in
(1)
the Wichita-Hutchinson divisiоn conduct
if each crime requires proof of
of the District of Kansas. See
at 1270-
id.
fact that the
not,
other does
see Block
73. Rather than restate
States,
com- burger
299, 304,
Shinault’s
v.
284
United
U.S.
prehensive analysis,
simply
180,
we
(2)
rule that it
(1932),
52 S.Ct.
1268
735,
S.Ct. 2849
n.15,
113
n.
710
for the
punishment
cumulative
impose
dissenting
and
(White, J., concurring
statutory
under different
conduct
same
(Souter J.,
S.Ct.
States,
id.
part);
see Garrett
provisions,
part);
see
dissenting
concurring and
2407, 85
471 U.S.
Gonzales, 40 F.3d
also United
and
(1985).
In Overstreet
L.Ed.2d
Cir.1994).
rule of
theAs
735, 737-38
that,
through
plain
Lanzi,
held
legisla-
to examine
Hunter
and
Garrett
history
legislative
language
clearly
if that
intent
to see
tive intent
clearly expressed its
924(c)(1), Congress
§
punishments
multiple
imposing
favors
924(c)(l)’s
be cu
punishment
intent
in ac-
are
conduct,
cases
those
the same
for the un
punishment
with
mulative
principles
Blockberger’s
Overstreet,
cord
See
violent crime.
derlying
by Dix-
implicitly overruled
been
have not
convictions
(holding that
at 1094-95
F.3d
Jeop-
Double
reject Mr. Pearson’s
on. We
924(c)(i)
violate
did
§§
under
to his convictions
challenge
Lanzi,
ardy Clause
Clause);
Jeopardy
the Double
*24
924(c)(1)
(j).
and
§§ 1951 and
under
under
(holding
convictions
at 826
F.2d
(d)
2113(a)
924(c)(1)
did not
and
§§
po-
the
to
statements
Clause).
E.
Pearson’s
Al
Jeopardy
Double
violate
his arrest
lice
Mr. Pear
at issue
the statute
though
after
a different
case, §
concerns
son’s
moved the
unsuccessfully
Mr. Pearson
was at issue
(robbery) than
crime
violent
he
the statements
suppress
to
trial court
and Lanzi
(carjacking)
in Overstreet
On
his arrest.
FBI after
made
Congress’s clear
(armed
robbery),
bank
his con-
argues that
Pearson
appeal,
punishments to
multiple
to provide
intent
tree
poisonous
fruit of
fession was
violent crimes
commit
who
defendants
unlawful
arrest,
claims was
which he
his
is consis
a firearm
carrying
or
using
while
probable
not
FBI
did
because
language of
plain
evident
tently
warrant
arrest
and did
obtain
cause
924(c)(1):
§
magistrate,
neutral and detached
from á
any
to
[Whoever],
in relation
during and
had time
agents
the fact that
despite
trafficking
drug
or
of violence
crime
to do so.
firearm,
...
carries a
...
or
uses
crime
from denial
appeal
“On
punishment
shall,
to
in addition
evidence
view the
suppress,
to
motion
violence or
crime
such
provided
govern
to
favorable
light most
in a
crime,
be sentenced
trafficking
drug
find
accept the district court’s
ment and
to life im-
years
[five
imprisonment
clearly errone
fact unless
ings of-historical
the circum-
depending
prisonment,
Lewis,
F.3d
States
ous.” United
stances].
find
(10th Cir.1995).
will
A court
924(c)(l)(A)(I) (emphasis add-
18 U.S.C.
facts and
cause
arrest
probable
ed).
trustwor
reasonably
from a
circumstances
Pearson’s
by Mr.
persuaded
areWe
knowl
are within
officer’s
thy source
Dixon,
that United
argument
person
sufficiently warrant a
edge and
L.Ed.2d 556
U.S.
has
a crime
believe
caution to
reasonable
Hunter
(1993),
Garrett and
overruled
person
being
committed
been or
elements
Blockberger’s same
established
v. Mor
United States
be arrested. See
multiple
for whether
the sole test
test as
Cir.1991).
1561, 1568
F.2d
gan, 936
Jeopardy
violate
Double
punishments
cause to
probable
had
agents
consider
did not
simply
Dixon
Clause.
the trial
As
Pearson.
arrest Mr.
multiple
impose
intent
Congressional
Mr. Pear
FBI arrested
noted,
before
Dix-
few citations
punishments,
people
from four
son,
statements
it heard
cast those
Hunter do not
on Garrett and
knowledge
without
independently, and
Dixon,
U.S. at who
See
into doubt.
cases
statements,
of each others’’
implicated Mr.
amounted to probable cause to arrest Mr.
in planning
the robbery. Mr. Pearson in connection with the Mr. Good-
attempts
signifi-
belittle the
robbery,
cents
and Mr. Pearson’s state-
ments,
cance of these statements is not convincing
to the FBI should not have been
completely
and not
forthright:
suppressed on
grounds
they
were
the fruit of an
simply
[The
arrest made
[gave]
proba-
witnesses]
state-
without
ble cause.
ments informing the F.B.I.
during
preceding
robbery,
month
[Mr.]
Nor can Mr. Pearson’s statements
Pearson had tried to obtain the restau-
suppressed
be
because his arrest was war
rant’s deposits
force,
without
but with
rantless. His argument that the FBI was
the help
Meyer
of Deborah
and Gracie
required to obtain a magistrate-approved
Ginyard,
employees
both
of Mr. Good-
arrest warrant
agents
because the
had
Based,
cent’s....
upon this information
time to
ignores
do so
long-standing and
possible
of a
conspiracy to
mo-
embezzle
unequivocal Supreme Court precedent:
nies from Mr.
restaurant
Goodcent’s
Law enforcement officers may find it
Pearson],
FBI
[the
arrested Mr.
wise to seek arrest warrants where
(citations
Aplt’s
Opening Br.
25-26
practicable
so,
to do
and their judgments
omitted).
about probable
may
cause
be more
The witnesses’ statements did not “sim-
readily accepted where backed by a war
ply” concern a plan “to obtain” the restau-
rant
issued
a magistrate. But we
*25
rant’s deposits “without force” or “to em-
decline to
judicial
transform this
prefer
bezzle
According
monies.”
Special
to
ence into a constitutional rule when the
Agent
Jablonski,
Daniel
Wandra Ginyard
judgment of the Nation and Congress
(Gracie
sister)
Ginyard’s
told
FBI
has for so
been
long
to authorize war-
she had
Mr.
heard
Pearson at
party
public
rantless
probable
arrests on
cause
“discuss[ing] robbing the Mr. Goodcents
rather than to encumber criminal prose
V,
restaurant.” Rec. vol.
at 5. Monique
cutions with endless litigation with re
Gasper
her
corroborated
statements when
spect to the
exigent
existence of
circum
shé informed
agents
party
at a
stances,
practicable
whether
was
to
“joined
Mr. Pearson
leading
or was
get warrant,
whether the suspect was
discussions
...
about
how easy it would be
flee,
about to
and the like.
to rob Mr. Goodcents.” Id. at 8. Gracie
Watson,
United States v.
411,
423 U.S.
Ginyard further corroborated Wanda’s and
423-24,
(1976)
Id. Additionally, at 9. Ginyard Gracie told were not required to obtain an arrest war- agents agreed that she and then de- rant before taking Pearson into custo- clined to accompany Meyer Ms. when Mr. even dy, though they had time to do so. Pearson was going to take deposits. The district court did not err in refusing to Finally, Meyer Ms. told the FBI that Mr. suppress Mr. Pearson’s comments Pearson had only asked her to allow FBI. him to take Mr. Goodcents deposits from her, with and Ginyard’s without Gracie F. Sufficiency the Evidence and of help, but also plans discussed with her to Jury 1111(a) Instructions § for Goodcents, rob Mr. including telling her Felony Murder that he was going to rob the store on the night of the sixteenth seventeenth. In order convict Mr. to Pearson These four independent statements § a violation 924(j)(l), had to jury 924(j)(l) § convic- Pearson’s to Mr. lenges violation of a that, “in the course
find tion. Montgomery Ms. 924](c),” murdered he [§ 1111(a). § See 18 18 U.S.C.
in violation in- lesser request G. Mr. for contends, Mr. Pearson 924(j)(l). § U.S.C. instructions cluded offense the evidence arguments, related the district asked him of convict to insufficient degree jury second to instruct 924(j)(l) convic- § 1111(a), causing his § includ as lesser manslaughter murder and jury was that the to be invalid tion The district felony murder. to ed offenses to the elements as erroneously instructed novo re de engage in We court refused. 1111(a) of Mr. Pear- Both § violation. of a an question of whether legal of the view on his mistaken are based objections son’s sought is instruction which an offense 1111(a) gov- requires contention included of a lesser as actually qualifies malice establish independently United charged. offense ernment fense (10th Duran, killing, rather commit the aforethought to States denied, 523 U.S. Cir.1997), cert. killing oc- that the prove simply than (1998). How L.Ed.2d 648 S.Ct. underlying felo- of an in the curred course court’s decision ever, the district we review ny. enough evidence there as whether 1111(a) to in murder defines instruction included offense Section lesser justify a Id. prove To “malice of discretion. for an felony murder. abuse clude cases, the murder felony aforethought” entitled Mr. Pearson show commission only need prosecution included of lesser on these instruction Montoya v. felony. See specified (1) request; proper he made if: fenses Comm’n, F.2d Parole (2) included offenses lesser included Cir.1990). circuit This has of the elements not all but some (3) differen the elements charged; government offense that “once held recently included offenses the lesser tiating *26 intended that [defendant has shown (4) a dispute; are in charged crime the killing a oc robbery and commit rationally defendant convict the could jury robbery, no course of in the curred acquit him offenses and one the lesser of of is neces state of mind proof of additional States offense. United greater of section under a conviction sary support [to Cir.1997) (10th Moore, F.3d 1111(a) Nguyen, ].” States, 719 Fitzgerald v. United (citing Cir.1998). (10th 1219, 1225 F.3d Cir.1983)). Applying 1069, 1071 F.2d standard, the district we conclude Here, presented the evidence re Mr. Pearson’s denied properly favorable to light most in the jury, viewed instruc offense lesser included quested Mr. Pear- indicates government, of half fail the first because both tions Moreover, the robbery. a committed son ra not jury a could requirement: fourth kill- “[a] instructed that properly jury was second de of either tionally convict him aforethought when with malice ing is done manslaughter. or gree murder the intent deliberately and with it is done of 18 U.S.C. paragraph first The if it results from or person, to kill another 1111(a) degree first murder. § defines robbery.” Rec. a vol. of commission second describes paragraph The second No. 29. Accord- II, Instruction doc. “[a]ny murder.” other murder degree as that the evidence ingly, conclude we “murder” with its defi- word Replacing that Mr. jury to find sufficient of sentence nition, in the first found felony murder under committed 1111(a), statu- the reconstituted results in 1111(a) jury properly murder degree § and that second tory expression of aof human killing this offense. of other unlawful “any on the elements as instructed aforethought.” malice being with chal- reject these related We therefore we,must However, again look to § convicted. Title 18 U.S.C. 1112 defines to find the common law the definition of manslaughter follows: as ' aforethought” “malice as a of art term (a) Manslaughter is the killing unlawful satisfy degree used to second murder. of a being human without malice. It is aforethought of Malice as an element sec of two kinds: is, murder, degree felony as in ond murder Voluntary'—Uрon a sudden quarrel or type of or implied a constructive malice. heat of passion. Scott, Wayne R. & Austin W. See L.aFave Involuntary—In the Law, of an Jr., (2d ed.1986). commission Criminal at 606-07 act amounting unlawful a felony, Although of specified commission felo or in the commission in an ny unlawful supplies constructive malice neces manner, or without due and cir- sary caution satisfy aforethought the malice ele 1111(a) cumspection, a murder, § of lawful act felony might ment of which second produce degree death. aforethought malice murder’s ele (1) by: ment is satisfied intent-to-MU with 1112(a). § 18 U.S.C. ingredients out the added premeditation of The discharge gun accidental of deliberation; (2) intent to do serious (1) robbery commission of the could (3) (4) bodily injury; depraved-heart; or voluntary manslaughter not constitute be- felony of a commission crime cause there quarrel was no sudden or heat does not fall under the degree first murder (2) passion; could not constitute 1111(a). paragraph of See id. involuntary manslaughter robbery because case, Under the facts of this Thus, an unlawful felony. act is a jury could not rationally convict Pear jury rationally could not convict Mr. Pear- degree son second murder because the son of either type manslaughter. robbery killing and accidental do not satis Because'we conclude that both Mr. fy any of types implied malice afore requested Pearson’s lesser included of- thought required to prove that crime. Mr. fail fense fourth re- instructions Moore’s testified, Martin and neither Mr. Pearson quirement, need not consider whether government disputed, nor the that he acci they satisfy prongs. Moore’s other dentally fired the shot that killed Ms. district court refusing did err in Thus, Montgomery. only reason the jury request- submit government was able to convict Mr. Pear lesser ed included offense instructions. degree felony son first murder was be *27 cause Mr. Pearson’s commission of the H. Mr. Evidence Pearson’s charac-
robbery constructively of supplied malice ter aforethought required to satisfy defini 1111(a). tion of in “murder” While the Mr. argues Pearson that when robbery underlying is constructive malice Meyer Ms. that supported testified he him aforеthought felony degree for first mur as a and a “pimp,” self “hustler” she of der, robbery neither the nor accidental character, jury fered evidence his which killing the type constitutes of constructive trial instruct required court was to malice aforethought required prove to sec jury ignore. Pearson, to According to Mr. degree ond murder. Mr. Because Pear jury the court instructed the to dis any criminal do satisfy son’s acts of the regard Meyer’s Ms. statement that he was types degree of constructive mur second “pimp” a a give but refused similar aforethought, der malice Mr. Pearson can “hustler,” instruction regarding word guilty not be of that crime. 404(b). violated Fed.R.Evid. We review Mr. requested manslaughter evidentiary rulings Pearson’s the trial court’s instruction fails to also describe offense See abuse discretion. Cartier Jack son, (10th Cir.1995). which he could have been 59 rationally F.3d obstructed, or delayed, Mey- ally potentially or takes Ms. argument Pearson’s Mr. vol. degree.” Rec. way or any in Meyer’s affected Ms. context. testimony out of er’s district The II, Instruction to the Assis- doc. in response were statements on the expound if Mr. then continued Attorney’s query United States
tant February January or commerce element: job in had a interstate Pearson gov- question, asking this By of 1997. “obstructs, delays, affects or The term response a trying to elicit was ernment any action means commerce” interstate that Mr. Pearson jury would show that any degree, or to which, any manner in- steady had no unemployed was alters the with, changes, or interferes Mr. to rob a come, him motive giving flow or transportation or movement she that Meyer answered Ms. Goodcents. other merchandise, money, or goods, money by work- earned Mr. Pearson knew commerce. interstate property Accordingly, evidence ing as “hustler.” any effect you If there decide income did source of Pearson’s of Mr. commerce, then at all on interstate evidence, and, there- character constitute this element. satisfy enough to dis- not abuse its fore, did trial court find that you If can be minimal. effect admitting it over cretion the use prevented money robbery of 404(b) objection. Rule whiсh articles purchase of those funds the other Moreover, of all of light commerce, you through interstate travel him, error caused any against evidence be a to consider are entitled harm- testimony is admission of this on interstate commerce. effect sufficient less. intended have need not The defendant on interstate an effect anticipated or instructions jury I. Section is a effect may find the You commerce. to, and objected If of his actions. consequence natural with, jury in issue takes appeal intended the defendant you find that with the interference regarding structions is, did the actions—that he take certain § 1951. element commerce interstate in order indictment in the acts charged Instruction argues he Specifically, those you find property to obtain —and interference § 1951’s Number took caused, would or have either actions away element commerce interstate cause, on interstate an effect probably Supreme jury in contravention re- may commerce, you find then Gau States v. decision Court’s been this element have quirements din, 515 U.S. satisfied. already (1995). As we L.Ed.2d 22-24. at Instructions Id. timely chal noted, review de novo “[w]e Shinault, F.3d In United to determine jury instruction lenge (10th Cir.1998), we held 1266, 1277 as a instructions whether, considering the merely clarified jury instructions similar whole, [Rever misled.... jury com- subject of interstate unfamiliar *28 sub unless have appropriate sal is not be- Gaudin and not contravene merce did fairly jury was that doubt stantial effectively did the instructions cause (in Winchell, F.3d at guided.” jury’s consider- from the the issue remove omit marks and citations quotation ternal Pear- Mr. thus forecloses ation. Shinault ted). jury instruc- challenge son’s jurors instructed trial The tions. the United § 1951 violation to prove beyond reasonable show must trial a new J. Motion for the defendant’s that, a result of “[a]s doubt Martin, Mr. court sentenced commerce, The district item or an actions, interstate during Pearson, and Eric Pearson commerce, Dominic actu- moving interstate sentencing the same hearing. Mr. Martin sir, you, advise you’re that if saying that sentenced, was the first to be and you when it, now didn’t do you’re going to face the court asked him if he was satisfied a perjury charge you’ve because testi- way with the his attorney-was represent- fied under oath twice you did it. do him, ing Mr. responded, Martin “No.” Ree. I’m also satisfied that [your attorney] XIII, vol. at 15. The following exchange has done everything that he possi- could then occurred: bly do to represent you.
The Court: You’re not satisfied? No, Defendant Martin: I’m not. Defendant Martin: He told Ime had The Why Court: no you are other not satis- choice but to go along with fied? what the Government wanted or do life in prison. So what any would man do?
Defendant Martin: Because the Gov- He said I had no just chance because of ernment my and government appointed way community took this case. lawyer, they lied me into pleading guilty. They I said had no other choice The Well, but to Court: he’s probably right go along with they what if said, wanted or that’s what do he but I’m not assum- in prison. life ing that that is what he said. I’ll tell you what I’m do, going to Well, The Court: I suppose Martin. you can I’m going your to defer take that up sentencing. I the appropriate time. you’re think that lying to me.... I Defendant. Martin: The appropriate you think need a little more time to time. There’s I nothing can do.... I ’ this, think about I think you also didn’t have nothing to do with this. need a little more time to talk [your The Court: I see.... attorney] because the you accusations are making in my are opinion frivolous [The Court:] The Court is satisfied and malicious. point at this that Mr. Martin pled guilty knowingly and intentionally. The Court [The Court: I] have a feeling that is more than satisfied that he committed the fact that [Mr. has apparent- Martin] this offense. He testified under oath ly been incarcerated with [Eric and Do- twice he did it. may minic Pearson] something just Defendant Martin: I went along do with this outburst made [he’s] with the plot. Government’s That’s here today. event, any I think [he] Iwhat did. time, some need[s] further time to think about this. [Defendant They Martin:] told me to Id. at 15-19. do this
After deferring Mr. sentencing, Martin’s the district court sentenced Dominic Pear- [Defendant Martin:] I no had other son began Eric Pearson’s sentencing. choice. Eric attorney Pearson’s then moved new trial based on Mr. Martin’s recanta- [Defendant I Martin:] didn’t do this. tion. Mr. attorney noted that
Mr. Martin the only person who I’m Court: satisfied that placеd scene you pled guilty you you knew what crime were *29 asserted re- Martin’s doing. There’s no one in this courtroom very cantation was significant new evi- that guilty can plead dence, before me and not requiring a new trial under Fed. know they’re' what doing after all the R.Crim.P. 33. The district court disa- questions that I ask. And ... I greed: would
1274 Fed.R.Crim.P. See evidence. ered Martin’s [Mr. You think The Court: new trial for a not view motions do me a Courts Give is evidence?
recantation] motions such grant only and favor day. Don’t the with late in It’s break.... v. States United caution. great no See have you know with that arguments make (10th Cir. 1518 Chatman, F.2d 994 in law. in fact or basis trial win a new 1993). may A defendant if only evidence newly discovered based probably is Your client Court:] [The (1) was dis evidence that: the he shows re- Martin’s of [Mr. architect chief the (2) trial; to dis the failure after covered what- no evidence is There cantation]. by the not caused evidence was the cover evidence, I and record, no in soever (3) the new diligence; lack defendant’s Courtney Martin that, that underline (4) the merely impeaching; is evidence least. testimony changed his has principal to the is material evidence new (5) involved; new evi and issues Courtney Martin ... Court:] [The acquittal an produce probably would dence oath, under here not a statement made Stevens, v. States a new trial. United dignity with the keep ... let’s please so Cir.1992). (10th 565, 570 F.2d 978 frivo- not raise and proceedings of these ais here, new evidence “Where, as arguments. lous trial testimony, ‘the of trial recantation Well, Your attorney]: [Mr. Pearson’s chal that satisfied must first be court want differ, I may Honor, I to beg ” actually false.’ testimony was lenged an additional later on with this pursue to Unit Chatman, (quoting 1518 F.2d at 994 re- that motion hearing and written Bradshaw, F.2d States v. ed prefer. would if Court gard Cir.1986)). the denial (10th review “We Den- it in pursue can You Court: The abuse trial for an new motion for further anything have you Do ver. Id. discretion.” point to this frivolous respect with say make? trying to you’re that Mr. Pearson agree with We Hon- Your attorney]: [Mr. Pearson’s testimony, recanted presented frivolous.... believe it’s or, I do not an ordinarily must conduct “the trial court mali- to being It’s close Court: both hearing evaluate evidentiary I want on. let’s move Now cious. recanta impact of a and the credibility going then I’m your objections hear F.2d Page, States United tion.” matter. to conclude II) Cir.1987) (citing (10th (Page 1476, 1478 X, at 2-3. Id. vol. Ramsey, and the district- attorney Mr. Pearson’s I)). Cir.1984) We or (Ramsey objections then discussed court evidentiary hearing so an dinarily require During report. investigation presentence may court determine the trial that apologized discussion, its place credibility the recantation trial: for a new the motion his reaction reviewing give record findings off about Court- your sorry I bit head “I’m evaluating its conclu basis for “some court Martin, although I believe don’t ney I, How F.2d at 605. Ramsey sion.” ultimately going Courtney Martin instances, ever, trial in some court, don’t and I in this mind his change credibility of the to assess may be able if he [recanted] he would believe a hear holding such without recantation Id. your client.” separated had been (con Chatman, F.2d at ing. See at 17. evidentiary cluding “even absent us to adequate for record is hearing, the within may move A defendant evaluated the district discern for a new judgment final years after three government’s credibility of [one newly discov ground on the trial based *30 recantation”). chief witness’s] When the Martin designed to ensure that he was judge record allows the to make such cred- pleading guilty because he had committed ibility findings, the deni- affirmed crime, any “not for other reason.” al of a motion new trial although no V, (Trans, Ree. vol. at 11 of portion of evidentiary hearing has been held. See id. guilty plea proceedings, 20, 1997). May Thus, when the trial judge responded to case, In this we believe that Mr. Martin’s statement at sentencing by the district court was able to assess the him, telling “I think you’re lying to credibility of Mr. Martin’s remarks sen me,” judge’s credibility determination tencing holding without an evidentiary was based on substantial evidence hearing. court, Like the district we find it record. significant Mr. Martin’s recantation was not made under oath. Sworn trial Accordingly, we conclude dis- testimony generally is refuted un trict court did not abuse its discretion repudiation sworn of that testimony. denying Mr. Pearson’s motion for a new Cf. Smith, United States v. 997 F.2d 682 trial based newly discovered evidence. (10th Cir.1993) (finding no abuse of discre tion trial court denied motion for K District court’s use U.S.S.G. trial new based on finding its that wit § 2A1.1 ness’s trial testimony probative was more Mr. Pearson contends that the district than subsequent her sworn affidavits made court erred in sentencing him to life im- private to a investigator). Moreover, “re prisonment 2A1.1, § under U.S.S.G. which testimony canted properly viewed with applies when a defendant is convicted of I, suspicion,” Ramsey 726 F.2d at degree first murder. Although Mr. Pear- Mr. Pearson has identified no case in our argument son’s clear, is not entirely he circuit in which a new trial has grant been seems to dispute both the district court’s ed on the basis of an unsworn recantation. application §of 2A1.1 and the district Additionally, although the trial judge’s rul court’s depart refusal to downward based ing prevented Mr. Pearson from further on Mr. reading § Appli- 2A1.5 developing the record through eviden cation Note 1. tiary hearing, is no why there reason We will first address Mr. Pearson’s ar- Pearson could not have a sworn submitted gument that the district court incorrectly affidavit from Mr. Martin to supplement applied § to his crime. 2A1..1 “We review However, the record. Mr. Pearson does the district interpretation court’s ap- point to, us and we cannot find plication of the guideline de novo. After record, any sworn statement from Mr. determining guideline’s scope and mean- Martin his affirming sentencing hearing ing, we review the district court’s factual recantation. determinations for clear error.” United We also note that had trial Smith, States v. several opportunities to assess the credibil- (citations Cir.1997) omitted). of Mr. ity Martin’s account of his involve- ment the crime. In particular, Mr. Pearson maintains he judge accepted Mr. Martin’s guilty plea should not be § sentenced under 2A1.1 and observed testifying him under oath at because Ms. Montgomery was killed acci both Dominic and Eric and, Pearson’s trials. dentally view, in his without “malice occasions, On all three heard aforethought.” argument This is under Mr. Martin confess detail to his and the mined controlling authority addressing Pearsons’ in robbery involvement the element of “malice aforethought” un restaurant and killing 1111(a). Mont- Ms. der U.S.C. As we have not gomery. Additionally, at the plea hearing, part ined II.F oрinion, of this the commis judge engaged in colloquy robbery sion constitutes the “malice
1276
may ask
455(a),
party
§
a
1111(a)
under
sponte
felo-
§
for
required
aforethought”
to
pursuant
himself
to recuse
judge
cor-
Thus,
court
the district
ny murder.
at
See,
U.S.
Liteky, 510
e.g.,
Pearson’s
section.
Mr.
that
§ 2A1.1 to
rectly applied
Branson,
1147; Green v.
1111(a)
felony 542-43,
S.Ct.
114
degree
§
first
for
conviction
Cir.1997).
(10th
1296, 1305
F.3d
108
murder.
ar
second
to Mr. Pearson’s
As
However,
government
as
in
court erred
the district
gument —that
Pear
reject Mr.
to
asking
in
us
out
points
departure
a downward
him
granting
455(a)
bias, §
judicial
allegation of
son’s
1—we
Note
2A1.1, Application
§
under
filed.”
timely
“must be
recusal
for
motions
to review
jurisdiction
that
lack
we
conclude
Kansas, 848 F.2d
University
v.
Willner
exercise
rule, we “cannot
a general
it. As
Cir.1988).
this
(10th
Although
1023, 1028
court’s
sentencing
a
review
to
jurisdiction
to define
attempted
has
circuit
sentencing
depart
from
to
refusal
455(a)
§
motion
at which
moment
precise
circum
very rare
in the
except
guidelines
precedent
untimely, our
becomes
recuse
to
states
the district court
stance
once it
promptly
act
to
party
requires
authority
depart
any
not have
does
in its
it relies
on which
the facts
knows
the en
range for
sentencing guideline
Willner,
1028-29.
F.2d at
848
See
motion.
proffered
class of circumstances
tire
judicial
conserves
filed motion
promptly
A
Castillo,
States
United
the defendant.”
that it
the concern
alleviates
resources
Cir.1998).
(10th
874, 887
or
at
rulings
by adverse
is motivated
sentencing
Pearson’s
Mr.
transcript of
judicial process.
manipulate
tempt to
court
district
not indicate
does
id.
See
have
it did not
erroneously thought
Rath
authority
depart downward.
any
require
timeliness
these
Applying
stated, correctly,
court
er,
district
Pear
case,
Mr.
we note that
to this
ments
killing
nature
the accidental
“that
for recusal
argument
son,
his
who bases
felony
cancel[]
somehow
not]
[does
sentencing,
judge’s remarks
on the
part
X, at 29.
vol.
rule.” Rec.
murder
during
motion
amade
recusal
have
could
How
sentencing proceedings.
after the
or
Bias
L.
court ex
ever,
ire
district
given
he is
argues that
Pearson
Finally, Mr.
mo
Pearson’s
response
pressed
district
trial because
to a new
entitled
that,
trial,
do not believe
we
for a new
tion
him.
against
was biased
judge
court
issue
the recusal
properly raise
order to
contention, Mr. Pearson
of this
support
required
Mr. Pearson
appeal,
made
judge
points
remarks
just
the district
as
motion
file a recusal
for random
the motions
he denied
sen
pronounce
preparing
court
trial, his discus-
a new
reassignment and
Therefore,
consider Mr.
will
tence.
character,
his
Pearson’s
of Mr.
sion
recusal in
first
request for
sentencing.
statements
Kimball,
73
instance. See
Cir.1995)
(using plain
269, 273
F.3d
bias
may
disqualified
be
judge
A
if a
court
district
to decide
analysis
§§ 144 or 455.
error
U.S.C.
either 28
under
§ 455 when
under
which,
455(a),
recused
have
§
should
under
proceeds
§
timely
to file
failed
counsel
defense
obligation
places
§
“the
unlike
v. Bar
trial); United States
during
motion
prejudice]
or
identify the existence
[bias
(D.C.Cir.
n.
F.2d
requir-
ry, 938
himself,
than
judge
rather
upon the
1991)
authority on the
(noting split
party
to a
only
response
ing recusal
waives
a defendant
States,
whether
question
Liteky v. United
affidavit.”
that the
should
argument
1147, 127 L.Ed.2d
S.Ct.
U.S.
with the
file a motion
455(b)(1).
failing to
recused
(1994);
28 U.S.C.
see
to consider
proceeding
but
sua
district
fails to remove himself
aWhen
the merits of a recusal
raised
issue
for the
required
the attorney filing the motion
*32
first
appeal);
C.I.R.,
time on
Noli v.
860 to testify about
alleged
bias under
(9th
Cir.1988)
F.2d
(stating
oath).
Although the -court ultimately
“[fjailure to move for recusal at the trial
found Mr. Pearson’s motions without mer
... does not preclude
level
raising on ap
it, “adverse rulings cannot- in themselves
peal the issue of
§
recusal under
455” but
form
appropriate
grounds for disquali
adding that
party
to file a
failing
recu-
Green,
fication.”
(inter
Pearson deep-seated display a did proceedings, witness made allegedly he gestures judgment make fair would antagonism The trial at trial. testimony as as well to vacate us did, require impossible Pearson that Mr. testimony revealed resentencing. trial or new direct a prosti- providing fact, money make description unkind judge’s tutes. III. CONCLUSION during sen- consorts and his in the by evidence tencing supported above, we *33 forth reasons set the For about Mr. testimony record, including and convictions Mr. Pearson’s AFFIRM to Miller induce Ms. to efforts Pearson’s sentences. lie at trial. concurring: BRISCOE, Judge, Circuit if not its prerogative,
It the court’s is character the defendant’s assess duty, to sepa but write result the I concur the defen- sentencing, after at and crimes with disagreement my express rately to Mlsna decided. has been guilt dant’s Cf. issues. handling of three majority’s the Inc., Communications, 91 F.3d v. Unitel unnecessarily majority First, the I believe Cir.1996) claim of (rejecting 876, 883 assign random life into Pearson’s breathes strong made district court the bias when prosecu assuming the by arguments ment about credibility assessments negative the case as knowingly manipulated tion com- often “judges must party because appeal, on The record system. signment cannot, of credibility, and ment on the district view, clearly supports my impartiality a lack of course, presume Attorney’s the findings U.S. “that court’s unfavora- assessment because merely office with clerk’s up to the left Office not re- ble”). did comments judge’s assign number respect [case] to what Pearson or prejudged Mr. he had veal that “no indictment,” there the retributively. act a decision made part Cf. on the of judge shopping of evidence” (3rd 97, 100, 102 Antar, 71 F.3d re In 15-16; XI, ROA, Vol. prosecution. the Cir.1995) judge should (concluding that Longoria, States United generally see announced when he himsеlf have recused (10th Cir.) (holding 1179, 1182 this case “object in his sentencing that findings are factual court’s that district — get back always been day one has from denied, error), cert. for clear reviewed from it taken that which was public U.S. -, 145 L.Ed.2d of activities fraudulent of the as a result evi (1999). Although circumstantial others”). Instead, the this defendant informa- filing separate of (e.g., the dence sentencing were the remarks at court’s joint filing of a subsequent tions and ju- angry of a frustrated and expressions as Dominic Pearson listing indictment manner, awith imperfect rist, in an coping, defendant) perhaps suffi first named tragic crime. of a convicted defendant concerns about raise initial cient to assignment case of the randomness Su- Thus, comports this case conducted, hearing evidentiary justify recognition continuing preme Court’s support an itself enough by it was that comments made Liteky or con improper motive finding of actual during the learned on information based prosecution. Nor part duct on normally do not proceedings course single witness testimony was the grounds bias. recusal necessitate support his by Pearson presented judge must course, angry, a even when Of circumstan to bolster motion sufficient the line not to cross and take care be fair contrary, the testi To tial evidence. injudi- criticism righteous separating improper was no mony suggested there that the are satisfied We cious damnation. prosecution. part here, motive on and that crossed not been line has motion was Thus, Pearson's I conclude based on infor- judge’s rulings, the district properly denied the district court on grounds there was no sup evidence to UNITED America, STATES
port allegations Pearson’s of prosecutorial Plaintiff-Appellee, misconduct. my Consistent with views regarding Eric Allen COOPER Urbina, & Albert assignment arguments, random Defendants-Appellants. I disagree also with the majority’s decision to exercise its powers supervisory and re- No. 98-2123. view the district court’s case system. view, my Court of Appeals, record simply does not demonstrate a Eleventh Circuit. prob- lem with the district court’s case assign- Feb. system ment Further, that needs repair. wary
I am of' a single panel, opposed as *34 court,
the entire making suggestions to the
district court guise under the of the court’s
supervisory powers. I am particularly
wary taking action on the basis of presented record in this case. Any
review of the district court’s assign- case system
ment should be only undertaken if
a problem is clearly established and then after a
only careful examination of all rele- factors,
vant including judicial available
personnel for assignment.
Finally, I take issue with a portion small
of majority’s analysis judi- of Pearson’s
cial bias claim. Although majority ac-
knowledges that Pearson failed to file a
motion for court, recusal with the district majority appropriate concludes is
consider request for recusal
the first instance because the district court
expressed “ire ... in response to ...
Pearson’s motion Majori- for new trial.”
ty op. at my view, 1276. In the district alleged
court’s expression of ire is irrele-
vant and does any not in way alleviate
Pearson’s failure to raise the issue
district court.' precedent, Under circuit
party who fails to timely file a motion for court,
recusal with the district for whatev- reason,
er only entitled to have his
assertions of bias reviewed plain error.
See Kimball, States v. (10th Cir.1995).