Judges - Motion to Recuse; Removal on Remand

Liteky v. United States, 510 U.S. 540 (1994)

28 U.S.C. §455(a) requires recusal of a judge in any proceeding in which his impartiality may be questioned. The Supreme Court holds that matters arising out of the course of judicial proceedings – either in this case, or in a prior case – are not a proper basis for recusal.

United States v. Smith, 775 F.3d 879 (7th Cir. 2015)

In this appeal of a supervised revocation proceeding, a remand to a new judge was necessary because the judge who presided over the revocation hearing had been the AUSA who initially participated in the prosecution of the defendant. This violation of the Judicial Code was not waivable.

United States v. Hernandez-Meza, 720 F.3d 760 (9th Cir. 2013)

The trial court erred in this case in permitting the government to re-open the evidence and introduce evidence that was no previously produced to the defense as required by Rule 16. The government protested that the defendant’s defense was unexpected (it was revealed when the defendant submitted his proposed requests to charge) and that the additional evidence was needed to refute the newly-revealed theory of defense. The Ninth Circuit held that allowing the government to re-open the evidence was reversible error. The fact that the new defense was factually not realistic is not relevant, the defense had the right to raise this defense and to point out the gaps in the government’s proof. Judge Kozinski wrote,

“[A] criminal defendant, unlike the government, needn't have a good faith belief in the factual validity of a defense. So long as the defendant doesn't perjure himself or present evidence he knows to be false—and Hernandez–Meza presented no evidence at all—he's entitled to exploit weaknesses in the prosecution's case, even though he may believe himself to be guilty. What matters in satisfying the government's burden of proof in a criminal case is not objective reality nor defendant's personal belief, but the evidence the government presents in court. No competent prosecutor would be surprised, based on what he thinks defendant should know, to find defense counsel poking holes in the government's case. The argument is without merit, yet the government made it before the district court, and again on appeal.

The government’s failure to produce the evidence in its Rule 16 production was not justified. The Rule requires the production of all documents “material to the preparation of the defense.” Information is material even if it simply causes a defendant to completely abandon a planned defense and take an entirely different path. If the defendant in this case knew that government had this evidence, the defendant may not have relied on this defense. Moreover, a defendant need not spell out his theory of the case in order to obtain discovery. Nor is the government entitled to know in advance specifically what the defense is going to be. Discovery must still be provided pursuant to Rule 16(a)(1)(E)(i). The Ninth Circuit held that the trial judge’s summary rejection of the defendant’s Rule 16 argument, as well as his unsupported decision to allow the government to re-open the evidence, required that the case be remanded and that a new judge preside over the case.

In re Bulger, 710 F.3d 42 (1st Cir. 2013)

The judge to whom Whitey Bulger’s case was assigned following his capture in 2011 held various managerial posts in the U.S. Attorney’s Office in Boston that was involved in the investigation of Bulger and his associates decades earlier. The First Circuit (Justice Souter, sitting by designation), granted a writ of mandamus, requiring the trial judge to recuse himself from presiding over the case.

United States v. Dreyer, 693 F.3d 803 (9th Cir. 2012)

The defendant, a psychiatrist, developed dementia at the age of 63 and entered into a drug conspiracy. He entered a guilty plea. The Ninth Circuit held that at the sentencing hearing, the judge should have sua sponte ordered a competency hearing. At the sentencing hearing, the defense attorney declined to have the defendant speak, because he didn’t know what the defendant would say and his dementia might lead him to deny responsibility and he might say something inappropriate. This should have prompted the trial judge to order a competency examination. The appellate court also ordered that the case be reassigned to a different judge on remand because of comments made by the trial judge that reflected her premature judgment about the defendant’s possible incompetence and his manipulative behavior. See also 705 F.3d 951 (9th Cir. 2013) (opinion regarding denial of rehearing en banc).

Hurles v. Ryan, 752 F.3d 768 (9th Cir. 2011)

As a matter of due process, a judge who fails the “appearance of impartiality” test may not sit as the judge in the case. In this case, when a pretrial ruling concerning the appointment of additional counsel was appealed, the judge appeared as a nominal party in the appellate court but actually filed a pleading, urging that the ruling was proper and that the simplicity of the case (implying that the evidence of guilt was overwhelming) justified the decision to deny the appointment of two lawyers in this death penalty case. That pleading also questioned the ability of the lawyer who was representing the defendant. The Ninth Circuit held that the state trial judge’s participation in the appeal may have rendered her too biased to participate in the death penalty proceedings that ensued in the trial court. A remand for a full evidentiary hearing on the state judge’s impartiality was required.

United States v. Paul, 561 F.3d 970 (9th Cir. 2009)

The Ninth Circuit previously reversed the defendant’s 16 month sentence, holding that it was unreasonably harsh. On remand, the district court judge imposed a 15 month sentence. The Ninth Circuit reversed again and ordered a change of judges on remand.

United States v. Demott, 513 F.3d 55 (11th Cir. 2008)

When a defendant is re-sentenced pursuant to a remand from the appellate court, he has the right to be present. The trial court’s summary imposition of the same sentence without announcing findings in open court and without the defendant present was error. On remand, the case would be assigned to a different judge because of the judge’s apparent lack of receptivity to the arguments of counsel (because he had not even given them an opportunity to be heard at the last proceeding).

United States v. Amico, 486 F.3d 764 (2d Cir. 2007)

In this mortgage fraud trial, one of the key government witnesses was a mortgage broker who had previously helped the district court judge obtain a mortgage (before he was a judge). There was considerable controversy surrounding this witness (and whether he had actually submitted false papers in connection with the judge’s application). Though the judge clearly was not involved in any misconduct, the appearance of a conflict was such that he should have recused himself. The defendants’ convictions were reversed.

United States v. Quattrone, 441 F.3d 153 (2d Cir. 2006)

Without providing much elaboration, the Second Circuit held that following reversal of the conviction, the case would be assigned to a different judge.

Franklin v. McCaughtry, 398 F.3d 955 (7th Cir. 2005)

The judge in this case had previously filed a memorandum in another case that referred to Mr. Franklin. A newspaper article was then written about the judge’s memorandum. Because the memorandum by the judge (in the other case) complained that when indigent defendants are released on bond pending appeal, they commit more crimes, his impartiality was in question and he should have recused himself from further participation in this case. The judge had already expressed an opinion that the defendant had in fact, committed the charged offenses.

In re Nettles, 394 F.3d 1001 (7th Cir. 2005)

Where the defendant is charged with targeting a federal courthouse for bombing, every judge (district court and court of appeals) should recuse himself from any participation in the case.

United States v. Andrews, 390 F.3d 840 (5th Cir. 2004)

The district court departed upward on the Guidelines, expressing dissatisfaction with the sentence that was dictated by the Guidelines. The Fifth Circuit reversed and held that a remand to a different judge was appropriate in this case.

United States v. Lentz, 383 F.3d 191 (4th Cir. 2004)

The trial court granted a motion for new trial based on his finding that the AUSA intentionally placed documents (that were not introduced in evidence) into the evidence cart that was provided to the jury during deliberations. The Fourth Circuit held that a new trial was required because of the presence of the inadmissible evidence in the jury room; however, there was no evidence that the AUSA intentionally caused this. In fact, it could have been caused by the trial court’s staff. The Fourth Circuit decided on remand that the case should be assigned to a different judge. The trial court could not reasonably be expected to erase the earlier impressions from his mind, or might tend to lean over backwards or overreact in an effort to be fair and impartial on retrial. Moreover, the AUSA would be understandably distracted from his task during the retrial.

Ellis v. U.S. District Court, 356 F.3d 1198 (9th Cir. 2004) (en banc)

When a trial court accepts a guilty plea, but subsequently rejects the plea agreement, the ball is then in the defendant’s court as to whether he wishes to withdraw his plea or go forward with sentencing, without the plea agreement in place. The trial court may not simply vacate the guilty plea and proceed to trial. See Rule 11(c)(5), Fed.R.Crim.P. The court reached this conclusion after reviewing the analysis of the Supreme Court in United States v. Hyde, 520 U.S. 670 (1997), which also explained that a trial judge may accept a guilty plea and defer acceptance of the plea agreement; but if the agreement is rejected, then the defendant must be given an opportunity to withdraw the plea. The Ellis court also held that upon remand, the case would be assigned to a different judge.

United States v. Doe, 348 F.3d 64 (2d Cir. 2003)

The district court judge indicated his displeasure with the government for failing to make a specific recommendation in connection with a § 5K1.1 motion. In a prior case, the judge had refused to reduce a sentence, because of the government’s refusal to make a specific recommendation and the Second Circuit reversed that sentence. The Second Circuit in this case ordered that the case be remanded to a different judge because the district court judge’s apparent inability to comply with the Sentencing Guidelines.

In the Matter of Jeffrey C. Hatcher, 150 F.3d 631 (7th Cir. 1998)

The judge assigned to preside over this gang-related trial had a son who was an intern in the U.S. Attorney’s office and who had participated in the trial of a closely-related case. The judge had watched part of that trial in the audience. The Seventh Circuit concluded that the judge should have recused himself

United States v. Anderson, 160 F.3d 231 (5th Cir. 1998)

The trial judge should have recused himself from further participation in this case after the defense counsel testified before a special investigatory committee of the Fifth Circuit Judicial Council which was investigating misconduct of the judge.

United States v. Avilez-Reyes, 160 F.3d 258 (5th Cir. 1998)

Same facts – and same judge – as United States v. Anderson, 160 F.3d 231 (5th Cir. 1998). Same result, as well.

United States v. Chantal, 902 F.2d 1018 (1st Cir. 1990)

The fact that a defendant pleads guilty does not waive his challenge to a trial judge’s qualifications if the impartiality of the judge is reasonably open to question. Furthermore, the alleged basis for asserting that the judge is biased or prejudiced can be his conduct in a prior judicial proceeding. In this case, the judge had described the defendant as an “unreconstructed drug trafficker.” This was in a prior sentencing; now, facing the defendant following his arrest on separate charges, the defendant moved to recuse the judge on the basis of his expressed bias. Because the trial judge refused to even consider the issue because the bias was revealed during a prior judicial proceeding, the First Circuit reverses and holds that the judge must make an adequate record in determining whether he should remain on the case.

United States v. Brinkworth, 68 F.3d 633 (2d Cir. 1995)

A defendant who pleads guilty unconditionally may still appeal the trial judge’s denial of a recusal motion under 28 U.S.C. §455.

United States v. Diaz, 797 F.2d 99 (2d Cir. 1986)

The trial judge wrote a letter to his Senator complaining about the Court of Appeals decision in this case. The letter urged the introduction of legislation regarding sentence enhancements. Such conduct calls into question the impartiality of the district judge who should have recused himself, permitting re-sentencing to be conducted before a different judge.

United States v. Antar, 53 F.3d 568 (3rd Cir. 1995)

The defendant was the subject of both a civil SEC action and a criminal contempt action for failing to comply with the court’s order in the civil case regarding the return of money. When imposing sentence, the judge stated that his object, “from day one . . . was to get back to the public that which was taken from it.” This unambiguously demonstrates that the judge had prejudged the case and lacked the impartiality required. Had the judge announced at the opening of the trial that this was his object, clearly he would be recused. The fact that he made this disclosure at the end of the trial makes no difference.

United States v. Furst, 886 F.2d 558 (3rd Cir. 1989)

Following his conviction, the defendant sought to recuse the trial judge from sentencing. The trial court held that this motion was untimely. However, the motion was based on the judge’s ex parte comments to the defense attorney about the defendant’s failure to enter a plea agreement and his discussion of the sentences which might be imposed. The trial court erred in ruling this motion untimely.

United States v. Anderson, 70 F.3d 353 (5th Cir. 1995)

The judge’s refusal to accept a plea agreement, his refusal to dismiss an indictment at the request of the government and his insistence on using information which would have been used had he been sentenced under the original indictment led the appellate court to vacate the sentence and remand the case to the district court for re-assignment to a different judge.

United States v. Jordan, 49 F.3d 152 (5th Cir. 1995)

The defendant and an attorney were embroiled in numerous contentious dealings, which resulted, among other things, in the defendant’s daughter taking out an arrest warrant on the attorney for assault. The district court judge which tried and sentenced the defendant on charges which related to the transactions for which the attorney was dealing with the defendant, was a good friend and former classmate of the attorney (the trial judge’s husband was once a law partner of the attorney and tried to intervene with the district attorney when the attorney was arrested as a result of the defendant’s taking out a warrant). There was an appearance of impropriety and the case would be remanded for resentencing before a district court judge from another district.

United States v. Goldfaden, 959 F.2d 1324 (5th Cir. 1992)

The government agreed to make no recommendation as to the defendant’s sentence. Despite this pledge, the government wrote several letters to the probation officer advocating the use of certain Guideline ranges. This was a violation of the agreement. The fact that the government recommended guideline ranges, rather than a specific number of months or years is inconsequential. On remand, if the court concludes that specific performance is the appropriate remedy, the defendant must be sentenced by a different judge.

In re Faulkner, 856 F.2d 716 (5th Cir. 1988)

The district judge should have recused himself because a relative with a close relationship to the judge was an important participant in a significant financial transaction forming the basis of the indictment. Furthermore, the relative had communicated to the judge about material facts and related her opinions and attitudes regarding those instances. Though there was no showing of actual bias, under the facts presented, the judge’s partiality could reasonably be questioned; thus recusal was required.

United States v. Arnpriester, 37 F.3d 466 (9th Cir. 1994)

A district court judge who was formerly a United States Attorney may not sit on any case which was commenced during his tenure in the U.S. Attorney’s office.

Nichols v. Alley, 71 F.3d 347 (10th Cir. 1995)

The Oklahoma Bombing judge, whose chambers were rocked by the explosion, was required to recuse himself.

United States v. Greenspan, 26 F.3d 1001 (10th Cir. 1994)

After the FBI informed the judge that the defendant had conspired with others to kill him and members of his family, the judge should have recused himself prior to sentencing.

United States v. Cooley, 1 F.3d 985 (10th Cir. 1993)

The district court judge became embroiled in the Operation Rescue controversy by appearing on “Nightline.” Thereafter, he should have recused himself from further participation in the case. The judge’s appearance on television conveyed an uncommon interest and degree of personal involvement which required him to recuse himself from further proceedings in the case.

Porter v. Singletary, 49 F.3d 1483 (11th Cir. 1995)

Prior to the sentencing hearing in this death penalty trial in Florida (where the trial judge is the ultimate finder of fact), the judge told the clerk, with whom he was drinking coffee, that he was going to listen to the evidence, then sentence the son-of-a-bitch to the chair. This evidence indicated a pre-disposition on the part of the judge to execute the defendant even before the evidence was heard. A remand to develop the record was appropriate.

United States v. Kelly, 888 F.2d 732 (11th Cir. 1989)

The trial court conducted a bench trial in this drug prosecution. During the trial, the defendant called as a witness an individual who was a close friend of the judge. The judge conducted a private conversation with the witness’ wife in chambers, and announced to the parties that he was troubled by the use of his friend as a witness. The judge himself stated that he had profound doubts about the propriety of continuing to sit on the case. He explained that he felt confronted by a personal dilemma between his friend and his duty to sit impartially. The judge later accused the defendant of having placed him in this “awkward position.” The purpose of 29 U.S.C. §455 is to promote confidence in the judiciary by avoiding even the appearance of impropriety whenever possible. The trial judge should have recused himself in this case. Furthermore, the defendant is not capable of waiving this issue. The practice of advising counsel of a possible conflict and asking them to indicate their approval of the judge’s remaining in a particular case is “fraught with potential coercive elements which make this practice undesirable.”

United States v. Torkington, 874 F.2d 1441 (11th Cir. 1989)

Because of the trial judge’s actions during the trial, upon remand from the Eleventh Circuit, it would be appropriate for the case to be assigned to a different judge.