UNITED STATES COURT OF APPEALS
For the Fifth Circuit
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No. 97-11205
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
TONY LEROY ANDERSON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
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November 10, 1998
Before REYNALDO G. GARZA, JONES and DeMOSS, Circuit Judges.
REYNALDO G. GARZA, Circuit Judge:
Tony Leroy Anderson appeals his sentence of forty-six months
after pleading guilty to one count of bank robbery. We vacate his
sentence and remand for resentencing because we find that the
district judge should have recused himself prior to sentencing.
Factual Background
On July 11, 1997, Tony Leroy Anderson, pled guilty to one
count of bank robbery before the Honorable John McBryde, United
States District Judge for the Northern District of Texas.
During the week of August 25, 1997, Anderson’s trial counsel,
First Assistant Public Defender Paul D. Strickney, was subpoenaed
as a witness, and testified against Judge McBryde in proceedings
before a special investigatory committee of the Fifth Circuit
Judicial Council. On October 9, 1997, one day prior to sentencing,
Anderson moved for recusal of Judge McBryde and reassignment of the
case to another district judge. Judge McBryde denied the recusal
motion on the ground that these facts did not create an appearance
of bias or prejudice against Anderson or his counsel.
Neither the government or Anderson objected to the presentence
report (PSR), and the district court adopted the PSR’s factual
findings and conclusions. The PSR noted that the maximum
punishment was 20 years and calculated the guideline range to be 37
to 46 months. On October 10, 1997, Anderson was sentenced by Judge
McBryde to 46 months imprisonment, followed by three years of
supervised release. Anderson then timely appealed to this Court.
II. Discussion
Anderson does not challenge his conviction. His appeal
requests that his sentence be vacated and that the case be remanded
for resentencing before a different district court judge. Anderson
contends that Judge McBryde abused his discretion and reversibly
2
erred by refusing to recuse himself from Anderson’s case after
Anderson’s attorney testified against Judge McBryde in the Fifth
Circuit Judicial Council proceedings. Anderson asserts that a
reasonable person would harbor doubts about Judge McBryde’s ability
to remain impartial in a case involving an attorney who had
testified adversely to Judge McBryde in Judicial Council
proceedings that could lead to him being reprimanded or even
sanctioned. We find Anderson’s contentions valid.
Title 28 U.S.C. § 455(a) provides that a federal judge shall
disqualify himself in any proceeding in which his impartiality
might be reasonably questioned. A motion for recusal is within the
discretion of the district judge and the denial of such a motion
will not be reversed on appeal unless the judge has abused his
discretion. Garcia v. Woman’s Hosp. of Texas, 143 F.3d 227, 230
(5th Cir. 1998).
This Circuit has recognized that each section 455 (a) case is
extremely fact intensive and fact bound, and must be judged on its
unique facts and circumstances rather than by comparison to similar
situations considered in prior jurisprudence. United States v.
Jordan, 49 F.3d 152, 157 (5th Cir. 1995). The party seeking recusal
must demonstrate that, if a reasonable person knew of all of the
circumstances, they would harbor doubts about the judge’s
impartiality. Travelers Ins. Co. v. Liljeberg Enterprises, Inc., 38
F.3d 1404, 1408 (5th Cir. 1994). Thus, if a judge concludes that his
3
impartiality might be reasonably questioned, then he should find
that the statute requires his recusal. In re Faulkner, 856 F.2d
716, 721 (5th Cir. 1988) (citing Liljeberg v. Health Services
Acquisition Corp., 486 U.S. 847, 860 (1988)). The goal of section
455(a) is to avoid even the appearance of partiality. Liljeberg, 486
U.S. at 860. In light of the specific facts of this case we hold
that the Judge McBryde abused his discretion and reversibly erred
in failing to recuse himself from Anderson’s case. It is clear that
a reasonable person, when appraised of the relevant circumstances
that surround this case, would harbor doubts about Judge McBryde’s
impartiality. The average person when viewing this specific
situation, would question Judge McBryde’s ability to be impartial
in a case involving an attorney who has testified adversely against
Judge McBryde in a Judicial Council proceeding. As Anderson notes
many attorneys are fearful of even filing a complaint against a
judge to a circuit judicial council, due to fear of retaliation from
that complained-against judge. If there is a fear in merely filing
a complaint against a judge, it is evident that a greater fear
arises from actually testifying against a judge, who is present at
that hearing. It is difficult under these circumstances to argue
that a reasonable person would not harbor any doubt about Judge
McBryde’s impartiality. This Court recognizes that it is essential
to avoid even the appearance of impropriety because it is as
important in developing the public confidence in our judicial system
4
as avoiding the impropriety itself. Jordan, 49 F.3d at 155-56.
On February 9, 1998, the Fifth Circuit Judicial Council issued
an order making executory that portion of a Judicial Council Order
of December 31, 1997 ordering Judge McBryde not to participate in
cases involving attorneys who have testified against him for a
period of three years. Although not dispositive, this demonstrates
that a group of Judge McBryde’s own colleagues have concluded that
there is reasonable doubt of Judge McBryde’s ability to be impartial
arising from an attorney’s testifying against him.
Section 455 also obligates a party to raise the
disqualification argument at a reasonable time in the litigation.
Hollywood Fantasy Corp. v. Gabor, No. 93-8199, 1998 WL 469672, at
*14 (5th Cir. 1998). Moreover, the party seeking the
“disqualification must do so at the earliest moment after knowledge
of the facts demonstrating the basis of such disqualification.”
Travelers Ins. Co., 38 F.3d at 1410. In addition, “when a party
seeking recusal knows or should know the facts on which recusal is
based he must make a timely motion to disqualify or lose his right
to do so. Health Services Acquisition Corp. v. Liljeberg, 796 F.2d
796, 802 (5th Cir. 1986) aff’d, 486 U.S. 847 (1988).
This Court finds that Anderson’s motion for recusal was timely.
Anderson pled guilty to bank robbery and only challenges the
sentence imposed by Judge McBryde. Anderson made his motion for
recusal one day prior to sentencing, but had known of his attorney’s
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testimony against Judge McBryde for over six weeks. Although
Anderson knew of the basis for the recusal for a considerable time,
this Court finds that Anderson raised Judge McBryde’s
disqualification at a reasonable time. It is clear that Anderson
did not wait to see what sentence Judge McBryde would impose, and
then, when that sentence was unfavorable, move for recusal. Rather,
Anderson raised the ground for recusal before any sentence was
imposed. There was no litigation concerning Anderson’s guilt, all
that remained to be determined was the duration of his sentence.
Therefore, because Anderson filed his motion to recuse prior to
sentencing, we find that the motion is timely in challenging his
sentence.
This Court also holds that Anderson’s recusal motion is
reasonably specific, because under the Fifth Circuit Rules Governing
Complaints of Judicial Misconduct or Disability, Anderson’s attorney
was prohibited from discussing the content of the testimony given
at the proceedings. Moreover, Judge McBryde was either present at
the proceedings or had access to a transcript of Anderson’s
attorney’s testimony. Thus, Judge McBryde was fully aware of the
particular grounds provided as requiring recusal.
Accordingly, Anderson’s SENTENCE is VACATED and his case
REMANDED for reassignment to a different judge for proceedings
consistent with this opinion.
ENDRECORD
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EDITH H. JONES, Circuit Judge, dissenting:
Tony Leroy Anderson and Ricardo Avilez-Reyes, represented
by the Federal Public Defender’s Office, pleaded guilty,
respectively, to bank robbery and possession with intent to
distribute methamphetamine. Between their plea agreements and
sentencing hearings, a unique event occurred. The district judge
responsible for their cases was brought before a judicial conduct
and disciplinary hearing convened by the Fifth Circuit Judicial
Council. In that hearing, the attorneys who testified against the
Honorable John McBryde were predominantly government lawyers: six
current or former lawyers from the United States Attorney’s Office
in the Northern District of Texas, five from the Federal Public
Defender’s Office.1 Because the Chief Judge of this circuit has
refused to make the records of the disciplinary hearing public,2 we
do not know what testimony was presented or by whom.3 Nevertheless,
the federal public defenders who represented these defendants sought
Judge McBryde’s recusal from sentencing because they themselves
testified against him at the hearing. The judge denied their
motions. Both defendants were sentenced within the applicable
1
The attorney-witnesses against Judge McBryde are listed in
McBryde’s Memorandum at 8-10.
2
See 28 U.S.C. § 372(c)(14)(C). Judge McBryde requested
publication of all the proceedings, but the Chief Judge exercised
his unilateral prerogative to deny that request.
3
One member of this panel was on the Judicial Council at the
time of the hearing but was not a direct participant in the
hearing.
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Guidelines ranges and raise as their only appellate point the denial
of recusal.
My colleagues hold that Judge McBryde should have recused
and, further, that defendants’ sentences are vacated. I
respectfully dissent. My colleagues’ interpretation of § 455(a) in
these cases conflicts with our precedents and, by unnecessarily
provoking more motions and requiring more recusals, will create
serious problems for the efficient administration of justice in the
federal courts. In addition, they engage in no analysis of the
remedy, although sentencing the defendants was harmless error in
these cases. Finally, their decisions unfairly pile on the
punishments that have already been imposed on Judge McBryde by the
Fifth Circuit Judicial Council.
I.
The panel’s principal error is to review Judge McBryde’s
recusal decision only in hindsight. The defendants’ recusal motions
must be viewed in terms of events as the parties knew them at the
time. The public defenders had testified against Judge McBryde and
the disciplinary hearing was over, but no decision had yet been
rendered. The potential seriousness of the proceeding was beyond
dispute, but at that stage, particularly given the novelty of the
proceeding, its outcome could hardly have been foreseen. There is
no reason to think that Judge McBryde would have had it in for the
clients of people who were testifying against him. Every judge must
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develop a thick skin against criticism, and most judicial conduct
complaints come to nought. A reasonable person, knowing all the
circumstances, would not have had reason to doubt the judge’s
impartiality toward these defendants. See In re Hipp, Inc., 5 F.3d
109, 116 (5th Cir. 1993).
The public defenders were not responsible for convening
the hearing. There is no meaningful distinction between their
testimony against Judge McBryde in the hearing and lawyers’ publicly
questioning a presiding judge’s impartiality or ability to handle
a case.4 Yet the impact of this criticism is treated differently by
the panel, apparently because it later resulted in sanctions against
Judge McBryde.
The panel’s unwarranted and stringent standard for
recusals will hinder the effective administration of justice.
Although courts must be mindful that maintaining the appearance of
partiality is at least as important as its actuality, federal judges
equally have a duty to sit on cases properly before them. See In
re Drexel Burnham Lambert Inc., 861 F.2d 1307, 1312 (2d Cir. 1988)
(“A judge is as much obliged not to recuse himself when it is not
called for as he is obliged to when it is.”); Hinman v. Rogers, 831
F.2d 937, 939 (10th Cir. 1987) (“There is as much obligation for a
judge not to recuse when there is no occasion for him to do so as
4
In fact, the disciplinary hearing testimony was in one
regard even less threatening than garden-variety public criticisms
because the proceedings were held in secret and could not be made
public without Judge McBryde’s consent.
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there is for him to do so when there is.”). They must not cower
before heavy-handed attempts to stifle their independence by false
attacks on their integrity.
The panel’s opinion raises at least three sets of
problems. First, these federal public defenders essentially assert
that the judge could not be impartial to their clients because of
what they (the lawyers) did to him, which they allege created an
extrajudicial source of influence or prejudice. Does this suggest
that any aggressive lawyer who faces the prospect of a trial before
a judge he dislikes could file a spurious misconduct complaint
against the judge, give an unflattering interview to the press, or
otherwise publicly rebuke the judge, and then seek his recusal? In
fact, “courts have typically rejected recusal motions based on ...
a litigant’s deliberate act of criticizing the judge or judicial
system.” United States v. Owens, 902 F.2d 1154, 1156 (4th Cir.
1990). The First Circuit once repeated Judge Charles Wyzanski’s
colorful comments on such a situation: “[I]t rather surprises me
that a person has any status at the end of the first half of the
game to suggest that the referee, who was qualified at the
beginning, is disqualified at the middle because in the meantime the
player has been cursing the referee outside of court.” In re Union
Leader Corp., 292 F.2d 381, 388 (1st Cir. 1961). See also 13A
Charles Alan Wright et al., Federal Practice and Procedure § 3542,
at 577-78 (2d ed. 1984) (“A party cannot force disqualification by
attacking the judge and then claiming that these attacks must have
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caused the judge to be biased against him ....”).
Second, there is even less reason to think that a judge
would react impartially to a defendant represented by the Federal
Public Defender’s Office. The judge knows that the client had no
choice of counsel and that no significant “punishment” could be
inflicted on counsel by treating the criminal defendant unfairly.
Moreover, the general rule is that disqualification motions should
focus on the appearance of partiality against the party, not
counsel. See Davis v. Board of Sch. Comm’rs, 517 F.2d 1044, 1050,
1052 (5th Cir. 1975); see also 13A Federal Practice and Procedure
§ 3542, at 575-76. That rule has passed unnoticed by the majority.5
Third, the panel’s reasoning provides no basis for
believing that attorneys who testified in favor of Judge McBryde
should be treated differently from those who testified against him.
Partiality includes favoritism for, as well as antipathy against,
a party. If a judge cannot be supposed to be impartial toward those
who testified against him, how could he not be equally grateful to
-- and favorably disposed toward -- any attorneys who testified on
his behalf?
The panel’s holding will allow some attorneys to get
unfavorable judges disqualified from their cases. Simultaneously,
5
The rule is a general one with exceptions. Potashnick v.
Port City Constr. Co., 609 F.2d 1101 (5th Cir. 1980), for example,
found the judge’s prior contacts with the plaintiff’s attorney
justified disqualification, but it involved much more egregious
circumstances than these cases.
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it will eliminate incentives for other attorneys to stand up for a
judge once allegations of misconduct are lodged against him, for
fear of having him disqualified from their future cases. This is
nothing short of perverse and cannot be what Congress contemplated
when it created § 455(a).
Where recusal could lead to so many problems and where
Judge McBryde was necessarily unaware of the ultimate conclusion of
the disciplinary proceeding, I would hold that it was not an abuse
of discretion for Judge McBryde not to recuse.
II.
Even if Judge McBryde’s failure to recuse himself were
error, it would be harmless error. My colleagues conclude summarily
that the error is “reversibl[e]” in both cases. Their method
ignores the Supreme Court’s approval of harmless error analysis in
the § 455(a) context. See Liljeberg v. Health Servs. Acquisition
Corp., 486 U.S. 847, 862, 108 S. Ct. 2194, 2203-04 (1988) (“There
need not be a draconian remedy for every violation of § 455(a).”).
This court has generally applied a three-prong harmless
error test after finding a § 455(a) violation. See, e.g., United
States v. O’Keefe, 128 F.3d 885, 892 (5th Cir. 1997), cert. denied,
118 S. Ct. 1525 (1998); Air Line Pilots Ass’n, Int’l v. Continental
Airlines, Inc. (In re Continental Airlines Corp.), 901 F.2d 1259,
1263 (5th Cir. 1990). That test involves weighing “(1) the risk of
injustice to the parties in this particular case, (2) the risk that
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denial of relief will produce injustice in other cases, and (3) the
risk of undermining the public’s confidence in the judicial
process.” O’Keefe, 128 F.3d at 891. The full analysis shows that
the sentences here were harmless error.
The risk of injustice to the parties is mitigated by the
appellate court’s ability to review the challenged decision. Here,
no abuse of discretion in sentencing is alleged, and in fact, no
error at all is alleged in regard to the guilty pleas or sentences
other than failure to recuse. The parties’ rights were inherently
protected from arbitrariness by the Sentencing Guidelines. The mere
fact that the judge sentenced defendants beyond the minimum of the
Guidelines ranges does not imply partiality. Given the easily
articulable explanations for greater-than-minimum sentences, it
cannot be said that defendants have suffered prejudice. In
Anderson’s case, especially, there was no hint of prejudice: the
Guidelines range was narrow (only nine months’ variation) and the
probation officer had recommended an upward departure because
Anderson carried his two-year-old son in his arms as he robbed a
bank. In Avilez-Reyes’s case, the Guidelines range was broader, but
Avilez-Reyes was sentenced in the lower half and there was evidence
to show that he had possessed more than 1.7 kilograms of
methamphetamine. Allowing these sentences to stand creates no
significant risk of injustice to the parties in these cases.
There is also no risk of injustice in future cases
because, if the Judicial Council’s order stands, Judge McBryde is
13
required to recuse from cases involving these attorneys for three
years. Furthermore, assuming, as the majority does, that there is
a § 455(a) violation here, district judges will not fail in the
future to recuse themselves from cases involving attorneys who
testify against them in judicial disciplinary proceedings. Cf.
O’Keefe, 128 F.3d at 893 (“our decision aids ... justice in other
cases because it clarifies an unclear area of the law and serves as
a caution to district court judges”); O’Neill v. Continental
Airlines, Inc. (In re Continental Airlines), 981 F.2d 1450, 1463
(5th Cir. 1993); Air Line Pilots, 901 F.2d at 1263 (“rather, our
ruling here should serve as a caution to other judges [in the same
situation]”).
Finally, there is little risk that public confidence in
the judicial process would be undermined by allowing the defendants’
sentences to stand. The Judicial Council’s much publicized order
should reassure the public that Judge McBryde cannot visit
retaliation upon those who testified against him. In these cases,
to the contrary, only a legal technicality can cause that fear of
retaliation to “relate back” to the beginning of the disciplinary
proceedings, when it was not clear that the public defenders’
testimony had more weight than any other out-of-court criticisms or
defenses of the judge. It is likely that the public will see the
panel’s needless vacatur of the defendants’ sentences as a strike
against the judicial process. Cf. O’Keefe, 128 F.3d at 893
(“decisions that are based on technicalities and do not reach the
14
merits of the case increase public distrust of the legal system”).
Thus, under the three-prong harmless error analysis, these
sentences should stand.
Even in Jordan, a case relied upon by my colleagues, the
court weighed different remedies,6 ultimately refusing to reverse a
conviction but vacating an “excessively harsh” sentence. United
States v. Jordan, 49 F.3d 152, 158-59 (5th Cir. 1995). In vacating
the sentence, the Jordan court highlighted both its “apparent
harshness” and the judge’s “unbridled sentencing discretion ... in
[that] pre-Guidelines case.” Id. at 159. By contrast, Judge
McBryde sentenced the defendants in these cases within the
Guidelines, and, as discussed above, there can be no argument that
his sentences were harsh. No abuse of the sentencing prerogative
has been alleged by either defendant.
III.
The panel’s decisions in these cases needlessly pile on
the prior actions of the Judicial Council of the Fifth Circuit,
which has publicly reprimanded Judge McBryde and subjected him
essentially to a temporary impeachment. Not only did the Council
hold that the judge may be assigned no new cases for one year, but
it also purported to require Judge McBryde, for three years after
February 6, 1998, to recuse from all matters in his court involving
6
The Jordan court did not apply the three-prong test that
other Fifth Circuit panels have used, but it did touch on many of
the same concerns.
15
attorneys who testified against him in the disciplinary proceeding
(including the federal public defenders in these two cases). The
propriety of the Council’s order is not an issue in these cases and
should not be a basis for the majority’s decision. But whatever the
order’s propriety, it is an entirely different matter to “sanction”
Judge McBryde by enforced recusal after the disciplinary proceedings
have been concluded, than it is to use that sanction as a basis for
challenging his impartiality in decisions he made before the outcome
of the proceedings had been determined. Many accusations and
charges were made against Judge McBryde, the exact substance and
nature of which are unclear, unspecified in the public record, and
unknown even by most members of the Fifth Circuit.7 Nevertheless,
as far as I am aware, no one has ever questioned Judge McBryde’s
integrity or his ability to render decisions impartial to the
7
In the lawsuit Judge McBryde has filed in the District Court
for the District of Columbia, he characterizes the testimony
against him as having focused on the following topics:
Judge McBryde’s imposition of sanctions for litigation
misconduct; his decisions to reject plea agreements; his
practices with respect to settlement conferences; his
criticisms of attorneys for lack of good faith compliance
with rules and orders; his rulings in the Satz and Torres
cases; and his procedural rulings at trial, such as the
time allotted for opening statements and his rulings
cutting off repetitive questioning.
Complaint ¶ 43, McBryde v. Committee to Review Circuit Council
Conduct and Disability Orders, No. 1:98CV02457 (D.D.C).
Judge McBryde’s rulings in the Satz and Torres cases were at
the genesis of the judicial conduct proceeding. Judge McBryde’s
authority to make those rulings was upheld by this court in In re
McBryde, 117 F.3d 208 (5th Cir. 1997), cert. denied, 118 S. Ct.
2340 (1998).
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parties before him. If anything, the substance of the allegations
against him concerned alleged abuse of all lawyers appearing in his
court. Ironically, what is public is that one of the initial
charges against Judge McBryde, later apparently dropped, was that
he investigated too vigorously the actions of the government in
regard to a criminal defendant and intervened too actively to
protect the defendant’s rights.
Our court would be better off and would itself look more
impartial if we simply applied our pre-existing precedents to these
cases and affirmed the appellants’ sentences as having been imposed
well within the guidelines set by Congress through the United States
Sentencing Commission.
I respectfully dissent.
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