United States v. Larry Hill

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4652

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

LARRY A. HILL,

Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Columbia. Margaret B. Seymour, Senior
District Judge. (3:08-cr-00734-MBS-1)

Submitted: February 9, 2015 Decided: February 12, 2015

Before KING, Circuit Judge, and HAMILTON and DAVIS, Senior
Circuit Judges.

Affirmed by unpublished per curiam opinion.

Larry A. Hill, Appellant Pro Se. James Hunter May, Assistant
United States Attorney, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

In the proceedings below, the district court found

that Larry Hill violated certain conditions of his supervised

release, revoked his release, and sentenced him to ten months of

imprisonment, while continuing him on supervised release for two

years. Specifically, the court found Hill’s conduct (the

creation of false and fraudulent IRS forms) amounted to

retaliation against a federal judge and federal law enforcement

officers by making false claims, in violation of 18 U.S.C.

§ 1521. On appeal, Hill contends that the district court erred

when it: (1) deprived him of due process; (2) denied his motion

to dismiss; (3) denied his requests for witness subpoenas;

(4) denied his motion for recusal; and (5) denied his challenge

to the revocation proceedings for lack of sufficient evidence.

We find no merit in these contentions and we therefore affirm.

First, “[w]e review the alleged denial of due process

de novo.” United States v. Legree, 205 F.3d 724, 729 (4th Cir.

2000). A defendant on supervised release has a procedural due

process right to a fair and impartially conducted revocation

hearing. See United States v. Copley, 978 F.2d 829, 831 (4th

Cir. 1992). Our review of the record reflects that Hill

received the appropriate process. He received a full hearing,

was permitted to confront his accusers, and was given notice of

the charges via the supervised release revocation report. While

2
the report was amended, the amendment properly notified Hill of

the revisions to the allegations. See Fed. R. Crim. P.

32.1(b)(2)(A). We thus find no merit in Hill’s generalized due

process claim.

Second, we note that, in his opening brief, Hill fails

to address the district court’s grounds for denying his motion

to dismiss. By this failure, he has forfeited review of this

issue on appeal. See 4th Cir. R. 34(b) (limiting review to

issues raised in opening brief); see also Edwards v. City of

Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999) (holding that

failure to raise issue in opening brief constitutes abandonment

on appeal).

Third, we review the district court’s denial of the

request for witness subpoenas for abuse of discretion. See

United States v. Espinoza, 641 F.2d 153, 159 (4th Cir. 1981).

To the extent Hill claims that this denial violated his right to

confrontation, our review is de novo. United States v. Summers,

666 F.3d 192, 197 (4th Cir. 2011).

Supervised release revocation hearings are not

“criminal prosecutions” under the Sixth Amendment. United

States v. Ward, 770 F.3d 1090, 1097 (4th Cir. 2014).

Accordingly, as we have recently reiterated, defendants in

supervised release revocation hearings are only entitled to the

limited right of confrontation guaranteed by Fed. R. Crim. P.

3
32.1(b)(2)(C). United States v. Ferguson, 752 F.3d 613, 616

(4th Cir. 2014). Our review of the record shows that the

district court neither abused its discretion nor violated Hill’s

right to confrontation in denying his subpoena requests. To the

contrary, Hill was afforded a full opportunity to confront his

accusers via cross-examination and he did so, at length.

Fourth, we review the denial of a motion for recusal

for abuse of discretion. United States v. Whorley, 550 F.3d

326, 339 (4th Cir. 2008). A judge should grant a motion for

recusal “in any proceeding in which h[er] impartiality might

reasonably be questioned”; “[w]here [s]he has a personal bias or

prejudice concerning a party, or personal knowledge of disputed

evidentiary facts concerning the proceeding”; or where she has a

financial interest in the litigation. 28 U.S.C. § 455 (2012).

Generally, “[appellate] courts have only [reversed the

denial of] recusal motions in cases involving particularly

egregious conduct [by the presiding judge].” Belue v.

Leventhal, 640 F.3d 567, 573 (4th Cir. 2011). Moreover, in

order to disqualify a judge, the “bias or prejudice must, as a

general matter, stem from a source outside the judicial

proceeding at hand.” Id. at 572 (internal quotation marks

omitted). As to whether a financial interest is disqualifying,

it “depends upon the remoteness of the interest and its extent

or degree. . . . As the interest becomes less direct, it will

4
require disqualification only if the litigation substantially

affects that interest.” In re Beard, 811 F.2d 818, 831 (4th

Cir. 1987). Ultimately, the test for whether a judge must

recuse herself “is an objective one: . . . a judge must

disqualify [her]self whenever [her] impartiality might

reasonably be questioned.” United States v. Cherry, 330 F.3d

658, 665 (4th Cir. 2003).

We have reviewed the record and discern no abuse of

discretion in the denial of the recusal motion. Under the

unique circumstances presented here, the fact that Hill was

charged with attempting to file a false lien against the

presiding judge (among other federal officials and employees

involved in this case) did not necessitate the judge’s recusal.

See United States v. Cooley, 1 F.3d 985, 993-94 (10th Cir. 1993)

(noting that party’s baseless suits against judge do not require

judge’s recusal); United States v. Parker, 724 F.2d 127, 128

(4th Cir. 1984) (noting that knowledge acquired through

involvement in judicial proceedings does not constitute personal

bias necessitating recusal). Indeed, we note that even were one

to regard the case as involving the judge’s “financial

interest,” a view which no reasonable person would entertain in

any event, that “interest” is far too remote and speculative to

necessitate recusal. We therefore hold that the district court

did not abuse its discretion in denying the recusal motion.

5
Fifth and finally, in a supervised release revocation

hearing, we review the decision on revocation under an abuse of

discretion standard. United States v. Pregent, 190 F.3d 279,

282 (4th Cir. 1999). To revoke supervised release, a district

court need only find a violation of a condition of supervised

release by a preponderance of the evidence. 18 U.S.C.

§ 3583(e)(3). We review for clear error the district court’s

factual findings underlying the conclusion that a violation of

the terms of supervised release occurred. See United States v.

Carothers, 337 F.3d 1017, 1019 (8th Cir. 2003).

We have reviewed the record and determined that the

district court had sufficient evidence to find that Hill engaged

in conduct constituting a violation of supervised release.

Specifically, the district court did not commit clear error in

finding, by a preponderance of the evidence, that Hill attempted

to create a false liens by filing IRS Form 56 with the IRS and

Form 1099c with the district court.

For the foregoing reasons, the judgment is affirmed.

We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

AFFIRMED