Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
8-11-2008
USA v. Brightwell
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-4548
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 06-4548
_________
UNITED STATES OF AMERICA
v.
RICHARD BRIGHTWELL,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D. C. No. 01-cr-00033)
District Judge: Hon. R. Barclay Surrick
Submitted under Third Circuit LAR 34.1(a)
on April 11, 2008
Before: SMITH, HARDIMAN and ROTH, Circuit Judges
(Opinion filed: August 11, 2008)
OPINION
ROTH, Circuit Judge:
Richard Brightwell appeals the orders of the U.S. District Court for the Eastern
District of Pennsylvania, accepting documentation of a previous conviction for purposes of
sentencing, denying his motion for appointment of counsel, and denying his motion
requesting recusal. For the reasons discussed below, we will affirm.
I. Background and Procedural History
As the facts are well known to the parties, we will discuss them only briefly here.
Following a jury trial in the U.S. District Court for the Eastern District of
Pennsylvania, Richard Brightwell was convicted of possession of cocaine with intent to
distribute, in violation of 21 U.S.C. § 841(a)(1), possession of a firearm as a felon, in
violation of 18 U.S.C. § 922(g), and possession of a firearm in furtherance of a drug
trafficking crime, in violation of 18 U.S.C. § 924(c). Brightwell was initially sentenced in
April 2003, but his sentence was vacated and the case remanded following United States v.
Booker, 543 U.S. 220 (2005). United States v. Brightwell, No. 03-2001, 126 Fed. Appx. 47
(3d Cir. Apr. 19, 2005).
A new sentencing hearing was held on October 13, 2006. The District Court
sentenced Brightwell to 248 months imprisonment (188 months for the counts of cocaine
possession and felon in possession of a firearm, to run concurrently, plus 60 months for the
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count of possession of a firearm in furtherance of drug trafficking, to be served
consecutively), three years of supervised release, a $17,500 fine, and a $300 special
assessment.1 Brightwell appealed, alleging three errors.
Brightwell argues first that the District Court erred in determining that certain
documentation was an authentic and certified copy of a record of his 1963 murder conviction.
As a result of this conviction, the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), was
applicable, triggering a fifteen-year mandatory minimum sentence for Brightwell’s
conviction of possession of a firearm as a felon.
Second, Brightwell claims that the District Court erred when it denied his second
motion for appointment of counsel.2 In his motion, Brightwell stated that his relationship
with counsel was “nil” and that “the trust factor is a problem.” The District Court denied this
motion after questioning Brightwell, who indicated that he wanted a different attorney
because his current counsel had merely adopted the arguments made by his previous counsel.
Third, Brightwell asserts that the District Court erred in denying his motion for
recusal. Brightwell offered ten grounds for his motion, including bias or prejudice within
1
The term of imprisonment imposed following Brightwell’s initial sentence was 322
months.
2
Brightwell had previously moved for appointment of new counsel when represented by
another attorney. The District Court granted that attorney’s motion to withdraw and
appointed the attorney who is the subject of the motion at issue on appeal.
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the meaning of 28 U.S.C. § 455.3 The District Court denied Brightwell’s motion as
“completely frivolous.”
II. Analysis
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We review each of Brightwell’s points of
error in turn.
We review the District Court’s factual findings as to the authenticity of the purported
record of conviction for clear error and its legal conclusions de novo. United States v. Grier,
475 F.3d 556, 570 (3d Cir. 2007). Brightwell’s primary argument is that a deputy’s signature
is lacking on the 1963 sentence sheet. However, the documentation submitted to support the
conviction, obtained at the District Court’s request, was certified by the Clerk of the Superior
Court of Fulton County as “a true, complete and correct copy of the original in said case, as
3
Brightwell asserted that recusal was proper pursuant to 28 U.S.C. § 455 because 1)
“disqualification of Judge due to bias and prejudice;” 2) the District Court allowed
continuances that were incorrectly attributed to Brightwell; 3) the District Court whispered
to the prosecutor that he thought that Brightwell was going to plead guilty; 4) at one point
the District Court Judge and Brightwell’s original attorney practiced in the same town; 5) the
District Court informed Brightwell’s co-defendant that his attorney could not represent him
after the attorney testified on Brightwell’s behalf at an evidentiary hearing; 6) the District
Court Judge “went into the room where jurors was [sic] being held and selected the jurors
that the defense and prosecutor could choose from;” 7) the Pre-Sentence Investigation Report
indicated that the details regarding one previous offense were pending, but the District Court
sentenced Brightwell anyway without investigation, thereby showing prejudice to Brightwell;
8) Brightwell thought that the District Court had not read the Pre-Sentence Investigation
Report because it indicated that he had been sentenced for one of his earlier offenses only
one month after being arrested.
4
appears by the original on file . . .”, and Brightwell did not argue that he was not convicted
of the 1963 crime. As such, we find no clear error in the District Court’s determination that
Brightwell had been convicted of murder in 1963, as evidenced by the certified copy of his
conviction.
We review the District Court’s denial of Brightwell’s request for new counsel for
abuse of discretion. United States v. Goldberg, 67 F.3d 1092, 1097 (3d Cir. 1995). “[I]n
order to warrant a substitution of counsel during trial, the defendant must show good cause,
such as a conflict of interest, a complete breakdown in communication, or an irreconcilable
conflict with his attorney.” United States v. Welty, 674 F.2d 185, 188 (3d Cir. 1982). The
District Court is obliged to “decide if the reasons for the defendant’s request for substitute
counsel constitute good cause and are thus sufficiently substantial to justify a continuance
. . . in order to allow new counsel to be obtained.” Id. at 187. In Welty, we explained,
“[T]he district court must engage in at least some inquiry as to the reason for the defendant’s
dissatisfaction with his existing attorney. . . . ‘If the reasons are made known to the court,
the court may rule without more.’” Id. at 187-88 (quoting Brown v. United States, 264 F.2d
363, 369 (D.C. Cir. 1959) (Burger, J., concurring in part)).
We reject Brightwell’s argument that the District Court failed to meet its obligations
in this case. In his motion, Brightwell claimed that his relationship with his attorney was
“nil” and that “the trust factor [was] a problem.” The District Court asked Brightwell at
sentencing why he wanted his counsel removed, and Brightwell responded that his lawyer
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had adopted the arguments of his previous counsel and had “none of his own.” In this case,
we cannot say that the District Court abused its discretion in determining that these reasons
did not warrant the appointment of new counsel.
We review the District Court’s denial of Brightwell’s motion for recusal for abuse of
discretion. Azubuko v. Royal, 443 F.3d 302, 303 (3d Cir. 2006). Brightwell sought recusal
pursuant to 28 U.S.C. § 455, which provides, “Any justice, judge, or magistrate judge of the
United States shall disqualify himself in any proceeding in which his impartiality might
reasonably be questioned.” 28 U.S.C. § 455(a).4 Brightwell makes only conclusory
allegations as to bias or prejudice on the District Court’s part. See Liteky v. United States,
510 U.S. 540, 555 (1994) (explaining that judicial rulings and remarks during the course of
proceedings generally do not support a bias or partiality motion). The grounds cited by
Brightwell in his motion do not suggest that the District Court’s impartiality could reasonably
be questioned. As such, we find no abuse of discretion in the District Court’s denial of
Brightwell’s motion, and we decline Brightwell’s request to remand the issue for further
proceedings.
4
In addition, 28 U.S.C. § 144 provides, “Whenever a party to any proceeding in a district
court makes and files a timely and sufficient affidavit that the judge before whom the matter
is pending has a personal bias or prejudice either against him or in favor of any adverse party,
such judge shall proceed no further therein, but another judge shall be assigned to hear such
proceeding.”
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III. Conclusion
For the reasons set forth above, we will affirm the judgment and sentence of the
District Court.
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