[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 18, 2003
No. 02-13871 THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 00-00044-CR-3-001LAC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANK M. PATTI, SR.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(July 18, 2003)
Before MARCUS and WILSON, Circuit Judges, and RESTANI*, Judge.
WILSON, Circuit Judge:
Frank M. Patti, Sr. appeals the seventy-nine-month sentence he received
after he pled guilty to filing a false income tax return in violation of 26 U.S.C. §
*
Honorable Jane A. Restani, Judge, United States Court of International Trade, sitting by
designation.
7206(1), and conspiring to defraud the United States in violation of 18 U.S.C. §
371. He asserts that the district court abused its discretion by denying his motion
for recusal and that the district court erred in sentencing him by miscalculating the
tax loss and by enhancing his sentence for obstruction of justice.1
BACKGROUND
On May 31, 2000, a grand jury returned a sealed, eight-count indictment,
charging Patti with various tax violations. The case was assigned to Judge Lacey
A. Collier, and the trial was scheduled to begin on May 29, 2001. Before the case
went to trial, however, Patti filed a motion for recusal pursuant to 28 U.S.C. §
455(a).2 Judge Collier denied that motion on March 13, 2001. Although Patti
filed supplemental evidence to support his § 455(a) motion after the initial denial,3
1
Patti also asserts that (1) the district court abused its discretion with respect to several
discovery rulings; (2) the district court erred in awarding costs; (3) the district court erred at
sentencing by failing to grant him a departure for acceptance of responsibility, enhancing his
sentence based upon his aggravating role in the offense, applying the sophisticated concealment
adjustment, and failing to grant him a downward departure; and (4) his sentence violated
Apprendi v. New Jersey, 530 U.S. 466 (2000). As we find that those issues lack merit and do not
require any discussion, we will not address them herein.
2
Essentially, Patti’s motion was based upon a conversation he had with a man who
alleged that he was friends with Judge Collier and that he could get the charges dropped if Patti
donated a large sum of money to a charity that the judge was associated with at the time. Patti
also asserted that Judge Collier knew the United States attorney and supported his reappointment.
3
That evidence consisted of a letter from Micki Conti, Judge Collier’s mother’s caretaker,
which indicated that Judge Collier discussed certain aspects of Patti’s case in front of her and
others.
2
Judge Collier filed a supplemental order denying the motion after receiving that
evidence.
Thereafter, a setback arose when Patti injured himself in a car accident. The
accident brought into question Patti’s competency to stand trial, as he claimed that
he had amnesia and could not recall the facts surrounding the alleged tax evasion.
As a result of the injuries, Patti was committed to a federal medical center
pursuant to 18 U.S.C. § 4241(d)(1). In February of 2002, after a hearing, Judge
Collier found that Patti was malingering and that he was competent to stand trial.
Thus, a new trial date of April 15, 2002 was established. Patti, however, agreed to
plead guilty to filing a false tax return and conspiring to defraud the United States,
two of the counts charged in the twenty-four-count second superseding indictment,
and his plea was accepted on April 12, 2002. Thereafter, the district court
sentenced him to seventy-nine months of imprisonment. This appeal followed.
DISCUSSION
I. Motion for Recusal
Patti asserts that Judge Collier abused his discretion by denying his motion
for recusal. The government, however, asserts that we cannot review the denial of
Patti’s motion, because Patti waived his right to raise that issue by entering an
unconditional guilty plea.
3
Generally, a voluntary, unconditional guilty plea waives all
nonjurisdictional defects in the proceedings. United States v. Fairchild, 803 F.2d
1121, 1124 (11th Cir. 1986) (per curiam). Although we have addressed several
types of claims that have been waived by entering an unconditional guilty plea,
see, e.g., United States v. Wai-Keung, 115 F.3d 874, 877 (11th Cir. 1997) (per
curiam) (holding that a defendant waived his right to appeal the validity of a
search); Fairchild, 803 F.2d at 1124 (holding that a defendant waived his right to
appeal on the grounds of prosecutorial vindictiveness), we have not addressed
whether a defendant waives his right to appeal the district court’s denial of a
motion for recusal under § 455(a) by entering an unconditional guilty plea.4 Our
sister circuits that have considered that issue, however, have come to opposite
conclusions, thus creating a circuit split. See United States v. Hoctel, 154 F.3d
506, 507–08 (5th Cir. 1998) (holding that a defendant waives his right to appeal
the denial); United States v. Gipson, 835 F.2d 1323, 1324–25 (10th Cir. 1988)
(holding the same); see also United States v. Troxell, 887 F.2d 830, 833 (7th Cir.
1989) (holding that the defendant waived her right to appeal the denial of her §
455(a) motion because the “denial of a motion for recusal based on the appearance
4
As this issue presents a question of law, we review it de novo. See United States v.
Smith, 289 F.3d 696, 706 n.11 (11th Cir. 2002) (noting that questions of law are reviewed de
novo).
4
of impropriety can be challenged only with a writ of mandamus”). But see United
States v. Brinkworth, 68 F.3d 633, 637–38 (2d Cir. 1995) (holding that a defendant
does not waive his right to appeal the denial); United States v. Chantal, 902 F.2d
1018, 1020–21 (1st Cir. 1990) (holding the same). For the following reasons, we
agree with the Fifth and Tenth Circuits and hold that a defendant waives his right
to appeal the denial of a § 455(a) motion by entering an unconditional guilty plea.
Section 455 creates two primary reasons for recusal. See 28 U.S.C. §
455(a)–(b). A judge should recuse himself under § 455(a) when there is an
appearance of impropriety. See id. § 455(a). Section 455(a) 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.” Id.
“The very purpose of § 455(a) is to promote confidence in the judiciary by
avoiding even the appearance of impropriety whenever possible.” Liljeberg v.
Health Servs. Acquisition Corp., 486 U.S. 847, 865 (1988). Thus, the standard of
review for a § 455(a) motion “is whether an objective, disinterested, lay observer
fully informed of the facts underlying the grounds on which recusal was sought
would entertain a significant doubt about the judge’s impartiality,” Parker v.
Connors Steel Co., 855 F.2d 1510, 1524 (11th Cir. 1988), and any doubts must be
resolved in favor of recusal, United States v. Kelly, 888 F.2d 732, 745 (11th Cir.
5
FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JULY 18, 2003
THOMAS K. KAHN
CLERK
1989).
On the contrary, a judge should recuse himself under § 455(b) when any of the
specific circumstances set forth in that subsection exist, which show the fact of
partiality. 28 U.S.C. § 455(b)(1)–(5).5 For example, a judge should recuse himself
5
Section 455(b) provides that a judge
shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party, or personal
knowledge of disputed evidentiary facts concerning the proceeding;
(2) Where in private practice he served as [a] lawyer in the matter in controversy,
6
“[w]here he has a personal bias or prejudice concerning a party” or “[w]here in
private practice he served as [a] lawyer in the matter in controversy.” Id. §
455(b)(1)–(2). Recusal under this subsection is mandatory, because “the potential
for conflicts of interest are readily apparent.” Murray v. Scott, 253 F.3d 1308,
1312 (11th Cir. 2001) (internal quotation marks omitted).
Thus, the differences between the two subsections are evident. While subsection
(b) sets forth specific circumstances requiring recusal, which establish the fact of
partiality, subsection (a) sets forth a general rule requiring recusal in those
situations that cannot be categorized neatly, but nevertheless raise concerns about
a judge’s impartiality. See 28 U.S.C. § 455(a)–(b). Although both subsections
or a lawyer with whom he previously practiced law served during such association
as a lawyer concerning the matter, or the judge or such lawyer has been a material
witness concerning it;
(3) Where he has served in governmental employment and in such capacity
participated as counsel, adviser or material witness concerning the proceeding or
expressed an opinion concerning the merits of the particular case in controversy;
(4) He knows that he, individually or as a fiduciary, or his spouse or minor child
residing in his household, has a financial interest in the subject matter in
controversy or in a party to the proceeding, or any other interest that could be
substantially affected by the outcome of the proceeding;
(5) He or his spouse, or a person within the third degree of relationship to either
of them, or the spouse of such a person:
(i) Is a party to the proceeding, or an officer, director, or trustee of a party;
(ii) Is acting as a lawyer in the proceeding;
(iii) Is known by the judge to have an interest that could be substantially
affected by the outcome of the proceeding;
(iv) Is to the judge’s knowledge likely to be a material witness in the
proceeding.
28 U.S.C. § 455(b)(1)–(5).
7
provide reasons for recusal, subsection (b) is stricter than subsection (a) because
the need for a judge’s recusal under subsection (b) is clear; once it has been
established that one of the enumerated circumstances exists, there can be no
dispute about the propriety of recusal. Under subsection (a), however, whether
recusal is necessary is not as readily apparent. As subsection (a) does not set forth
specific circumstances requiring recusal and instead provides a general rule
requiring recusal when there is an appearance of impropriety, we must ask
“whether an objective, disinterested, lay observer fully informed of the facts
underlying the grounds on which recusal was sought would entertain a significant
doubt about the judge’s impartiality.” Parker, 855 F.2d at 1524.
Indeed, the treatment of subsections (a) and (b) under § 455(e) further
demonstrates the differences between these subsections. Section 455(e) provides,
“No justice, judge, or magistrate judge shall accept from the parties . . . a waiver of
any ground for disqualification enumerated in subsection (b). Where the ground
for disqualification arises only under subsection (a), waiver may be accepted
provided it is preceded by a full disclosure on the record of the basis for
disqualification.”6 28 U.S.C. § 455(e). Thus, a party can waive recusal under §
6
We clearly have “a full disclosure on the record of the basis for disqualification” in this
case. 28 U.S.C. § 455(e). Patti raised the various grounds on which he thought recusal would be
appropriate, and the district court clearly set forth those grounds in its orders denying the motion.
8
455(e) when the motion is brought pursuant to § 455(a), but cannot waive recusal
when the motion is brought pursuant to § 455(b).
In light of the differences between subsections (a) and (b), particularly Congress’s
express provision for waiver of recusal under subsection (a), we conclude that the
“denial of recusal is a pretrial defect which is sublimated within a guilty plea and
thereafter unavailable as an issue for appeal.” Gipson, 835 F.2d at 1325.7
Accordingly, Patti waived his right to appeal the denial of his motion for recusal
when he entered his unconditional guilty plea.
Moreover, we find it noteworthy that Patti failed to avail himself of the options
that were available for obtaining review of the denial of his motion for recusal.
Indeed, Patti immediately could have petitioned this Court for a writ of mandamus
upon the denial of his motion, or he could have requested permission from Judge
Collier to enter a conditional guilty plea in which he reserved the right to appeal
the district court’s denial of his motion. Although Patti asserts that neither
7
The First and Second Circuits base their holdings upon the belief that the appearance of
impropriety goes to the heart of the judicial proceedings and fundamental fairness. See
Brinkworth, 68 F.3d at 637–38; Chantal, 902 F.2d at 1020–21. Although the integrity of the
judiciary and the public’s confidence in the judicial system clearly prompted Congress to enact
this statute, Congress expressly provided for waiver in § 455(a) cases. Thus, the statutory
provision itself indicates that the appearance of impropriety, although important, was not as
critical as the fact of impartiality. Moreover, as we have held that other significant issues can be
waived by entering an unconditional guilty plea, this decision is consistent with our precedent.
See, e.g., Fairchild, 803 F.2d at 1124.
9
alternative was viable,8 he did not attempt to exercise either option. As a result,
we find his arguments regarding the futility of these options unavailing.
Thus, the district court’s denial of the motion for recusal under § 455(a) is not
reviewable. We therefore offer no opinion about the merits of Patti’s motion.
II. Sentencing
“We review the district court’s application of the Sentencing Guidelines de
novo, and its findings of fact for clear error.” United States v. Wilson, 183 F.3d
1291, 1300 n.16 (11th Cir. 1999).9
A. Calculation of Loss
We review the district court’s calculation of the amount of loss for clear
error. United States v. Renick, 273 F.3d 1009, 1025 (11th Cir. 2001) (per curiam).
8
With respect to the conditional guilty plea, Patti asserts that both the government and the
district court must accept such a plea and that neither the government nor the district court would
have accepted such a plea if requested. See Chantal, 902 F.2d at 1021 (noting that requiring a
defendant to request an unconditional guilty plea under Federal Rule of Criminal Procedure
11(a)(2) “has even more devastating implications than an outright denial because of the plea of
guilty. The very terms of Rule 11(a)(2) prevent the entry of a conditional plea of guilty without
the consent of the trial judge.”). With respect to the writ of mandamus, Patti concedes that a
defendant can challenge a denial by filing a petition for a writ of mandamus in this Circuit, see
Wyatt ex rel. Rawlins v. Rogers, 92 F.3d 1074, 1081 & n.17 (11th Cir. 1996), but asserts that
writs are issued only in exceptional circumstances, see In re Corrugated Container Antitrust
Litig., 614 F.2d 958, 961–62 (5th Cir. 1980).
9
Although Patti asserts that the district court should have applied a heightened standard of
review at sentencing because of the various enhancements, “it is the settled law of this circuit that
at sentencing, a federal defendant’s due process rights are . . . satisfied by the preponderance of
the evidence standard.” United States v. Jackson, 57 F.3d 1012, 1019 (11th Cir. 1995) (alteration
in original) (internal quotation marks omitted).
10
The district court calculated the tax loss as $4,791,267.18 under the
sentencing guidelines and thus determined that Patti’s base offense level was
twenty-one. Patti asserts that the district court erred in calculating the tax loss,
because it aggregated the corporate and personal tax losses.10
Whether the tax loss can be calculated by aggregating the corporate and
personal tax losses is an issue of first impression in this Circuit. Several of our
sister circuits, however, have addressed this issue. The Second and the Seventh
Circuits found that it is inappropriate to aggregate the corporate tax loss and the
personal tax loss, because doing so overstates the tax revenue lost. See United
States v. Martinez-Rios, 143 F.3d 662, 672 (2d Cir. 1998); United States v.
Harvey, 996 F.2d 919, 920–22 (7th Cir. 1993). The Sixth Circuit took a contrary
view in United States v. Cseplo, 42 F.3d 360, 364–65 (6th Cir. 1994), holding that
the guidelines clearly provide for aggregation and that by aggregating the amounts
the calculation reflects the seriousness of the harm the defendant caused.
We believe that the aggregation of personal and corporate tax losses is
called for under the guidelines. The version of the guidelines that the district court
10
Patti also asserts that the district court failed to make particularized findings pursuant to
Federal Rule of Criminal Procedure 32(c)(1) that each item of tax fraud calculated into the loss
was “willful,” that the district court erred in finding that the money he took from his companies
constituted constructive dividends that should have been reported on his personal tax returns, and
that certain tax adjustments were improper. As we find that these issues were addressed properly
by the district court, we decline to address them further.
11
applied in this case provided that “[i]f the offense involves both individual and
corporate tax returns, the tax loss is the aggregate tax loss from the offenses taken
together.” U.S.S.G. § 2T1.1, cmt. n.7. Thus, as the Sixth Circuit noted, “[t]he
guidelines [we]re very specific about the necessity of aggregating the tax losses.”
Cseplo, 42 F.3d at 364. In addition, a defendant “ha[s] the opportunity and ability
to limit the criminal consequences to one or other of the returns. . . . By choosing
to falsify both returns, [he] ma[kes] the deliberate decision to produce separate
harm to the government with respect to both tax liabilities.” Id. at 364–65
(internal quotation marks omitted). Thus, we believe that the defendant should be
held accountable for both harms, and we do not believe that the possibility of a
lower tax liability had the taxes been reported properly should change that result.
See id. at 364–65 & 365 n.6 (noting that “[i]f [the defendant’s] unorthodox
maneuvers resulted in a higher aggregate tax liability than would have existed
otherwise, that is a risk [he] chose to run when he elected to break the law”).
Furthermore, the sentencing guidelines were amended in 2001, and the
commission adopted the Sixth Circuit’s view. See U.S.S.G. § 2T1.1, cmt. n.7
(providing that “[i]f the offense involved both individual and corporate tax returns,
the tax loss is the aggregate tax loss from the individual tax offense and the
corporate tax offense added together” (emphasis added)). Although Patti asserts
12
that the amendment was substantive, we disagree. The commentary provides that
it “clarifies the prior rule in Application Note 7 of §2T1.1 [sic] that if the offense
involves both individual and corporate tax returns, the tax loss is the aggregate tax
loss from the offenses taken together.” U.S.S.G. supp. to app. C 191 (2001)
(emphasis added) (internal quotation marks omitted). Thus, this recent
amendment further supports our decision to permit the aggregation of corporate
and personal tax losses. See United States v. Perulena, 146 F.3d 1332, 1337 n.11
(11th Cir. 1998) (noting “that amendments that do not effect a substantive change,
but rather are intended only to clarify the rule adopted by a particular guideline . . .
constitute strongly persuasive evidence of how the Sentencing Commission
originally envisioned that the courts would apply the affected guideline”
(alteration in original) (internal quotation marks omitted)).
Thus, the district court properly calculated the tax loss.11
B. Obstruction of Justice
We review the district court’s determination that the defendant’s conduct
warrants an obstruction of justice enhancement for clear error. United States v.
Garcia, 208 F.3d 1258, 1261 (11th Cir. 2000), vacated on other grounds by 531
11
As we find that the district court properly calculated the tax loss, we also find that the
district court properly calculated the fine and restitution amounts.
13
U.S. 1062 (2001). The district court should increase a defendant’s base offense
level by two if
the defendant willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice during the course of
the investigation, prosecution, or sentencing of the instant offense of
conviction, and . . . the obstructive conduct related to (i) the
defendant’s offense of conviction and any relevant conduct; or (ii) a
closely related offense.
U.S.S.G. § 3C1.1.12
Here, there were three grounds upon which the district court relied to
enhance Patti’s sentence. As we find that two of those grounds independently
support the obstruction enhancement, we decline to address the third.13
First, the district court found that Patti feigned amnesia and noted that his
malingering postponed the trial for a year and forced the government to waste time
and resources in evaluating his competency. Patti asserts that the district court
erred in basing the enhancement upon its determination that he feigned amnesia in
12
Patti asserts that the district court erred in applying the 1998 version of the guidelines,
quoted above, in this case. He argues that the 1997 version clearly provides that obstruction can
be considered only with respect to the “instant offense.” We, however, need not consider which
version the district court should have applied, because all of the conduct relied upon by the
district court in this case relates to Patti’s attempts to obstruct the investigation and prosecution
of the instant offense. Thus, under either version, the district court properly relied upon Patti’s
obstructive acts in enhancing his sentence.
13
The district court also based this enhancement upon Patti’s “media campaign.” As there
are two independent grounds to support that enhancement, we need not consider the propriety of
enhancing a defendant’s sentence based upon statements made to the media.
14
his competency hearing, because such a ruling will chill defendants’ willingness to
raise competency issues.14 We, however, disagree and, like the Fifth Circuit, find
that
applying the obstruction enhancement to defendants who willfully
feign incompetency in order to avoid trial and punishment does not
unconstitutionally chill a defendant’s right to seek a competency
hearing. While a criminal defendant possesses a constitutional right
to a competency hearing if a bona fide doubt exists as to his
competency, he surely does not have the right to create a doubt as to
his competency or to increase the chances that he will be found
incompetent by feigning mental illness. . . . [This ruling does not] put
defense counsel to the Hobson’s choice of forgoing competency
hearings for a client who may well be incompetent . . . or requesting
such hearings and exposing the client to the risk of a § 3C1.1
enhancement if he is ultimately found competent. Counsel should
warn his client that feigning incompetency, whether to create doubt as
to his competency so as to prod his attorney into requesting
competency hearings or to convince the court that he cannot stand
trial, will trigger a § 3C1.1 enhancement.
See United States v. Greer, 158 F.3d 228, 237–38 (5th Cir. 1998).
Second, the district court found that Patti was involved in the attempted
arson at his accountant’s office, which was undertaken to destroy documents
relevant to his tax fraud. Patti asserts that there was insufficient evidence to
connect him to the attempted arson and that the district court relied upon
14
Patti also seems to assert that the district court erred, because it failed to connect the
obstruction to any hampering or impeding of testimony. The guidelines, however, provide that
the enhancement is proper when one obstructs “or attempt[s] to obstruct or impede, the
administration of justice.” See U.S.S.G. § 3C1.1 (emphasis added).
15
unreliable hearsay in determining that he was involved in the arson. Although
Patti asserts that the district court based its ruling upon unreliable hearsay, one of
the coconspirators in that arson testified at the sentencing hearing; his testimony
about the statements of fellow coconspirators did not constitute hearsay.15 See
Fed. R. Evid. 801(d)(2)(E) (“A statement is not hearsay if . . . [t]he statement is
offered against a party and is . . . a statement by a coconspirator of a party during
the course and in furtherance of the conspiracy.”). Moreover, even if this
testimony were considered hearsay, the law of this Circuit clearly provides that
reliable hearsay can be considered at sentencing. Wilson, 183 F.3d at 1301 (“A
court may consider any information (including hearsay), regardless of its
admissibility at trial, in determining whether factors exist that would enhance a
defendant’s sentence . . . .”). The district court may rely upon such evidence “as
long as the evidence has sufficient indicia of reliability, the court makes explicit
findings of fact as to credibility, and the defendant has an opportunity to rebut the
evidence.” United States v. Anderton, 136 F.3d 747, 751 (11th Cir. 1998) (per
curiam). As the district court found the coconspirator’s testimony credible and
there was sufficient indicia of reliability, the district court properly relied upon the
15
Essentially, the coconspirator testified that other coconspirators told him that the
objective of the arson was to destroy two documents by setting fire to the accountant’s office.
16
coconspirator’s testimony about the arson.
Thus, the district court did not err in enhancing Patti’s sentence under
section 3C1.1.
CONCLUSION
Accordingly, we AFFIRM.
17