United States v. Mizell

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT

____________

No. 95-10593
____________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CYNTHIA MIZELL, also known as Cynthia L
Walker,

Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of Texas

July 1, 1996

Before KING, DAVIS, and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Cynthia Mizell appeals her convictions for conspiracy to

commit robbery affecting interstate commerce and robbery affecting
interstate commerce, in violation of 18 U.S.C. § 1951. Finding no

reversible error, we affirm.

I

Mizell, John Walker, and Kevin Turnage drove to the Armored

Transport Company (“ATC”) in Fort Worth, Texas, and Walker robbed

two armored car guards at gunpoint, stealing more than $400,000.

As a result of these events, Turnage pleaded guilty to misprision
of a felony in exchange for his cooperation with the government’s

prosecution of Mizell.1 Mizell was charged by indictment with

conspiracy to commit robbery affecting interstate commerce and

robbery affecting interstate commerce. The government then filed

a superseding information, charging Mizell with misprision of a

felony, in violation of 18 U.S.C. § 4.

Mizell agreed to waive indictment on the superseding

information and pleaded guilty to the misprision of a felony charge

in exchange for the government’s agreement to dismiss the

indictment containing the robbery charges. Pursuant to her guilty

plea, Mizell stipulated that she conspired with Walker and others

to commit robbery and that she actually participated with Walker

and others in committing robbery of the armored car guards. At

Mizell’s plea agreement hearing, the district court rejected the

plea agreement based upon its finding, as required by § 6B1.2(a) of

the sentencing guidelines,2 that the misprision charge did not

adequately reflect the seriousness of Mizell’s actual offense

behavior. Consequently, Mizell withdrew her guilty plea, and both

the superseding information and the original indictment were set

for trial.

1
Misprision of a felony occurs when an individual “having knowledge
of the actual commission of a felony cognizable by a court of the United States,
conceals and does not as soon as possible make known the same to some judge or
other person in civil or military authority under the United States.” 18 U.S.C.
§ 4.
2
Section 6B1.2 of the sentencing guidelines provides, “In the case of
a plea agreement that includes the dismissal of any charges . . . the court may
accept the agreement if the court determines, for reasons stated on the record,
that the remaining charges adequately reflect the seriousness of the actual
offense behavior.” U.S.S.G. § 6B1.2.

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 Before the trial began, the district court gave Mizell an

opportunity to ask that the information charging the misprision

offense be dismissed. Mizell rejected this suggestion and stated

that she wanted to leave the information pending, so the case would

be tried to the jury on both counts of the indictment as well as

the lesser count in the information. The jury returned guilty

verdicts on the information and on both counts of the indictment.

Mizell appealed her convictions. This Court affirmed Mizell’s

conviction for misprision, but reversed and remanded her conspiracy

and robbery convictions for a new trial. United States v. Mizell,

No. 93-1512 (5th Cir. Oct. 13, 1994). A second jury convicted

Mizell of conspiracy and robbery affecting interstate commerce.

Mizell now appeals these convictions, arguing several points of

error, each designed to demonstrate that she was denied a fair

trial.

II

Mizell argues that the district court violated her Sixth

Amendment right to present witnesses on her own behalf by not

allowing her to elicit certain testimony from a prosecution

witness. The government contends that the district court’s actions

constituted a proper limitation of Mizell’s right to cross-examine

the witness.

Kevin Turnage testified at trial as a witness for the

prosecution. He testified about his involvement in the robbery,

the roles that the other participants played, and his plea

agreement with the government. As to Mizell, Turnage testified

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that she drove the car to the scene of the robbery, and that she

participated in counting the money after the robbery. In contrast,

Mizell testified that she did not drive the car to the scene of the

robbery, that she had no prior knowledge that a robbery was going

to take place when they drove to the ATC, and that she did not help

count the money after the robbery. Mizell’s attorney, Frank

McCown, cross-examined Turnage concerning the events surrounding

the robbery, his plea agreement with the government, dishonest

statements that he had given the FBI, and his drinking problem and

how it affected his memory of the robbery.

McCown then attempted to question Turnage about the FBI

approaching him after receiving Mizell’s account of the robbery,

which contradicted what Turnage had told them earlier. The

district court admonished McCown to stay within the scope of direct

examination.3 McCown then informed the district court that

“probably everything else” he had to ask Turnage was outside the

scope of the direct examination and requested that Turnage be

recalled during the defense’s case-in-chief. The district court

denied the request because Mizell had not listed Turnage on her

witness list, as required by the local discovery rules.4

At the end of trial, McCown made a proffer of the evidence

3
Specifically, McCown asked Turnage, “There was a time that the FBI
came back to you and told you that Cindy Mizell had now given them a statement
and it was different from what you had told them; is that not correct, sir?”
4
Local Rule 8.1(b) of the Local Rules for the Northern District of
Texas states, “At least 3 days before trial, each counsel shall file and deliver
to opposing counsel, the Court, and the court reporter, a list of all exhibits
and witnesses, except those offered solely for impeachment.” The government
had disclosed Turnage as one of its witnesses that it intended to call at trial,
but Mizell had not.

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that he wanted to establish through additional examination of

Turnage. McCown wanted to ask Turnage about inconsistent

statements that he had made to the FBI about Mizell’s and his own

involvement in the robbery and whether implicating Mizell in the

robbery was Turnage’s only chance for leniency with the government.

In addition, McCown wanted to establish that John Walker had made

various threats against Turnage and his family in the event that

Turnage implicated Walker in the robbery. These threats, Mizell

argues, would indicate that Walker was a violent man. Mizell

argues further that this testimony would add credence to Mizell’s

claim that she feared Walker and therefore was afraid to report the

robbery after it occurred.5

A

McCown told the district court that he did not list Turnage on

his witness list because he assumed that he would be able to

inquire into the proffered issues on cross-examination. A district

5
Specifically, McCown wanted to question Turnage about the
contradictions in his statements to the FBI. In his second statement to the FBI,
Turnage allegedly said that he believed that Mizell had driven the car to the
robbery, not that he knew she had. Also, in his first statement, Turnage
allegedly did not tell the FBI that he asked for $20,000 from the robbery, and
he stated that he had not been involved in the robbery. McCown also wanted to
question Turnage as to whether he was using drugs during the time of the robbery.
Additionally, McCown wanted to ask Turnage if he told the FBI that he tried
to give the money back from the robbery, that Walker got mad and said that he
would kill him, and that if he was implicated in the robbery he would hire
someone to get even. McCown wanted to ask Turnage if he believed that Walker was
a man to be feared and whether Turnage was afraid of him. McCown also wanted to
inquire whether Walker had asked Turnage to follow another participant in the
robbery, Bill Brown, to find out where he lived, if Turnage had in fact followed
Brown and told Walker where Brown lived, and whether Turnage so complied because
he was afraid of Walker. Two weeks after the robbery, Walker allegedly
threatened to kill Turnage and his family if any of the information concerning
the robbery was disclosed, and McCown wanted to ask Turnage if he believed
Walker’s threats. Finally, McCown wanted to ask Turnage whether it was true that
unless he gave some testimony that Mizell was guilty, he would not have any
incriminating information to use to plea bargain with the government.

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court has broad discretion to reasonably restrict cross-

examination; however, this discretion is limited by the Sixth

Amendment. United States v. Cooks, 52 F.3d 101, 103 (5th Cir.

1995). “Cross-examination to expose a witness’[s] motive for

testifying is always relevant as discrediting the witness and

affecting the weight of his testimony, and is especially important

with respect to witnesses who may have substantial reason to

cooperate with the government.” Id. at 103-04 (citation omitted).

This right is particularly important when the witness is critical

to the prosecution’s case. Id. at 104. A “criminal defendant

states a violation of the Confrontation Clause by showing that he

was prohibited from engaging in otherwise appropriate cross-

examination designed to show a prototypical form of bias on the

part of the witness, and thereby to expose to the jury the facts

from which jurors . . . could appropriately draw inferences

relating to the reliability of the witness.” Delaware v. Van

Arsdall, 475 U.S. 673, 680, 106 S. Ct. 1431, 1436, 89 L. Ed. 2d 674

(1986) (citation omitted); cf. Cooks, 52 F.3d at 104 (“The

constitutional right is not violated, however, if the jury ha[s]

sufficient information to appraise the bias and motives of the

witness.”).

We find that McCown’s questions concerning inconsistent

statements that Turnage had made to the FBI and Turnage’s motive

for implicating Mizell were probative of Turnage’s credibility and

were therefore proper subjects on cross-examination. See FED. R.

EVID. 611(b) (“Cross-examination should be limited to the subject

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matter of the direct examination and matters affecting the

credibility of the witness.”). Turnage was the prosecution’s sole

witness as to Mizell’s direct involvement in the robbery; none of

the other robbery participants testified at Mizell’s trial.

Therefore, only Turnage could directly contradict Mizell’s own

testimony that she did not drive the car to the scene of the

robbery and that she did not know that a robbery was about to take

place when she went in the car with John Walker and Turnage.6

Certainly, an earlier statement by Turnage to the FBI that he

“believed,” but did not know, that Mizell drove the car to the ATC

would have been probative of his credibility and his ability to

remember Mizell’s role in the crime. In addition, if implicating

Mizell in the robbery was Turnage’s only opportunity for leniency,

this fact could also affect his credibility. By not allowing

Mizell to impeach Turnage’s credibility with this evidence, the

district court restricted Mizell’s cross-examination of Turnage.

However, such restriction does not arise to the level of a

Sixth Amendment violation unless such restriction was unreasonable.

Cooks, 52 F.3d at 103. In order to determine whether a district

court’s restriction of cross-examination is reasonable, we must

assess whether the jury was given adequate information to appraise

the bias and motives of the witness. Id. The district court

allowed McCown to ask several questions concerning Turnage’s

6
Turnage testified at trial that Mizell drove to the ATC without any
directions from Walker as to where they were going. This testimony impeached
Mizell’s claim that she did not have prior knowledge that a robbery was about to
take place.

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inconsistent statements to the FBI and his motive to testify

against Mizell. On cross-examination, Turnage admitted that in his

first statement to the FBI, he lied about Mizell’s involvement in

the robbery. McCown was also able to ask Turnage whether he had

initially told the FBI that he and Walker had discussed committing

the robbery several days before they actually did commit the crime.

Turnage denied making this statement to the FBI. The statement

would have contradicted his testimony at trial that he did not know

that they were going to commit a robbery until he was already in

the car on the way to the ATC. The prosecution also elicited

testimony from Turnage concerning inconsistent statements he had

given the FBI. On direct examination, Turnage admitted that when

he first spoke with the FBI, he stated that he did not drive the

car, contrary to Turnage’s testimony at trial that he drove the car

away from the robbery. Turnage also admitted that he lied to the

FBI when he stated that he tried to return the robbery proceeds

that he received.

Concerning his plea bargain, McCown asked Turnage, who was

having trouble remembering details from the night of the robbery,

whether he had selectively remembered those things about the

robbery that were necessary to get him the plea bargain. Turnage

responded that he remembered the truth. McCown also asked Turnage

whether it was his job as part of fulfilling his contract with the

government to implicate Mizell in the robbery. When Turnage

responded that his job was simply to be honest and cooperate,

McCown pointed out the 5K motion which recommended lenient

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treatment for Turnage as a result of his cooperation with Mizell’s

prosecution.7 This motion was also introduced into evidence.

Having exhaustively reviewed the record, we conclude that the

jury had adequate information with which to assess Turnage’s

credibility. Turnage admitted on direct and cross-examination that

he had made inconsistent statements to the FBI concerning his and

Mizell’s involvement in the robbery. The jury was also made well

aware of the fact that Turnage had a tremendous amount to gain by

implicating Mizell in the robbery. Turnage testified that if he

did not cooperate with the government, he potentially faced forty

years in prison, as opposed to the three years which he received

because of his cooperation. The excluded impeachment evidence

would have merely been cumulative of the impeachment evidence

already admitted at trial. Therefore, we conclude that no

constitutional error was committed by the district court’s

limitation of Mizell’s cross-examination of Turnage. See United

States v. Hamilton, 48 F.3d 149 (5th Cir. 1995) (holding that,

because there was so much additional impeachment evidence admitted

in the case, further impeachment of a witness whose credibility was

vital to the prosecution’s case “could not have affected the trial

so as to prejudice [the defendant’s] substantial rights”).

B

Some of the evidence that McCown wished to elicit from

7
Section 5K1.1 of the sentencing guidelines provides that the
government may make a motion asking the sentencing judge to depart downward from
the guidelines when a defendant “has provided substantial assistance in the
investigation or prosecution of another person who has committed an offense.”
U.S.S.G. § 5K1.1.

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Turnage, was not proper evidence for cross-examination because it

was outside the scope of direct examination and was not probative

of Turnage’s credibility. Mizell argues that the district court’s

refusal, based on the local discovery rules, to allow her to recall

Turnage violated her rights under the Compulsory Clause of the

Sixth Amendment.8

A defendant’s Sixth Amendment right to present witnesses in

her own defense “is an essential attribute of the adversary

system.” Taylor v. Illinois, 484 U.S. 400, 408, 108 S. Ct. 646,

652, 98 L. Ed. 2d 798 (1988). However, this right is limited and

must be weighed against the countervailing interests in “the

integrity of the adversary process, . . . the interest in the fair

and efficient administration of justice, and the potential

prejudice to the truth-determining function of the trial process.”

Id. at 414-15, 108 S. Ct. at 656. The Supreme Court has held that

a district court can preclude a defendant from calling a witness as

punishment for the defendant’s willful violation of a discovery

order. See id. at 414, 108 S. Ct. at 655 (holding that preclusion

of a witness’s testimony was appropriate where the defendant’s

violation of a discovery request was “willful and motivated by a

desire to obtain a tactical advantage”). However, the Supreme

Court stated that in most cases “alternative sanctions are adequate

8
The Compulsory Clause of the Sixth Amendment provides, “In all
criminal prosecutions, the accused shall enjoy the right . . . to have compulsory
process for obtaining witnesses in his favor.” U.S. CONST. amend. VI. The
Supreme Court has held that the right to have witnesses present in the courtroom
necessarily also involves the right to have them heard by the trier of fact.
Taylor v. Illinois, 484 U.S. 400, 409, 108 S. Ct. 646, 653, 98 L. Ed. 2d 798
(1988).

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and appropriate.” Id.

Taylor allows a district court to inquire into a party’s

reasons for failing to comply with a discovery rule, as the

district court did in Mizell’s case. Id. at 415, 108 S. Ct. at

656. McCown stated that he did not list Turnage on his witness

list because he believed he could inquire into these subjects on

cross-examination. However, McCown stated at oral argument that he

was aware of the district court’s strict policy of limiting cross-

examination to the subject matter of the direct examination and was

not surprised by the district court’s limits. There is no

indication though that Mizell’s omission of Turnage’s name on her

witness list was willful or done out of an attempt to gain an

unfair advantage over the prosecution. Indeed, the district court

did not find that Mizell willfully violated the discovery rules,

nor did it consider whether Mizell’s Sixth Amendment right

outweighed the efficiency and fairness concerns cited in Taylor.

Instead, the district court erroneously concluded that preclusion

was permissible for any discovery violation. See Michigan v.

Lucas, 500 U.S. 145, ___, 111 S. Ct. 1743, 1748, 114 L. Ed. 2d 205

(1991) (“We did not hold in Taylor that preclusion is permissible

every time a discovery rule is violated. Rather, we acknowledged

that alternative sanctions would be adequate and appropriate in

most cases.”) (citation omitted). As a result, Mizell’s rights

under the Compulsory Clause of the Sixth Amendment were violated by

the court’s preclusion of Mizell’s witness.

However, our inquiry does not end here, for a violation of a

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defendant’s right to present witnesses on her own behalf does not

constitute reversible error if the error was harmless. United

States v. Alexander, 869 F.2d 808, 812 (5th Cir. 1989), cert.

denied, 493 U.S. 1069, 110 S. Ct. 1110, 107 L. Ed. 2d 1018 (1990).

The precluded testimony concerned certain threats Walker had made

to kill Turnage and his family, or to “get even,” if Turnage

implicated Walker in the robbery. Mizell wanted this evidence to

establish Turnage’s fear of Walker to add credence to her testimony

that she was afraid of Walker.

Mizell’s fear of Walker was central to her defense because she

contended at trial that she had a “dependent personality disorder”

which caused her to play a submissive role in her relationship with

Walker and to be overly accommodating to him. According to Mizell,

as the relationship progressed, she learned about Walker’s violent

tendencies and became too afraid to leave him or do anything which

would provoke him. This fear, Mizell argued, explained why she

went in the car with Walker on the night of the robbery without

inquiring as to where they were going and why she did not report

the robbery after it occurred. We agree that Turnage’s admission

that he too feared Walker could have made Mizell’s fear of Walker

appear more credible to the jury.

However, Mizell presented such a substantial amount of

evidence concerning Walker’s violent nature, his threats, his large

stature, and his proficiency in karate,9 that any additional

9
Specifically, Mizell presented evidence which established that Walker
was about six feet three inches tall, weighed around two hundred ten pounds, had
a very muscular frame, was a black belt in karate, and made his living as a

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testimony from Turnage would have been cumulative. Mizell’s

stepfather, Frank Johnson, testified about Walker’s violent nature

and stories Walker had told him about killing and harming people

who had crossed him.10 Johnson stated that he was afraid of Walker,

even though he was not a man who is easily intimidated. Mizell

also testified that Walker told her the same stories about violent

acts he had committed, that Walker kept guns, that he abused her

and her son by putting them in painful karate holds, and that she

was afraid of him.

Mizell also testified about the threats that Walker had

allegedly made to Turnage and Brown.11 Given the overwhelming

amount of evidence that Mizell presented regarding Walker’s

frightening propensities, and the lack of contradictory evidence on

the issue, we conclude that the district court’s preclusion of

Turnage’s testimony was harmless.

III

Mizell states that the district court erred in denying her

pre-trial motion to dismiss the indictment containing the

conspiracy and robbery charges on double jeopardy, res judicata,

and collateral estoppel grounds. Before Mizell was re-tried on the

bouncer in bars and nightclubs.
10
Johnson testified that Walker told him that he once killed a man who
had killed his pregnant wife. Walker also told Johnson that he had once taken
a man who was “bothering him” to the woods, tied him to a tree, disrobed him, and
then placed a lit highway fuse flare in the man’s rectum.
11
Mizell stated that Walker had gone to Turnage’s house, threatened his
life, and beat him up. In addition, Mizell testified that Walker stated that he
should kill Bill Brown, because Walker suspected he was cooperating with the
government. Walker therefore had Turnage follow Brown home from work to find out
where he lived.

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conspiracy and robbery charges, she moved to dismiss the indictment

on the grounds that by convicting her of misprision of a felony,

the jury had conclusively determined that someone other than her

had committed the crimes of conspiracy and robbery.

Mizell’s only argument on this issue is that a defendant can

only be convicted of misprision of a felony if the government

proves that someone other than the misprision defendant committed

the felony.120. In her reply brief, Mizell argues, for the first time on

appeal, that she did not “voluntarily” waive her right against self-incrimination
when she insisted on not dismissing the misprision offense at the first trial.

While we acknowledge that the district court did not expressly make Mizell aware
of the fact that she was waiving her right against self-incrimination by
insisting on being tried on the misprision offense, any Fifth Amendment defense

that Mizell may have is relevant only to her misprision conviction. Mizell
therefore should have raised this issue when she appealed her misprision
13
conviction, not on her appeal of her conspiracy and robbery convictions.

Neither the elements of misprision,14 nor our opinion in United States v.
Warters, 885 F.2d 1266, 1275 (5th Cir. 1989), supports Mizell’s argument.

Warters acknowledges that “[m]isprision is normally not committed by one of the
perpetrators of the underlying offense.” Id. However, this observation is not

based on any requirement that a person other than the defendant commit the
underlying felony. Rather, the observation stems from the fact that the

12
In her reply brief, Mizell argues, for the first time on appeal, that
she did not “voluntarily” waive her right against self-incrimination when she
insisted on not dismissing the misprision offense at the first trial. Any Fifth
Amendment defense that Mizell may have had to her misprision conviction is
irrelevant to her conspiracy and robbery convictions. Mizell therefore should
have raised this issue when she appealed her misprision conviction, not on her
appeal of her conspiracy and robbery convictions.

14
See supra note 1 (stating requirements of 18 U.S.C. § 4).

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defendant would normally assert her “defense that the failure to make [the
felony] known was an exercise of the constitutional right to refrain from self-
incrimination.” Id. Warters acknowledges, however, that it would be possible

for a perpetrator of the crime to be convicted for misprision, because a
defendant can always waive his Fifth Amendment defense by pleading guilty. Id.
We conclude, therefore, that the district court did not err in denying Mizell’s

motion to dismiss the indictment.
IV

Mizell argues that the district judge interfered in her trial to such a

degree that became an advocate for the prosecution. In other words, Mizell
contends that the district judge’s actions created the appearance that he was
partial to the government’s position, thus violating her due process right to a

fair trial. “A federal district judge may comment on the evidence, question

witnesses, bring out facts not yet adduced, and maintain the pace of the trial
by interrupting or setting time limits on counsel.” United States v. Wallace,

32 F.3d 921, 928 (5th Cir. 1994). A judge’s behavior may rise to the level of
a constitutional violation, however, if “the district judge’s actions, viewed as

a whole, must amount to an intervention that could have led the jury to a

predisposition of guilt by improperly confusing the functions of judge and
prosecutor.” United States v. Bermea, 30 F.3d 1539, 1569 (5th Cir. 1994), cert.
denied, ___ U.S. ___, 115 S. Ct. 1825, 131 L. Ed. 2d 746 (1995). The judge’s

actions must be both “quantitatively and qualitatively substantial to meet this

test.” Id.
A
The district judge actively managed Mizell’s trial, constantly interrupting

both the prosecutors and the defense attorneys to remind them not to repeat
questions they had already asked and to stay within the scope of the subject
matter developed on direct examination when they were cross-examining a witness.
The district judge also strongly admonished the defense attorneys several times;

however, in most instances, the admonishments were given outside the hearing of
the jury. Having carefully reviewed the record, we conclude that the district

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judge’s actions in Mizell’s case were within his broad discretion to manage the
pace and objectivity of the trial. Additionally, we note that any confusion that
the district judge may have created concerning his role in the proceedings was

ameliorated by the jury instruction that clarified the judge’s role in the
trial.15 See id. at 1571-72 (stating that the Fifth Circuit has held that a
curative jury instruction, like the one given in this case, “can operate against

a finding of constitutional error”).
B

Mizell contends that the district judge’s interrogation of her expert

witness, Dr. Schmitt, amounted to a comment on the weight of Schmitt’s testimony
and therefore violated her due process rights. As we have already noted, “[a]
federal district court can interrogate witnesses, whether called by itself or by

a party.” FED. R. EVID. 614(b). Because Mizell failed to object to the district

court’s interrogation of Schmitt either at the time of interrogation or at the
next available opportunity, we review the district court’s action for plain

error. See FED. R. EVID. 614(c) (objections to the court’s interrogation of
witnesses “may be made at the time or at the next available opportunity when the

jury is not present”); United States v. Calverley, 37 F.3d 160, 162 (5th Cir.

1994) (en banc), cert. denied, ___ U.S. ___, 115 S. Ct. 1266, 131 L. Ed. 2d 145
(1995). “Plain error occurs when the error is so obvious and substantial that
failure to notice and correct it would affect the fairness, integrity, or public

reputation of judicial proceedings and would result in manifest injustice.”

United States v. Puig-Infante, 19 F.3d 929, 950 (5th Cir.), cert. denied, ___
U.S. ___, 115 S. Ct. 180, 130 L. Ed. 2d 115 (1994).
To support her theory that she was present at the robbery but did not

15
The district judge admonished the jury:

do not assume from anything I may have said or done during the trial,
including any questions I may have asked, that I have any opinion
concerning any of the issues in the case. Except for the instructions to
you on the law, you should disregard anything I may have said during the
trial in arriving at your own findings as to the facts.
In addition the judge instructed the jury that they were the “sole judges of the
credibility or ‘believability’ of each witness and the weight to be given the
witness’ testimony.”

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“participate” in it, Mizell offered the testimony of psychologist Dr. Schmitt.
Schmitt testified that Mizell suffered from a “dependent personality disorder”
and an “accommodation syndrome,” which explained why Mizell would accompany John

Walker, without question, to the robbery, and why she would continue to live with
him afterwards.
Mizell’s claim is based on the following exchanges that occurred at trial.

In response to Schmitt’s testimony concerning “John Walker’s style,” the district
judge elicited testimony from Schmitt indicating that Schmitt had never met

Walker; he was only testifying from what Mizell had told him.16 Later, in an

effort to speed up the prosecution’s cross-examination of Schmitt, the district
judge stated, “I think he’s told us that all he knows about this case is what
she’s told him and what he heard sitting out there in the audience a few minutes

ago.” Mizell also complains of the district judge’s questions to Schmitt in

response to which Schmitt admitted that a person with a personality disorder can
do things and have relationships that are not caused by the disorder.17 Finally,

16
The following exchange took place:

SCHMITT: John Walker’s style was to tell violent stories. His style was to
carry his guns with him, even in the living room, even while
watching TV. To pull it out. To play with it. To fiddle with it.
And then if somebody knocked on the door, to stick it under the
cushion. The point being that she knew that, “Now, here’s a man who
not only likes his guns, but a man with [sic] tells violent
stories.” But playing with the gun reinforced, I would say, her
fear of him and her belief that he would hurt her.

COURT: Let me clarify something. Do you know Mr. Walker?
SCHMITT: No.

COURT: You have never talked to him?
SCHMITT: No, sir.
COURT: This is all based on something Ms. Mizell told you?

SCHMITT: It’s based on examples of his behavior that she told me about.
17
On cross-examination of Schmitt, the following exchange took place:

PROSECUTOR: Are you also able to determine if a person who suffers from
personality disorder voluntarily buys land or a house, for instance,
or if they’re doing that only because they’re feeling an obligation
to do so?

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the district judge asked Schmitt about his practice in forensic psychology.
Schmitt informed the court that forensic psychology refers to testifying for
lawyers and working with people in legal situations. In response to a question

from the district judge, Schmitt testified that one-third of his income is
derived from doing legal work.
We conclude that the district judge’s interrogation of Schmitt did not

amount to plain error. The district judge’s questions were aimed at eliciting
clarifying testimony, and any effect on Mizell’s case was insignificant.

Moreover, any error was again corrected by the court’s instructions to the jury.

VI
Finally, Mizell argues that the district judge erred in refusing to recuse

himself from her retrial, pursuant to 28 U.S.C. § 455.18 Even if the

discretionary rules regarding recusal did not mandate that the district judge
recuse himself, Mizell urges us to create a mandatory recusal rule in cases where

SCHMITT: With the detailed knowledge of that situation, I would know.

COURT: Let me get some clarification on something.

PROSECUTOR: Yes, Your Honor.
COURT: Help me understand this: If a person has a personality disorder--

SCHMITT: Yes, sir.
COURT: --do they do anything that’s not caused by that disorder?

SCHMITT: Yes, sir.
COURT: In other words, they can do things that are not caused by the
disorder?
SCHMITT: Certainly. Yes, sir.

COURT: Or that’s not caused by the relationship that exists because of the
disorder?

SCHMITT: They can, yes sir.
COURT: Go ahead.
18
Prior to her retrial, Mizell filed a motion to transfer the case to
another court, because, according to Mizell, the court had already determined
issues relating to her guilt both at her plea agreement hearing and when
sentencing her for the misprision charge.

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the district judge has made determinations in earlier proceedings concerning the
ultimate issues of the case.
Mizell asserts as grounds for recusal events that occurred before and after

her first trial for misprision, conspiracy to commit robbery, and robbery.
First, prior to Mizell’s first trial, the district judge rejected Mizell’s plea
agreement that provided for dismissal of the indictment charging her with

conspiracy and robbery. The district judge refused to accept the plea agreement
because he could not find that the misprision offense, to which Mizell wished to

plead guilty, would adequately reflect the gravity of her actual offense

behavior, as required by U.S.S.G. § 6B1.2(a)19 and FED. R. CRIM. P. 11(e).20

19
The district judge stated the following at Mizell’s plea agreement
hearing:

COURT: So what it finally boils down to is whether the dismissal of
Counts 1 and 2 in a conviction and sentencing on the information, if
those things satisfy the requirements of Section 6B1.2 . . . .
Under the plea she’s made the statutory maximum is 3 years.
The guideline is 37 months, which, as a practical matter, makes the
guideline 36 months because of the statutory maximum.
If she were to be convicted of the offenses charged in the
indictment, . . . the imprisonment range would have been 78 to 97
months.
Well, the potential would be almost three times the range that
exists under the misprision charge.
And, frankly, I would have to think some more if it made the
difference on how the potential on a gun count would factor into
this, and perhaps even the money laundering or structuring.
But, without getting to those, I don’t think I can make the
determinations that are required to be made by 6B1.2(a) as to this
plea agreement.

The prosecutor then explained that the plea agreement was made partly
because of Mizell’s cooperation with the government, and partly because of what
the prosecutor “considered to be a key piece of evidence against Mizell’s actual
involvement with the robbery had been retracted by Mr. Turnage.” In compliance
with U.S.S.G. § 6B1.2(a), which requires that the court state its reasons for
rejecting a plea agreement in the record, the district court detailed the facts
indicating Mizell’s involvement in the crimes which had been introduced at the
plea agreement hearing and stated that he believed the government could get the
case to the jury on the conspiracy and robbery charges. As a result, the
district court concluded that it could not make the required finding under
§ 6B1.2(a) to accept the plea agreement.
20
FED. R. CRIM. P. 11(e) details the plea agreement procedure. Rule
11(e)(2) provides, “If a plea agreement has been reached by the parties, the
court shall, on the record, require the disclosure of the agreement in open court
. . . . If the agreement [calls for the dismissal of charges], the court may
accept or reject the agreement . . . .”

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Further, at sentencing following Mizell’s first trial, the district judge
accepted the recommendation of the Presentence Report and increased Mizell’s
sentence for obstruction of justice because he found that Mizell lied when she

testified that she had not driven the car to the robbery scene.21 These two
instances demonstrate, according to Mizell, that the district judge had
formulated an opinion as to the strength of the prosecution’s case and her guilt

which prevented him from being impartial.
Section 455(a) provides that any judge “shall disqualify himself in any

proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C.

§ 455(a). Section 455(b)(1) provides that the judge “shall also disqualify
himself . . . [w]here he has a personal bias or prejudice concerning a party, or
personal knowledge of disputed evidentiary facts concerning the proceeding.” We

review a district judge’s decision not to recuse himself for abuse of discretion.

Matter of Hipp, Inc., 5 F.3d 109, 116 (5th Cir. 1993).
In Liteky v. United States, 510 U.S. 540, 114 S. Ct. 1147, 127 L. Ed. 2d

474 (1994), the Supreme Court addressed the circumstances which could necessitate
the recusal of a judge for “impartiality,” pursuant to § 455(a), or for “bias or

prejudice,” pursuant to § 455(b)(1). The specific issue before the Liteky Court

was whether the “extrajudicial source” doctrine applied to § 455(a).22 The Court
held that the extrajudicial nature of a judge’s opinion is a factor to consider
in analyzing whether recusal is necessary; however, it is not determinative. Id.

at ___, 114 S. Ct. at 1156. The “extrajudicial source” doctrine, the court

explained, was merely one application of the pejorativeness requirement of the
terms “impartiality,” and “bias or prejudice” as they are used in §§ 455(a) and

21
Section 3C1.1 of the sentencing guidelines provides, “If the
defendant willfully obstructed or impeded, or attempted to obstruct or impede,
the administration of justice during the investigation, prosecution, or
sentencing of the instant offense, increase the offense level by 2 levels.”
Committing perjury is one of the ways that a defendant can obtain a two-level
upward adjustment under § 3C1.1. U.S.S.G. § 3C1.1, comment. (n.3(b)).
22
The “extrajudicial source” doctrine, which the Liteky Court termed
as a factor rather than a doctrine, provides that “matters arising out of the
course of judicial proceedings are not a proper basis for recusal.” Liteky, 510
U.S. at ___, ___, 114 S. Ct. at 1157, 1151.

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455(b)(1). Id. at ___, ___, 114 S. Ct. at 1155, 1156. This pejorativeness
requirement mandates that a judge be recused under § 455(b)(1) when his “judicial
predispositions go beyond what is normal and acceptable,” id. at ___, 114 S. Ct.

at 1155,23 and under § 455(a) when his predisposition is “wrongful or
inappropriate.” Id. at ___, 114 S. Ct. at 1156.24
In explaining acceptable predispositions that a judge might possess, the

Court noted that “judicial rulings alone almost never constitute valid basis for
a bias or partiality motion.” Id. at ___, 114 S. Ct. at 1157. The Court

continued, “In and of themselves (i.e., apart from surrounding comments or

accompanying opinion), [the rulings] cannot possibly show reliance upon an
extrajudicial source; and can only in the rarest circumstances evidence the
degree of favoritism or antagonism required . . . when no extrajudicial source

is involved.” Id. These opinions, which are “formed by the judge on the basis

of facts introduced or events occurring in the course of the current proceedings,
or of prior proceedings, do not constitute a basis for a bias or partiality

motion unless they display a deep-seated favoritism or antagonism that would make
fair judgement impossible.” Id. Opinions that a judge forms based on

information that he acquires in earlier proceedings are also “not subject to

23
The Court provided an example of the pejorative connotation of these
words:
Not all unfavorable disposition towards an individual (or his case) is
properly described by [the] terms [bias or prejudice]. One would not say,
for example, that world opinion is biased or prejudiced against Adolf
Hitler. The words connote a favorable or unfavorable disposition or
opinion that is somehow wrongful or inappropriate, either because it rests
upon knowledge that the subject ought not to possess (for example, a
criminal juror who has been biased or prejudiced by receipt of
inadmissible evidence concerning the defendant’s prior criminal
activities), or because it is excessive in degree (for example, a criminal
juror who is so inflamed by properly admitted evidence of a defendant’s
prior criminal activities that he will vote guilty regardless of the
facts).
Id. at ___, 114 S. Ct. at 1155.
24
To explain the type of partiality which requires recusal, the Court
stated, “A prospective juror in an insurance-claim case may be stricken as
partial if he always votes for insurance companies; but not if he always votes
for the party whom the terms of the contract support.” Id. at ___, 114 S. Ct.
at 1156.

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deprecatory characterizations as ‘bias’ or ‘prejudice,’” for “[i]t has long been
regarded as normal and proper for a judge to sit in the same case upon its
remand, and to sit in successive trials involving the same defendant.” Id. at

___, 114 S. Ct. at 1155.
In Liteky, the defendants had moved to disqualify the trial judge from
their criminal trial, pursuant to § 455(a), based on his behavior at an earlier

trial of one of the defendants.25 Id. at ___, 114 S. Ct. at 1151. After
explaining the role that the “extrajudicial source” should play in recusal

jurisprudence, the Supreme Court affirmed the lower courts’ denials of the

disqualification motion. Id. at ___, 114 S. Ct. at 1158. The Court concluded
that the judge’s actions of which the petitioners complained consisted of
“judicial rulings, routine trial administration efforts, and ordinary

admonishments (whether or not legally supportable) to counsel and to witnesses.”

Id. Moreover, “All occurred in the course of judicial proceedings, and neither
(1) relied upon knowledge acquired outside such proceedings nor (2) displayed

deepseated and unequivocal antagonism that would render fair judgment
impossible.” Id.

Following Liteky, we conclude that the district judge did not abuse his

discretion in denying Mizell’s motion to transfer the case. The grounds for
recusal that Mizell asserts consist of judicial rulings which the district judge
was required to make. See U.S.S.G. § 3C1.1; United States v. Crowell, 60 F.3d

199, 204 (5th Cir. 1995) (stating that the district court has a duty to take an

25
The defendants in Liteky claimed that recusal was necessary because
of the judge’s following acts at the earlier trial of one of the defendants:

stating that at the outset of the trial that its purpose was to try a
criminal case and not to provide a political forum; observing after [the
defendant’s] opening statement (which described the purpose of his
protest) that the statement ought to have been directed toward the
anticipated evidentiary showing; limiting defense counsel’s cross-
examination; questioning witnesses; periodically cautioning defense
counsel to confine his questions to issues material to trial; similarly
admonishing witnesses to keep answers responsive to actual questions
directed to material issues; admonishing [the defendant] that closing
argument was not a “political forum”; and giving [the defendant] what the
defendants considered to be an excessive sentence.
Id. at ___, 114 S. Ct. at 1151.

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active role in evaluating a plea agreement once it has been disclosed to the
court). We hold that to the extent that the district judge formed any opinion
about Mizell’s case based on his findings made pursuant to U.S.S.G. §§ 3C1.1,

6B1.2(a), and FED. R. CRIM. P. 11(e), it was a proper and appropriate opinion
acquired in the course of judicial proceedings, in reliance on information
learned during the proceedings. See Crowell, 60 F.3d at 204 (stating that the

court’s “evaluation [of a plea agreement] may include a consideration of the
punishment allowable under the agreement, as compared to the punishment

appropriate for the defendant’s conduct as a whole”). Moreover, the district

judge’s rulings did not display such deepseated animosity towards Mizell, so as
to render his fair judgment impossible upon her retrial. For these reasons, we
also decline Mizell’s invitation to establish a mandatory rule of

disqualification when a judge has made findings of the kind attacked in this

case. We feel the current rules for discretionary recusal provide adequate
security for a defendant’s right to an impartial judge.

VII
For the foregoing reasons, we AFFIRM Mizell’s conviction.

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