United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 14, 2003
_______________________
Charles R. Fulbruge III
No. 01-50154 Clerk
_______________________
ISABEL G. ANDRADE; ET. AL.,
Plaintiffs,
STEPHEN E. THOMPSON, as administrator for the following estates:
Estate of Chanel Andrade, Estate of Crystal Barrios, Estate of
Isaiah Barrios, Estate of Dayland Lord Little, Estate of Kara
Brittani (Pages) Little, Estate of Abigail Martinez, Estate of
Audrey Martinez, Estate of Joseph Martinez, Estate of Melissa
Morrison, Estate of Mayanah Schneider, Estate of Aisha Gyarfas
Summers, Estate of Startle Summers, Estate of Hollywood Sylvia,
Estate of Rachel Sylvia; DANIEL MARTINEZ, SR.; THOMAS BARRIOS;
MISTY DAWN FERGUSON; STANLEY SYLVIA; NORMAN WASHINGTON ALLISON;
ADELINE SYLVIA BLACK; LOWESS ESMERELLA BLAKE; ROBERT THEOPHILUS
BLAKE; DEBBORAH BROWN, ET. AL.,
Plaintiffs - Appellants
v.
PHILLIP J. CHOJNACKI; ET. AL.,
Defendants,
UNITED STATES OF AMERICA,
Defendant - Appellee.
_________________________________________________________________
JEAN HOLUB, Co-Administrator & Legal Representative of
Esates of Bobbie Lane Koresh, Star Hadassah Howell &
Cyrus Ben Joseph Howell Minors, Deceased,
Plaintiff - Appellant,
v.
JANET RENO, Attorney General; ET AL
Defendants
JANET RENO, Attorney General; PHILLIP J. CHOJNACKI;
JEFFREY J. JAMAR; ROBERT RICKS; RICHARD (DICK) ROGERS;
Defendants - Appellees.
_________________________________________________________________
MISTY DAWN FERGUSON; ET AL,
Plaintiffs,
MISTY DAWN FERGUSON; ROBERT THEOPHILUS BLAKE; LOWESS
ESMERELLA BLAKE; DEBBORAH K. BROWN, SHERRY H. BURGO; ET. AL.,
Plaintiffs - Appellants,
V.
JANET RENO, Attorney General; ET. AL.,
Defendants,
JANET RENO, Attorney General; WILLIAM S. SESSIONS;
LAWRENCE A. POTTS; DANIEL M. HARTNETT; EDWARD DANIEL
CONROY; DAVID C. TROY; PHILLIP J. CHOJNACKI; CHARLES A.
SARABYN; PETER B. MASTIN; TED ROYSTER; JAMES CAVANAUGH;
EARL K. DUNAGAN; DARREL DYER; WILLIAM BUFORD; DAVY
AGUILERA; JEFFREY J. JAMAR; ROBERT A. (BOB) RICKS;
OLIVER B. REVELL; RICHARD (DICK) ROGERS; LON T. HORIUCHI;
BYRON SAGE; STEPHEN E. HIGGINS; UNITED STATES OF AMERICA,
Defendants - Appellees.
_________________________________________________________________
DEBBORAH BROWN, ROBYN BUNDS, Individually and on behalf
of minor child Shaun Wisdom Howell Koresh; SHERRY HOUTMAN
BURGO; CLIVE DOYLE; KATHERINE FARRIS; ET. AL.,
Plaintiffs - Appellants,
V.
UNITED STATES OF AMERICA; ET. AL.,
Defendants,
UNITED STATES OF AMERICA; JANET RENO, Attorney General;
WILLIAM S. SESSIONS; LAWRENCE POTTS; STEPHEN HIGGINS;
2
DANIEL HARTNETT; DANIEL CONROY; DAVID C. TROY; PHILLIP
CHOJNACKI; CHARLES (CHUCK) SARABYN; PETER MASTIN; TED
ROYSTER; JAMES CAVANAUGH; EARL DUNAGAN; DARREL DYER;
WILLIAM BUFORD; DAVY AGUILERA; JEFFREY JAMAR; ROBERT
RICKS; OLIVER REVELL; RICHARD (DICK) ROGERS; LON T.
HORIUCHI; BYRON SAGE; TIMOTHY GABORIE; JOHN MCGAW;
WILLIAM T JOHNSTON,
Defendants - Appellees.
_________________________________________________________________
JAMES LOYE RIDDLE; ET. AL.,
Plaintiffs,
MYRTLE ANN RIDDLE,
Plaintiff - Appellant,
V.
JANET RENO, Attorney General; ET. AL.,
Defendants,
JANET RENO, Attorney General; WEBSTER L. HUBBELL;
WILLIAM S. SESSIONS; LAWRENCE A. POTTS; STEPHEN E.
HIGGINS, Director, ATF; DANIEL CONROY; DAVID C. TROY;
PHILLIP J. CHOJNACKI; CHARLES A. SARABYN; PETER B. MASTIN;
TED ROYSTER; JAMES CAVANAUGH; EARL K. DUNAGAN; DARREL DYER;
WILLIAM BUFORD; DAVY AGUILERA; JEFFREY JAMAR; ROBERT A.
(BOB) RICKS; OLIVER B. REVELL; RICHARD ROGERS; LON T.
HORIUCHI; BYRON SAGE; UNITED STATES OF AMERICA,
Defendants - Appellees.
________________________________________________________________
OLIVER GYARFAS, Individually and as Administrator of
the Estate of Aisha Gyafas Summers Deceased and of the
Estate of Startle Summers Deceased; ELIZABETH GYARFAS,
Individually and as Administrator of the Estate of Aisha
Gyarfas Summers Deceased and of the Estate of Startle
Summers Deceased,
Plaintiffs - Appellants,
V.
3
UNITED STATES OF AMERICA,
Defendant - Appellee.
________________________________________________________________
JEAN HOLUB, Co-Administrators and Legal Representatives
of the Estates of Bobbie Layne Koresh, Star Hadassah
Howell and Cyrus Ben Joseph Howell, Minor Children
Deceased; BOBBY WAYNE HOWELL, Co-Administrators and Legal
Representatives of the Estates of Bobbie Layne Koresh,
Star Hadassah Howell and Cyrus Ben Joseph Howell, Minor
Children Deceased,
Plaintiffs - Appellants,
V.
UNITED STATES OF AMERICA,
Defendant - Appellee.
_________________________________________________________________
DEBBORAH BROWN; SHERRY HOUTMAN BURGO; CLIVE DOYLE;
TILLIE FRIESEN; FLOYD HOUTMAN, JR.; ET. AL.,
Plaintiffs - Appellants,
V.
UNITED STATES OF AMERICA,
Defendant - Appellee.
_______________________________________________________________
STANLEY SYLVIA; ET. AL.,
Plaintiffs,
STANLEY SYLVIA; NORMAN WASHINGTON ALLISON;
LUCILLE MAYNARD; ADELINE SYLVIA BLACK;
LOWESS ESMERELLA BLAKE; ET. AL.
Plaintiffs - Appellants,
V.
UNITED STATES OF AMERICA
4
Defendant - Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________________________________________________
Before JONES, WIENER, and DeMOSS, Circuit Judges.
EDITH H. JONES, Circuit Judge:
Appellants, some of the survivors and estates of Branch
Davidians who died during the 1993 conflict at Mount Carmel near
Waco, Texas, attempted to prove at trial that the United States
government should be held liable under the Federal Tort Claims Act
(“FTCA”) for deaths and injuries of Branch Davidian sect members
during the siege of their compound outside Waco, Texas on April 19,
1993. The court, after a month-long trial, rejected their case.
The court found that the government’s planning of the siege – i.e.
the decisions to use tear gas against the Davidians; to insert the
tear gas by means of military tanks; and to omit specific planning
for the possibility that a fire would erupt – is within the
“discretionary function exception” to the government’s waiver of
immunity. The court also found that the use of tear gas was not
negligent. Further, even if the United States was negligent by
causing damage to the compound before the fires broke out, thus
either blocking escape routes or enabling the fires to speed
faster, such negligence did not legally cause the plaintiffs’
injuries because some of the Davidians started the fires. The
5
court found that the FBI’s decision not initially to allow fire
trucks on the property was reasonable because of the risk of injury
or death to firefighters who might encounter hostile gunfire from
the Davidian compound.
All of these findings and conclusions, and other claims
that the court earlier dismissed, were the subject of intense and
provocative dispute before the trial court, as they have more
generally been to the public ever since that shameful day in
American law enforcement. None of the substantive issues are
raised in this appeal, however. Instead, Appellants’ only serious
contention is that Judge Smith — on account of his relationships
with defendants, defense counsel, and court staff; prior judicial
determinations; and comments during Appellants’ trial — should have
recused himself from hearing their claims. We conclude that
Appellants’ allegations do not reflect conduct that would cause a
reasonable observer to question Judge Smith’s impartiality; they do
not necessitate vacatur under the law of judicial recusal and the
correct standards of review. This court AFFIRMS the take-nothing
judgment.
BACKGROUND
In the wake of the bloody warrant service, siege, and
conflagration of the Branch Davidian compound at Mount Carmel in
the spring of 1993, four lawsuits were tried by Judge Smith. One
was the criminal prosecution of eleven surviving Davidians for the
6
events surrounding the deaths of four ATF agents (Branch). Two
were civil actions. One was brought by an ATF undercover agent
against fellow federal employees and a psychiatrist. The other was
brought by federal agents (or their estates) against a reporter,
media organizations, and an ambulance service, asserting that the
defendants had caused their injuries by alerting Davidians of the
impending raid (Risenhoover). The fourth is the instant suit, a
set of civil actions brought by surviving Davidians and estates of
the deceased against the federal government and various other
parties.
This suit did not, however, originate in Judge Smith’s
court. The plaintiffs instead filed suit in Houston, in the
Southern District of Texas. The defendants’ motion to transfer to
Judge Smith’s court in the Waco Division of the Western District of
Texas was granted. In addition to finding Waco the most convenient
forum, the transferring judge dismissed the plaintiffs’ allegations
of bias. She wrote at the time:
In effect, Plaintiffs’ argument is a collateral motion
for recusal, and this Court declines to render a formal
ruling on that issue. The merits should be heard upon
motion in the Western District of Texas. Plaintiffs’
evidence of bias based solely on Judge Smith’s prior
rulings, [sic] does not create a basis for denial of
transfer in this case.
Andrade v. Chojnacki, 934 F. Supp. 817, 835 (S.D. Tex. 1996).
The plaintiffs continued their efforts to avoid Judge
Smith’s court even after the transfer back to Waco. On the day
following Judge Smith’s consolidation of their suits, plaintiffs
7
filed a “Motion to Transfer to San Antonio Division or,
Alternatively, to Recuse Judge Walter S. Smith, Jr.” (hereinafter
“First Motion to Recuse”). Judge Smith held a hearing on the
motion on June 7, 1996, and denied it eight months later. The
plaintiffs then unsuccessfully petitioned this court for a writ of
mandamus seeking recusal or transfer to a different venue.
Judge Smith prepared the case for trial. He issued a
Memorandum Opinion and Order which dismissed a number of the
plaintiffs’ claims, narrowing the issues for trial down to several
FTCA claims against the United States. Andrade v. Chojnacki, 65 F.
Supp. 2d 431 (W.D. Tex. 1999). He scheduled discovery and
submission of a joint pre-trial order, and set trial to begin in
October 1999. The trial was later rescheduled for the following
summer. Upon plaintiffs’ motion, Judge Smith empaneled an advisory
jury and conducted the trial of plaintiffs’ remaining FTCA claims
against the United States from June 19 through July 14, 2000. The
advisory jury found that the United States had not acted
negligently in any respect.
Plaintiffs filed a Second Motion to Recuse on September
12, 2000, while the case was under submission. Judge Smith issued
a judgment rejecting plaintiffs’ FTCA claims in their entirety on
September 20; he amended it one week later. In addition to
findings of fact and conclusions of law, the revised opinion
contained Judge Smith’s rationale for denying plaintiffs’ Second
8
Motion to Recuse. Andrade v. United States, 116 F. Supp. 2d 778
(W.D. Tex. 2000). The plaintiffs timely appealed to this court.
Before proceeding, we note that there are two sets of
appellants. The group represented by Ramsey Clark and Lawrence W.
Shilling (the “Brown Appellants”) had its claims dismissed by Judge
Smith’s July 1999 Memorandum Opinion and Order. Andrade v.
Chojnacki, 65 F. Supp. 2d 431 (W.D. Tex. 1999). Judge Smith
partially reinstated these claims on April 21, 2000. The other
group is represented by Michael A. Caddell, Cynthia B. Chapman, and
James Juranek (the “Andrade Appellants”).
STANDARD OF REVIEW
This court reviews denials of motions to recuse for abuse
of discretion. Trevino v. Johnson, 168 F.3d 173, 178 (5th Cir.
1999). The judge abuses his discretion in denying recusal where “a
reasonable man, cognizant of the relevant circumstances surrounding
[the] judge’s failure to recuse, would harbor legitimate doubts
about that judge’s impartiality.” United States v. Bremers, 195
F.3d 221, 226 (5th Cir. 1999). Requests for recusal raised for the
first time on appeal are generally rejected as untimely. United
States v. Sanford, 157 F.3d 987, 988-89 (5th Cir. 1998).
Conclusions of law are reviewed de novo, Hart v. Bayer
Corp., 199 F.3d 239, 243 (5th Cir. 2000), and evidentiary and
discovery-related rulings for abuse of discretion, Munoz v. Orr,
200 F.3d 291, 300 (5th Cir. 2000).
9
DISCUSSION
I. Judicial Recusal
A. General Principles
Under 28 U.S.C. § 455 (2000), a party may request the
recusal of a judge not only if “he has a personal bias or prejudice
concerning a party, or personal knowledge of disputed evidentiary
facts concerning the proceeding,” id. § 455(b)(1), but also when
“his impartiality might reasonably be questioned,” id. § 455(a).
These provisions afford separate, though overlapping, grounds for
recusal. Subsection (b)(1) pertains to specific instances of
conflicts of interest, while subsection (a) deals with the
appearance of partiality generally. Further, whenever a judge’s
partiality might reasonably be questioned, recusal is required
under § 455(a), irrespective whether the circumstance is covered by
§ 455(b). Liljeberg v. Health Servs. Acquisition Corp., 486 U.S.
847, 860 n.8 (1988).
Caselaw has articulated several interpretative guidelines
for this statute. One of the relevant maxims is that the standard
for bias is not “subjective,” as it once was, but, rather,
“objective.” See Vieux Carre Prop. Owners, Residents & Assocs. v.
Brown, 948 F.2d 1436, 1448 (5th Cir. 1992). Courts moved to this
less deferential standard in response to Congress’s 1974 revisions
to the 1948 statute, and it is with reference to the “well-
informed, thoughtful and objective observer, rather than the
10
hypersensitive, cynical, and suspicious person” that the objective
standard is currently established. United States v. Jordan, 49
F.3d 152, 156 (5th Cir. 1995).
Another maxim is that review should entail a careful
consideration of context, that is, the entire course of judicial
proceedings, rather than isolated incidents. Sao Paulo State of
the Federative Rep. of Brazil v. Am. Tobacco Co., 535 U.S. 229,
232-33, 122 S. Ct. 1290, 1292 (2002); United States v. Avilez-
Reyes, 160 F.3d 258, 259 (5th Cir. 1998).
Finally, the origin of a judge’s alleged bias is of
critical importance. In 1994, the Supreme Court applied a common-
law doctrine commonly called the “extrajudicial source rule” to the
interpretation of § 455. Liteky v. United States, 510 U.S. 540,
555 (1994). As articulated by the Supreme Court, this rule more or
less1 divides events occurring or opinions expressed in the course
of judicial proceedings from those that take place outside of the
litigation context and holds that the former rarely require
recusal:
First, judicial rulings alone almost never
constitute a valid basis for a bias or
partiality motion. In and of themselves (i.e.,
apart from surrounding comments or
accompanying opinion), they cannot possibly
1
The Court’s opinion observes that the “extrajudicial source
doctrine” and its exceptions are designed to isolate instances
where a judge exhibits “wrongful” or “inappropriate” bias or
prejudice and such instances will most often, though not always,
arise from knowledge gained or relationships existing outside
formal proceedings before the judge. Liteky, 510 U.S. at 488.
11
show reliance upon an extrajudicial source;
and can only in the rarest circumstances
evidence the degree of favoritism or
antagonism required (as discussed below) when
no extrajudicial source is involved. Almost
invariably, they are proper grounds for
appeal, not for recusal. Second, opinions
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 judgment impossible. Thus,
judicial remarks during the course of a trial
that are critical or disapproving of, or even
hostile to, counsel, the parties, or their
cases, ordinarily do not support a bias or
partiality challenge. They may do so if they
reveal an opinion that derives from an
extrajudicial source; and they will do so if
they reveal such a high degree of favoritism
or antagonism as to make fair judgment
impossible.”
Id. at 555 (internal citations and footnotes omitted).
Appellants sought Judge Smith’s recusal under § 455(a)
and (b)(1). Their success depends upon their ability to clear the
foregoing hurdles. They must (1) demonstrate that the alleged
comment, action, or circumstance was of “extrajudicial” origin, (2)
place the offending event into the context of the entire trial, and
(3) do so by an “objective” observer’s standard. Moreover, they
must demonstrate that the district court’s refusal to recuse was
not merely erroneous, but, rather, an abuse of discretion. It is
hardly surprising that they failed to clear them.
12
B. Extrajudicial Bias
The Andrade Appellants specify fifteen events which, they
argue, constitute their case for recusal. By Appellants’ own
admission, eight of these are intrajudicial,” thus requiring a more
deferential review than that applicable to the seven of
“extrajudicial” origin. We turn first to the extrajudicial
events.2
1. Events and Circumstances Beyond Judge Smith’s
Control
Two of the seven “extrajudicial” events – both beyond
Judge Smith’s control — may be dismissed without exhaustive
consideration. One is trivial, the second moot.
The Andrade Appellants complain that over the course of
the trial, government counsel occasionally gave T-shirts, food,
beverages, cookies, and candies to employees in the federal
clerk’s, marshal’s, and court reporter’s offices. In ruling upon
the recusal motion, Judge Smith found that the T-shirts were part
of “a prank played on a deputy marshal,” and none of the recipients
were “members of the Court’s staff.” While Appellants maintain
that the receipt of these gifts created an “appearance of
impropriety,” they do not challenge the accuracy of Judge Smith’s
2
The government argues that several of the latter seven
events ought more appropriately be characterized as having
occurred during the judicial proceedings. The government may
well be correct in regard to some of the incidents, but for
simplicity, we accept Appellants’ characterization.
13
findings. We accept the uncontested findings of the district
court, and fail to see how these small courtesies to the court’s
non-judicial staff could be viewed by any “objective” observer as
compromising Judge Smith’s independence.
The other allegation is that Judge Smith’s longstanding
relationships with two of the dismissed defendants, William
Sessions and William Johnston, gave rise, at the very least, to the
“appearance of impropriety.” As an Assistant U.S. Attorney for the
Western District of Texas, Johnston made frequent appearances
before Judge Smith. Sessions, formerly the Director of the FBI,
had served on the federal district court for the Western District
of Texas from 1974–87; Judge Smith served with Sessions from
1983–87 while Sessions was Chief Judge. This issue is moot, as
both Sessions and Johnston were dismissed from the case in July
1999. In any event, no facts are proven to suggest that either
prior relationship evinces characteristics that would even suggest,
much less mandate recusal. See Parrish v. Bd. of Comm’rs., 524
F.2d 98, 104 (5th Cir. 1975).
2. Comments Made By Judge Smith
The five other extrajudicial events can be divided into
three categories: (a) the judge’s alleged in camera statements to
trial counsel, (b) his public comments regarding government
attorneys Johnston and James Touhey, and(c) his alleged ex parte
comments to reporter Lee Hancock.
14
a. Judge Smith’s Alleged in camera Comments
Judge Smith’s alleged in camera statements, though said
to violate §§ 455(a) and (b)(1), are unproblematic. On June 22,
2000, Appellants prepared to offer into evidence documents showing
the FBI’s failure to develop adequate plans to extinguish fire at
the compound. These documents had been the subject of extensive
pretrial wrangling. When Judge Smith announced his decision not to
allow admission, the Andrade Appellants’ counsel approached the
bench and requested an in camera conference. During the
conference, Judge Smith said that he had not read Appellants’
proffered evidence. Somewhat later, as the litigants discussed the
empaneling of an advisory jury, Judge Smith told Mr. Caddell that,
“if you don’t think I’ve got the guts to disregard the [advisory]
jury’s verdict, you’re wrong.” Appellants argue that these two
statements contribute to their case for recusal.
Judge Smith’s declaration that he had not read the
evidence prior to denying its admissibility is of no legal import.
Appellants offered the evidence to advance the proposition that the
FBI could have — in fact, should have — planned for the possibility
of fire. Such an argument is almost surely barred from
consideration, however, by the discretionary function exception to
the FTCA. 28 U.S.C. § 2680(a) (2000). Although the FTCA permits,
in general, suits against the United States, it exempts the
government from liability for “acts that are discretionary in
15
nature,” those “involv[ing] an element of judgment or choice.”
United States v. Gaubert, 499 U.S. 315, 322 (1991) (quoting
Berkovitz v. United States, 486 U.S. 531, 536 (1988)). Judge Smith
had no need to examine the evidence supporting this claim, because
the applicability of the discretionary function exception does not
turn on evidence of the actual decisions made by the defendants,
but, rather, on whether the decision is or is not “susceptible to
policy analysis”. Id. at 325; see also Baldassaro v. United
States, 64 F.3d 206, 209 (5th Cir. 1995). In light of the law on
this point, Judge Smith’s preference not to read the evidence — and
his declaration – cannot constitute evidence of bias or even the
appearance of such.
This being said, Appellants were not without options.
They might have appealed Judge Smith’s decision to exclude this
evidence and sought direct review of the applicability of the
discretionary function exception. But they did not do so. Issues
not raised on appeal are waived. United States v. Valdiosera-
Godinez, 932 F.2d 1093, 1099 (5th Cir. 1991).
Equally unavailing is Appellants’ allegation that Judge
Smith’s statement regarding his willingness to disregard the
advisory jury’s verdict manifests an impermissible judicial bias.
The FTCA does not grant plaintiffs the right to a jury trial. 28
U.S.C. § 2402 (2000). Notwithstanding the clear congressional
mandate that claims against the federal government are to be tried
to the bench, Appellants moved for the empaneling of an advisory
16
jury; over the government’s objection, Judge Smith honored the
request. But he was under no obligation to accept its verdict.
Sullivan v. Rowan Cos., 952 F.2d 141, 147 (5th Cir. 1992). His
statement accurately, if bluntly, reflected the status of the
advisory jury verdict. Even if Appellants found this in-chambers
statement offensive, their claims are to be judged by an objective
standard. The statement is neither “grossly inappropriate” nor
“patently offensive,” as required by our precedent. In re Chevron
U.S.A., Inc., 121 F.3d 163, 165–67 (5th Cir. 1997).
b. Judge Smith’s Public Comments
Appellants also point out Judge Smith’s comments
regarding William Johnston and his compliment toward James Touhey
to advance their case for recusal. We reject the arguments.
As mentioned above, Johnston was one of the original
defendants to this lawsuit. While the case was before the district
court, a Special Counsel from within the Justice Department
investigated Johnston for allegedly withholding evidence from
defendant Davidians during their criminal trial. According to a
newspaper report, Judge Smith was upset by the investigators’
treatment of Johnston (the article used the term “witch hunt” to
describe Judge Smith’s view). In response, Judge Smith told
several investigators in September 2000 that he would no longer
cooperate with the inquiry and that he would not permit the
investigators to carry firearms into the courthouse. The Special
17
Counsel subsequently visited Judge Smith in his chambers to repair
the rift. The judge’s comments, however, are irrelevant to
Appellants’ case for recusal, as Johnston had been dismissed from
this case in July 1999 — 15 months before this incident occurred.
Appellants argue that Judge Smith’s public compliment of
James Touhey, a government attorney, supports mandatory recusal
under §§ 455(a) and (b)(1). According to Appellants, Touhey
conducted a “particularly vicious cross-examination of Davidian
witness Clive Doyle,” in which Doyle was “reduced to tears.”
During the subsequent recess and outside the presence of the jury,
Appellants’ counsel observed Judge Smith enter the courtroom, pat
Touhey on the back, shake his hand, and congratulate him, saying
“Good job, Mr. Touhey!”
Appellants acknowledge that a judge’s “compliments in the
course of legal proceedings should not ordinarily support a
partiality challenge,” Certain Underwriters at Lloyd’s London v.
Oryx Energy Co., 944 F. Supp. 566, 568 (S.D. Tex. 1996), but they
view the relationship reflected here between Touhey and Smith as
exceptional. Doyle had been charged with murder, tried before
Judge Smith, and acquitted by the jury in the Davidians’ criminal
trial. With his compliment, Appellants argue, Judge Smith conveyed
his gratitude to Touhey for Doyle’s belated humiliation.
Appellants’ argument fails for two reasons. First, not
only does their brief omit citing the most prominent Supreme Court
statement on point, Liteky, 510 U.S. at 555 (“judicial remarks that
18
are critical or disapproving of, or even hostile to, counsel for
the parties or their cases, ordinarily do not support a bias or
partiality challenge”), but they also neglect to discuss two
relevant Fifth Circuit cases cited by the government. See United
States v. Landerman, 109 F.3d 1053, 1066 (5th Cir. 1997) (affirming
denial of motion to recuse where district judge allowed “the
Government more leeway during its questioning and did interrupt
defense counsel’s questioning more often than the Government’s
questioning”); Garcia v. Woman’s Hosp. of Texas, 143 F.3d 227, 230
(5th Cir. 1998) (affirming denial of motion to recuse where
district judge had made unflattering comments about plaintiff’s
ability to prove her case). Second, in attributing to Judge
Smith’s compliment something more than “just a compliment,”
Appellants overlook that it is with reference to the
“well-informed, thoughtful and objective observer, rather than the
hypersensitive, cynical, and suspicious person” that inappropriate
or wrongful bias is established. Jordan, 49 F.3d at 156. This
court sees a compliment, not a subliminal message of wrongful bias.
Accordingly, we find no grounds for recusal here.
c. Judge Smith’s Alleged ex parte Comments
On September 13, 2000, one week before Judge Smith issued
his initial findings of fact and judgment denying Appellants’ FTCA
claims and two weeks before he ruled upon Appellants’ Second Motion
for Recusal, the Dallas Morning News published a story reporting
19
Appellants’ filing of their second recusal motion. The article
quotes attorney Caddell, describes his view of Judge Smith as
biased, states that Caddell changed his earlier-expressed decision
not to appeal because of the bias, and paraphrases at length the
allegations in the recusal motion. Before assessing the likelihood
that the motion would succeed, the article briefly speculates on
the outcome of the case, based upon several of Judge Smith’s
alleged comments. The passage, in its entirety, reads as follows:
FINAL RULING
Judge Smith has offered some indications that his
final ruling will mirror the jury’s decision.
Late in the four-week trial, he told a reporter that
sect members broke the law by resisting the federal
search and by refusing to surrender during the 51-day
siege. He said those violations probably trumped
plaintiffs’ arguments that government agents acted
negligently in efforts to end the standoff.
The judge noted he might be in “one hell” of a
position with his decision to impanel an advisory jury
for the type of civil case normally decided by a judge
alone.
During the civil trial, the judge sometimes reacted
emotionally to graphic evidence. After spending a
weekend reviewing the government’s excerpts from
surveillance recordings made in the compound during the
siege, he remarked during a break in the case that the
tapes would “blow” the plaintiffs “out of the pond.”
Lee Hancock, Davidians’ Attorney Vents Anger at Judge; Appeal Now
Planned in Wrongful Death Suit, Dallas Morning News, Sept. 13,
2002, at 25A.
Appellants contend that Judge Smith’s alleged ex parte
comments violated Canons 2(A), 3A(4) and 3A(6) of the Code of
20
Judicial Conduct.3 Conceding that violations of the Code do not
necessarily give rise to a violation of § 455(a), they nevertheless
argue that courts consistently “take a hard line for those
involving judicial commentary on pending cases.” Three cases
exemplify their position that reviewing courts have set a standard
for unacceptable judicial misbehavior and mandatory recusal that
readily encompasses Judge Smith’s comments. In re Boston’s
Children First, 244 F.3d 164 (1st Cir. 2001); United States v.
Microsoft Corp., 253 F.3d 34, 114 (D.C. Cir. 2001); United States
v. Cooley, 1 F.3d 985, 988 (10th Cir. 1993). These are serious
charges, but because Appellants never brought this article to the
district court’s attention, their fulminations lack record support
and context. We cannot review this claim.
Two full weeks passed between publication of the article
and Judge Smith’s final ruling on Appellants’ motions for
reconsideration and recusal, but Appellants never moved to
supplement their motion. Nonetheless, they included a copy of the
article in their Record Excerpts submitted to this court, in
violation of Fed. R. App. P. 10(e)(2)(C). See United States v.
Page, 661 F.2d 1080, 1082 (5th Cir. Nov. 1981). We retain
discretion to grant Appellants’ motion to supplement the record in
3
Code of Conduct for United States Judges, 175 F.R.D. 363,
365-367 (1997).
21
this court,4 but exercising that option raises another procedural
hurdle, because untimely motions to recuse are ordinarily rejected.
Sanford, 157 F.3d at 989. This aspect of Appellants’ recusal claim
is untimely, as Sanford holds, because it was raised only after an
adverse judgment and for the first time on appeal.5
Cognizant of such problems, Appellants seek to compare
their situation with that of Microsoft and its district judge, who
repeatedly spoke with reporters concerning the merits of the case
on the condition that the conversations be “embargoed” until the
court released its decision. Microsoft Corp., 253 F.3d at 108.
Because Microsoft had not learned of the court’s ventures until
opportunity for objection had passed, the Court of Appeals
permitted Microsoft to raise the recusal issue on appeal and does
not appear to have subjected it to a more stringent standard of
review. Id.
4
Pegues v. Morehouse Parish Sch. Bd., 706 F.2d 735, 738 (5th
Cir. 1983); but cf. United States v. Okoronkwo, 46 F.3d 426, 435
(5th Cir. 1995).
5
Sanford notes that this court has declined to craft a per
se rule concerning untimeliness of recusal motions, but
generally, such motions must be filed “at the earliest moment”
after a movant receives knowledge of the facts suggesting
disqualification. 157 F.3d at 938, (quoting Travelers Ins. Co.
v. Liljiberg Enters., 38 F.3d 1404, 1410 (5th Cir. 1994)).
Sanford also notes this court’s reluctance to employ a plain
error standard of review to untimely recusal motions. Id. at
989; see United States v. Gray, 105 F.3d 956, 968 (5th Cir. 1997)
(plain error review utilized “for the sake of argument”); United
States v. York, 888 F.2d 1050, 1056 (5th Cir. 1989). The
remainder of the above discussion makes clear that even if we
employed plain error “for the sake of argument,” Appellants’
contentions regarding the newspaper article are meritless.
22
Any comparison with Microsoft is wholly unpersuasive.
There is no evidence that if Judge Smith gave an interview, he
enforced silence on the Dallas Morning News reporter. On the
contrary, his comments were published, it appears, shortly after
they were made and sufficiently before the district court’s final
ruling. Even more obvious is that Appellants’ counsel had given an
interview to the reporter to highlight the filing of his second
motion to recuse. Mr. Caddell is prominently and directly quoted
in the article. It is near impossible to believe that
notwithstanding his willingness to publicize the filing of the
second motion to recuse, on the eve of the court’s expected ruling
on the merits, Appellants’ counsel did not even bother to check
whether the reporter (who covered the case throughout trial) had
written an article. The Dallas Morning News enjoys an excellent
reputation and is read statewide; the paper had been diligently
covering the trial; the article was at least constructively
available before Judge Smith ruled. These circumstances
distinguish the instant case from Microsoft.
Appellants’ argument ultimately asks this court to judge
the judge based exclusively on the fact of publication of his
remarks, without context and without verification of their
accuracy. It is hardly clear whether Judge Smith actually gave an
interview or spoke off the cuff, and whether his comments were made
in chambers or on the bench, ex parte or to a group of listeners,
yet Appellants have jumped to the conclusion that he violated the
23
judicial Code of Conduct in several ways by giving an interview.
But there is no way of knowing what generated the article, and it
represents multilevel hearsay. These circumstances emphasize the
wisdom behind the procedural rules – limiting supplementation of
the appellate record; deeming waiver or forfeiture of issues not
raised in the trial court; and restricting the scope of appellate
review – that are designed to confine appellate review to
factfinding that occurs in the trial court. Because Appellants’
complaint about the newspaper article was not properly preserved
for appellate review, we deny the motion to supplement the record
with this article and reject this point of error.
C. Intrajudicial Bias
Notwithstanding the obstacle that Liteky presents to
recusal claims based upon a judge’s expression of beliefs arising
from intrajudicial sources, Appellants press eight events that
occurred on the record during judicial proceedings and which, they
argue, support the case for recusal.
These events are, in chronological order, as follows:
1. When issuing his sentencing findings in the criminal
prosecution of some Davidians, Judge Smith declared that the
defendants and other adult Davidians “ambushed” and “conspir[ed] to
cause the death of” federal agents on February 28, 1993.
Appellants argue that these findings, made with respect to
24
convictions that were affirmed on appeal,6 demonstrate his
deep-seated antagonism toward the Davidians.
2. Judge Smith acquired over the course of the criminal
proceedings a firm conviction that it was the Davidians who set
fire to the living quarters at Mount Carmel on April 19, 1993, a
belief he carried over to other cases tried before him, e.g.
Risenhoover v. England, 936 F. Supp. 392 (W.D. Tex. 1996), and to
the case at bar. (Appellants did not, however, appeal his finding
to that effect after this trial.)
3. Judge Smith’s comments in Risenhoover — that the
Davidians were “soft as clay” and “easily manipulated,” that their
leader was a “false prophet” whose teachings focused on
paramilitary training,” and that their beliefs are “fanaticism . .
. difficult for most people to understand” — made fair judgment
impossible.
4. On June 27, 2000, when Appellants attempted to
introduce the deposition testimony of Livingstone Fagan, Judge
Smith referred — in an off-the-record bench conference — to Fagan,
a resident of Mount Carmel who had previously been criminally tried
and acquitted by Judge Smith, as a “crazy, murdering son-of-a-
bitch”; he subsequently issued an inept apology.7
6
United States v. Castillo, 179 F.3d 321 (5th Cir. 1999);
United States v. Branch, 91 F.3d 699 (5th Cir. 1996).
7
“That statement was off the record and in response to
another lawyer’s humorous suggestion, and was not in any way
intended to be taken seriously. The Court regrets the slight to
25
5. On July 13, when Appellants attempted to introduce
expert-prepared transcripts of the government’s surveillance tapes,
Judge Smith referred to these transcripts — in an off-the-record
bench conference — as “bullcrap”; he subsequently admitted them.
6. Judge Smith presented the respective transcripts of
the surveillance tapes to the jury in unfair manner: Appellants’
transcripts were described as the work of Appellants’ attorneys,
whereas the government’s transcripts were presented as the product
of professional expertise. This characterization was especially
galling to Appellants, as Judge Smith had previously allowed the
government’s “expert” to produce his transcripts after the court-
ordered deadline, stating that compliance was not important, as his
work was non-expert.
7. On July 14, in charging the advisory jury, he
allegedly gave an improper standard for determining liability,
refused Appellants’ submitted instruction, and failed to include
any instructions regarding liability for foreseeable acts of third
parties. That this inadequacy was intentional, Appellants allege,
can be seen by comparing these instructions with the precision of
his charge in Risenhoover, a case in which government agents
injured or killed in the February 23, 1993 conflict brought suit
against a reporter, certain media organizations, and an ambulance
Mr. Fagan’s Mother, should he have one.” The judge forgot that
Doris Fagan burned to death in the fire at Mount Carmel on April
19, 1993; her estate is a plaintiff in these proceedings.
26
company that had alerted the Davidians, in violation of Texas law,
to the impending assault.
8. On April 4, 2002, Judge Smith refused to certify
Appellants’ Statement of Proceedings, a document attempting to
introduce into the record (pursuant to Fed. R. App. P. 10(c))
several of Judge Smith’s unrecorded comments during the trial.
Appellants had submitted this memorialization in February 2002,
over a year and a half after the alleged statements were made.
They contend that Judge Smith’s refusal to certify demonstrates his
bias, as the government did not dispute the substance of the
document.
The first six of these events represent the expression of
“opinions formed . . . on the basis of facts . . . or events
occurring in the course of the current proceedings, or of prior
proceedings,” and are the type of opinions/expressions that Liteky
holds nearly exempt from causing recusal. Appellants contend that
Liteky either does not apply or should not apply as rigorously
when, as in this FTCA case, the judge is the factfinder. There is
no support for this position legally or logically. Judges often
find facts in performing their duties – in admitting evidence, in
sentencing criminals, in ruling on motions, as well as in deciding
bench-tried cases. Liteky draws no distinction based on the type
of proceeding, and none is warranted.
The last two events are embodied in judicial actions that
Appellants could have, but did not, appeal. Since one of these
27
involves the irrelevant advisory jury and one a grievously late
attempt to create a factual record for appeal, to allow the judge’s
demeanor or actions in the two events a significant influence on
our recusal decision would be grossly disproportionate to the legal
implications of his actions.
Appellants rightly contend, however, that apart from its
broad statement, Liteky acknowledges that rarely, events in court
may “reveal such a high degree of favoritism or antagonism as to
make fair judgment impossible.” 510 U.S. at 555. Among the events
cited above, only one – Judge Smith’s ill-tempered references to
Fagan – even arguably fall within that deplorable range. And those
brief comments in the course of a decade of litigation refer only
to one witness, not to the Davidians or Appellants in general or
to the merits of their case. Moreover, Liteky states that
“expressions of impatience, dissatisfaction, annoyance and even
anger” do not establish bias or partiality. Liteky, 510 U.S. at
555-56.
II. Other Issues
A. The Andrade Appellants
The Andrade Appellants’ opening brief raises only one
issue: whether Judge Smith abused his discretion in denying their
motion for recusal. Responding to the government’s emphasis on
their limited appellate gambit, Appellants offered in their reply
brief a four-page account of eleven alleged trial errors, asserting
28
that many more could be documented. Additionally, they argue that
allegations of bias effectively relieve them of the obligation to
charge error, presenting only one case, Maurino v. Johnson, 210
F.3d 638, 645 (6th Cir. 2000)(“judicial bias infects the entire
trial process”), in support of this proposition.
The Andrade Appellants are skillfully represented by
experienced counsel who surely knew that in this court, briefing
issues for the first time in a reply brief is not allowed. Lockett
v. EPA, 319 F.3d 678, 690 n.51 (5th Cir. 2003). Neither
thoughtlessly nor coincidentally did they attempt to show trial
errors in such a way that, even if non-cognizable, the mere
allegations could influence this court while depriving the
government of an opportunity to respond. We must infer from these
tactics that Appellants concluded there were no colorable appellate
issues concerning Judge Smith’s rulings, as opposed to his alleged
bias.
That Appellants apparently reached this conclusion is a
testament, however unintended, to the judge’s overall capability.
Real judicial bias, it is true, “infects the entire judicial
process,” Maurino, 210 F.3d at 645, but a harmless error standard
of review applies nevertheless. See In re Continental Airlines
Corp., 901 F.2d 1259, 1263 (5th Cir. 1990). Appellants’ argument
for reversal is misplaced.
29
B. The Brown Appellants
Notwithstanding the Brown Appellants’ lengthy brief, we
cannot discern an argument in law for the reversal of the district
court’s judgment. See Cinel v. Connick, 15 F.3d 1338, 1345 (5th
Cir. 1994)(“A party who inadequately briefs an issue is considered
to have abandoned the claim.”). Although the Magna Carta and
Geneva Convention are venerated documents, citation of such sources
without more does not suffice to demonstrate judicial error. We
admire the sincerity of the Brown Appellants’ presentation but they
offer no tangible ground for reversal of the judgment.
CONCLUSION
For the foregoing reasons, we find no basis for recusal
of Judge Smith nor any other reversible error. The district
court’s judgment in favor of Appellees is accordingly AFFIRMED.
Appellants’ Motion to Supplement Record DENIED as to the
newspaper article dated September 13, 2000; GRANTED as to the other
items.
30
Andrade v. Chojnacki
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