United States v. Anderson

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

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No. 97-11205
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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

TONY LEROY ANDERSON,

Defendant-Appellant.

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Appeal from the United States District Court
for the Northern District of Texas
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November 10, 1998

Before REYNALDO G. GARZA, JONES and DeMOSS, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:

Tony Leroy Anderson appeals his sentence of forty-six months

after pleading guilty to one count of bank robbery. We vacate his

sentence and remand for resentencing because we find that the

district judge should have recused himself prior to sentencing.

Factual Background

On July 11, 1997, Tony Leroy Anderson, pled guilty to one

count of bank robbery before the Honorable John McBryde, United
States District Judge for the Northern District of Texas.

During the week of August 25, 1997, Anderson’s trial counsel,

First Assistant Public Defender Paul D. Strickney, was subpoenaed

as a witness, and testified against Judge McBryde in proceedings

before a special investigatory committee of the Fifth Circuit

Judicial Council. On October 9, 1997, one day prior to sentencing,

Anderson moved for recusal of Judge McBryde and reassignment of the

case to another district judge. Judge McBryde denied the recusal

motion on the ground that these facts did not create an appearance

of bias or prejudice against Anderson or his counsel.

Neither the government or Anderson objected to the presentence

report (PSR), and the district court adopted the PSR’s factual

findings and conclusions. The PSR noted that the maximum

punishment was 20 years and calculated the guideline range to be 37

to 46 months. On October 10, 1997, Anderson was sentenced by Judge

McBryde to 46 months imprisonment, followed by three years of

supervised release. Anderson then timely appealed to this Court.

II. Discussion

Anderson does not challenge his conviction. His appeal

requests that his sentence be vacated and that the case be remanded

for resentencing before a different district court judge. Anderson

contends that Judge McBryde abused his discretion and reversibly

2
erred by refusing to recuse himself from Anderson’s case after

Anderson’s attorney testified against Judge McBryde in the Fifth

Circuit Judicial Council proceedings. Anderson asserts that a

reasonable person would harbor doubts about Judge McBryde’s ability

to remain impartial in a case involving an attorney who had

testified adversely to Judge McBryde in Judicial Council

proceedings that could lead to him being reprimanded or even

sanctioned. We find Anderson’s contentions valid.

Title 28 U.S.C. § 455(a) provides that a federal judge shall

disqualify himself in any proceeding in which his impartiality

might be reasonably questioned. A motion for recusal is within the

discretion of the district judge and the denial of such a motion

will not be reversed on appeal unless the judge has abused his

discretion. Garcia v. Woman’s Hosp. of Texas, 143 F.3d 227, 230

(5th Cir. 1998).

This Circuit has recognized that each section 455 (a) case is

extremely fact intensive and fact bound, and must be judged on its

unique facts and circumstances rather than by comparison to similar

situations considered in prior jurisprudence. United States v.

Jordan, 49 F.3d 152, 157 (5th Cir. 1995). The party seeking recusal

must demonstrate that, if a reasonable person knew of all of the

circumstances, they would harbor doubts about the judge’s

impartiality. Travelers Ins. Co. v. Liljeberg Enterprises, Inc., 38

F.3d 1404, 1408 (5th Cir. 1994). Thus, if a judge concludes that his

3
impartiality might be reasonably questioned, then he should find

that the statute requires his recusal. In re Faulkner, 856 F.2d

716, 721 (5th Cir. 1988) (citing Liljeberg v. Health Services

Acquisition Corp., 486 U.S. 847, 860 (1988)). The goal of section

455(a) is to avoid even the appearance of partiality. Liljeberg, 486

U.S. at 860. In light of the specific facts of this case we hold

that the Judge McBryde abused his discretion and reversibly erred

in failing to recuse himself from Anderson’s case. It is clear that

a reasonable person, when appraised of the relevant circumstances

that surround this case, would harbor doubts about Judge McBryde’s

impartiality. The average person when viewing this specific

situation, would question Judge McBryde’s ability to be impartial

in a case involving an attorney who has testified adversely against

Judge McBryde in a Judicial Council proceeding. As Anderson notes

many attorneys are fearful of even filing a complaint against a

judge to a circuit judicial council, due to fear of retaliation from

that complained-against judge. If there is a fear in merely filing

a complaint against a judge, it is evident that a greater fear

arises from actually testifying against a judge, who is present at

that hearing. It is difficult under these circumstances to argue

that a reasonable person would not harbor any doubt about Judge

McBryde’s impartiality. This Court recognizes that it is essential

to avoid even the appearance of impropriety because it is as

important in developing the public confidence in our judicial system

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as avoiding the impropriety itself. Jordan, 49 F.3d at 155-56.

On February 9, 1998, the Fifth Circuit Judicial Council issued

an order making executory that portion of a Judicial Council Order

of December 31, 1997 ordering Judge McBryde not to participate in

cases involving attorneys who have testified against him for a

period of three years. Although not dispositive, this demonstrates

that a group of Judge McBryde’s own colleagues have concluded that

there is reasonable doubt of Judge McBryde’s ability to be impartial

arising from an attorney’s testifying against him.

Section 455 also obligates a party to raise the

disqualification argument at a reasonable time in the litigation.

Hollywood Fantasy Corp. v. Gabor, No. 93-8199, 1998 WL 469672, at

*14 (5th Cir. 1998). Moreover, the party seeking the

“disqualification must do so at the earliest moment after knowledge

of the facts demonstrating the basis of such disqualification.”

Travelers Ins. Co., 38 F.3d at 1410. In addition, “when a party

seeking recusal knows or should know the facts on which recusal is

based he must make a timely motion to disqualify or lose his right

to do so. Health Services Acquisition Corp. v. Liljeberg, 796 F.2d

796, 802 (5th Cir. 1986) aff’d, 486 U.S. 847 (1988).

This Court finds that Anderson’s motion for recusal was timely.

Anderson pled guilty to bank robbery and only challenges the

sentence imposed by Judge McBryde. Anderson made his motion for

recusal one day prior to sentencing, but had known of his attorney’s

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testimony against Judge McBryde for over six weeks. Although

Anderson knew of the basis for the recusal for a considerable time,

this Court finds that Anderson raised Judge McBryde’s

disqualification at a reasonable time. It is clear that Anderson

did not wait to see what sentence Judge McBryde would impose, and

then, when that sentence was unfavorable, move for recusal. Rather,

Anderson raised the ground for recusal before any sentence was

imposed. There was no litigation concerning Anderson’s guilt, all

that remained to be determined was the duration of his sentence.

Therefore, because Anderson filed his motion to recuse prior to

sentencing, we find that the motion is timely in challenging his

sentence.

This Court also holds that Anderson’s recusal motion is

reasonably specific, because under the Fifth Circuit Rules Governing

Complaints of Judicial Misconduct or Disability, Anderson’s attorney

was prohibited from discussing the content of the testimony given

at the proceedings. Moreover, Judge McBryde was either present at

the proceedings or had access to a transcript of Anderson’s

attorney’s testimony. Thus, Judge McBryde was fully aware of the

particular grounds provided as requiring recusal.

Accordingly, Anderson’s SENTENCE is VACATED and his case

REMANDED for reassignment to a different judge for proceedings

consistent with this opinion.

ENDRECORD

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EDITH H. JONES, Circuit Judge, dissenting:

Tony Leroy Anderson and Ricardo Avilez-Reyes, represented

by the Federal Public Defender’s Office, pleaded guilty,

respectively, to bank robbery and possession with intent to

distribute methamphetamine. Between their plea agreements and

sentencing hearings, a unique event occurred. The district judge

responsible for their cases was brought before a judicial conduct

and disciplinary hearing convened by the Fifth Circuit Judicial

Council. In that hearing, the attorneys who testified against the

Honorable John McBryde were predominantly government lawyers: six

current or former lawyers from the United States Attorney’s Office

in the Northern District of Texas, five from the Federal Public

Defender’s Office.1 Because the Chief Judge of this circuit has

refused to make the records of the disciplinary hearing public,2 we

do not know what testimony was presented or by whom.3 Nevertheless,

the federal public defenders who represented these defendants sought

Judge McBryde’s recusal from sentencing because they themselves

testified against him at the hearing. The judge denied their

motions. Both defendants were sentenced within the applicable

1
The attorney-witnesses against Judge McBryde are listed in
McBryde’s Memorandum at 8-10.
2
See 28 U.S.C. § 372(c)(14)(C). Judge McBryde requested
publication of all the proceedings, but the Chief Judge exercised
his unilateral prerogative to deny that request.
3
One member of this panel was on the Judicial Council at the
time of the hearing but was not a direct participant in the
hearing.

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Guidelines ranges and raise as their only appellate point the denial

of recusal.

My colleagues hold that Judge McBryde should have recused

and, further, that defendants’ sentences are vacated. I

respectfully dissent. My colleagues’ interpretation of § 455(a) in

these cases conflicts with our precedents and, by unnecessarily

provoking more motions and requiring more recusals, will create

serious problems for the efficient administration of justice in the

federal courts. In addition, they engage in no analysis of the

remedy, although sentencing the defendants was harmless error in

these cases. Finally, their decisions unfairly pile on the

punishments that have already been imposed on Judge McBryde by the

Fifth Circuit Judicial Council.

I.

The panel’s principal error is to review Judge McBryde’s

recusal decision only in hindsight. The defendants’ recusal motions

must be viewed in terms of events as the parties knew them at the

time. The public defenders had testified against Judge McBryde and

the disciplinary hearing was over, but no decision had yet been

rendered. The potential seriousness of the proceeding was beyond

dispute, but at that stage, particularly given the novelty of the

proceeding, its outcome could hardly have been foreseen. There is

no reason to think that Judge McBryde would have had it in for the

clients of people who were testifying against him. Every judge must

8
develop a thick skin against criticism, and most judicial conduct

complaints come to nought. A reasonable person, knowing all the

circumstances, would not have had reason to doubt the judge’s

impartiality toward these defendants. See In re Hipp, Inc., 5 F.3d

109, 116 (5th Cir. 1993).

The public defenders were not responsible for convening

the hearing. There is no meaningful distinction between their

testimony against Judge McBryde in the hearing and lawyers’ publicly

questioning a presiding judge’s impartiality or ability to handle

a case.4 Yet the impact of this criticism is treated differently by

the panel, apparently because it later resulted in sanctions against

Judge McBryde.

The panel’s unwarranted and stringent standard for

recusals will hinder the effective administration of justice.

Although courts must be mindful that maintaining the appearance of

partiality is at least as important as its actuality, federal judges

equally have a duty to sit on cases properly before them. See In

re Drexel Burnham Lambert Inc., 861 F.2d 1307, 1312 (2d Cir. 1988)

(“A judge is as much obliged not to recuse himself when it is not

called for as he is obliged to when it is.”); Hinman v. Rogers, 831

F.2d 937, 939 (10th Cir. 1987) (“There is as much obligation for a

judge not to recuse when there is no occasion for him to do so as

4
In fact, the disciplinary hearing testimony was in one
regard even less threatening than garden-variety public criticisms
because the proceedings were held in secret and could not be made
public without Judge McBryde’s consent.

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there is for him to do so when there is.”). They must not cower

before heavy-handed attempts to stifle their independence by false

attacks on their integrity.

The panel’s opinion raises at least three sets of

problems. First, these federal public defenders essentially assert

that the judge could not be impartial to their clients because of

what they (the lawyers) did to him, which they allege created an

extrajudicial source of influence or prejudice. Does this suggest

that any aggressive lawyer who faces the prospect of a trial before

a judge he dislikes could file a spurious misconduct complaint

against the judge, give an unflattering interview to the press, or

otherwise publicly rebuke the judge, and then seek his recusal? In

fact, “courts have typically rejected recusal motions based on ...

a litigant’s deliberate act of criticizing the judge or judicial

system.” United States v. Owens, 902 F.2d 1154, 1156 (4th Cir.

1990). The First Circuit once repeated Judge Charles Wyzanski’s

colorful comments on such a situation: “[I]t rather surprises me

that a person has any status at the end of the first half of the

game to suggest that the referee, who was qualified at the

beginning, is disqualified at the middle because in the meantime the

player has been cursing the referee outside of court.” In re Union

Leader Corp., 292 F.2d 381, 388 (1st Cir. 1961). See also 13A

Charles Alan Wright et al., Federal Practice and Procedure § 3542,

at 577-78 (2d ed. 1984) (“A party cannot force disqualification by

attacking the judge and then claiming that these attacks must have

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caused the judge to be biased against him ....”).

Second, there is even less reason to think that a judge

would react impartially to a defendant represented by the Federal

Public Defender’s Office. The judge knows that the client had no

choice of counsel and that no significant “punishment” could be

inflicted on counsel by treating the criminal defendant unfairly.

Moreover, the general rule is that disqualification motions should

focus on the appearance of partiality against the party, not

counsel. See Davis v. Board of Sch. Comm’rs, 517 F.2d 1044, 1050,

1052 (5th Cir. 1975); see also 13A Federal Practice and Procedure

§ 3542, at 575-76. That rule has passed unnoticed by the majority.5

Third, the panel’s reasoning provides no basis for

believing that attorneys who testified in favor of Judge McBryde

should be treated differently from those who testified against him.

Partiality includes favoritism for, as well as antipathy against,

a party. If a judge cannot be supposed to be impartial toward those

who testified against him, how could he not be equally grateful to

-- and favorably disposed toward -- any attorneys who testified on

his behalf?

The panel’s holding will allow some attorneys to get

unfavorable judges disqualified from their cases. Simultaneously,

5
The rule is a general one with exceptions. Potashnick v.
Port City Constr. Co., 609 F.2d 1101 (5th Cir. 1980), for example,
found the judge’s prior contacts with the plaintiff’s attorney
justified disqualification, but it involved much more egregious
circumstances than these cases.

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it will eliminate incentives for other attorneys to stand up for a

judge once allegations of misconduct are lodged against him, for

fear of having him disqualified from their future cases. This is

nothing short of perverse and cannot be what Congress contemplated

when it created § 455(a).

Where recusal could lead to so many problems and where

Judge McBryde was necessarily unaware of the ultimate conclusion of

the disciplinary proceeding, I would hold that it was not an abuse

of discretion for Judge McBryde not to recuse.

II.

Even if Judge McBryde’s failure to recuse himself were

error, it would be harmless error. My colleagues conclude summarily

that the error is “reversibl[e]” in both cases. Their method

ignores the Supreme Court’s approval of harmless error analysis in

the § 455(a) context. See Liljeberg v. Health Servs. Acquisition

Corp., 486 U.S. 847, 862, 108 S. Ct. 2194, 2203-04 (1988) (“There

need not be a draconian remedy for every violation of § 455(a).”).

This court has generally applied a three-prong harmless

error test after finding a § 455(a) violation. See, e.g., United

States v. O’Keefe, 128 F.3d 885, 892 (5th Cir. 1997), cert. denied,

118 S. Ct. 1525 (1998); Air Line Pilots Ass’n, Int’l v. Continental

Airlines, Inc. (In re Continental Airlines Corp.), 901 F.2d 1259,

1263 (5th Cir. 1990). That test involves weighing “(1) the risk of

injustice to the parties in this particular case, (2) the risk that

12
denial of relief will produce injustice in other cases, and (3) the

risk of undermining the public’s confidence in the judicial

process.” O’Keefe, 128 F.3d at 891. The full analysis shows that

the sentences here were harmless error.

The risk of injustice to the parties is mitigated by the

appellate court’s ability to review the challenged decision. Here,

no abuse of discretion in sentencing is alleged, and in fact, no

error at all is alleged in regard to the guilty pleas or sentences

other than failure to recuse. The parties’ rights were inherently

protected from arbitrariness by the Sentencing Guidelines. The mere

fact that the judge sentenced defendants beyond the minimum of the

Guidelines ranges does not imply partiality. Given the easily

articulable explanations for greater-than-minimum sentences, it

cannot be said that defendants have suffered prejudice. In

Anderson’s case, especially, there was no hint of prejudice: the

Guidelines range was narrow (only nine months’ variation) and the

probation officer had recommended an upward departure because

Anderson carried his two-year-old son in his arms as he robbed a

bank. In Avilez-Reyes’s case, the Guidelines range was broader, but

Avilez-Reyes was sentenced in the lower half and there was evidence

to show that he had possessed more than 1.7 kilograms of

methamphetamine. Allowing these sentences to stand creates no

significant risk of injustice to the parties in these cases.

There is also no risk of injustice in future cases

because, if the Judicial Council’s order stands, Judge McBryde is

13
required to recuse from cases involving these attorneys for three

years. Furthermore, assuming, as the majority does, that there is

a § 455(a) violation here, district judges will not fail in the

future to recuse themselves from cases involving attorneys who

testify against them in judicial disciplinary proceedings. Cf.

O’Keefe, 128 F.3d at 893 (“our decision aids ... justice in other

cases because it clarifies an unclear area of the law and serves as

a caution to district court judges”); O’Neill v. Continental

Airlines, Inc. (In re Continental Airlines), 981 F.2d 1450, 1463

(5th Cir. 1993); Air Line Pilots, 901 F.2d at 1263 (“rather, our

ruling here should serve as a caution to other judges [in the same

situation]”).

Finally, there is little risk that public confidence in

the judicial process would be undermined by allowing the defendants’

sentences to stand. The Judicial Council’s much publicized order

should reassure the public that Judge McBryde cannot visit

retaliation upon those who testified against him. In these cases,

to the contrary, only a legal technicality can cause that fear of

retaliation to “relate back” to the beginning of the disciplinary

proceedings, when it was not clear that the public defenders’

testimony had more weight than any other out-of-court criticisms or

defenses of the judge. It is likely that the public will see the

panel’s needless vacatur of the defendants’ sentences as a strike

against the judicial process. Cf. O’Keefe, 128 F.3d at 893

(“decisions that are based on technicalities and do not reach the

14
merits of the case increase public distrust of the legal system”).

Thus, under the three-prong harmless error analysis, these

sentences should stand.

Even in Jordan, a case relied upon by my colleagues, the

court weighed different remedies,6 ultimately refusing to reverse a

conviction but vacating an “excessively harsh” sentence. United

States v. Jordan, 49 F.3d 152, 158-59 (5th Cir. 1995). In vacating

the sentence, the Jordan court highlighted both its “apparent

harshness” and the judge’s “unbridled sentencing discretion ... in

[that] pre-Guidelines case.” Id. at 159. By contrast, Judge

McBryde sentenced the defendants in these cases within the

Guidelines, and, as discussed above, there can be no argument that

his sentences were harsh. No abuse of the sentencing prerogative

has been alleged by either defendant.

III.

The panel’s decisions in these cases needlessly pile on

the prior actions of the Judicial Council of the Fifth Circuit,

which has publicly reprimanded Judge McBryde and subjected him

essentially to a temporary impeachment. Not only did the Council

hold that the judge may be assigned no new cases for one year, but

it also purported to require Judge McBryde, for three years after

February 6, 1998, to recuse from all matters in his court involving

6
The Jordan court did not apply the three-prong test that
other Fifth Circuit panels have used, but it did touch on many of
the same concerns.

15
attorneys who testified against him in the disciplinary proceeding

(including the federal public defenders in these two cases). The

propriety of the Council’s order is not an issue in these cases and

should not be a basis for the majority’s decision. But whatever the

order’s propriety, it is an entirely different matter to “sanction”

Judge McBryde by enforced recusal after the disciplinary proceedings

have been concluded, than it is to use that sanction as a basis for

challenging his impartiality in decisions he made before the outcome

of the proceedings had been determined. Many accusations and

charges were made against Judge McBryde, the exact substance and

nature of which are unclear, unspecified in the public record, and

unknown even by most members of the Fifth Circuit.7 Nevertheless,

as far as I am aware, no one has ever questioned Judge McBryde’s

integrity or his ability to render decisions impartial to the

7
In the lawsuit Judge McBryde has filed in the District Court
for the District of Columbia, he characterizes the testimony
against him as having focused on the following topics:

Judge McBryde’s imposition of sanctions for litigation
misconduct; his decisions to reject plea agreements; his
practices with respect to settlement conferences; his
criticisms of attorneys for lack of good faith compliance
with rules and orders; his rulings in the Satz and Torres
cases; and his procedural rulings at trial, such as the
time allotted for opening statements and his rulings
cutting off repetitive questioning.

Complaint ¶ 43, McBryde v. Committee to Review Circuit Council
Conduct and Disability Orders, No. 1:98CV02457 (D.D.C).
Judge McBryde’s rulings in the Satz and Torres cases were at
the genesis of the judicial conduct proceeding. Judge McBryde’s
authority to make those rulings was upheld by this court in In re
McBryde, 117 F.3d 208 (5th Cir. 1997), cert. denied, 118 S. Ct.
2340 (1998).

16
parties before him. If anything, the substance of the allegations

against him concerned alleged abuse of all lawyers appearing in his

court. Ironically, what is public is that one of the initial

charges against Judge McBryde, later apparently dropped, was that

he investigated too vigorously the actions of the government in

regard to a criminal defendant and intervened too actively to

protect the defendant’s rights.

Our court would be better off and would itself look more

impartial if we simply applied our pre-existing precedents to these

cases and affirmed the appellants’ sentences as having been imposed

well within the guidelines set by Congress through the United States

Sentencing Commission.

I respectfully dissent.

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