United States v. Bremers

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 98-10716

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

VERSUS

ALFRED E. BREMERS; LEON W. SNEARLY, also known as Butch Ji Alish
Tasen; ROBERT W. STEWART, III,

Defendants - Appellants.

Appeals from the United States District Court
for the Northern District of Texas
November 9, 1999

Before POLITZ, DeMOSS, and BENAVIDES, Circuit Judges,

DeMOSS, Circuit Judge:

This is a consolidated direct appeal by three co-defendants,

Alfred E. Bremers (“Bremers”), Leon W. Snearly, aka Butch Ji Alish

Tasen (“Snearly”), and Robert W. Stewart, III (“Stewart”), from the

judgments and sentences entered by the United States District Court

for the Northern District of Texas, Judge John H. McBryde,

presiding. Among the numerous issues raised by each defendant on

appeal is a claim by each that the district judge committed

reversible error by failing to recuse himself from their cases.
We agree, and because we find, for the reasons which follow, that

the district judge should have recused himself, we vacate each

defendant’s conviction and sentence and remand for a new

consolidated trial before a different district judge. Our holding

in this regard renders the defendants’ various other issues on

appeal moot, and with the exception of Stewart’s contention that

the district court erred in failing to grant his motion for relief

from prejudicial joinder, those issues are not addressed by this

opinion.

I. Background

The three defendants were named, along with James L. Cox

(“Cox”), in a 22-count indictment returned in the Fort Worth

Division of the Northern District of Texas on September 17, 1997.

The scheme to defraud alleged in that indictment charged Bremers,

Cox, Snearly, and Stewart with defrauding individuals by inducing

them to invest monies in fraudulent gas and oil programs, for a

period of time spanning from 1990 to 1993. All tolled, investors

throughout the United States and Europe invested nearly $10,200,000

in the defendants’ oil and gas programs.

With respect to the indictment returned against the

defendants, counts one through six charged all four co-defendants

with mail fraud, in violation of 18 U.S.C. § 1341; counts seven

through nineteen charged all four co-defendants with causing the

transportation of stolen securities in interstate commerce, in

violation of 18 U.S.C. § 2314; and counts twenty and twenty-one

2
charged Bremers and Cox with money laundering, in violation of 18

U.S.C. § 1956(a)(1)(B)(I). The indictment also charged that the

named defendants aided and abetted the offenses charged in counts

one through twenty-one. Cox was also charged individually in count

twenty-two with money laundering. Cox pleaded guilty to count one

of the indictment, and pursuant to a plea and cooperation

agreement, he agreed to testify on behalf of the government at the

jury trial of Bremers, Snearly, and Stewart.

On September 18, 1997, the district court appointed the

Federal Public Defender to represent Bremers. Assistant Federal

Public Defender Peter Michael Fleury accepted the appointment and

appeared before Judge McBryde on Bremers’ behalf for his initial

appearance hearing. On September 26, 1997, Assistant Federal

Public Defender Douglas C. Greene appeared on Bremers’ behalf for

his arraignment. No formal substitution of counsel was made a

matter of record, however the record reveals that Greene became

Bremers’ trial counsel from that point forward.

During the months of August and September 1997, several of

Greene’s colleagues in the Federal Public Defender’s office offered

testimony against Judge McBryde before a special investigatory

committee of the Fifth Circuit Judicial Council. See In re:

Matters Involving United States District Judge John H. McBryde,

Under the Judicial Conduct and Disability Act of 1980, No. 95-05-

372-0023 (Jud. Council 5th Cir. Dec. 31, 1997), aff’d, No. 98-372-

3
001 (Jud. Conf. U.S. Sept. 21, 1998). Greene did not himself

offer testimony against Judge McBryde, however, Ira Kirkendoll, the

Federal Public Defender for the Northern District of Texas, and

Paul Stickney, who was Greene’s immediate supervisor, did.

Additionally, Peter Fleury, who had appeared before Judge McBryde

on behalf of Bremers on at least one occasion, also offered

testimony against Judge McBryde.

On February 2, 1998, Bremers moved Judge McBryde to recuse

himself from the case pursuant to 28 U.S.C. § 455(a) and on the

basis that a reasonable person, knowing all of the facts and

circumstances, would have questioned Judge McBryde’s ability to sit

impartially as the judge in Bremers’ criminal trial. On

February 9, 1998, the government filed its written response in non-

opposition to the motion for recusal, stating that it believed

“such motion is well-taken, and should be granted.”

On the very day the government expressed its non-opposition to

Bremers’ motion for recusal, the Judicial Council issued an order

directing the Clerk of the Court for the Northern District of Texas

to reassign to a judge other than Judge McBryde each of those cases

designated in Attachment “B” thereto because at least one of the

attorneys listed in Attachment “A” thereto was involved in such

cases. On February 10, 1998, Chief Judge Jerry Buchmeyer of the

Northern District of Texas, entered a special order, pursuant to

the Council’s February 9 order, transferring all of the Attachment

“B” cases from the docket of Judge McBryde to the docket of Judge

4
Terry R. Means. The same day, Chief Judge Buchmeyer entered an

amended special order indicating that the case of United States v.

Bremers, 4:97-CR-0111, was not transferred because it did not

involve an Attachment “A” attorney. The amended order again

transferred all Attachment “B” cases to Judge Means, however, the

Attachment “B” accompanying the amended special order omitted the

Bremers case. This is best explained by the fact that on February

11, 1998, Gregory A. Nussel, Secretary to the Judicial Council,

transmitted to Chief Judge Buchmeyer an amended Attachment “B”

which reflected the amended list of cases provided the Council by

the district clerk’s office.

On February 10 and 11, 1998, Judge McBryde sent two memoranda

to Chief Judge Buchmeyer in which he expressed his “urgent need of

information” regarding the Bremers case. In his memoranda, Judge

McBryde characterized the Judicial Council’s February 9 order as

“unlawful,” but conceded that he was bound by it; he also requested

clarification as to whether he would be permitted to continue

presiding over the Bremers case, suggesting that he would be “glad

to do so.” In either event, Judge McBryde expressed his concern

that the unopposed motion for recusal needed to be addressed as the

Bremers trial was set for February 17, 1998.

Chief Judge Buchmeyer responded to Judge McBryde on February

11, 1998, informing him that the Attachment “A” attorney, Peter

Fleury, had only made an initial appearance for Bremers and was

replaced by Doug Greene, and as a result, the Judicial Council had

5
approved the substitution of the amended Attachment “B” which was

provided by the district clerk’s office and which excluded the

Bremers case. Thus, Judge McBryde was to retain the Bremers case.

Upon being so advised, Judge McBryde entered an order in the

Bremers case the following day, February 12, 1998, explaining why

he was going forward with the handling of the case. He noted his

assumption that “the Judicial Council does not interpret its order

as prohibiting [Judge McBryde] from participating in any action

simply because an attorney listed in the Attachment A supervises an

attorney who is currently providing representation to a party to

the action.” Judge McBryde ordered that any party contending that

he should not preside was to file, by 3:30 p.m. that afternoon, “a

document making known her or his position on that subject, spelling

out specifically the reasons why such position is being taken by

that party, all facts relied upon . . . , and all legal authorities

relied upon . . . in support of that position.” Judge McBryde

further advised that the failure to timely do so would be deemed a

waiver of any objection to his presiding over the case, and he set

a hearing for the following morning, Friday, February 13, 1999, at

8:30 a.m.

The day of February 12, 1998, was a busy one in the district

clerk’s office. At 11:43 a.m., defendant Stewart filed a motion

for recusal and for continuance. Upon his receipt thereof, Judge

McBryde entered another order requiring all parties to file their

response to Stewart’s motion by 3:30 p.m. that afternoon. At 3:09

6
p.m., the government filed its opposition to Stewart’s motion. At

3:35 p.m., Bremers renewed his motion to recuse and joined in

Stewart’s motion. And at 3:47 p.m., defendant Snearly filed his

motion for recusal.

At the hearing on the motions for recusal, the government,

through three separate attorneys, expressed its agreement with

Bremers’ motion for recusal. At one point during Judge McBryde’s

questioning of the government regarding its position, the following

colloquy occurred:

THE COURT: And is your office telling me that if you were
to be successful in the trial of this case that you would
stipulate in an appeal by any of the defendants that
error was committed?

MR. BARTA: We would have to look at that in totality of
facts, but there is certainly a chance that we would have
to make a confession of error, yes, sir.

THE COURT: In other words, there’s a possibility that if
I were to go forward with the trial of this case, that
the government would stipulate error if a defendant
appealed from an adverse judgment in this case.

MR. BARTA: That is correct, Your Honor.

Despite the government’s agreement with the merits of Bremers’

motion for recusal, Judge McBryde nonetheless overruled all of the

motions for recusal stating that he had “a legal obligation to

preside” and “no obligation to recuse in this case.”1 On the date

1
The record indicates that Judge McBryde’s demeanor at this
hearing, was obviously defensive. In response to the government’s
reference to the “general order addressing cases in which you were
recused,” Judge McBryde responded, “I haven’t been recused in any
case, Mr. Barta. I hope you understand that. There’s an order
that I will not participate in certain cases. Is that the order

7
of the hearing, he entered two separate orders denying Bremers’ as

well as both Stewart’s and Snearly’s motions for recusal.

Trial commenced several days later on February 17, 1998.

During the trial, the government waived counts five, six, and

thirteen. And on February 24, 1998, the jury returned its verdict,

finding each of the three defendants guilty on at least some of the

charged counts of the indictment. Specifically, the jury found

Bremers guilty as to all counts, it found Snearly guilty of five

counts of transportation of stolen securities (counts eight through

eleven, and fourteen), and it found Stewart guilty of six counts of

transportation of stolen securities (counts seven through twelve).

On May 29, 1998, Bremers was sentenced by Judge McBryde. He

received a 121-month aggregate term of imprisonment and was ordered

to pay restitution in the amount of $6,737,077.

On August 28, 1998, Snearly was sentenced by Judge McBryde.

He received a 46-month aggregate term of imprisonment and was

ordered to pay restitution in the amount of $4,963,647.

Also on August 28, 1998, Stewart was sentenced by Judge

McBryde. He received a 41-month aggregate term of imprisonment and

was ordered to pay restitution in the amount of $5,379,246.

II. Recusal

The three defendants appeal Judge McBryde’s refusal to recuse

himself pursuant to 28 U.S.C. § 455(a), contending that he abused

you’re referring to?”

8
his discretion in finding that a reasonable person knowing all of

the circumstances of this case would not question his impartiality.

The defendants seek to have their convictions vacated and to have

their cases remanded for a new trial before a different district

judge.

Title 28, United States Code, section 455(a) governs the

defendants’ recusal motions and requires that “[a]ny justice, judge

or magistrate of the United States shall disqualify himself in any

proceeding in which his impartiality might reasonably be

questioned.” Id. Since the goal of section 455(a) is to avoid

even the appearance of impropriety, see Liljeberg v. Health Svcs

Acquisition Corp., 486 U.S. 847, 860 (1988), recusal may well be

required even where no actual partiality exists. See Hall v. Small

Business Admin., 695 F.2d 175, 178 (5th Cir. 1983). A motion for

recusal is committed to the discretion of the district judge, and

the denial of such a motion will only be reversed upon the showing

of an abuse of such discretion. See United States v. Anderson, 160

F.3d 231, 233 (5th Cir. 1998).

Our Circuit has recognized that section 455(a) claims are fact

driven, and as a result, the analysis of a particular section

455(a) claim must be guided, not by comparison to similar

situations addressed by prior jurisprudence, but rather by an

independent examination of the unique facts and circumstances of

the particular claim at issue. See United States v. Jordan, 49

9
F.3d 152, 157 (5th Cir. 1995). Thus, if a reasonable man,

cognizant of the relevant circumstances surrounding a judge’s

failure to recuse, would harbor legitimate doubts about that

judge’s impartiality, then the judge should find that section

455(a) requires his recusal. See Anderson, 160 F.3d at 233 (citing

In re Faulkner, 856 F.2d 716, 721 (5th Cir. 1988)). Consequently,

a district judge’s failure to recuse himself in such circumstances

would constitute an abuse of discretion.

At first blush, our decision in United States v. Vadner, 160

F.3d 263 (5th Cir. 1998), would seem to control our analysis of

Judge McBryde’s denial of Bremers’ motion for recusal. But, upon

further analysis, the additional unique factual circumstances of

this case convince us that reliance on a comparison to the similar

situation involved in Vadner, would be, as we stated in Jordan,

inappropriate. In Vadner, we held that Judge McBryde was not

required to recuse himself sua sponte merely because Vadner’s

attorney, the same Doug Greene representing Bremers, worked in the

Federal Public Defender’s office with lawyers who testified against

Judge McBryde in hearings before the Judicial Council. In Vadner,

we went on to say that, irrespective of the untimeliness of

Vadner’s motion for recusal, “we reject the suggestion that the

mere fact that several attorneys with the Federal Public Defender’s

office offered testimony adverse to Judge McBryde . . . constitutes

such an inherent and pervasive specter of impartiality that any

10
time a lawyer from the same office appears in Judge McBryde’s court

Judge McBryde’s failure to recuse himself sua sponte would be

error.” Vadner, 160 F.3d at 264. Additionally, it bears

mentioning that no motion for recusal of Judge McBryde was filed at

the trial level in Vadner’s case, and the issue was raised only on

appeal.

Our decision in Vadner did not address the situation which is

before us in this appeal; that is, a situation wherein the

government effectively joined in Bremers’ motions for recusal which

were timely filed. Indeed, Bremers’ first motion was filed prior

to the Judicial Council’s order directing the transfer of listed

cases from Judge McBryde’s docket, including the Bremers case, due

to the appearance of partiality which would accompany Judge

McBryde’s continued involvement in cases in which a testifying

attorney had appeared, was appearing, or would appear within a

period of three years.

We hold that on the facts of this case, Judge McBryde abused

his discretion and reversibly erred by failing to recuse himself

from Bremers’ case. We conclude that a reasonable person,

cognizant of all the circumstances of this case as they existed at

the time Bremers’ motions for recusal were filed, would harbor

doubts as to Judge McBryde’s impartiality, especially where those

circumstances include: (1) the fact that all parties, including the

government, agreed that recusal was required; (2) the fact that the

Fifth Circuit Judicial Council’s February 9 order suggested that

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Judge McBryde’s own colleagues believed that there would be at

least an appearance of impartiality if Judge McBryde were to

continue presiding over a case involving any of the attorneys

listed in Attachment “A”; (3) the fact that one of the Attachment

“A” attorneys who testified against Judge McBryde, Peter Fleury,

had appeared before Judge McBryde on at least one occasion on

behalf of Bremers in this case; (4) the fact that Bremers’ case was

the only case listed on Attachment “B” that Judge McBryde was able

to retain on his docket; (5) the fact that Judge McBryde’s ability

to retain that case arose exclusively from a misunderstanding

concerning Peter Fleury’s involvement in the case; and finally, (6)

the fact that Bremers’ case went to trial within one week of the

Council’s original order forbidding Judge McBryde from

participating in the case. In light of the impassioned atmosphere

surrounding entry of the Council’s order, the reassignment of

cases to other judges, Judge McBryde’s handling of the motions for

recusal, his tenacious insistence that he was not recused by the

Council’s “unlawful” order, and Judge McBryde’s exclusive reliance

upon his own subjective belief that he could remain impartial when

denying the motions to recuse, we conclude that a reasonable person

would most certainly harbor doubts as to Judge McBryde’s ability to

remain impartial. We also find Bremers’ motion for recusal to be

timely and well-taken in all other relevant respects.

Additionally, we also conclude that Judge McBryde abused his

discretion by failing to recuse himself, absent severance, from the

12
trial of defendants Stewart and Snearly. While neither of these

two defendants were represented by the Federal Public Defender’s

office, they contended that since all defendants would be tried

together, they would also suffer the consequences of any rancor the

court felt toward Greene and his associates.2 Judge McBryde

dismissed their “spillover prejudice” argument as meritless. We

agree with the defendants. Absent severance, the entire case was

infected with the same appearance of impartiality which plagued

Judge McBryde’s involvement in Bremers’ individual case. And

again, we conclude that a reasonable person, aware of all the

circumstances, would harbor doubts as to whether Judge McBryde

2
We note that Judge McBryde was already familiar with the
charges against the three defendants and with their alleged
involvement in a fraudulent scheme based upon his having presided
over a related civil fraud case filed by the Securities and
Exchange Commission against the defendants. When the jury in that
case returned its verdict, Judge McBryde made a statement to the
effect of the following:
I want to congratulate the jury on being able to work
your way through this and I think you reached an entirely
acceptable verdict. I am not sure what I would have
done, but I believe I would have done the same thing as
you did. I don’t know that the dollar amounts would have
been exactly the same, but I think what you did was about
what I would have done if I had been deciding the facts.
Defendants allege that these statements alone constitute grounds
for Judge McBryde’s recusal. We have held that opinions that a
judge forms “based on information that he acquires in earlier
proceedings are not subject to deprecatory characterizations as
bias or prejudice, for it has long been regarded as normal and
proper for a judge to sit . . . in successive trials involving the
same defendant.” United States v. Mizell, 88 F.3d 288, 300 (5th Cir.
1996)(quoting Liteky v. United States,510 U.S. 540, 551
(1994))(internal quotations and alterations omitted). While these
statements themselves do not require recusal, we consider this
circumstance another factor in the totality of the circumstances
which would be considered by an impartial observer.

13
could provide all three defendants with an impartial trial. Thus,

without severance, it was improper for Judge McBryde to preside

over the trials of Stewart and Snearly, and his failure to recuse

himself was an abuse of his discretion.

III. Prejudicial Joinder

Stewart argues that the district court erred when it denied

his motion for relief from prejudicial joinder which he filed

pursuant to Fed.R.Crim.P. 14. The basis for his motion and his

argument on appeal is, that during some of the conduct alleged in

the indictment, Stewart no longer worked for the company that was

the target of the indictment and was instead working for two other

companies.

The appropriate standard of review for a claim of prejudicial

joinder is the abuse-of-discretion standard. See United States v.

Faulkner, 17 F.3d 745, 758 (5th Cir. 1994). In order to establish

such an abuse, a defendant must establish that he received an

unfair trial and that he suffered specific and compelling prejudice

against which the trial court was unable to provide protection.

See United States v. Erwin, 793 F.2d 656, 665 (5th Cir. 1986);

United States v. Romanello, 726 F.2d 173, 177 (5th Cir. 1984). The

mere possibility that a separate trial may have offered a better

chance of acquittal is insufficient. See United States v.

Berkowitz, 662 F.2d 1127, 1132 (5th Cir. 1981). In considering the

exercise of its discretion, a district court must balance the

14
potential for prejudice against the public interest in joint trials

where the cases against separate defendants arise from the same

general transactions or occurrences, and it is appropriate for the

court to factor in the interests in judicial economy. See

Berkowitz, 662 F.2d at 1132.

Stewart claims that he was no longer working for the target

company, and that he was not “part of the inner circle of those

running” that company during part of the time alleged in the

indictment. While Stewart may not have been working directly for

the target company, the record establishes that he was continuing

to market the unlawful oil and gas program investments through his

new companies.

Contrary to his burden, and aside from his blanket assertion,

Stewart has not demonstrated any specific and compelling prejudice

which could justify our conclusion that the district court abused

its discretion in denying Stewart’s motion for relief from

prejudicial joinder. We conclude that the interests of judicial

economy warranted joinder of the three defendants for trial, and we

hold that the district court did not abuse its discretion in

failing to sever Stewart’s trial.3

IV. Conclusion

We find that Judge McBryde committed reversible error by

3
We note, however, that severance of defendants Stewart and
Snearly would have been an appropriate remedy to cure the spillover
prejudice which resulted from Judge McBryde’s failure to recuse
himself from Bremers’ case.

15
failing to recuse himself from Bremers’ case, and without

severance, he also committed reversible error in failing to recuse

himself from Stewart’s and Snearly’s cases. We further find that

there would be no error were these three defendants joined for

trial before a different district judge upon remand.

Accordingly, we VACATE the convictions and sentences of

defendants Bremers, Stewart, and Snearly, and REMAND this case to

the Northern District of Texas. We further direct the Chief Judge

of the Northern District of Texas to reassign this case for a new

trial before a different district judge in that district.

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