UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 93-2376
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
BETTY JORDAN,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(March 24, 1995)
Before REYNALDO G. GARZA, WIENER, and EMILIO M. GARZA, Circuit
Judges.
REYNALDO G. GARZA, Circuit Judge:
Defendant appeals her convictions of wire fraud and money
laundering. We find that the district judge abused her discretion
for failing to recuse herself pursuant to 28 U.S.C. § 455(a), as
the facts underlying this case create an appearance of impropriety.
After reviewing the record we have concluded that the conviction
should stand. The sentence, however, must be vacated in order to
maintain the integrity of the judicial system. Accordingly, we ask
1
the Chief Judge of the Fifth Circuit to designate a judge outside
of the Southern District of Texas to resentence Appellant and hold
any other appropriate proceedings necessary to effectuate this
opinion.
Background
Defendant and her husband owned the Houston-based trucking
company, Irish & Cherokee Transportation, Inc (ICT). Defendant
directed the financial operations of ICT. Redex, a Salt Lake City-
based corporation, was engaged in the business of factoring
trucking company's freight invoices.1 ICT executed an agreement
with Redex in February of 1987 to sell its overdue accounts
receivable to Redex.
Defendant fabricated invoices by creating forty-five company
names to identify purported shippers with which ICT did business.
These fictitious invoices were then combined with legitimate
invoices and sent to Redex. ICT factored over 500 invoices through
Redex during the period alleged in the indictment. The total loss
suffered by Redex due to the fictitious accounts totalled
approximately $800,000.00. Defendant transferred the factored
funds through several banks in different states by wire transfer.
On June 25, 1992, in the United States District Court for the
Southern District of Texas, Defendant was indicted for wire fraud
and money laundering. After a jury trial, Defendant was convicted
1
Factoring involves the buying of overdue accounts receivable
at a discount and then attempting to collect on the overdue
accounts.
2
of two counts of money laundering and nine counts of wire fraud.
The Honorable Judge Melinda Harmon sentenced Defendant to
concurrent terms of five years' imprisonment for each wire fraud
conviction, and to consecutive terms of twenty years' imprisonment
for the money laundering convictions.2 Defendant was also ordered
to pay the unpaid balance of $418,921.00. This appeal ensued.
I.
The substance of Appellant's complaint is that, because of the
relations between Judge Melinda Harmon and Michael Wood, the
publicity and bad feelings arising from a series of legal incidents
that occurred several years earlier, and the lengthy sentence term
imposed, a reasonable person would question Judge Melinda Harmon's
impartiality. Courts have repeatedly expressed the importance of
an impartial judiciary: "[o]ne of the fundamental rights of a
litigant under our judicial system is that he is entitled to a fair
trial in a fair tribunal, and that fairness requires an absence of
actual bias or prejudice in the trial of the case." United States
v. Wade, 931 F.2d 300, 304 (5th Cir.) (quoting United States v.
Brown, 539 F.2d 467, 469 (5th Cir. 1976)), cert. denied, 112 S.Ct.
247 (1991); In re Murchison, 349 U.S. 133, 136 (1954). The right
to a fair and impartial trial is fundamental to the litigant;
fundamental to the judiciary is the public's confidence in the
impartiality of our judges and the proceedings over which they
2
One of the money laundering sentences was later suspended
pending five years' probation.
3
preside. "Justice must satisfy the appearance of justice." In re
Murchison, 349 U.S. at 136. This is the very purpose of 28 U.S.C.
§ 455(a); Section 455(a) provides that a judge shall recuse
herself from any proceeding in which her impartiality might
reasonably be questioned. The Supreme Court, in Liljeberg v.
Health Services Acquisition Corp., 486 U.S. 847, 860-61 (1988),
described the standard as whether a reasonable and objective
person, knowing all of the facts, would harbor doubts concerning
the judge's impartiality.3 "The goal of section 455(a) is to avoid
3
The dissent contends that Liteky v. United States, 127
L.Ed.2d 474 (1994), has modified this standard to require an
"impossibility of fair judgment" test. A thorough reading of the
opinion, however, reveals that Liteky has not changed the § 455(a)
recusal standard, nor is the impossibility of fair judgment test
implicated in the case sub judice, nor is the extension proposed by
the dissent warranted. The Supreme Court was faced with the issue
of determining whether the "extrajudicial source" doctrine survived
the amended version of § 455(a). The traditional meaning of the
extrajudicial source doctrine is that a recusal motion must be
based on a source outside of the proceedings. To state it in the
negative, recusal can not be based on an opinion or bias developed
during the course of judicial proceedings. The Court held that
while § 455(a) does not require an opinion of a judge to originate
from a source outside of the proceedings to create an appearance of
impartiality, opinions formed during the proceedings do not
constitute a basis for recusal unless the opinion "display[s] a
deep-seated favoritism or antagonism that would make fair judgment
impossible." Id. at 491.
The Court neither stated nor implied that this impossibility
of fair judgment test would supplant the reasonable person standard
in cases involving alleged bias from an extrajudicial source. The
Court found recusal unwarranted in Liteky because "all [the grounds
for recusal] occurred in the course of judicial proceedings and
neither (1) relied upon knowledge acquired outside such
proceedings, nor (2) display deep-seated and unequivocal antagonism
that would render fair judgment impossible." It is clear that if
and only if the allegations of bias arose from the proceedings is
the impossibility of fair judgment test implicated. In fact, the
concurrence criticized the majority for creating a different and
more stringent standard for allegations of intrajudicial bias. The
concurrence discerned no reason for requiring two different
standards, one for the extrajudicial source, and one for the
4
even the appearance of partiality." Id. at 860. Put simply,
avoiding the appearance of impropriety is as important in
developing public confidence in our judicial system as avoiding
impropriety itself.
In 1989, Appellant owed a judgement in state court.4 Michael
Wood was appointed receiver over ICT, Appellant's company. Both
sides concede that a hostile relationship developed between Michael
Wood and Appellant due to the receivership appointment. On
November 21, 1989, Appellant allegedly attempted to drive a truck
off ICT property in violation of the receivership arrangement.
Michael Wood attempted to stop her. Appellant's daughter
intrajudicial source of alleged bias.
Moreover, we disagree with the dissent and refuse to extend
the impossibility of fair judgment test to situations for which the
standard was not designed. To apply this limited standard
universally would destroy the § 455(a) appearance of impartiality
standard by effectively requiring a showing that the judge actually
harbored "deep-seated favoritism or antagonism that would make fair
judgment impossible." The standard for recusal in situations like
the case sub judice, continues to be whether a reasonable person,
knowing all the facts, would question the judge's impartiality.
4
The facts underlying the series of incidents between Michael
Wood and Appellant are not crystal clear. Provided in the trial
record is Appellant's affidavit. Additionally, upon request of
this Court, the parties supplied us additional information. The
facts discussed in this opinion are compiled mainly from the
information provided to this Court by the parties on appeal. It is
not clear whether Judge Melinda Harmon was aware of the details
underlying the incidents between Michael Wood and Appellant.
Assuming that Judge Melinda Harmon was unaware of all the facts,
however, does not foreclose recusal. We are not asking that the
Honorable Judge Melinda Harmon have performed the impossible, that
is, to disqualify herself based on some facts she did not know. As
Liljeberg has made clear, facts not known at the time of the
recusal motion are still considered in determining whether the
judge should have been recused. Liljeberg, 486 U.S. at 861.
Section 455(a) may be applied retroactively by rectifying an
oversight and taking the steps necessary to maintain public
confidence in the impartiality of the judiciary.
5
interposed her car between Michael Wood and Appellant, effectuating
Appellant's escape. On November 29, 1989, Michael Wood filed a
motion for contempt in the civil bankruptcy receivership case. The
state district court granted the motion and Appellant was placed in
custody. On appeal the order was overturned. On January 5, 1990,
Michael Wood filed theft charges against Appellant and her
daughter. On February 1, 1990,5 Appellant's daughter filed
criminal assault charges against Michael Wood for slapping and
threatening her as well as for running into her car. Michael Wood
was arrested and incarcerated. Francis Harmon, Judge Melinda
Harmon's husband, represented Michael Wood in this criminal
proceeding. Finally, in 1992, Appellant was indicted for wire
fraud and money laundering involving ICT, the same company for
which Michael Wood was appointed receiver.
Michael Wood and Judge Sharolyn Wood, Michael Wood's wife,
were law school classmates of Judge Melinda Harmon and her husband.
They were friends of twenty-two years as of the time of the above-
mentioned incidents. In fact, Francis Harmon is quoted as stating
that he did not visit the district attorney concerning the assault
charges as Michael Wood's attorney but as his friend. Francis
Harmon and Michael Wood had been law partners for six years.
It is clear that there exists no small amount of resentment
and animosity, if not blind hatred between Michael Wood and
5
According to the materials provided by the parties,
Appellant's daughter attempted three times to level charges against
Michael Wood for the November 21, 1989 incident. However, the DA's
office allegedly lost the first two complaints.
6
Appellant. The question is whether Judge Melinda Harmon's
friendship with Michael Wood might cause a reasonable person, who
knew of the underlying facts, to harbor doubts about Judge Melinda
Harmon's impartiality; whether their long and continuous
friendship and the above-discussed incidents raise a Section 455(a)
appearance. Because recusal motions are committed to the sound
discretion of the district court, the issue on appeal is whether
the court abused its discretion by answering the above question in
the negative.
II.
We hold that the reasonable person would harbor doubts about
Judge Melinda Harmon's impartiality. Liljeberg held that Section
455(a) is an objective inquiry. This is essential when the
question involves appearance. Therefore, we ask how things appear
to the well-informed, thoughtful and objective observer, rather
than the hypersensitive, cynical, and suspicious person. See In Re
Mason, 916 F.2d 384, 386 (7th Cir. 1990). The Seventh Circuit
recognized the problem with implementing this objective standard.
Id. Judges must ascertain how a reasonable person would react to
the facts. Problematic is the fact that judges do not stand
outside of the judicial system; they are intimately involved in
the process of obtaining justice. Judges who are asked to recuse
themselves are reluctant to impugn their own standards.
Likewise, judges sitting in review of others do not like to cast
aspersions. "Yet drawing all inferences favorable to the honesty
7
and care of the judge whose conduct has been questioned could
collapse the appearance of impropriety standard under § 455(a) into
a demand for proof of actual impropriety." Id. Accordingly, we
are mindful that an observer of our judicial system is less likely
to credit judges' impartiality than the judiciary.
The Fifth Circuit has established a body of case law applying
the Section 455(a) standard. Unfortunately, but not surprisingly,
no case is precisely on point; after all, each § 455(a) case is
extremely fact intensive and fact bound, and must be judged on its
unique facts and circumstances more than by comparison to
situations considered in prior jurisprudence. This Court has
ruled, in factually limiting circumstances, that friendship between
the judge and a person with an interest in the case is not
sufficient grounds to reverse a judge's failure to recuse.6
Nevertheless, the facts before us create a Section 455(a)
appearance. The judges's close personal friend, a prominent and
successful Houston lawyer, was accused of criminal assault; it
appears that he was the subject of an abuse of criminal process
6
For example, in Vieux Carre Property Owners v. Brown, 948
F.2d 1436 (5th Cir. 1991), the judge had a close personal and
political relationship with the Mayor, who had a significant
political stake in the outcome of the case. The sole reason urged
by Vieux Carre's motion to recuse was the temporal proximity of the
mayoral election and the mootness hearing. Because the district
court adequately removed any possible harm from the public's
perception of impropriety by postponing that hearing until after
the election, this Court held that recusal was not necessary. See
also Henderson v. Dept. of Public Safety, 901 F.2d 1288 (5th Cir.
1990) (holding that the appellant's allegations that the judge has
known opposing counsel since he was a kid and were good friends was
not sufficient for recusal; "an investigation into the facts would
have undermined the tenuous conclusion of bias that even Penn would
draw from the hearsay statements upon which he based his motion").
8
through charges brought by Appellant.7 Michael Wood and Appellant
were embroiled in a series of vindictive legal actions resulting in
a great deal of publicity, potentially besmirching Michael Wood's
name. Some of that publicity brought out the fact that Michael
Wood's wife was a state district judge, and brought out the
relationship between Michael Wood and Judge Melinda Harmon's
lawyer-husband. Under these particular circumstances, is what
happened to Michael Wood enough to cause a reasonable person to
doubt the impartiality of Judge Melinda Harmon -- Michael Wood's
good friend, Michael Wood's wife's good friend, and Michael Wood's
lawyer and former partner's wife -- as she plays no small part in
determining the fate of the person who caused Michael Wood to be
incarcerated? We think yes.8 Public respect for the judiciary
demands this result.
[Our] stringent rule may sometimes bar trial
by judges who have no actual bias and who
would do their very best to weigh the scales
of justice equally between contending parties.
But to perform its high function in the best
way "justice must satisfy the appearance of
7
The charges were actually brought by Appellant's daughter,
but, as the government conceded, the actions of the daughter and
Appellant cannot be separated because they acted in concert.
8
The government argued that Michael Wood was fully vindicated
from the criminal allegations. Therefore, Judge Harmon would not
harbor any actual bias against Appellant. We do not contest this.
We offer no opinion as to whether Judge Harmon was actually biased;
it is the appearance of impropriety with which we are concerned.
How many times has one heard the following statement: "He can say
anything he wants about me, but he can't talk about my friend."
Michael Wood may not care what Appellant has said about him, but a
good friend may forever harbor animosity against someone who has
taken a prominent lawyer and put him through unwarranted criminal
proceedings and negative publicity.
9
justice."9
Where Appellant was involved in an extremely hostile relationship
with a person of such a long, close, and multi-faceted friendship
with Judge Melinda Harmon, a relationship that resulted in
extensive negative publicity, and where Appellant's liberty was at
stake before this very Judge, we are convinced that a reasonable
person would question the impartiality of the district judge.10
9
In Re Murchison, 349 U.S. 133, 136 (1955) (quoting Offutt v.
United States, 348 U.S. 11, 14 (1954)).
10
The dissent takes the majority to task for not regurgitating
all of this circuit's jurisprudence on § 455(a), which
jurisprudence the dissent views as creating a "continuum." We
discern no such continuum; neither do we find a circuit mandate to
imply one. What the dissent actually does is discuss two lines of
cases, one requiring recusal, the other affirming the court's
refusal to recuse. The dissent places the facts of this case in
the latter line of cases, "especially those concerning involvement
of the judge's spouse." We disagree for several reasons. First,
we see nothing more than a parsing of our prior cases into two
pots, one containing those cases in which an appearance of
impropriety was found and the other containing those cases in which
such appearance was not found. That is certainly no "continuum";
just an inventory exercise. Next, we believe the facts of the case
sub judice fit more closely in the former category. We are not
dealing with a judge making minor contributions to a party's
campaign, having a sporadic friendship with counsel, presiding over
a case where the judge's spouse was a student at the defendant's
university, or any of the other situations listed in the dissent.
The appearance of impropriety is unmistakable in the facts before
us. Second, although Judge Melinda Harmon's spouse was involved in
the "situation," that is not the focus of our analysis. Judge
Harmon's close friendship with John Wood and his jurist-spouse and
the besmirching and vindictive actions taken against him concerns
us more than Judge Harmon's husband's relationship to the
incidents. Third, Appellant's liberty is at stake. The integrity
of the judiciary is impugned. While the standard of recusal is the
same in both civil and criminal cases, we are uncomfortable in
blindly relying upon civil cases in determining whether a judge
presiding over a felony trial should recuse. Though even the
Supreme Court engages in cross-over citations, we must look both
ways more carefully when crossing this dangerous street from the
civil side to the criminal side than we do when crossing in the
opposite direction.
10
Accordingly, we hold that Judge Melinda Harmon abused her
discretion in failing to recuse herself.11
III.
We must now consider the appropriate remedy for the breach of
Section 455(a). Although Section 455(a) defines the circumstances
that mandate disqualification of federal judges, it silently
delegates to the judiciary the task of fashioning the remedies that
will best serve the purpose of the legislation. Liljeberg, 486
U.S. at 862. We hold that a violation of Section 455(a) does not
automatically require a new trial. See id. (stating that "there is
surely room for harmless error committed by busy judges who
inadvertently overlook a disqualifying circumstance"); United
States v. Wade, 931 F.2d 300, 304 n.5 (5th Cir.) (stating that even
if a movant were to meet the § 455(a) test requiring recusal, this
may not be sufficient for the ordering of a new trial), cert.
denied, 112 S.Ct. 247 (1991); United States v. Couch, 896 F.2d 78
(5th Cir. 1990) (holding that the appellant's claims of an
appearance of impropriety do not rise to the level of a fundamental
defect in due process requiring a new trial). Disqualification
under Section 455(a) is designed for the benefit of the judicial
system, and even if a judge errs in failing to recuse herself, the
error does not necessarily call into question the decisions of the
court.
After a thorough review of the trial record, we are convinced
11
Because we have determined that the district court breached
Section 455(a), we do not reach the issues raised under Section
144.
11
that the conviction should stand. First, Appellant does not
contend that Judge Melinda Harmon was actually biased during the
trial phase, nor does she allege an explicit nexus between the
alleged errors and the appearance of bias. Second, Appellant never
contends that she suffered any harm during trial because of any
alleged bias or prejudice. Third, we find neither an indication of
bias in the trial record nor any error requiring reversal.
Appellant asserts several errors, including prosecutorial
misconduct, improper evidentiary rulings, and improper jury
instructions. During closing argument both Appellant and Appellee
commented on the fact that a witness had not been called. Both
parties implied that failing to call the witness indicated that the
witness would hurt the other's case, respectively. Appellant
argues that the prosecution's comments improperly shifted the
burden of proof. Judge Melinda Harmon properly instructed the jury
that the burden is upon the prosecution and that the defense need
not bring forth any testimony, witnesses, or evidence. Considering
the responsive nature of the prosecution's comment and the
instruction and charge given to the jury, we find neither error nor
any indication of bias.12 Appellant also contends that the court
erred in admitting Exhibits 282 through 2032. During trial, the
12
See United States v. Ivey, 550 F.2d 243, 244 (5th Cir.)
(holding that comments by the prosecution were not improper because
they were in response to defense's argument, and an instruction was
given), cert. denied, 431 U.S. 943 (1977); United States v.
Celcer, 500 F.2d 345, 346-47 (5th Cir. 1974) (holding that comment,
if error, was rendered harmless by an instruction and charge that
the burden was on the government and that the defendant was not
under any duty to present evidence), cert. denied, 421 U.S. 911
(1975).
12
witness went through Exhibits 1 through 281, one by one,
identifying each as a document she prepared or one that she
recognized as prepared by a specific co-worker. In order to speed
up the process, Judge Melinda Harmon admitted all the exhibits,
making it abundantly clear that Appellant was free to question any
witness about any exhibit on cross-examination. This procedure is
in accord with Fifth Circuit case law;13 again, we find neither
error nor any indication of bias. Appellant also complains that
the court did not properly instruct the jury. Upon review of the
indictment, the instructions, and the applicable law we are of the
opinion that the "jury instructions . . . as a whole [are] a
correct statement of the law." United States v. Faulkner, 17 F.3d
745, 766 (5th Cir. 1994). In sum, the trial appears to have been
managed properly and we find neither an indication of bias nor an
error requiring reversal.14
The sentence is a different matter altogether. Appellant was
sentenced to five years' imprisonment for each of her wire fraud
convictions, which would run concurrently. Appellant was sentenced
to twenty years' imprisonment for each of her two money laundering
convictions to run consecutively to her wire fraud convictions.
One of her money laundering sentences was suspended, and she was to
13
United States v. Evans, 572 F.2d 455, 490 (5th Cir.) (finding
no error when "the district court admitted [a] long series of
exhibits together, [providing] it was repeatedly done with the
provision that any specific objection that defense counsel desired
to raise at a later time regarding a particular exhibit would be
entertained"), cert. denied, 439 U.S. 870 (1978).
14
We have considered Appellant's other points of error, and
though we do not find them meritless, they do not require reversal.
13
be placed on probation for five years to commence upon her release
from confinement.
This sentence seems excessively harsh. Appellant, a first
time offender, was to serve 300 months in prison, followed by five
years' probation, for non-violent white collar crimes. The
apparent harshness of the sentence, the essentially unbridled
sentencing discretion of Judge Melinda Harmon in this pre-
Guidelines case,15 the appearance of impropriety, and the
allegations by Appellant that her fears of bias were realized in
the sentencing requires this Court to vacate the sentence.16 The
integrity of the judicial system needs the rehabilitation that
would be gained by vacating the sentence and resentencing
Appellant. Affirming the sentence would only compound the damage
done.
We embrace the method utilized in Couch v. United States,17 in
dealing with this sensitive situation. In Couch the Chief Judge of
the Fifth Circuit assigned the case to a judge outside of the
district in which it originated to adjudicate the claims of
partiality. Judge Walter confirmed the conviction concluding that
15
The fact that the Presentence Report recommended the maximum
is not dispositive. The report does not insulate or negate the
appearance of impropriety; a reasonable person would question the
impartiality of Judge Melinda Harmon.
16
Again, we must stress that we are not offering our opinion
on whether Judge Melinda Harmon was actually biased; it is the
appearance of impropriety and its effect on our judicial system
with which we are concerned.
17
896 F.2d 78 (5th Cir. 1990).
14
no actual partiality existed.18 However, in order to avoid the
appearance of partiality, Judge Walter resentenced the defendant.
Though Couch dealt with a habeas situation, which called for a
lesser standard than does our appeal, we nonetheless believe that
a similar approach is needed in the case before us. Section 455(a)
silently delegates to the judiciary the task of fashioning the
remedies that will best serve the purpose of the legislation.
Liljeberg, 486 U.S. at 486. "The goal of Section 455(a) is to avoid
even the appearance of partiality." Id. at 860. In order to serve
that goal, in this case, the sentence must be vacated.
Consistent with this opinion, we AFFIRM the conviction, VACATE
the sentence, and ask the Chief Judge of the Fifth Circuit to
designate a judge outside of the Southern District of Texas to
resentence Appellant and hold any other appropriate proceedings
necessary to effectuate this opinion.19
18
As we have done here.
19
The dissent, in footnote 21, contends that our remedy implies
that disqualification of one judge disqualifies all the judges of
that district. This is not the impression we want to leave the
reader. If Judge Melinda Harmon had recused herself from the
proceedings, another judge of the Southern District of Texas could
have easily presided over the case. Because we find the district
judge abused her discretion, we want to avoid placing one of her
colleagues in the uncomfortable position of effectively passing on
her rulings in the sentencing hearing. Moreover, having one of her
own colleagues in her district pass on her past actions well might,
in and of itself, exacerbate the appearance of impropriety. The
public may not look favorably upon a system that allows one
colleague to pass on the impartiality of another colleague who
works closely with the questioned judge. As discussed supra,
judges sitting in review of other judges do not like to cast
aspersions, especially upon colleagues in the same district with
whom they work so intimately and confer so frequently.
Accordingly, we have taken the additional precaution of asking that
a judge from another district be appointed to resentence Appellant.
15
AFFIRMED in part, VACATED in part.
EMILIO M. GARZA, Circuit Judge, dissenting:
Because the majority fails to apply the most recent Supreme
Court guidance on 28 U.S.C. § 455(a)20 and neither applies nor
distinguishes the plethora of existing Fifth Circuit caselaw on
§ 455(a), I respectfully dissent.
The most recent Supreme Court case on § 455(a), Liteky v.
United States, ___ U.S. ___, 114 S. Ct. 1147, 127 L. Ed. 2d 474
(1994), modifies § 455(a)'s objective standard, first announced in
Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 108 S.
Ct. 2194, 100 L. Ed. 2d 855 (1988). Although the factual
circumstances of Liteky primarily concerned the "extrajudicial
source" doctrine, Justice Scalia also analyzed § 455(a) in broader
terms. Specifically, Liteky describes the objective standard of
§ 455(a)21 as an "impossibility of fair judgment" test, id. at ___,
We are not imputing one judge's disqualification to the district in
which she sits; we are taking the proven precaution that we feel
is appropriate to handle this particular kind of situation.
20
Section 455(a) states 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."
21
The resolution of a § 455(a) question is an objective inquiry. See
Liteky, ___ U.S. at ___, 114 S. Ct. at 1153-54 (requiring all § 455(a) questions
"to be evaluated on an objective basis, so that what really matters is not the
reality of bias or prejudice but its appearance"); Liljeberg v. Health Servs.
Acquisition Corp., 486 U.S. 847, 108 S. Ct. 2194, 100 L. Ed. 2d 855 (1988)
(imposing objective standard); Potashnick v. Port City Constr. Co., 609 F.2d
1101, 1111 (5th Cir.) (holding that the "goal of the judicial disqualification
statute is to foster the appearance of impartiality"), cert. denied, 449 U.S.
820, 101 S. Ct. 78, 66 L. Ed. 2d 22 (1980); id. (noting that § 455(a) deals with
appearance of impartiality, not actual bias or prejudice); see also In re Drexel
Burnham Lambert Inc., 861 F.2d 1307, 1313 (2d Cir. 1988) ("[T]he test to be
applied is an objective one which assumes that a reasonable person knows and
understands all the relevant facts." (emphasis in original)), cert. denied, 490
16
114 S. Ct. at 1157; see also id. at ___, 114 S. Ct. at 1161
(Kennedy, J., concurring) (discussing "[t]he Court's `impossibility
of fair judgment' test"), and to require "a deep-seated favoritism
or antagonism that would make fair judgment impossible," id.22 I
fail to find any indication in Liteky that limits this description
to the appearance of bias created by judicial comments during the
trial. Accordingly, I read Liteky to prescribe a standard narrower
than the "person on the street" standard the majority appears to
use.
Second, other than Vieux Carre Property Owners v. Brown, 948
F.2d 1436, 1448 (5th Cir. 1991), and Henderson v. Department of
Public Safety & Corrections, 901 F.2d 1288 (5th Cir. 1990), see
slip op. at 8 n.6, the majority does not discuss the many Fifth
Circuit and other cases applying § 455(a). This line of cases sets
up a continuum between opposite poles))one requiring recusal; the
other, not. The majority makes no attempt to place Jordan on this
continuum, and it does not distinguish or support the Jordan
decision in accordance with this caselaw.
"[I]t is critically important in a case of this kind to
identify the facts that might reasonably cause an objective
observer to question [a judge's] impartiality." Liljeberg, 486
U.S. 1102, 109 S. Ct. 2458, 104 L. Ed. 2d 1012 (1989); In re Mason, 916 F.2d 384,
385 (7th Cir. 1990) ("Section 455(a) asks whether a reasonable person perceives
a significant risk that the judge will resolve the case on a basis other than the
merits.").
22
Liljeberg, on the other hand, describes the standard as whether a
reasonable, objective observer, knowing all the facts, would question the judge's
impartiality. 486 U.S. at 860-61, 108 S. Ct. at 2203. Liteky's "impossibility
of fair judgment" standard therefore clarifies the threshold of "reasonableness"
in this context.
17
U.S. at 865, 108 S. Ct. at 2205. Special emphasis should be placed
on identifying those facts material to our § 455(a) analysis. See,
e.g., id. at 865-67, 108 S. Ct. at 2205-06. In my view, this case
requires us to determine whether a longstanding friendship, coupled
with supposed "bad blood" between a judge's friend and the
defendant, is enough to support a holding of abuse of discretion in
relation to "appearance of partiality."
"`Partiality' does not refer to all favoritism, but only to
such as is, for some reason, wrongful or inappropriate." Liteky,
___ U.S. at ___, 114 S. Ct. at 1156. "[B]ad appearances alone
should not require disqualification to prevent an unfair trial."
Del Vecchio v. Illinois Dep't of Corrections, 31 F.3d 1363, 1371
(7th Cir. 1994). "Not every `possible temptation' to be biased
presents a sufficient probability of bias to require
disqualification." Id. at 1372. Because recusal is warranted
"when a judge has a direct personal or fiduciary interest," United
States v. Lovaglia, 954 F.2d 811, 815 (2d Cir. 1992), courts have
required recusal where the judge's relative was involved in the
case,23 where the judge's law clerk accepted employment with a
party's counsel,24 where counsel for one party had represented the
judge,25 where a partner of one party's counsel was the judge's
23
In re Faulkner, 856 F.2d 716, 721 (5th Cir. 1988).
24
Hall v. Small Business Admin., 695 F.2d 175, 179 (5th Cir. 1983).
25
Potashnick, 609 F.2d at 1111.
18
former law clerk,26 or where the judge had a fiduciary
responsibility to a party in interest.27 In contrast, courts do not
insist on recusal where the judge's interest is "remote,
contingent, indirect or speculative," Lovaglia, 954 F.2d at 815,
such as where the judge had made only minor contributions to a
party's campaign,28 where the judge delayed a hearing until a close
friend would no longer be interested in the outcome,29 where the
judge's spouse was a student at the defendant university,30 where
the judge had a sporadic friendship with counsel,31 where the
friendship between the judge and the victim had ended several years
before the case,32 where the judge's son represented a non-party
entity in which a party had an interest,33 where the judge's spouse
was involved in a separate transaction with a party,34 or where the
judge's spouse was a partner in the law firm that had represented
26
Parker v. Connors Steel Co., 855 F.2d 1510, 1524-25 (11th Cir. 1988),
cert. denied, 490 U.S. 1066, 109 S. Ct. 2066, 104 L. Ed. 2d 631 (1989).
27
Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 108 S.
Ct. 2194, 2206-07, 100 L. Ed. 2d 855 (1988).
28
Mason, 916 F.2d at 387.
29
Vieux Carre Property Owners v. Brown, 948 F.2d 1436, 1448 (5th Cir.
1991).
30
Levitt v. University of Texas at El Paso, 847 F.2d 221, 225-26 (5th
Cir.), cert. denied, 488 U.S. 984, 109 S. Ct. 536, 102 L. Ed. 2d 567 (1988).
31
Henderson v. Department of Public Safety & Corrections, 901 F.2d
1288, 1295-96 (5th Cir. 1990).
32
Lovaglia, 954 F.2d at 816.
33
United States v. Miranne, 688 F.2d 980, 985 (5th Cir. 1982), cert.
denied, 459 U.S. 1109, 103 S. Ct. 736, 74 L. Ed. 2d 959 (1983).
34
In re Drexel Burnham Lambert Inc., 861 F.2d at 1314-15.
19
a party on other matters.35 In my view, the facts of this case fit
most closely with the latter group of cases, especially those
concerning involvement of the judge's spouse, in which the judge
did not abuse his discretion.36 Indeed, in these cases, no recusal
was required even though the judge's spouse was connected with a
party to the case.37 Here, the source of the challenged
connection))Michael Wood))is not a party. Friendship plus the
speculation of retaliation is not enough.38 Whether we apply
Liteky's "impossibility of fair judgment" test or Fifth Circuit
precedent, I would affirm Judge Harmon's decision.
The majority states that "each § 455(a) case is extremely fact
intensive and fact bound, and must be judged on its unique facts
and circumstances, more than by comparison to situations considered
35
In re Billedeaux, 972 F.2d 104, 105-06 (5th Cir. 1992).
36
See In re Billedeaux, 972 F.2d at 105-06; In re Drexel Burnham
Lambert Inc., 861 F.2d at 1314-15; Levitt, 847 F.2d at 225-26; see also supra
notes 10, 14, 15, and accompanying text.
37
The majority suggests that Judge Harmon's connection to Wood is more
important than that of her spouse. Slip op. at 10 n.10. I question this
conclusion because Mr. Harmon's connection to Mr. Wood was much closer and more
involved than that of the judge. Because a mere friendship between Judge Harmon
and Wood would not have required recusal in this case, only the past interactions
of Wood and the defendant could have brought the friendship into question.
However, as counsel stated at oral argument, Judge Harmon's knowledge, if any,
of the past altercation, derived from her spouse's informing her of it.
Accordingly, I maintain that the connection of Judge Harmon's spouse is a
critical focus of this case.
38
For example, a party or counsel may have offended the judge in a
prior case, or even the same case. The judge may disagree with the party or
counsel's political or moral views. See, e.g., Liteky, ___ U.S. at ___, 114 S.
Ct. at 1150-51. A party or counsel may have fought bitterly with the judge's
former law partner. Indeed, a party may have murdered the judge's colleague.
See United States v. Harrelson, 753 F.2d 1153 (5th Cir.), cert. denied, 474 U.S.
908, 106 S. Ct. 277, 88 L. Ed. 2d 241 (1985). The specter of retaliation by the
judge is present in each of these examples, yet we require recusal in none of
them. The possibility in this case is equally remote))without a higher
probability, it is insufficient.
20
in prior jurisprudence." See slip op. at 8. Having said that, the
majority feels free to ignore prior § 455(a) caselaw. However, as
an appellate court, we have an obligation to provide district court
judges with some semblance of legal principles against which they
may measure their conduct. My "parsing of our prior cases," slip
op. at 10 n.10, is simply that))an attempt to identify a principled
basis for decision underlying the resolution of each case. The
majority's opinion, to quote a dissenter in Liljeberg, is "long on
ethics in the abstract, but short on workable rules of law."
Liljeberg, 486 U.S. at 870, 108 S. Ct. at 2208 (Rehnquist, C.J.,
dissenting).39
The majority fails to anchor this case firmly in the existing
§ 455(a) jurisprudence. Imprecision and generalization without
precise legal standards articulated and applied will reduce a
supposedly objective standard to the subjective whim of the
appellate panel. Although I sympathize with the majority's
concerns, the facts of this case satisfy the objective test of
Liteky and Fifth Circuit law: Judge Harmon did not abuse her
discretion in denying the motion to recuse herself. Therefore, I
respectfully dissent.40
39
The majority also excuses itself from addressing prior caselaw
because it is "uncomfortable in blindly relying upon civil cases in determining
whether a judge presiding over a felony trial should recuse." The clear language
of § 455(a), however, makes no distinction between civil and criminal cases. I
believe civil litigants are equally as entitled to an impartial judge as are
those involved in a criminal case.
40
I have not addressed the remaining issue))the remedy for a § 455(a)
violation. Even if I agreed that Judge Harmon abused her discretion, I see no
reason why another judge of the Southern District of Texas could not conduct the
resentencing. The majority's Couch remedy implies that disqualification of a
single judge automatically disqualifies every other judge of that district. The
21
majority protests that "this is not the impression [they] want to leave the
reader." Slip op. at 15 n.19. However, by stating that "having one of her own
colleagues in her district pass on her past actions well might, in and of itself,
exacerbate the appearance of impropriety," id. at 15-16 n.9, I cannot see how
they avoid that impression. Moreover, our system often requires judges to rule
on matters involving a colleague))if a judge may preside over the trial of the
murder of a colleague without disqualification, see United States v. Harrelson,
753 F.2d 1153, 1164-66 (5th Cir.), cert. denied, 474 U.S. 908, 106 S. Ct. 277,
88 L. Ed. 2d 241 (1985), I see no reason to disqualify the entire Southern
District of Texas in this case. For these reasons, I find the majority's remedy
extreme.
22