United States v. Vadner

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 98-10542

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

GARY DAVID VADNER,

Defendant-Appellant.

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

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

DeMOSS, Circuit Judge:

In the United States District Court for the Northern District

of Texas, the Honorable John H. McBryde presiding, Gary David

Vadner pleaded guilty to one count of bank fraud on January 16,

1998. He was sentenced by Judge McBryde on April 24, 1998 to a

fourteen-month prison term, to be followed by five years of

supervised release.

Vadner was represented in the district court by Assistant

Federal Public Defender Douglas Greene. Several of Greene’s
colleagues -- attorneys with the Federal Public Defender’s office

-- testified during August and September 1997 in proceedings

against Judge McBryde before the Judicial Council of the Fifth

Circuit. See In re: Matters Involving United States District Judge

John H. McBryde, Under the Judicial Conduct and Disability Act of

1980, Nos. 95-05-372-0023 et al. (Jud. Council 5th Cir. Dec. 31,

1997), aff’d, No. 98-372-001 (Jud. Conf. U.S. Sept. 21, 1998).

Greene himself did not testify in the proceedings against Judge

McBryde. On appeal, Vadner now contends that Judge McBryde

should have sua sponte recused himself pursuant to 28 U.S.C.

§ 455(a) because his attorney, Greene, works in the Federal Public

Defender’s office with lawyers who did actually testify against

Judge McBryde. The statute provides: “Any justice, judge, or

magistrate of the United States shall disqualify himself in any

proceeding in which his impartiality might reasonably be

questioned.” 28 U.S.C. § 455(a).

Vadner did not move for Judge McBryde’s recusal in the trial

court. The general rule on timeliness requires that "one seeking

disqualification must do so at the earliest moment after knowledge

of the facts demonstrating the basis for such disqualification."

Travelers Ins. Co. v. Liljeberg Entrs., Inc., 38 F.3d 1404, 1410

(5th Cir. 1994). The most egregious delay -- the closest thing to

per se untimeliness -- occurs when a party already knows the facts

purportedly showing an appearance of impropriety but waits until

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after an adverse decision has been made by the judge before raising

the issue of recusal.

However, even if it had been timely raised, we reject the

suggestion that the mere fact that several attorneys with the

Federal Public Defender’s office offered testimony adverse to Judge

McBryde in a proceeding before the Judicial Council constitutes

such an inherent and pervasive specter of impartiality that any

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. As an additional point on appeal, Vadner contends that

his plea was taken in violation of FED. R. CRIM. P. 11, and was

involuntary because the court failed to advise him that he would be

ineligible for probation. Our Court has consistently rejected this

argument. See, e.g., United States v. Bartholomew, No. 94-30750,

slip op. at 15 (5th Cir. Sept. 21, 1995).

The judgment of the district court is

AFFIRMED.

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