Andrade v. Chojnacki

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 14, 2003
_______________________
Charles R. Fulbruge III
No. 01-50154 Clerk
_______________________

ISABEL G. ANDRADE; ET. AL.,

Plaintiffs,

STEPHEN E. THOMPSON, as administrator for the following estates:
Estate of Chanel Andrade, Estate of Crystal Barrios, Estate of
Isaiah Barrios, Estate of Dayland Lord Little, Estate of Kara
Brittani (Pages) Little, Estate of Abigail Martinez, Estate of
Audrey Martinez, Estate of Joseph Martinez, Estate of Melissa
Morrison, Estate of Mayanah Schneider, Estate of Aisha Gyarfas
Summers, Estate of Startle Summers, Estate of Hollywood Sylvia,
Estate of Rachel Sylvia; DANIEL MARTINEZ, SR.; THOMAS BARRIOS;
MISTY DAWN FERGUSON; STANLEY SYLVIA; NORMAN WASHINGTON ALLISON;
ADELINE SYLVIA BLACK; LOWESS ESMERELLA BLAKE; ROBERT THEOPHILUS
BLAKE; DEBBORAH BROWN, ET. AL.,

Plaintiffs - Appellants

v.

PHILLIP J. CHOJNACKI; ET. AL.,

Defendants,

UNITED STATES OF AMERICA,

Defendant - Appellee.
_________________________________________________________________
JEAN HOLUB, Co-Administrator & Legal Representative of
Esates of Bobbie Lane Koresh, Star Hadassah Howell &
Cyrus Ben Joseph Howell Minors, Deceased,

Plaintiff - Appellant,

v.

JANET RENO, Attorney General; ET AL

Defendants
 JANET RENO, Attorney General; PHILLIP J. CHOJNACKI;
JEFFREY J. JAMAR; ROBERT RICKS; RICHARD (DICK) ROGERS;

Defendants - Appellees.
_________________________________________________________________
MISTY DAWN FERGUSON; ET AL,

Plaintiffs,

MISTY DAWN FERGUSON; ROBERT THEOPHILUS BLAKE; LOWESS
ESMERELLA BLAKE; DEBBORAH K. BROWN, SHERRY H. BURGO; ET. AL.,

Plaintiffs - Appellants,

V.

JANET RENO, Attorney General; ET. AL.,

Defendants,

JANET RENO, Attorney General; WILLIAM S. SESSIONS;
LAWRENCE A. POTTS; DANIEL M. HARTNETT; EDWARD DANIEL
CONROY; DAVID C. TROY; PHILLIP J. CHOJNACKI; CHARLES A.
SARABYN; PETER B. MASTIN; TED ROYSTER; JAMES CAVANAUGH;
EARL K. DUNAGAN; DARREL DYER; WILLIAM BUFORD; DAVY
AGUILERA; JEFFREY J. JAMAR; ROBERT A. (BOB) RICKS;
OLIVER B. REVELL; RICHARD (DICK) ROGERS; LON T. HORIUCHI;
BYRON SAGE; STEPHEN E. HIGGINS; UNITED STATES OF AMERICA,

Defendants - Appellees.
_________________________________________________________________
DEBBORAH BROWN, ROBYN BUNDS, Individually and on behalf
of minor child Shaun Wisdom Howell Koresh; SHERRY HOUTMAN
BURGO; CLIVE DOYLE; KATHERINE FARRIS; ET. AL.,

Plaintiffs - Appellants,

V.

UNITED STATES OF AMERICA; ET. AL.,

Defendants,

UNITED STATES OF AMERICA; JANET RENO, Attorney General;
WILLIAM S. SESSIONS; LAWRENCE POTTS; STEPHEN HIGGINS;

2
 DANIEL HARTNETT; DANIEL CONROY; DAVID C. TROY; PHILLIP
CHOJNACKI; CHARLES (CHUCK) SARABYN; PETER MASTIN; TED
ROYSTER; JAMES CAVANAUGH; EARL DUNAGAN; DARREL DYER;
WILLIAM BUFORD; DAVY AGUILERA; JEFFREY JAMAR; ROBERT
RICKS; OLIVER REVELL; RICHARD (DICK) ROGERS; LON T.
HORIUCHI; BYRON SAGE; TIMOTHY GABORIE; JOHN MCGAW;
WILLIAM T JOHNSTON,

Defendants - Appellees.
_________________________________________________________________
JAMES LOYE RIDDLE; ET. AL.,

Plaintiffs,

MYRTLE ANN RIDDLE,

Plaintiff - Appellant,

V.

JANET RENO, Attorney General; ET. AL.,

Defendants,

JANET RENO, Attorney General; WEBSTER L. HUBBELL;
WILLIAM S. SESSIONS; LAWRENCE A. POTTS; STEPHEN E.
HIGGINS, Director, ATF; DANIEL CONROY; DAVID C. TROY;
PHILLIP J. CHOJNACKI; CHARLES A. SARABYN; PETER B. MASTIN;
TED ROYSTER; JAMES CAVANAUGH; EARL K. DUNAGAN; DARREL DYER;
WILLIAM BUFORD; DAVY AGUILERA; JEFFREY JAMAR; ROBERT A.
(BOB) RICKS; OLIVER B. REVELL; RICHARD ROGERS; LON T.
HORIUCHI; BYRON SAGE; UNITED STATES OF AMERICA,

Defendants - Appellees.
________________________________________________________________
OLIVER GYARFAS, Individually and as Administrator of
the Estate of Aisha Gyafas Summers Deceased and of the
Estate of Startle Summers Deceased; ELIZABETH GYARFAS,
Individually and as Administrator of the Estate of Aisha
Gyarfas Summers Deceased and of the Estate of Startle
Summers Deceased,

Plaintiffs - Appellants,

V.

3
 UNITED STATES OF AMERICA,

Defendant - Appellee.
________________________________________________________________
JEAN HOLUB, Co-Administrators and Legal Representatives
of the Estates of Bobbie Layne Koresh, Star Hadassah
Howell and Cyrus Ben Joseph Howell, Minor Children
Deceased; BOBBY WAYNE HOWELL, Co-Administrators and Legal
Representatives of the Estates of Bobbie Layne Koresh,
Star Hadassah Howell and Cyrus Ben Joseph Howell, Minor
Children Deceased,

Plaintiffs - Appellants,

V.

UNITED STATES OF AMERICA,

Defendant - Appellee.
_________________________________________________________________
DEBBORAH BROWN; SHERRY HOUTMAN BURGO; CLIVE DOYLE;
TILLIE FRIESEN; FLOYD HOUTMAN, JR.; ET. AL.,

Plaintiffs - Appellants,

V.

UNITED STATES OF AMERICA,

Defendant - Appellee.
_______________________________________________________________

STANLEY SYLVIA; ET. AL.,

Plaintiffs,

STANLEY SYLVIA; NORMAN WASHINGTON ALLISON;
LUCILLE MAYNARD; ADELINE SYLVIA BLACK;
LOWESS ESMERELLA BLAKE; ET. AL.

Plaintiffs - Appellants,

V.

UNITED STATES OF AMERICA

4
 Defendant - Appellee.
_________________________________________________________________

Appeal from the United States District Court
for the Western District of Texas
_________________________________________________________________

Before JONES, WIENER, and DeMOSS, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Appellants, some of the survivors and estates of Branch

Davidians who died during the 1993 conflict at Mount Carmel near

Waco, Texas, attempted to prove at trial that the United States

government should be held liable under the Federal Tort Claims Act

(“FTCA”) for deaths and injuries of Branch Davidian sect members

during the siege of their compound outside Waco, Texas on April 19,

1993. The court, after a month-long trial, rejected their case.

The court found that the government’s planning of the siege – i.e.

the decisions to use tear gas against the Davidians; to insert the

tear gas by means of military tanks; and to omit specific planning

for the possibility that a fire would erupt – is within the

“discretionary function exception” to the government’s waiver of

immunity. The court also found that the use of tear gas was not

negligent. Further, even if the United States was negligent by

causing damage to the compound before the fires broke out, thus

either blocking escape routes or enabling the fires to speed

faster, such negligence did not legally cause the plaintiffs’

injuries because some of the Davidians started the fires. The

5
court found that the FBI’s decision not initially to allow fire

trucks on the property was reasonable because of the risk of injury

or death to firefighters who might encounter hostile gunfire from

the Davidian compound.

All of these findings and conclusions, and other claims

that the court earlier dismissed, were the subject of intense and

provocative dispute before the trial court, as they have more

generally been to the public ever since that shameful day in

American law enforcement. None of the substantive issues are

raised in this appeal, however. Instead, Appellants’ only serious

contention is that Judge Smith — on account of his relationships

with defendants, defense counsel, and court staff; prior judicial

determinations; and comments during Appellants’ trial — should have

recused himself from hearing their claims. We conclude that

Appellants’ allegations do not reflect conduct that would cause a

reasonable observer to question Judge Smith’s impartiality; they do

not necessitate vacatur under the law of judicial recusal and the

correct standards of review. This court AFFIRMS the take-nothing

judgment.

BACKGROUND

In the wake of the bloody warrant service, siege, and

conflagration of the Branch Davidian compound at Mount Carmel in

the spring of 1993, four lawsuits were tried by Judge Smith. One

was the criminal prosecution of eleven surviving Davidians for the

6
events surrounding the deaths of four ATF agents (Branch). Two

were civil actions. One was brought by an ATF undercover agent

against fellow federal employees and a psychiatrist. The other was

brought by federal agents (or their estates) against a reporter,

media organizations, and an ambulance service, asserting that the

defendants had caused their injuries by alerting Davidians of the

impending raid (Risenhoover). The fourth is the instant suit, a

set of civil actions brought by surviving Davidians and estates of

the deceased against the federal government and various other

parties.

This suit did not, however, originate in Judge Smith’s

court. The plaintiffs instead filed suit in Houston, in the

Southern District of Texas. The defendants’ motion to transfer to

Judge Smith’s court in the Waco Division of the Western District of

Texas was granted. In addition to finding Waco the most convenient

forum, the transferring judge dismissed the plaintiffs’ allegations

of bias. She wrote at the time:

In effect, Plaintiffs’ argument is a collateral motion
for recusal, and this Court declines to render a formal
ruling on that issue. The merits should be heard upon
motion in the Western District of Texas. Plaintiffs’
evidence of bias based solely on Judge Smith’s prior
rulings, [sic] does not create a basis for denial of
transfer in this case.

Andrade v. Chojnacki, 934 F. Supp. 817, 835 (S.D. Tex. 1996).

The plaintiffs continued their efforts to avoid Judge

Smith’s court even after the transfer back to Waco. On the day

following Judge Smith’s consolidation of their suits, plaintiffs

7
filed a “Motion to Transfer to San Antonio Division or,

Alternatively, to Recuse Judge Walter S. Smith, Jr.” (hereinafter

“First Motion to Recuse”). Judge Smith held a hearing on the

motion on June 7, 1996, and denied it eight months later. The

plaintiffs then unsuccessfully petitioned this court for a writ of

mandamus seeking recusal or transfer to a different venue.

Judge Smith prepared the case for trial. He issued a

Memorandum Opinion and Order which dismissed a number of the

plaintiffs’ claims, narrowing the issues for trial down to several

FTCA claims against the United States. Andrade v. Chojnacki, 65 F.

Supp. 2d 431 (W.D. Tex. 1999). He scheduled discovery and

submission of a joint pre-trial order, and set trial to begin in

October 1999. The trial was later rescheduled for the following

summer. Upon plaintiffs’ motion, Judge Smith empaneled an advisory

jury and conducted the trial of plaintiffs’ remaining FTCA claims

against the United States from June 19 through July 14, 2000. The

advisory jury found that the United States had not acted

negligently in any respect.

Plaintiffs filed a Second Motion to Recuse on September

12, 2000, while the case was under submission. Judge Smith issued

a judgment rejecting plaintiffs’ FTCA claims in their entirety on

September 20; he amended it one week later. In addition to

findings of fact and conclusions of law, the revised opinion

contained Judge Smith’s rationale for denying plaintiffs’ Second

8
Motion to Recuse. Andrade v. United States, 116 F. Supp. 2d 778

(W.D. Tex. 2000). The plaintiffs timely appealed to this court.

Before proceeding, we note that there are two sets of

appellants. The group represented by Ramsey Clark and Lawrence W.

Shilling (the “Brown Appellants”) had its claims dismissed by Judge

Smith’s July 1999 Memorandum Opinion and Order. Andrade v.

Chojnacki, 65 F. Supp. 2d 431 (W.D. Tex. 1999). Judge Smith

partially reinstated these claims on April 21, 2000. The other

group is represented by Michael A. Caddell, Cynthia B. Chapman, and

James Juranek (the “Andrade Appellants”).

STANDARD OF REVIEW

This court reviews denials of motions to recuse for abuse

of discretion. Trevino v. Johnson, 168 F.3d 173, 178 (5th Cir.

1999). The judge abuses his discretion in denying recusal where “a

reasonable man, cognizant of the relevant circumstances surrounding

[the] judge’s failure to recuse, would harbor legitimate doubts

about that judge’s impartiality.” United States v. Bremers, 195

F.3d 221, 226 (5th Cir. 1999). Requests for recusal raised for the

first time on appeal are generally rejected as untimely. United

States v. Sanford, 157 F.3d 987, 988-89 (5th Cir. 1998).

Conclusions of law are reviewed de novo, Hart v. Bayer

Corp., 199 F.3d 239, 243 (5th Cir. 2000), and evidentiary and

discovery-related rulings for abuse of discretion, Munoz v. Orr,

200 F.3d 291, 300 (5th Cir. 2000).

9
 DISCUSSION

I. Judicial Recusal

A. General Principles

Under 28 U.S.C. § 455 (2000), a party may request the

recusal of a judge not only if “he has a personal bias or prejudice

concerning a party, or personal knowledge of disputed evidentiary

facts concerning the proceeding,” id. § 455(b)(1), but also when

“his impartiality might reasonably be questioned,” id. § 455(a).

These provisions afford separate, though overlapping, grounds for

recusal. Subsection (b)(1) pertains to specific instances of

conflicts of interest, while subsection (a) deals with the

appearance of partiality generally. Further, whenever a judge’s

partiality might reasonably be questioned, recusal is required

under § 455(a), irrespective whether the circumstance is covered by

§ 455(b). Liljeberg v. Health Servs. Acquisition Corp., 486 U.S.

847, 860 n.8 (1988).

Caselaw has articulated several interpretative guidelines

for this statute. One of the relevant maxims is that the standard

for bias is not “subjective,” as it once was, but, rather,

“objective.” See Vieux Carre Prop. Owners, Residents & Assocs. v.

Brown, 948 F.2d 1436, 1448 (5th Cir. 1992). Courts moved to this

less deferential standard in response to Congress’s 1974 revisions

to the 1948 statute, and it is with reference to the “well-

informed, thoughtful and objective observer, rather than the

10
hypersensitive, cynical, and suspicious person” that the objective

standard is currently established. United States v. Jordan, 49

F.3d 152, 156 (5th Cir. 1995).

Another maxim is that review should entail a careful

consideration of context, that is, the entire course of judicial

proceedings, rather than isolated incidents. Sao Paulo State of

the Federative Rep. of Brazil v. Am. Tobacco Co., 535 U.S. 229,

232-33, 122 S. Ct. 1290, 1292 (2002); United States v. Avilez-

Reyes, 160 F.3d 258, 259 (5th Cir. 1998).

Finally, the origin of a judge’s alleged bias is of

critical importance. In 1994, the Supreme Court applied a common-

law doctrine commonly called the “extrajudicial source rule” to the

interpretation of § 455. Liteky v. United States, 510 U.S. 540,

555 (1994). As articulated by the Supreme Court, this rule more or

less1 divides events occurring or opinions expressed in the course

of judicial proceedings from those that take place outside of the

litigation context and holds that the former rarely require

recusal:

First, judicial rulings alone almost never
constitute a valid basis for a bias or
partiality motion. In and of themselves (i.e.,
apart from surrounding comments or
accompanying opinion), they cannot possibly

1
The Court’s opinion observes that the “extrajudicial source
doctrine” and its exceptions are designed to isolate instances
where a judge exhibits “wrongful” or “inappropriate” bias or
prejudice and such instances will most often, though not always,
arise from knowledge gained or relationships existing outside
formal proceedings before the judge. Liteky, 510 U.S. at 488.

11
 show reliance upon an extrajudicial source;
and can only in the rarest circumstances
evidence the degree of favoritism or
antagonism required (as discussed below) when
no extrajudicial source is involved. Almost
invariably, they are proper grounds for
appeal, not for recusal. Second, opinions
formed by the judge on the basis of facts
introduced or events occurring in the course
of the current proceedings, or of prior
proceedings, do not constitute a basis for a
bias or partiality motion unless they display
a deep-seated favoritism or antagonism that
would make fair judgment impossible. Thus,
judicial remarks during the course of a trial
that are critical or disapproving of, or even
hostile to, counsel, the parties, or their
cases, ordinarily do not support a bias or
partiality challenge. They may do so if they
reveal an opinion that derives from an
extrajudicial source; and they will do so if
they reveal such a high degree of favoritism
or antagonism as to make fair judgment
impossible.”

Id. at 555 (internal citations and footnotes omitted).

Appellants sought Judge Smith’s recusal under § 455(a)

and (b)(1). Their success depends upon their ability to clear the

foregoing hurdles. They must (1) demonstrate that the alleged

comment, action, or circumstance was of “extrajudicial” origin, (2)

place the offending event into the context of the entire trial, and

(3) do so by an “objective” observer’s standard. Moreover, they

must demonstrate that the district court’s refusal to recuse was

not merely erroneous, but, rather, an abuse of discretion. It is

hardly surprising that they failed to clear them.

12
 B. Extrajudicial Bias

The Andrade Appellants specify fifteen events which, they

argue, constitute their case for recusal. By Appellants’ own

admission, eight of these are intrajudicial,” thus requiring a more

deferential review than that applicable to the seven of

“extrajudicial” origin. We turn first to the extrajudicial

events.2

1. Events and Circumstances Beyond Judge Smith’s

Control

Two of the seven “extrajudicial” events – both beyond

Judge Smith’s control — may be dismissed without exhaustive

consideration. One is trivial, the second moot.

The Andrade Appellants complain that over the course of

the trial, government counsel occasionally gave T-shirts, food,

beverages, cookies, and candies to employees in the federal

clerk’s, marshal’s, and court reporter’s offices. In ruling upon

the recusal motion, Judge Smith found that the T-shirts were part

of “a prank played on a deputy marshal,” and none of the recipients

were “members of the Court’s staff.” While Appellants maintain

that the receipt of these gifts created an “appearance of

impropriety,” they do not challenge the accuracy of Judge Smith’s

2
The government argues that several of the latter seven
events ought more appropriately be characterized as having
occurred during the judicial proceedings. The government may
well be correct in regard to some of the incidents, but for
simplicity, we accept Appellants’ characterization.

13
findings. We accept the uncontested findings of the district

court, and fail to see how these small courtesies to the court’s

non-judicial staff could be viewed by any “objective” observer as

compromising Judge Smith’s independence.

The other allegation is that Judge Smith’s longstanding

relationships with two of the dismissed defendants, William

Sessions and William Johnston, gave rise, at the very least, to the

“appearance of impropriety.” As an Assistant U.S. Attorney for the

Western District of Texas, Johnston made frequent appearances

before Judge Smith. Sessions, formerly the Director of the FBI,

had served on the federal district court for the Western District

of Texas from 1974–87; Judge Smith served with Sessions from

1983–87 while Sessions was Chief Judge. This issue is moot, as

both Sessions and Johnston were dismissed from the case in July

1999. In any event, no facts are proven to suggest that either

prior relationship evinces characteristics that would even suggest,

much less mandate recusal. See Parrish v. Bd. of Comm’rs., 524

F.2d 98, 104 (5th Cir. 1975).

2. Comments Made By Judge Smith

The five other extrajudicial events can be divided into

three categories: (a) the judge’s alleged in camera statements to

trial counsel, (b) his public comments regarding government

attorneys Johnston and James Touhey, and(c) his alleged ex parte

comments to reporter Lee Hancock.

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 a. Judge Smith’s Alleged in camera Comments

Judge Smith’s alleged in camera statements, though said

to violate §§ 455(a) and (b)(1), are unproblematic. On June 22,

2000, Appellants prepared to offer into evidence documents showing

the FBI’s failure to develop adequate plans to extinguish fire at

the compound. These documents had been the subject of extensive

pretrial wrangling. When Judge Smith announced his decision not to

allow admission, the Andrade Appellants’ counsel approached the

bench and requested an in camera conference. During the

conference, Judge Smith said that he had not read Appellants’

proffered evidence. Somewhat later, as the litigants discussed the

empaneling of an advisory jury, Judge Smith told Mr. Caddell that,

“if you don’t think I’ve got the guts to disregard the [advisory]

jury’s verdict, you’re wrong.” Appellants argue that these two

statements contribute to their case for recusal.

Judge Smith’s declaration that he had not read the

evidence prior to denying its admissibility is of no legal import.

Appellants offered the evidence to advance the proposition that the

FBI could have — in fact, should have — planned for the possibility

of fire. Such an argument is almost surely barred from

consideration, however, by the discretionary function exception to

the FTCA. 28 U.S.C. § 2680(a) (2000). Although the FTCA permits,

in general, suits against the United States, it exempts the

government from liability for “acts that are discretionary in

15
nature,” those “involv[ing] an element of judgment or choice.”

United States v. Gaubert, 499 U.S. 315, 322 (1991) (quoting

Berkovitz v. United States, 486 U.S. 531, 536 (1988)). Judge Smith

had no need to examine the evidence supporting this claim, because

the applicability of the discretionary function exception does not

turn on evidence of the actual decisions made by the defendants,

but, rather, on whether the decision is or is not “susceptible to

policy analysis”. Id. at 325; see also Baldassaro v. United

States, 64 F.3d 206, 209 (5th Cir. 1995). In light of the law on

this point, Judge Smith’s preference not to read the evidence — and

his declaration – cannot constitute evidence of bias or even the

appearance of such.

This being said, Appellants were not without options.

They might have appealed Judge Smith’s decision to exclude this

evidence and sought direct review of the applicability of the

discretionary function exception. But they did not do so. Issues

not raised on appeal are waived. United States v. Valdiosera-

Godinez, 932 F.2d 1093, 1099 (5th Cir. 1991).

Equally unavailing is Appellants’ allegation that Judge

Smith’s statement regarding his willingness to disregard the

advisory jury’s verdict manifests an impermissible judicial bias.

The FTCA does not grant plaintiffs the right to a jury trial. 28

U.S.C. § 2402 (2000). Notwithstanding the clear congressional

mandate that claims against the federal government are to be tried

to the bench, Appellants moved for the empaneling of an advisory

16
jury; over the government’s objection, Judge Smith honored the

request. But he was under no obligation to accept its verdict.

Sullivan v. Rowan Cos., 952 F.2d 141, 147 (5th Cir. 1992). His

statement accurately, if bluntly, reflected the status of the

advisory jury verdict. Even if Appellants found this in-chambers

statement offensive, their claims are to be judged by an objective

standard. The statement is neither “grossly inappropriate” nor

“patently offensive,” as required by our precedent. In re Chevron

U.S.A., Inc., 121 F.3d 163, 165–67 (5th Cir. 1997).

b. Judge Smith’s Public Comments

Appellants also point out Judge Smith’s comments

regarding William Johnston and his compliment toward James Touhey

to advance their case for recusal. We reject the arguments.

As mentioned above, Johnston was one of the original

defendants to this lawsuit. While the case was before the district

court, a Special Counsel from within the Justice Department

investigated Johnston for allegedly withholding evidence from

defendant Davidians during their criminal trial. According to a

newspaper report, Judge Smith was upset by the investigators’

treatment of Johnston (the article used the term “witch hunt” to

describe Judge Smith’s view). In response, Judge Smith told

several investigators in September 2000 that he would no longer

cooperate with the inquiry and that he would not permit the

investigators to carry firearms into the courthouse. The Special

17
Counsel subsequently visited Judge Smith in his chambers to repair

the rift. The judge’s comments, however, are irrelevant to

Appellants’ case for recusal, as Johnston had been dismissed from

this case in July 1999 — 15 months before this incident occurred.

Appellants argue that Judge Smith’s public compliment of

James Touhey, a government attorney, supports mandatory recusal

under §§ 455(a) and (b)(1). According to Appellants, Touhey

conducted a “particularly vicious cross-examination of Davidian

witness Clive Doyle,” in which Doyle was “reduced to tears.”

During the subsequent recess and outside the presence of the jury,

Appellants’ counsel observed Judge Smith enter the courtroom, pat

Touhey on the back, shake his hand, and congratulate him, saying

“Good job, Mr. Touhey!”

Appellants acknowledge that a judge’s “compliments in the

course of legal proceedings should not ordinarily support a

partiality challenge,” Certain Underwriters at Lloyd’s London v.

Oryx Energy Co., 944 F. Supp. 566, 568 (S.D. Tex. 1996), but they

view the relationship reflected here between Touhey and Smith as

exceptional. Doyle had been charged with murder, tried before

Judge Smith, and acquitted by the jury in the Davidians’ criminal

trial. With his compliment, Appellants argue, Judge Smith conveyed

his gratitude to Touhey for Doyle’s belated humiliation.

Appellants’ argument fails for two reasons. First, not

only does their brief omit citing the most prominent Supreme Court

statement on point, Liteky, 510 U.S. at 555 (“judicial remarks that

18
are critical or disapproving of, or even hostile to, counsel for

the parties or their cases, ordinarily do not support a bias or

partiality challenge”), but they also neglect to discuss two

relevant Fifth Circuit cases cited by the government. See United

States v. Landerman, 109 F.3d 1053, 1066 (5th Cir. 1997) (affirming

denial of motion to recuse where district judge allowed “the

Government more leeway during its questioning and did interrupt

defense counsel’s questioning more often than the Government’s

questioning”); Garcia v. Woman’s Hosp. of Texas, 143 F.3d 227, 230

(5th Cir. 1998) (affirming denial of motion to recuse where

district judge had made unflattering comments about plaintiff’s

ability to prove her case). Second, in attributing to Judge

Smith’s compliment something more than “just a compliment,”

Appellants overlook that it is with reference to the

“well-informed, thoughtful and objective observer, rather than the

hypersensitive, cynical, and suspicious person” that inappropriate

or wrongful bias is established. Jordan, 49 F.3d at 156. This

court sees a compliment, not a subliminal message of wrongful bias.

Accordingly, we find no grounds for recusal here.

c. Judge Smith’s Alleged ex parte Comments

On September 13, 2000, one week before Judge Smith issued

his initial findings of fact and judgment denying Appellants’ FTCA

claims and two weeks before he ruled upon Appellants’ Second Motion

for Recusal, the Dallas Morning News published a story reporting

19
Appellants’ filing of their second recusal motion. The article

quotes attorney Caddell, describes his view of Judge Smith as

biased, states that Caddell changed his earlier-expressed decision

not to appeal because of the bias, and paraphrases at length the

allegations in the recusal motion. Before assessing the likelihood

that the motion would succeed, the article briefly speculates on

the outcome of the case, based upon several of Judge Smith’s

alleged comments. The passage, in its entirety, reads as follows:

FINAL RULING
Judge Smith has offered some indications that his
final ruling will mirror the jury’s decision.
Late in the four-week trial, he told a reporter that
sect members broke the law by resisting the federal
search and by refusing to surrender during the 51-day
siege. He said those violations probably trumped
plaintiffs’ arguments that government agents acted
negligently in efforts to end the standoff.
The judge noted he might be in “one hell” of a
position with his decision to impanel an advisory jury
for the type of civil case normally decided by a judge
alone.
During the civil trial, the judge sometimes reacted
emotionally to graphic evidence. After spending a
weekend reviewing the government’s excerpts from
surveillance recordings made in the compound during the
siege, he remarked during a break in the case that the
tapes would “blow” the plaintiffs “out of the pond.”

Lee Hancock, Davidians’ Attorney Vents Anger at Judge; Appeal Now

Planned in Wrongful Death Suit, Dallas Morning News, Sept. 13,

2002, at 25A.

Appellants contend that Judge Smith’s alleged ex parte

comments violated Canons 2(A), 3A(4) and 3A(6) of the Code of

20
Judicial Conduct.3 Conceding that violations of the Code do not

necessarily give rise to a violation of § 455(a), they nevertheless

argue that courts consistently “take a hard line for those

involving judicial commentary on pending cases.” Three cases

exemplify their position that reviewing courts have set a standard

for unacceptable judicial misbehavior and mandatory recusal that

readily encompasses Judge Smith’s comments. In re Boston’s

Children First, 244 F.3d 164 (1st Cir. 2001); United States v.

Microsoft Corp., 253 F.3d 34, 114 (D.C. Cir. 2001); United States

v. Cooley, 1 F.3d 985, 988 (10th Cir. 1993). These are serious

charges, but because Appellants never brought this article to the

district court’s attention, their fulminations lack record support

and context. We cannot review this claim.

Two full weeks passed between publication of the article

and Judge Smith’s final ruling on Appellants’ motions for

reconsideration and recusal, but Appellants never moved to

supplement their motion. Nonetheless, they included a copy of the

article in their Record Excerpts submitted to this court, in

violation of Fed. R. App. P. 10(e)(2)(C). See United States v.

Page, 661 F.2d 1080, 1082 (5th Cir. Nov. 1981). We retain

discretion to grant Appellants’ motion to supplement the record in

3
Code of Conduct for United States Judges, 175 F.R.D. 363,
365-367 (1997).

21
this court,4 but exercising that option raises another procedural

hurdle, because untimely motions to recuse are ordinarily rejected.

Sanford, 157 F.3d at 989. This aspect of Appellants’ recusal claim

is untimely, as Sanford holds, because it was raised only after an

adverse judgment and for the first time on appeal.5

Cognizant of such problems, Appellants seek to compare

their situation with that of Microsoft and its district judge, who

repeatedly spoke with reporters concerning the merits of the case

on the condition that the conversations be “embargoed” until the

court released its decision. Microsoft Corp., 253 F.3d at 108.

Because Microsoft had not learned of the court’s ventures until

opportunity for objection had passed, the Court of Appeals

permitted Microsoft to raise the recusal issue on appeal and does

not appear to have subjected it to a more stringent standard of

review. Id.

4
Pegues v. Morehouse Parish Sch. Bd., 706 F.2d 735, 738 (5th
Cir. 1983); but cf. United States v. Okoronkwo, 46 F.3d 426, 435
(5th Cir. 1995).
5
Sanford notes that this court has declined to craft a per
se rule concerning untimeliness of recusal motions, but
generally, such motions must be filed “at the earliest moment”
after a movant receives knowledge of the facts suggesting
disqualification. 157 F.3d at 938, (quoting Travelers Ins. Co.
v. Liljiberg Enters., 38 F.3d 1404, 1410 (5th Cir. 1994)).
Sanford also notes this court’s reluctance to employ a plain
error standard of review to untimely recusal motions. Id. at
989; see United States v. Gray, 105 F.3d 956, 968 (5th Cir. 1997)
(plain error review utilized “for the sake of argument”); United
States v. York, 888 F.2d 1050, 1056 (5th Cir. 1989). The
remainder of the above discussion makes clear that even if we
employed plain error “for the sake of argument,” Appellants’
contentions regarding the newspaper article are meritless.

22
 Any comparison with Microsoft is wholly unpersuasive.

There is no evidence that if Judge Smith gave an interview, he

enforced silence on the Dallas Morning News reporter. On the

contrary, his comments were published, it appears, shortly after

they were made and sufficiently before the district court’s final

ruling. Even more obvious is that Appellants’ counsel had given an

interview to the reporter to highlight the filing of his second

motion to recuse. Mr. Caddell is prominently and directly quoted

in the article. It is near impossible to believe that

notwithstanding his willingness to publicize the filing of the

second motion to recuse, on the eve of the court’s expected ruling

on the merits, Appellants’ counsel did not even bother to check

whether the reporter (who covered the case throughout trial) had

written an article. The Dallas Morning News enjoys an excellent

reputation and is read statewide; the paper had been diligently

covering the trial; the article was at least constructively

available before Judge Smith ruled. These circumstances

distinguish the instant case from Microsoft.

Appellants’ argument ultimately asks this court to judge

the judge based exclusively on the fact of publication of his

remarks, without context and without verification of their

accuracy. It is hardly clear whether Judge Smith actually gave an

interview or spoke off the cuff, and whether his comments were made

in chambers or on the bench, ex parte or to a group of listeners,

yet Appellants have jumped to the conclusion that he violated the

23
judicial Code of Conduct in several ways by giving an interview.

But there is no way of knowing what generated the article, and it

represents multilevel hearsay. These circumstances emphasize the

wisdom behind the procedural rules – limiting supplementation of

the appellate record; deeming waiver or forfeiture of issues not

raised in the trial court; and restricting the scope of appellate

review – that are designed to confine appellate review to

factfinding that occurs in the trial court. Because Appellants’

complaint about the newspaper article was not properly preserved

for appellate review, we deny the motion to supplement the record

with this article and reject this point of error.

C. Intrajudicial Bias

Notwithstanding the obstacle that Liteky presents to

recusal claims based upon a judge’s expression of beliefs arising

from intrajudicial sources, Appellants press eight events that

occurred on the record during judicial proceedings and which, they

argue, support the case for recusal.

These events are, in chronological order, as follows:

1. When issuing his sentencing findings in the criminal

prosecution of some Davidians, Judge Smith declared that the

defendants and other adult Davidians “ambushed” and “conspir[ed] to

cause the death of” federal agents on February 28, 1993.

Appellants argue that these findings, made with respect to

24
convictions that were affirmed on appeal,6 demonstrate his

deep-seated antagonism toward the Davidians.

2. Judge Smith acquired over the course of the criminal

proceedings a firm conviction that it was the Davidians who set

fire to the living quarters at Mount Carmel on April 19, 1993, a

belief he carried over to other cases tried before him, e.g.

Risenhoover v. England, 936 F. Supp. 392 (W.D. Tex. 1996), and to

the case at bar. (Appellants did not, however, appeal his finding

to that effect after this trial.)

3. Judge Smith’s comments in Risenhoover — that the

Davidians were “soft as clay” and “easily manipulated,” that their

leader was a “false prophet” whose teachings focused on

paramilitary training,” and that their beliefs are “fanaticism . .

. difficult for most people to understand” — made fair judgment

impossible.

4. On June 27, 2000, when Appellants attempted to

introduce the deposition testimony of Livingstone Fagan, Judge

Smith referred — in an off-the-record bench conference — to Fagan,

a resident of Mount Carmel who had previously been criminally tried

and acquitted by Judge Smith, as a “crazy, murdering son-of-a-

bitch”; he subsequently issued an inept apology.7

6
United States v. Castillo, 179 F.3d 321 (5th Cir. 1999);
United States v. Branch, 91 F.3d 699 (5th Cir. 1996).
7
“That statement was off the record and in response to
another lawyer’s humorous suggestion, and was not in any way
intended to be taken seriously. The Court regrets the slight to

25
 5. On July 13, when Appellants attempted to introduce

expert-prepared transcripts of the government’s surveillance tapes,

Judge Smith referred to these transcripts — in an off-the-record

bench conference — as “bullcrap”; he subsequently admitted them.

6. Judge Smith presented the respective transcripts of

the surveillance tapes to the jury in unfair manner: Appellants’

transcripts were described as the work of Appellants’ attorneys,

whereas the government’s transcripts were presented as the product

of professional expertise. This characterization was especially

galling to Appellants, as Judge Smith had previously allowed the

government’s “expert” to produce his transcripts after the court-

ordered deadline, stating that compliance was not important, as his

work was non-expert.

7. On July 14, in charging the advisory jury, he

allegedly gave an improper standard for determining liability,

refused Appellants’ submitted instruction, and failed to include

any instructions regarding liability for foreseeable acts of third

parties. That this inadequacy was intentional, Appellants allege,

can be seen by comparing these instructions with the precision of

his charge in Risenhoover, a case in which government agents

injured or killed in the February 23, 1993 conflict brought suit

against a reporter, certain media organizations, and an ambulance

Mr. Fagan’s Mother, should he have one.” The judge forgot that
Doris Fagan burned to death in the fire at Mount Carmel on April
19, 1993; her estate is a plaintiff in these proceedings.

26
company that had alerted the Davidians, in violation of Texas law,

to the impending assault.

8. On April 4, 2002, Judge Smith refused to certify

Appellants’ Statement of Proceedings, a document attempting to

introduce into the record (pursuant to Fed. R. App. P. 10(c))

several of Judge Smith’s unrecorded comments during the trial.

Appellants had submitted this memorialization in February 2002,

over a year and a half after the alleged statements were made.

They contend that Judge Smith’s refusal to certify demonstrates his

bias, as the government did not dispute the substance of the

document.

The first six of these events represent the expression of

“opinions formed . . . on the basis of facts . . . or events

occurring in the course of the current proceedings, or of prior

proceedings,” and are the type of opinions/expressions that Liteky

holds nearly exempt from causing recusal. Appellants contend that

Liteky either does not apply or should not apply as rigorously

when, as in this FTCA case, the judge is the factfinder. There is

no support for this position legally or logically. Judges often

find facts in performing their duties – in admitting evidence, in

sentencing criminals, in ruling on motions, as well as in deciding

bench-tried cases. Liteky draws no distinction based on the type

of proceeding, and none is warranted.

The last two events are embodied in judicial actions that

Appellants could have, but did not, appeal. Since one of these

27
involves the irrelevant advisory jury and one a grievously late

attempt to create a factual record for appeal, to allow the judge’s

demeanor or actions in the two events a significant influence on

our recusal decision would be grossly disproportionate to the legal

implications of his actions.

Appellants rightly contend, however, that apart from its

broad statement, Liteky acknowledges that rarely, events in court

may “reveal such a high degree of favoritism or antagonism as to

make fair judgment impossible.” 510 U.S. at 555. Among the events

cited above, only one – Judge Smith’s ill-tempered references to

Fagan – even arguably fall within that deplorable range. And those

brief comments in the course of a decade of litigation refer only

to one witness, not to the Davidians or Appellants in general or

to the merits of their case. Moreover, Liteky states that

“expressions of impatience, dissatisfaction, annoyance and even

anger” do not establish bias or partiality. Liteky, 510 U.S. at

555-56.

II. Other Issues

A. The Andrade Appellants

The Andrade Appellants’ opening brief raises only one

issue: whether Judge Smith abused his discretion in denying their

motion for recusal. Responding to the government’s emphasis on

their limited appellate gambit, Appellants offered in their reply

brief a four-page account of eleven alleged trial errors, asserting

28
that many more could be documented. Additionally, they argue that

allegations of bias effectively relieve them of the obligation to

charge error, presenting only one case, Maurino v. Johnson, 210

F.3d 638, 645 (6th Cir. 2000)(“judicial bias infects the entire

trial process”), in support of this proposition.

The Andrade Appellants are skillfully represented by

experienced counsel who surely knew that in this court, briefing

issues for the first time in a reply brief is not allowed. Lockett

v. EPA, 319 F.3d 678, 690 n.51 (5th Cir. 2003). Neither

thoughtlessly nor coincidentally did they attempt to show trial

errors in such a way that, even if non-cognizable, the mere

allegations could influence this court while depriving the

government of an opportunity to respond. We must infer from these

tactics that Appellants concluded there were no colorable appellate

issues concerning Judge Smith’s rulings, as opposed to his alleged

bias.

That Appellants apparently reached this conclusion is a

testament, however unintended, to the judge’s overall capability.

Real judicial bias, it is true, “infects the entire judicial

process,” Maurino, 210 F.3d at 645, but a harmless error standard

of review applies nevertheless. See In re Continental Airlines

Corp., 901 F.2d 1259, 1263 (5th Cir. 1990). Appellants’ argument

for reversal is misplaced.

29
 B. The Brown Appellants

Notwithstanding the Brown Appellants’ lengthy brief, we

cannot discern an argument in law for the reversal of the district

court’s judgment. See Cinel v. Connick, 15 F.3d 1338, 1345 (5th

Cir. 1994)(“A party who inadequately briefs an issue is considered

to have abandoned the claim.”). Although the Magna Carta and

Geneva Convention are venerated documents, citation of such sources

without more does not suffice to demonstrate judicial error. We

admire the sincerity of the Brown Appellants’ presentation but they

offer no tangible ground for reversal of the judgment.

CONCLUSION

For the foregoing reasons, we find no basis for recusal

of Judge Smith nor any other reversible error. The district

court’s judgment in favor of Appellees is accordingly AFFIRMED.

Appellants’ Motion to Supplement Record DENIED as to the

newspaper article dated September 13, 2000; GRANTED as to the other

items.

30