Revised December 3, 1998
UNITED STATES COURT OF APPEALS For the Fifth Circuit
No. 97-11392
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
RICARDO AVILEZ-REYES,
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:
Ricardo Avilez-Reyes (“Avilez-Reyes”) appeals his sentence of
180 months imprisonment, arguing that the district judge committed
reversible error by failing to recuse himself from the case before
sentencing was to occur. For the reasons that follow we vacate
Avilez-Reyes’ sentence and remand for resentencing before a
different district judge. I.
On July 18, 1997, Avilez-Reyes pleaded guilty before United
States District Judge John McBryde to the crime of possession with
intent to distribute methamphetamine, in violation of 21 U.S.C. §
841(a)(1), (b)(1)(A) and 18 U.S.C. § 2. On October 9, 1997,
roughly two weeks before sentencing was scheduled to occur, Avilez-
Reyes moved Judge McBryde to recuse himself from the case. He
brought the motion under 28 U.S.C. § 455(a) based on the fact that
his attorney, Public Defender Paul D. Stickney (“Stickney”), had
testified against Judge McBryde only one month earlier in judicial
disciplinary proceedings before a special investigatory committee
of the Fifth Circuit Judicial Council. Judge McBryde subsequently
denied the motion and sentenced Avilez-Reyes to 180 months
imprisonment.1 Avilez-Reyes, who appeals only his sentence in this
appeal, asks this Court to remand the case for resentencing before
a different district judge based on Judge McBryde’s refusal to
recuse. We accede to his request.
II.
Avilez-Reyes contends that Judge McBryde abused his discretion
and committed reversible error by refusing to grant his motion for
a recusal under 28 U.S.C. § 455(a). He bases that claim on the
contention that his case became infected with the appearance of
1 The applicable guidelines range for Avilez-Reyes under the United States Sentencing Guidelines was 168 to 210 months.
2 impropriety once Stickney, his attorney, testified against Judge
McBryde in the Fifth Circuit Judicial Council proceedings. We
agree with that contention.
Section 455(a) requires a judge to stand recused "in any
proceeding in which his impartiality might reasonably be
questioned." 28 U.S.C. § 455(a). As the goal of § 455(a) "is to
exact the appearance of impartiality," recusal may be mandated even
though no actual partiality exists. Hall v. Small Business Admin.,
695 F.2d 175, 178 (5th Cir. 1983). The standard by which we judge
recusal is an objective one. If a "reasonable man, were he to know
all the circumstances, would harbor doubts about the judge's
impartiality," then recusal is warranted. Health Services
Acquisition Corp. v. Liljeberg, 796 F.2d 796, 800 (5th Cir. 1986),
aff'd, 486 U.S. 847 (1988).
On the facts of this case we hold that Judge McBryde abused
his discretion and reversibly erred by failing to recuse himself
from Avilez-Reyes’ case. We conclude that a reasonable person,
advised of all the circumstance of this case, would harbor doubts
about Judge McBryde’s impartiality. We find additional support for
our decision in the unfortunate fact that on February 9, 1998, the
Judicial Council of the Fifth Circuit issued an order executing a
Judicial Council Order of December 31, 1997, ordering Judge McBryde
not to participate in cases involving attorneys who have testified
against him for a three year period. That order, which expressly
3 lists Stickney as one of the testifying attorneys, is a clear
indication that our colleagues on the Judicial Council felt there
would be an appearance of impropriety in Judge McBryde continuing
to preside over attorneys who had so recently testified against
him.
Also guiding our decision is this Court’s holding in United
States v. Anderson, No. 97-11205 (1998), a case decided at the same
time as the present appeal.
As in Anderson, we again find that Judge McBryde committed
reversible error by failing to recuse himself from Avilez-Reyes’
case. We also find Avilez-Reyes’ motion timely and well-taken in
all other relevant respects. Accordingly, we vacate Avilez-Reyes’
sentence and remand this case for resentencing before a different
judge in that district.
4 EDITH H. JONES, Circuit Judge, dissenting:
Tony Leroy Anderson and Ricardo Avilez-Reyes, represented
by the Federal Public Defender’s Office, pleaded guilty,
respectively, to bank robbery and possession with intent to
distribute methamphetamine. Between their plea agreements and
sentencing hearings, a unique event occurred. The district judge
responsible for their cases was brought before a judicial conduct
and disciplinary hearing convened by the Fifth Circuit Judicial
Council. In that hearing, the attorneys who testified against the
Honorable John McBryde were predominantly government lawyers: six
current or former lawyers from the United States Attorney’s Office
in the Northern District of Texas, five from the Federal Public
Defender’s Office.2 Because the Chief Judge of this circuit has
refused to make the records of the disciplinary hearing public,3 we
do not know what testimony was presented or by whom.4
Nevertheless, the federal public defenders who represented these
defendants sought Judge McBryde’s recusal from sentencing because
they themselves testified against him at the hearing. The judge
denied their motions. Both defendants were sentenced within the
2 The attorney-witnesses against Judge McBryde are listed in McBryde’s Memorandum at 8-10. 3 See 28 U.S.C. § 372(c)(14)(C). Judge McBryde requested publication of all the proceedings, but the Chief Judge exercised his unilateral prerogative to deny that request. 4 One member of this panel was on the Judicial Council at the time of the hearing but was not a direct participant in the hearing.
5 applicable Guidelines ranges and raise as their only appellate
point the denial of recusal.
My colleagues hold that Judge McBryde should have recused
and, further, that defendants’ sentences are vacated. I
respectfully dissent. My colleagues’ interpretation of § 455(a) in
these cases conflicts with our precedents and, by unnecessarily
provoking more motions and requiring more recusals, will create
serious problems for the efficient administration of justice in the
federal courts. In addition, they engage in no analysis of the
remedy, although sentencing the defendants was harmless error in
these cases. Finally, their decisions unfairly pile on the
punishments that have already been imposed on Judge McBryde by the
Fifth Circuit Judicial Council.
I.
The panel’s principal error is to review Judge McBryde’s
recusal decision only in hindsight. The defendants’ recusal
motions must be viewed in terms of events as the parties knew them
at the time. The public defenders had testified against Judge
McBryde and the disciplinary hearing was over, but no decision had
yet been rendered. The potential seriousness of the proceeding was
beyond dispute, but at that stage, particularly given the novelty
of the proceeding, its outcome could hardly have been foreseen.
There is no reason to think that Judge McBryde would have had it in
for the clients of people who were testifying against him. Every
6 judge must develop a thick skin against criticism, and most
judicial conduct complaints come to nought. A reasonable person,
knowing all the circumstances, would not have had reason to doubt
the judge’s impartiality toward these defendants. See In re Hipp,
Inc., 5 F.3d 109, 116 (5th Cir. 1993).
The public defenders were not responsible for convening
the hearing. There is no meaningful distinction between their
testimony against Judge McBryde in the hearing and lawyers’
publicly questioning a presiding judge’s impartiality or ability to
handle a case.5 Yet the impact of this criticism is treated
differently by the panel, apparently because it later resulted in
sanctions against Judge McBryde.
The panel’s unwarranted and stringent standard for
recusals will hinder the effective administration of justice.
Although courts must be mindful that maintaining the appearance of
partiality is at least as important as its actuality, federal
judges equally have a duty to sit on cases properly before them.
See In re Drexel Burnham Lambert Inc., 861 F.2d 1307, 1312 (2d Cir.
1988) (“A judge is as much obliged not to recuse himself when it is
not called for as he is obliged to when it is.”); Hinman v. Rogers,
831 F.2d 937, 939 (10th Cir. 1987) (“There is as much obligation
for a judge not to recuse when there is no occasion for him to do
5 In fact, the disciplinary hearing testimony was in one regard even less threatening than garden-variety public criticisms because the proceedings were held in secret and could not be made public without Judge McBryde’s consent.
7 so as there is for him to do so when there is.”). They must not
cower before heavy-handed attempts to stifle their independence by
false attacks on their integrity.
The panel’s opinion raises at least three sets of
problems. First, these federal public defenders essentially assert
that the judge could not be impartial to their clients because of
what they (the lawyers) did to him, which they allege created an
extrajudicial source of influence or prejudice. Does this suggest
that any aggressive lawyer who faces the prospect of a trial before
a judge he dislikes could file a spurious misconduct complaint
against the judge, give an unflattering interview to the press, or
otherwise publicly rebuke the judge, and then seek his recusal? In
fact, “courts have typically rejected recusal motions based on ...
a litigant’s deliberate act of criticizing the judge or judicial
system.” United States v. Owens, 902 F.2d 1154, 1156 (4th Cir.
1990). The First Circuit once repeated Judge Charles Wyzanski’s
colorful comments on such a situation: “[I]t rather surprises me
that a person has any status at the end of the first half of the
game to suggest that the referee, who was qualified at the
beginning, is disqualified at the middle because in the meantime
the player has been cursing the referee outside of court.” In re
Union Leader Corp., 292 F.2d 381, 388 (1st Cir. 1961). See also
13A Charles Alan Wright et al., Federal Practice and Procedure
§ 3542, at 577-78 (2d ed. 1984) (“A party cannot force
disqualification by attacking the judge and then claiming that
8 these attacks must have caused the judge to be biased against
him ....”).
Second, there is even less reason to think that a judge
would react impartially to a defendant represented by the Federal
Public Defender’s Office. The judge knows that the client had no
choice of counsel and that no significant “punishment” could be
inflicted on counsel by treating the criminal defendant unfairly.
Moreover, the general rule is that disqualification motions should
focus on the appearance of partiality against the party, not
counsel. See Davis v. Board of Sch. Comm’rs, 517 F.2d 1044, 1050,
1052 (5th Cir. 1975); see also 13A Federal Practice and Procedure
§ 3542, at 575-76. That rule has passed unnoticed by the
majority.6
Third, the panel’s reasoning provides no basis for
believing that attorneys who testified in favor of Judge McBryde
should be treated differently from those who testified against him.
Partiality includes favoritism for, as well as antipathy against,
a party. If a judge cannot be supposed to be impartial toward
those who testified against him, how could he not be equally
grateful to -- and favorably disposed toward -- any attorneys who
testified on his behalf?
6 The rule is a general one with exceptions. Potashnick v. Port City Constr. Co., 609 F.2d 1101 (5th Cir. 1980), for example, found the judge’s prior contacts with the plaintiff’s attorney justified disqualification, but it involved much more egregious circumstances than these cases.
9 The panel’s holding will allow some attorneys to get
unfavorable judges disqualified from their cases. Simultaneously,
it will eliminate incentives for other attorneys to stand up for a
judge once allegations of misconduct are lodged against him, for
fear of having him disqualified from their future cases. This is
nothing short of perverse and cannot be what Congress contemplated
when it created § 455(a).
Where recusal could lead to so many problems and where
Judge McBryde was necessarily unaware of the ultimate conclusion of
the disciplinary proceeding, I would hold that it was not an abuse
of discretion for Judge McBryde not to recuse.
Even if Judge McBryde’s failure to recuse himself were
error, it would be harmless error. My colleagues conclude
summarily that the error is “reversibl[e]” in both cases. Their
method ignores the Supreme Court’s approval of harmless error
analysis in the § 455(a) context. See Liljeberg v. Health Servs.
Acquisition Corp., 486 U.S. 847, 862, 108 S. Ct. 2194, 2203-04
(1988) (“There need not be a draconian remedy for every violation
of § 455(a).”).
This court has generally applied a three-prong harmless
error test after finding a § 455(a) violation. See, e.g., United
States v. O’Keefe, 128 F.3d 885, 892 (5th Cir. 1997), cert. denied,
118 S. Ct. 1525 (1998); Air Line Pilots Ass’n, Int’l v. Continental
10 Airlines, Inc. (In re Continental Airlines Corp.), 901 F.2d 1259,
1263 (5th Cir. 1990). That test involves weighing “(1) the risk of
injustice to the parties in this particular case, (2) the risk that
denial of relief will produce injustice in other cases, and (3) the
risk of undermining the public’s confidence in the judicial
process.” O’Keefe, 128 F.3d at 891. The full analysis shows that
the sentences here were harmless error.
The risk of injustice to the parties is mitigated by the
appellate court’s ability to review the challenged decision. Here,
no abuse of discretion in sentencing is alleged, and in fact, no
error at all is alleged in regard to the guilty pleas or sentences
other than failure to recuse. The parties’ rights were inherently
protected from arbitrariness by the Sentencing Guidelines. The
mere fact that the judge sentenced defendants beyond the minimum of
the Guidelines ranges does not imply partiality. Given the easily
articulable explanations for greater-than-minimum sentences, it
cannot be said that defendants have suffered prejudice. In
Anderson’s case, especially, there was no hint of prejudice: the
Guidelines range was narrow (only nine months’ variation) and the
probation officer had recommended an upward departure because
Anderson carried his two-year-old son in his arms as he robbed a
bank. In Avilez-Reyes’s case, the Guidelines range was broader,
but Avilez-Reyes was sentenced in the lower half and there was
evidence to show that he had possessed more than 1.7 kilograms of
methamphetamine. Allowing these sentences to stand creates no
11 significant risk of injustice to the parties in these cases.
There is also no risk of injustice in future cases
because, if the Judicial Council’s order stands, Judge McBryde is
required to recuse from cases involving these attorneys for three
years. Furthermore, assuming, as the majority does, that there is
a § 455(a) violation here, district judges will not fail in the
future to recuse themselves from cases involving attorneys who
testify against them in judicial disciplinary proceedings. Cf.
O’Keefe, 128 F.3d at 893 (“our decision aids ... justice in other
cases because it clarifies an unclear area of the law and serves as
a caution to district court judges”); O’Neill v. Continental
Airlines, Inc. (In re Continental Airlines), 981 F.2d 1450, 1463
(5th Cir. 1993); Air Line Pilots, 901 F.2d at 1263 (“rather, our
ruling here should serve as a caution to other judges [in the same
situation]”).
Finally, there is little risk that public confidence in
the judicial process would be undermined by allowing the
defendants’ sentences to stand. The Judicial Council’s much
publicized order should reassure the public that Judge McBryde
cannot visit retaliation upon those who testified against him. In
these cases, to the contrary, only a legal technicality can cause
that fear of retaliation to “relate back” to the beginning of the
disciplinary proceedings, when it was not clear that the public
defenders’ testimony had more weight than any other out-of-court
criticisms or defenses of the judge. It is likely that the public
12 will see the panel’s needless vacatur of the defendants’ sentences
as a strike against the judicial process. Cf. O’Keefe, 128 F.3d at
893 (“decisions that are based on technicalities and do not reach
the merits of the case increase public distrust of the legal
system”).
Thus, under the three-prong harmless error analysis,
these sentences should stand.
Even in Jordan, a case relied upon by my colleagues, the
court weighed different remedies,7 ultimately refusing to reverse
a conviction but vacating an “excessively harsh” sentence. United
States v. Jordan, 49 F.3d 152, 158-59 (5th Cir. 1995). In vacating
the sentence, the Jordan court highlighted both its “apparent
harshness” and the judge’s “unbridled sentencing discretion ... in
[that] pre-Guidelines case.” Id. at 159. By contrast, Judge
McBryde sentenced the defendants in these cases within the
Guidelines, and, as discussed above, there can be no argument that
his sentences were harsh. No abuse of the sentencing prerogative
has been alleged by either defendant.
III.
The panel’s decisions in these cases needlessly pile on
the prior actions of the Judicial Council of the Fifth Circuit,
which has publicly reprimanded Judge McBryde and subjected him
7 The Jordan court did not apply the three-prong test that other Fifth Circuit panels have used, but it did touch on many of the same concerns.
13 essentially to a temporary impeachment. Not only did the Council
hold that the judge may be assigned no new cases for one year, but
it also purported to require Judge McBryde, for three years after
February 6, 1998, to recuse from all matters in his court involving
attorneys who testified against him in the disciplinary proceeding
(including the federal public defenders in these two cases). The
propriety of the Council’s order is not an issue in these cases and
should not be a basis for the majority’s decision. But whatever
the order’s propriety, it is an entirely different matter to
“sanction” Judge McBryde by enforced recusal after the disciplinary
proceedings have been concluded, than it is to use that sanction as
a basis for challenging his impartiality in decisions he made
before the outcome of the proceedings had been determined. Many
accusations and charges were made against Judge McBryde, the exact
substance and nature of which are unclear, unspecified in the
public record, and unknown even by most members of the Fifth
Circuit.8 Nevertheless, as far as I am aware, no one has ever
8 In the lawsuit Judge McBryde has filed in the District Court for the District of Columbia, he characterizes the testimony against him as having focused on the following topics:
Judge McBryde’s imposition of sanctions for litigation misconduct; his decisions to reject plea agreements; his practices with respect to settlement conferences; his criticisms of attorneys for lack of good faith compliance with rules and orders; his rulings in the Satz and Torres cases; and his procedural rulings at trial, such as the time allotted for opening statements and his rulings cutting off repetitive questioning.
Complaint ¶ 43, McBryde v. Committee to Review Circuit Council
14 questioned Judge McBryde’s integrity or his ability to render
decisions impartial to the parties before him. If anything, the
substance of the allegations against him concerned alleged abuse of
all lawyers appearing in his court. Ironically, what is public is
that one of the initial charges against Judge McBryde, later
apparently dropped, was that he investigated too vigorously the
actions of the government in regard to a criminal defendant and
intervened too actively to protect the defendant’s rights.
Our court would be better off and would itself look more
impartial if we simply applied our pre-existing precedents to these
cases and affirmed the appellants’ sentences as having been imposed
well within the guidelines set by Congress through the United
States Sentencing Commission.
I respectfully dissent.
Conduct and Disability Orders, No. 1:98CV02457 (D.D.C). Judge McBryde’s rulings in the Satz and Torres cases were at the genesis of the judicial conduct proceeding. Judge McBryde’s authority to make those rulings was upheld by this court in In re McBryde, 117 F.3d 208 (5th Cir. 1997), cert. denied, 118 S. Ct. 2340 (1998).