United States v. Wallace Shimabukuro, Jr.

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 20 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-10269

Plaintiff-Appellee, D.C. No. 1:03-cr-00560-SOM-4 v.

WALLACE SHIMABUKURO, Jr., AKA MEMORANDUM* Wally Shimabukuro,

Defendant-Appellant.

UNITED STATES OF AMERICA, No. 18-10338

Plaintiff-Appellee, D.C. No. 1:17-cr-00447-SOM-1 v.

WALLACE I. SHIMABUKURO, Jr.,

Appeal from the United States District Court for the District of Hawaii Susan O. Mollway, District Judge, Presiding

Argued and Submitted December 4, 2019 San Francisco, California

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: CALLAHAN and BADE, Circuit Judges, and BOUGH,** District Judge.

Wallace Shimabukuro, Jr. appeals the denial of his substantially-similar

recusal motions filed in two criminal cases pending before the district court at the

same time. Shimabukuro asks that the sentences in both cases be vacated and the

cases remanded for resentencing by a different judge. We have jurisdiction under

28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm.

Shimabukuro argues recusal was required under the Due Process Clause and

under 28 U.S.C. §§ 455(a) and (b)(1). The government argues Shimabukuro’s

claims fail on the merits.1 We review the denial of Shimabukuro’s recusal motions

for abuse of discretion. United States v. Mikhel, 889 F.3d 1003, 1025 (9th Cir.

2018).

Even if the grounds Shimabukuro raised in favor of recusal were timely

brought before the district court, all but one of the grounds were based on the

district court’s judicial rulings. “[J]udicial rulings alone almost never constitute a

** The Honorable Stephen R. Bough, United States District Judge for the Western District of Missouri, sitting by designation. 1 The government argues that Shimabukuro’s appeal of the district court’s denial of the recusal motion in D.C. No. 1:17-cr-00447-SOM-1 is barred by an appeal waiver included in Shimabukuro’s plea agreement. Waiver is not at issue in Shimabukuro’s appeal from the district court’s decision in D.C. No. 1:03-cr- 00560-SOM-4. Because waiver is at issue in only one case and the same arguments were raised in favor of recusal in both cases, the court will address the merits of Shimabukuro’s claims and will not consider the government’s waiver arguments.

2 18-10269 valid basis for a bias or partiality motion.” Liteky v. United States, 510 U.S. 540,

555 (1994) (citing United States v. Grinnell Corp., 384 U.S. 563, 583 (1966)). Nor

do “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,” suffice

for such a motion, “unless they display a deep-seated favoritism or antagonism that

would make fair judgment impossible.” Id. We find no indication of any bias or

antagonism against Shimabukuro by the district court that would require recusal.

The remaining ground Shimabukuro raised in support of recusal concerned

the district court’s letter to this court in connection with a prior appeal by

Shimabukuro. We disagree with Shimabukuro’s characterization that the district

court’s letter contained inaccuracies and constituted an intervention in the

adversarial process. Again, we find no bias or antagonism against Shimabukuro by

the district court that would require recusal. Shimabukuro’s due process rights

were not violated as a result of the district court’s denial of the recusal motions, see

Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 820-21 (1986), nor were the statutory

protections in §§ 455(a) or (b)(1) violated, see Liteky, 510 U.S. at 555-56.

AFFIRMED.

3 18-10269