859 F2d 151 United States v. Cox

859 F.2d 151
Unpublished Disposition

UNITED STATES of America, Plaintiff-Appellee,
v.
James COX, a/k/a Cricket, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Sammy CARTER, Defendant-Appellant.

Nos. 87-5634 and 87-5637.

United States Court of Appeals, Fourth Circuit.

Argued July 29, 1988.
Decided Sept. 9, 1988.

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

John Herman Hare, Federal Public Defender, K. Wayne Shelley for appellants.

Vinton DeVane Lide, United States Attorney (John M. Barton, Assistant United States Attorney, J. Anthony Mabry, Third Year Law Student on brief) for appellee.

Before DONALD RUSSELL, WIDENER and K.K. HALL, Circuit Judges.

PER CURIAM:


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1

The defendants-appellants, James Cox (Cox) and Sammy Carter (Carter), appeal from their convictions below on various perjury and perjury-related charges. We affirm.

2

On August 14 and 15, 1982, the appellants allegedly carried out an armed robbery against Katrina Carter (no relation to the appellant, Sammy Carter) at her home in Mullins, South Carolina. The appellants were later tried in state court for armed robbery and were acquitted. Their defense at the criminal trial was that they had planned, along with Ms. Carter, to "fake" an armed robbery of her in order to convince a drug dealer from whom Ms. Carter had become obligated to purchase drugs that she had no money to consummate this deal. According to appellants, Ms. Carter double-crossed them and called the police. The police were, in fact, tipped off to the robbery on the night it occurred by an anonymous phone call. The police arrested appellants at the scene.

3

On May 30, 1984, appellants brought a civil suit as plaintiffs against Ms. Carter, most of the police officers involved in appellants' arrest, and others, alleging that Ms. Carter intended from the outset to double-cross them and to have them arrested for the "fake" armed robbery. Carter and Cox contended that Ms. Carter enlisted the police officers in her conspiracy. The jury returned a verdict in favor of appellants against various of the defendants, including Ms. Carter.

4

After trial, the district court granted Ms. Carter and another defendant's motion for a new trial. The case was appealed to the Fourth Circuit and remanded for retrial on various causes of action. Carter v. Rogers, 805 F.2d 1153 (4th Cir.1986).

5

During preparation for retrial, lawyers for Ms. Carter learned facts which led them to believe that Sammy Carter and Cox had committed perjury during the previous civil trial and that the incident of August 14-15, 1982 was in fact a real and unlawful armed robbery. This information was conveyed to the government. An FBI investigation followed, and the government ultimately indicted defendants for perjury. At the perjury trial, the government introduced the testimony of one Constance Moore Chaplin (Chaplin), who stated that she, not Mrs. Carter, had been the anonymous phone caller who warned the police of the planned robbery. Chaplin had been appellant Carter's girlfriend during the summer of 1982, but had not testified in either the prior civil or criminal trials. The government also introduced an accomplice witness who recanted his testimony from one of the earlier trials and fell into line with the government's theory. Thereupon appellants were convicted of perjury. They appeal their convictions.

6

The appellants assign as their primary error the district judge's failure to recuse himself from the trial below. Judge Hamilton, who presided over the perjury trial, also presided over the prior civil trial involving appellants. Appellants cite two statements made by Judge Hamilton during the prior civil suit which purportedly illustrate bias toward them. The first was made during a motion for new trial following the civil case. In this statement Judge Hamilton summarized the evidence and declared that the verdict was against the clear weight of the evidence. Judge Hamilton's second offense, according to appellants, followed presentation of plaintiff's case and was a reference to defendants' acquittal in the original state court criminal action. Judge Hamilton stated, "In fact, I don't understand how the jury turned them loose."

7

This court has said, in In Re Beard, 811 F.2d 818 (4th Cir.1987), that:


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8

The alleged bias must derive from an extra-judicial source. It must result in an opinion on the merits on a basis other than that learned by the judge from his participation in the matter [citations omitted]. The nature of the judge's bias must be personal and not judicial [citations omitted]. A judge is not disqualified because his familiarity with the facts of a case stem from his judicial conduct in presiding over earlier proceedings.

9

811 F.2d at 827 [citations omitted]. Clearly any "bias" displayed by Judge Hamilton grew out of his protracted involvement in this matter and not from any extra-judicial source. The two statements above evidence no taint of personal bias. Counsel for defendants admitted that Judge Hamilton had no personal bias:

10

The Court: ... I think what you're complaining about is judicial bias. Are you complaining about personal bias?

11

Mr. Hare: Your honor, I am certainly not complaining about personal bias, no.

12

The Court: So, you're complaining about judicial bias?

13

Mr. Hare: Yes, sir, based on the statement.

14

Appellants offer no proof of any personal bias. This assignment of error is without merit, as are the other such assignments offered by appellants. We have reviewed the record of the defendants' overwhelming guilt and find no reversible error in the judgment below. Accordingly, we affirm.

15

AFFIRMED.