United States v. Jordan

¶4REYNALDO G. GARZA, Circuit Judge:

¶5Defendant appeals her convictions of wire fraud and money laundering. We find that the district judge abused her discretion for failing to recuse herself pursuant to 28 U.S.C. § 455(a), as the facts underlying this case create an appearance of impropriety. After reviewing the record we have concluded that the conviction should stand. The sentence, however, must be vacated in order to maintain the integrity of the judicial system. Accordingly, we ask the Chief Judge of the Fifth Circuit to designate a judge outside of the Southern District of Texas to resen-tence Appellant and hold any other appropriate proceedings necessary to effectuate this opinion.

¶6Background

¶7Defendant and her husband owned the Houston-based trucking company, Irish & Cherokee Transportation, Inc. (ICT). Defendant directed the financial operations of ICT. Redex, a Salt Lake City-based corporation, was engaged in the business of factoring trucking company’s freight invoices.1 ICT executed an agreement with Redex in February of 1987 to sell its overdue accounts receivable to Redex.

¶8Defendant fabricated invoices by creating forty-five company names to identify purported shippers with which ICT did business. These fictitious invoices were then combined with legitimate invoices and sent to Redex. ICT factored over 500 invoices through Re-dex during the period alleged in the indictment. The total loss suffered by Redex due to the fictitious accounts totalled approximately $800,000.00. Defendant transferred the factored funds through several banks in different states by wire transfer.

¶9On June 25, 1992, in the United States District Court for the Southern District of Texas, Defendant was indicted for wire fraud and money laundering. After a jury trial, Defendant was convicted of two counts of money laundering and nine counts of wire *155fraud. The Honorable Judge Melinda Harmon sentenced Defendant to concurrent terms of five years’ imprisonment for each wire fraud conviction, and to consecutive terms of twenty years’ imprisonment for the money laundering convictions.2 Defendant was also ordered to pay the unpaid balance of $418,921.00. This appeal ensued.

¶10I.

¶11The substance of Appellant’s complaint is that, because of the relations between Judge Melinda Harmon and Michael Wood, the publicity and bad feelings arising from a series of legal incidents that occurred several years earlier, and the lengthy sentence term imposed, a reasonable person would question Judge Melinda Harmon’s impartiality. Courts have repeatedly expressed the importance of an impartial judiciary: “[o]ne of the fundamental rights of a litigant under our judicial system is that he is entitled to a fair trial in a fair tribunal, and that fairness requires an absence of actual bias or prejudice in the trial of the case.” United States v. Wade, 931 F.2d 300, 304 (5th Cir.) (quoting United States v. Brown, 539 F.2d 467, 469 (5th Cir.1976)), cert. denied, 502 U.S. 888, 112 S.Ct. 247, 116 L.Ed.2d 202 (1991); In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1954). The right to a fair and impartial trial is fundamental to the litigant; fundamental to the judiciary is the public’s confidence in the impartiality of our judges and the proceedings over which they preside. “appearance of justice · Case Law">Justice must satisfy the appearance of justice.” In re Murchison, 349 U.S. at 136, 75 S.Ct. at 625. This is the very purpose of 28 U.S.C. § 455(a); Section 455(a) provides that a judge shall recuse herself from any proceeding in which her impartiality might reasonably be questioned. The Supreme Court, in Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 860-61, 108 S.Ct. 2194, 2203, 100 L.Ed.2d 855 (1988), described the standard as whether a reasonable and objective person, knowing all of the facts, would harbor doubts concerning the judge’s impartiality.3 “The goal of section 455(a) is to avoid even the appearance of partiality.” Id. at 860, 108 S.Ct. at 2203. Put simply, avoiding the appearance of impropriety is as important in developing public *156confidence in our judicial system as avoiding impropriety itself.

¶12In 1989, Appellant owed a judgment in state court.4 Michael Wood was appointed receiver over ICT, Appellant’s company. Both sides concede that a hostile relationship developed between Michael Wood and Appellant due to the receivership appointment. On November 21, 1989, Appellant allegedly attempted to drive a truck off ICT property in violation of the receivership arrangement. Michael Wood attempted to stop her. Appellant’s daughter interposed her car between Michael Wood and Appellant, effectuating Appellant’s escape. On November 29, 1989, Michael Wood filed a motion for contempt in the civil bankruptcy receivership case. The state district court granted the motion and Appellant was placed in custody. On appeal the order was overturned. On January 5, 1990, Michael Wood filed theft charges against Appellant and her daughter. On February 1, 1990,5 Appellant’s daughter filed criminal assault charges against Michael Wood for slapping and threatening her as well as for running into her ear. Michael Wood was arrested and incarcerated. Francis Harmon, Judge Melinda Harmon’s husband, represented Michael Wood in this criminal proceeding. Finally, in 1992, Appellant was indicted for wire fraud and money laundering involving ICT, the same company for which Michael Wood was appointed receiver.

¶13Michael Wood and Judge Sharolyn Wood, Michael Wood’s wife, were law school classmates of Judge Melinda Harmon and her husband. They were friends of twenty-two years as of the time of the above-mentioned incidents. In fact, Francis Harmon is quoted as stating that he did not visit the district attorney concerning the assault charges as Michael Wood’s attorney but as his friend. Francis Harmon and Michael Wood had been law partners for six years.

¶14It is clear that there exists no small amount of resentment and animosity, if not blind hatred between Michael Wood and Appellant. The question is whether Judge Melinda Harmon’s friendship with Michael Wood might cause a reasonable person, who knew of the underlying facts, to harbor doubts about Judge Melinda Harmon’s impartiality; whether their long and continuous friendship and the above-discussed incidents raise a Section 455(a) appearance. Because recusal motions are committed to the sound discretion of the district court, the issue on appeal is whether the court abused its discretion by answering the above question in the negative.

¶15II.

¶16We hold that the reasonable person would harbor doubts about Judge Melinda Harmon’s impartiality. Liljeberg held that Section 455(a) is an objective inquiry. This is essential when the question involves appearance. Therefore, we ask how things appear to the well-informed, thoughtful and objective observer, rather than the hypersensitive, cynical, and suspicious person. See In re Mason, 916 F.2d 384, 386 (7th Cir.1990). The Seventh Circuit recognized.the problem with implementing this objective standard. Id.Judges must ascertain how a reasonable person would react to the facts. Problematic *157is the fact that judges do not stand outside of the judicial system; they are intimately involved in the process of obtaining justice. Judges who are asked to recuse themselves are reluctant to impugn their own standards. Likewise, judges sitting in review of others do not like to cast aspersions. “Yet drawing all inferences favorable to the honesty and care of the judge whose conduct has been questioned could collapse the appearance of impropriety standard under § 455(a) into a demand for proof of actual impropriety.” Id.Accordingly, we are mindful that an observer of our judicial system is less likely to credit judges’ impartiality than the judiciary.

¶17The Fifth Circuit has established a body of ease law applying the Section 455(a) standard. Unfortunately, but not surprisingly, no case is precisely on point; after all, each § 455(a) case is extremely fact intensive and fact bound, and must be judged on its unique facts and circumstances more than by comparison to situations considered in prior jurisprudence. This Court has ruled, in factually limiting circumstances, that friendship between the judge and a person with an interest in the case is not sufficient grounds to reverse a judge’s failure to recuse.6 Nevertheless, the facts before us create a Section 455(a) appearance. The judges’s close personal friend, a prominent and successful Houston lawyer, was accused of criminal assault; it appears that he was the subject of an abuse of criminal process through charges brought by Appellant.7 Michael Wood and Appellant were embroiled in a series of vindictive legal actions resulting in a great deal of publicity, potentially besmirching Michael Wood’s name. Some of that publicity brought out the fact that Michael Wood’s wife was a state district judge, and brought out the relationship between Michael Wood and Judge Melinda Harmon’s lawyer-husband. Under these particular circumstances, is what happened to Michael Wood enough to cause a reasonable person to doubt the impartiality of Judge Melinda Harmon — Michael Wood’s good friend, Michael Wood’s wife’s good friend, and Michael Wood’s lawyer and former partner’s wife — as she plays no small part in determining the fate of the person who caused Michael Wood to be incarcerated? We think yes.8 Public respect for the judiciary demands this result.

[Our] stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties. But to perform its high function in the best way “justice must satisfy the appearance of justice.”

¶18Where Appellant was involved in an extremely hostile relationship with a person of such a long, close, and multi-faceted friendship with *158Judge Melinda Harmon, a relationship that resulted in extensive negative publicity, and where Appellant’s liberty was at stake before this very Judge, we are convinced that a reasonable person would question the impartiality of the district judge.9 Accordingly, we hold that Judge Melinda Harmon abused her discretion in failing to recuse herself.10

¶19III.

¶20We must now consider the appropriate remedy for the breach of Section 455(a). Although Section 455(a) defines the circumstances that mandate disqualification of federal judges, it silently delegates to the judiciary the task of fashioning the remedies that will best serve the purpose of the legislation. Liljeberg, 486 U.S. at 862, 108 S.Ct. at 2204. We hold that a violation of Section 455(a) does not automatically require a new trial. See id.(stating that “there is surely room for harmless error committed by busy judges who inadvertently overlook a disqualifying circumstance”); United States v. Wade, 931 F.2d 300, 304 n. 5 (5th Cir.) (stating that even if a movant were to meet the § 455(a) test requiring recusal, this may not be sufficient for the ordering of a new trial), cert. denied, 502 U.S. 888, 112 S.Ct. 247, 116 L.Ed.2d 202 (1991); United States v. Couch, 896 F.2d 78 (5th Cir.1990) (holding that the appellant’s claims of an appearance of impropriety do not rise to the level of a fundamental defect in due process requiring a new trial). Disqualification under Section 455(a) is designed for the benefit of the judicial system, and even if a judge errs in failing to recuse herself, the error does not necessarily call into question the decisions of the court.

¶21After a thorough review of the trial record, we are convinced that the conviction should stand. First, Appellant does not contend that Judge Melinda Harmon was actually biased during the trial phase, nor does she allege an explicit nexus between the alleged errors and the appearance of bias. Second, Appellant never contends that she suffered any harm during trial because of any alleged bias or prejudice. Third, we find neither an indication of bias in the trial record nor any error requiring reversal.

¶22Appellant asserts several errors, including prosecutorial misconduct, improper evidentiary rulings, and improper jury instructions. During closing argument both Appellant and Appellee commented on the fact that a witness had not been called. Both parties implied that failing to call the witness indicated that the witness would hurt the other’s case, respectively. Appellant argues that the prosecution’s comments improperly shifted the burden of proof. Judge Melinda Harmon properly instructed the jury that the burden is upon the prosecution and that the *159defense need not bring forth any testimony, witnesses, or evidence. Considering the responsive nature of the prosecution’s comment and the instruction and charge given to the jury, we find neither error nor any indication of bias.11 Appellant also contends that the court erred in admitting Exhibits 282 through 2032. During trial, the witness went through Exhibits 1 through 281, one by one, identifying each as a document she prepared or one that she recognized as prepared by a specific co-worker. In order to speed up the process, Judge Melinda Harmon admitted all the exhibits, making it abundantly clear that Appellant was free to question any witness about any exhibit on cross-examination. This procedure is in accord with Fifth Circuit case law;12 again, we find neither error nor any indication of bias. Appellant also complains that the court did not properly instruct the jury. Upon review of the indictment, the instructions, and the applicable law we are' of the opinion that the “jury instructions ... as a whole [are] a correct statement of the law.” United States v. Faulkner, 17 F.3d 745, 766 (5th Cir.1994). In sum, the trial appears to have- been managed properly and we find neither an indication of bias nor an error requiring reversal.13

¶23The sentence is a different matter altogether. Appellant was sentenced to five years’ imprisonment for each of her wire fraud convictions, which would run concurrently. Appellant was sentenced to twenty years’ imprisonment for each of her two money laundering convictions to run consecutively to her wire fraud convictions. One of her money laundering sentences was suspended, and she was to be placed on probation for five years to commence upon her release from confinement.

¶24This sentence seems excessively harsh. Appellant, a first time offender, was to serve 300 months in prison, followed by five years’ probation, for non-violent white collar crimes. The apparent harshness of the sentence, the essentially unbridled sentencing discretion of Judge Melinda Harmon in this pre-Guidelines ease,14 the appearance of impropriety, and the allegations by Appellant that her fears of bias were realized in the sentencing requires this Court to vacate the sentence.15 The integrity of the judicial system needs the rehabilitation that would be gained by vacating the sentence and resentencing Appellant. Affirming the sentence would only compound the damage done.

¶25We embrace the method utilized in United States v. Couch,16 in dealing with this sensitive situation. In Couch the Chief Judge of the Fifth Circuit assigned the case to a judge outside of the district in which it originated to adjudicate the claims of partiality. Judge Walter confirmed the conviction concluding that no actual partiality existed.17 However, in order to avoid the appearance of partiality, Judge Walter resentenced the defendant. Although Couch dealt with a habe-*160as situation, which called for a lesser standard than does our appeal, we nonetheless believe that a similar approach is needed in the case before us. Section 455(a) silently delegates to the judiciary the task of fashioning the remedies that will best serve the purpose of the legislation. Liljeberg, 486 U.S. at 862, 108 S.Ct. at 2204. “The goal of Section 455(a) is to avoid even the appearance of partiality.” Id. at 860, 108 S.Ct. at 2203. In order to serve that goal, in this case, the sentence must be vacated.

¶26Consistent with this opinion, we AFFIRM the conviction, VACATE the sentence, and ask the Chief Judge of the Fifth Circuit to designate a judge outside of the Southern District of Texas to resentence Appellant'and hold any other appropriate proceedings necessary to effectuate this opinion.18

¶27AFFIRMED in part, VACATED in part.

¶48EMILIO M. GARZA, Circuit Judge,

¶49dissenting:

¶50Because the majority fails to apply the most recent Supreme Court guidance on 28 U.S.C. § 455(a)1 and neither applies nor distinguishes the plethora of existing Fifth Circuit caselaw on § 455(a), I respectfully dissent.

¶51The most recent Supreme Court case on § 455(a), Liteky v. United States, — U.S. —, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994), modifies § 455(a)’s objective standard, first announced in Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988). Although the factual circumstances of Liteky primarily concerned the “extrajudicial source” doctrine, Justice Scalia also analyzed § 455(a) in broader terms. Specifically, Liteky describes the objective standard of § 455(a)2 as an “impossibility of fair judgment” test, id.at —, 114 S.Ct. at 1157; see also id.at —, 114 S.Ct. at 1161 (Kennedy, J., concurring) (discussing “[t]he Court’s ‘impossibility of fair judgment’ test”), and requires “a deep-seated favoritism or antagonism that would make fair judgment impossible,” id3 I fail to find any indication in Liteky that limits *161this description to the appearance of bias created by judicial comments during the trial. Accordingly, I read Liteky to prescribe a standard narrower than the “person on the street” standard the majority appears to use.

¶52Second, other than Vieux Carre Property Owners v. Brown, 948 F.2d 1436 (5th Cir.1991), and Henderson v. Department of Public Safety & Corrections, 901 F.2d 1288 (5th Cir.1990), see op. at 157 n. 6, the majority does not discuss the many Fifth Circuit and other cases applying § 455(a). This line of cases sets up a continuum between opposite poles — one requiring recusal; the other, not. The majority makes no attempt to place Jordan on this continuum, and it does not distinguish or support the Jordan decision in accordance with this caselaw.

¶53“[I]t is critically important in a case of this kind to identify the facts that might reasonably cause an objective observer to question [a judge’s] impartiality.” Liljeberg, 486 U.S. at 865, 108 S.Ct. at 2205. Special emphasis should be placed on identifying those facts material to our § 455(a) analysis. See, e.g., id. at 865-67, 108 S.Ct. at 2205-06. In my view, this case requires us to determine whether a longstanding friendship, coupled with supposed “bad blood” between a judge’s friend and the defendant, is enough to support a holding of abuse of discretion in relation to “appearance of partiality.”

¶54“‘Partiality’ does not refer to all favoritism, but only to such as is, for some reason, wrongful or inappropriate.” Liteky, — U.S. at —, 114 S.Ct. at 1156. “[B]ad appear-anees alone should not require disqualification to prevent an unfair trial.” Del Vecchio v. Illinois Dep’t of Corrections, 31 F.3d 1363, 1371 (7th Cir.1994). “Not every ‘possible temptation’ to be biased presents a sufficient probability of bias to require disqualification.” Id. at 1372. Because recusal is warranted “when a judge has a direct personal or fiduciary interest,” United States v. Lovaglia, 954 F.2d 811, 815 (2d Cir.1992), courts have required recusal where the judge’s relative was involved in the case,4 where the judge’s law clerk accepted employment with a party’s counsel,5 where counsel for one party had represented the judge,6 where a partner of one party’s counsel was the judge’s former law clerk,7 or where the judge had a fiduciary responsibility to a party in interest.8 In contrast, courts do not insist on recusal where the judge’s interest is “remote, contingent, indirect or speculative,” Lovaglia, 954 F.2d at 815, such as where the judge had made only minor contributions to a party’s campaign,9 where the judge delayed a hearing until a close friend would no longer be interested in the outcome,10 where the judge’s spouse was a student at the defendant university,11 where the judge had a sporadic friendship with counsel,12 where the friendship between the judge and the victim had ended several years before the case,13 where the judge’s son represented a non-party entity in which a party had an interest,14 where the judge’s spouse was involved in a separate transaction with a party,15 or where the judge’s spouse was a partner in *162the law firm that had represented a party on other matters.16 In my view, the facts of this case fit most closely with the latter group of cases, especially those concerning involvement of the judge’s spouse, in which the judge did not abuse his discretion.17 Indeed, in these cases, no recusal was required even though the judge’s spouse was connected with a party to the case.18 Here, the source of the challenged connection — Michael Wood — is not a party. Friendship plus the speculation of retaliation is not enough.19 Whether we apply Liteky’s “impossibility of fair judgment” test or Fifth Circuit precedent, I would affirm Judge Harmon’s decision.

¶55The majority states that “each § 455(a) case is extremely fact intensive and fact bound, and must be judged on its unique facts and circumstances, more than by comparison to situations considered in prior jurisprudence.” See op. at 157. Having said that, the majority feels free to ignore prior § 455(a) caselaw. However, as an appellate court, we have an obligation to provide district court judges with some semblance of legal principles against which they may measure their conduct. My “parsing of our prior cases,” op. at 158 n. 10, is simply that — an attempt to identify a principled basis for decision underlying the resolution of each case. The majority’s opinion, to quote a dissenter in Liljeberg, is “long on ethics in the abstract, but short on workable rules of law.” Liljeberg, 486 U.S. at 870, 108 S.Ct. at 2208 (Rehnquist, C.J., dissenting).20

¶56The majority fails to anchor this case firmly in the existing § 455(a) jurisprudence. Imprecision and generalization without precise legal standards articulated and applied will reduce a supposedly objective standard to the subjective whim of the appellate panel. Although I sympathize with the majority’s concerns, the facts of this case satisfy the objective test of Liteky and Fifth Circuit law: Judge Harmon did not abuse her discretion in denying the motion to recuse herself. Therefore, I respectfully dissent.21