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HIT THE ROAD, JUDGE

I would retire today if I only had a dime for every defendant who ever asked how to get his or her judge thrown off the case for bias. Or even just a nickel for everyone who has filed an unsuccessful motion to do just that.

Dick and Judy Brocato owned a lawn care company. Over a three-year period, they concealed about $1.7 million of business income from the IRS.

Oh, the calumny! Working hard, earning an honest buck, and then not telling your Uncle Sam so that he can lop off his share! Well, whatever… they were charged with tax fraud.

At trial, Judy tried to explain where she had come up with a $9,000 down payment for a Maserati. She said she had gotten it from her dead mother’s estate. The government did not pursue the explanation, but the judge did. During a sidebar before closing arguments, the judge told the Brocatos’ attorney not to argue in closing that the $9,000 came from Judy’s mom, because the judge’s staff had conducted an “Internet search” and found mom’s obituary. “The transaction with the Maserati occurred in 2013 and it appears from the obituary of her mother that she died in 2015,” the judge said, “so, I don’t think she would have gotten money in 2013 from her mother’s estate. The Court takes a very dim view of perjury in proceedings; so, you need to keep that in mind.”

The jury found them guilty.

That was in February. Months later, as sentencing approached, the sleuthy district judge acted on her own to order up a certified copy of mom’s death certificate. At that point, the Brocatos had had enough of a courtroom that seemed to have two prosecutors but zero judges. They filed a motion to recuse the judge.

The judge, of course, denied the motion, determining that detailing her staff to help the prosecutor attack the Brocatos’ case was perfectly fine. She later sentenced both Dick and Judy to 33 months, the low end of their Guidelines sentencing range.

A recusal motion is a tough sell. Remember, defendants may come and go, but the judges all belong to the same club, and have long-standing professional and personal relationships. It is simply an acknowledgment of reality to recognize that there is a strong judicial predisposition against recusing a colleague.

So it was here. Last week, the 5th Circuit agreed the judge’s actions were improper, but that she had not shown bias.

Not everything can be described as bias or partiality within the meaning of the recusal statutes, 28 USC § 144 and § 455(a), the 5th said. “Rather, the concept of bias connotes a favorable or unfavorable disposition or opinion that is somehow wrongful or inappropriate… because it rests upon knowledge that the subject ought not to possess…” A judge is not generally required to recuse herself for bias – even if the judge may think the defendant is pond scum – when the judge’s “knowledge and the opinion it produced were properly and necessarily acquired in the course of the trial.”

Of course, the bias in this case, such as it might be, came from information acquired outside of the trial. “We do not in any way condone Internet searches concerning a witness’s credibility, or any type of similar investigation by court staff into factual matters.” the Circuit said. “This sort of ex parte fact-gathering is improper. Such activity has the potential to raise reasonable questions concerning impartiality, and it should not occur. We also find the district judge’s use of the term ‘perjury’ regrettable in light of the context in which the inconsistent testimony was identified.”

So was the 5th about to lay out Judge Nancy Drew? Hardly. “With that said, however, we think that a review of all of the facts and circumstances in this case dispels any reasonable doubts created by staff’s improper Internet search or the judge’s use of the word ‘perjury’.”

The Circuit found it significant that the Brocatos did not move to recuse the Judge until six months after she first raised the perjury matter, and that they both got 33 months, the bottom of the Guidelines advisory 33-41 sentencing range, with no obstruction-of-justice enhancement. The defendants’ only argument was that they might have gotten a below-Guidelines sentence but for the bias, and the 5th said that reason wasn’t enough to show they had been prejudiced.

Both of these excuses are perilously close to make-weight arguments. Make no mistake: filing a motion to recuse is a nuclear option. The Brocatos showed commendable discretion in letting the judge’s charge conference “perjury” revelation slide, and only decided that they had to push the button when the judge started assembling her own sentencing evidence. And as for the bottom of the Guidelines sentences without any enhancement for perjury, Judy hardly got any break.

Unfair or not, there is often a sentencing discount for the wife, if for no other reason than she’s a girl, and old habits die hard. Likewise, for tax offenses, the likelihood that a defendant will get a sentence below the Guidelines range is more than a mere hope: the Sentencing Commission’s 2020 Sourcebook reports that over 70% of tax fraud sentences (Guideline § 2T1.1) vary downward from the sentencing range, making it more likely than not that the Brocatos would have gotten a break but for the judge’s bias.

That she stayed within the Guidelines is hardly surprising: the Judge knew by sentencing that her investigative frolic was bound to be raised on appeal, and that within-Guidelines sentences and no whisper of the “p” word at sentencing were all that might save her decision on recusal.  But it is utterly disingenuous for the appellate court to dismiss the likelihood of a downward variance as not a significant reason for recusal.

United States v. Brocato, Case No 20-40624, 2021 U.S. App. LEXIS 20449 (5th Cir., July 9, 2021) (per curiam)

– Thomas L. Root