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You Look Like a Criminal – Update for August 7, 2023

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

DISTRICT JUDGE KICKED OFF CASE FOR PROCEDURAL TIRADE

Maybe it’s climate change or Donald Trump. Perhaps the Supermoon. Blame whatever you want, but I haven’t seen two judicial bias decisions in seven years. Now I’m writing about the second one in seven days.

judge160222Leron Liggins was charged with drug distribution in the Eastern District of Michigan. Using Federal Rule of Criminal Procedure 20, he had brought in a similar pending charge from the Eastern District of Kentucky so he could resolve both at once. On the eve of trial, Leron’s lawyer told the court he wanted to plead guilty, but when he appeared for the change of plea hearing, Leron demanded a new lawyer (for the second time).

US District Judge Stephen Murphy was not amused. He said, “Most defendants don’t get my attention or stand out, but Mr. Liggins does.” After reviewing the tortured procedural history of the case, the Judge said:

I’m tired of this case. I’m tired of this defendant. I’m tired of getting the runaround. This has been going on since February 6, 2018. We’ve got a case out of Kentucky that came here under Rule 20. Rule 20 says the reason for the transfer was the defendant has agreed to plead guilty. I feel as if the Court has been misled. I’ve been told in an official pleading and informally the defendant was going to plead guilty. We canceled jurors. We got a trial date. Now we got this.

Leron tried to talk, but the Judge shut him down, saying, “If you speak anymore, I’ll have you hauled out of here.” Then, turning to Leron’s lawyer, the Judge exploded:

This guy has got my attention. What do you want me to do? This guy looks like a criminal to me. This is what criminals do. This isn’t what innocent people, who want a fair trial do. He’s indicted in Kentucky. He’s indicted here. He’s alleged to be dealing heroin, which addicts, hurts and kills people, and he’s playing games with the Court.

The pandemic and Leron’s demands for other counsel ended up delaying things for a couple more years. Right before the trial was to begin, Leron’s new lawyer moved to have the Judge recuse himself for bias under 28 USC § 455(a).

murphy230807The next day, Judge Murphy denied the motion while saying he appreciated the “opportunity to clear up a few things that ha[d] been bothering [him] for a few months.” The Judge incorrectly recounted that Leron had “engaged in a personal colloquy” with the court that had caused the district judge to become “upset.” He had not, unless “STFU” passes for a friendly exchange of views. Nevertheless, for his conduct, the district judge delivered a faux apology:

And I want to say right now directly to Mr. Liggins I’m sorry, I apologize for getting upset. I did that because, A, I thought we were going to have a guilty plea; B, I thought that the colloquy was getting out of hand; and C, I lost my head… Now, having said that, I would say two things. Number one, [Leron’s lawyer] in that transcript agreed with my underlying concerns, and number two, just because I got mad does not mean I’m biased against Mr.—Mr. Liggins… I was mad, I was hostile, I was disapproving, and I regret it. I made a mistake by yelling like that, but I wasn’t upset or concluding that Mr. Liggins was—was guilty of an offense or hostile or partial toward him. I concluded he was acting in a manner which was frankly obstructionist and making me mad.

Leron, the Judge is sorry that you behaved so badly that you made him mad. Can you tell how sorry the Judge is?  

Neither can I.

The Judge then asserted, “I’m not, trust me. I give Mr. Liggins the same rights and opportunities here to demonstrate his innocence or lack of guilt as any other litigant.”

guiltyproveninnocent230807(Parenthetical:  You have to love the Judge’s standard of proof.  All this time we thought the government had to prove a defendant’s guilt. Turns out, at least practicing MurphyLaw, that a defendant has to prove his innocence.)

Leron was unable to prove his lack of guilt. He was convicted. After that, he appealed. Last week, the 6th Circuit threw Judge Murphy off the case.

A judge’s misconduct at trial may be “characterized as bias or prejudice” if “it is so extreme as to display clear inability to render fair judgment.” But this takes more than just judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases. “Expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women sometimes display,” the 6th held, “do not establish such bias or partiality… Only if the remarks reveal such a high degree of favoritism or antagonism as to make fair judgment impossible” does a judge cross the line.

But Judge Murphy found that line, and he crossed it. The appellate court said:

Difficult as the recusal standard may be to reach, we find that the district judge’s unacceptable remarks at the January 30, 2020 hearing satisfy it. Among the many disparaging remarks about Liggins that the district judge made, the most troubling is that Liggins ‘looks like a criminal to me.’ We are highly concerned by this remark, especially when directed toward Liggins, an African American man… These remarks served no purpose for courtroom administration, but rather constituted gratuitous commentary by the district judge about his opinion of Liggins and his feelings about Liggins’ case.

blamevictim230807In classic victim-blaming, the government conceded that Judge Murphy should not have lost his temper, but argues that his frustration was “understandable” based on Leron’s conduct during pretrial proceedings. The 6th shut that argument down flat: “To the contrary, we do not find the district judge’s conduct understandable in the least. The complexity or long duration of a criminal case gives no license to a district court to prejudge the defendant’s guilt or otherwise dispose of the case in any manner except through fair proceedings:

Finally, the Circuit ruled, the Judge’s apology – which, even if it should have counted for anything, was two years too late – didn’t matter. “In considering the denial of a motion for recusal pursuant to 28 USC § 455, we do not look to whether the district court made a sufficiently curative apology to the defendant in ruling on the motion; rather, we consider whether recusal was warranted at the time that the defendant made the motion.” Judge Murphy’s “looks like a criminal” comments “demonstrated a deep-seated . . . antagonism that would make fair judgment impossible.”

That was enough to warrant recusal.

United States v. Liggins, Case No. 22-1236, 2023 U.S. App. LEXIS 20040 (6th Cir. Aug. 3, 2023)

– Thomas L. Root

Qui Custodiet? – Update for August 1, 2023

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

CAESAR’S WIFE

The Romans recognized the problem: “Qui custodiet ipsos custodes?” Roughly translated, “Who will guard the guards?”

Just as Julius Caesar expected his wife Pompeia to be above suspicion of disloyalty and infidelity, we expect our judges to be above suspicion of bias. But, as the Supreme Court has observed, “Bias is easy to attribute to others and difficult to discern in oneself.” Rare is the federal defendant who hasn’t felt like his or her judge is biased.

At least weekly, someone asks me how they can get his or her case assigned to a different judge because “my judge is biased against me.” The plain truth is that winning reassignment of a case to a different judge because of bias “is a serious request rarely made and rarely granted,” as the 2nd Circuit put it last week.

irony230801Everyone knows how hard correctional officers work and how important it is to ensure they have a carefree retirement. For BOP employees, the federal government guarantees a generous and secure sunset for its employees. But state and local COs have to depend on retirement promises made by governments that, unlike Uncle Sam, can’t print money to cover any shortfalls.

The New York City Correctional Officers Benevolent Association collected money from its members to invest in a pension plan. COBA’s executives got bribed into investing $20 million in Platinum Partners, a shaky pension plan that went bankrupt primarily because the pension managers pillaged it for their own benefit.

One of the bit players, defendant Jona Rechnitz, cooperated with the government. In fact, the government said, Jona was “one of the single most important and prolific white collar cooperating witnesses in the recent history of the Southern District of New York.” The government told the court that while Jona knew about the bribes, he “did not appear to know that Platinum was a fraud, or even that it was a bad investment.”

But District Court Alvin Hellerstein ordered changes in Jona’s Presentence Investigation Report, including that he had “had to know” both that Platinum was a “high-risk fund” and that the Fund was “willing to pay a bribe to obtain funds to satisfy a liquidity shortage, thus making it reasonably foreseeable that an investment of pension funds risked the loss of those funds.”

money160118At sentencing, Judge H bumped Jona’s restitution from a proposed $1.2 million to $10 million and sentenced him to 5 months. Before judgment was entered, COBA intervened, asking that restitution be increased to $14.25 million.

While the appeal and COBA’s motion were pending, Jona learned from witnesses who had spoken to Andrew Kaplan – another defendant in the ongoing Platinum prosecutions – that Andy considered Judge Hellerstein to be “like a father” to him, and the judge had even advised Andy as to whether he should accept the government’s plea offer regarding his Platinum-related criminal conduct. The Judge and Andy had also talked about the significant monetary losses associated with the charges against Kaplan, and Kaplan’s feelings towards other Platinum executives.

While COBA’s motion for additional restitution was still pending, Jona asked the Judge to recuse himself to “avoid the appearance of any impropriety and in an abundance of caution.” Jona’s primary concern was that the size of his restitution turned largely on the credibility of his claim that he had believed “in the soundness of Platinum Partners as an investment vehicle,” and that the Judge might have obtained extrajudicial information regarding the case from Andy Kaplan, which Jona would not have had the opportunity to challenge.

cmon161027The Judge turned him down, holding that his relationship with Andy Kaplan and the case pending against Andy were unrelated to the restitution issue involving Jona, in part because “there is no suggestion that [Jona] had any relationship with [Andy].” The Judge denied that he had any extra-record information regarding Jona or Platinum.

While Jona’s appeal was pending, the government told Jona’s lawyer that Judge Hellerstein had phoned the Assistant U.S. Attorney working on the case to ask how much Jona had paid in restitution and to complain that Jona was “sly, cannot be trusted, and use[d] religion as a cloak.” The Judge asked the AUSA “not to speak to [Jona’s] counsel about this…”

Jona argued to the 2nd Circuit that Judge Hellerstein should have recused himself under 28 USC § 455. Last week, the 2nd Circuit agreed.

Under § 455(a), a judge should disqualify himself or herself in any proceeding in which the judge’s “impartiality might reasonably be questioned,” while § 455(b) requires a judge to recuse or herself in any case where the judge has “a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding,” or where the judge or spouse or someone within the 3rd degree of relationship to either has an interest that could be substantially affected by the proceeding or may be a witness.

The Circuit concluded that Judge Hellerstein had crossed the line.

First and foremost, the district judge had a close, near-paternal personal relationship with Kaplan… a person who was directly involved in Jona’s bribery case… The government correctly points out that Kaplan was not one of the most central figures in Jona’s bribe scheme. But Jona’s testimony implicated Kaplan in concealing the Platinum investment from other COBA employees – a circumstance that placed Kaplan squarely in the middle of yet another incidence of wrongdoing at a firm where, through his guilty plea, he had already admitted to participating in a different criminal conspiracy…

The district judge did not merely have a close personal relationship with Kaplan; he advised Kaplan on his criminal case arising out of the Platinum collapse… The district judge’s advisory role is further problematic in light of the restitution question because Kaplan’s and Jona’s interests are plausibly adverse on that issue. COBA, of course, can recover its losses only once, even though two groups – those involved in the bribery scheme and those involved in the fraud – arguably caused them… Because Kaplan is a defendant in the Platinum case, it is possible that he will be ordered to pay restitution… [T]he more COBA recovers from the bribery defendants, the less it will need to recover from the Platinum defendants.

The Circuit concluded that “the judge’s close relationship with Kaplan, his advisory role in Kaplan’s criminal case, and the proximity of the cases (including with respect to restitution) would cause a reasonable person to question the district judge’s impartiality and was sufficient to necessitate recusal under 455(a).”

bias230801But the Circuit wasn’t done: “The district judge’s phone call with the prosecutor here was doubly ill-advised because it was both ex parte and off-the-record,” the panel held, “magnifying the concerns inherent to both types of communications. After all, but for the commendable transparency of the United States Attorney’s Office, Jona would not have learned of this phone call… [T]here is no obvious justification for conducting this particular inquiry ex parte and off-the-record. A public docket entry requiring an update from the parties would have been equally effective to monitor Jona’s restitution payments… And to the extent that the district judge felt the need to emphasize his views on Jona’s allegedly negative qualities, such statements should be reserved for open, on-the-record forums, if shared at all.”

Jona’s case was assigned to a different judge for resentencing.

United States v. Rechnitz, Case No 20-1011-cr, 2023 U.S. App. LEXIS 19054 (2d Cir. July 26, 2023)

– Thomas L. Root

A Little Bias Never Hurt Anyone – Update for July 14, 2021

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

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.

maserati210714

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.

bias210714That 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.”

nancydrew210714Of 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.

taxreturn200401Unfair 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

Necktie Justice in the 7th Circuit – Update for February 21, 2020

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THE JUDGE WASN’T UNFAIR ENOUGH

badjudge171016Randy Williams was convicted of Hobbs Act robbery after a summer 2018 jury trial presided over by U.S. District Judge Colin Bruce. While it certainly must have been a significant event to Randy (as it is to most defendants), it was a pretty commonplace occurrence in the annals of federal criminal law. Happens every day…

Except that the presiding judge was Judge Bruce. You remember the good Judge, don’t you? He spent 24 years in the United States Attorney’s office, and somehow – after he put on his robe – His Honor (and I use that term as an honorific, not because it is deserved) could not quite leave the prosecutor’s office behind.

The scandal started about a month after Randy was convicted, when the Springfield, Illinois Times reported that Judge Bruce had been engaged in ex parte contacts with the US Attorney’s Office during a criminal trial (but not Randy’s).

colinbruce200221The 7th Circuit Judicial Council yanked Judge Bruce from all criminal cases and investigated him, finding the Judge had sent or received over 1,200 communications with people in the USAO. About 100 of the messages were potential prohibited ex parte communications about cases pending before him, concerning warrant approvals, appeals, scheduling matters or defendant’s conduct on bond.

In others, Judge Bruce addressed former colleagues by nicknames and congratulated them on favorable outcomes. In one email, Judge Bruce complained that an AUSA was “entirely unexperienced” and had turned a “slam dunk” case into a “60‐40” for the defendant. In others, Judge Bruce reassured former colleagues after they made filing mistakes. In one instance, he stated “My bad. You’re doing fine. Let’s get this thing done.” In another, he suggested that an Assistant United States Attorney (the line prosecutors in the USAO) call his boss “and advise” him of an adverse development, while noting that luckily “they have an understanding judge who doesn’t get angry.”

A Judicial Council special committee ultimately found “no evidence” that Judge Bruce’s conduct or ex parte communications affected any of his rulings or favored either party in cases before him. Except for the Nixon case, the Special Committee said, it saw “no evidence of Judge Bruce discussing the merits of pending cases with the U.S. Attorney’s Office ex parte.” Nevertheless, the Judge was ordered not to handle any criminal case for a year.

Randy’s case was assigned to another judge for sentencing. But nevertheless, on appeal, Randy demanded that his conviction be set aside because Judge Bruce’s ex parte communications with the US Attorney’s office violated both Rick’s due process rights and the federal recusal statute. While none of the emails concerned Randy’s case, some of them did concern the AUSA and paralegal who represented the government in Randy’s case.

Last week, the 7th Circuit turned Randy down. It noted that judges are disqualified for bias only in limited circumstances. First, actual bias is disqualifying. Second, “an impermissible risk of actual bias” exists when a judge earlier had significant personal involvement as a prosecutor in the case. Third, a judge is disqualified when he or she has a financial incentive in the case’s outcome. Finally, a judge should recuse himself when he or she becomes “personally embroiled” with a litigant.

“This case does not fit into these buckets,” the Circuit held. Instead, the Special Committee found no evidence that Judge Bruce’s conduct or ex parte communications affected the case, or that he had a financial interest in the outcome, had previously worked on the case as a AUSA, or became “personally embroiled” with the parties.

roybean200221The plain fact is that Randy was convicted in a courtroom that contained two prosecutors, one defendant and no judge. If Judge Bruce possessed a moral compass that pointed to true north instead of to the gallows, he would have resigned. Ah, well… O tempora, O mores! Nevertheless, it takes a special kind of myopia to pretend that a judge that maintained a back-channel to the U.S. Attorney’s office, using it to serve as the USAO’s biggest cheerleader, would nevertheless be perceived by the public to be fair and impartial.

United States v. Williams, 2020 U.S. App. LEXIS 4167 (7th Cir., February 11, 2020)

– Thomas L. Root

All Pro Appellate Judge Stumbles at Trial – Update for October 25, 2017

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I INSTRUCT THE JURY TO DISREGARD THE SMELL

There’s an old saying among trial attorneys that goes something like for the judge to instruct the jury to disregard something very prejudicial it has just seen or heard is “like throwing a skunk into the jury box and then telling the jury to disregard the smell.”

skunk171025The smell in a decision from the 7th Circuit earlier this week was just too intense. What makes the case even more noteworthy is that the trial judge who crossed the line was not just some small-town hack put on the bench as a reward for political loyalty, but rather Circuit Judge Richard Posner, arguably the 7th Circuit’s MVP for the past 25 years.

Judge Posner was taking a turn in the trenches, as circuit judges do from time to time, just to experience some of the rough-and-tumble which they are called upon to referee up on the appellate bench. The plaintiff was Hakeem El-Bey, a self-described Moorish national, who was running the usual tax scam in which he set up an eponymous trust, naming himself as the trustee and fiduciary, and then claimed $300,000 refunds from the IRS. (There are finer points to the scheme, but we’ll leave them out, because they might just encourage illegality).

The IRS resisted his demands, but someone at the Service finally pushed the wrong button, and a check for $300,000 got sent to Hakeem, who quickly spent it. The blunder happened again a few months later, and Hakeem figured he was on Easy Street.

Alas, it was not to be. The IRS Criminal Division caught up with him, and in short order Hakeem was indicted for mail fraud and making false claims to the IRS.

Hakeem represented himself at trial, an idea the foolishness of which we probably do not have to explain. Judge Posner permitted Hakeem his blunder, but appointed a standby attorney, Gabriel A. Fuentes.

sovereigncitizen161125Hakeem followed the tax protester/sovereign citizen script to the letter, filing pretrial motions related to admiralty law, the Uniform Commercial Code, and the Federal Rules of Civil Procedure. Judge Posner excluded Hakeem’s sovereign citizen evidence, and warned Hakeem that if he brought it up, the judge might exclude him from the courtroom, too, and let attorney Fuentes carry the defense load/

Some background here: the IRS likes to say it depends on voluntary compliance with the tax laws. And of course it does, just like the state police depend on voluntary compliance with the traffic laws. There’re just not enough cops to stop everyone. But Hakeem and his fellow tax protest travelers like to argue that “voluntary compliance” means taxpayers send in their checks and returns out of the goodness of their hearts. The argument has more holes than a swiss cheese factory, but that inconvenient fact does not deter the Hakeems of the world.

At trial, Hakeem cross-examined an IRS representative on the matter, asking her whether federal tax law compliance was voluntary. She responded:

The tax laws are based on individuals taking their information, voluntarily putting them on the tax returns, and mailing them to the IRS. However, the law states if you don’t do that the IRS can come in and file for you because the law states you file and pay your income tax.

aha171025Hakeem figured this was his “A-ha!” moment. He argued with the witness that “you just contradicted yourself. Because in one case you are saying that the IRS is saying filing taxes is voluntary compliance?” At this point, Judge Posner had had his fill:

THE COURT: Look, paying taxes is not voluntary.
THE DEFENDANT: That’s what it says here. I’m not saying it.
THE COURT: Come on.
THE DEFENDANT: Judge, I’m not saying it.
THE COURT: You don’t pay your tax, you go to jail.
THE DEFENDANT: Judge, I’m just saying what they are saying what they have—
THE COURT: Payment of taxes to the government is not voluntary.
THE DEFENDANT: Okay. Judge, so you brought in from behind the law.
THE COURT: Just—look, I’m going to kick you out if you keep on with this nonsense. You understand that? You can go watch the case from another room.
THE DEFENDANT: Okay. I am through.
THE COURT: Don’t you say that tax payment is voluntary.

The jury heard it all.

The government, with one eye on an appeal, was concerned. The next day, before the jury entered the courtroom, the AUSA told the judge “that some of what happened yesterday may have been potentially prejudicial to the defendant … importantly, perhaps, [it] has left a misimpression with the jury in certain respects.” Judge P agreed, and instructed the jury that it should ignore the malodorous exchange of the day before:

After the jury entered the courtroom, the court explained, “You don’t have to worry about the exchanges that Mr. El-Bey and I have had. And I don’t want you to feel any hostility to Mr. El-Bey just because I got annoyed occasionally.” He then proceeded to read parts of the transcript of the previous day’s exchange back to the jury, including his exchange with Hakeem on “voluntary compliance.” The judge concluded

When I said: If you don’t pay taxes you go to jail, what I was simply saying was you must pay taxes, and if you don’t pay taxes it’s criminal and you can be sent to jail. I was not talking about Mr. El-Bey, because he isn’t charged with tax evasion.

Unfortunately, the judge was not quite done. When he was reading the jury instructions, Judge Posner went off-script, ignoring the written instruction on materiality, and ad libbing instead:

One [element] is that … the scheme to defraud involved a materially false or fraudulent pre-tense, representation, or promise. That’s very important, that notion of materiality… Little white lies, those are not material falsehoods. They don’t—I mean, they may embarrass you when it’s discovered, but they’re not—that’s not wrongful conduct. It’s when, with specific reference to our case, if you—if tell—if you tell the Internal Revenue Service a lie which is capable of getting them to do something which they would never do if they knew the truth, namely, give you $300,000 to which you’re not entitled, that is a material falsehood. That’s fraud. And that is an element of the charges.

swift171025On appeal, Hakeem complained that Judge Posner had been biased against him, and thus violated his due process right to a fair trial. In the 7th Circuit, that’s like accusing Taylor Swift of lip-syncing. But the 7th had to reluctantly that Hakeem had a point:

It is clear from the transcript of the trial court proceedings that El-Bey was a difficult litigant. He filed numerous irrelevant motions, disregarded court instructions, and often inappropriately interrupted the district court to express disagreement and dissatisfaction. Nonetheless, we agree with El-Bey that the district court’s remarks during cross-examination of the government’s first witness conveyed bias regarding his dishonesty or guilt. The district court interrupted El-Bey at the beginning of his cross-examination, stating, “Look, paying taxes is not voluntary.” When El-Bey noted that he was only reading what the document stated, the district court remarked “Come on”—a statement laced with skepticism. The district court continued with further remarks in the presence of the jury reflecting upon El-Bey’s dishonesty or guilt, stat-ing, “You don’t pay your tax, you go to jail,” and “I’m going to kick you out if you keep on with this nonsense…” The purpose of the comments cannot eliminate the bias conveyed to the jury by the remarks here. The court’s statements that one who does not pay taxes goes to jail and that El-Bey was acting in a nonsensical manner indicated bias about El-Bey’s guilt or honesty to the jury.

And if that were not enough, the Circuit said, Judge Posner did it again when he ad libbed instructions that “conveyed to the jury that El-Bey was guilty by concluding that El-Bey’s receipt of the checks and money made him guilty of mail fraud and making false claims.”

The appellate court had no doubt about Hakeem’s culpability, noting that “there is more than enough evidence of El-Bey’s guilt. But in the end, that did not matter. “We must… conclude that the unfairness in the trial requires reversal,” the court said. “Any other holding would constitute the adoption of the principle that a defendant the court thinks is obviously guilty is not entitled to a fair trial.”

Hakeem will be retried. Judge Posner will probably not be there.

United States v. El-Bey, Case No. 15-3180 (7th Circuit, October 24, 2017)

– Thomas L. Root

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Judge Boyle’s Mouth Buys Defendant a New Trial – Update for August 16, 2017

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HEY, JUDGE – SHUT UP

We’ve had dealings with many federal judges in our day, and we have been impressed by most of them. If we were a criminal defendant, we would want to appear in front of a Mark Bennett (N.D. Iowa), a Jed Rakoff (S.D.N.Y.), a Jack Weinstein or (retired) John Gleeson (E.D.N.Y.), or a Jeff Helmick (N.D. Ohio). Not because these guys are soft on defendants, but because they’re thoughtful and fair.

Boyle170817We won’t name any of the judges on the other end of the scale save one, who is the subject of today’s case. We have some experience with Hon. Terrence W. Boyle, U.S. District Judge for the Eastern District of North Carolina, and that experience left us all too able to believe the experience that would-be U.S. citizen Hemza Menade Lefsih, a native Algerian, had in Judge Boyle’s courtroom.

Judge Boyle has a distinction of being among the most reversed – if not the most reversed – district judge in the 4th Circuit. Twice he has been proposed for elevation to the 4th Circuit Court of Appeals – once by President George H.W. Bush and again a decade later by President George W, Bush – and twice the appointment has not been approved by the Senate. While his opponents included predictably liberal groups, Judge Boyle’s fitness has been roundly questioned “over concerns about competence not conservatism.” Notably, many of his reversals were for F.R.Crim.P. 52(b) “plain error,” mistakes so substantial and obvious that they merited reversal even when the defendant had not objected in the trial court.

Hemza could tell you all about that. Initially, he had immigrated to the United States some years ago through what’s known as the Diversity Immigrant Visa Program. The Diversity Program awards permanent residence immigration visas – “diversity visas” – to individuals from countries with historically low immigration numbers on the basis of a random lottery system. Hemza won a lottery slot and received a diversity visa. As allowed under the Diversity Program, he then applied for citizenship five years after coming here.

ticket170817Question 23 on the application form asks whether an applicant has “ever been arrested, cited, or detained by any law enforcement officer . . . for any reason.” Hemza, who had worked as a cab driver, answered “no” to Question 23, despite the fact he had gotten 11 traffic tickets during his driving career. He thought Question 23 referred only to serious criminal offenses that resulted in arrests or detentions and not to traffic tickets, and so believed that he was answering the question truthfully.

Because Hemza failed to acknowledge his traffic tickets in answer to Question 23, the government – which should have had better things to do – charged him with making a false statement and immigration fraud. The government had no direct evidence that Hemza knew his answer to Question 23 was false. Instead, it relied on circumstantial evidence and its classic “smear the defendant” strategy.

An Immigration and Customs Enforcement agent testified that Hemza was proficient in English and had advanced education. In addition, the agent called Hemza’s motives in entering the Diversity Program into question, saying that in his experience, it was unusual that someone like Hemza would apply only for a diversity visa instead of a student visa, and probably did it because there were fewer restrictions on him as a diversity program entrant.

When the government’s next witness testified that the Diversity Program was established by Congress so that people from countries with historically low immigration rates would have an opportunity to live permanently in the United States, Judge Boyle could not restrain himself:

District court:  You’re saying that Congress has set up a law that your agency enforces that invites people to come to America from places where they don’t normally come to America?

Special Agent Freitas:   Yes.

District court:   That’s incredible. And the reason that they don’t come to America is because they haven’t tried to come to America? Is that it?

Special Agent Freitas:   Usually because of – they may not have family members here from those countries or employment opportunities.

District court:   Okay. Do you think anybody in America knows about this, other than the Committee that sent it through Congress? Probably not.

Special Agent Freitas:   I didn’t know it before I started –

District court:   And it’s your job. Don’t you love Congress? I mean, unbelievable, unbelievable. I’m sitting here 32 years, first time I ever heard this. And you’re talking about the hundred countries that nobody could name if they had a list of 180 countries in the world?

Special Agent Freitas:   Yes.

District court:   The bottom hundred.

inconceivable170817Judge Boyle carried on like this for an extended period, at one point complaining that “so if you get lucky and win the diversity lottery and get a card to come to America you can drag along your ten kids and four wives or what?” He whined that where some programs admitted people Aren’t there quotas on people coming from countries that send a lot of people here, and you who had proven they were “a doctor, an engineer or a rocket scientist or someone who is going to contribute to the well-being of the United States of America and make it a better place to live because of your skill or personal characteristics,” the Diversity Program used by Hemza told people “in the bottom hundred countries in the world, just come on.”

Hemza was his own witness, explaining his incorrect answer to Question 23 was an honest mistake, rather than a knowing falsity, that “he did not understand what the word ‘cited’ meant, or that “traffic tickets are actually included in the word cited.” Instead, because the word “cited” appears between “arrested” and “detained” in Question 23, Hemza assumed that it carried a similar meaning: being taken into custody. He testified, “It never occurred to [me] that [a] traffic ticket could be [a] criminal offense.”

Hemza was convicted. Ironically, at sentencing, Judge Boyle said he believed Hemza was “sincere” in his account of his “unknowing mistake,” thus putting meat on the bones of the old saying that “it takes a good prosecutor to convict the guilty, but it takes a great prosecutor to convict the innocent.”

judge160222This time, the 4th Circuit ruled earlier this week, the “great” prosecutor had help. The appellate court reversed Hemza’s conviction, holding that Judge Boyle’s diatribe about the Diversity Program denied him a fair trial.

A federal judge need not sit silently during the presentation of evidence at trial. “There is no question,” the Court of Appeals said, “that in these core matters of trial management, a district court is granted broad discretion.”

But there are limits, and Judge Boyle – unsurprisingly to us – exceeded them. “This jury,” the 4th Circuit said, “would have no need to deduce from a pattern of interruptions or questions that the district court was skeptical of the defendant; here, the district court conveyed that skepticism directly. In the context of an immigration-fraud case – that is, with immigration front and center before the jury – the court began with a series of questions and comments suggesting a negative view of the very immigration program through which Lefsih had entered the country: ‘[U]nbelievable, unbelievable.’ And contrary to the government’s argument, what reasonably could have appeared to the jury as the court’s disapproval did not stop with the Diversity Program itself, or the Congress that established it. Instead, the court went on to provide a negative assessment of the people – like Lefsih himself – who make use of the Diversity Program to come to the United States.”

boyleB170817This was a case in which the credibility of the defendant was of “crucial importance,” and as a result, aspersions cast by the court on the trustworthiness of Diversity Program entrants would have carried special weight. The Circuit Court concluded that “it is enough to say” that Judge Boyle’s comments “taken together, would have conveyed to the jury the court’s ‘negative impression’ of the Diversity Program and the immigrants who avail themselves of the Program, and thus of Lefsih himself.”

The 4th Circuit includes the obligatory “we do not doubt that the district court in this case acted without any intent to influence the jury improperly” language, but veteran Judge Boyle watchers recognize that statement for the mandatory fig leaf that it is.

Hemza will get a new trial.

United States v. Hemza, Case No. 16-4345 (4th Cir., Aug. 14, 2017)

– Thomas L. Root

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Recuse Me – Update For March 9, 2017

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

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THE JUDGE IN THE TOWN’S GOT BLOODSTAINS ON HIS HANDS…

We confess to a lack of creativity. This is the second time in less than a month that we’ve pinned our theme to lyrics from Vicki Lawrence’s 1973 hit, The Night the Lights Went Out in Georgia. What compounds our intellectual felons is that the judge in today’s report had hands stained green, not red.

The big Supreme Court news Monday was the unsurprising (to us, at least) Pena-Rodriguez v. Colorado decision, in which the Court held that the sanctity of the jury room could be invaded where a juror showed racial bias. The decision of importance to our readers, Beckles v. United States, ran a distant second in the news. And the case we’re looking at today, a summary disposition in Rippo v. Baker, was almost completely ignored.

bribeB160627Mike Rippo is a Nevada death-row inmate who alleged that the judge in his state trial was biased. Mike was tried for two murders in 1992. Shortly after his trial started, newspaper stories revealed the judge, Gerard Bongiovanni, was under investigation by a federal grand jury for allegedly taking bribes. Mike moved for the judge’s recusal as a matter of due process, contending that a judge could not impartially adjudicate a case in which one of the parties was criminally investigating him. Mike argued the judge had a motive to favor the prosecution in his case, in order to curry favor.

The DA falsely denied that his office was part of the bribery probe, and the judge himself said he did not know about any state law enforcement involvement in the fed’s investigation. The trial went on, and Mike was convicted. But after the trial ended, the judge was indicted by a federal grand jury for bribery unrelated to Mike’s case.

vegas170309In a later state post-conviction proceeding, Mike advanced his bias claim again, this time pointing to documents from the judge’s criminal trial indicating that the district attorney’s office had participated in the bribery investigation. The state court denied the motion, and the Nevada Supreme Court affirmed. It reasoned that Mike was not entitled to discovery or an evidentiary hearing because his allegations “did not support the assertion that the trial judge was actually biased in this case.”

The U.S. Supreme Court dithered over Mike’s petition for certiorari, re-listing it for conference five times. Finally, last Monday the Court summarily reversed the Nevada courts and sent the case back.

The Nevada courts’ error, last Monday’s short opinion said, was in applying the wrong legal standard. The due process clause “may sometimes demand recusal even when a judge has no actual bias,” the Court ruled. “Recusal is required when, objectively speaking, the probability of actual bias on the part of the judge or decision-maker is too high to be constitutionally tolerable.”

The Rippo decision may save some people from writing pleadings on the sides of their cars…
The Rippo decision may save some people from writing pleadings on the sides of their cars…

The test is not “whether a judge harbors an actual, subjective bias, but instead whether, as an objective matter, the average judge in his position is likely to be neutral, or whether there is an unconstitutional potential for bias.” To make out a bias complaint, a litigant need not “show as a matter of course that a judge was actually biased in the litigant’s case.” Such a standard would be nearly impossible to meet. Instead, it is enough if “the circumstances alleged” are such that “the risk of bias” is too high to be constitutionally tolerable.

And how high is too high? We’ll have to wait for further opinions to resolve that.

Rippo v. Baker, Case No. 16-6316 (March 6, 2017) per curiam

– Thomas L. Root

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