USA v. Approximately 64,695, No. 05-56274 (9th Cir. 2008)

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FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RUSSELL LAROY HOLLAND, Defendant-Appellant. ï£¼ ï£½ ï£¾ No. 06-30258 D.C. No. CR-05-00079-EJL ORDER WITHDRAWING OPINION AND OPINION Appeal from the United States District Court for the District of Idaho Edward J. Lodge, District Judge, Presiding Argued and Submitted February 8, 2007 Portland, Oregon Filed March 17, 2008 Before: David R. Thompson, Andrew J. Kleinfeld, and Jay S. Bybee, Circuit Judges. Opinion by Judge Bybee 2487 2490 UNITED STATES v. HOLLAND COUNSEL Philip Gordon, Boise, Idaho, for appellant Russell Laroy Holland. Alan G. Burrow & George W. Breitsameter, Boise, Idaho, for appellee United States of America. ORDER The Opinion filed September 4, 2007, slip op. 11411, and appearing at 501 F.3d 1120 (9th Cir. 2007), is withdrawn. It may not be cited as precedent by or to this court or any district court of the Ninth Circuit. UNITED STATES v. HOLLAND 2491 OPINION BYBEE, Circuit Judge: Russell Laroy Holland appeals his conviction and sentence for mailing threatening communications and threatening the President of the United States. He maintains that the district court judge who imposed the sentence should have recused himself after Holland obtained the judge s home telephone number and left at least one threatening message prior to his sentencing. We hold that the district judge reasonably construed Holland s threatening phone message as an attempt to manipulate the court system which did not warrant his sua sponte recusal. Accordingly, we affirm the judgment. I Russell Laroy Holland pled guilty to one count each under 18 U.S.C. § 876 and 18 U.S.C. § 871 for mailing threatening communications and threatening the President of the United States. He agreed to plead guilty in exchange for the Government dismissing the other four counts of the indictment. On April 13, 2006, Appellant was sentenced to seventy-eight (78) months incarceration followed by three (3) years of supervised release, to begin running after Holland served his current state sentence. Holland is projected to be released from Federal custody sometime during the year 2012, when he will be 51 years old. Holland has a lengthy criminal record and has been incarcerated for most of his adult life for crimes ranging from armed robbery, petty theft, escape from prison, assault by a prisoner, grand theft, robbery, prisoner possession of a weapon, assault with a deadly weapon, threats against state officials, and injury to jails. At some point during the proceedings in this case, Holland obtained the sentencing judge s home telephone number, which he called, leaving more than one threatening message on an answering machine. Before 2492 UNITED STATES v. HOLLAND sentencing, the district court revealed that he had received these threatening messages from Holland. The district court, however, dismissed them as attempts to manipulate the system. Specifically, the judge remarked: For the record, too, the Court is also aware that Mr. Holland did, in fact, leave voice messages at the Court s personal residence that to some people could be construed as threatening. However, in my judgment, Mr. Holland s history clearly demonstrates that these are attempts to manipulate the criminal justice system rather than threats as such and the Court is just simply not going to allow Mr. Holland to manipulate the system. So the Court has chosen to go forward with this sentencing at this time. Later in the proceeding, the judge observed that Holland had a history of violent and assaultive crimes and if he is given the opportunity, he has the ability to carry out his threats . . . . [I]t is clearly important . . . that the Court impose[ ] a sentence for the protection of society. Holland did not object to the sentencing judge s decision to proceed with the hearing or request that the judge recuse himself. II We are confronted with a narrow question: When does a judge have an obligation under 28 U.S.C. § 455 to recuse himself sua sponte in response to threats made against him, his family members or associates? Because the issue was not raised before the trial court, we review for plain error. Jones v. United States, 527 U.S. 373, 388 (1999); United States v. Olano, 507 U.S. 725, 736 (1993); United States v. Ortiz, 362 F.3d 1274, 1278 (9th Cir. 2004).1 In Noli v. Comm r of Inter1 The government s argument that Holland s motion for recusal must be timely is irrelevant. The cases the government cites for this proposition all involved motions made to the district court. No such motion was made here. We, therefore, consider the issue for the first time on appeal and review for plain error. UNITED STATES v. HOLLAND 2493 nal Revenue, 860 F.2d 1521, 1527 (9th Cir. 1988), we held that [f]ailure to move for recusal at the trial level . . . does not preclude raising on appeal the issue of recusal under § 455. Id. Nonetheless, if no motion is made to the [trial court] judge . . . a party will bear a greater burden on appeal in demonstrating that the judge . . . [erred] in failing to grant recusal under section 455. Id. (quoting United States v. Sibla, 624 F.2d 864, 868 (9th Cir. 1980)); see also Pau v. Yosemite Park and Curry Co., 928 F.2d 880, 885 (9th Cir. 1991). A [1] We begin with the general proposition that, in the absence of a legitimate reason to recuse himself, a judge should participate in cases assigned. Maier v. Orr, 758 F.2d 1578, 1583 (9th Cir. 1985); United States v. Snyder, 235 F.3d 42, 46 (1st Cir. 2000). This proposition is derived from the judicial Power with which we are vested. See U.S. CONST. art. III, § 1. It is reflected in our oath, by which we have obligated ourselves to faithfully and impartially discharge and perform [our] duties and to administer justice without respect to persons, and do equal right to the poor and to the rich. 28 U.S.C. § 453. Without this proposition, we could recuse ourselves for any reason or no reason at all; we could pick and choose our cases, abandoning those that we find difficult, distasteful, inconvenient or just plain boring. Our mythic Justice, represented by a blindfolded figure wielding a balance and a sword, hears all cases coming before her, giving no preference whether in priority or result to the station or economic status of such persons. [2] It is equally clear from this general proposition that a judge may not sit in cases in which his impartiality might reasonably be questioned. 28 U.S.C. § 455(a); see also id. § 455(b) (enumerating circumstances requiring recusal). We are as bound to recuse ourselves when the law and facts require as we are to hear cases when there is no reasonable 2494 UNITED STATES v. HOLLAND factual basis for recusal. See Clemens v. U.S. Dist. Ct., 428 F.3d 1175, 1179 (9th Cir. 2005); Nichols v. Alley, 71 F.3d 347, 352 (10th Cir. 1995). If it is a close case, the balance tips in favor of recusal. United States v. Dandy, 998 F.2d 1344, 1349 (6th Cir. 1993). [3] We also recognize that the security of the nation s judiciary is a serious concern. We are, unfortunately, reminded from time to time that threats against the judiciary have been carried out.2 We stress that, despite the duty to sit, if a judge feels that his personal safety or the safety of his family is in danger, he may always recuse himself sua sponte from a matter. Recusal in such situations is left to the discretion of the threatened judge, who is in the best position to evaluate the 2 Despite security measures, threats against federal judges have taken a deadly turn. In 1979, Judge John H. Wood Jr., of the Western District of Texas, was shot to death outside his home by a hit man hired to prevent him from presiding over a narcotics trial. In 1988 Judge Richard J. Daronco, of the Southern District of New York, was shot outside his home by a retired police officer after the judge dismissed a sexual discrimination suit brought by the officer s daughter. Judge Robert S. Vance, of the Eleventh Circuit, was killed at his home by a pipe bomb mailed by an inmate angry that his prior conviction was not overturned. In 2005, Chicago District Court Judge Joan Lefkow s husband and mother were brutally murdered by a man whom the judge had ruled against in court. See Rick Lyman, Focus on Safety for Judges Outside the Courtroom, N.Y. TIMES, Mar. 11, 2005, at A18; John Bebow & John Keilman, Man commits suicide, claims responsibility for Lefkow murders, CHICAGO TRIBUNE, Mar. 11, 2005, at A1. The wife of Judge Charles Brieant of the Southern District of New York was rushed to the hospital in 1987 after eating poisoned chocolates mailed by a former university professor jailed by Brieant for manufacturing drugs in his NYU laboratory. Reuters, FBI Says Ex-Prof Sent Judge Sweet Revenge, PHILADELPHIA DAILY NEWS, Feb. 21, 1987, at 10. We are mindful that our state counterparts are also at risk. At the time of the Lefkow murders, the U.S. Marshal s service, tasked with providing security for the federal judiciary, logged roughly 700 threats or inappropriate communications against judges each year. Amanda Paulson & Brad Knickerbocker, Chicago Murders Spotlight Risk to Judges, CHRISTIAN SCI. MONITOR, Mar. 3, 2005, at 3. UNITED STATES v. HOLLAND 2495 advisability of recusal; we generally do not review a judge s decision to recuse himself. [4] The question before us, however, is different. Here we must decide when a judge must recuse himself sua sponte in response to threats even if he believes himself to be unbiased and would prefer to continue his work on the case. Here, Holland contends that under 28 U.S.C. § 455, the district judge should have recused himself sua sponte after receiving his threatening phone calls. [5] Section 455(a) of Title 28 reads: Any justice, judge or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. In 1974 Congress amended the section to replace the subjective test of the previous version of the section with an objective test based on public perception.3 The Supreme Court discussed this change in Liljeberg v. Health Servs. Acquisition Corp., explaining that, The goal of section 455(a) is to avoid even the appearance of partiality. If it would appear to a reasonable person that a judge has knowledge of facts that would give him an interest in the litigation then an appearance of partiality is created even though no actual partiality exists. 486 U.S. 847, 860 (1988) (internal quotation marks omitted). We have restated § 455(a) and ask whether a reasonable person with knowledge of all the facts would conclude that the judge s impartiality might reasonably be questioned. Clemens v. U.S. Dist. Ct., 428 F.3d 1175, 3 The prior version of the section read, in part, Any justice or judge of the United States shall disqualify himself in any case in which he has a substantial interest . . . or is so related or connected with any party or his attorney as to render it improper, in his opinion, for him to sit on the trial, appeal, or other proceeding therein. 28 U.S.C. § 455 (1970) (emphasis added). The 1974 amendment removed the subjective in his opinion and replaced it with an objective test designed to promote public confidence in the integrity of the judicial process. Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 858 n.7 (1988); see also S. REP. NO. 93419, at 5. Congress retained a subjective test for recusal in section 455(b). 2496 UNITED STATES v. HOLLAND 1178 (9th Cir. 2005) (internal quotation marks and citation omitted); cf. United States v. Cooley, 1 F.3d 985, 993 (10th Cir. 1993) (articulating a similar standard). Section 455(a) asks whether a reasonable person perceives a significant risk that the judge will resolve the case on a basis other than the merits. In re Mason, 916 F.2d 384, 385 (7th Cir. 1990). The reasonable person is not someone who is hypersensitive or unduly suspicious, but rather is a well-informed, thoughtful observer. Id. at 386. The standard must not be so broadly construed that it becomes, in effect, presumptive, so that recusal is mandated upon the merest unsubstantiated suggestion of personal bias or prejudice. Cooley, 1 F.3d at 993. [6] Disqualification under § 455(a) is necessarily factdriven and may turn on subtleties in the particular case. Consequently, the analysis of a particular section 455(a) claim must be guided, not by comparison to similar situations addressed by prior jurisprudence, but rather by an independent examination of the unique facts and circumstances of the particular claim at issue. United States v. Bremers, 195 F.3d 221, 226 (5th Cir. 1999); see also Clemens, 428 F.3d at 1178. In general, the conscientious judge should also bear in mind that § 455(a) is limited by the extrajudicial source factor which generally requires as the basis for recusal something other than rulings, opinions formed or statements made by the judge during the course of trial. Liteky v. United States, 510 U.S. 540, 554-56 (1994). Put differently, the judge s conduct during the proceedings should not, except in the rarest of circumstances 4 form the sole basis for recusal under § 455(a). 4 We note that these rarest of circumstances occasionally arise where events in the courtroom so embroil [a judge] in controversy . . . that there was such a likelihood of bias or an appearance of bias that the judge was unable to hold the balance between vindicating the interests of the court and the interests of the accused and a new judge should assume control of the case. Taylor v. Hayes, 418 U.S. 488, 501 (1974) (internal quotation marks omitted); see also United States v. Dellinger, 472 F.2d 340 (7th Cir. 1972) (trial of the Chicago Seven ). UNITED STATES v. HOLLAND 2497 Id. at 555.5 B Applying these general principles to situations where the judge receives a threat suggests a two-part process for evaluating whether recusal is required under § 455. The judge may find it necessary to recuse himself under either part. [7] First, under section 455(a), the judge must apply the objective standard articulated in Liljeberg, 486 U.S. at 860. That standard requires recusal if a reasonable third-party observer would perceive that there is a significant risk that the judge will be influenced by the threat and resolve the case on a basis other than the merits. The reasonable third-party observer is not a partly informed man-in-the-street, but rather someone who understand[s] all the relevant facts and has examined the record and law. LoCascio v. United States, 473 F.3d 493, 496 (2d Cir. 2007); see also Clemens, 428 F.3d at 1178 ( The reasonable person in this context means a wellinformed, thoughtful observer, as opposed to a hypersensitive or unduly suspicious person. (internal quotation marks and citation omitted)); but see In re Nettles, 394 F.3d 1001, 1002 (7th Cir. 2005) ( We must bear in mind that these outside observers are less inclined to credit judges impartiality and 5 We, along with our sister circuits, have identified various matters which will not ordinarily require recusal under § 455: (1) rumor, speculation, beliefs . . . and similar non-factual matters; (2) the mere fact that a judge has previously expressed an opinion on a point of law; (3) prior rulings in the proceeding; (4) mere familiarity with the defendant(s) or the type of charge; (5) baseless personal attacks on or suits against the judge by a party; (6) reporters personal opinions or characterizations; and (7) threats or other attempts to intimidate the judge. Cooley, 1 F.3d at 993-94; see also United States v. Burger, 964 F.2d 1065, 1069 (10th Cir. 1992); Leaman v. Ohio Dep t of Mental Retardation & Dev. Disabilities, 825 F.2d 946, 949 n.1 (6th Cir. 1987); United States v. Haldeman, 559 F.2d 31, 134 n.302 (D.C. Cir. 1976); United States v. Studley, 783 F.2d 934, 940 (9th Cir. 1986); United States v. Greenough, 782 F.2d 1556, 1558 (11th Cir. 1986). 2498 UNITED STATES v. HOLLAND mental discipline than the judiciary itself will be. (internal quotation marks and citation omitted)). The objective standard is a check to avoid even the appearance of partiality, Liljeberg, 486 U.S. at 860, and ensure that the judge s decision is reasonable to an informed observer. [8] To apply the objective test, the judge must evaluate the threat itself to determine how much risk there is that it may be carried out and how much harm there would be if it were. In deciding whether recusal is appropriate, the judge may wish to consider the following factors: (1) The defendant s capacity to carry out the threat. Has the defendant taken concrete steps to carry out the threat? Does the defendant have a history of violence or has he previously been successful in carrying out other threats? Is he a member of a gang or does he have accomplices or contacts who could carry out the threat on his behalf? (2) The defendant s demeanor and the context of the threat. Was the threat made in a fit of passion or intended as a joke? Was the defendant serious in carrying out the threat? Does the judge have any prior dealings with the defendant that make the threat more or less likely to be carried out? (3) The perceived purpose of the threat. Was the threat made in open court or did the judge become aware of the threat only through the fortuity of a law enforcement investigation? Was the threat an attempt to force recusal and manipulate the judicial system? The final factor is, perhaps, the most important. Not every threat made against a judge should force recusal. If so, defendants could readily manipulate the system, threatening every jurist assigned on the wheel until the defendant gets a judge he preferred. Also, the defendant could force delays, perhaps UNITED STATES v. HOLLAND 2499 making the cases against him more difficult to try, perhaps putting witnesses at greater risk. Such blatant manipulation would subvert our processes, undermine our notions of fair play and justice, and damage the public s perception of the judiciary.6 We agree with the Eighth Circuit that recusal is not automatic on the mere basis of the judge s knowledge of the threat. United States v. Gamboa, 439 F.3d 796, 817 (8th Cir. 2006). [9] Second, the judge must apply the subjective standard articulated in section 455(b) to determine whether he can be truly impartial when trying the case. This is a test for actual bias. If the judge feels he cannot hear the case without bias, on account of the threat, then the judge has a duty to recuse himself irrespective of how it looks to the public. Section 455(b) of Title 28 requires recusal where the judge has a personal bias or prejudice concerning a party. 28 U.S.C. § 455(b)(1); see also 28 U.S.C. § 144 (addressing recusal upon motion by a litigant); CODE OF CONDUCT FOR UNITED STATES JUDGES CANON 3 (2000) (imposing upon judges a duty to recuse themselves where they are either impartial or when their impartiality may reasonably be questioned). This test is highly personal in nature and requires each judge in such a situation to set aside emotion and thoughtfully examine his ability to impartially administer justice without respect to 6 The danger in a case where the judge has himself become the target is twofold. First, there is the risk that the judge will accede to the pressure posed by the threats. In that instance the judge is hostage to the threats and goes easy on the defendant in order to defuse the threats and protect himself and his family. But there is a second consideration that a conscientious judge should be aware of as well, namely that the judge will favor the government in a criminal case as a means of protecting himself or his family by imposing a tougher sentence on the person making the threats. Neither scenario is acceptable; we are both judges and people and cannot put our personal lives on the hanger from which we take our robes. There are situations in which it is too much to expect a judge to dispense justice faithfully and impartially, without regard for his own physical safety and the safety of his family. 2500 UNITED STATES v. HOLLAND persons. 28 U.S.C. § 453. If he feels there is a risk of prejudice, it is incumbent on him to recuse himself from the case; failure to do so would amount to an abdication of duty and be in clear derogation of the solemn promise he made when he took his oath of office. C [10] Turning to the facts of the case at hand, it is apparent to us that the district judge did not plainly err when he did not recuse himself sua sponte after receiving Holland s threatening phone message. The precise nature of the threat is not clear from the record, but the district judge described it as a message that to some people could be construed as threatening. The district court, however, did not consider the threats or Holland s capacity to carry them out serious enough to refer the incident to the FBI, nor did he request additional security from the U.S. Marshal s service. [11] Additionally, the judge carefully considered Holland s extensive (and curious) history of making threats. Holland was before the district court to plead guilty of violating 18 U.S.C. § 871, making knowingly and willful threats against the President of the United States. Section 871 does not require proof of the defendant s capacity, or evidence that the defendant has taken any affirmative steps, to carry out such threats. Holland s current legal troubles also involved mailing threatening letters to: (1) a state court judge (he later mailed another letter apologizing for the threats); (2) the prosecutor involved in a prior criminal proceeding; and (3) the President of the United States in violation of 18 U.S.C. § 876. When initially confronted with the letter to the President, Holland told an Idaho Department of Corrections lieutenant assisting the Secret Service that he did not want to remain in state custody any longer and that he wanted to go to federal prison instead. He thought he could get to federal prison by committing a federal crime. Holland also threatened a jail nurse in an apparent attempt to be transferred to the prison s medical UNITED STATES v. HOLLAND 2501 facility and threatened his former defense lawyer in an attempt to get him to mail a second letter from Holland threatening the President. There is no evidence in the record that Holland took any steps in furtherance of any of his threats. [12] The district judge found that these [threats] are attempts to manipulate the criminal justice system. This finding is amply supported by the record, including Holland s behavior in the courtroom. At the beginning of the proceedings, Holland blurted out, The detectives told me yesterday that I threatened you [the district judge] at home. Did I threaten you at home? Later, when given an opportunity to address the court, Holland stated I am not as bad as my paperwork says . . . . There ain t no way I am going to look for a judge. There ain t no damn way I am going to look for a President of the United States or anybody . . . . I have never hurt a victim. He attempted to explain his threats as part of the prison culture: Maybe it s because of the lifestyle, the way prison is. Everybody threatens, I am going to do this, I am going to do that. It has got to the point where it is natural to do that . . . . But as far as carrying out the threats, no. There ain t no way. Who would be stupid enough? It was not until well after Holland offered this explanation, and was subsequently removed from the courtroom by refusing to be quiet during sentencing,7 that the judge addressed the issue of Holland s threatening phone messages. 7 The relevant trial transcript of this incident is as follows: THE COURT: Mr Holland, you can either listen to me or we can have you removed, whichever way you want to do it. But right now I am ordering you not to say a word until I am finished. THE DEFENDANT: Let s go. I want to be removed. I don t kiss nobody s ass. THE COURT: The record may show that the Marshal s Service has escorted Mr. Holland out at his own request. He has been disruptive and will not listen to the Court make its ruling in this case. 2502 UNITED STATES v. HOLLAND [13] Holland directs our attention to a comment the district court made suggesting that Appellant s threats should be taken seriously. The court stated, As I pointed out to him, many of his crimes are violent and assaultive in nature. So contrary to what he says, if he is given the opportunity, he has the ability to carry out his threats. Holland argues that this statement suggests that the district court may have taken the threats seriously, which would weigh in favor of recusal.8 However, the court s decision not to request additional security upon receiving the threats showed that it considered them harmless, as did the court s careful consideration of Holland s history of making empty threats. When reviewing the situation as a whole, we cannot conclude that a reasonable person in possession of all the facts would determine that the district court conducted the proceedings on the basis of anything but the merits of the case. Nor can we conclude that the judge had a personal bias or prejudice concerning the defendant. Consequently, we find no plain error in the district court s decision not to recuse itself sua sponte under § 455. The judgment is AFFIRMED. 8 Appellant argues that the government s decision to prosecute Appellant for his threats only as his released date from state custody drew near is evidence that it took his threats seriously and believed he had the ability to carry them out. Whether or not the decision to prosecute was based in part on the government s belief that Appellant was a danger to society is irrelevant to the issue of recusal. Prosecution under 18 U.S.C. §§ 876, 871, does not require that the government prove that Appellant was likely to carry out the threat; it only requires that a threat be made. Simply because a person was prosecuted for making a threat does not necessarily mean that a threat against a judge should be viewed as likely to be carried out. If we were to hold otherwise, we would be creating a per se rule that any threat made by a person convicted of a violent crime is de facto a threat that should be taken seriously. We decline to adopt such a rule. The district judge must evaluate each case on an individual basis.

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