United States v. Brocato, No. 20-40624 (5th Cir. 2021)
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Defendants Judith and Dick Brocato were convicted by a jury of conspiracy to commit tax fraud, and filing false returns. Defendants were sentenced to 33 months imprisonment on all counts, to run concurrently. On appeal, defendants seek recusal of the district judge, vacatur of their sentences, and resentencing by a different judge. In this case, defendants argued that the district court's "sua sponte, ex parte investigation into Judith's credibility," its accusation of perjury, and its decision to increase both defendants' bond obligations evinced actual or apparent bias warranting recusal.
The Fifth Circuit concluded that certain statements of the district court judge were ill-advised and certain actions of her staff were improper, but nonetheless affirmed because, after a thorough review of the record, the court concluded that there was no actual bias or reasonable question as to the judge's impartiality in this case that would require recusal. The court explained that a reasonable and objective observer, aware of all of the facts and circumstances, would not harbor doubts about the judge's impartiality.
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