Case o' The Week: Recusal Refusal - Mikhel and recusal of district judge in federal capital proceedings

“[A]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). “The goal of section 455(a) is to avoid even the appearance of partiality.”

  
United States v. Mikhel, 2018 WL 2124086, *13 (internal quotations and citations omitted) (9th Cir. May 9, 2018), decision available here.

Players: Decision by Judge Bybee, joined by Judges M. Smith and Friedland.

  Extraordinarily hard-fought appeal (over many years) by former San Diego AFD Ben Coleman, CD Cal AFPD Michael Tanaka, and many other defense counsel.  

Facts: Along with others, Mikhel and his co-defendant, Kadamovas, kidnapped and killed a number of victims. Id. at *1-*6. They were tried on capital charges before District Judge Tevrizian. Id. at *7.

  During the guilt phase of the trial, Judge Tevrizian submitted his name to be considered as the next U.S. Attorney (for the same U.S. Attorney’s office involved in the trial over which he was presiding). Id. at *11. Judge Tevrizian disclosed this fact: neither side objected. Id. at *12.

  A month later, after the jury returned guilty verdicts, and after the government rested in the penalty phase, the defense moved for recusal. Id. “Defendants argue they did not become aware of the need for recusal until . . . they read a newspaper article suggesting that Judge Tevrizian was among the frontrunners for the position.” Id. at 12 & n.5.

  Judge Tevrizian denied the recusal motion, stated that he had withdrawn his name from consideration, and said that his application “had never progressed past a preliminary stage.” Id. at *12.

  The men were sentenced to death. Id. at *8.         

Issue(s): “Defendants claim 28 U.S.C. § 455(a) required Judge Tevrizian to recuse himself after he applied to a local screening committee for the position of United States Attorney for the Central District of California—the same office prosecuting this case.” Id. at *11.

Held: “Where ‘unexplained delay’ in filing a recusal motion suggests that the recusal statute is being misused for strategic purposes, the motion will be denied as untimely.” Id. at *12 (quotations and citation omitted). “Although a delay of a little over a month would not always, or even ordinarily, doom a motion for recusal, defendants’ delay here renders their motion untimely.” Id. at *12.

  “The fact that Judge Tevrizian immediately withdrew his application is particularly significant. If defendants had made a timely motion and Judge Tevrizian had not immediately withdrawn his application, this issue might have presented a closer question. As it is, we cannot say that a reasonable person with knowledge of all the facts would have questioned Judge Tevrizian's impartiality.” Id. at *13.

Of Note: Another issue in this long opinion is the role of capital counsel under 18 USC Section 3005. Id. at *18. After an accident, one of Mikhel’s capital counsel could not attend trial for three days. Id. at *18. The trial proceeded despite a defense request for a continuance. Id. The Ninth found no problem with this “de minimis” absence from trial. Id. at *19. The Ninth does, however, concede that it is not addressing whether a “more extended absence” might violate § 3005. Id. at 19 & n. 10.

  Expect increased litigation over Section 3005 as the number of federal capital prosecutions explode. Mikhel’s discussion of this important statute merits close review by capital counsel.

How to Use: In Mikhel, two men were sentenced to death by a jurist who, while presiding over their trial, was applying for the job of the district’s top prosecutor. This troubling holding potently illustrates the complexity of recusal motions. If the motion is timely but unsuccessful, our clients could bear the consequences in the trial court. If not aggressively pursued in the district court, however, Mikhel is the result.

  Note that in Mikhel, the Ninth goes beyond the timeliness holding, and (in apparent dicta) also rejects the recusal challenge on its merits. Id. at *13.

  Recusal motions are sometimes unavoidable, to ensure our clients a fair shake in the district court. Before filing a recusal motion, however, Mikhel deserves a very close read.  

                                               

For Further Reading: Are peremptory challenges the solution to the recusal concerns raised by Mikhel? Many states allow peremptory challenges to presiding jurists, and the ABA has supported the idea for the Feds.

   For the Federal Judicial Center’s report on the idea, see A. Chaset, Disqualification of Federal Judges by Peremptory Challenge (Federal Judicial Center 1981), available here.

Image of CD Cal US Attorney Office logo from https://twitter.com/cdcanews

Image of Lady Justice from https://www.pinterest.com/pin/57632070206568126/

Steven Kalar, Federal Public Defender, Northern District of California. Website at www.ndcalfpd.org

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Case o' Week: Good as Gold - Kahre and Defense Evidence in Tax Cases

   If your salary is paid with a fifty dollar U.S. coin, you federal owe tax on how many dollars?

   (Hint: the answer ain’t “fifty . . . .)

United States v. Kahre, 2013 WL 6284419 (9th Cir. Dec. 5, 2013), decision available here.

Players: Per curiam decision by Judges Hug, Rawlinson and Ikuta. Hard-fought appeal by D. Nev. AFPDs Michael Powell and Michael Kennedy.  

Facts: Robert Kahre and his co-defendants were charged with federal tax crimes. Id. at *1. Kahre ran a business where employees were paid in gold or silver coins. Employees then exchanged these coins for cash from Kahre’s company – with no W2’s and no payroll taxes paid. Id. at *4-*5. Co-defendant Lori testified at trial that she thought the gold and silver coins were legal tender based on the “Gold Bullion Coin Act of 1985,” that she calculated her wages based on the face value of the coins (instead of their worth as precious metals), and that she thus thought she made too little to trigger tax obligations. Id. at *6. Robert Kahre testified at trial that he believed that gold was legal tender, and that the IRS was an illegal agent of the World Bank and IMF. Id. at *5. The district court allowed the defendants to testify about these views that bore on their theory that they believed their “coin” payroll scheme legal (and therefore this wasn’t willful evasion). The court, however, excluded other evidence concerning the legality of “gold clause contracts.” Id. at *17. The defendants were convicted on tax counts; Robert Kahre was sentenced to 190 months. Id. at *6.

Issue(s): “Appellants challenge the district court’s exclusion of evidence concerning the legality of gold clause contracts.” Id.

Held: “Legal materials upon which the defendant does not claim to have relied . . . can be excluded as irrelevant and unnecessarily confusing because only the defendant’s subjective belief is at issue: the court remains the jury’s sole source of law . . . . The district court, therefore, properly excluded evidence, including proffered expert testimony, that conflicted with its correct legal ruling that coins were assessed at fair market value for tax purposes irrespective of their use as legal tender.” Id. (internal quotations and citation omitted).

Of Note: This per curiam opinion is as dry as old toast, but read between the lines and its clear there was a brutal battle in the district court. Kahre got obstruction after testifying, challenged the judge’s partiality on appeal, id. at *19, and brought a Bivens action against the AUSA. (The AUSA complained to defense counsel that the Bivens action threatened his job and his pension, and the case was now, “personal.” Id. at *3, *16). On appeal, Kahre argued that the AUSA should have been removed because he was a defendant in the Bivens civil rights action. The Ninth was unpersuaded, and in a decision of first impression in the Circuit explains: “We . . . hold that proof of a conflict must be clear and convincing to justify removal of a prosecutor from a case.” Id. at *15 (emphasis added). 

  As the adage goes, if planning to shoot an elephant, it is prudent to bring an elephant gun -- here, the Ninth found neither the challenge to the judge or to the AUSA, of sufficient firepower on appeal. Id. at *16, *19.

How to Use: Kahre is depressingly familiar to anyone who defends clients convinced of the righteousness of their -- creative -- gold theories, or their “Corporation Sole” status, or other ideas of the “fringe on the flag” ilk. It is thus a good teaching tool: everything we worry about when advising these clients about trial (severe limitations on the “proof” of their theories, significant obstruction of justice penalties, and a Circuit that doesn’t share the defendant’s strong views of the prosecutor and judge) happened, and was affirmed. A thin silver lining was the Ninth’s acknowledgement that there is a willfulness element in these tax cases -- it’s the government’s burden to negate a good faith belief. Id. at *18. That’s small solace to Kahre; he’s serving fifteen.

                                               

For Further Reading: News flash: AUSAs unfairly impede trial rights by threatening mandatory minimums for clients who don’t plead. For a thoughtful report on one of the worst systemic bars to justice in the federal system, visit the Human Rights Watch site available here.

Image of gold coin from http://ad-orientem.blogspot.com/2010/06/77-years-ago-today.html Image of Roosevelt with elephant from http://upload.wikimedia.org/wikipedia/commons/6/66/Roosevelt_safari_elephant2.jpg

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

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Case o' The Week: OK to "Go Down in Flames" - Johnson and Pro Se Representation

Turns out there are 300 good reasons not to go pro se (with 15% off for good time). United States v. Johnson, _ F.3d _, 2010 WL 2653221 (9th Cir. July 6, 2010), decision available here.

Players: Decision by Judge Silverman, upholding N.D. Cal. District Judge Alsup (right).

Facts: Johnson and Scott were charged with mail fraud arising from their “debt-elimination” business: a scheme that involved creating trusts, making goofy demands to the mortgage-holding banks, property-recordings purporting to wipe out the debt, and concluding with suing the banks when the homes went into foreclosure. Id. at *1. These civil suits against the banks wound up in front of Judge Alsup. Id. at *2.

He was unimpressed.

Judge Alsup dismissed all the civil suits, sanctioned the defendants’ attorney, and referred the men to the United States Attorney’s office. Id. at *1. After the pair were indicted the criminal case was related back to Judge Alsup. Id. at *1. (In a separate hearing, Judge Illston denied the defendants’ recusal motion). Id. at *2.

The defendants refused appointed counsel and asked to represent themselves. Id. at *2. The court had the two men shrunk; the shrink reported there was no indication of mental disorder. Id. at *3. After several hearings where he “practically begged” the defendants to accept counsel, id. at *1, Judge Alsup found the pair competent to represent themselves. They did so in a month-long trial and were convicted on thirty-five counts. Id. at *4.

Issue(s): “[The defendants] argue that the district court should not have permitted them to represent themselves. First, they argue under Faretta . . . that their self-representation should have been terminated because their own courtroom behavior rendered their trial unfair. Second, they argue that under Indiana v. Edwards, 554 U.S. 164 . . . (2008), regardless of whether their behavior required termination under Faretta, they were in fact not competent to continue representing themselves.” Id. at *4.

Held: 1. “The defendants’ courtroom behavior, although eccentric at times, would not have justified, let alone required, the involuntary deprivation of their constitutional right to represent themselves.” Id. at *5.

2. “[T]he district court conducted three Faretta hearings spanning several days in which he repeatedly and thoroughly advised the defendants of their right to counsel. the pitfalls of self-representation, and their right to change their minds. The defendants unequivocally demonstrated their understanding of the situation and their adamant desire to represent themselves, as was their right. They were examined by a psychiatrist and found to be fine. In the absence of any mental illness or uncontrollable behavior, they had the right to present their unorthodox defenses and argue their theories to the bitter end.” Id. at *8.

Of Note: “The record clearly shows that the defendants are fools, but that is not the same as being incompetent.” Id. at *1. An opinion that starts with that observation is likely to go downhill from there. If you can get past wincing as pro se defendants get hammered, Johnson is actually a instructive case. It is new entry in the tricky spectrum of cases that stretch from competency to go to trial, to competency to represent oneself. After the Supreme Court’s decision in Edwards, those are different and distinct standards of competency. Judge Silverman goes through two post-Edwards Ninth decisions and discusses what those standards mean. Id. at *5.

For the tragic client who is “competent” enough to face a trial, but may be too mentally ill for him or her to go pro se, Johnson is a good place to start.

How to Use: While Johnson is primarily a Faretta / Edwards case, there’s an interesting little discussion on the recusal of a criminal judge who has previously presided over civil proceedings. Id. at *7-*8. Remember the “elephant and elephant gun” aphorism in the context of recusals? Johnson reminds us that a district judge’s history with a case in civil proceedings (even in proceedings that ended badly) isn’t an elephant gun when the criminal charges are filed.

For Further Reading: How much time did these pro se lads get at sentencing? Twenty-one and twenty-five years! (Though these defendants’ courtroom antics are recounted in Johnson, their sentences are conspicuously omitted).

For a compelling criticism of the injustice of the Faretta “right,” see Judge Reinhardt’s attack in United States v. Farhad, 190 F.3d 1097, 1107 (9th Cir. 1999) (Reinhardt, J., concurring specially) (“[T]he right to self-representation has now been extended to the point that it frequently, though not always, conflicts squarely and inherently with the right to a fair trial.”)



Image of the Honorable William A. Alsup fromhttp://www.ce9.uscourts.gov/jc2008/speakers.html

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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Case o' The Week: Mr. Holland's Opus, recusal in the Ninth

What does it take to spark mandatory recusal of a district court judge? More than a couple of threatening messages on a judge's home answering machine, says Judge Bybee. United States v. Holland, __ F.3d. __, 2007 WL 2472543 (9th Cir. Sept. 4, 2007), opinion available here. This will be the lead case on mandatory recusal in the Ninth -- the opinion sets forth a new, three-part "process" for the recusal analysis.

Players: Opinion by Judge Bybee.

Facts: Holland pled guilty to threatening the President. 2007 WL 2472543, *1. Before sentencing, he called the district court judge’s personal residence from jail and left more than one threatening message on a voice machine. Id. The judge declined to recuse himself sua sponte, concluding that this was an attempt to manipulate the criminal justice system. Id. Holland didn’t object to the refusal to recuse. Id. At sentencing, the judge noted Holland’s history of violent crimes and “impose[d] a sentence for the protection of society.” Id.

Issue(s): “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.” Id. at *1. “Here we must decide when a judge must recuse himself sua sponte in response to threats even if he would prefer to continue his work on the case.” Id. at *2 (emphasis in original).

Held: “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.” Id. at *1.

Of Note: As noted above, Holland will be the lead decision on the issue of sua sponte recusals in the Ninth. Judge Bybee sets out a three-part “process” that a judge should undertake when a recusal issue comes up. Id. at *3. First, 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.” Id.

Second, the judge must “determine whether he can be truly impartial when trying the case.” Id. at *4.

Third, the judge must apply an “objective” standard, to determine whether “someone who understands all the relevant facts” would perceive a significant risk that the judge will be influenced by the risk. Id. at *4.

How to Use: There are two interesting angles on the Bybee process articulated in Holland. First, the Court emphasizes that this “objective” test is statutorily-required, and that it isn’t from the perspective of the judiciary. Bybee quotes a candid insight from the Seventh Circuit: “We must bear in mind that these outside observers are less inclined to credit judges’ impartiality and mental discipline than the judiciary itself will be.” Id. at *4, quoting In re Nettles, 394 F.3d 1001, 1002 (7th Cir. 2005).

Moreover, a tie goes to the defense. As Judge Bybee explains, “If it is a close case, the balance tips in favor of recusal.” Id. at *4.

Given these rules – and this test – it’s a fair question to ask if this case would have turned out the same way if the defense hadn’t faced the (near)-insurmountable hurdle of plain error review.

For Further Reading: Holland isn’t about whether a judge can recuse him or herself after a threat – the opinion thoughtfully acknowledges recent violence against judges, and emphasizes a court’s discretion to recuse itself when threatened. Id. at *2 & n.2.

The case is instead about when a judge must recuse him or herself after a threat. Not surprisingly, a judge who toughs out a case despite a threat will very rarely be second-guessed. Bomb threats in a RICO trial won’t do it. LoCascio v. United States, 473 F.3d 493 (2007). Being the object of mailed threats won’t do it. United States v. Mattison, 731 F.Supp. 831 (1990). Taking out a contract to murder the judge, however, does trigger the mandatory-recusal statute (despite the judge’s assurance that he harbors no prejudice to the defendant!) United States v. Cerella, 529 F.Supp. 1373, 1381 (S.D. Fla. 1982) (“The circumstances of this case are unique: a defendant persists in a plan to kill the sentencing judge, despite a grand jury investigation of his criminal scheme.”)


Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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