U.S. v. Bosch, 88-5150

• Decision Date: 09 December 1991
• Docket Number: No. 88-5150,88-5150
• Citation: 951 F.2d 1546
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. George Robert BOSCH, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1546

951 F.2d 1546

UNITED STATES of America, Plaintiff-Appellee, v. George Robert BOSCH, Jr., Defendant-Appellant.

No. 88-5150.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Dec. 4, 1990.

Decided Dec. 9, 1991.

Alison Minet Adams, Santa Barbara, Cal., for defendant-appellant.

John S. Gordon, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before WALLACE, Chief Judge, O'SCANNLAIN and RYMER, Circuit Judges.

WALLACE, Chief Judge:

Bosch appeals from his conviction on eight charges related to cocaine trafficking and money laundering. He argues that the district judge should have recused himself, on the ground that the prosecutor had served as the judge's law clerk. Bosch also contends that he did not receive effective assistance of counsel, that the district court erred in allowing a government witness to testify as an expert, and that there was insufficient evidence to convict him on many of the counts. The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We affirm.

I

Bosch worked at his father's investigative and Hispanic services agency in Glendale, California. Through this business, Bosch and his father became involved with a number of Colombian drug dealers. After being arrested, two of these dealers agreed to cooperate with the government in its investigation into drug trafficking and money laundering. In the course of this investigation, government officials learned that Bosch and his father had assisted the dealers by providing numerous support services integral to the dealers' cocaine trafficking operation. For example, Bosch's father provided false business papers documenting a fictitious cattle sale in South America so that the dealers could launder the proceeds of their drug sales through a corporate bank account, and helped arrange and provide documentation for a marriage involving one of the dealers for immigration purposes. In addition, Bosch provided a house for the dealers in which they stored cocaine and money, rented various cars for the dealers that were used to confuse police officers conducting surveillance, and provided false identification and a fraudulent social security card to one of the dealers.

Finally, one of the dealers participated in an undercover investigation by introducing Bosch's father to a government agent, identifying the agent as a fellow cocaine dealer. The agent explained that he needed false identification and fraudulent corporate documentation that could be used to launder drug money. Bosch and his father thereafter provided the agent with false identification, a social security card, and phony corporate certificates and resolutions.

On August 20, 1986, Bosch, his father, and three other defendants were charged in a 12-count indictment. The government charged Bosch in eight of these counts, alleging that he conspired to aid and abet cocaine trafficking through the provision of support services, and that he unlawfully possessed and transferred false identification documents and counterfeit social security cards. A jury convicted Bosch on all eight counts.

II

Bosch first contends that we should reverse his conviction because the district judge did not recuse himself from the trial pursuant to 28 U.S.C. § 455(a). Bosch argues that the judge's impartiality might reasonably be questioned on the grounds that the prosecutor had served as the judge's law clerk and the two had maintained a close relationship.

Because Bosch raises this claim for the first time on appeal, we must first address the effect of his failure to move for recusal at the trial level. Previously, we have held that "timeliness cannot be disregarded in all cases involving the delicate matter of disqualification under section 455," while leaving open the question whether timeliness may be disregarded in exceptional circumstances. United States v. Conforte, 624 F.2d 869, 880 (9th Cir.) (Conforte ), cert. denied, 449 U.S. 1012, 101 S.Ct. 568, 66 L.Ed.2d 470 (1980). Similarly, in Salmeron v. United States, 724 F.2d 1357 (9th Cir.1983), we denied a party's request to remand the case to a different judge based on alleged bias, because the party "failed to raise th[e] claim below, and because he fail[ed] to specify any facts that would support an allegation of bias." Id. at 1365 n. 5, citing Conforte, 624 F.2d at 869. In this case, Bosch was aware of the alleged grounds for recusal at the time of his motion for a new trial, and therefore could knowledgeably have raised the issue at that time. Conforte and Salmeron would therefore support a refusal to hear his claims now.

Without reference to % IConforte or Salmeron, we subsequently stated that a party's "failure to move for recusal at the trial level does not preclude his raising the issue on appeal." In re Manoa Finance Co., 781 F.2d 1370, 1373 (9th Cir.1986) (Manoa ), cert. denied, 479 U.S. 1064, 107 S.Ct. 948, 93 L.Ed.2d 997 (1987). In formulating its rule, Manoa relied on United States v. Sibla, 624 F.2d 864, 868 (9th Cir.1980). See Manoa, 781 F.2d at 1373. In Sibla, we held that a party's failure to move for recusal "will significantly affect the appellate standard of review," and that a party who made no motion in the trial court "will bear a greater burden on appeal in demonstrating that the judge committed reversible error in failing to grant recusal under section 455." 624 F.2d at 868. Thus, even assuming that Bosch may raise his section 455 recusal claim for the first time on appeal, following Sibla, we would review the district court's failure to recuse himself under the plain error standard. See id.

"Plain error will be found only if the error was highly prejudicial and there was a high probability that the error materially affected the verdict." United States v. Anguiano, 873 F.2d 1314, 1319 (9th Cir.) (Anguiano ) (quotation omitted), cert. denied, 493 U.S. 969, 110 S.Ct. 416, 107 L.Ed.2d 381 (1989). Reversal of a criminal conviction on the basis of plain error is an exceptional remedy, one which we invoke " 'only when it appears necessary to prevent a miscarriage of justice or to preserve the integrity and reputation of the judicial process.' " Id., quoting United States v. Bustillo, 789 F.2d 1364, 1367 (9th Cir.1986).

Bosch contends that several excerpts from the trial transcript demonstrate that the district judge was biased in favor of the prosecutor, and that this bias deprived Bosch of the benefit of an impartial trial. For example, Bosch argues the district judge demonstrated an intolerable level of bias when he commented that he thought of the prosecutor, a former law clerk, as a son. But a close analysis of these excerpts shows that the judge did not favor the prosecutor in any way. Although he acknowledged that he felt close to the prosecutor, the judge stated that "[h]e's never had any special consideration from me. As a matter of fact, it was quite the opposite." Later, the judge commented that "I would be very critical of [the prosecutor], as I would have, as I say, one of my sons." These remarks fail to demonstrate that Bosch suffered any prejudice, let alone "a miscarriage of justice."

Bosch also refers to a sidebar conference at which defense counsel complained about the prosecutor's tardy delivery of trial documents, and the judge stated that it was "not like [the prosecutor] to do that." Because the prosecutor agreed to forego addressing matters raised by these documents until defense counsel had sufficient time to prepare, however, Bosch suffered no prejudice. Bosch further points to the judge's comment at a post-trial hearing that he wanted to "make things easier" for the prosecutor as evidence of prejudice. At that hearing the judge was ruling on the prosecutor's request that sentencing go forward immediately, because his schedule made it impossible for him to respond to defense counsel's motion for an evidentiary hearing at that time. Far from favoring the prosecutor, the judge ruled in favor of the defense and directed the prosecutor to prepare for the evidentiary hearing. At the same time, however, the judge acknowledged the prosecutor's time constraints, and therefore directed the defense to be clear and concise in drafting their papers to "make things easier" on the prosecutor. Read in context, these remarks do not show that Bosch was prejudiced in any manner.

Finally, Bosch argues that the degree of the district judge's impatience with defense counsel throughout trial is an illustration of actual prejudice. Admittedly, the judge became exasperated with defense counsel on occasion, but we conclude that such exasperation was explainable in light of the sometimes irrelevant and duplicative testimony attempted to be introduced by the defense. The judge's occasional impatience does not show bias.

Bosch has failed to demonstrate that the district judge was biased against the defendant, or that any alleged bias resulted in actual prejudice. It is clear, therefore, that Bosch has failed to demonstrate that the district judge's failure to recuse himself was "highly prejudicial and there was a high probability that [any] error materially affected the verdict." Anguiano, 873 F.2d at 1319 (quotations omitted). Thus, Bosch did not show plain error.

III

Bosch next argues that his conviction should be reversed because he was denied effective assistance of counsel at trial. We decline, however, to reach the merits of Bosch's ineffective assistance of counsel claim. We have held previously that "[t]he customary procedure for challenging the effectiveness of defense counsel in a federal criminal trial is by collateral attack on the conviction under 28 U.S.C. 2255." United States v. Birges, 723 F.2d 666, 670 (9th Cir.), cert. denied, 466 U.S. 943, 469 U.S. 863, 104 S.Ct. 1926, 105 S.Ct. 200, 80 L.Ed.2d 472, 83...