U.S. v. Bremers, 98-10716

• Decision Date: 09 November 1999
• Docket Number: No. 98-10716,98-10716
• Citation: 195 F.3d 221
• Parties: (5th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ALFRED E. BREMERS; LEON W. SNEARLY, also known as Butch Ji Alish Tasen; ROBERT W. STEWART, III, Defendants - Appellants
• Court: U.S. Court of Appeals — Fifth Circuit

Page 221

195 F.3d 221 (5th Cir. 1999)

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ALFRED E. BREMERS; LEON W. SNEARLY, also known as Butch Ji Alish Tasen; ROBERT W. STEWART, III, Defendants - Appellants.

No. 98-10716

UNITED STATES COURT OF APPEALS For the Fifth Circuit

November 9, 1999

[Copyrighted Material Omitted] Appeals from the United States District Court for the Northern District of Texas

Before POLITZ, DeMOSS, and BENAVIDES, Circuit Judges,

DeMOSS, Circuit Judge:

This is a consolidated direct appeal by three co-defendants, Alfred E. Bremers ("Bremers"), Leon W. Snearly, aka Butch Ji Alish Tasen ("Snearly"), and Robert W. Stewart, III ("Stewart"), from the judgments and sentences entered by the United States District Court for the Northern District of Texas, Judge John H. McBryde, presiding. Among the numerous issues raised by each defendant on appeal is a claim by each that the district judge committed reversible error by failing to recuse himself from their cases. We agree, and because we find, for the reasons which follow, that the district judge should have recused himself, we vacate each defendant's conviction and sentence and remand for a new consolidated trial before a different district judge. Our holding in this regard renders the defendants' various other issues on appeal moot, and with the exception of Stewart's contention that the district court erred in failing to grant his motion for relief from prejudicial joinder, those issues are not addressed by this opinion.

I. Background

The three defendants were named, along with James L. Cox ("Cox"), in a 22-count indictment returned in the Fort Worth Division of the Northern District of Texas on September 17, 1997. The scheme to defraud alleged in that indictment charged Bremers, Cox, Snearly, and Stewart with defrauding individuals by inducing them to invest monies in fraudulent gas and oil programs, for a period of time spanning from 1990 to 1993. All tolled, investors throughout the United States and Europe invested nearly $10,200,000 in the defendants' oil and gas programs.

With respect to the indictment returned against the defendants, counts one through six charged all four co-defendants with mail fraud, in violation of 18 U.S.C. 1341; counts seven through nineteen charged all four co-defendants with causing the transportation of stolen securities in interstate commerce, in violation of 18 U.S.C. 2314; and counts twenty and twenty-one charged Bremers and Cox with money laundering, in violation of 18 U.S.C. 1956(a)(1)(B)(I). The indictment also charged that the named defendants aided and abetted the offenses charged in counts one through twenty-one. Cox was also charged individually in count twenty-two with money laundering. Cox pleaded guilty to count one of the indictment, and pursuant to a plea and cooperation agreement, he agreed to testify on behalf of the government at the jury trial of Bremers, Snearly, and Stewart.

On September 18, 1997, the district court appointed the Federal Public Defender to represent Bremers. Assistant Federal Public Defender Peter Michael Fleury accepted the appointment and appeared before Judge McBryde on Bremers' behalf for his initial appearance hearing. On September 26, 1997, Assistant Federal Public Defender Douglas C. Greene appeared on Bremers' behalf for his arraignment. No formal substitution of counsel was made a matter of record, however the record reveals that Greene became Bremers' trial counsel from that point forward.

During the months of August and September 1997, several of Greene's colleagues in the Federal Public Defender's office offered testimony against Judge McBryde before a special investigatory committee of the Fifth Circuit Judicial Council. See In re: Matters Involving United States District Judge John H. McBryde, Under the Judicial Conduct and Disability Act of 1980, No. 95-05-372-0023 (Jud. Council 5th Cir. Dec. 31, 1997), aff'd, No. 98-372-001 (Jud. Conf. U.S. Sept. 21, 1998). Greene did not himself offer testimony against Judge McBryde, however, Ira Kirkendoll, the Federal Public Defender for the Northern District of Texas, and Paul Stickney, who was Greene's immediate supervisor, did. Additionally, Peter Fleury, who had appeared before Judge McBryde on behalf of Bremers on at least one occasion, also offered testimony against Judge McBryde.

On February 2, 1998, Bremers moved Judge McBryde to recuse himself from the case pursuant to 28 U.S.C. 455(a) and on the basis that a reasonable person, knowing all of the facts and circumstances, would have questioned Judge McBryde's ability to sit impartially as the judge in Bremers' criminal trial. On February 9, 1998, the government filed its written response in non-opposition to the motion for recusal, stating that it believed "such motion is well-taken, and should be granted."

On the very day the government expressed its non-opposition to Bremers' motion for recusal, the Judicial Council issued an order directing the Clerk of the Court for the Northern District of Texas to reassign to a judge other than Judge McBryde each of those cases designated in Attachment "B" thereto because at least one of the attorneys listed in Attachment "A" thereto was involved in such cases. On February 10, 1998, Chief Judge Jerry Buchmeyer of the Northern District of Texas, entered a special order, pursuant to the Council's February 9 order, transferring all of the Attachment "B" cases from the docket of Judge McBryde to the docket of Judge Terry R. Means. The same day, Chief Judge Buchmeyer entered an amended special order indicating that the case of United States v. Bremers, 4:97-CR-0111, was not transferred because it did not involve an Attachment "A" attorney. The amended order again transferred all Attachment "B" cases to Judge Means, however, the Attachment "B" accompanying the amended specialorder omitted the Bremers case. This is best explained by the fact that on February 11, 1998, Gregory A. Nussel, Secretary to the Judicial Council, transmitted to Chief Judge Buchmeyer an amended Attachment "B" which reflected the amended list of cases provided the Council by the district clerk's office.

On February 10 and 11, 1998, Judge McBryde sent two memoranda to Chief Judge Buchmeyer in which he expressed his "urgent need of information" regarding the Bremers case. In his memoranda, Judge McBryde characterized the Judicial Council's February 9 order as "unlawful," but conceded that he was bound by it; he also requested clarification as to whether he would be permitted to continue presiding over the Bremers case, suggesting that he would be "glad to do so." In either event, Judge McBryde expressed his concern that the unopposed motion for recusal needed to be addressed as the Bremers trial was set for February 17, 1998.

Chief Judge Buchmeyer responded to Judge McBryde on February 11, 1998, informing him that the Attachment "A" attorney, Peter Fleury, had only made an initial appearance for Bremers and was replaced by Doug Greene, and as a result, the Judicial Council had approved the substitution of the amended Attachment "B" which was provided by the district clerk's office and which excluded the Bremers case. Thus, Judge McBryde was to retain the Bremers case.

Upon being so advised, Judge McBryde entered an order in the Bremers case the following day, February 12, 1998, explaining why he was going forward with the handling of the case. He noted his assumption that "the Judicial Council does not interpret its order as prohibiting [Judge McBryde] from participating in any action simply because an attorney listed in the Attachment A supervises an attorney who is currently providing representation to a party to the action." Judge McBryde ordered that any party contending that he should not preside was to file, by 3:30 p.m. that afternoon, "a document making known her or his position on that subject, spelling out specifically the reasons why such position is being taken by that party, all facts relied upon . . . , and all legal authorities relied upon . . . in support of that position." Judge McBryde further advised that the failure to timely do so would be deemed a waiver of any objection to his presiding over the case, and he set a hearing for the following morning, Friday, February 13, 1999, at 8:30 a.m.

The day of February 12, 1998, was a busy one in the district clerk's office. At 11:43 a.m., defendant Stewart filed a motion for recusal and for continuance. Upon his receipt thereof, Judge McBryde entered another order requiring all parties to file their response to Stewart's motion by 3:30 p.m. that afternoon. At 3:09 p.m., the government filed its opposition to Stewart's motion. At 3:35 p.m., Bremers renewed his motion to recuse and joined in Stewart's motion. And at 3:47 p.m., defendant Snearly filed his motion for recusal.

At the hearing on the motions for recusal, the government, through three separate attorneys, expressed its agreement with Bremers' motion for recusal. At one point during Judge McBryde's questioning of the government regarding its position, the following colloquy occurred:

THE COURT: And is your office telling me that if you were to be successful in the trial of this case that you would stipulate in an appeal by any of the defendants that error was committed?

MR. BARTA: We would have to look at that in totality of facts, but there is certainly a chance that we would have to make a confession of error, yes, sir.

THE COURT: In other words, there's a possibility that if I were to go forward with the trial of this case, that the government would stipulate error if a defendant appealed from an adverse judgment in this case.

MR. BARTA: That is correct, Your Honor.

Despite the government's agreement with the merits of Bremers' motion for recusal, Judge McBryde nonetheless overruled all of the motions for recusal stating that he had "a legal obligation to preside" and "no obligation to recuse in this case."¹...