U.S. v. Brinkworth, 569

• Decision Date: 19 October 1995
• Docket Number: D,No. 569,569
• Citation: 68 F.3d 633
• Parties: UNITED STATES of America, Appellee, v. Kevin BRINKWORTH, Defendant-Appellant, Elizabeth Brinkworth, Richard Brinkworth, Dennis Brinkworth, Kathryn Kinsman, Jeffrey Davis and John Edwards, Defendants. ocket 95-1272.
• Court: U.S. Court of Appeals — Second Circuit

Page 633

68 F.3d 633

UNITED STATES of America, Appellee, v. Kevin BRINKWORTH, Defendant-Appellant, Elizabeth Brinkworth, Richard Brinkworth, Dennis Brinkworth, Kathryn Kinsman, Jeffrey Davis and John Edwards, Defendants.

No. 569, Docket 95-1272.

United States Court of Appeals, Second Circuit.

Argued Sept. 20, 1995.

Decided Oct. 19, 1995.

Stephen L. Braga, Washington, DC (Michael J. Barta, Miller, Cassidy, Larroca & Lewin, of counsel), for Defendant-Appellant.

Kathleen M. Mehltretter, Assistant United States Attorney, Buffalo, NY (Patrick H. NeMoyer, United States Attorney, of counsel), for Appellee.

Before: OAKES, MINER and MAHONEY, Circuit Judges.

OAKES, Senior Circuit Judge:

Appellant Kevin Brinkworth pleaded guilty to one count of falsifying tax returns in violation of 26 U.S.C. Sec. 7206 (1988), and was sentenced to 14 months' incarceration. The guilty plea was entered before Judge Richard Arcara, Western District of New York, and sentence was imposed by Chief Judge Michael Telesca of that district.

Brinkworth raises two issues in this appeal. First, he contends that Judge Arcara erroneously failed to recuse himself. Brinkworth filed a 28 U.S.C. Sec. 455(a) motion to disqualify Judge Arcara eight days before scheduled commencement of trial, claiming that Judge Arcara appeared biased because he supervised two offices that had prosecuted Brinkworth several years previously, and because of a rumor "prevalent in the community" about Brinkworth's past involvement with the Judge's wife. Judge Arcara denied the Sec. 455(a) motion, finding that the motion was untimely and "based upon conclusions, rumor, gossip, and erroneous information."

Second, Brinkworth claims that Chief Judge Telesca erred in refusing to hold an evidentiary hearing regarding the application of United States Sentencing Guidelines Sec. 3B1.1(c), and in applying Sec. 3B1.1(c) against Brinkworth. Section 3B1.1(c) provides for a two-level increase in the offense level "if the defendant was an organizer, leader, manager, or supervisor...." of the criminal scheme. The district court found that the factual disputes regarding the Sec. 3B1.1(c) enhancement did not justify an evidentiary hearing, and that the evidence supported a Sec. 3B1.1(c) increase.

We affirm the district court on both the recusal and the sentencing claims for the reasons set forth below.

I. BACKGROUND

On May 9, 1991, a grand jury returned a 29-count indictment charging Brinkworth and six others, including Brinkworth's wife and brothers, with conspiracy, tax fraud, and mail fraud. The court (Arcara, J.) dismissed one count, and scheduled two trials on the remaining counts. After close of the Government's case during a trial on five counts, the court granted Brinkworth's Federal Rules of Criminal Procedure Rule 29 motion and dismissed the charges. Trial on the remaining 23 counts was set for October 18, 1994.

Counsel for Brinkworth and the Government negotiated a plea agreement and presented it to the court prior to the final pre-trial conference. The court indicated that, as a policy, it never participates in plea bargaining or commits to a sentence. Following this, Brinkworth declined to accept the plea agreement.

On October 14, 1994, Brinkworth's brother, Dennis, filed a 28 U.S.C. Sec. 455(a) motion to disqualify Judge Arcara. The motion contained two grounds for recusal: first, that as the U.S. Attorney for the Western District of New York and then later as a District Attorney, Judge Arcara supervised offices that twice prosecuted Dennis and Kevin Brinkworth; and, second, that Judge Arcara did not appear impartial due to a rumor "prevalent in the community" about Kevin Brinkworth's past relationship with Judge Arcara's wife.

The motion was accompanied by five supporting affidavits. All of the affiants lived in Brinkworth's city of residence, Buffalo, and all stated that they knew of the rumor. One affiant, Pascal Pratt, stated that in the "late 1970s," when Judge Arcara was a United States Attorney in Buffalo, he overheard Judge Arcara say, "Kevin Brinkworth received too lenient a sentence. Some day I'll get him." Pratt stated that he overheard this comment "in close proximity in time" to Brinkworth's sentencing in a case prosecuted by the U.S. Attorney's Office in Buffalo.

On the day after the Sec. 455(a) motion and supporting affidavits were filed, the Government produced "as arguable Brady material" [Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) ] a statement from John Hanny, a Government witness, that he had "personally overheard a remark made by Judge Richard J. Arcara to the effect that '[i]f Kevin [Brinkworth] thinks he is getting his case out of my Court he has another thing [sic] coming.' " After the Government disclosed this statement, Kevin Brinkworth joined in his brother Dennis's recusal motion. In Kevin Brinkworth's affidavit supporting joinder, he denied any relationship with the Judge's wife, though he stated that he also knew of the rumors. He stated that he felt compelled to join in the recusal motion after learning of Hanny's statement.

Judge Arcara denied defendants' motion for recusal in an Order dated October 20, 1994, finding the motion untimely, based upon "conclusions, rumor, gossip, and erroneous information," and "an apparent attempt to have the case transferred to another Judge who might be willing to make a commitment regarding sentence prior to the time of sentencing or to entertain a plea disposition under [Federal Rules of Criminal Procedure] Rule 11(e)(1)(C)." The trial commenced. During jury selection, the parties informed the court of a plea agreement. The court again declined to commit to a sentence. Brinkworth then asked the court to allow a Federal Rules of Criminal Procedure Rule 11(a)(2) plea conditioned upon appeal of the Sec. 455(a) motion denial. After argument by the parties, the court declined to allow a conditional plea, noting that United States v. Chantal, 902 F.2d 1018 (1st Cir.1990), may control the issue, and therefore Brinkworth would be permitted to appeal even after entry of an unconditional guilty plea. Kevin Brinkworth eventually agreed to plead guilty, unconditionally, to one count of the remaining 23. The court heard and accepted the guilty plea on November 1, 1994.

In April 1995, the court filed a Supplemental Decision that fully analyzed the recusal motion. In this Supplemental Decision, the court reiterated its denial of the Sec. 455(a) motion, but nevertheless transferred the case to Chief Judge Michael Telesca for reassignment for sentencing.

Chief Judge Telesca decided to keep the case and sentence Brinkworth himself. During plea negotiations, the Government agreed to support a Sentencing Guideline offense level of 9 and a sentence of six months' home detention. The Presentence Investigation Report, however, recalculated Brinkworth's sentence and recommended a two-level increase based upon the defendant's role as an "organizer, leader, manager, or supervisor" of the tax fraud scheme, U.S.S.G. Sec. 3B1.1(c), and a two-level enhancement for use of "sophisticated means," U.S.S.G. Sec. 2T1.1(b)(2). The Presentence Investigation Report recommended a total offense level of 14.

Brinkworth disputed the application of Sec. 3B1.1(c) and Sec. 2T1.1(b)(2), and requested an evidentiary hearing. Although the court did not allow an evidentiary hearing on the recommended enhancements, the court did review the parties' legal memoranda, entertain extensive argument from counsel, hear a statement from Brinkworth, and invite other affidavits and evidence.

As a part of Brinkworth's rebuttal to the Sec. 3B1.1(c) enhancement, he offered an unsworn written statement of his accountant, Larry Amodeo, asserting that Brinkworth did not organize, lead, manage, or supervise Amodeo. At the sentencing hearing, the court conducted an informal, unsworn interview of Amodeo regarding this sentencing factor.

The court rejected the Sec. 2T1.1(b)(2) "sophisticated means" increase, but found that Brinkworth was an "organizer, leader, manager, or supervisor" under Sec. 3B1.1(c). The court therefore arrived at an offense level of 11, and sentenced Brinkworth to fourteen months of incarceration.

II. DISCUSSION

A. Recusal. Brinkworth moved for Judge Arcara's recusal under 28 U.S.C. Sec. 455(a) (1988), which states, "[a]ny justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." Abuse of discretion is the proper standard of review for Sec. 455(a) disqualification motions. United States v. Lovaglia, 954 F.2d 811, 815 (2d Cir.1992).

1. Waiver: The Government contends that the recusal issue is not properly before this Court on appeal. It is true that a guilty plea generally waives all but specifically reserved and jurisdictional defenses. See United States v. Doyle, 348 F.2d 715, 718 (2d Cir.), cert. denied, 382 U.S. 843, 86 S.Ct. 89, 15 L.Ed.2d 84 (1965); 1 Charles A. Wright, Federal Practice and Procedure Sec. 175 (1982). Brinkworth claims that this general rule does not apply when a defendant who has entered an unconditional guilty plea wishes to appeal a denied Sec. 455(a) motion. This Court has not yet had occasion to rule on this issue.

Subsection (a) of Sec. 455 "is designed to promote public confidence in the impartiality of the judicial process by saying, in effect, if there is a reasonable factual basis for doubting the judge's impartiality, he should disqualify himself and let another judge preside over the case." H.R.Rep. No. 1453, 93d Cong., 2d Sess., reprinted in 1974 U.S.C.C.A.N. 6351, 6355. The legislative history indicates that the integrity of the judiciary is the paramount concern of the statute. Section 455(a), therefore, is as much a protection for the citizenry as for the complaining defendant.

Brinkworth relies on United States v. Chantal, 902 F.2d 1018 (1st Cir.1990), for the proposition...