U.S. v. Burger

Citation964 F.2d 1065
Decision Date21 May 1992
Docket NumberNo. 91-3267,91-3267
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Thomas A. BURGER, Defendant-Appellant, National Association of Criminal Defense Lawyers, Inc., Amicus Curiae.
CourtU.S. Court of Appeals — Tenth Circuit

Richard L. Hathaway, Asst. U.S. Atty. (Lee Thompson, U.S. Atty., with him on the brief), for plaintiff-appellee.

Samuel Rosenthal of Curtis Mallet-Prevost, Colt & Mosle, Washington, D.C. (Dennis Moore of Moriarty, Erker & Moore, Overland Park, Kan., of counsel), for defendant-appellant.

James A. Plaisted (Judith A. Hartz with him on the brief) of Walder, Sondak, Berkeley & Brogan, Roseland, N.J., for amicus.

Before McKAY and BARRETT, Circuit Judges, and BRIMMER *, District Judge.

BARRETT, Senior Circuit Judge.

Thomas A. Burger appeals a final order of the district court accepting his guilty plea, denying his motion for recusal, sentencing him to twelve years imprisonment and ordering him to immediately pay six million dollars in restitution.

On January 10, 1991, Burger and six others were charged in a twenty-five count indictment with various conspiracy and bank fraud crimes leading to the failure of Peoples Heritage Savings and Loan of Salina, Kansas (Peoples), a federally chartered and insured savings and loan. Burger served on the Board of Directors and was Chief Lending Officer for Peoples at all times material herein.

Prior to trial, Burger filed a petition to plead guilty to Count I, conspiracy ("[c]ommencing at least as early as 1984, the exact date being unknown to the grand jury, and continuing until the return of this indictment"), and Counts 16, 18, 19, and 20, substantive counts relating to the misuse of a five million dollar line of credit granted to one James L. Bosler.

Burger pled guilty to Counts 1, 16, 18, 19, and 20. During the plea hearing, Burger acknowledged that: by pleading guilty he was admitting all the facts alleged in the charges in the indictment; the maximum term of imprisonment for each count could be five years; the sentences could be imposed consecutively; the court could impose restitution; the only reason he was pleading guilty to Counts 1, 16, 18, 19, and 20 was because he was guilty of the charges contained therein; and that he understood there was no limitation on the information the court could consider at the time of sentencing concerning his (Burger's) background, character, and conduct, provided that the information was reliable.

Burger's presentence report related that: he would be sentenced in accordance with the Sentencing Reform Act of 1984 and amendments thereto, (Appendix of Appellant, Vol. II, p. A00385); the "[n]et total of damages reflecting actual losses to RTC [Resolution Trust Corporation] from Mr. Burger's involvement total $127,665,742," id. at p. A00402; Burger had prepared a financial worksheet which reflected a negative net worth of $34,862,594.90. Id. at p. A00418. The report set forth a guideline imprisonment range of 135 to 168 months, and reviewed the general principles of restitution but did not suggest a specific amount of restitution.

After receiving the report, Burger filed a motion to be sentenced under the guidelines effective December, 1988, or, alternatively, to be allowed to withdraw his guilty plea. The district court denied Burger's motion, finding: Burger, by pleading guilty to Count 1, pled guilty to a crime which occurred subsequent to the effective dates of the guideline amendments of November, 1989, and November, 1990; although Burger was forced to resign from Peoples in 1988, his "participation and ownership in the joint ventures, corporations, partnerships and property which was obtained with money illegally defrauded from Peoples ... continued unimpeded until the issuance of the Indictment," (Appendix of Appellant, Vol. I, p. A00052); Burger's forced resignation did not amount to an affirmative withdrawal or disavowal of the conspiracy; Burger's statement that his role in the conspiracy terminated in December, 1988, did not require that the court make such a factual finding for purposes of sentencing; and to allow a defendant to avoid the application of the amended guidelines by fashioning his plea would be to allow him to amend the indictment. The court also found that Burger's motion to withdraw his plea should be denied because he had not asserted his innocence but, instead, was upset by the severity of the sentence recommended in the presentence report.

Burger was sentenced under the amended sentencing guidelines to twelve years imprisonment and ordered to immediately pay six million dollars in restitution to the RTC. Burger subsequently filed motions requesting: reconsideration of the court's order denying his motion to be sentenced under the December, 1988, guidelines or, alternatively, to be allowed to withdraw his guilty plea; dismissal of the indictment; a Franks hearing; and recusal of the district court.

Within his memorandum in support of his motion for recusal, Burger alleged: the day after his sentencing, the Salina Journal reported that his sentence and court ordered restitution had been instigated by a letter from FDIC Chairman Seidman to the district court; Seidman's letter requested that the district court order Burger to pay restitution in the amount of six million dollars; prior to seeing the article, neither Burger nor his counsel had any knowledge that Seidman had written the district court; the FDIC sent the court a second letter, also undisclosed to Burger, which stated that Burger's ex-girlfriend had been brutally raped and that Burger had threatened to "break her legs" if she went to the authorities; the letters constituted improper ex parte communications between the government and the district court; immediate recusal was required in view of the district court's failure to disclose the ex parte communications.

In denying Burger's motions and affirming his sentence, the district court found: no ex parte communications occurred between the prosecution and the court; the letters complained of were letters from victims and were not letters from the prosecution; the letters were part of the victim impact aspect of the presentence report which the probation office is required to investigate; such letters are routinely received by the court; the allegations contained in such letters are then either excluded or included in the presentence report so that the parties have a chance to dispute or refute any factual allegations and "[t]his was the manner in which the letters from the FDIC and its Chairman, L. William Seidman were handled." (Appendix of Appellant, Vol. II, p. A00282); the court's position with respect to restitution was spelled out in its July 31, 1991, order; the two letters were not used in determining Burger's sentence; Burger's sentence was based on the information contained in the presentence investigation report, as amended, and adopted by the court following two separate evidentiary hearings; and "[i]n addition, the court considered its personal knowledge derived from presiding over the lengthy trial of defendants' alleged co-conspirators." (Appendix of Appellant, Vol. II, p. A00285-286).

On appeal, Burger contends that: (1) the district court erred in refusing to recuse itself; (2) his plea should be vacated; (3) even if he is not entitled to withdraw his plea, his sentence must be vacated as a result of procedural errors affecting the sentence; and (4) even if the court did not err in the procedures employed in sentencing him, the sentence itself is unlawful and must be vacated.

I.

Burger contends that the district court erred in refusing to recuse itself under 28 U.S.C. §§ 144 1 and 455 2.

Burger argues that recusal was required here under § 144 after the court received and relied on two ex parte letters from Chairman Seidman and the FDIC. Burger argues that "[e]ven if the FDIC and the RTC were not part of the prosecution team--although they surely were in this case--," (Brief of Appellant at p. 12), recusal was still required because the FDIC and RTC are part of the government. Burger argues that the court's bias was clearly established by the fact that the court utilized language from the FDIC letter in its restitution order. Burger also argues that recusal was required under § 455 because the "appearance of impartiality is virtually as important as the fact of impartiality," quoting, Webbe v. McGhie Land Title Co., 549 F.2d 1358, 1361 (10th Cir.1977).

The government responds that Burger's attempt to have the court recuse itself "is a thinly veiled effort to remove a judge who has imposed a sentence that is not popular with the defendant." (Brief of Appellee at p. 15). The government observes that the district court specifically found that the "two letters were not used by the court in determining the sentences. Rather, the sentences were based upon the information contained in the Presentence Investigation Report, as amended and adopted by the court following two separate evidentiary hearings ... [and] personal knowledge derived from presiding over the lengthy trial of defendants' alleged co-conspirators." (Appendix of Appellant, Vol. II, at p. A00285-286). The government also observes that the district court stated that its restitution order of six million dollars "was the amount which had been promoted by the probation office ... [in a] presentence conference with the probation staff." Id. at p. A00282, n. 2.

The decision to recuse is committed to the sound discretion of the district court. Hinman v. Rogers, 831 F.2d 937, 938 (10th Cir.1987). We review the denial of a motion to recuse only for abuse of that discretion. Weatherhead v. Globe International, Inc., 832 F.2d 1226, 1227 (10th Cir.1987); Varela v. Jones, 746 F.2d 1413, 1416-1417 (10th Cir.1984).

Under § 144, the affidavits filed in support of recusal are strictly construed against the affiant and there is a substantial burden on the moving part...

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