U.S. v. Cooley, Nos. 92-3076

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: Before ANDERSON, BALDOCK, and KELLY; STEPHEN H. ANDERSON; Any justice
• Citation: 1 F.3d 985
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert E. COOLEY; Ronald L. Taylor; Gary P. Leber; Merri W. Turner, also known as Merrie Foutz; and Charles W. Matson, Defendants-Appellants. to 92-3086.
• Decision Date: 19 July 1993
• Docket Number: 92-3081 and 92-3084,Nos. 92-3076

Page 985

1 F.3d 985 UNITED STATES of America, Plaintiff-Appellee,
v.
Robert E. COOLEY; Ronald L. Taylor; Gary P. Leber; Merri
W. Turner, also known as Merrie Foutz; and
Charles W. Matson, Defendants-Appellants. Nos. 92-3076, 92-3081 and 92-3084 to 92-3086. United States Court of Appeals,
Tenth Circuit. July 19, 1993.
Rehearing Denied Aug. 16, 1993.

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Lee Thompson, U.S. Atty., Wichita, KS, for plaintiff-appellee.

Craig Shultz of Shultz, Webb & Lonker, Wichita, KS, for defendants-appellants, Cooley and Taylor.

Steven K. Gradert, Asst. Federal Public Defender, Wichita, KS (Charles D. Anderson, Federal Public Defender, Wichita, KS, and Gregory E. Skinner, Asst. Federal Public Defender, Topeka, KS, with him on the briefs) for defendants-appellants, Leber, Matson, and Turner.

Before ANDERSON, BALDOCK, and KELLY, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

The defendants-appellants in these cases are abortion protesters who were arrested after they climbed a fence and sought to

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block access to a Wichita, Kansas, medical clinic. They were charged and subsequently convicted by a jury of violating 18 U.S.C. Sec. 1509, which makes it a misdemeanor for any person, by threat or force, willfully to prevent, obstruct, impede, or interfere with, or willfully attempt to prevent, obstruct, impede, or interfere with, the performance of duties under any order, judgment, or decree of the United States. Among the issues raised in these appeals, the defendants contend that (1) the evidence was insufficient to support a conviction; (2) the jury instructions improperly permitted the jury to impute individual guilt from the cumulative actions of others; (3) the indictment was improperly obtained; and (4) the district judge should have disqualified himself, pursuant to 28 U.S.C. Sec. 144 or Sec. 455(b)(1), due to personal bias against the parties, or, pursuant to 28 U.S.C. Sec. 455(a), because his impartiality could reasonably be questioned. We find no merit in any of these claims except that related to disqualification. As to that issue, we conclude that the district judge should have disqualified himself under 28 U.S.C. Sec. 455(a) because his impartiality might reasonably have been questioned as a result, among other things, of his appearance on the nationally televised evening program "Nightline." Accordingly, we vacate the conviction and sentence of each defendant, and we remand these cases to the district court for reassignment to another judge, and a new trial.

I.

BACKGROUND

In the summer of 1991, national anti-abortion leaders chose Wichita, Kansas, as the site of a "summer of mercy" protest, directed at certain medical clinics which performed abortions (legal under Kansas law). Hundreds, perhaps thousands, of protesters participated at one time or another. Their general tactics included attempts physically to block entrances to the clinics so as to "rescue" fetuses by denying entrance to anyone seeking an abortion. On application by the clinic owners, the federal district court issued a temporary restraining order, followed by a preliminary injunction on August 5, 1991, enjoining Operation Rescue leaders by name, and all acting in concert with them, from, inter alia, blocking access to and egress from specified medical facilities. The Tiller medical clinic, where the events underlying this case took place, was one of the facilities protected by the injunction. The court ordered United States Marshals to enforce the injunction. Intense local and national publicity and debate followed.

Many arrests occurred during the summer, some by local police officers, and some by the Marshals. The district judge who issued the injunction heard various matters involving certain of the protesters and their leaders. The judge was subjected throughout this time to death threats and other threats and intimidations. Cooley R.Supp. Vol. V at 613. The judge learned at the outset that the protesters intended willfully to violate his orders. Taylor R.Supp. Vol. I at 26. He gained more information about actual and anticipated violations of his order through matters coming before him in connection with the actions of the protesters. As a result, he became "adamant and vocal" in stating that his order was going to be obeyed. Cooley R.Supp. Vol. V at 614.

On August 20, 1991, the protesters, by prearrangement, attempted a new tactic. The events on that day were considerably different than they had been on prior days. United States Marshal Kent Pekarek testified that the Marshals and police officers were usually given advance notice of how many protesters they could expect and what techniques the protesters intended to use. However, the "[n]ight before [August 20] we received no information at all [about] what clinic they were going to try to block, as to their techniques, as to how many. We received nothing at all, and we contacted our sources and no one was talking." Cooley R.Supp. Vol. III at 212. Moreover, the atmosphere on the morning of August 20 was unusually quiet:

[G]enerally witnesses in the crowd who are curious onlookers will hear discussions in the crowd and tell--the information will get to us as to what may be happening, and that didn't happen that morning either. They usually ... block the clinics

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like at 8:00 or 9:00 o'clock in the morning. Nothing was happening that morning [of August 20].

Id.

Shortly after noon on August 20, about forty protesters, including the defendants, scaled the fences and walls surrounding the Tiller clinic and rushed the gates from the interior, thereby blocking access to the clinic from the inside. Some of the protesters pushed and shoved on the gates, and at least one carried a locking device designed to be placed on the clinic gates. Id. at 216, 311. Both Marshal Pekarek and Deputy Amico testified that this event was entirely new, unanticipated and different from other attempts to block access to the clinic. Id. at 216-17, 310-12. They further testified that the moblike atmosphere hampered their ability to perform their duties, and caused them fear of immediate personal harm and danger to their own well being. Id. at 217-21; 327-29.

The evidence offered at trial demonstrates that each defendant in this case intentionally participated in the activities of August 20, that each scaled the fence or entered the grounds through an entrance shortly after noon, and that each sought to block access to the clinic from inside the grounds.

Gary Leber

Leber came to Wichita on August 19 "to become part of what was going on." Cooley R.Supp. Vol. IV at 425. He testified that he was "among the group [that] went over the fence," and that he "ran around toward the gate area on the inside and sat down, and then laid down." Id. at 428-29. His purpose was to "place [his] body in the driveway so that the gate could not be opened so people could not enter or leave the premises." Id. at 436. He further testified that he knew that the U.S. Marshals were there "to maintain access or order," id. at 437, and had heard a "rumor of certain ... heavy federal charges." Id. at 438.

Charles Wesley Matson

Matson arrived in Wichita on August 18. He testified that he "felt led to come to Wichita" after watching television news reports in which Judge Kelly and others had made comments. Id. at 442. On August 20, while picketing outside the clinic, he heard that "some people were going to block the gate ... from the inside" and that "someone was going to give some kind of signal." Id. at 441. When he saw people begin to run up and jump over the fence, he "laid down [his] sign and ... followed those people over." Id. at 442. After he went over the concrete fence on the north side of the clinic, Matson was approached by a U.S. Marshal who told him to sit down, which he did. Id. at 442-43.

Robert Cooley

Cooley arrived in Wichita on the morning of August 19. He attended an informational meeting with Operation Rescue on the evening of the August 19. Id. at 459. At that time, he decided to participate in the plan to enter the inside of the clinic grounds. Id. at 459-60. He was told at the meeting that "there was an order in place." Id. at 456. On August 20, he hopped over the fence, ran through the parking lot on the interior of the clinic property, and headed toward the gate. Id. at 452. He testified that "from the very early moments of that thing, I think it was fairly plain ... what our objectives were, and that was to get to the back side of the gate." Id. at 453. He acknowledged that he took the Marshals by surprise, and had stated before that "the Marshals were caught flatfooted by his action." Id. at 460.

Ronald Taylor

Taylor arrived in Wichita on August 19 and, like Cooley, attended the Operation Rescue meeting that evening and volunteered to participate in a rescue on August 20. Id. at 462. On the morning of August 20, he "receiv[ed] instructions about not letting the marshal touch you...." Id. at 460. He testified that he chose to walk through the gates of the clinic rather than scale the fence, but acknowledged that he did enter the compound and place himself near the gate on the inside. Id. at 463. He stated that he and the other protesters "were there to close the gate." Id. at 468.

Merri Warren Turner

Turner came to Wichita on August 18 and attended the Operation Rescue meeting on the evening of August 19. Id. at 471. She

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testified that she "had heard about [Judge Kelly's order]" and that she was "not too sure there are many people that haven't." Id. at 474. She testified that sometime after noon on August 20, she "moved across the street with a group of people who were going down the right-hand side of the fence ... and [she] crossed over the fence with some of the men and women who were ... doing that as an attempt to keep the women from coming in." Id. at 475. Once inside the clinic grounds, she "went down the side line of the grass and sat [at] ... the left-hand...