U.S. v. DeTemple

• Decision Date: 10 December 1998
• Docket Number: No. 97-4763,97-4763
• Citation: 162 F.3d 279
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gary L. DeTEMPLE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 279

162 F.3d 279

UNITED STATES of America, Plaintiff-Appellee, v. Gary L. DeTEMPLE, Defendant-Appellant.

No. 97-4763.

United States Court of Appeals Fourth Circuit.

Argued Sept. 22, 1998.

Decided Dec. 10, 1998.

ARGUED: Neal Lawrence Walters, Appellate Litigation Clinic, University Of Virginia School of Law, Charlottesville, Virginia, for Appellant. Robert H. McWilliams, Jr., Assistant United States Attorney, Wheeling, West Virginia, for Appellee. ON BRIEF: David E. Godwin, Acting United States Attorney, Lisa Grimes Johnston, Assistant United States Attorney, Wheeling, West Virginia, for Appellee.

Before MURNAGHAN, WILLIAMS, and MOTZ, Circuit Judges.

Affirmed by published opinion. Judge DIANA GRIBBON MOTZ wrote the opinion, in which Judge MURNAGHAN and Judge WILLIAMS joined.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

After an eighteen-day trial, a jury convicted Gary L. DeTemple of numerous counts of arson, wire fraud, and bankruptcy fraud. DeTemple contends that we must reverse these convictions because the district judge assertedly erred in failing to recuse himself, in denying DeTemple court-appointed counsel for part of the pre-trial period, and in refusing to permit DeTemple's fourth court-appointed attorney to withdraw. DeTemple also argues that this attorney provided him with ineffective assistance of counsel. Finding that none of these grounds entitle DeTemple to relief, we affirm his convictions.

I.

In November 1989, DeTemple, an owner in whole or part of a pool business, a construction company, a real estate concern, and a boat business, filed for personal bankruptcy under Chapter 11. He identified Contractors Supply, Inc. as one of his unsecured creditors in that proceeding. Prior to the bankruptcy filing, in 1987 and 1988, a partner in a local law firm wrote DeTemple four letters on behalf of Contractors Supply in an attempt to collect a debt that DeTemple owed the Company. In July 1990, that partner, Frederick P. Stamp, Jr., became a federal judge and severed all ties with the firm.

Three years later, in September 1993, a grand jury issued a twenty-count indictment charging DeTemple with arson, mail fraud, and bankruptcy fraud relating in part to his personal bankruptcy. DeTemple's case was assigned to Judge Stamp, who appointed counsel for DeTemple under the Criminal Justice Act.

In the period leading up to the trial, DeTemple asserted conflicts that led the United States Attorney and three Assistant United States Attorneys to disqualify themselves from participation in his case. In addition, two attorneys that the court had appointed to represent DeTemple withdrew from the case due to conflicts of interest. Then, on August 19, 1994, in response to Government motions, a magistrate judge issued a report recommending that DeTemple no longer be afforded court-appointed counsel. DeTemple moved to recuse the magistrate judge who had issued the report; and the judge disqualified himself.

On October 19, 1994, over DeTemple's strong objection, Judge Stamp adopted the magistrate judge's recommendation. Three months later, on January 20, 1995, DeTemple moved to recuse Judge Stamp on the grounds that Judge Stamp was disqualified because of the Judge's communications with the magistrate judge, because of the Judge's previous representation of Contractors Supply and because one of the Judge's law clerks (who had left in August 1994) had married the prosecutor. On February 15, Judge Stamp denied that motion in a written memorandum opinion. At the same time, in recognition of DeTemple's recent filing for Chapter 7 bankruptcy, the Judge appointed counsel for DeTemple.

Two days later, on February 17, DeTemple moved to recuse Judge Stamp on the additional grounds that his former partners had represented entities involved in DeTemple's bankruptcy case and that Judge Stamp assertedly had improper communications with DeTemple's new counsel. In light of these accusations, DeTemple's new counsel moved to withdraw. On February 24, Judge Stamp again denied the recusal motion and also denied counsel's motion to withdraw.

DeTemple's counsel did, however, finally withdraw upon being appointed as a state court judge, after which Judge Stamp appointed Donald J. Tennant to represent DeTemple. Relations between Tennant and DeTemple broke down after Tennant reported DeTemple's theft of prosecution documents to the court. Both Tennant and DeTemple moved for Tennant's withdrawal. DeTemple also moved yet again to recuse Judge Stamp, asserting the old grounds and additional grounds concerning the delay in appointment of counsel. Judge Stamp denied all motions.

On the first day of trial, September 12, 1995, Tennant renewed his motion to withdraw and stated that he was unprepared to defend DeTemple. Judge Stamp again denied the motion and Tennant represented DeTemple at trial. The jury found DeTemple guilty on all counts. Post-trial, the Judge did permit Tennant to withdraw. To date, Judge Stamp has appointed (successively) four additional attorneys for DeTemple.

II.

DeTemple initially contends that Judge Stamp erred in refusing to recuse himself. Recusal is governed by 28 U.S.C. § 455, which provides in relevant part:

(a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

(b) He shall also disqualify himself in the following circumstances:

(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it....

28 U.S.C.A. § 455 (West 1993). We review a district judge's refusal to recuse himself for abuse of discretion. See United States v. Gordon, 61 F.3d 263, 267 (4th Cir.1995).

DeTemple's main arguments for recusal relate to work done by Judge Stamp and two other members of his firm before he became a judge. DeTemple claims that this work constitutes service "in" or "concerning" the "matter in controversy" in the criminal case against him, and that therefore § 455(b)(2) mandates Judge Stamp's recusal. DeTemple also argues that because Judge Stamp assertedly gained "personal knowledge of disputed evidentiary facts concerning the proceeding" through his work at the firm, § 455(b)(1) obligates him to recuse himself. Finally, DeTemple argues that Judge Stamp's "impartiality might reasonably be questioned" because of the work done at his firm, and so § 455(a) requires recusal as well.

A.

DeTemple's central contention under § 455(b), which identifies specific circumstances that require recusal, focuses on Judge Stamp's representation of Contractors Supply in its attempt to collect a debt owed by DeTemple. Contractors Supply, as noted above, was named as one of the unsecured creditors in DeTemple's personal bankruptcy. DeTemple contends that Judge Stamp's efforts on behalf of Contractors Supply twenty months prior to the institution of DeTemple's bankruptcy action (and five years prior to his indictment) constituted service "as a lawyer in the matter in controversy" with respect to the bankruptcy fraud charges made against him. 28 U.S.C. § 455(b)(2).

The bankruptcy fraud prosecution clearly implicated the interests of the bankruptcy creditors, including Contractors Supply. Had DeTemple's bankruptcy fraud gone undiscovered, Contractors Supply would have been one of its victims. See United States v. Shadduck, 112 F.3d 523, 531 (1st Cir.1997) (enhancement for crimes involving multiple victims applicable to bankruptcy fraud sentence because "the primary victims of a bankruptcy fraud, for the most part, are the individual creditors"); United States v. Walker, 29 F.3d 908, 913 n. 3 (4th Cir.1994) (upholding application of multiple victim enhancement to bankruptcy fraud sentence). Thus, by fraudulently understating his assets, DeTemple arguably increased the chances that Contractors Supply would receive a smaller payment, or no payment at all, upon distribution.

DeTemple contends that our decision in In re Rodgers, 537 F.2d 1196 (4th Cir.1976), requires recusal in these circumstances. The defendants in that case were charged with using unlawful means to secure the passage of a bill in the state legislature. Id. at 1198. They moved for recusal of the trial judge because his former partner had represented a company in its own efforts to get the bill passed. Id. at 1197. The defendants planned to argue that their conduct was no more culpable than that of the company represented by the judge's former law partner, and both the partner and the president of the company were expected to testify at trial. Id. at 1198. In holding recusal to be mandated under section 455(b)(2), we reasoned that

the actual case before the court consists of more than the charges brought by the government. It also includes the defense asserted by the accused. Here, this defense, in part at least, will consist of matters in which the judge's former partner served as lawyer.

Id. at 1198.

By contrast, in this case the Contractors Supply debt played no role in either the defense or the prosecution of DeTemple's case. The Government claims, and DeTemple does not deny, that the words "Contractors Supply" were never even mentioned at trial. Furthermore, no one from Contractors Supply or Judge Stamp's former law firm testified at DeTemple's trial. The connection between the Judge's prior professional associations and the case before him is far more tenuous here than in Rodgers.

DeTemple also relies on Preston v. United States, 923 F.2d 731 (9th Cir.1991). There, the Ninth Circuit held that recusal was required where the judge's former law firm represented a nonparty company that would have faced a potential...