U.S. v. Holland

• Decision Date: 17 March 2008
• Docket Number: No. 06-30258.,06-30258.
• Citation: 519 F.3d 909
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Russell Laroy HOLLAND, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

519 F.3d 909

UNITED STATES of America, Plaintiff-Appellee, v. Russell Laroy HOLLAND, Defendant-Appellant.

No. 06-30258.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 8, 2007.

Filed March 17, 2008.

Philip Gordon, Boise, ID, for appellant Russell Laroy Holland.

Alan G. Burrow & George W. Breitsameter, Boise, ID, for appellee United States of America.

Appeal from the United States District Court for the District of Idaho; Edward J. Lodge, District Judge, Presiding. D.C. No. CR-05-00079-EJL.

Before DAVID R. THOMPSON, ANDREW J. KLEINFELD, and JAY S. BYBEE, Circuit Judges.

ORDER WITHDRAWING OPINION AND OPINION

BYBEE, Circuit Judge:

ORDER

The Opinion filed September 4, 2007, slip op. 11411, and appearing at 501 F.3d 1120 (9th Cir.2007), is withdrawn. It may not be cited as precedent by or to this court or any district court of the Ninth Circuit.

OPINION

Russell Laroy Holland appeals his conviction and sentence for mailing threatening communications and threatening the President of the United States. He maintains that the district court judge who imposed the sentence should have recused himself after Holland obtained the judge's home telephone number and left at least one threatening message prior to his sentencing. We hold that the district judge reasonably construed Holland's threatening phone message as an attempt to manipulate the court system which did not warrant his sua sponte recusal. Accordingly, we affirm the judgment.

I

Russell Laroy Holland pled guilty to one count each under 18 U.S.C. § 876 and 18 U.S.C. § 871 for mailing threatening communications and threatening the President of the United States. He agreed to plead guilty in exchange for the Government dismissing the other four counts of the indictment. On April 13, 2006, Appellant was sentenced to seventy-eight (78) months incarceration followed by three (3) years of supervised release, to begin running after Holland served his current state sentence. Holland is projected to be released from Federal custody sometime during the year 2012, when he will be 51 years old.

Holland has a lengthy criminal record and has been incarcerated for most of his adult life for crimes ranging from armed robbery, petty theft, escape from prison, assault by a prisoner, grand theft, robbery, prisoner possession of a weapon, assault with a deadly weapon, threats against state officials, and injury to jails. At some point during the proceedings in this case, Holland obtained the sentencing judge's home telephone number, which he called, leaving more than one threatening message on an answering machine. Before sentencing, the district court revealed that he had received these threatening messages from Holland. The district court, however, dismissed them as attempts to "manipulate the system." Specifically, the judge remarked:

For the record, too, the Court is also aware that Mr. Holland did, in fact, leave voice messages at the Court's personal residence that to some people could be construed as threatening. However, in my judgment, Mr. Holland's history clearly demonstrates that these are attempts to manipulate the criminal justice system rather than threats as such and the Court is just simply not going to allow Mr. Holland to manipulate the system. So the Court has chosen to go forward with this sentencing at this time.

Later in the proceeding, the judge observed that Holland had a history of violent and assaultive crimes and "if he is given the opportunity, he has the ability to carry out his threats.... [I]t is clearly important ... that the Court impose[] a sentence for the protection of society." Holland did not object to the sentencing judge's decision to proceed with the hearing or request that the judge recuse himself.

II

We are confronted with a narrow question: When does a judge have an obligation under 28 U.S.C. § 455 to recuse himself sua sponte in response to threats made against him, his family members or associates? Because the issue was not raised before the trial court, we review for plain error. Jones v. United States, 527 U.S. 373, 388, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999); United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); United States v. Ortiz, 362 F.3d 1274, 1278 (9th Cir.2004).¹ In Noli v. Comm'r of Internal Revenue, 860 F.2d 1521, 1527 (9th Cir.1988), we held that "[f]ailure to move for recusal at the trial level ... does not preclude raising on appeal the issue of recusal under § 455." Id. "`Nonetheless, if no motion is made to the [trial court] judge ... a party will bear a greater burden on appeal in demonstrating that the judge ... [erred] in failing to grant recusal under section 455.'" Id. (quoting United States v. Sibla, 624 F.2d 864, 868 (9th Cir.1980)); see also Pau v. Yosemite Park and Curry Co., 928 F.2d 880, 885 (9th Cir.1991).

A

We begin with the general proposition that, in the absence of a legitimate reason to recuse himself, "a judge should participate in cases assigned." Maier v. Orr, 758 F.2d 1578, 1583 (Fed.Cir.1985); United States v. Snyder, 235 F.3d 42, 46 (1st Cir.2000). This proposition is derived from the "judicial Power" with which we are vested. See U.S. CONST. art. III, § 1. It is reflected in our oath, by which we have obligated ourselves to "faithfully and impartially discharge and perform [our] duties" and to "administer justice without respect to persons, and do equal right to the poor and to the rich." 28 U.S.C. § 453. Without this proposition, we could recuse ourselves for any reason or no reason at all; we could pick and choose our cases, abandoning those that we find difficult, distasteful, inconvenient or just plain boring. Our mythic Justice, represented by a blindfolded figure wielding a balance and a sword, hears all cases coming before her, giving no preference— whether in priority or result—to the station or economic status of such persons.

It is equally clear from this general proposition that a judge may not sit in cases in which his "impartiality might reasonably be questioned." 28 U.S.C. § 455(a); see also id. § 455(b) (enumerating circumstances requiring recusal). We are as bound to recuse ourselves when the law and facts require as we are to hear cases when there is no reasonable factual basis for recusal. See Clemens v. U.S. Dist. Ct., 428 F.3d 1175, 1179 (9th Cir. 2005); Nichols v. Alley, 71 F.3d 347, 352 (10th Cir.1995). If it is a close case, the balance tips in favor of recusal. United States v. Dandy, 998 F.2d 1344, 1349 (6th Cir.1993).

We also recognize that the security of the nation's judiciary is a serious concern. We are, unfortunately, reminded from time to time that threats against the judiciary have been carried out.² We stress that, despite the duty to sit, if a judge feels that his personal safety or the safety of his family is in danger, he may always recuse himself sua sponte from a matter. Recusal in such situations is left to the discretion of the threatened judge, who is in the best position to evaluate the advisability of recusal; we generally do not review a judge's decision to recuse himself.

The question before us, however, is different. Here we must decide when a judge must recuse himself sua sponte in response to threats even if he believes himself to be unbiased and would prefer to continue his work on the case. Here, Holland contends that under 28 U.S.C. § 455, the district judge should have recused himself sua sponte after receiving his threatening phone calls.

Section 455(a) of Title 28 reads: "Any justice, judge or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." In 1974 Congress amended the section to replace the subjective test of the previous version of the section with an objective test based on public perception.³ The Supreme Court discussed this change in Liljeberg v. Health Servs. Acquisition Corp., explaining that, "The goal of section 455(a) is to avoid even the appearance of partiality. If it would appear to a reasonable person that a judge has knowledge of facts that would give him an interest in the litigation then an appearance of partiality is created even though no actual partiality exists." 486 U.S. 847, 860, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988) (internal quotation marks omitted). We have restated § 455(a) and ask "whether a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned." Clemens v. U.S. Dist. Ct., 428 F.3d 1175, 1178 (9th Cir.2005) (internal quotation marks and citation omitted); cf. United States v. Cooley, 1 F.3d 985, 993 (10th Cir.1993) (articulating a similar standard). "Section 455(a) asks whether a reasonable person perceives a significant risk that the judge will resolve the case on a basis other than the merits." In re Mason, 916 F.2d 384, 385 (7th Cir.1990). The "reasonable person" is not someone who is "hypersensitive or unduly suspicious," but rather is a "well-informed, thoughtful observer." Id. at 386. The standard "must not be so broadly construed that it becomes, in effect, presumptive, so that recusal is mandated upon the merest unsubstantiated suggestion of personal bias or prejudice." Cooley, 1 F.3d at 993.

Disqualification under § 455(a) is necessarily fact-driven and may turn on subtleties in the particular case. Consequently, "the analysis of a particular section 455(a) claim must be guided, not by comparison to similar situations addressed by prior jurisprudence, but rather by an independent examination of the unique facts and circumstances of the particular claim at issue." United States v. Bremers, 195 F.3d 221, 226 (5th Cir.1999); see also Clemens, 428 F.3d at 1178. In general, the conscientious judge should also bear in mind that § 455(a) is limited by the "extrajudicial source" factor which generally requires as the basis for recusal something other than rulings,...