U.S. v. Patti

Decision Date18 July 2003
Docket NumberNo. 02-13871.,02-13871.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Frank M. PATTI, Sr., Defendant-Appellant.
CourtU.S. Court of Appeals — Eleventh Circuit

Randall Joseph Hensel, Robert G. Davies, Pamela A. Moine, Asst. U.S. Atty., Pensacola, FL, for U.S.

Appeal from the United States District Court for the Northern District of Florida.

Before MARCUS and WILSON, Circuit Judges, and RESTANI*, Judge.

WILSON, Circuit Judge:

Frank M. Patti, Sr. appeals the seventy-nine-month sentence he received after he pled guilty to filing a false income tax return in violation of 26 U.S.C. § 7206(1), and conspiring to defraud the United States in violation of 18 U.S.C. § 371. He asserts that the district court abused its discretion by denying his motion for recusal and that the district court erred in sentencing him by miscalculating the tax loss and by enhancing his sentence for obstruction of justice.1

BACKGROUND

On May 31, 2000, a grand jury returned a sealed, eight-count indictment, charging Patti with various tax violations. The case was assigned to Judge Lacey A. Collier, and the trial was scheduled to begin on May 29, 2001. Before the case went to trial, however, Patti filed a motion for recusal pursuant to 28 U.S.C. § 455(a).2 Judge Collier denied that motion on March 13, 2001. Although Patti filed supplemental evidence to support his § 455(a) motion after the initial denial,3 Judge Collier filed a supplemental order denying the motion after receiving that evidence.

Thereafter, a setback arose when Patti injured himself in a car accident. The accident brought into question Patti's competency to stand trial, as he claimed that he had amnesia and could not recall the facts surrounding the alleged tax evasion. As a result of the injuries, Patti was committed to a federal medical center pursuant to 18 U.S.C. § 4241(d)(1). In February of 2002, after a hearing, Judge Collier found that Patti was malingering and that he was competent to stand trial. Thus, a new trial date of April 15, 2002 was established. Patti, however, agreed to plead guilty to filing a false tax return and conspiring to defraud the United States, two of the counts charged in the twenty-four-count second superseding indictment, and his plea was accepted on April 12, 2002. Thereafter, the district court sentenced him to seventy-nine months of imprisonment. This appeal followed.

DISCUSSION
I. Motion for Recusal

Patti asserts that Judge Collier abused his discretion by denying his motion for recusal. The government, however, asserts that we cannot review the denial of Patti's motion, because Patti waived his right to raise that issue by entering an unconditional guilty plea.

Generally, a voluntary, unconditional guilty plea waives all nonjurisdictional defects in the proceedings. United States v. Fairchild, 803 F.2d 1121, 1124 (11th Cir.1986) (per curiam). Although we have addressed several types of claims that have been waived by entering an unconditional guilty plea, see, e.g., United States v. Wai-Keung, 115 F.3d 874, 877 (11th Cir.1997) (per curiam) (holding that a defendant waived his right to appeal the validity of a search); Fairchild, 803 F.2d at 1124 (holding that a defendant waived his right to appeal on the grounds of prosecutorial vindictiveness), we have not addressed whether a defendant waives his right to appeal the district court's denial of a motion for recusal under § 455(a) by entering an unconditional guilty plea.4 Our sister circuits that have considered that issue, however, have come to opposite conclusions, thus creating a circuit split. See United States v. Hoctel, 154 F.3d 506, 507-08 (5th Cir.1998) (holding that a defendant waives his right to appeal the denial); United States v. Gipson, 835 F.2d 1323, 1324-25 (10th Cir.1988) (holding the same); see also United States v. Troxell, 887 F.2d 830, 833 (7th Cir.1989) (holding that the defendant waived her right to appeal the denial of her § 455(a) motion because the "denial of a motion for recusal based on the appearance of impropriety can be challenged only with a writ of mandamus"). But see United States v. Brinkworth, 68 F.3d 633, 637-38 (2d Cir.1995) (holding that a defendant does not waive his right to appeal the denial); United States v. Chantal, 902 F.2d 1018, 1020-21 (1st Cir.1990) (holding the same). For the following reasons, we agree with the Fifth and Tenth Circuits and hold that a defendant waives his right to appeal the denial of a § 455(a) motion by entering an unconditional guilty plea.

Section 455 creates two primary reasons for recusal. See 28 U.S.C. § 455(a)-(b). A judge should recuse himself under § 455(a) when there is an appearance of impropriety. See id. § 455(a). Section 455(a) provides, "Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." Id. "The very purpose of § 455(a) is to promote confidence in the judiciary by avoiding even the appearance of impropriety whenever possible." Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 865, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988). Thus, the standard of review for a § 455(a) motion "is whether an objective, disinterested, lay observer fully informed of the facts underlying the grounds on which recusal was sought would entertain a significant doubt about the judge's impartiality," Parker v. Connors Steel Co., 855 F.2d 1510, 1524 (11th Cir.1988), and any doubts must be resolved in favor of recusal, United States v. Kelly, 888 F.2d 732, 745 (11th Cir.1989).

On the contrary, a judge should recuse himself under § 455(b) when any of the specific circumstances set forth in that subsection exist, which show the fact of partiality. 28 U.S.C. § 455(b)(1)-(5).5 For example, a judge should recuse himself "[w]here he has a personal bias or prejudice concerning a party" or "[w]here in private practice he served as [a] lawyer in the matter in controversy." Id. § 455(b)(1)-(2). Recusal under this subsection is mandatory, because "the potential for conflicts of interest are readily apparent." Murray v. Scott, 253 F.3d 1308, 1312 (11th Cir.2001) (internal quotation marks omitted).

Thus, the differences between the two subsections are evident. While subsection (b) sets forth specific circumstances requiring recusal, which establish the fact of partiality, subsection (a) sets forth a general rule requiring recusal in those situations that cannot be categorized neatly, but nevertheless raise concerns about a judge's impartiality. See 28 U.S.C. § 455(a)-(b). Although both subsections provide reasons for recusal, subsection (b) is stricter than subsection (a) because the need for a judge's recusal under subsection (b) is clear; once it has been established that one of the enumerated circumstances exists, there can be no dispute about the propriety of recusal. Under subsection (a), however, whether recusal is necessary is not as readily apparent. As subsection (a) does not set forth specific circumstances requiring recusal and instead provides a general rule requiring recusal when there is an appearance of impropriety, we must ask "whether an objective, disinterested, lay observer fully informed of the facts underlying the grounds on which recusal was sought would entertain a significant doubt about the judge's impartiality." Parker, 855 F.2d at 1524.

Indeed, the treatment of subsections (a) and (b) under § 455(e) further demonstrates the differences between these subsections. Section 455(e) provides, "No justice, judge, or magistrate judge shall accept from the parties ... a waiver of any ground for disqualification enumerated in subsection (b). Where the ground for disqualification arises only under subsection (a), waiver may be accepted provided it is preceded by a full disclosure on the record of the basis for disqualification."6 28 U.S.C. § 455(e). Thus, a party can waive recusal under § 455(e) when the motion is brought pursuant to § 455(a), but cannot waive recusal when the motion is brought pursuant to § 455(b).

In light of the differences between subsections (a) and (b), particularly Congress's express provision for waiver of recusal under subsection (a), we conclude that the "denial of recusal is a pretrial defect which is sublimated within a guilty plea and thereafter unavailable as an issue for appeal." Gipson, 835 F.2d at 1325.7 Accordingly, Patti waived his right to appeal the denial of his motion for recusal when he entered his unconditional guilty plea.

Moreover, we find it noteworthy that Patti failed to avail himself of the options that were available for obtaining review of the denial of his motion for recusal. Indeed, Patti immediately could have petitioned this Court for a writ of mandamus upon the denial of his motion, or he could have requested permission from Judge Collier to enter a conditional guilty plea in which he reserved the right to appeal the district court's denial of his motion. Although Patti asserts that neither alternative was viable,8 he did not attempt to exercise either option. As a result, we find his arguments regarding the futility of these options unavailing.

Thus, the district court's denial of the motion for recusal under § 455(a) is not reviewable. We therefore offer no opinion about the merits of Patti's motion.

II. Sentencing

"We review the district court's application of the Sentencing Guidelines de novo, and its findings of fact for clear error." United States v. Wilson, 183 F.3d 1291, 1300 n. 16 (11th Cir.1999).9

A. Calculation of Loss

We review the district court's calculation of the amount of loss for clear error. United States v. Renick, 273 F.3d 1009, 1025 (11th Cir.2001) (per curiam).

The district court calculated the tax loss as $4,791,267.18 under the sentencing guidelines and thus...

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