U.S. v. Troxell

• Decision Date: 20 October 1989
• Docket Number: 88-3467,Nos. 88-3357,s. 88-3357
• Citation: 887 F.2d 830
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Deborah K. TROXELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 830

887 F.2d 830

UNITED STATES of America, Plaintiff-Appellee, v. Deborah K. TROXELL, Defendant-Appellant.

Nos. 88-3357, 88-3467.

United States Court of Appeals Seventh Circuit.

Argued May 25, 1989.

Decided Oct. 20, 1989.

John A. Mehlick and Hilary Frooman, Asst. U.S. Attys., Springfield, Ill., for U.S.

Deborah K. Troxell, Lexington, Ky., pro se.

James M. Drake, Holley, Keith & Huntley, Springfield, Ill., for Deborah K. Troxell.

Before WOOD, Jr., COFFEY and FLAUM, Circuit Judges.

COFFEY, Circuit Judge.

Deborah Troxell appeals the sentence on a charge of cocaine distribution, and her conviction for failing to appear for sentencing in the cocaine prosecution. We affirm the convictions and the sentences.

On January 20, 1988, Troxell was named in five counts of a multi-count narcotics indictment in the Central District of Illinois charging her with one count of conspiracy one count of possession of heroin with intent to distribute, and three counts of distribution of cocaine within 1000 feet of an elementary school. On April 25, Troxell reached a plea agreement and agreed to plead guilty to the three cocaine distribution counts on condition that the Government drop the conspiracy and heroin counts and move to amend the cocaine counts to delete mention of the proximity to a school. Further, Troxell agreed to cooperate with the Government in other investigations and prosecutions, conditional upon the Government informing the sentencing judge of the value of her cooperation. The cocaine distribution counts were amended pursuant to the agreement, and Judge Mills accepted a plea of guilty on May 23, 1988 with sentencing set for August 15, 1988.

Troxell was released on an unsecured bond of $25,000 pending sentencing. Not long after the guilty plea hearing, Troxell violated the conditions of her release, leaving the Central District of Illinois and fleeing the country. When she failed to report to her probation officer as required on June 20, 1988, her bond was revoked, and a warrant for her arrest was issued. Subsequently a bond forfeiture hearing was held, and a judgment was entered against her in the amount of $25,000. Fed.R.Crim.P. 46(e).

On August 15, the defendant failed to appear for the sentencing hearing. Judge Mills expressed his displeasure that Troxell had violated the conditions of her bond and fled the country, and advised the Government to return her before the court.

Troxell was arrested at John F. Kennedy Airport in the Eastern District of New York upon her return to the country from the Middle East on October 25, 1988. She waived her extradition hearing, and was returned to Illinois, where she was confined pending trial. Her attorney moved to withdraw, and the motion was denied. Troxell personally filed a request to dismiss her attorney, and to represent herself. The court acquiesced, and attorney James M. Drake was appointed as stand-by counsel.

On the adjourned sentencing date for the cocaine charges, November 21, 1988, Troxell and stand-by counsel filed a motion requesting Judge Mills to recuse himself. The motion was denied, and the court proceeded to sentencing. The United States Attorney presented evidence that Troxell had not only violated the conditions of her release by leaving the district, but also that she had continued to sell and use drugs. He stated that Troxell's cooperation with other investigations had been "fair." Troxell was sentenced to three consecutive terms of seven years each imprisonment, to be followed by a special parole term of seven years. The judge made it clear that Troxell was being sentenced for the distribution of cocaine, but that her failure to abide by the conditions of her release was considered as an aggravating circumstance. In accordance with the plea agreement, the government then moved to drop the other two counts of the indictment regarding distribution of cocaine in the near proximity of a school and possession of heroin with intent to distribute, and the motion was granted.

On November 2, 1988, Troxell was indicted for failing to appear at the August 15 sentencing hearing in violation of 18 U.S.C. Sec. 3146. With stand-by counsel present, Troxell entered a plea of not guilty and filed a second motion requesting that Judge Mills recuse himself. This motion also was denied and the trial was scheduled for December 6, 1988. At that time, Troxell moved to dismiss on the grounds of double jeopardy, based on the prior consideration of her failure to appear as an aggravating circumstance in the narcotics case. When the motion was denied, she changed her plea to guilty, waived further presentence investigation, and was sentenced under the Sentencing Reform Act to thirty months of imprisonment, to be served consecutive to the cocaine distribution sentences. She was also sentenced to three years of supervised release to be served concurrently with the special parole term imposed on the drug charges.

In her consolidated appeals, Troxell raises two arguments. First she argues that Judge Mills erred in not recusing himself in both cases. She also argues that, even if Judge Mills could hear the cases, enhancing the sentence for the drug counts because of her flight from the District was error, and that the later sentencing for violation of 18 U.S.C. Sec. 3146 violated her constitutional protection against double jeopardy.

I. RECUSAL

Troxell filed her motion for recusal in the drug case without even an affidavit, much less any supporting case law. Judge Mills allowed Troxell's testimony under oath to take the place of an affidavit. She said:

"I did overhear a conversation in New York in the courtroom about--I don't know who the gentleman was talking on the phone in New York. I don't know who he was talking to in Springfield. All I know for sure [is] that it was about me, and he said, quote, unquote, 'That must be one angry Judge,' and then he said something about I was going to get the total of the sentence which we all know is sixty years, and I will swear to that." Transcript of sentencing hearing at 11.

At no time did Troxell allege that Judge Mills personally had anything to do with the conversation. Neither did she allege that Judge Mills displayed any knowledge about her other than what he gained in the course of the judicial proceedings. Thus, Troxell merely alleges she suspects that some unidentified person was talking about her, speculating that some judge must be angry, and that Troxell was going to receive the maximum sentence, which when accepted at face value falls far short of demonstrating an actual bias or prejudice on the part of Judge Mills, and at best is merely an allegation of an appearance of impropriety. 28 U.S.C. Sec. 455(a). In this Circuit, denial of a motion for recusal based on the appearance of impropriety can be challenged only with a writ of mandamus. Durhan v. Neopolitan, 875 F.2d 91 (7th Cir.1989); United States v. Balistrieri, 779 F.2d 1191, 1205 (7th Cir.1985), cert. denied, 475 U.S. 1095, 106 S.Ct. 1490, 89 L.Ed.2d 892 (1986). "It is a fundamental principle of appellate review that unless an error affects the substantial rights of the appellant, it is not a basis for reversal. 28 U.S.C. Sec. 2111; Fed.R.Crim.P. 52(a). As we pointed out in [United States v.] Murphy, 768 F.2d 1518, 1539 (7th Cir.1985), if a judge proceeds in a case when there is (only) an appearance of impropriety in his doing so, the injury is to the judicial system as a whole and not to the substantial rights of the parties. The parties receive a fair trial, even though a reasonable member of the public might be in doubt about its fairness, because of misleading appearances." Balistrieri, 779 F.2d at 1204-05. Once the proceedings in the district court are complete, the harm sought to be avoided by the requirement of recusal for appearance of impropriety has been done--the public image of the judiciary has already been damaged. Durhan v. Neopolitan, 875 F.2d at 97. Parties are required to act promptly in seeking a writ of mandamus to avoid that harm at the outset rather than waiting until a final judgment has been rendered. Balistrieri, 779 F.2d at 1205. Thus we need not review Troxell's claim that Judge Mills should have recused himself in the narcotics case.

In the bail-jumping matter, Troxell's motion could be read to charge Judge Mills with actual prejudice. A charge of actual bias can be reviewed after a conviction. See United States v. Bond, 847 F.2d 1233, 1241 (7th Cir.1988) (Balistrieri requirement of immediate application for writ of mandamus for appearance of bias has never been applied to charges of actual bias; where record was not fully developed on criminal defendant's charge of actual bias, contention was dismissed without prejudice to raising the issue in a 28 U.S.C. Sec. 2255 collateral proceeding). A charge of actual bias is not waived when a defendant pleads guilty. United States v. Gipson, 835 F.2d 1323, 1324-25 (10th Cir.), cert. denied --- U.S. ----, 108 S.Ct. 2038, 100 L.Ed.2d 623 (1988) (motion based on appearance of impropriety is waived by guilty plea, but motion alleging actual partiality is not waived). Troxell's motion stated that Judge Mills had previously announced in open court that he thought Troxell was guilty of bail-jumping, and that he had "made public comments suggesting the guilt of the defendant of crimes for which she was not even charged; that Judge Mills publicly attempted to label the defendant as 'Madame Cocaine'; that Judge Mills publicly announced that the defendant 'is not a nice person', suggesting general guilt of the defendant." These public comments were made when Judge Mills was announcing his reasoning in sentencing Troxell in the cocaine distribution case. Even if all the allegations set forth in the motion (which again were not accompanied with an affidavit nor the certificate required under 28 U.S.C. Sec. 144) were true, and even if they indicated actual bias rather than mere spleen...