U.S. v. Vadner, 98-10542

Citation160 F.3d 263
Decision Date10 November 1998
Docket NumberNo. 98-10542,98-10542
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Gary David VADNER, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

Delonia Anita Watson, Dallas, TX, for Plaintiff-Appellee.

Timothy William Crooks, Fort Worth, TX, for Defendant-Appellant.

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

Before REYNALDO G. GARZA, JONES and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

In the United States District Court for the Northern District of Texas, the Honorable John H. McBryde presiding, Gary David Vadner pleaded guilty to one count of bank fraud on January 16, 1998. He was sentenced by Judge McBryde on April 24, 1998 to a fourteen-month prison term, to be followed by five years of supervised release.

Vadner was represented in the district court by Assistant Federal Public Defender Douglas Greene. Several of Greene's colleagues--attorneys with the Federal Public Defender's office--testified during August and September 1997 in proceedings against Judge McBryde before the Judicial Council of the Fifth Circuit. See In re: Matters Involving United States District Judge John H. McBryde, Under the Judicial Conduct and Disability Act of 1980, Nos. 95-05-372-0023 et al. (Jud.Council 5th Cir. Dec. 31, 1997), aff'd, No. 98-372-001 (Jud.Conf.U.S. Sept. 21, 1998). Greene himself did not testify in the proceedings against Judge McBryde.

On appeal, Vadner now contends that Judge McBryde should have sua sponte recused himself pursuant to 28 U.S.C. § 455(a) because his attorney, Greene, works in the Federal Public Defender's office with lawyers who did actually testify against Judge McBryde. The statute provides: "Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." 28 U.S.C. § 455(a).

Vadner did not move for Judge McBryde's recusal in the trial court. The general rule on timeliness requires that "one seeking disqualification must do so at the earliest moment after knowledge of the facts demonstrating the basis for such disqualification." Travelers Ins. Co. v. Liljeberg Entrs., Inc., 38 F.3d 1404, 1410 (5th Cir.1994). The most egregious delay--the closest thing to per se untimeliness--occurs when a party already knows the facts purportedly showing an appearance of impropriety but waits until after an adverse decision has been made by the judge before raising the...

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  • Blakely v. USAA Cas. Ins. Co.
    • United States
    • U.S. District Court — District of Utah
    • December 10, 2012
    ...but waits until after an adverse decision has been made by the judge before raising the issue of recusal." United States v. Vadner, 160 F.3d 263, 264 (5th Cir. 1998). Sufficiency "A party cannot subjectively state in a 28 U.S.C. § 144 affidavit that a judge is prejudiced and thereby automat......
  • United States v. White
    • United States
    • U.S. District Court — Eastern District of Michigan
    • January 27, 2022
    ...of impropriety but waits until after an adverse decision has been made by the judge before raising the issue." United States v. Vadner , 160 F.3d 263, 264 (5th Cir. 1998) ; accord Rabushka v. Crane Co. , 122 F.3d 559, 566 (8th Cir. 1997) ; United States v. Barrett , 111 F.3d 947, 952 (D.C. ......
  • Rupert v. Johnson
    • United States
    • U.S. District Court — Western District of Texas
    • July 8, 1999
    ...Cir.1987); McNeil v. Blackburn, 802 F.2d at 832; and Smith v. McCotter, 786 F.2d 697, 701 (5th Cir.1986). See also United States v. Vadner, 160 F.3d 263, 264-65 (5th Cir.1998), (holding that trial court's failure to advice defendant of his ineligibility for probation did not render guilty p......
  • LeVay v. Morken
    • United States
    • U.S. District Court — Eastern District of Michigan
    • March 11, 2022
    ...of impropriety but waits until after an adverse decision has been made by the judge before raising the issue." United States v. Vadner , 160 F.3d 263, 264 (5th Cir. 1998) ; accord Rabushka v. Crane Co. , 122 F.3d 559, 566 (8th Cir. 1997) ; United States v. Barrett , 111 F.3d 947, 952 (D.C. ......
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