U.S. v. Wade, 90-4248

• Decision Date: 03 May 1991
• Docket Number: No. 90-4248,90-4248
• Citation: 931 F.2d 300
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James W. WADE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 300

931 F.2d 300

UNITED STATES of America, Plaintiff-Appellee, v. James W. WADE, Defendant-Appellant.

No. 90-4248.

United States Court of Appeals Fifth Circuit.

May 3, 1991.

F.R. "Buck" Files, Jr., Wm. C. Wright, Tyler, Tex. (court-appointed), for defendant-appellant.

Paul E. Naman, Asst. U.S. Atty., Bob Wortham, U.S. Atty., Beaumont, Tex., for plaintiff-appellee.

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

Before HENLEY ^*, KING and GARWOOD, Circuit Judges.

KING, Circuit Judge:

James W. Wade appeals from his conviction and sentence for nine drug related offenses. ¹ The district court sentenced him to 240 months in prison and five years of supervised release. He appeals on three grounds: (1) that the district court erred in not granting a new trial due to the alleged bias of the trial judge; (2) that the prosecution made improper comments during closing arguments; and (3) that the district judge improperly granted an upward departure under the United States Sentencing Guidelines (Guidelines). For the reasons set out below, we affirm.

I.

In early 1986, while James W. Wade (Wade) was the Sheriff of Orange County, Texas, he became interested in becoming partners with two other men to manufacture and sell methamphetamine. Wade used his influence to release one of the men, Addie Guillory (Guillory), from the county jail, and the drug operation began. Guillory was arrested shortly after his release, and Wade used his influence again to try to release him. Although unsuccessful, Wade did arrange for Guillory's bond.

Wade and Donnie Flowers (Flowers), the other man involved, agreed to exclude Guillory from the drug operation. In August 1986, Flowers received a plastic bag of marihuana from Wade. The marihuana was to be used to recruit another man into the operation. Later, Wade retrieved 100 pounds of marihuana from the crime lab, and delivered the marihuana to Flowers to distribute. Wade received cash from some of the drug sales.

Still during the conspiracy, Wade recruited Donald Duhon (Duhon) as a deputy Orange County Sheriff. Wade instructed the physician responsible to omit the standard drug test on Duhon. Wade then instructed Flowers to deliver a total of one-quarter ounce of methamphetamine to Duhon. Wade and Flowers took meth oil and equipment from the evidence storage areas for cases awaiting trial in order to manufacture methamphetamine. The equipment originally belonged to Nyle Baker (Baker), a state parolee, before the authorities seized it. Wade had Baker's parole supervision moved to Orange County, and Wade and Flowers discussed further drug operations with Baker.

On May 12, 1987, Wade alerted Flowers of an impending undercover operation by the Orange County Sheriff's Narcotics Division. Wade then wrote a $200 check to Flowers's mother to indirectly provide money to Flowers for precursor chemicals for manufacturing methamphetamine.

In July, 1987, Wade and Flowers sold methamphetamine. In August or September, Baker gave Flowers an electric generator to manufacture methamphetamine. On September 1, Wade removed pills which he thought were methamphetamine from the sheriff's office. ² He gave some of the pills to Flowers, as well as a rifle.

In October, Wade arranged for Flowers's release from the Hardin County jail. During the summer of 1983, Wade learned that he and Flowers might be implicated in the drug operation by a man who was interviewed by the authorities. Wade instructed Flowers to confront the man. Flowers did, and fired shots at the man to frighten him. Wade and Flowers, sensing that their conspiracy might unravel, discussed false statements they might make to the police if arrested.

In January, 1988, Flowers met with the F.B.I., and provided them with false statements. As others involved in the operation were questioned, Wade instructed them to provide false statements and to say nothing about Wade. Wade also learned that Flowers, still in the Hardin County jail, was cooperating with the authorities. Wade said he wanted to bail Flowers out of jail and kill him.

II.

A.

Wade's case was originally assigned to United States District Judge Howell Cobb. Judge Cobb granted Wade's motion to transfer and moved the trial from Beaumont, Texas to Sherman, Texas due to the possibility of prejudicial pre-trial publicity in Beaumont, where Wade was Sheriff. After a lengthy jury trial, the jury convicted Wade, on September 21, 1988, of nine counts for drug related offenses. See supra note 1. Nearly one month later, on October 19, 1988, Wade moved to disqualify Judge Cobb under 28 U.S.C. Sec. 455(a) and moved under Rule 33 of the Federal Rules of Criminal Procedure for a new trial. ³ Five days later, Wade moved to disqualify Judge Cobb under 28 U.S.C. Sec. 144. ⁴ Although Judge Cobb initially denied the recusal motions, he recused himself on December 29, 1988, and United States District Judge William Wayne Justice became the judge of record. Judge Justice denied Wade's motion for a new trial, which Wade now appeals, and later sentenced Wade.

Wade argues that Judge Cobb was biased against him based on five things Judge Cobb said or did prior to judgment. First, Wade discusses a conversation his counsel, Gary Richardson (Richardson), had with Judge Cobb on September 19, 1988. According to Richardson's affidavit, Judge Cobb invited Richardson into his chambers after the defense and prosecution had rested and closed, but before the jury had received its charge. Once in chambers, Judge Cobb commented, "[w]ell, it looks like you may have walked him out of here," referring to Wade. After Richardson agreed, Judge Cobb added "[w]ell, to tell you the truth I hope you don't." Judge Cobb explained that he hoped the jury would find Wade guilty because "my court reporter is in financial straits and I would like to see him get the work," adding that he gets everything that he can set for hearing in order to create work for his court reporter.

Wade relayed, moreover, a conversation between John Hannah (Hannah), one of Wade's attorneys, and Judge Cobb. The conversation took place in Judge Cobb's chambers before a pretrial hearing. Judge Cobb asked Hannah to promise to pay the court reporter's bill as soon as Hannah returned to his office.

Second, Wade argues that Judge Cobb was critical of his counsel. Judge Cobb, in denying a motion for mistrial based upon prosecutorial misconduct, said that "the defense is trying to try Wayne Dial, the agents of the government, ... and every other witness except James Wade. It has engaged in such insinuations about everybody that has testified on behalf of the government." Wade contends that Judge Cobb's statement could be explained as significant bias against Wade.

Wade did not include this comment by Judge Cobb in his motion for a new trial--he argues it for the first time on appeal. Furthermore, the comment, in context, does not show judicial bias against Wade. The comment was made out of the hearing of the jury following a motion for a mistrial. Just prior to the comment, Judge Cobb had sustained an objection by Wade's counsel, and had given the jury a limiting instruction.

Third, Wade contends that Judge Cobb admitted hearsay evidence offered by the government on the ground that it was not hearsay because it was not offered for the truth of the matter asserted. Judge Cobb admitted the evidence with instructions limiting its use. Wade argues that he was unsuccessful in obtaining similar treatment when he attempted to offer other evidence which Judge Cobb ruled was hearsay in part because it was offered for the truth of the matter asserted. Wade claims that this alleged discrepancy reflects Judge Cobb's bias against Wade.

Wade fails to show, however, that Judge Cobb's rulings were, in fact, inconsistent. Wade does not explain why any exceptions to the Hearsay Rule should apply to the testimony of defense witnesses to statements by third parties that Judge Cobb excluded as hearsay. Moreover, even if we assume, arguendo, that these rulings were inconsistent, Wade cites only two instances where Judge Cobb ruled inconsistently on hearsay evidence. Given the fact that the trial lasted for five weeks, these two instances do not rise to the level of judicial bias.

Fourth, Wade claims bias because Judge Cobb interjected himself into the trial. In support of his contention, Wade offered the testimony of Hannah, who represented Wade up until trial. Hannah testified that Judge Cobb "was more hopelessly biased than any federal judge" he had ever seen. Hannah further testified that at one point in a pretrial hearing, Judge Cobb objected to the defense, without the prosecution objecting first. Wade states that, at trial, Judge Cobb questioned witnesses to highlight points made by the government; interrupted Wade's attorneys; and objected to the defense without the prosecution objecting.

Wade points to seven instances where Judge Cobb took an active role in the five-week trial. Given the fact that federal district judges have the power to take an active role at trial, this does not, in itself, demonstrate judicial bias. See United States v. Iredia, 866 F.2d 114, 119 (5th Cir.), cert. denied, 492 U.S. 921, 109 S.Ct. 3250, 106 L.Ed.2d 596 (1989).

Wade's fifth and final reason for arguing that Judge Cobb was biased against him was that he suggested to Wade's attorneys that a record would be made for the court of appeals. Wade claims that this demonstrates Judge Cobb's belief that the jury would convict Wade. Judge Cobb said, when certain evidence was objected to by the government as inadmissible, that "there will be a complete record made for review by the Court of Appeals if I make a ruling that dissatisfies you."

This comment does not suggest, as Wade argues, that Judge Cobb believed Wade would be convicted. The comment merely illustrates that a record of the ruling would be made for the court of appeals. Judge Cobb's comment does not...