United States v. Modjewski, 13–3012.

• Citation: 783 F.3d 645
• Decision Date: 13 April 2015
• Docket Number: No. 13–3012.,13–3012.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Andrew MODJEWSKI, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

783 F.3d 645

UNITED STATES of America, Plaintiff–Appellee

v.Andrew MODJEWSKI, Defendant–Appellant.

No. 13–3012.

United States Court of Appeals, Seventh Circuit.

Argued May 19, 2014.

Decided April 13, 2015.

Stephanie Michelle Zimdahl, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.

Jeffrey J. Levine Chicago, IL, for Defendant–Appellant.

Before ROVNER, WILLIAMS, and TINDER, Circuit Judges.

Opinion

PER CURIAM.

Andrew Modjewski presented the testimony of a psychiatric expert during his sentencing hearing in hopes that it would reduce his sentence for possession and delivery of an extremely large amount of child pornography. At the sentencing hearing, after the defense conducted its direct examination and the government cross-examined the expert, the district court judge engaged in lengthy and direct questioning of the expert, much of it regarding whether Modjewski could be classified as having a pedophilic identification. Though the expert said Modjewski could not, the judge came to her own contrary conclusion based on her knowledge of the field. Modjewski now argues the judge should have sua sponte recused herself. We reject Modjewski's argument that the judge's questioning rose to the level of personal bias since she was testing the reliability of the expert's opinion. We also find neither the judge's general knowledge of the relevant field nor her determination that Modjewski was more accurately classified having a pedophilic identification constituted personal knowledge of a disputed evidentiary fact, since neither was a fact. Further, we find that Modjewski waived his right to challenge the district court's purported failure to address the arguments in mitigation raised in the appeal. We therefore affirm Modjewski's sentence.

I. BACKGROUND

Modjewski pled guilty to three counts of possession and transportation of electronic child pornography. His collection was massive, consisting of over 12,500 images and 700 videos. One analyst from the National Center for Missing & Exploited Children called it the “most complete collection” of child pornography she had investigated.

At sentencing, Modjewski presented the expert testimony of Dr. Lisa Rone, an Assistant Professor of Clinical Psychiatry at Northwestern University, Feinberg School of Medicine. Dr. Rone reiterated the findings in her report that Modjewski suffered from post-traumatic stress and bipolar disorders

. She testified that he had minimal risk factors for re-offending since he did not have a personality or impulse control disorder and was being adequately treated. She also opined that he was not a pedophile, based on her “experience with people who have had post-traumatic stress disorder from childhood sexual abuse and treating them” and her discussion with Modjewski. The government elicited testimony that Dr. Rone's opinions were based on only one meeting with Modjewski and she did not conduct any tests on him, relying on tests conducted by others, and she did not review any of the images he downloaded or traded.

After the government rested, the district court judge asked questions of Dr. Rone. Those questions spanned eleven minutes and eleven pages of transcript, and primarily related to Dr. Rone's diagnosis that Modjewski was not a pedophile. For example:

Court: So in reaching your conclusion that he's not a pedophile, the type of images that he has possessed or collected would be relevant, wouldn't it?

Dr. Rone: They absolutely would be relevant.

Court: And there would be a difference, in your opinion, if, for example, he had pornography in the area of—child pornography of 16–to 18–year–old only. That would make a difference in your assessment of whether he was a pedophile, right?

Dr. Rone: Well, again, your Honor, I was making the assessment about his proclivity to being a pedophile not on the basis of just the images, but also on the basis of his psychiatric history and his own experiences.

Court: Right, but that's not my question. My question is: It would make a difference in making an assessment of pedophilia if these images were solely those between 16– and 18–year–olds, right?

Dr. Rone: Certainly it would make a difference. I don't think we would be talking about pedophilia—

Court: You wouldn't be able to diagnose him with pedophilia.

Dr. Rone: That's correct.

Court: Okay. So when you say aroused by prepubertal images, if an individual has those in a collection and you didn't view them, how do you know that he's not a pedophile? You never looked at them, right?

Dr. Rone: Your honor, I don't think I needed to look at them based on the descriptions I read.

Defense counsel did not object to the court's questions (aside from an occasional relevance objection) or the fact that the court was questioning the expert. When the judge finished, defense counsel asked Dr. Rone further questions on redirect.

At the hearing's conclusion, the judge noted: “I am not going to make any finding today, nor do I need to make any finding today, that this defendant will act out on any behaviors and will be a contact offender. I don't think that is necessary under the guideline calculations or the Sentencing Commission's report. I don't think that this psychiatrist who testified had enough experience in the field to opine on that conclusion, nor will I.” The court continued:

The Court does not credit [Dr. Rone's] finding that [Modjewski is] not a pedophile. And I don't think it matters if I make a determination of the term, because the term is really not necessary for my findings. But I don't think that one can come to a conclusion under the DSM–5 [Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition] that an individual is not a pedophile if she hasn't taken into account the actual images, viewing the actual images, looking at the types of images, the time period that they were stored, the amount of time that they were accessed, and the period of time over which he accessed the materials. That's critical to understanding whether someone has a preference and a motivation and a determination to obtain these images under her own definition....

The Court doesn't come to this study blindly. As the parties know, I've—I have continually read on the subject and stay up on the literature in this area and have written a treatise on the issue of child exploitation. And so for the appellate record, I have referenced some of the materials from “Child Exploitation and Trafficking: Examining the Global Challenges and U.S. Responses,” many of which do support some of the things that the doctor said, but not all of the things.

I'm not, again, making a conclusion that he's acted out, nor that he will act out. That's not a conclusion I think that I need to make. So with that in mind, the Court does find that the number of images, the type of images, the long period of time that the images were distributed, and the exacerbating fantasy and/or direct languages contained in the chats show a very aggravating circumstance and an individual who is obsessed with sexual activity with prepubescent individuals, and that that prepubescent activity also includes harm. And, therefore, with that in mind, a pedophilic identification, in the Court's opinion, is much more accurate.

The court found three mitigating factors and sentenced Modjewski to a 15–year sentence, which was 30 months below the 210–262 month advisory guideline range. After the sentence was imposed, the government asked, “if the defendant has other issues he felt should have been addressed by the [sentencing judge] in [her] statement [explaining the sentence], that he raise them now at this time.” Thereafter, the sentencing judge, addressing Modjewski's counsel, stated, “I have read all of the filings, but if you feel that there was something that I needed to address specifically, ... I would be happy to do so.” In response, counsel only raised two issues related to treatment programs for Modjewski.

Modjewski appeals his sentence.

II. ANALYSIS

A. Recusal Was Not Required

Modjewski argues the district court judge should have sua sponte recused herself because she was biased or because a reasonable person would question her impartiality. He argues both 28 U.S.C. § 455(a) and § 455(b)(1) required recusal. Under § 455(a), a judge shall recuse herself “in any proceeding in which [her] impartiality might reasonably be questioned.” Under § 455(b)(1), a judge should recuse herself where she “has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.” Modjewski must present “compelling evidence” of bias so that a reasonable person would be convinced the judge is biased. Grove Fresh Distribs., Inc. v. John Labatt, Ltd., 299 F.3d 635, 640 (7th Cir.2002).

First, we reject the government's argument that Modjewski's motion was untimely. He appealed to this court when the relevant acts—the judge's questions and statements—came to light. See United States v. Diekemper, 604 F.3d 345, 351 (7th Cir.2010) (“[W]e have permitted a judicial bias concern to be raised after trial when the bias did not become known until the trial's cessation.”). However, he did so without filing a motion to disqualify with the district court or a writ of mandamus with this court. We cannot review a motion under 28 U.S.C. § 455(a) without such filings. Id. at 352. Recusal under § 455(a) is of little use to Modjewski anyway since “it's too late for us to order the judge removed from the case, because she's through with it.” In re Bergeron, 636 F.3d 882, 884 (7th Cir.2011) ; see also Diekemper, 604 F.3d at 352. Our ability to review a recusal argument under § 455(b) without the writ and what standard of review we use are “less clear.” Diekemper, 604 F.3d at 351. As the government points out, we have reviewed recusal arguments under § 455(b) for the first time on appeal without a writ or motion filed with the district court, and have done so under both the clear and plain error...