U.S. v. CERCEDA, 172 F.3d 806 (11th Cir. 1999)
UNITED STATES OF AMERICA, Plaintiff-Appellant, versus ANGEL CERCEDA,
Defendant-Appellee.
UNITED STATES OF AMERICA, Plaintiff-Appellant, versus COURTNEY RICARDO
ALFORD, a.k.a. "Rickey" EDWARD BERNARD WILLIAMS, a.k.a. "Bernard"
NATHANIEL DEAN, Defendants-Appellees.
UNITED STATES OF AMERICA, Plaintiff-Appellant, versus HECTOR
FERNANDEZ-DOMINGUEZ Defendant-Appellee.
UNITED STATES OF AMERICA, Plaintiff-Appellant, versus JESUS E. CARDONA,
Defendant-Appellee.
UNITED STATES OF AMERICA, Plaintiff-Appellant, versus CARLOS HERNANDEZ,
Defendant-Appellee.
UNITED STATES OF AMERICA, Plaintiff-Appellant, versus JOSE HERMINIO
BENITEZ, a.k.a. "William Muniz," a.k.a. "Emilio," HERIBERTO ALVAREZ,
ELPIDIO, PEDRO IGLESIAS-CRUZ, a.k.a. "Budweiser," Defendants-Appellees.
UNITED STATES OF AMERICA, Plaintiff-Appellant, versus MINNIE RUTH WILLIAMS,
RALPH W. CORKER, Defendants-Appellees.
UNITED STATES OF AMERICA, Plaintiff-Appellant, versus HIRAM MARTINEZ, Jr.,
Defendants-Appellees.
UNITED STATES OF AMERICA, Plaintiff-Appellant, versus DIOGENES PALACIOS,
Defendant-Appellee.
UNITED STATES OF AMERICA, Plaintiff-Appellant, versus FRED DE LA MATA,
MANUEL A. CALAS, OSCAR CASTILLA and ENRIQUE FERNANDEZ,
Defendants-Appellees.
UNITED STATES OF AMERICA, Plaintiff-Appellant, versus STEVEN JOHNSON,
Defendant-Appellee.
Page 807
UNITED STATES OF AMERICA, Plaintiff-Appellant, versus FRANCISCO JOSE ARIAS,
GUSTAVO JAVIER PIRELA-AVILA, Defendants-Appellees.
UNITED STATES OF AMERICA, Plaintiff-Appellant, versus ENRIQUE ACOSTA,
MILCIADES JIMINEZ, Defendants-Appellees.
UNITED STATES OF AMERICA, Plaintiff-Appellant, versus CARLOS A. ZAPATA,
Defendant-Appellee.
UNITED STATES OF AMERICA, Plaintiff-Appellant, versus JOSE MICHAEL VILARINO,
Defendant-Appellee.
UNITED STATES OF AMERICA, Plaintiff-Appellant, versus VICTOR LONG, ISRAEL
AEL, MIGUEL CAMPOS, JOSE VISOZO NARCISCO SUAREZ, and OSCAR KARIN, a.k.a.
MAS, Defendants-Appellees.
UNITED STATES OF AMERICA, Plaintiff-Appellant, versus DIOGENES PALACIOS,
Defendant-Appellee.
UNITED STATES OF AMERICA, Plaintiff-Appellant, versus ZAIDA FATIMA BORGE,
a.k.a. Gorda, Defendant-Appellee.
UNITED STATES OF AMERICA, Plaintiff-Appellant, versus FRANCIS JOSEPH
BRADLEY, a.k.a. Frank Bradley, Defendant-Appellee.
UNITED STATES OF AMERICA, Plaintiff-Appellant, versus JAIME A. DURANGO,
Defendant-Appellee.
UNITED STATES OF AMERICA, Plaintiff-Appellant, versus ZAIDA FATIMA BORGE,
a.k.a. Gorda, Defendant-Appellee.
UNITED STATES OF AMERICA, Plaintiff-Appellant, versus NATHANIEL DEAN,
EDWARD BERNARD WILLIAMS, Defendant-Appellee.
Nos. 95-4628, 95-4610, 95-4611, 95-4612, 95-4613, 95-4617, 95-4618,
95-4626, 95-4629, 95-4630, 95-4631, 95-4632, 95-4633, 95-4634, 95-4635,
95-4659, 95-5298, 95-5369, 95-5566, 96-4584, 96-5043, 96-5067.
United States Court of Appeals, Eleventh Circuit.
DECIDED April 16, 1999
Page 808
[EDITORS' NOTE: THIS PAGE CONTAINED HEADNOTES AND HEADNOTES ARE
NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT
DISPLAYED.]
Page 809
William A. Keefer, U.S. Atty., Adalberto Jordan, Asst. U.S. Atty.,
Miami, FL, for United States.
Fred A. Schwartz, Jeffrey B. Crockett, Miami, FL, for Cerceda.
Pamela Perry, Berman, Shohat, Loewy & Perry, Miami, FL, for Alford.
John Browdy, Miami, FL, for Williams in 95-4610 and for Dean in 96-5067.
Page 810
Kathleen M. Williams, Federal Pub, Defender, Ft. Lauderdale and Miami,
FL, for Dean in 95-4610, Fernandez-Dominguez in 95-4611, Fernandez in
95-4630, Zapata in 95-4634, Borge in 95-5369, Bradley in 95-5566 and
96-5043, and William in 96-5067.
Helen C. Trainor, Asst. Fed. Pub. Defender, Ft. Lauderdale and
Miami, FL, for Dean in 95-4610, Zapata in 95-4634, Borge in 95-5369
and 96-5043 and Bradley in 95-5566.
Jacqueline Rubin, Asst. Fed. Pub. Defender, Miami, FL, for
Fernandez-Dominguez in 95-4611.
Thomas F. Almon, Miami, FL, for Cardona in 95-4612, Johnson in
95-4631 and Arias in 95-4632.
Oscar Arroyave, Miami, FL, for Hernandez in 95-4613
Jose Batista, Hialeah, FL, Roy J. Kahn, Jose Rafael Rodreguez,
Jesus F. Bujan, Miami, FL, for Defendants-Appellees in 95-4617.
Richard J. Diaz, Miami, FL, for Defendants-Appellees in 95-4618.
Roy E. Black, Black & Seiden, Miami, FL, for Martinez in 95-4626
and Calas in 95-4630.
Philip Horowitz, Miami, FL, for Palacios in 95-4629 and 95-5298.
Guy Richard Strafer, Quenon, Strafer & Scola, P.A., Miami, FL, for
De La Mata in 95-4630 and Ael in 95-4659.
Michael S. Pasano, Zuckerman, Spaeder, Taylor & Evans, Miami, FL,
for Castilla in 95-4630.
Paul Rashkind, Asst. Fed. Pub. Defender, Miami, FL, Kathleen J.
Cooper, Asst. Fed. Pub. Defender, Ft. Lauderdale, FL, for Fernandez
in 95-4630.
Guy W. Turner, Coral Gables, FL, for Pirela-Avila in 95-4632.
Barry Shevlin, Bay Harbor Island, FL, for Jimenez in 95-4633.
Manuel Gonzalez, Jr., Miami, FL, for Acosta in 95-4633.
Leonard F. Baer, Coral Gables, FL, for Vilarino in 95-4635.
Robert J. Becerra, Raskin & Raskin, P.A., Miami, FL, for
Long in 95-4659.
Joel Kaplan, Miami, FL, for Visozo in 95-4659.
Frank Quintero, Miami, FL, for Campos in 95-4659.
David J. Joffe, Coconut Grove, FL, for Suarez in 95-4659.
G.P. Della Fera, Miami, FL, for Karin in 95-4659.
Reemberto Diaz, Diaz & Batista, P.A., Coral Gables, FL, for
Durango in 96-4584.
Bonnie Phillips-Williams, Asst. Fed. Pub. Defender, Miami,
FL, for Williams in 96-5067.
Appeals from the United States District Court for the
Southern District of Florida.
Before HATCHETT, Chief Judge>, TJOFLAT, ANDERSON, EDMONDSON,
COX, BIRCH, DUBINA, BLACK, CARNES, BARKETT and HULL, Circuit
<Judges>, and RONEY, Senior Circuit <Judge>.
PER CURIAM:
[1] These appeals require us to determine whether a <judge>'s
failure to recuse himself from criminal cases in which recusal
was required necessitates vacating the resulting judgments and
sentences. We conclude that, in these cases, it does not.
I.
[2] <Judge> Michael K. Moore of the Southern District of Florida
was notified in November 1992 that he was the subject of a
federal grand jury investigation in the Eastern District of New
York.[fn1] Eleven
Page 811
months later, in October 1993, the investigation was reported in
two Miami newspapers. Immediately after these stories appeared,
<Judge> Moore recused himself sua sponte from all cases in which
the United States was a party.
[3] The appellees in these cases are criminal defendants who had
been tried and/or sentenced by <Judge> Moore between November 1992
and October 1993. Each moved for a new trial and/or sentencing
hearing on the ground that <Judge> Moore should have recused
himself from their cases in November 1992, when he first learned
of the investigation, rather than in October 1993, when the
investigation became public. The defendants' motions were
assigned to Chief <Judge> William C. O'Kelley of the Northern
District of Georgia,[fn2] who concluded that <Judge> Moore
should have recused himself in November 1992 and that the
appropriate remedy for his failure to do so was vacatur. He
therefore granted the motions. The Government appealed, and a
panel of this court affirmed. We granted rehearing en
banc.[fn3]
II.
[4] We first consider the district court's holding that <Judge>
Moore violated <28 U.S.C. § 455>(a)[fn4] by failing to
recuse himself from presiding at the defendants' trials and/or
sentencing hearings. See United States v.
Garrudo, 869 F. Supp. 1574, 1581 (S.D. Fla.
1994).[fn5] The panel opinion affirmed the district
court's holding on this issue, but that opinion was vacated when
we granted rehearing en banc in this case. See
United States v. Cerceda, 139 F.3d 847, 852-55 (11th
Cir.), vacated, 161 F.3d 652 (11th Cir. 1998). Because
the <judges> of the en banc court are equally divided with respect
to whether <Judge> Moore violated section <455>(a), the
Page 812
district court's holding on this particular issue is affirmed by operation
of law. See Reshard v. Britt, 839 F.2d 1499
(11th Cir. 1988) (en banc) (affirming district court's order in
its entirety by an equally divided court); see also
Herweg v. Ray, 619 F.2d 1265 (8th Cir. 1980) (en banc),
rev'd on other grounds, <455 U.S. 265>, 102 S. Ct. 1059,
71 L.Ed.2d 137 (1982) (affirming district court's judgment in
part by an equally divided court and reversing it in part);
Pennsylvania v. O'Neill, 473 F.2d 1029 (3d Cir. 1973)
(en banc) (affirming district court's order in part by an equally
divided court and vacating it in part). The panel opinion
remains vacated.[fn6]
III.
[5] In Liljeberg v. Health Services Acquisition Corp.,
486 U.S. 847, 864, 108 S. Ct. 2194, 2205, 100 L.Ed.2d 855 (1988),
the Supreme Court applied a three-factor test to determine
whether a judicial action taken in violation of section <455>(a)
should be remedied by vacatur pursuant to Fed. R. Civ. P.
60(b).[fn7] This test requires a court to consider: "[1]
the risk of injustice to the parties in the particular case, [2]
the risk that the denial of relief will produce injustice in
other cases, and [3] the risk of undermining the public's
confidence in the judicial process." Id.; see
also Parker v. Connors Steel Co., 855 F.2d 1510,
1526 (11th Cir. 1988). In determining that it was appropriate to
vacate the judgments and/or sentences in the defendants' cases
pursuant to Fed. R. Crim. P. 33,[fn8] the district court
cited the Liljeberg factors but made no factual
findings under any of the factors. Instead, the court simply
concluded that "the third factor identified by the Supreme Court
in Liljeberg is sufficient by itself to warrant a new
trial." Garrudo, 869 F. Supp. at 1582. It is
appropriate, therefore, for us to consider de novo the
question of whether vacatur is warranted in these cases.
See City of Tuscaloosa v. Harcros Chems.,
Inc., 158 F.3d 548, 556 (11th Cir. 1998) ("A district court
by definition abuses its discretion when it makes an error of
law.") (quoting Koon v. United States, 518 U.S. 81,
100, 116 S. Ct. 2035, 2047, 135 L.Ed.2d 392 (1996)). In so
doing, we apply the three Liljeberg factors
seriatim.
A.
[6] Our consideration of the first Liljeberg factor — risk
of injustice to the parties in the particular case — entails a
two-element inquiry.[fn9] A court applying this
Page 813
factor must consider not only the risk of injustice to the parties
from any potential partiality or bias on the part of the <judge>, but
also the risk of injustice posed by the remedy of vacatur itself.
Each of these elements warrants separate exposition.
1.
[7] Under the first Liljeberg factor, the party seeking
vacatur bears the burden of proving that potential bias on the
part of the <judge> presented a risk of injustice to it. A mere
showing that the impartiality of the <judge> might reasonably be
questioned clearly is not sufficient to carry this burden; such a
showing follows by definition from a court's finding that the
<judge> violated section <455>(a). See
Liljeberg, 486 U.S. at 862, 108 S. Ct. at 2203-04. On
the other hand, the party seeking vacatur is not required to
prove that the <judge>'s potential bias actually prejudiced it by
showing, for example, that certain rulings of the <judge> were
erroneous and that the errors were in some way attributable to
the <judge>'s potential bias. Among other difficulties, such a
requirement often would place a court of appeals in the
problematic position of determining whether the rulings indicated
by the party were in fact erroneous even though the merits of the
party's case were not properly before it. These uninformed or
ill-considered determinations of error would have drastic
consequences for subsequent appellate review of the party's case
on the merits, and might have the effect of foreclosing such
review altogether.
[8] Instead, the following two considerations should guide the
court in determining whether the party seeking vacatur has met
its burden of proving that the potential bias on the part of the
<judge> represented a risk of injustice to it. First, the
reviewing court should consider whether the party seeking vacatur
has pointed to particular circumstances that may indicate a risk
of injustice to that party.[fn10] Second, the court
should consider the seriousness of the violation of section
<455>(a) that is involved.[fn11]
Page 814
[9] Applying these two considerations to the cases before us, we
conclude that the defendants have not carried their burden under
the first Liljeberg factor. In their presentations to
the district court in support of their motions for new trial, and
in their arguments to this court, the defendants have not pointed
out any particular circumstances indicating a risk of injustice
to them.[fn12] With respect to the seriousness of the
section <455>(a) violation, we do of course recognize that the
district court concluded that there was such a violation, and
that this court has affirmed that conclusion by an equally
divided court. However, after careful consideration of the
totality of the circumstances, we now hold that the violation
thus established was neither egregious nor clear to the <judge>.
In arriving at this conclusion, we have considered the totality
of the circumstances, including, inter alia, the nature
of the violation, the egregiousness thereof, the clarity of the
violation, and the reasonableness of the <judge>'s lack of
awareness that he was in violation of section
<455>(a).[fn13]
[10] We leave open the possibility that in a rare case involving
an extremely serious violation of section <455>(a), a court might
find that the party seeking vacatur has carried its burden under
the first Liljeberg factor, even if the party has
pointed to no particular circumstances indicating a risk of
injustice. But this is not such a case. Indeed, six of the
twelve <judges> on this en banc court believe there was no
violation of section <455>(a) at all, but, assuming a violation,
would join the other <judges> comprising the majority on the remedy
issue in concluding that the violation was neither egregious nor
readily apparent.
2.
[11] The party opposing vacatur also has a burden to carry under
the first Liljeberg factor. This party bears the burden
of proving that the remedy of vacatur itself poses a risk of
injustice to it. See Liljeberg, 486 U.S. at
868-69, 108 S. Ct. at 2207 (considering whether it would be
"unfair to deprive the prevailing party of its judgment," and
finding that "neither [of the prevailing parties] has made a
showing of special hardship by reason of their reliance on the
original judgment"). In order to determine the risk of injustice
that vacatur poses to the Government in these cases, we consider
separately the defendants who were granted new trials and those
who were granted new sentencing hearings.
[12] We agree with the Government's argument that the remedy of
providing new trials to the defendants who have requested them
poses a significant risk of injustice to it. The Government
certainly would spend significant amounts of time and money in
retrying each of these defendants. Resources devoted to retrials
in all of these cases would have to be diverted from other cases
with the ultimate result that some crime will go unpunished.
See, e.g., J.E.B. v. Alabama,
511 U.S. 127, 159, 114 S.Ct. 1419, 1437 (1994) (Scalia, J.,
dissenting) ("a retrial will do nothing but divert the
[government's] resources, allowing either petitioner or some
other malefactor to go free."). Moreover, the long delay between
the defendants' original and new trials could seriously
compromise the Government's ability to re-prosecute the
defendants effectively. This problem is particularly acute in
certain cases. With regard to the case of
Page 815
United States v. De La Mata, No. 95-4630, for example, the government
would face great hardship if forced to conduct a new trial both because
of the complexity of the case (a 78 count, complex white-collar
prosecution the trial of which lasted two-and-a-half months) and
because a key Government witness was 84 years old and in bad
health at the time of the first trial. It is questionable
whether that witness — now well over 90 years old —
would be capable of again providing the testimony crucial to the
Government's case.
[13] Turning to the defendants who received new sentencing
hearings, we note that the monetary and temporal costs to the
Government from holding such hearings are relatively low. In
addition, the Government has not shown that the lengthy delay
between the defendants' original and new sentencing hearings
would present a special hardship to it in these particular cases.
We conclude, therefore, that the risk of injustice to the
Government from granting these resentencing hearings is slight.
See Foster v. United States, 615 A.2d 213,
220 (D.C. 1992); Belton v. United States,
581 A.2d 1205, 1215 (D.C. 1990).
B.
[14] Next, we examine Liljeberg's second factor —
the risk that the denial of relief will produce injustice in
other cases. This factor weighs in favor of vacating the
judgment when so doing would "encourag[e] a <judge> or litigant to
more carefully examine possible grounds for <disqualification> and
to promptly disclose them when discovered." Liljeberg,
486 U.S. at 868, 108 S. Ct. at 2206. In this case, vacating the
defendants' convictions and sentences is not necessary to deter
<judges> from violating section <455>(a), because the Eleventh
Circuit Judicial Council has already minimized the risk that
similar violations will occur in the future. In September 1996,
the Judicial Council adopted a protocol that established
guidelines for recusal when a <judge> is notified that he is the
subject or target of a criminal investigation.[fn14]
This protocol should provide substantial guidance to <judges> who
find themselves in a situation similar to that of <Judge> Moore.
[15] Although the protocol does not completely eliminate the risk
that other <judges> will act as <Judge> Moore did, the risk that
they will do so is low enough that vacating the defendants'
convictions and sentences would have only a minimal deterrent
effect. Instead, the district court's ruling that <Judge> Moore
violated section <455>(a), which we (albeit by an equally divided
court) affirm, should sufficiently impress upon <judges> the need
to identify and disclose potential grounds for <disqualification>.
Thus, we conclude that there is little risk that denying relief
here will produce injustice in other cases.
C.
[16] Finally, we examine the third Liljeberg factor
— the risk of undermining the public's confidence in the
judicial process. Although every violation of section <455>(a)
creates a risk that the public will lose faith in the judicial
system, vacating the trial court's judgment to remedy the
violation sometimes increases rather than decreases that risk.
This is such a case. As noted above, we hold that the section
<455>(a) violation, found by the district court and affirmed by
this evenly divided en banc
Page 816
court, is neither egregious nor clear cut. The closeness of the
violation issue, and its lack of clarity to <Judge> Moore, factors
into the public confidence calculus. Moreover, the defendants have
failed to establish any significant possibility that they suffered
any harm because of the circumstances that underlie the section <455>(a)
issue. For these reasons, the public would lose confidence in the
judicial process if the judgments were vacated, because the parties
and the courts would be forced to relitigate the case even though the
proceedings leading to those judgments seemed completely
fair.[fn15]
[17] This conclusion is particularly valid with respect to the
defendants who received new trials, instead of new sentence
proceedings, because of the significant risk of injustice that
the Government would suffer if it is forced to prosecute these
defendants a second time. As we discussed above, see
supra part III.A.2, the Government would spend
substantial amounts of time and money retrying these defendants.
Without any specific indication that the outcome in the trial
court could have been tainted by bias, the public would most
likely find it unjust to require the Government to suffer such
costs. Thus, we conclude that there is an appreciable risk that
vacating the defendants' convictions would cause the public to
lose confidence in our judicial system.[fn16]
[18] As for the defendants who received only new sentencing
hearings, we also conclude that the public's confidence would be
undermined if we required the Government to relitigate the trial
court proceedings. Without evidence that bias could have tainted
the outcome of the hearings, there is a significant risk that the
public would find it unjust to require the Government to expend
time and money to conduct these proceedings a second time. This
risk is lower than the risk involved in granting the defendants a
new trial, because the monetary and temporal costs to the
Government to resentence the defendants are lower. See
supra part III.A.2. However, because a substantial
risk remains that vacating the defendants' sentences would
undermine the public's confidence, we conclude that factor three
weighs against vacatur for the defendants who received new
sentencing hearings.
IV.
[19] In sum, the three factors identified by the Supreme Court in
Liljeberg weigh strongly against vacatur in regard to
the defendants who received new trials. First, the defendants
have failed to show a risk of injustice to themselves while the
Government has demonstrated a significant risk of injustice to it
should the defendants' convictions be vacated. Second, in light
of the recently adopted protocol on the matter, there is little
risk that failing to vacate the defendants' convictions in these
cases will produce injustice in other cases. Finally, public
confidence in the judicial process would be harmed if these
convictions — seemingly reached by fair procedures —
were vacated, and the Government was required to retry the
defendants.
Page 817
[20] Those same factors also weigh against vacatur, albeit less
strongly, in regard to the cases in which Chief <Judge> O'Kelley
granted only a new sentencing hearing. Although the risk of
injustice to the Government is less in vacating the defendants'
sentences than in vacating the defendants' convictions (because
of the lesser burden of prosecuting a new sentencing proceeding
as opposed to a new trial), that lesser risk is balanced against
a complete absence of evidence regarding a risk of injustice to
the defendants. Therefore, the first factor of the
Liljeberg test still suggests that the remedy of
vacatur is inappropriate. The second factor of
Liljeberg weighs against vacatur just as strongly in
the sentencing context as in the context of the defendants'
convictions. Finally, public confidence in the judicial process
is eroded (although perhaps to a lesser degree) by the setting
aside of a fair sentence just as it is eroded by the setting
aside of a fair conviction.
[21] We therefore conclude that vacatur is an inappropriate remedy
for the section <455>(a) violation in these cases. Accordingly,
the orders of the district court granting new trials and/or new
sentencing hearings are
[22] REVERSED.
[fn1] The facts of this case are set out more fully in the panel
opinion. See United States v. Cerceda, 139 F.3d 847 (11th Cir.),
vacated, 161 F.3d 652 (11th Cir. 1998) (en banc). We therefore
present only a brief summary here.
[fn2] We refer to him as "Chief <Judge>," even though he no longer
is, because that is the position <Judge> O'Kelley held at the time
he was assigned these cases and entered some of the opinions and
orders in them. See, e.g., United States
v. Garrudo, 869 F. Supp. 1574, 1575 (S.D.Fla. 1994).
[fn3] As a threshold matter, we must address the jurisdictional
issue raised by the two appellees in United States v. Cerceda,
No. 95-4628, and United States v. Hernandez, No. 95- 4613. In
those two cases, Chief <Judge> O'Kelley ordered a new trial as to
sentencing only, and the appellees contend there is no statutory
basis for an appeal of such orders. We disagree. Congress has
provided the government may appeal from "a decision, judgment,
or order of a district court . . . granting a new trial after
verdict or judgment." 18 U.S.C. § 3731 (1994). That section
provides that its provisions "shall be liberally construed to
effectuate its purpose." Id. The Supreme Court has said
that "the purpose of the section was to remove all statutory
barriers to Government appeals and to allow appeals whenever the
Constitution would permit." United States v. Wilson,
420 U.S. 332, 337, 95 S. Ct. 1013, 1019 (1975); accord,
United States v. Posner, 764 F.2d 1535, 1538
(11th Cir. 1985) ("it seems clear that [§
3731] is designed only to prevent government appeals that would
violate double jeopardy or interfere with an ongoing trial.").
Liberally construing § 3731 to effectuate its purpose, we
hold that "a new trial after verdict or judgment" includes a new
sentence proceeding.
Cerceda also argues that the government's notice of appeal in
his case was untimely, because it was filed more than 30 days
after the judgment, and under United States v. Rogers,
788 F.2d 1472, 1475 (11th Cir. 1986), the
government's timely motion to reconsider did not stop the running
of the Fed. R. App. P. 4(b) 30-day clock. That is correct, but we
overrule that holding in Rogers for the reasons the
Fifth Circuit gave in declining to adopt it. See
United States v. Greenwood, 974 F.2d 1449, 1467 —
69 (5th Cir. 1992). We hold that a timely motion
to reconsider does toll the running of the 30-day period for
filing a notice of appeal.
[fn4] Section <455>(a) states that "[a]ny 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) (1994).
[fn5] The disposition of the defendants' claims was divided into
a number of opinions. Garrudo, which involved seven
defendants who received new trials, is the only published
district court opinion in this case.
[fn6] By affirming the district court's holding on the violation
issue, we are not adopting its reasoning. Cf.
City Nat'l Bank of Miami v. General Coffee Corp.,
828 F.2d 699, 703-04 (11th Cir. 1987) (affirmance
without opinion does not imply adoption of the trial court's
reasoning). The opinion of a district court carries no
precedential weight, even within the same district.
See, e.g., State Farm Auto Ins. Co. v.
Bates, 542 F. Supp. 807, 816 (N.D. Ga. 1982).
[fn7] Rule 60(b) allows a court to vacate a judgment on the basis
of, inter alia, "newly discovered evidence which by due
diligence could not have been discovered in time to move for a
new trial under Rule 59(b)." Fed. R. Civ. P. 60(b)(2).
[fn8] In three of these cases, Chief <Judge> O'Kelley denied
defendants' motions for new trial but granted them new sentencing
hearings, on the ground that <Judge> Moore became a subject of the
investigation between the date they were convicted and the date
they were sentenced. Notwithstanding representations to the
contrary, there were no separate motions for new sentencing
hearings based on the section <455>(a) violation. (Of course, by
denying the motions for new trial while at the same time granting
new sentencing hearings, Chief <Judge> O'Kelley effectively treated
the motions for new trial as motions for new sentencing
hearings.)
[fn9] When a party requests the remedy of vacatur under Fed. R.
Civ. P. 60(b) based on a violation of section <455>(a), a court
applying the first Liljeberg factor should consider as
a threshold matter whether the motion was made within a
reasonable time. See Fed. R. Civ. P. 60(b) (requiring
party to file motion for relief "within a reasonable time, and
[for certain types of motions] not more than one year after the
judgment, order, or proceeding was entered or taken");
Liljeberg, 486 U.S. at 868, 108 S. Ct. at 2206-07
(stating that vacatur was appropriate "unless it can be said that
respondent did not make a timely request for relief"); 486 U.S.
at 869, 108 S. Ct. at 2207 (noting that a delay of ten months
between affirmance by the Court of Appeals on the merits and the
filing of a motion to vacate "would normally foreclose relief
based on a violation of § <455>(a)"). The defendants in these
cases brought their motions for new trial under Fed. R. Crim. P.
33 — a rule that, unlike Civil Rule 60(b), has very
specific time limits within which a motion must be filed. It is
therefore unclear whether the "reasonable time" requirement of
Liljeberg applies in the criminal context. Because the
Government does not contend that the motions were untimely,
however, we do not consider the timeliness of each individual
defendant's motion.
[fn10] In cases where the Court of Appeals reviews a district
<judge>'s challenged actions and affirms them on the merits either
before or at the same time it considers whether the <judge>
violated section <455>(a), the possibility of a significant risk of
injustice is substantially reduced — particularly if the
review of the merits was plenary. See
Parker, 855 F.2d at 1526 (concluding that <judge>'s
potential bias presented no risk of injustice to party seeking
vacatur because court exercised plenary review over merits in
same appeal and concluded that district <judge>'s grant of summary
judgment was proper); see also Air Line Pilots
Ass'n, Int'l v. Continental Airlines, Inc. (In re
Continental Airlines Corp.), 901 F.2d 1259, 1263 (5th Cir.
1990) (reaching same conclusion where district court had
previously affirmed challenged orders of bankruptcy court on
merits); but see Liljeberg, 486 U.S. at 868 &
n.16, 108 S. Ct. at 2207 & n.16 (recognizing that Court of
Appeals panel affirmed on merits over a strong dissent and
concluding that "a careful study of [the dissenting <judge>'s]
analysis of the merits of the underlying <litigation> suggests that
there is a greater risk of unfairness in upholding the judgment
in favor of Liljeberg than there is in allowing a new <judge> to
take a fresh look at the issues"). All but one of the cases
before us today, however, have not yet been subject to appellate
review on the merits. The sole exception is United States
v. Cerceda, 17 F.3d 1439 (11th Cir. 1994),
which we affirmed pursuant to 11th Cir. R. 36-1 on March 3, 1994.
[fn11] Liljeberg, 486 U.S. at 859, 108 S. Ct. at 2202,
indicates that the seriousness of a section <455>(a) violation
could be mitigated by proof that the <judge> lacked knowledge of a
disqualifying circumstance, and thus bear on the question of the
appropriate remedy.
[fn12] Instead of making any showing of actual prejudice or the
risk thereof, the defendants attempted to prevail on either an
automatic vacatur or bias per se theory, or by focusing
on the third Liljeberg factor alone. They were
successful with that strategy in the district court, but not
here. While the defendants got the district court to agree they
could offer additional evidence on the violation issue if that
court ruled against them on that issue, at no time have they been
denied an opportunity to offer any evidence about, or otherwise
make a showing on, the remedy issue. They never have requested
such an opportunity.
[fn13] By contrast, the violation in Liljeberg was
inexcusable. See Liljeberg, id. at
867, 108 S. Ct. at 2206.
[fn14] The protocol states:
Judicial officers who . . . are informed that they are the
subject or target of a federal criminal investigation for a
crime that is punishable by imprisonment of one year or more
may continue with their criminal and civil dockets and
administrative duties until the Judicial Council determines
to adopt limitations that the nature of the investigation and
charges justify. However, after consultation with other
<judges> of his or her court, the implicated <judge> may
discontinue handling civil, criminal and administrative
duties that the <judge> concludes the nature of the
investigation and charges justify.
Eleventh Circuit Judicial Council, Protocol for Judicial
Officers in the Eleventh Circuit in the Event of Arrest, Indictment
or Possible Criminal Investigation (Sept. 5, 1996).
[fn15] This is especially true when the appellate court has
conducted a plenary review of the trial court's judgment —
any risk that the trial court's bias tainted the outcome in such
a case has been cured by the de novo review of the
unbiased court of appeals. Thus, the public would lose
confidence in the judicial process if the trial court's judgment
were vacated because that costly remedy would be unnecessary to
ensure fairness to the parties. See O'Neill v.
Continental Airlines, Inc. (In the matter of
Continental Airlines), 981 F.2d 1450, 1463
(5th Cir. 1993); Pfizer Inc. v. Kelly
(In re School Asbestos <Litig.), 977 F.2d 764, 787
(3rd Cir. 1992).
[fn16] We note that this risk is mitigated by the Judicial
Council's protocol, discussed above, establishing guidelines for
recusal in the event of a criminal investigation. The protocol
reduces the likelihood that similar problems will arise in the
future. Thus, although the public would most likely believe that
vacating the defendants' convictions is unjust, that belief would
be mitigated by the understanding it is unlikely that vacating
convictions for such reasons will be necessary again, and thus,
that the Government will not have to retry fairly convicted
defendants in the future.
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