United States v. Charles Alton Sellers, Jr.

BUTZNER, Circuit Judge,

concurring in part and dissenting in part:

I concur in Part I of the court’s opinion, agreeing that a new trial must be granted because of the erroneous exclusion of evidence.

*888 I dissent from Part II because I think that the retrial of the defendant should be conducted by a judge who is not so intimately connected with the victim of the robbery.

The government recognizes that if this were a civil case in which the bank was a party, the trial judge would have to disqualify himself even though the effect on his holdings would be so insignificant that it could not be measured. 3 Nevertheless, it argues that disqualification is not necessary because the bank, although the victim of the crime, was not a party to the proceedings, and its shareholders were not financially affected by the outcome of the trial. I believe that the decisive significance the government assigns to these two factors is unwarranted by the statute governing the disqualification of judges and the Code of Judicial Conduct adopted by the Judicial Conference of the United States.

United States v. Ravich, 421 F.2d 1196, 1205 (2d Cir. 1970), on which the government relies, is no longer persuasive. The 1974 amendment to 28 U.S.C. § 455 eliminated the subjective test which left the decision of disqualification when a judge held stock in a robbed bank to “the conscience of the particular judge.” The amended statute, 28 U.S.C. § 455 (a) provides:

Any justice, judge, magistrate, or referee in bankruptcy of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

The Code of- Judicial Conduct contains a similar provision, and neither the code nor the statute conditions disqualification on proof of financial interest in a party to the proceedings. Indeed, the code emphasizes that disqualification is not limited to instances where the judge or a member of his family has such an interest. 4

Commenting on subsection (a) of the amended statute, the Report of the House Committee on the Judiciary states:

This sets up an objective standard, rather than the subjective standard set forth in the existing statute through use of the phrase “in his opinion”. This general standard is designed to promote public confidence in the impartiality of the judicial process by saying, in effect, if there is a reasonable factual basis for doubting the judge’s impartiality, he should disqualify himself and let another judge preside over the case. 5

This legislative history indicates that it is unnecessary to show that the judge is actually biased. The test is whether there is a “reasonable factual basis for doubting the judge’s impartiality.” I believe that a basis for such a doubt is established by showing that the judge has a substantial financial interest in the bank which has been robbed and that his brother is chief executive officer of the institution. It is reasonable to conclude that any person who has substantial holdings in a bank that is the victim of a robbery has an interest that is different from that of the general public in seeing the criminal convicted. 6 These feelings are apt to be intensified when the stockholder’s brother is ultimately responsible for the security of the institution and the safety of its employees. Such a stockholder, I dare say, would be disqualified to sit as a juror in most courts.

A detached observer, I believe, could reasonably question whether a judge so closely linked to the victim could maintain impar *889 tiality. It might well be difficult for the judge to hold a neutral stance, especially when the testimony of officers and employees, who are under the direct supervision of his brother, conflicts with other evidence. Indeed, a conscientious judge might unwittingly bend over backwards to favor the accused so that his conduct would be above reproach. But partiality for the accused must be avoided just as surely as bias against him.

At the risk of being repetitious, it is well to emphasize that the amended statute and the code do not call for inquiry into a judge’s subjective feelings. We are not concerned in this case with examining the attitude of the judge who tried this case. Instead, our obligation is to provide an objective appraisal that can be applied uniformly to all judges throughout the circuit. I therefore conclude that a judge should disqualify himself in criminal cases involving a bank in which he or a member of his immediate family is a stockholder or officer. He should apply the same salutary practice that the statute and code require him to apply in civil eases. In both instances disqualification will enhance confidence in the administration of justice.

. See 28 U.S.C. § 455 (b)(4) and (5); Code of Judicial Conduct for United States Judges, Canon 3 C(l)(c) and (d).

. Code of Judicial Conduct for United States Judges, Canon 3 C(l) provides in part:

A judge shall disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where: [he or a member of his family has an interest in a party to the proceedings. Canon 3 C(l)(c) and (d)]

. H.R. Rep. No. 93-1453, 93d Cong., 2d Sess., reprinted in [1974] U.S.Code Cong. & Admin. News, pp. 6351, 6354-55.

. In my view there is no justification for drawing a distinction between a judge’s ownership of stock in a bank holding company, which in turn owns all of the bank’s stock, and his ownership of bank stock.