explaining that test for appearance of partiality was “whether an objective, disinterested observer fully informed of the facts underlying the grounds on which recusal was sought would entertain a significant doubt that justice would be done in the case” (quotation omitted)
How later courts described this case
- explaining that test for appearance of partiality was “whether an objective, disinterested observer fully informed of the facts underlying the grounds on which recusal was sought would entertain a significant doubt that justice would be done in the case” (quotation omitted)
- concluding "that an objective observer reasonably would doubt the ability of a judge to act with utter disinterest and aloofness when he was such a close friend of the prosecutor that the families of both were just about to take a joint vacation"
- noting 27 that “a judge need not disqualify himself just because a friend—even a close friend— appears as a lawyer” but holding that recusal should have occurred in particular case 28 because the judge and prosecutor were “the best of friends” and “had secret plans to take a joint vacation immediately after trial”
- holding that "[jJludicial acts taken before the motion [to recuse] may *525 not later be set aside unless the litigant shows actual impropriety or actual prejudice"
Written by the judges who cited it.
The opinion
SWYGERT, Senior Circuit Judge,
concurring specially.
I concur fully with Parts I-IV of the court’s opinion, although I am troubled in two respects. First, the proof of the interstate commerce requirement of the Hobbs Act and RICO hangs on a slim reed. Second, the use of the mails was so tangential to the success of the underlying frauds that the mail fraud convictions are also open to question. Nevertheless, this circuit’s broad interpretation of both the interstate commerce elements and the mailings requirement dictate an affirmance of guilty on all these counts.
With respect to the recusal issue, I can concur only in the result ultimately reached by the court. I do not believe that a discussion of the merits of the recusal issue is necessary. Whether, at least in hindsight, the judge and prosecutor exercised poor judgment is irrelevant because the motion for recusal was untimely and waived.
*1542 The motion was filed several months after Murphy was sentenced. As such, it should be treated as a Fed.R.Crim.P. 33 motion for a new trial on the basis of newly-discovered evidence. In this circuit, such a motion could properly be entertained by the district court even though an appeal was pending. See United States v. Ellison, 557 F.2d 128, 132 (7th Cir.), cert. denied, 434 U.S. 965 , 98 S.Ct. 504 , 54 L.Ed.2d 450 (1977). Given defense counsel’s close relationship and past vacation trips with the prosecutor and judge, the evidence supporting the recusal motion was not “newly-discovered evidence” within the meaning of Rule 33; had counsel exercised due diligence, the facts surrounding the relationship between the prosecutor and judge would have come to light much earlier. Given this failure to exercise due diligence, Murphy has waived his right to present the merits of his recusal motion. In short, the defendant’s strategy was to “lay in the weeds,” a tactic that should have and did backfire.
Such a holding would not contradict the strict waiver and timeliness rules announced by this court in SCA Services, Inc. v. Morgan, 557 F.2d 110 (7th Cir.1977). There, the petitioner’s right to be in court to present the recusal motion was not in question: the motion was filed in reference to a civil case pending trial. The issue here is whether the petitioner, subsequent to his conviction and sentence, has “waived” his right to get back in court to present new evidence. This is a distinct issue from whether, assuming the petitioner has a right to be in court in the first place, his right to require recusal has been “waived.” Morgan applies only in the latter context; the case says nothing about the law of waiver and timeliness in the context of postconviction proceedings.