Opposition Brief — Thompson v. Chojnacki

(\S fa) | FEBT 1 2004

i/ eet OFFICE O PHE C]

Nos. 03-838 and 03-849 +!

LEAL LS TL ee TTT

Jn the Supreme Court of the Gnited States

STEPHEN E. THOMPSON, ADMINISTRATOR FOR THE

ESTATE OF CHANEL ANDRADE, ET AL., PETITIONERS

Us

PHILLIP J. CHOJNACKI, ET AL.

DEBBORAH BROWN, ET AL., PETITIONERS

V.

UNITED STATES OF AMERICA, ET AL.

ON PETITIONS FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

THEODORE B. OLSON

Solicitor General

Counsel of Record

PETER D. KEISLER

Assistant Attorney General

MARK B. STERN

CHARLES W. SCARBOROUGH

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

a BEST AVAILABLE COPY k

PRIA RECKON RE a A a OR em

QUESTION PRESENTED

Whether the district judge was required to disqualify

himself from this case.

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Alexander v. Primerica Holdings, Inc., 10 F.3d 155

I sieseieidaacastlisaialaichdnianincrsesonneundansvasiniseesnineaspeconsaivinds 13

Andrade v. Chojnacki, 65 F. Supp. 2d 431 (W.D.

I Tt Ti dll ccaslitaisahacinicntensetnemitaciensetcbsninnessiveiseseseineevsn 3

Bieber v. Department of the _ 287 F.3d 1358

SE IS IID cbihssesnaconersnoonsnnvenisnitieonsasenennesinccersocsansentoones 11,12

Branti v. Finkel, 445 U.S. 507 (1980) ....c.c.cccccccsssssssossssseeees 10

Goodman v. Lukens Steel co., 482 U.S. 656 (1987) .......... 10

Litjeberg v. Health Servs. Acquition Corp., 486 U.S.

Sit aT SSsisihcasnsiteesiciadinsssestcbiownsbtiiorecasennscsonessnsonsintanseserecenestes 8-9

Liteky v. United States, 510 U.S. 540 (1994) uu... 7,9, 10

Sao Paulo State of the Federative Rep. of Brazil v.

American Tobacco co., 535 U.S. 229 (2002) v.ceccccccccscscees 9

Tiffany Fine Arts, Inc. v. United States, 469 U.S.

i aitiiahacereiacicnientilliaitmsiseenniaisaiiansnianscevenscensserasses 10

United States v. Barrett, 111 F.3d 947 (D.C. Cir.),

COPt. obmeG, GEE UB, BGT (1907) ......ccssccsesvsesesescoeseveveceoevees 13

Statutes and regulations:

Federal Tort Claims Act:

EE EE Scie taledacdescsininoiipsbdnecieoverscenntinenenseneinsais 2

I NE as scsesssocineononovnssessnoussncovvebvesecenonnsnens 2

aa ana cacserindaininaciadannventecnionnsagenmesionse 8

ca cases baisasnssenssbvhcinedetinbicsnsowssbnomsievensvanoien 8

(IIT)

In the Supreme Court of the United States

No. 03-838

STEPHEN E. THOMPSON, ADMINISTRATOR FOR THE

ESTATE OF CHANEL ANDRADE, ET AL., PETITIONERS

V.

PHILLIP J. CHOJNACKI, ET AL.

No. 03-849

DEBBORAH BROWN, ET AL., PETITIONERS

Vz.

UNITED STATES OF AMERICA, ET AL.

ON PETITIONS FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 7a-34a) is

reported at 338 F.3d 448.' The opinion of the district court

denying petitioners’ second recusal motion (Pet. App. 35a-

56a) is reported at 116 F. Supp. 2d 778. An earlier opinion

denying petitioners’ recusal motions (Pet. App. 57a-73a) is

unreported.

' Unless otherwise indicated, references to “Pet. App.” are to the

Appendix to the petition for certiorari in No. 03-838.

(1)

JURISDICTION

The judgment of the court of appeals was entered on

July 14, 2003. A petition for rehearing was denied on

August 27, 2003. The petitions for a writ of certiorari were

filed on December 8, 2003. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

STATEMENT

1. This case arises out of a 1993 gun battle and standoff

between federal officials and members of the Branch

Davidian religious group in Waco, Texas. The incident

resulted in the deaths of numerous individuals, who

perished when certain Davidians set fire to their compound

rather than yielding to lawful authority. Pet. App. 41a-48a.

Petitioners are two separate groups of surviving Davidians

and the relatives and estates of deceased Davidians, who

have been separately represented at all relevant times in

this case. Petitioners brought suits for damages against

the United States and individual federal and state officials,

alleging claims under the Constitution, Texas law, the

Federal Tort Claims Act (FTCA), 28 U.S.C. 1346, 2671 et

seq., and other federal statutes. Pet. App. 13a.

Petitioners’ claims were consolidated for trial before

Judge Walter Smith, the only federal district court judge in

Waco. Pet. App. 14a. Petitioners moved to recuse Judge

Smith from this case, arguing primarily that his rulings and

comments in prior civil and criminal cases involving the

incidents at issue in this suit demonstrated that he was

biased against Davidians generally and had “prejudged”

the facts of this case. Judge Smith denied the recusal

motion, id. at 57a-73a, and the court of appeals denied

petitions for a writ of mandamus seeking Judge Smith’s

recusal or transfer to a different venue, see id. at 14a.

3

On July 1, 1999, Judge Smith dismissed petitioners’

constitutional claims against all but one of the individual

defendants and held that the discretionary function excep-

tion to the FTCA precluded most of plaintiffs’ negligence

claims against the United States. See Andrade v. Choj;-

nacki, 65 F’. Supp. 2d 431 (W.D. Tex. 1999). After allowing

discovery on the remaining issues, Judge Smith empaneled

an advisory jury. Trial on the remaining FTCA claims was

held from June 19 through July 14, 2000. Pet. App. 15a.

The advisory jury found that the United States had not

acted negligently in any respect, and Judge Smith sub-

sequently issued findings of fact and conclusions of law

rejecting petitioners’ claims in their entirety. Pet. App.

35a-56a. In that ruling, Judge Smith also denied a second

motion for recusal filed by petitioners, explaining that none

of their allegations of improper conduct “either singularly

or combined, forms a legal basis for recusal.” Jd. at 36a.

Both the Andrade and Brown petitioners appealed the

final judgment in favor of the government.

2. On appeal, petitioners did not challenge any of the

district court’s rulings on the merits. Instead, as the court

of appeals emphasized at the beginning of its opinion, their

“only serious contention is that Judge Smith—on account

of his relationships with defendants, defense counsel, and

court staff; prior judicial determinations; and comments

during [the] trial—should have recused himself from

hearing their claims.” Pet. App. 18a. The court of appeals

rejected petitioners’ arguments in their entirety, holding

that their “allegations do not reflect conduct that would

cause a reasonable observer to question Judge Smith’s

partiality.” [bid.

The court of appeals began its analysis with a discussion

of general recusal principles. Pet. App. 16a-19a. Among

other things, the court emphasized that the standard for

whether a judge’s impartiality might reasonably be ques-

tioned is objective rather than subjective; that review under

4

that standard “should entail a careful consideration of con-

text, that is, the entire course of judicial proceedings,

rather than isolated incidents”; and that recusal is

generally not required unless events during the trial or

opinions expressed by the judge are based on an “extra-

judicial” source. /d. at 17a-18a. In light of those principles,

the court stated that petitioners were required to clear a

number of “hurdles” to obtain Judge Smith’s recusal:

“They must (1) demonstrate that the alleged comment,

action, or circumstance was of ‘extrajudicial’ origin, (2)

place the offending event into the context of the entire trial,

and (3) do so by an ‘objective’ observer’s standard.” Jd. at

18a-19a. Because petitioners were also required to “de-

monstrate that the district court’s refusal to recuse was not

merely erroneous, but, rather, an abuse of discretion,” the

court of appeals concluded that it was “hardly surprising”

that they failed to clear those hurdles. Jd. at 19a.

a. Turning to theseparate allegations of “extrajudicial”

bias,” the court stated that two of the events “may be dis-

missed without exhaustive consideration” because “[o]ne is

trivial,” and “the second moot.” Pet. App. 19a.

First, the court rejected petitioners’ argument that gov-

ernment counsel created an appearance of impropriety by

giving food and T-shirts to certain employees in the

marshal’s and court reporter’s office during the trial.

Citing Judge Smith’s uncontested factual findings that the

gift of T-shirts was a “prank,” and that “none of the

recipients were ‘members of the Court’s staff,” the court of

appeals stated: “[W]e fail to see how these small courtesies

to the court’s non-judicial staff could be viewed by any

‘objective’ observer as compromising Judge Smith’s inde-

pendence.” Pet. App. 19a-20a.

' The court noted that several of the events could "more

appropriately be characterized as having occurred during the judicial

proceedings," but "for simplicity" the court accepted petitioners’

characterization of the events as extrajudicial. Pet. App. 19a n.2.

5

Second, the court rejected the claim “that Judge Smith’s

longstanding relationships with two of the dismissed defen-

dants, William Sessions and William J ohnston,” which con-

sisted of Johnston’s frequent appearances before J udge

Smith and Sessions’ service from 1983-1987 on the district

court bench with Judge Smith, created any appearance of

impropriety. Pet. App. 20a. Because “both Sessions and

Johnston were dismissed from the case in July 1999,” the

court held that this issue was moot, and noted further that

“[ijn any event, no facts are proven to suggest that either

prior relationship evinces characteristics that would even

Suggest, much less mandate recusal.” Jbid®

The court next concluded that, when properly viewed in

context, one comment Judge Smith allegedly made during

trial—that he had not read certain evidence relating to one

of petitioners’ claims—was “unproblematic.” Pet. App.

20a-21a. The court explained that the evidence the district

court allegedly ignored was designed to support an argu-

ment that the FBI negligently failed to develop a plan to

extinguish fire at the Davidians’ compound—an argument

that was “almost surely barred from consideration” under

the discretionary function exception to the FTCA. Jd. at

2la. “[BJecause the applicability of the discretionary

function exception does not turn on evidence of the actual

decisions made by the defendants, but, rather, on whether

the decision is or is not ‘susceptible to policy analysis,” the

court of appeals stated that “Judge Smith had no need to

examine the evidence supporting this claim.” Jbid. (cita-

tions omitted). Asa result, the court of appeals concluded,

“Judge Smith’s preference not to read the evidence—and

* Ona related matter, the court held that Judge Smith’s expressions

of support for Johnston during an investigation of Johnston in

September 2000 were “irrelevant” to petitioners’ recusal arguments

because “Johnston had been dismissed from this case in July 1999—15

months before this incident occurred.” Pet. App. 23a.

6

his declaration—cannot constitute evidence of bias or even

the appearance of such.” Jd. at 21a-22a.'

Likewise, the court of appeals held “unproblematic,”

Pet. App. 20a, Judge Smith’s comment that he would be

willing to disregard the advisory jury’s verdict. The court

noted that, although Judge Smith had granted petitioners’

request for an advisory jury (over the government’s

objection), “the FTCA does not grant plaintiffs the right to

a jury trial.” Jd. at 22a. Accordingly, the court concluded,

Judge Smith’s “statement accurately, if bluntly, reflected

the status of the advisory jury verdict.” Ibid.

The court next rejected allegations that Judge Smith’s

alleged compliment to James Touhey on what petitioners

characterized as a “particularly vicious cross-examination

of Davidian witness Clive Doyle” demonstrated imper-

missible bias. Pet. App. 23a. Noting that remarks hostile

to counsel or parties almost never provide a basis for recu-

sal, the court emphasized that such comments must be

evaluated with reference to objective standards rather than

those of a “hypersensitive, cynical and suspicious person.”

Id.at 24a. The court concluded that it “sees a compliment,

not a subliminal message of wrongful bias,” in Judge

Smith’s comment. Jbid. (internal citations omitted).

Finally, the court of appeals rejected petitioners’ argu-

ments that certain comments attributed to Judge Smith in

a newspaper article authored by Lee Hancock provided

grounds for recusal. Pet. App. 24a-29a. Because peti-

tioners “never brought this article to the district court’s

attention,” the court concluded that “their fulminations lack

record support and context,” and held that it “cannot

review this claim.” Jd. at 26a. Among other things, the

court emphasized that petitioners had an opportunity to

* The court of appeals also noted that petitioners elected not to

appeal the district court’s ruling on the applicability of the discretionary

function exception. Pet. App. 22a.

7

supplement the district court record and bring the article

to Judge Smith’s attention but failed to do so. Jd. at 27a-

28a. As a result, the court explained, petitioners’ “argu-

| ment ultimately asks this court to judge the judge based

exclusively on the fact of publication of his remarks, without

context and without verification of their accuracy.” Jd. at

28a. Under those circumstances, the court held that the

“complaint about the newspaper article was not properly

preserved for appellate review.” Ibid.

b. The court of appeals also rejected petitioners’ argu-

ments that Judge Smith’s recusal was required based upon

“eight events that occurred on the record during judicial

proceedings.” Pet. App. 29a. Citing this Court’s decision

in Liteky v. United States, 510 U.S. 540 (1994), the court

emphasized that the first six of the events involved “the

type of opinions/expressions that Liteky holds nearly

exempt from causing recusal.” Pet. App. 3la. The court

also rejected petitioners’ contention that “Liteky either

does not apply or should not apply as rigorously when, as in

this FTCA case, the judge is the factfinder.” Jd. at 31a-32a.

Noting that “[jJudges often find facts in performing their

duties—in admitting evidence, in sentencing criminals, in

ruling on motions, as well as in deciding bench-tried cases,”

the court concluded that “Liteky draws no distinction

based on the type of proceeding, and none is warranted.”

Id. at 32a.

In addition, the court rejected arguments for recusal

based on two other events that petitioners “could have, but

did not, appeal.” Pet. App. 32a. Because “one of these in-

volves the irrelevant advisory jury and onea grievously late

attempt to create a factual record for appeal,” the court of

appeals concluded that allowing “the judge’s demeanor or

actions in the two events a significant influence on our

) recusal decision would be grossly disproportionate to the

legal implications of his actions.” Ibid.

8

Finally, the court of appeals acknowledged that events

in court could, in rare circumstances, “reveal such a high

degree of favoritism or antagonism as to make fair judg-

ment impossible.” Pet. App. 32a (quoting Liteky, 510 U.S.

at 555). However, the court explained, “[a]mong the events

cited above, only one—Judge Smith’s ill-tempered ref-

erences to [Branch Davidian witness Livingston] Fagan-

—even arguably fall[s] within that deplorable range.” Jbid.

Because “those brief comments in the course of a decade of

litigation refer only to one witness, not to the Davidians or

Appellants in general or to the merits of their case,” the

court of appeals held that they did not establish bias or

partiality warranting recusal.’ Jbid.

ARGUMENT

The fact-bound decision of the court of appeals is

correct and does not conflict with any decision of this Court

or any other court of appeals. The court properly applied

established principles for judicial recusal in affirming the

district judge’s decision not to disqualify himself from this

case. Although petitioners seek to re-litigate a host of

factual issues relating to recusal, this Court does not

normally grant review to revisit consistent factual findings

by two lower courts. Moreover, neither of the two legal

questions petitioners have identified is squarely presented

in this case and neither involves an important question of

law on which the courts of appeals are divided. Ac-

cordingly, further review is not warranted.

l.a. A federal judge is required to “disqualify himself

in any proceeding in which his impartiality might reason-

ably be questioned.” 28 U.S.C. 455(a). Recusal is also

» The court also held that the Andrade petitioners had waived any

argument other than recusal by limiting their opening brief to that

issue, Pet. App. 33a, and that the Brown petitioners had offered no

“argument in law for the reversal of the district court’s judgment.” Jd.

at 34a.

9

required where a judge “has a personal bias or prejudice

concerning a party, or personal knowledge of disputed

evidentiary facts concerning the proceedings.” 28 U.S.C.

455(b)(1). Those statutory provisions are designed to avoid

even the appearance of impartiality, and they establish an

objective standard requiring recusal where a judge’s

“impartiality might be reasonably questioned.” Liljeberg

| v. Health Servs. Acquisition Corp. 486 U.S. 847, 861

(1988). As this Court has recently cautioned, however, the

determination as to whether a judge’s partiality might rea-

sonably be questioned requires careful consideration of

context and the entire course of judicial proceedings, rather

than merely a focus on isolated incidents. See S20 Paulo

State of the Federative Rep. of Brazil v. American Tobacco

Co., 535 U.S. 229, 232-233 (2002).

In addition, it is well-established that “opinions formed

by the judge on the basis of facts introduced or events oc-

curring in the course of the current proceedings, or of prior

proceedings, do not constitute a basis for a bias or partiality

motion unless they display a deep-seated favoritism or

antagonism that would make fair judgment impossible.”

Liteky, 510 US. at 555. Likewise, “judicial rulings alone

almost never constitute a valid basis for a bias or partiality

motion.” Ibid. In short, recusal is generally not required

unless some “extrajudicial” source of bias has infected the

proceedings.

b. The court of appeals correctly applied the foregoing

recusal standards in holding that the district judge did not

abuse his discretion by declining to disqualify himself from

this case. After a careful review of the various incidents

alleged to demonstrate both extrajudicial and intrajudicial

bias, Pet. App. 19a-32a, the court found no grounds for

recusal and concluded that petitioners had waived any

arguments on appeal other than recusal. Jd. at 33a-34a.

The Andrade petitioners contend that the decision

below “represents an egregious departure from the ac-

ee

10

cepted and usual course of judicial proceedings as to call for

an exercise of this Court’s power of supervision.” 03-838

Pet. 20. They nowhere identify, however, any way in which

the court misstated or misapplied settled recusal standards.

Instead, they simply reiterate the same factual arguments

that the court of appeals carefully considered and rejected,

asserting primarily that Judge Smith’s comments and

rulings in this case and prior cases demonstrate both

intrajudicial and extrajudicial bias warranting recusal.°

As recounted above, the court of appeals concluded that

none of the alleged incidents identified by petitioners,

either by themselves or combined, established any grounds

requiring Judge Smith to recuse himself from this case.

The fact-bound and record-specific nature of those con-

clusions confirms that further review by this Court is

unwarranted. Indeed, it is well-established that this Court

generally will not revisit the “concurrent findings of fact by

two courts below.” Goodmanv. Lukens Steel Co., 482 US.

656, 665 (1987). See also Tiffany Fine Arts, Inc. v. United

States, 469 U.S. 310, 317-318 n.5 (1985); Branti v. Finkel,

445 U.S. 507, 512 n.6 (1980).

Inany event, petitioners offer no persuasive grounds for

second-guessing the court of appeals’ determination that

recusal was unwarranted in this case. Relying heavily on

comments by Judge Smith based on facts and events

occurring during these and prior judicial proceedings, the

Andrade petitioners contend that those comments demon-

strate a high degree of antagonism toward them, which

made fair judgment impossible. 03-838 Pet. 21-24. As the

court of appeals recognized, however, “expressions of

impatience, dissatisfaction, annoyance, and even anger’ do

not establish bias or partiality.” Pet. App. 32a (quoting

° Likewise, the Brown petitioners repeat the same litany of factual

allegations rejected by the court of appeals to support their contention

that an objective observer “would entertain reasonable questions about

Judge Smith’s impartiality in this case.” 03-849 Pet. 9-24.

a

11

\

Liteky, 510 U.S. at 555-556). The court correctly concluded

that none of those comments, especially when viewed in the

context of a decade of contentious litigation, demonstrated

impermissible bias requiring recusal.

Petitioners’ reliance on several incidents allegedly de-

monstrating “extrajudicial” bias is equally unavailing. As

in the court of appeals, the Andrade petitioners contend

that Judge Smith’s praise for a “particularly vicious cross-

examination” conducted by James Touhey, and the pro-

vision of small “gifts” to court employees, including U.S.

Marshals employed by the Justice Department, created an

impermissible appearance of impropriety. 03-838 Pet. 24-

29. After placing each of those incidents in the proper

context, however, the court of appeals correctly concluded

that neither would cause an objective, well-informed ob-

server—as opposed to a “hypersensitive, cynical, and sus-

picious person”—to question the court’s impartiality. Pet.

App. 24a. Indeed, as the court of appeals noted, even if the

gifts by government attorneys of food and T-shirts to

federal marshals and individuals in the clerk’s office could

somehow be deemed inappropriate, those events were

entirely beyond Judge Smith’s control and thus could not

reasonably “be viewed by any ‘objective’ observer as com-

promising Judge Smith’s independence.” Jd. at 20a.’

2. The Andrade petitioners also contend that this case

presents two significant legal issues. 03-838 Pet. 7-20.

Neither warrants further review.

a. Petitioners argue first that review by this Court is

warranted to address what they contend is an unresolved

and important question: whether a more stringent stan-

” Petitioners’ cursory recitation of “other evidence of bias,” 03-838

Pet. 29, is simply a list of allegations that the court of appeals ex-

haustively considered and rejected. Likewise, the various examples of

Judge Smith’s alleged bias against Davidians offered by the Brown

petitioners, 03-849 Pet. 9-24, add nothing to the categories of allegations

considered and rejected by the court of appeals.

12

dard for recusal than that employed in Liteky applies

where the trial judge is also the factfinder in a case. 03-838

Pet. 7-17. Petitioners, however, cite no conflict in the

circuits on this question, or even any post-Liteky decision

suggesting that a more stringent recusal standard is appli-

cable in these circumstances. To the contrary, petitioners

concede (id. at 9) that the only other post-Liteky decision

to address the issue, Bieber v. Department of the Army,

287 F.3d 1358 (Fed. Cir. 2002), reached a conclusion

consistent with the court of appeals in this case: that the

same standard for recusal “ought to apply regardless of

whether the trier of fact is a jury or judge.” Jd. at 1363.

In light of this uniform post-Liteky precedent,

petitioners criticize both the court of appeals in Bieber and

the court of appeals in this case for failing adequately to

analyze the significance of a judge’s role as a factfinder in

formulating appropriate recusal standards. The court of

appeals, however, fully considered petitioners’ argument

“that Liteky either does not apply or should not apply as

rigorously when, as in this FTCA case, the judge is the

factfinder” and concluded that there was “no support for

this position legally or logically.” Pet. App. 31la-32a.

Because “[j]udges often find facts in performing their

duties—in admitting evidence, in sentencing criminals, in

ruling on motions, as well as in deciding bench-tried cases,”

the court correctly concluded that no different recusal

standard was warranted based on the type of proceeding at

issue. Jd. at 32a.

Petitioners offer no compelling rationale for a height-

ened recusal standard in cases where a judge is also the

fact-finder. Nor do they identify any principles to

differentiate the circumstances in which their higher

standard would apply from those in which the judge is

“only” admitting evidence, ruling on motions, or sentencing

criminals and in which the Liteky standard would pre-

sumably continue to govern. Instead, petitioners rely (03-

13

838 Pet. 10) solely on several pre-Liteky decisions sug-

gesting that a “judge’s role as trier of fact is a weighty

consideration” in the decision whether to recuse. Because

those decisions predate Liteky, however, they are of mini-

mal instructive value, and they certainly provide no support

for petitioners’ assertion that “clarification is needed as to

whether the Litekystandard applies to cases where a judge

has predetermined fact issues in prior cases.” Jd. at 13.°

On that issue, the post-Liteky decisions are fully consis-

tent, and review by this Court is therefore not warranted.

b. Finally, the Andrade petitioners’ contention (03-838

Pet. 17-19) that this Court should grant certiorari to

address the question whether harmless error analysis

applies to recusal motions filed prior to judgment is also

without merit. The applicability of harmless error analysis

is not presented in this case, because the court of appeals

nowhere found that recusal was warranted but held that

Judge Smith’s failure to recuse was harmless. To the

contrary, the court’s sole discussion of “harmless error”

was a single reference to that standard in the course of

holding that petitioners had waived all claims of error other

than recusal. Pet. App. 33a. Thus, regardless of whether

some courts of appeals have questioned the applicability of

* Likewise, the Andrade petitioners’ reliance (03-838 Pet. 13) on a

monograph published by the Federal Judicial Center to suggest that

there is widespread confusion over the applicable standards for recusal

in a bench trial is misplaced. Citing one of the pre-Liteky decisions

that mentions this issue, Alexander v. Primerica H oldings, Inc., 10 F.3d

155 (3d Cir. 1993), the monograph simply raises the question whether

it might be prudent for judges to follow a different recusal standard in

a bench trial. Pet. App. 82a. As the next page in the monograph makes

clear, however, although at least one post-Liteky court has recognized

that “recusal might well be prudent when a perjury bench trial involves

testimony from a proceeding over which the same judge presided,” that

court has squarely held that “section 455(a) does not require it.” Pet.

App. 83a (quoting United States v. Barrett, 111 F.3d 947, 951 (D.C.

Cir.), cert. denied, 522 U.S. 867 (1997).)

adhe |

14

harmless error analysis to recusal motions filed prior to

judgment, see 03-838 Pet. 18-19, this case does not present

a suitable vehicle for addressing that issue.”

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

THEODORE B. OLSON

Solicitor General

PETER D. KEISLER

Assistant Attorney General

MARK B. STERN

CHARLES W. SCARBOROUGH

Attorneys

FEBRUARY 2004

” Nor is review by this Court warranted to address the two questions

other than recusal posed by the Brown petitioners: whether petitioners

were denied a fair trial, and whether petitioners adequately preserved

arguments for reversing the district court’s judgment. 03-849 Pet. 24-

30. The court of appeals’ fact-bound ruling that the Brown petitioners

had offered “no argument in law for the reversal of the district court’s

judgment,” Pet. App. 34a, was correct and, in any event, provides no

grounds for review by this Court.