Judicial Internet Search into Possible Perjury Criticized by Fifth Circuit as “Improper,” But Ultimately Not a Basis for Recusal

In United States v. Brocato, No. 20-40624 (5th Cir. July 9, 2021) (per curiam), the panel affirms denial of a recusal motion, despite “that certain statements of the district court judge were ill-advised and certain actions of her staff were improper.”

Defendants, a married couple who ran a lawn service business together, were convicted of tax fraud and filing false tax returns by a jury. At trial, Judith Brocato testified on direct examination that $9,000 used to buy a sports car came from her mother’s estate. A clerk on the judge’s staff, though, discovered that this was impossible (the mother having died two years after the transaction). The judge, based on this discovery, “instructed counsel for the Brocatos not to represent during closing argument that the source of the $9,000.00 cash was the estate of Mrs. Brocato’s deceased mother.”

After their conviction, while setting bond pending appeal, the judge again referred to the allegedly perjurious testimony, stating that she “very troubled about testimony about . . . the perjury that occurred in this courtroom about the source of the $9,000 cash where Mrs. Brocato said that it was from her mother’s estate.” Defendants denied any perjury and filed a paper indicating at most an innocent error. Despite the judge’s insinuation of perjury, though, it did not figure as an enhancement factor at sentencing.

The defendants then moved for recusal of the judge under 28 U.S.C. §§ 144 and 455(a) as well as the Fifth Amendment’s Due Process Clause, based on the ex parte internet investigation and comments on the record about perjury, which the district court denied.

On appeal, “the Brocatos do not challenge their convictions or sentences. Rather, they argue that the district court abused its discretion in denying their motion to recuse, and they seek resentencing by a different district judge.” The panel affirms, though it is evidently discomfited by the district court’s conduct.

The panel notes that “Section 144 requires recusal when a judge ‘has a personal bias or prejudice’ against or in favor of a party,” while Section 455(a) requires recusal in cases where judicial “impartiality might reasonably be questioned.” One important standard for recusal under both sections is that it is generally not warranted where the judge’s “knowledge and the opinion it produced were properly and necessarily acquired in the course of the proceedings[.]”

On close study of the record, the panel finds that “the Brocatos are correct that the judge’s opinion [about perjury] was derived from information that came from an extrajudicial source. The online obituary was discovered through an Internet search by the judge’s staff. It seems likely that but for the staff’s actions in performing the online search and bringing the date of [the death of Judith Brocato’s mother] . . . to the judge’s attention, the judge would not have obtained the information nor formulated an opinion that Judith committed perjury.” This factor would tend to lean in favor of recusal.

Despite that, “we conclude that a reasonable and objective observer, aware of all of the facts and circumstances, would not harbor doubts about the judge’s impartiality. To start, we do not in any way condone Internet searches concerning a witness’s credibility, or any type of similar investigation by court staff into factual matters. This sort of ex parte fact-gathering is improper . . . . ”

Still, the judge did not impose an enhancement to the sentence for the alleged perjury, and (if anything) sentenced the defendants at the lowest end of the guidelines. Also “we note that the Brocatos waited more than six months after the judge’s remarks were made to move for recusal; the in-chambers conference and setting of postconviction bond both occurred on February 5, but the motion to recuse was not filed until August 21.”

The panel also holds, in a closing footnote, that the judge’s refusal to recuse herself did not violate due process, finding that “the circumstances in this case simply do not include the type of extreme facts that suggest an objective risk of unconstitutional potential for bias.”

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