United States v. Cronin ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4871
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GREGORY VINCENT CRONIN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Liam O’Grady, District
Judge. (1:10-cr-00154-LO-1)
Submitted: April 29, 2011 Decided: May 18, 2011
Before NIEMEYER, KEENAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Brian L. Mizer,
Assistant Federal Public Defender, Patrick L. Bryant, Research
and Writing Attorney, Alexandria, Virginia, for Appellant. Neil
H. MacBride, United States Attorney, Jack Hanly, David B.
Goodhand, Assistant United States Attorneys, Alexandria,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gregory Vincent Cronin pled guilty to mail fraud and
securities fraud, and the district court sentenced him to 151
months in prison. On appeal, he argues that the district
court’s remarks at sentencing conveyed at least the appearance
of improper bias due to the court’s attitude towards his crime.
Finding no error, we affirm. *
“The [D]ue [P]rocess [C]lause protects not only
against express judicial improprieties but also against conduct
that threatens the ‘appearance of justice.’” Aiken Cnty. v. BSP
Div. of Envirotech Corp., 866 F.2d 661, 678 (4th Cir. 1989)
(quoting Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 825
(1986)). “In order to prevail in a deprivation of due process
claim, a defendant must show a level of bias that made ‘fair
judgment impossible.’” Rowsey v. Lee, 327 F.3d 335, 341 (4th
Cir. 2003) (quoting Liteky v. United States, 510 U.S. 540, 555
(1994)). Unfavorable and even caustic remarks based on a
defendant’s conduct may be appropriate and generally do not
create an appearance of partiality. See United States v.
Bakker, 925 F.2d 728, 740 & n.4 (4th Cir. 1991) (“To a
considerable extent a sentencing judge is the embodiment of
public condemnation and social outrage. As the community’s
*
We assume without deciding that Cronin’s claim of
constitutional error is not foreclosed by the waiver of
appellate rights included as part of the written plea agreement.
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spokesperson, a judge can lecture a defendant as a lesson to
that defendant and as a deterrent to others.”) (citation
omitted). Thus, in the absence of reliance on an impermissible
factor such as race or national origin, id. at 740, or some
personal stake in the litigation, negative opinions formed
during the course of criminal proceedings require recusal only
when they “display[] deep-seated and unequivocal antagonism that
would render fair judgment impossible.” Liteky, 510 U.S. at
556.
Cronin pled guilty to conducting a Ponzi scheme. Over
the course of ten years, more than sixty victims lost almost
$7,000,000 as a result of his fraud. Many of Cronin’s victims
lost their life savings, sometimes at the end of their expected
working life. Moreover, Cronin’s victims usually were friends
or community members to whom he repeatedly lied, continuing to
solicit money until immediately before his arrest. Although
Cronin’s liabilities outweighed his assets even before the
district court imposed a restitution order, Cronin and his
family lived quite well while his scheme was ongoing.
At sentencing, the district court described Cronin in
unflattering terms, including “sociopath” and “monster.” The
district court’s characterizations, while arguably intemperate,
constituted “a reflection of the facts before the district
court.” United States v. Diekemper, 604 F.3d 345, 352 (7th Cir.
2010) (analyzing bias claim under 28 U.S.C. § 455 (2006), and
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referring to remarks that defendant was “manipulative,
narcissistic, and twisted”). The district court’s invocation of
God’s blessings on the victims present at sentencing does not
indicate that religion was “an inappropriate driving force or
improper consideration” in the sentence imposed. United States
v. Hoffman, 626 F.3d 993, 999 (8th Cir. 2010) (finding due
process not violated when district court made statements
referring to “higher and greater judge” and “[m]ay he have mercy
on your soul”). Similarly, the district judge’s apology for the
victims’ having had to endure seeing Cronin in the community and
the court’s statement that it could also have been a victim
merely evidence sympathy and encouragement. We therefore
conclude that, contrary to Cronin’s argument, the district
court’s remarks at sentencing did not create an appearance of
improper bias, but rather reflected a reasoned opinion based on
the circumstances of Cronin’s scheme to commit fraud of
significant magnitude, with devastating consequences for the
victims.
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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