United States v. Smith, William K. ( 2000 )


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  • In the
    United States Court of Appeals
    For the Seventh Circuit
    No. 99-3326
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.
    WILLIAM K. SMITH,
    Defendant-Appellant.
    Appeal from the United States District Court for the
    Southern District of Illinois, East St. Louis Division.
    No. 99 CR 30044--G. Patrick Murphy, Judge.
    Argued January 20, 2000--Decided April 12, 2000
    Before COFFEY, MANION and ROVNER, Circuit Judges.
    ROVNER, Circuit Judge. William K. Smith pled
    guilty to charges of conspiring to manufacture
    methamphetamine and assaulting a federal officer.
    The district court sentenced him to 33 months on
    each count, to be served concurrently. In
    calculating this sentence, the district court
    adjusted Smith’s sentence two levels upward
    pursuant to U.S.S.G. sec. 3C1.2, for reckless
    endangerment during flight. On appeal, Smith
    objects to this enhancement on two grounds.
    First, he contends the government failed to meet
    its burden in proving that he actually endangered
    the officers’ lives. Second, Smith faults the
    district court for relying on personal, extra-
    record knowledge instead of record evidence in
    making its findings on this enhancement. We
    vacate the sentence and remand.
    I.
    One of the substances used in the manufacture
    of methamphetamine is anhydrous ammonia, which is
    also used in the farming industry as a
    fertilizer. Anhydrous ammonia has a boiling point
    of 28 degrees below zero, which means that to
    store it in a liquid form, it must be kept at
    extremely low temperatures or it must be stored
    under pressure. On farms, it is typically stored
    under pressure, and then injected into the soil
    where it combines with the water in the soil to
    form a fertilizer. "Anhydrous" means "free from
    water" and this same quality which makes
    anhydrous ammonia useful in farming renders it
    very dangerous to people. When liquid anhydrous
    ammonia comes into contact with skin or eyes or
    when the vapor is inhaled, it can severely burn
    and damage tissues. In sufficient quantities and
    concentrations, it can cause death.
    On the day of Smith’s arrest, police officers
    had been alerted to a possible methamphetamine
    manufacturing operation, and were surveilling
    Smith and his co-conspirator Alfred Poppen. The
    officers observed Smith and Poppen stop off at an
    anhydrous ammonia storage tank at a local farm,
    where they apparently obtained some of the
    substance in a bucket. After driving a short
    distance, Poppen and Smith allegedly transferred
    the anhydrous ammonia into a thermos and
    continued on to Smith’s home. At that time,
    officers attempted to stop the vehicle by
    activating their lights. Poppen and Smith
    continued driving, and began to head out of town.
    The two officers continued to follow the car
    driven by Poppen. During the pursuit, the
    officers saw Smith toss a thermos lid out the
    window. One officer observed Smith dumping
    anhydrous ammonia out of the thermos through the
    rolled down window of the car. The chase took
    place on a gravel road and the officers kept a
    distance of only five to ten feet between the
    vehicles because they did not want the road dust
    to obscure their vision of the activity in the
    car. One officer reported that the ammonia was in
    liquid form as it was being poured out the window
    but that it instantly vaporized, creating a cloud
    through which the officers then drove in the
    course of the pursuit. The officers closed the
    vents of their car and ensured that the windows
    were closed, and they were not actually injured
    by the ammonia dumping. Once the defendants’ car
    stopped, Smith tried to run from the officers and
    attacked one of them as he was being captured,
    giving rise to the charge of assaulting a federal
    officer.
    The district court enhanced Smith’s offense
    level under section 3C1.2 of the Sentencing
    Guidelines, and Smith objected to the
    enhancement. In sentencing Smith, the court
    listened to argument from the government and from
    Smith regarding the dangerousness of anhydrous
    ammonia. The court considered two reports
    published by universities regarding the safe
    handling of anhydrous ammonia in the agricultural
    setting. Smith’s counsel argued that there was no
    evidence of the quantity of the substance
    released, and no evidence of what quantity would
    be harmful under the circumstances in which it
    was released, out in the open air during close
    pursuit. After hearing argument from Smith’s
    counsel, the court asked whether counsel had ever
    worked on a farm. Smith’s counsel replied that
    she had not, and the court ruled on Smith’s
    objection:
    All right. Thank you. The court understands the
    defendant’s objection; but, the objection is
    overruled. There is--I’m satisfied that you get
    a nose full of anhydrous ammonia or a face full
    of it, it is dangerous. And I’m not trying to
    bring my own personal experience into this; but,
    I can’t ignore the fact that growing up in the
    country I know what anhydrous ammonia is. And
    this is very dangerous. It just is.
    Sentencing Tr. at 9. The court then adopted the
    probation officer’s position that Smith’s dumping
    of anhydrous ammonia created a risk of serious
    bodily injury. Smith appeals from the two-level
    increase on two grounds. First, he contends the
    government did not meet its burden of proving the
    dangerous nature of anhydrous ammonia in the
    quantity and concentrations that he released in
    the course of flight from the officers. Second,
    he contends that the district court improperly
    relied on extra-record knowledge in assessing the
    dangerousness of anhydrous ammonia, and the
    district judge should have recused himself when
    he became aware that he was unable to disregard
    his prior knowledge.
    II.
    We review the district court’s enhancement for
    clear error. United States v. Watson, 
    189 F.3d 496
    , 501 (7th Cir. 1999); United States v.
    Chandler, 
    12 F.3d 1427
    , 1433 (7th Cir. 1994). The
    government has the burden of establishing by a
    preponderance of the evidence facts which justify
    an upward adjustment of the defendant’s base
    offense level. Watson, 
    189 F.3d at 502
    . Section
    3C1.2 provides:
    If the defendant recklessly created a substantial
    risk of death or serious bodily injury to another
    person in the course of fleeing from a law
    enforcement officer, increase by 2 levels.
    U.S.S.G. sec. 3C1.2./1 Smith argues that
    although anhydrous ammonia is a dangerous
    substance, there is no evidence in the record
    supporting a finding that he created a
    substantial risk of death or serious bodily
    injury in the quantity and concentration he
    released from the car during flight. A defendant
    recklessly creates a substantial risk when he is
    aware of the risk created by his conduct, and the
    risk was of such a nature and degree that to
    disregard that risk constituted a gross deviation
    from the standard of care that a reasonable
    person would exercise. Chandler, 
    12 F.3d at 1433
    .
    He also contends that the district judge relied
    on his own personal knowledge of the
    dangerousness of this substance rather than on
    any record evidence in reaching his conclusion.
    The government contends that we should look to
    the dangerousness of the act and not the
    consequences of the act in assessing whether
    Smith created a substantial risk of death or
    serious bodily injury. The government argues that
    it was merely fortuitous that the substance
    vaporized and did not harm the officers as they
    drove through the vapor cloud, and that the
    defendant should not benefit from this fortuitous
    outcome. The government further maintains that
    because Smith did not request that the district
    judge recuse himself, Smith waived any claim for
    recusal.
    We begin by reviewing the record to determine
    if there is evidence supporting the finding that
    Smith’s dumping of anhydrous ammonia created a
    substantial risk of death or serious bodily
    injury to the officers during the pursuit. The
    district court adopted the probation officer’s
    position in rejecting Smith’s challenge to the
    adjustment. The probation officer’s Presentence
    Investigation Report ("PSR") recounts the
    officers’ testimony that during the pursuit,
    Smith first tossed a thermos lid out the car
    window and then twice dumped anhydrous ammonia
    from the thermos. The PSR then concludes that
    "[b]ecause the defendant recklessly endangered
    law enforcement officials during flight by
    dumping anhydrous ammonia out of a window of a
    moving vehicle, a two level increase is warranted
    pursuant to sec. 3C1.2." In the calculations
    section of the report, the PSR repeats that "two
    levels are added for reckless endangerment during
    flight because the defendant dumped the anhydrous
    ammonia out of the car and endangered officers."
    The PSR contains no information about the
    quantity of anhydrous ammonia dumped, the
    quantity the thermos could hold, what
    concentration and duration of exposure to ammonia
    vapor is harmful, what concentration and duration
    of exposure the officers experienced during the
    chase, how fast the vehicles were traveling, the
    weather conditions that day and the effect of the
    temperature on the vaporizing of the substance,
    and what harm was likely given the circumstances
    of the dumping.
    In objecting to the enhancement, Smith submitted
    two reports, culled from the Internet, regarding
    the safe handling of anhydrous ammonia in the
    farm setting. Much of the information in these
    reports addresses the special harms posed by the
    storage of ammonia under pressure. Leaks in
    equipment or improper handling can result in
    blasts of the substance hitting the skin or eyes
    in liquid form, which can result in severe tissue
    damage. In some circumstances, vapors can damage
    the skin and eyes as well. Persons trapped in a
    confined space with vapors of anhydrous ammonia
    can seriously damage their lungs, and exposure to
    vapors of certain concentrations for certain
    durations can cause death. The reports are quite
    precise in detailing the potential harms of
    anhydrous ammonia vapor. Five parts per million
    may cause nose irritation after five minutes of
    exposure. Seven hundred parts per million causes
    coughing, and also causes eye irritation that can
    lead to partial or total loss of sight if not
    treated. Two thousand parts per million will burn
    and blister skin after only a few seconds of
    exposure, and five thousand parts per million
    will cause death by suffocation within minutes.
    The record thus contains substantial evidence
    that anhydrous ammonia is a dangerous substance,
    and that under certain conditions it can cause
    death or serious bodily injury.
    What is missing here is what amount Smith
    dumped, what concentration of vapors the officers
    were exposed to, and for what length of time that
    exposure lasted. The government candidly admitted
    at oral argument that it did not produce evidence
    to the district court of the amount of ammonia
    the thermos could hold, or how much ammonia was
    in the thermos. Nor does the record indicate the
    weather, or the speed of the cars, or any way to
    calculate what concentration of vapors the
    officers experienced during the pursuit. Indeed
    the record does not reveal how it was physically
    possible for Smith to transfer first to a bucket
    and then to an ordinary thermos a substance that
    vaporizes at temperatures above 28 degrees below
    zero.
    Contrary to the government’s assertion that any
    dangerous act will suffice to meet the standard
    of section 3C1.2, the act must create a
    substantial risk of death or serious bodily harm.
    We know, for example, that fire is dangerous,
    that it can cause death or serious bodily harm.
    But if Smith had tossed a lighted match out the
    car window during the chase, no one would
    seriously argue that that action created
    substantial risk of death or serious bodily harm.
    Here, we do not know if Smith poured the
    equivalent of a lighted match out the window, or
    if he poured out an amount that would expose
    passengers in another car following closely
    behind to a substantial risk. The district court
    stated that if a person gets a "nose full" or a
    "face full" of anhydrous ammonia, the danger for
    serious harm exists. The question is whether
    Smith released enough of the substance under the
    circumstances for that to occur. Because the
    government has not met its burden of proving by
    a preponderance of the evidence that Smith
    created a substantial risk of death or serious
    bodily harm to the officers, we vacate the
    sentence and remand for proceedings consistent
    with this order.
    Smith also contends that the district court
    should have recused itself under 28 U.S.C. sec.
    455. That section provides:
    (a) Any justice, judge, or magistrate of the
    United States shall disqualify himself in any
    proceeding in which his impartiality might
    reasonably be questioned.
    (b) He shall also disqualify himself in the
    following circumstances:
    (1) Where he has a personal bias or prejudice
    concerning a party, or personal knowledge of
    disputed evidentiary facts concerning the
    proceeding. . . .
    However, Smith failed to properly appeal the
    court’s refusal to recuse under section 455(a).
    "[T]he denial of a request that the judge recuse
    himself under section 455(a) must be appealed
    immediately by application for writ of mandamus,
    or it is waived." United States v. Horton, 
    98 F.3d 313
    , 316 (7th Cir. 1996); United States v.
    Balistrieri, 
    779 F.2d 1191
    , 1205 (7th Cir. 1985),
    cert. denied, 
    475 U.S. 1095
     (1986). It is less
    clear under our case law whether we may review a
    refusal to recuse under section 455(b) when the
    argument is raised for the first time on appeal.
    Edgar v. K.L., 
    93 F.3d 256
    , 257 (7th Cir. 1996),
    cert. denied, 
    519 U.S. 1111
     (1997) (delay in
    seeking disqualification can be fatal but passage
    of time is not conclusive if the justification
    for disqualification is compelling); Hook v.
    McDade, 
    89 F.3d 350
    , 353 n.2 (7th Cir. 1996),
    cert. denied, 
    519 U.S. 1071
     (1997) (petition for
    writ of mandamus is the only recourse available
    to challenge a judge’s denial of a motion for
    disqualification under section 455). Assuming for
    the sake of argument that we may appropriately
    review a section 455(b) claim raised for the
    first time on appeal, we will review for clear
    error when the claim is based on the judge’s
    personal knowledge and the party moving for
    recusal is aware of the existence of the ground
    for recusal at the time the case is still before
    the trial court. See Baldwin Hardware Corp. v.
    Franksu Enterprise Corp., 
    78 F.3d 550
    , 557 (Fed.
    Cir. 1996), cert. denied, 
    519 U.S. 949
     (1996);
    United States v. Bosch, 
    951 F.2d 1546
    , 1548 (9th
    Cir. 1991), cert. denied, 
    504 U.S. 989
     (1992);
    Osei-Afriyie v. Medical College of Pennsylvania,
    
    937 F.2d 876
    , 886 (3rd Cir. 1991). Here, the
    district judge admitted that he "can’t ignore the
    fact that growing up in the country I know what
    anhydrous ammonia is. And this is very dangerous.
    It just is." That appears to be an admission that
    the court may have ruled, at least in part, on
    the basis of personal knowledge. However, all of
    the evidence in the record is consistent with the
    district judge’s personal belief, and Smith
    himself agrees that anhydrous ammonia is a
    dangerous substance. Thus, we fail to see how
    Smith was harmed by the court’s reliance, if any,
    on personal knowledge of the dangers of this
    substance. In fact, the dangerousness of the
    substance was not a fact under dispute and
    arguably the rule does not apply at all. We do
    not think the judge clearly erred by not recusing
    sua sponte when he became aware that he had some
    extra-record knowledge regarding anhydrous
    ammonia. To hold otherwise would require the
    recusal of every judge who owns a hunting rifle,
    for example, when the issue of the dangerous
    nature of firearms is before the court. That is
    not the kind of personal knowledge of disputed
    facts that the rule was meant to protect against.
    On remand, we have no doubt that the court will
    make its fact findings on the basis of the
    evidence in the record before it.
    VACATED AND REMANDED.
    /1 The Application Notes to section 3C1.2 specify
    that "another person" includes any person other
    than a participant in the offense who willingly
    participated in the flight. Therefore, we do not
    consider whether Smith exposed his co-defendant
    Poppen to a substantial risk of death or serious
    bodily injury by pouring the anhydrous ammonia
    out the window.