Larson-Olson v. United States ( 2024 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 22-CM-0778
MICKI LARSON-OLSON, APPELLANT,
V.
UNITED STATES, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(2021-CMD-000454)
(Hon. Michael O’Keefe, Trial Judge)
(Submitted October 18, 2023 Decided February 22, 2024)
Anne Keith Walton was on the brief for appellant.
Matthew M. Graves, United States Attorney, and Chrisellen R. Kolb, Nicholas
P. Coleman, Marybeth Manfreda, and Brian M. Hanley, Assistant United States
Attorneys, were on the brief for appellee.
Before HOWARD and SHANKER, Associate Judges, and FISHER, * Senior Judge.
FISHER, Senior Judge: On January 6, 2021, while Congress was in session to
certify the results of the 2020 presidential election, a large crowd of supporters of
*
Associate Judge AliKhan was originally assigned to this case. Following
her appointment to the United States District Court for the District of Columbia,
effective December 12, 2023, Senior Judge Fisher has been assigned to take her
place on the panel.
2
then-President Donald J. Trump broke through several layers of fencing to enter
portions of the United States Capitol grounds that were closed to the public.
Appellant/defendant Micki Larson-Olson was part of the crowd but testified at trial
that she did not see any signs or fencing by the time she arrived. In the course of
their efforts to disperse the crowd, law enforcement officers approached appellant
and instructed her to leave multiple times, but she refused repeatedly and was
eventually carried off of the scaffolding on which she stood. She was later charged
with violating D.C. Code § 22-3302(b), which prohibits entering public property
without lawful authority or refusing to leave on the demand of one lawfully in charge
of that property. 1 See Abney v. United States, 616 A.2d 856, 858 (D.C. 1992). A
jury convicted appellant, and Judge O’Keefe sentenced her to 180 days of
1
D.C. Code § 22-3302(b) provides in full:
Any person who, without lawful authority, shall enter, or
attempt to enter, any public building, or other property, or
part of such building, or other property, against the will of
the lawful occupant or of the person lawfully in charge
thereof or his or her agent, or being therein or thereon,
without lawful authority to remain therein or thereon shall
refuse to quit the same on the demand of the lawful
occupant, or of the person lawfully in charge thereof or his
or her agent, shall be deemed guilty of a misdemeanor, and
on conviction thereof shall be punished by a fine of not
more than the amount set forth in § 22-3571.01,
imprisonment for not more than 6 months, or both.
3
incarceration. On appeal, she argues: (1) that the evidence was insufficient for the
jury to conclude that she lacked a bona fide belief in her right to be on the premises,
and (2) that the trial judge’s comments at sentencing created an appearance of bias,
warranting reversal of her conviction on due process grounds. We disagree and
affirm appellant’s conviction.
I. Factual and Procedural Background
The evidence presented at trial included the following: on January 6, 2021,
Congress held a joint session at the Capitol for the purpose of certifying the results
of the presidential election. In order to protect the joint session, significant portions
of the Capitol grounds were closed to the public that day. The United States Capitol
Police (“USCP”) built a multi-layer security perimeter around the Capitol comprised
of bike racks (thick metal barriers) and snow fencing (a “mesh-type fencing” often
placed behind bike racks to provide additional reinforcement and keep them from
separating). They also posted approximately 500 signs on the fencing stating
something to the effect of “[a]rea closed by order of the United States Capitol Police
Force.” The USCP increased its security presence in and around the Capitol, and
units of the Metropolitan Police Department (“MPD”) were staged nearby. MPD
officers had the same authority as USCP officers to make arrests or to remove people
from the Capitol grounds.
4
Of particular concern to law enforcement was an event referred to as the “stop
the steal” rally occurring in the Ellipse Park near the White House. Appellant
attended that rally because she believed that the 2020 election had been stolen (i.e.,
that President Trump had received more electoral college votes than his opponent
but had been denied victory through an illicit vote-switching scheme). President
Trump spoke at the rally sometime after noon. Appellant testified that President
Trump instructed the crowd “to peacefully go down to the Capitol[.]” A large group
of supporters, including appellant, walked toward the Capitol.
The demonstration got out of control shortly thereafter. Around 1:00 p.m.,
the crowd broke through the bike rack barriers and nearby MPD units were called in
for assistance. 2 Appellant testified that, by the time she arrived at the Capitol, she
did not see any bike racks or snow fencing. She stayed on the grass at first but
decided at some point to ascend the stairs on scaffolding, which was being
constructed in the lower west terrace area by the Capitol building to support the stage
for the upcoming presidential inauguration. She testified that she saw no signs or
bike racks as she made the climb and that there were no officers on or immediately
around the scaffolding to try to stop her. However, other testimony indicated that
2
Around 2:00 p.m., the Capitol building itself was breached, resulting in an
interruption to the Congressional proceedings. There is no evidence that appellant
ever entered the building.
5
one would have had to pass through at least three layers of security on the grounds
in order to reach the scaffolding.
MPD officers first encountered appellant around 5:00 p.m. on an upper level
of the scaffolding, waving two large flags and wearing a red, white, and blue spandex
costume that officers described as a “Captain America” outfit. By that point, law
enforcement officers were actively dispersing the crowd around the Capitol and most
people near appellant had left the scaffolding. The officers approached appellant
and directed her to leave several times. She refused and insisted repeatedly that she
was “not going anywhere.”
When verbal commands did not work, several MPD officers then physically
removed appellant. She resisted and shouted at the officers, wrapping her legs
around the scaffolding to prevent being moved. It took a total of six officers to carry
her down three to four flights of stairs as she continued to grab at various handholds
to impede their progress. As they carried her, the MPD officers continued to ask her
to get up and leave on her own, to no avail. She was carried outside a police line
and handed off to officers who were to escort her off of the Capitol grounds. She
was not arrested that day only because it “would have taken an officer off the street
for multiple hours to process that arrest” and law enforcement did not have “the
manpower” to make arrests while clearing the Capitol grounds.
6
Afterwards, appellant changed her profile picture on Facebook to an image
showing her on the scaffolding outside of the Capitol, waving two flags and wearing
her costume. She also posted a message on her Facebook profile stating that she had
shown her flags from a “balcony” and “got carried down many flights of stairs by
cops after getting tear gassed.” When contacted by an agent of the Criminal
Investigations Unit of the United States Attorney’s Office several days later,
appellant admitted that she had climbed the scaffolding, but insisted that no police
officers had attempted to stop her. However, she also admitted that it had taken six
officers to remove her.
Appellant was charged with unlawful entry on public property in violation of
D.C. Code § 22-3302(b). In a two-day jury trial in September 2022, jurors heard
testimony from multiple law enforcement officers and from appellant, and also
viewed video footage taken from body-worn cameras of officers’ efforts to remove
appellant from the scaffolding. Appellant testified that she believed she had a right
to be at the Capitol and on the scaffolding, but also admitted that police officers had
instructed her to leave. She claimed that the officers “had no authority” over her
because they were agents of what she believed to be an illegitimate government. 3
3
Appellant testified to her belief that the police officers ordering her to leave
were employed by “the United States corporation, . . . not the United States for
America republic[,] . . . because our nation was hijacked in 1871, and we were made
a corporation.” She added that we have “been under admiralty law ever since
7
At the close of evidence, Judge O’Keefe instructed the jurors that there were
two different ways in which the government could prove the offense charged:
(1) entry without authority or, (2) remaining without authority. He also instructed
them that, in order to convict, they had to be convinced beyond a reasonable doubt
that appellant did not have a good-faith belief of her lawful authority to enter or to
remain in the area after being directed to leave. The jury returned a unanimous guilty
verdict. Answering special interrogatories on the verdict form, the jurors
unanimously found both: (1) that appellant entered public property without
authority, and (2) that she remained on the premises of public property without
authority.
Judge O’Keefe held a sentencing hearing the next day. The government
requested a sentence of 180 days of incarceration, suspended as to all but 30 days,
followed by 12 months of unsupervised probation. Appellant requested 30 days of
incarceration, suspended in favor of six months of unsupervised probation. Defense
counsel argued that this request was consistent with sentences of probation and
house arrest that had been imposed in similar misdemeanor cases (prosecuted in
federal court) arising from the events of January 6, 2021. In response, Judge
O’Keefe asked if those defendants had gone to trial, and the prosecution represented
1871[,]” and that Ulysses S. Grant was the last president of the republic, until he
went through the British crown to get a loan that had to be paid off in gold.
8
that they had not. When defense counsel argued that appellant had not “den[ied]
ever once on the stand that she didn’t [sic] do what she did,” the judge responded by
asking “[t]hen why did she go to trial? Why did she waste two days of people
hav[ing] to take off of work?” Defense counsel responded that “she wanted to have
her right to go to trial and that’s what she did.”
After defense counsel’s presentation, appellant spoke on her own behalf and
told the judge, among other things, that the police had lacked jurisdiction over her,
that her military oath had “morally and ethically” prevented her from complying
with officers’ orders to leave, and then repeated her claim that the officers were
agents of a government with no authority over her. See supra note 3. In response,
Judge O’Keefe said “I think you might be slightly delusional about some things,
right?” He acknowledged that appellant had acted on her sincerely held political
beliefs but commented that “they’re not grounded in any facts.” The judge added
that appellant had her “belief of these various conspiracy things” and that it was
“pointless . . . to argue” with her.
Judge O’Keefe explained that appellant was “clearly . . . not remorseful,”
contrasting her with defendants who “came in, took a plea, [and] said they were
sorry[.]” He then said:
And instead of just coming in and accepting the
responsibility for it, you wasted the time—it’s not the
Court because we’re here every day to deal with folks and
we give everybody who wants a trial, they can have a trial.
9
But 14 citizens of the District of Columbia had to give up
two days out of their personal lives, had to take off from
work to come in and listen to this case which was a slam
dunk.
For all these reasons, he concluded that appellant did not “get any credit for taking
responsibility for [her] actions” and that probation was not an appropriate sentence.
The judge then imposed a sentence of 180 days of incarceration (none
suspended), nearly the maximum term authorized by statute, and ordered appellant
to pay a $50 assessment into the Crime Victims Compensation Fund. 4 Appellant
noted a timely appeal of her conviction.
II. Discussion
A. Sufficiency of the Evidence
“In reviewing for sufficiency of evidence, we must sustain the conviction
unless there is ‘no evidence upon which a reasonable mind could fairly conclude
4
While 180 days is the maximum sentence for a conviction under Subsection
(a) of D.C. Code § 22-3302 (unlawful entry on private property), appellant was
charged and convicted under Subsection (b) (public property), which authorizes a
maximum sentence of six months. We have explained that six months “will amount
to 181 to 184 days,” Turner v. Bayly, 673 A.2d 596, 596-97 (D.C. 1996), and that
Subsection (b) thus triggers the statutory right to a jury trial for offenses with a
maximum penalty greater than 180 days provided for in D.C. Code § 16-705(b).
Frey v. United States, 137 A.3d 1000, 1001 (D.C. 2016).
As for the assessment, $50 is the minimum amount the judge could have
imposed in this case. See D.C. Code § 4-516(a) (“[A]n assessment of between $50
and $250 for other serious traffic or misdemeanor offenses . . . shall be imposed upon
each person convicted . . . .”).
10
guilt beyond a reasonable doubt.’” High v. United States, 128 A.3d 1017, 1020
(D.C. 2015) (quoting Bolden v. United States, 835 A.2d 532, 534 (D.C. 2003) (per
curiam)). We view the evidence in the light most favorable to the government, and
the “[a]ppellant bears a heavy burden to convince the court to reverse a conviction
on sufficiency grounds.” Hughes v. United States, 150 A.3d 289, 305 (D.C. 2016).
Appellant has not met that burden here.
The jury found appellant guilty of violating D.C. Code § 22-3302, which
“prohibits the act of entering or remaining upon any property when such conduct is
both without legal authority and against the expressed will of the person lawfully in
charge of the premises.” Ortberg v. United States, 81 A.3d 303, 305 (D.C. 2013)
(quoting Leiss v. United States, 364 A.2d 803, 806 (D.C. 1976)). As explained
above, the jury convicted appellant on two distinct theories: (1) that she unlawfully
entered the Capitol grounds and (2) that she remained without authority after being
ordered to leave by law enforcement officers.
With respect to private property, “[t]he mere demand of the person lawfully
in charge to leave necessarily deprives the other party of any lawful authority to
remain on the premises.” O’Brien v. United States, 444 A.2d 946, 948 (D.C. 1982).
In cases involving public property under Subsection 22-3302(b), however,
remaining without authority requires the government to prove both “(1) that a person
lawfully in charge of the premises expressly order[ed] the party to leave, and (2) that,
11
in addition to and independent of the evictor’s wishes, there exist[ed] some
additional specific factor establishing the party’s lack of a legal right to remain.” 5
Id.; Carson v. United States, 419 A.2d 996, 998 (D.C. 1980). “Such factors may
consist of posted regulations, signs or fences and barricades regulating the public’s
use of government property, or other reasonable restrictions.” Carson, 419 A.2d at
998. This additional requirement for public property protects First Amendment
interests by ensuring that “an individual’s otherwise lawful presence is not
conditioned upon the mere whim of a public official.” Id. (quoting Leiss, 364 A.2d
at 806).
Under either an unlawful entry or a remaining without authority theory, the
government is required to prove that the defendant either knew or should have
known that her entry or continued presence was unwanted. See Ortberg, 81 A.3d at
308 (“[I]t is sufficient for the government to establish that the defendant knew or
should have known that his entry was unwanted.”); Criminal Jury Instructions for
the District of Columbia, No. 5.401(A-B) (5th ed. 2023) (“[The defendant] knew or
should have known that s/he was entering against that person’s will”; “S/he knew or
should have known that s/he was remaining on the property against the will of . . .
5
The statute was divided into two subsections to differentiate between private
and public property in 2009, see Ortberg, 81 A.3d at 306 n.3, but our case law
recognized this distinction prior to that amendment. See, e.g., O’Brien, 444 A.2d at
948.
12
the person lawfully in charge of the premises.”). 6 Accordingly, a defendant has a
valid defense if she entered or remained with a bona fide belief in her right to do so.
See Ortberg, 81 A.3d at 308-09. However, to support this bona fide belief defense,
the belief must not only be “based in the pure indicia of innocence,” id. at 309
(quoting Gaetano v. United States, 406 A.2d 1291, 1294 (D.C. 1979)), “but also
must be reasonably held.” Id.Appellant’s challenge to the sufficiency of the evidence focuses solely on the
jury’s rejection of her bona fide belief defense. She first argues that the evidence
undercut the jury’s conclusion that she lacked a good-faith belief that she was
allowed to enter the Capitol grounds and climb the scaffolding. She relies on her
own testimony and statements to law enforcement that no one tried to stop her, the
testimony of several officers regarding the lack of bike racks and snow fencing
directly blocking access to the scaffolding, and the fact that other people were
already present on the scaffolding when she climbed it.
6
In Wicks v. United States, 226 A.3d 743, 749-50 (D.C. 2020), we questioned
in dictum whether the “should-have-known” standard is consistent with the “new
approach for categorizing mens rea” articulated in our en banc decision in Carrell v.
United States, 165 A.3d 314 (D.C. 2017) (en banc). However, we resolved Wicks
without deciding that question. Wicks, 226 A.3d at 750. The standard jury
instruction was given without objection in this case and has not been challenged on
appeal. Moreover, appellant has not asserted that she did not know she had been
ordered to leave. As we explain below, she testified that she heard those orders, but
proudly defied them.
13
There is evidence in the record to suggest that the crowd might have knocked
down some of the barriers and overwhelmed law enforcement officers to the point
that there was little left standing in appellant’s way by the time she entered the
Capitol grounds and ascended the scaffolding. But appellant’s argument on this
point is directed almost entirely at the unlawful entry theory of conviction. Even
assuming arguendo that the evidence was insufficient to convict her on the unlawful
entry theory, there is ample evidence to support the jury’s independently sufficient
finding that appellant “remained on the premises of public property without
authority[.]”
First, there is overwhelming evidence that appellant was inside an area that
the USCP had closed to the public prior to the crowd’s arrival. The jury heard
testimony, including from appellant herself, that MPD officers repeatedly asked
appellant to leave and that she refused and had to be removed by force. 7 For
example, the following exchange occurred during her cross-examination at trial:
7
Because the Capitol grounds are public property, it was the USCP’s closure
of the grounds generally, not MPD’s specific instruction to leave, that established
appellant’s lack of a right to remain as a matter of law. See Abney, 616 A.2d at 859
(noting that an order by the Capitol Police Board was a sufficient independent factor
establishing a prohibition against remaining in closed portions of the Capitol
grounds). Appellant has not argued that the USCP’s order or public notice thereof
was deficient in any respect, or that the officers were required to explain the order
to her when directing her to leave. We therefore have no occasion to consider those
questions. See, e.g., Womack v. United States, 673 A.2d 603, 613 (D.C. 1996)
(declining to consider an issue not briefed on appeal).
14
Q: [Y]ou admit that officers told you to leave, right?
A: Yes, ma’am.
Q: And you admit that you didn’t listen to those officers, right?
A: Oh, I listened to them. I just wasn’t going to comply.
The jury also viewed body-worn camera footage of appellant refusing to leave,
shouting at the officers, and struggling and resisting as they were forced to carry her
down the stairs of the scaffolding.
Moreover, by the time appellant was ordered to leave, she would have seen
that officers were actively working to clear the area, deploying tear gas and other
conspicuous crowd-dispersal measures. Most other individuals near appellant left
when those measures were deployed. Finally, the jury was free to reject appellant’s
assertion that—in her roughly three hours on the grounds—she did not notice
multiple layers of bike racks, snow fencing, and signage that, even if knocked down
or not otherwise directly obstructing her entry, would have given a reasonable person
pause before disregarding an order to leave. In their totality, the circumstances
provide more than sufficient evidence for the jury to infer that appellant could not
have reasonably believed that she had a lawful right to remain in spite of the officers’
instructions to the contrary.
Appellant’s second argument is that, for various reasons—including that she
is a military veteran and that President Trump had directed the crowd to go to the
15
Capitol—she believed that she “had a duty to the Constitution to not obey the police
officers instructing her to leave.” However, the bona-fide belief defense does not
“exonerate individuals who believe they have a right, or even a duty, to violate the
law in order to effect a moral, social, or political purpose, regardless of the
genuineness of the belief or the popularity of the purpose.” Gaetano, 406 A.2d at
1294; see also Hemmati v. United States, 564 A.2d 739, 745 (D.C. 1989) (“It is no
defense to a charge of unlawful entry . . . that the crime was committed out of a
sincere personal or political belief, however genuine, in the rightness of one’s
actions.”). Likewise, “a mistaken belief in a constitutional law defense . . . will not
support a bona fide defense theory.” Abney, 616 A.2d at 863. Thus, appellant’s
political motives for violating the statute, as well as her belief that she was present
on the Capitol grounds in furtherance of a constitutional duty, supply no basis to
avoid criminal liability here. 8 Accordingly, we conclude that the jury’s verdict was
supported by sufficient evidence.
8
Appellant testified that President Trump told his supporters “to peacefully
go down to the Capitol[.]” It is far from clear that following this instruction required
her to unlawfully enter, or remain on, the Capitol grounds. Even if it did, we do not
understand appellant to be arguing that President Trump possessed the authority to
suspend the criminal law, an argument that has been rejected in other prosecutions
arising from the events of January 6, 2021. See, e.g., United States v. Chrestman,
525 F. Supp. 3d 14, 32 (D.D.C. 2021) (“No American President holds the power to
sanction unlawful actions because this would make a farce of the rule of law.”).
16
B. The Claim of Judicial Bias
Appellant separately argues that Judge O’Keefe’s comments at the sentencing
hearing warrant reversal of her conviction. We conclude that these statements do
not give rise to an appearance of bias affecting her conviction.
Pursuant to the Code of Judicial Conduct for the District of Columbia Courts,
a judge is required to “disqualify himself or herself in any proceeding in which the
judge’s impartiality might reasonably be questioned.” 9 Tarrio v. United States, 282
A.3d 86, 95 (D.C. 2022) (quoting Code of Judicial Conduct for the District of
Columbia Courts R. 2.11(A)). “‘Recusal is required if 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,’
i.e., if such an observer ‘could reasonably doubt’ the judge’s impartiality.” Id.(emphasis in original) (quoting In re M.C., 8 A.3d 1215, 1222 (D.C. 2010)). “[W]hat
a judge learns in his or her judicial capacity is a proper basis for judicial comment,
and the judge’s use of such information should not lead to disqualification.” Gibson
9
While citing the applicable ethical rules, appellant also frames her judicial
bias claim as implicating due process. Due process, however, “demarks only the
outer boundaries of judicial disqualifications.” Williams v. Pennsylvania, 579 U.S.
1, 13 (2016) (quoting Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 828 (1986)). The
Supreme Court has indicated that because the “appearance of impropriety” standard
adopted by most states and the District “provide[s] more protection than due process
requires, most disputes over disqualification will be resolved without resort to the
Constitution.” Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868, 888-90 (2009).
17
v. United States, 792 A.2d 1059, 1069 (D.C. 2002). A reviewing court may find a
“disqualifying appearance of bias” in circumstances where “a judge’s remarks . . .
are so unusual that a reasonable person could infer that the judge’s decision has been
predetermined or adversely affected by personal experiences[.]” Id.Appellant argues for the first time on appeal that Judge O’Keefe’s statements
at sentencing create the appearance of partiality and thus support her claim of
disqualifying judicial bias. 10 In particular, she highlights the judge’s repeated
comments on her decision to proceed to trial despite the weight of the evidence
against her, as well as his statement that some of her beliefs were “delusional” and
“not grounded in any facts.” She also argues that Judge O’Keefe’s imposition of the
near-maximum sentence shows that he “sought to punish [her] for what the judge
personally considered to be ‘delusional’ political beliefs.”
10
We have “been somewhat wary about finding a waiver or forfeiture of a
judicial disqualification claim from a litigant’s silence alone, at least in
circumstances where the objection would be tantamount to attacking the judge’s
integrity just before the judge was about to make a crucial discretionary ruling.”
Plummer v. United States, 43 A.3d 260, 269-70 (D.C. 2012); see also Belton v.
United States, 581 A.2d 1205, 1212 (D.C. 1990) (“[I]t would be expecting too much
to hold a defendant accountable for failing, in effect, to accuse a judge of bias at the
hearing just before the discretionary, virtually non-reviewable act of sentencing
takes place.”). However, we need not decide the applicable standard of review
because appellant’s claim fails under either plain error or de novo review. See In re
D.M., 993 A.2d 535, 540 (D.C. 2010) (declining to resolve whether plain error
review was appropriate where “there was no violation of the canons of judicial
ethics, plain or otherwise”).
18
Judge O’Keefe’s statements do not entitle appellant to the relief she seeks.
First, his comments must be understood in the context in which they were made.
Judge O’Keefe was both explaining the rationale for the sentence imposed and
responding to a specific argument made by defense counsel, that appellant’s
sentence should be lenient and comparable to sentences imposed in certain January
6 cases prosecuted in federal court. Underlying all of his statements was the stark
absence of acceptance of responsibility from all of appellant’s actions and statements
to the court. As Judge O’Keefe concluded, appellant was not entitled to “any credit
for taking responsibility for [her] actions” and he did not see “a point in putting
somebody . . . on probation when they’ve already indicated they haven’t learned
anything and they don’t intend on learning anything.”
Acceptance of responsibility (or the absence thereof) is a legitimate
consideration at sentencing, and, in making that determination, a trial judge may
appropriately take into account whether or not a defendant pleaded guilty. See
Leander v. United States, 65 A.3d 672, 676 (D.C. 2013) (explaining that “it is well
established that a defendant may be given credit at sentencing for a guilty plea,
particularly where the plea can be seen as indicating genuine acceptance of
responsibility for the offense committed”). “Implicit in this authority to extend
leniency to a defendant who pleads guilty must be the discretion to ‘withhold[ ]
leniency from others who appear less deserving.’” Coles v. United States, 682 A.2d
19167, 169 (D.C. 1996) (alteration in original) (quoting United States v. Jones, 997
F.2d 1475, 1478 (D.C. Cir. 1993) (en banc)). Thus, it was not inappropriate for the
judge to note appellant’s decision to go to trial and to contrast it with cases in which
other defendants “came in, took a plea, [and] said they were sorry[.]” While a judge
“must take care how they articulate that principle in connection with any case,”
Leander, 65 A.3d at 676, and ought not to refer to a trial as a waste of the jurors’
time, those comments at sentencing do not support a claim of judicial bias in this
context. Likewise, comments on her beliefs were relevant to the issue of acceptance
of responsibility given that, as the judge noted, those beliefs evidently fueled her
refusal to acknowledge that she had done anything wrong.
Most importantly, we do not see how Judge O’Keefe’s comments at
sentencing could lead a reasonable, informed observer to doubt the integrity of the
already-concluded merits phase of the trial. Judge O’Keefe was not the finder of
fact, nor could any comments made at sentencing have influenced the jury’s
deliberations the day before. 11 For these reasons, we do not find appellant’s reliance
on Mitchell v. Maynard, 80 F.3d 1433 (10th Cir. 1996), to be persuasive. In Mitchell,
the Tenth Circuit reversed in part a district judge’s dismissal (for the second time)
11
See United States v. Edmond, 52 F.3d 1080, 1101 (D.C. Cir. 1995) (per
curiam) (explaining that “a judge’s comments before the jury are subject to ‘special
scrutiny’ on a claim of bias” (quoting United States v. Dellinger, 472 F.2d 340, 386
(7th Cir. 1972))).
20
of an incarcerated plaintiff’s civil rights action, and concluded that “the interests of
justice would be best served by remanding this case with instructions that a different
judge be assigned.” Id. at 1438, 1450. In making the determination that future
proceedings should be assigned to a different judge, the court considered the
“appearance of impropriety” standard used in judicial recusal cases. Id. at 1450.
The court noted, among other things, that the judge had expressed his view that the
plaintiff’s claims were “frivolous” and a “waste of the jury’s time.” Id. Appellant
seizes on the similarity of this language, taken out of context, to some of Judge
O’Keefe’s comments during the sentencing hearing. In Mitchell, however, those
comments were made during the merits stage (during the plaintiff’s testimony to the
jury) and were part of a pervasive pattern of conduct throughout trial indicating the
judge’s hostility toward the incarcerated plaintiff and his attorney. See id. at
1448-50. That judge had ultimately granted judgment as a matter of law against the
plaintiff prior to jury deliberation, thus ending the case himself. Id. at 1449. Here,
by contrast, appellant’s guilt was decided by a jury that could not have been
influenced by the judge’s comments.
Since the comments at issue were all made after the jury’s verdict, appellant’s
argument would be better directed at a challenge to her sentence. The appropriate
remedy for an appearance of impropriety affecting only a judge’s sentencing
decision would be vacatur of the sentence and a remand for resentencing before a
21
different judge. See, e.g., Gibson, 792 A.2d at 1069-70, 1070 n.14 (remanding for
resentencing where, in light of the judge’s comments, an objective observer “might
have difficulty understanding that the sentence was not influenced by the judge’s
emotions about the death of his grandfather”); Belton v. United States, 581 A.2d
1205, 1214-15 (D.C. 1990) (remanding based on an apparent impropriety raised by
the judge’s reference to ex parte communications about the case prior to sentencing).
Here, the sole relief requested by appellant is reversal of her conviction.
Presumably, this is because appellant has already served her 180-day sentence of
incarceration in its entirety and was ordered to pay to the Crime Victims
Compensation Fund only the minimum assessment ($50) required by statute. See
D.C. Code § 4-516(a). Thus, resentencing would be futile and could afford no
meaningful relief to appellant at this point in time. 12
This is not to say that a judge’s statements after a guilty verdict is rendered
will never call the conviction into doubt. In Mejia v. United States, for example, we
reversed the defendant’s conviction at a bench trial based on the fact-finder’s
statement made after conviction but before sentencing. 916 A.2d 900, 902-03 (D.C.
2007). In Mejia, the judge’s comments indicated that she may have harbored
12
For the same reason (and because appellant has not raised this argument in
her brief), we do not consider whether the judge impermissibly penalized appellant
for exercising her right to a jury trial. See Coles, 682 A.2d at 169-70.
22
stereotypes about men from El Salvador relevant to the sexual offense for which she
had just found a Salvadoran defendant guilty. See id. Under those particular
circumstances, we held that “an appearance of bias to an informed, objective
observer might exist, and the integrity of the judicial process [was] compromised.”
Id. at 903. Here, however, Judge O’Keefe was not the finder of fact, and appellant
has not identified any comment or ruling during the trial that might have influenced
the jury’s evaluation of the evidence.
Finally, unlike Mejia, the comments at issue do not raise the appearance that
the judge might have been influenced by any extrajudicial biases or stereotypes from
the inception of the proceedings. Rather, his comments were based upon the
evidence presented at trial, including appellant’s own testimony and her statements
at sentencing. As the United States Supreme Court has explained:
The judge who presides at a trial may, upon completion of
the evidence, be exceedingly ill disposed towards the
defendant . . . . But the judge is not thereby recusable for
bias or prejudice, since his knowledge and the opinion it
produced were properly and necessarily acquired in the
course of the proceedings[.]
Liteky v. United States, 510 U.S. 540, 550-51 (1994). While some of those
comments were perhaps ill-advised, read in context, they reflect a trial judge’s
response to an unrepentant defendant’s request for leniency, and fall far short of
creating the appearance of “deep-seated . . . antagonism that would make fair
23
judgment impossible.” Id. at 555. Accordingly, we reject appellant’s claim of
judicial bias.
III. Conclusion
For the foregoing reasons, the judgment of the Superior Court is
Affirmed.