In Re Marion S. Barry , 946 F.2d 913 ( 1991 )

ORDER

PER CURIAM.

Upon consideration of the emergency motion for stay and the opposition thereto and the emergency petition for writ of mandamus and the responses thereto, it is

ORDERED that the emergency petition for writ of mandamus be denied. Assuming a petition for writ of mandamus is the proper vehicle for obtaining review of the district court’s refusal to recuse, petitioner has not made a “clear and indisputable” showing of entitlement to such relief. See Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 289, 108 S.Ct. 1133, 1143, 99 L.Ed.2d 296 (1988).

Defendant’s motion for recusal was based on remarks made by the district judge at Harvard Law School after the original sentencing, in which he evidently asserted that he had never seen a stronger government case, that some jurors had their own agendas and would not convict under any circumstances, and that some jurors were determined to acquit regardless of the facts. The contention is that these remarks call for recusal under 28 U.S.C. § 455, which requires a judge to recuse himself “in any proceeding in which his impartiality might reasonably be questioned” or where “he has a personal bias or prejudice concerning a party.” There is, of course, no doubt (1) that one determines a violation completely without regard to whether there exist adequate independent grounds for the judge’s rulings, (2) that the appearance-of-partiality test is an objective one (whether an informed observer would reasonably question the judge’s impartiality), and (3) that application of the test is wholly independent of whether the judge intends to act with bias or prejudice. In all these respects we agree entirely with the Dissent. See Dissent at 915-916, 916, 917-918.

As defendant recognizes, a trial judge is entitled to form his own judgment as to the conduct of a defendant and to take that judgment into account in sentencing. See, e.g., United States v. Campbell, 684 F.2d 141, 152-53 (D.C.Cir.1982) (pre-guidelines); Sentencing Guidelines §§ 1B1.3-.4 & Commentary (in determining sentencing range judge may consider conduct not an element of offense of conviction; in sentencing within range or departing from range, judge “may consider, without limitation, any information concerning the background, character and conduct of the defendant, unless otherwise prohibited by law”). A judge’s candid reflections of what he has inferred from the trial about the defendant’s character and conduct simply do not establish bias or prejudice.

Defendant stresses, however, that the judge’s remarks were extrajudicial in two senses: first, they were delivered in an extrajudicial capacity, and second, they relied (in part), he believes, on information coming from extrajudicial sources. But while the district judge’s extrajudicial voicing of his views of the jury verdict may be a violation of the Code of Conduct for United States Judges, see Canon 3(A)(6) (1990) (“A Judge should abstain from public comment about a pending or impending proceeding in any court....”), any such violation does not necessarily create an appearance of personal bias or partiality such as to require recusal under 28 U.S.C. § 455. See United States v. Haldeman, 559 F.2d 31, 132-36 (D.C.Cir.1976) (en banc) (per curiam); see id. at 136 (an extrajudicial remark is “disqualifying only if it connotes a fixed opinion—‘a closed mind on the merits of the case.’ ”).

As evidence that the judge’s views arose in part from extrajudicial sources, defendant cites the judge’s observation in rejecting the motion for recusal that his remarks were “confirmed by public reports of interviews of several jurors appearing post-trial in the local press.” To the extent that this shows reliance on extrajudicial sources, it appears to be limited to the judge’s views of the jury, not the defendant. In any event, insofar as defendant assumes that any reliance on an extrajudicial source automatically establishes that the judge’s opinion constitutes bias, our case law is clearly against him. See SEC v. First City Financial Corp., 890 F.2d 1215, 1221-22 (D.C.Cir.1989) (though judge’s disparagements of defendants cited newspaper articles in support, court applies Haldeman test). It is

FURTHER ORDERED that the emergency motion for stay be dismissed as moot.

The dissenting opinion of Judge Edwards is expressed in a separate statement appended to this Order.