Case: 09-7572

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Date Filed: 09/28/2009

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IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA v. : : APPEAL NO. 09-7572

THOMAS BROMWELL, SR., et al. :

...oooOooo... GOVERNMENTS OPPOSITION TO INTERVENOR/APPELLANTS MOTIONS FOR RECUSAL AND EXPEDITED ORAL ARGUMENT

The United States of America, by its undersigned attorneys, herein opposes the intervenor/appellants Motion for Maryland Circuit Judge(s) To Recuse And/Or For The Chief Judge Of This Court To Specially Assign A Panel To Hear This Appeal, and the Motion For Expedited Oral Argument And/Or For The Opinion In This Case To Be Read From The Bench. In support of this Opposition, the government states as follows. INTRODUCTION William C. Bond, the intervenor/appellant, is a pro se litigant who sought to have certain records and proceedings unsealed in a District of Maryland criminal

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case that had been closed for more than a year. The district court denied that request. In connection with his appeal of that denial, Mr. Bond has moved for recusal of the Maryland Judges of this Court on the ground that they cannot be impartial due to their possible membership in the American College of Trial Lawyers and The Barristers Club, as well as their alleged familiarity or acquaintance with the trial judge and the defense attorneys who were involved in the case below.1 Mr. Bond has also moved for expedited oral argument and for the opinion to be read from the bench so that he can participate in the customary handshake at the end of the proceeding.... See Motion for Expedited Oral Argument at p. 2, 6. Mr. Bonds motions should be denied. PROCEDURAL BACKGROUND In October of 2005, a Special Grand Jury returned a 30 count Superseding Indictment, charging former Maryland State Senator Thomas Bromwell Sr., Mary Patricia Bromwell, and W. David Stoffregen with one count of RICO conspiracy, as well as assorted charges against the various defendants for mail and wire fraud, Hobbs Act extortion, false statement and tax violations. Defendant Stoffregen

According to Mr. Bond, the Barristers Club is a private association of attorneys and judges in Baltimore. See Motion for Recusal at 8.
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pleaded guilty in November of 2006, and trial of the Bromwell defendants was scheduled for the spring of 2007. On March 16, 2007, shortly before the trial was scheduled to begin, the trial court issued an order disqualifying and removing the attorneys for both of the Bromwell defendants from further participation in the case on account of irreconcilable conflicts of interest. In July of 2007, after obtaining new counsel, both of the Bromwell defendants entered guilty pleas. The district court sentenced the Bromwell defendants in November of 2007. A number of pleadings were filed and hearings were held under seal during the course of the case below. In March of 2007, the Baltimore Sun Company moved to intervene for the purpose of obtaining access to the sealed proceedings and pleadings. The trial court granted the motion to intervene and held a hearing on the motion for access on March 9, 2007. The trial court issued an order on March 16, 2007, the same day that it removed the defense attorneys from the case, in which the court unsealed certain pleadings in their entirety, unsealed some of the pleadings and transcripts of hearings in redacted form, and ordered that certain other pleadings and transcripts remain under seal. The Baltimore Sun Company did not appeal that ruling. Two years later, on March 9, 2009, Mr. Bond filed a motion in the court below, demanding that the trial court unseal the entire record in the case. The trial
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court denied that motion and this appeal followed. ARGUMENT I. There Is No Basis For Recusal In This Case. The essence of Mr. Bonds appeal in this case is that the trial judge wrongly refused to unseal the records below in order to protect the reputations of the disqualified defense attorneys. See Motion for Recusal at 5-6. According to Mr. Bond, the Maryland Judges of this Court cannot be impartial in hearing his appeal, because they are allegedly members of the same professional organizations as some or all of the disqualified defense attorneys, they share office space with the trial judge, and the disqualified defense attorneys have notoriety. See Motion for Recusal at 7-8, 11. These unfounded and vague allegations are insufficient to warrant recusal of the Maryland Judges in this case. Title 28, United States Code, Section 455(a) provides: [A]ny justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. Subsection (b) of that statute sets out five distinct additional circumstances requiring disqualification, including circumstances where a judge has a financial interest in the outcome or where the judges spouse or other close relative is likely to be a material witness in the proceeding. 28 U.S.C. 455(b)(5)(iv).
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In interpreting the statute, the inquiry is whether a reasonable person would have a reasonable basis for questioning the judges impartiality. United States v. Glick, 946 F.2d 335, 336 (4th Cir. 1991), quoting In re Beard, 811 F.2d 818, 827 (4th Cir. 1987). The test is an objective one. United States v. Cherry, 330 F.3d 658, 665 (4th Cir. 2003). A judge should not recuse himself [w]hen there is no reasonable basis for questioning a judges impartiality. Glick, 946 F.2d at 336. Recusal on the basis of a litigants unsupported, irrational, or highly tenuous speculation is not required. United States v. DeTemple, 162 F.3d 279, 287 (4th Cir. 1998)(citation omitted). Mr. Bond has failed to identify any rational basis upon which the Maryland Judges should recuse themselves from hearing this matter. Mr. Bond suggests that membership in the Barristers Club creates a basis for recusal, but he does not even identify by name the attorneys or the judges that he believes are members of that organization. Instead, Mr. Bond merely speculates that: several of the lawyers at issue in this case as well as several of the Maryland District Court Judges, if not Fourth Circuit Judges are members. Motion for Recusal at 8 (emphasis added). Mr. Bond similarly does not name the judges or lawyers that he claims are members of the American College of Trial Lawyers. Moreover, he does not allege any facts to show how membership in either organization would create a
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need for a judge to recuse himself in a case involving other members of the organization. These vague and factually unsupported allegations of membership in professional organizations clearly do not provide a reasonable basis for questioning a judges impartiality within the meaning of Section 455. Even assuming for purposes of argument that Mr. Bond had provided some sort of definitive, factual support for his claims of associations between the attorneys and the judges, it is well-settled that the mere fact that a judge may belong to the same professional organization or club as one of the litigants or attorneys on a case is not a basis for recusal. In Sierra Club v. Simkins Industries, Inc., 847 F.2d 1109 (4th Cir. 1988), vacated on other grds. by Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC) Inc., 149 F.3d 303 (4th Cir. 1998), for instance, the appellant claimed that the late Honorable Herbert R. Murray of the District Court of Maryland should have recused himself from the case because two years before he was appointed to the bench in 1971 he had been a member of the Sierra Club. The Court found that the trial judges prior association did not warrant recusal and did not call into question his impartiality. As the Court there observed: litigants are entitled to a judge free of personal bias, but not to a judge without any personal history before appointment to the bench. Id. at 1117. Similarly, in Glick, Judge Wilkins found that he was not required to recuse
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himself from reviewing a sentencing guideline issue on appeal even though he was then a member of the United States Sentencing Commission which promulgated the disputed guideline. 946 F.2d at 336-37. And in Doyle v. Arlington County School Board, 953 F.2d 100, 102-03 (4th Cir. 1991), this Court found that the district judge was not required to recuse himself on account of his former association with the school board, even though the board itself was a party in the litigation. See also Scarella v. Midwest Federal Sav. & Loan, 536 F.2d 1207, 1209 (8th Cir. 1976)(Allegations that Circuit Judges could not be impartial due to membership in state bar association and American Bar Association where those organizations were defendants in a separate class action and that judges had unique relationship with legal profession were too vague and insufficient for purposes of recusal statute). Likewise, a judges friendship or extra-judicial acquaintance with a party or witness in a matter is not enough to warrant recusal. Generally, judges are not required to recuse when they have a casual relationship with a victim, attorney, witness, or litigant appearing before the court. Courts have recognized that elevation to the bench does not and should not require withdrawal from society. United States v. Sundrud, 397 F.Supp.2d 1230, 1233 (C.D. Calif. 2005). See also Henderson v. Dept of Public Safety and Corrections, 901 F.2d 1288, 1295-96 (5th
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Cir. 1990)(sanctions proper against attorney who moved for recusal of judge based on fact that judge was friend of opposing counsel and opposing counsels father); United States v. Murphy, 768 F.2d 1518, 1537 (7th Cir. 1985)(In todays legal culture friendships among judges and lawyers are common. They are more than common; they are desirable.); United States v. Kehlbeck, 766 F.Supp. 707, 712 (S.D. Ind. 1990) ([J]udges may have friends without having to recuse themselves from every case in which a friend appears as counsel, party, or witness). Here, Mr. Bond suggests that there is some undefined degree of familiarity between the Maryland Judges of this Court, the trial judge, and the disqualified defense attorneys. See Motion for Recusal at 11. The fact that a Maryland Judge might be personally acquainted with the trial judge or the disqualified defense attorneys, however, would not cause a reasonable person to question that judges impartiality. Indeed, if mere knowledge or acquaintance with trial judges and attorneys was enough to warrant recusal, appellate judges would rarely, if ever, have the ability to hear cases arising from their own District; a plainly absurd result. In short, Mr. Bond has not identified any reason, other than pure speculation, for the Maryland Judges to recuse themselves or for the Chief Judge to appoint a special panel to hear this case. Mr. Bonds motion should be
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denied. II. There Is No Need For Expedited Oral Argument. In his second motion, Mr. Bond asks this Court for oral argument on an expedited basis because of the public interest and importance of this case. See Motion at p. 2, 5. The government is not aware of any particular urgency relating to the issues raised by Mr. Bonds appeal that would necessitate an expedited procedure or oral argument. While there is no dispute that the case below did generate a great deal of public interest, the Bromwell defendants were sentenced in November of 2007 and the case has been closed in the district court for more than a year. The district court issued its ruling on the Baltimore Sun Companys Motion for Access to the same sealed matters that are the subject of this appeal a full two years before Mr. Bond commenced his action in the court below. Mr. Bond has not identified any reason why resolution of this case would be any more important or more urgent than any of the many other cases pending before this Court at any given time. Finally, the government takes no position on Mr. Bonds alternative request for the issuance of an oral opinion from the bench so that he may participate in the customary handshake.

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CONCLUSION Wherefore, for the foregoing reasons, the government respectfully requests that this Court deny the intervenor/appellants Motion for Maryland Circuit Judge(s) to Recuse and/or For the Chief Judge of This Court to Specially Assign A Panel to Hear This Appeal, and that it deny the Motion For Expedited Oral Argument and/or for the Opinion in this Case to be Read From the Bench.

Respectfully submitted, Rod J. Rosenstein United States Attorney

By:_______/s/____________________ Kathleen O. Gavin Assistant United States Attorney 36 South Charles Street Fourth Floor Baltimore, Maryland 21201 (410) 209-4800

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 28th day of September, 2009, a copy of the foregoing Governments Opposition to Intervenor/Appellants Motions for Recusal and Expedited Oral Argument was both mailed, first-class, postage prepaid, and sent electronically to: William C. Bond, 309 Suffolk Road, Baltimore, Maryland 21218; and copies were sent electronically to: Barry J. Pollack, Esquire; Jeffrey Risberg, Esquire; and William B. Purpura, Jr., Esquire.

_____/s/____________________ Kathleen O. Gavin Assistant United States Attorney

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