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7/27/2019 GOVERNMENTS OPPOSITION TO INTERVENOR/APPELLANTS MOTIONS FOR RECUSAL AND EXPEDITED ORAL ARGU

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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.

:

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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

Case: 09-7572 Document: 23 Date Filed: 09/28/2009 Page: 1


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According to Mr. Bond, the Barristers Club is a private association of1

attorneys and judges in Baltimore. See Motion for Recusal at 8.

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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. Mr. Bond has also moved for expedited oral argument and for1

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



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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 (4 Cir. 2003). A judge should not recuse himself [w]henth

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 (4 Cir. 1998)(citation omitted).th

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 (4 Cir. 1998),th

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

(8 Cir. 1976)(Allegations that Circuit Judges could not be impartial due toth

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 (5 th



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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 (7 Cir. 1985)(In todays legal

th

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 Attorney36 South Charles Street

Fourth Floor

Baltimore, Maryland 21201

(410) 209-4800



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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 28 day of September, 2009, a copy ofth

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
