by Douglas Ankney

The U.S. Court of Appeals for the Seventh Circuit vacated the sentence of James Atwood because Judge Colin S. Bruce should have recused himself before imposing a sentence on Atwood because of Bruce’s ex parte communications with the prosecuting U.S. Attorney’s Office.

Atwood appeared before Bruce for sentencing after pleading guilty to three counts of federal drug crimes. The presentencing report calculated Atwood’s Guidelines range to be 188 to 235 months’ imprisonment. Bruce sentenced Atwood to 210 months in prison, saying “My sentence is driven by the [§] 3553(a) factors; and, in fact, if I have made a mistake in the guideline calculations, if I have made any mistake in a ruling on the guidelines, my sentence would still be the same.”

Then, in August 2018, a newspaper revealed that Judge Bruce had engaged in extensive ex parte communications with the U.S. Attorney’s Office (“Office”) about other cases while Atwood’s case was pending. Judge Bruce had worked as a prosecutor in that Office before he was appointed to the bench, and he had exchanged numerous emails with his former colleagues. For example, in one email, Bruce was frustrated that a novice prosecutor’s weak cross-examination had turned the case “from a slam-dunk for the prosecution to about a 60-40 for the defendant.”

In other emails, Bruce often wrote to prosecutors in the Office to congratulate them and thank them for persuading the Court of Appeals to affirm his decisions.

In many emails, Bruce cheered on Office employees and called them by nicknames. However, none of Bruce’s ex parte communications explicitly mentioned Atwood’s case. The Judicial Council of the Seventh Circuit (“Council”) reviewed two complaints filed against Judge Bruce and released its report to the public. In re Complaints Against Dist. Judge Colin S. Bruce, Nos. 07-18-90053, 07-18-90067 (7th Cir. Jud. Council May 14, 2019).

While the Council found no evidence that Bruce’s improper communications actually affected any of his decisions, the Council admonished him that his actions violated the Code of Conduct for U.S. Judges. The Council ordered that Bruce not be assigned any cases involving the Office until after September 1, 2019.

In light of Bruce’s conduct, Atwood argued in his appeal that he was entitled to resentencing before a different judge. The federal recusal statute requires a judge to recuse himself from “any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). The Government conceded that Bruce’s conduct gave the appearance that he was biased in the Government’s favor but argued his error was harmless.

To determine if Bruce’s violation of § 455(a) was harmless error, the Seventh Circuit looked to the three factors of Liljeberg v. Health Services Acquisition Corp.: (1) the risk of injustice to the parties in the current case, (2) the risk of injustice to parties in future cases, and (3) the risk of undermining public confidence in the judicial process. 486 U.S. 847 (1988). Regarding the first factor, the Court observed, “[t]he open-endedness of the § 3553(a) factors leaves ample room for the court’s discretion.” United States v. Warner, 792 F.3d 847 (7th Cir. 2015). That discretion invites the risk that a judge’s personal biases will influence or appear to influence the sentence he imposes. United States v. Smith, 775 F.3d 879 (7th Cir. 2015). The Court determined that upholding Atwood’s sentence created a real risk of unfairness to him. Conversely, the Government conceded that resentencing Atwood created little risk of unfairness to the Government. Consequently, the first factor weighed in favor of resentencing.

The Court turned to the second Liljeberg factor and opined that by enforcing § 455(a) in this case it “may prevent a substantive injustice in some future case” by encouraging judges to exercise caution in their communications. Thus, the second factor also weighed in favor of resentencing.

Finally, the Court considered the risk of harm to the public’s confidence in the impartiality of the judiciary and determined that ​
“[i]n sentencing, the most significant restriction on a judge’s ample discretion is the judge’s own sense of equity and good judgment. When those qualities appear to be compromised, the public has little reason to trust the integrity of the resulting sentence.”

The Court concluded that allowing Atwood’s sentence to stand would undermine the public’s confidence in the fairness of his sentence and in the impartiality of the judiciary. Since all three factors weighed in favor of resentencing, the Court concluded that Bruce’s error was not harmless.

Accordingly, the Court vacated Atwood’s sentence and remanded for resentencing by a different judge. See:

by Douglas Ankney

he U.S. Court of Appeals for the Seventh Circuit vacated the sentence of James Atwood because Judge Colin S. Bruce should have recused himself before imposing a sentence on Atwood because of Bruce’s ex parte communications with the prosecuting U.S. Attorney’s Office.

Atwood appeared before Bruce for sentencing after pleading guilty to three counts of federal drug crimes. The presentencing report calculated Atwood’s Guidelines range to be 188 to 235 months’ imprisonment. Bruce sentenced Atwood to 210 months in prison, saying “My sentence is driven by the [§] 3553(a) factors; and, in fact, if I have made a mistake in the guideline calculations, if I have made any mistake in a ruling on the guidelines, my sentence would still be the same.”

Then, in August 2018, a newspaper revealed that Judge Bruce had engaged in extensive ex parte communications with the U.S. Attorney’s Office (“Office”) about other cases while Atwood’s case was pending. Judge Bruce had worked as a prosecutor in that Office before he was appointed to the bench, and he had exchanged numerous emails with his former colleagues. For example, in one email, Bruce was frustrated that a novice prosecutor’s weak cross-examination had turned the case “from a slam-dunk for the prosecution to about a 60-40 for the defendant.”

In other emails, Bruce often wrote to prosecutors in the Office to congratulate them and thank them for persuading the Court of Appeals to affirm his decisions.

In many emails, Bruce cheered on Office employees and called them by nicknames. However, none of Bruce’s ex parte communications explicitly mentioned Atwood’s case. The Judicial Council of the Seventh Circuit (“Council”) reviewed two complaints filed against Judge Bruce and released its report to the public. In re Complaints Against Dist. Judge Colin S. Bruce, Nos. 07-18-90053, 07-18-90067 (7th Cir. Jud. Council May 14, 2019).

While the Council found no evidence that Bruce’s improper communications actually affected any of his decisions, the Council admonished him that his actions violated the Code of Conduct for U.S. Judges. The Council ordered that Bruce not be assigned any cases involving the Office until after September 1, 2019.

In light of Bruce’s conduct, Atwood argued in his appeal that he was entitled to resentencing before a different judge. The federal recusal statute requires a judge to recuse himself from “any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). The Government conceded that Bruce’s conduct gave the appearance that he was biased in the Government’s favor but argued his error was harmless.

To determine if Bruce’s violation of § 455(a) was harmless error, the Seventh Circuit looked to the three factors of Liljeberg v. Health Services Acquisition Corp.: (1) the risk of injustice to the parties in the current case, (2) the risk of injustice to parties in future cases, and (3) the risk of undermining public confidence in the judicial process. 486 U.S. 847 (1988). Regarding the first factor, the Court observed, “[t]he open-endedness of the § 3553(a) factors leaves ample room for the court’s discretion.” United States v. Warner, 792 F.3d 847 (7th Cir. 2015). That discretion invites the risk that a judge’s personal biases will influence or appear to influence the sentence he imposes. United States v. Smith, 775 F.3d 879 (7th Cir. 2015). The Court determined that upholding Atwood’s sentence created a real risk of unfairness to him. Conversely, the Government conceded that resentencing Atwood created little risk of unfairness to the Government. Consequently, the first factor weighed in favor of resentencing.

The Court turned to the second Liljeberg factor and opined that by enforcing § 455(a) in this case it “may prevent a substantive injustice in some future case” by encouraging judges to exercise caution in their communications. Thus, the second factor also weighed in favor of resentencing.

Finally, the Court considered the risk of harm to the public’s confidence in the impartiality of the judiciary and determined that ​
“[i]n sentencing, the most significant restriction on a judge’s ample discretion is the judge’s own sense of equity and good judgment. When those qualities appear to be compromised, the public has little reason to trust the integrity of the resulting sentence.”

The Court concluded that allowing Atwood’s sentence to stand would undermine the public’s confidence in the fairness of his sentence and in the impartiality of the judiciary. Since all three factors weighed in favor of resentencing, the Court concluded that Bruce’s error was not harmless.

Accordingly, the Court vacated Atwood’s sentence and remanded for resentencing by a different judge. See: United States v. Atwood, 941 F.3d 883 (7th Cir. 2019).

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