Submitted December 3, 2014.
Appeal from the United States District Court for the Central District of Illinois. No. 4:08-cr-40067-SLD-JEH-1-- Sara Darrow, Judge.
For United States of America, Plaintiff - Appellee: Jason M. Bohm, Attorney, Office of The United States Attorney, Urbana, IL; Kirk Schuler, Attorney, Office of The United States Attorney, Rock Island, IL.
For Jesse A. Smith, Defendant - Appellan: Johanna M. Christiansen, Attorney, Office of The Federal Public Defender, Peoria, IL.
Before POSNER, ROVNER, and TINDER, Circuit Judges.
Posner, Circuit Judge.
In an opinion reported at 770 F.3d 653 (7th Cir. 2014), we considered the appeal of Jesse Smith from a sentence of 15 months in prison imposed on him by Judge Darrow for violating conditions of supervised release. While remarking that the defendant's current profile was not that of a dangerous criminal and expressing doubt about the utility of his continued imprisonment, we indicated that we would have affirmed Judge Darrow's judgment had we not discovered in the record a document (called a Violation Memorandum), mentioned by neither party, dated February 18, 2011, that had been prepared by the probation service shortly before the defendant had been sentenced by another district judge for an earlier violation of supervised release. The document states that the assistant U.S. attorney handling the revocation case was Sara Darrow, who six months later was confirmed as a federal district judge. The docket sheet in this case states that she had appeared before the judge handling the defendant's first violation on January 7, 2011, for the initial hearing on that alleged violation. There is no indication that she had appeared at any subsequent hearing, or had had any further involvement with the defendant until the present case. One of the government's appellate lawyers noticed the reference on the docket sheet to Darrow's participation in the earlier revocation hearing as an assistant U.S. attorney and asked one of the defendant's lawyers whether he wanted to make an issue of it on appeal. (The issue had not been raised in the district court.) The lawyer declined. We just happened to come across the Violation Memorandum, which is part of the record in this case, and having read it became concerned there might be an issue of recusal.
The hearing at which Judge Darrow sentenced the defendant was held on May 29, 2014. We did not know, when we were considering the defendant's appeal from the sentence, how extensive her participation in the 2011 hearing had been, or whether at the hearing this past May at which she had sentenced the defendant she had had any conscious or unconscious memory of the earlier hearing. We could not exclude the possibility that the sentence had been influenced by a recollection by the judge, perhaps prompted by the defendant's history of violations of supervised release prepared by the probation service, that she had participated in the defendant's first revocation hearing.
Section 455(b)(3) of the Judicial Code provides that a judge " shall ... disqualify himself ... where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy." " Proceeding" is defined to include " pretrial, trial, appellate review, or other stages of litigation." 28 U.S.C. § 455(d)(1). For purposes of this case, at least, " proceeding" includes the entire sequence of the defendant's violations of supervised release, since the judge in sentencing the defendant relied in part on his earlier violations.
Because the record in this case was inadequate to enable us to determine whether Judge Darrow had violated the Judicial Code, we decided to suspend our decision of the appeal pending receipt from the parties of supplemental briefs, which we asked them to file, addressing the applicability of section 455(b)(3) to her participation in this litigation. Those briefs have now been submitted and the issue of disqualification is ripe for resolution.
The government acknowledges that Judge Darrow indeed violated the Judicial Code by failing to disqualify herself; the language of the statute is clear and clearly applicable to her. The defendant's brief acknowledges his counsel's " strategic decision" not to complain about the violation on appeal, but argues that it was only after our opinion on the merits of the appeal expressed doubt about the severity of the sentence (while concluding that Judge Darrow had not committed a reversible error in sentencing the defendant to 15 months in prison) that it occurred to counsel that the judge might have been influenced, consciously or unconsciously, by her earlier prosecutorial involvement with the defendant. Ordinarily a decision not to raise an issue is a waiver, barring further judicial review. However, a ground for disqualification that is specified in 28 U.S.C. § 455(b)--and the possible ground in this case is, as we noted, specified in section 455(b)(3)--cannot be waived. 28 U.S.C. § 455(e).
The government acknowledges as we said the judge's statutory violation but argues that it was harmless--that her involvement in the case as a prosecutor " was minimal" : " she appeared only once, and her appearance then was strictly pro forma ; it involved virtually no substantive decision-making. At most, she requested temporary detention pending a detention hearing, which she did not handle." But the government does not indicate the source for its description of her involvement. The revocation hearing in which she participated occurred four years ago. There appears to be no written record of what she did or said or heard during the ...