June 1, 2018
from the United States District Court for the Southern
District of Indiana, Indianapolis Division. No. 1:16-cr-164 -
Richard L. Young, Judge.
Ripple, Kanne, and Brennan, Circuit Judges.
Child Protective Services removed Brent Swallers's
daughter from his custody in September 2015. Swallers
responded with a deluge of filings in the United States
District Court for the Southern District of Indiana. When
those filings were not resolved in his favor, Swallers
retaliated against the judges who ruled against him. He filed
"Common Law Liens" (each to the tune of $10, 000,
000) with the Marion County Recorder against all of the
then-sitting district judges in the Southern District of
Indiana except Judge Richard Young .
then filed a notice of his liens in an action as- signed to
Southern District of Indiana Judge Ta n ya Walt on Pratt.
Judge Pratt subsequently ordered the Marion County Recorder
to expunge any liens that Swallers had filed against Southern
District of Indiana Judges Lawrence, Barker, Mag- nusStinson,
Pratt, and Yo u n g . The order also stated that the U.S.
Attorney should arrange for the service of a separate
expungement order on the recorder of any other Indiana County
in which Swallers had filed a similar, invalid lien.
after, the government charged Swallers with filing a false
lien and encumbrance against a federal judge, in violation of
18 U.S.C. § 1521, and with possessing ammunition as a
felon, in violation of 18 U.S.C. § 922(g)(1). The
indictment for the false-lien charge alleged that Swallers
"knowingly file[d] and attempt[ed] to file … a
false lien and encumbrance against the real and personal
property of a federal district judge, including the Honorable
Jane MagnusStinson." (R. 26 at 1.) Swallers's
criminal case was assigned to then-Chief Judge Young .
December 2016, shortly after Judge MagnusStinson took over
for Judge Young as Chief Judge, Swallers moved for Judge
Young 's recusal. Swallers contended that Judge Young had a
direct interest in the case because he was named in
Swallers's liens (he was not) and because he was named in
Judge Pratt's expungement order. Judge Young construed
this pro se motion as one seeking his recusal under
28 U.S.C. § 455(a). Section 455(a) requires a
judge's recusal "in any proceeding in which his
impartiality might reasonably be questioned." Judge Yo u
n g concluded that his recusal was not required given the
attendant circumstances and denied the motion.
case proceeded, and Swallers eventually pled guilty to the
false-lien charge after entering into a plea agreement with
the government under Federal Rule of Criminal Procedure
11(c)(1)(C). In exchange, the government agreed to dis- miss
the felon-in-possession charge and agreed to a sentence of
time served with one year of supervised release. None of the
judges named in Swallers's liens submitted a victim
impact statement before Swallers's sentencing, and Judge
Young imposed the agreed-upon sentence.
now appeals and seeks to vacate his conviction on the ground
that Judge Young should have recused himself. For the reasons
that follow, we affirm.
decisions under '§ 455(a) are extremely fact driven
and "must be judged on their unique facts and
circumstances more than by comparison to situations
considered in prior jurisprudence."'" In re
Moody, 755 F.3d 891, 895 (11th Cir. 2014) (quoting
Nichols v. Alley, 71 F.3d 347, 351 (10th Cir.
1995)). As a general rule, though, if a well-informed,
thoughtful observer would perceive a significant risk that
the judge will resolve the case on a basis other than its
merits, the judge must recuse himself. In re United
States, 572 F.3d 301, 308 (7th Cir. 2009); In re
Mason, 916 F.2d 384, 386 (7th Cir. 1990).
case, two questions guide our analysis of whether Judge Young
needed to recuse himself. First, was Judge Yo u n g presiding
over a case in which he was a victim? And second, was Judge
Young presiding over a case in which a well-informed observer
would perceive a significant risk of bias from Judge Young
's relationship to the victims? The answer to both is
answer to the first question is straightforward. Though a
judge should not preside over a criminal case in which he or
she is the victim, see In re Nettles, 394 F.3d 1001,
1003 (7th Cir. 2005), Judge Young was neither a victim nor an
intended victim in this case. There is no indication Swallers
filed a lien against Judge Young or intended to do so. To be
sure, Judge Pratt's expungement order named Judge Young
as a beneficiary, but ...