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United States v. Swallers

United States Court of Appeals, Seventh Circuit

July 30, 2018

United States of America, Plaintiff-Appellee,
v.
Brent A. Swallers, Defendant-Appellant.

          Argued June 1, 2018

          Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:16-cr-164 - Richard L. Young, Judge.

          Before Ripple, Kanne, and Brennan, Circuit Judges.

          Kanne, Circuit Judge.

         Indiana 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 .

         Swallers 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.

         Soon 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 .

         In December 2016, shortly after Judge MagnusStinson took over for Judge Young as Chief Judge, Swallers moved for Judge Young 's recusal.[1] 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.

         The 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.

         Swallers now appeals and seeks to vacate his conviction on the ground that Judge Young should have recused himself.[2] For the reasons that follow, we affirm.

         I. Analysis

         "Recusal 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).

         In this 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 "No."

         Our 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 ...


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