September 27, 2019
from the United States District Court for the Central
District of Illinois. No. 2:16-cr-20043 - Colin S. Bruce,
Wood, Chief Judge, and Kanne and Barrett, Circuit
Barrett, Circuit Judge.
Colin S. Bruce sentenced James Atwood to 210 months'
imprisonment for federal drug crimes. While Atwood's case
was pending, Judge Bruce improperly communicated ex parte
with the prosecuting U.S. Attorney's Office about other
cases. The federal recusal statute requires a judge to recuse
himself from any proceeding in which his impartiality may
reasonably be questioned. The government concedes that the
disclosure of Judge Bruce's ex parte correspondence
invited doubt about his impartiality in proceedings involving
the Office. Because of the judge's broad discretion in
sentencing, we conclude that Judge Bruce's failure to
recuse himself was not harmless error. We vacate Atwood's
sentence and remand his case for resentencing by a different
Atwood appeared before Judge Colin S. Bruce for sentencing
after pleading guilty to three counts of federal drug crimes.
The presentencing report calculated that Atwood faced a
Guidelines range of 188 to 235 months in prison for Counts
One and Two. Judge Bruce adopted the report's
calculations and sentenced Atwood to 210 months'
imprisonment on those two counts and 96 months'
concurrent imprisonment on the third count. At sentencing,
Judge Bruce explained, "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."
later came to light that while Atwood's case was pending,
Judge Bruce engaged in extensive ex parte communication with
the prosecuting U.S. Attorney's Office about other cases.
Judge Bruce had been a federal prosecutor at the same U.S.
Attorney's Office for many years before his appointment
to the judiciary. In August 2018, a newspaper exposed that
Judge Bruce had continued to communicate ex parte with his
former colleagues in the Office about one of their cases
before him. The newspaper published emails between Judge
Bruce and a paralegal in the U.S. Attorney's Office about
a criminal trial over which Judge Bruce presided. In the
emails, Judge Bruce expressed exasperation that the 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 ...." After learning of those emails,
the Chief District Judge removed Judge Bruce from all cases
involving the Office.
Office then disclosed additional emails, which revealed that
Judge Bruce had communicated ex parte with the Office over
100 times since taking the bench. Those communications mostly
addressed ministerial matters, but they often showed Judge
Bruce cheering on Office employees and addressing them by
nicknames. For example, Judge Bruce corresponded ex parte
with a secretary in the Office about scheduling for
Atwood's co-defendant, writing, "Roger-dodger. GO
SONCHETTA [a nickname for the secretary]!" And after a
pretrial conference, Judge Bruce reassured a prosecutor about
a filing miscommunication: "My bad. You're doing
fine. Let's get this thing done." At other times,
Judge Bruce wrote to prosecutors in the Office to
congratulate and thank them for persuading our court to
affirm his decisions. Judge Bruce never explicitly mentioned
Atwood's case in an ex parte email.
Judicial Council of the Seventh Circuit reviewed two
complaints filed against Judge Bruce. A Special Committee
examined the disclosures and conducted supplementary
interviews and a hearing. The Judicial Council released the
Special Committee's investigative report to the public
and adopted its recommendations in full. In re Complaints
Against Dist. Judge Colin S. Bruce, Nos. 07-18-90053,
07-18-90067 (7th Cir. Jud. Council May 14, 2019). The
Judicial Council found no evidence that Judge Bruce's
improper communications actually affected his decision in any
case but admonished Judge Bruce that his actions had breached
the Code of Conduct for United States Judges. Id. at
1. Following the Judicial Council's order, Judge Bruce
remained unassigned to any case involving the Office until
September 1, 2019. Id. He has since resumed
presiding over those cases.
light of Judge Bruce's conduct, Atwood argues that the
federal recusal statute entitles him to resentencing by a
different judge. Atwood raised recusal for the first time on
appeal, but we review his claim de novo because Judge
Bruce's ex parte communications were disclosed only after
sentencing. See Fowler v. Butts, 829 F.3d 788,
792-95 (7th Cir. 2016).
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 concedes that Judge Bruce's conduct gave the
appearance that he was biased in the government's favor
but argues that the error was harmless. To determine whether
a judge's violation of § 455(a) was harmless error,
we look to the three factors outlined in Liljeberg v.
Health Services Acquisition Corp.: (1) the risk of
injustice to the parties in this 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, 864 (1988).
first Liljeberg factor focuses on the fairness to
the litigants in this case. We begin with the potential
unfairness to Atwood of upholding his sentence. Judge Bruce
calculated Atwood's sentence based on the factors
outlined in 18 U.S.C. § 3553(a). As we have said before,
"[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, 855 (7th Cir.
2015). That discretion invites the risk that a judge's
personal biases will influence or appear to influence the
sentence he imposes. See United States v. Smith, 775
F.3d 879, 882 (7th Cir. 2015) (remanding for resentencing
because of the possibility that a ...