US v. Jose Herrera-Valdez, No. 14-3534

Jose Gustavo Herrera-Valdez was prosecuted for illegal reentry after being deported. Before trial, he filed a motion to disqualify the District Court Judge from presiding over his prosecution because the judge served as the District Counsel for the Immigration and Naturalization Service (INS) at the time Herrera-Valdez was deported.  Because we find that the district court should have granted Herrera-Valdez’s motion to disqualify, we reverse his conviction.

B.  28 U.S.C. § 455(a) Recusal Required

28 U.S.C. § 455(a) requires that a “judge . . . shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” The purpose of the provision is to “promote public confidence in the integrity of the judicial process . . . [which] does not depend upon whether or not the judge actually knew of facts creating an appearance of impropriety, so long as the public might reasonably believe that he or she knew.” Durhan v. Neopolitan,875 F.2d 91, 97 (7th Cir. 1989). Under § 455(a), all a party has to show is that a judge’s impartiality might be questioned by a reasonable, well-in-formed observer. See United States v. Hatcher, 150 F.3d 631, 637 (7th Cir. 1998). The test for appearance of partiality is whether an objective, disinterested observer fully informed of the reasons that recusal was sought would entertain a significant doubt that justice would be done in the case. Pepsico, Inc. v. McMillen, 764 F.2d 458, 460 (7th Cir. 1985).

28 U.S.C. § 455(b) contains specific circumstances which mandate the recusal of a judge. § 455(a) is generally understood to encompass the situations outlined in § 455(b), but also a broader range of situations in which impartiality exists, but its appearance is compromised. Relevant to our case, § 455(b)(3) instructs that a judge “disqualify himself . . . [w]here he has served in governmental employment and . . . participated as counsel [or] adviser . . . concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.” 

We do not question the District Court Judge’s impartiality in presiding over Herrera-Valdez’s illegal reentry case. But a judge’s actual bias is not dispositive of the question of his disqualification under § 455(a), and observers outside of the judicial process “are less inclined to credit judges’ impartiality and mental discipline than the judiciary itself will be.”

We conclude that a reasonable, disinterested observer could assume bias from the fact that the judge presiding over the defendant’s prosecution for illegal reentry was the same person who ran the office that pursued, and succeeded in obtaining, the removal order that is the source of his current prosecution.

For the foregoing reasons, we REVERSE the defendant’s conviction and direct the case to be reassigned to a new judge.

By:  Chicago Federal Criminal Attorney Michael J. Petro

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