Professional Documents
Culture Documents
United States v. Pandey, 1st Cir. (1992)
United States v. Pandey, 1st Cir. (1992)
United States v. Pandey, 1st Cir. (1992)
No. 91-2219
UNITED STATES,
Appellee,
v.
VIJAI B. PANDEY,
Defendant, Appellant.
__________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Frank H. Freedman, U.S. District Judge]
___________________
___________________
Before
Torruella, Cyr and Stahl,
Circuit Judges.
______________
___________________
Dr. Vijai B. Pandey on brief pro se.
___________________
A. John Pappalardo, United States Attorney,
___________________
and C. Jeffrey
__________
__________________
__________________
Per Curiam.
__________
his conviction and
sentence.
Pursuant to a
district
court
a medical
sentencing
his
facility.
The
appellant
to
range of 4 to 10 months.
nine-month sentence
plea agreement,
sentenced
se from
on November
the guideline
Therefore,
vacate his
and
his
guilty
plea;
criminal
dismiss
the
proceedings against
indictment;
remove
the district
and
bring
court judge
who
We affirm.
Background
__________
On October 2, 1990, appellant was charged in a one-count
indictment
The indictment
banks of
inflate
approximately $24,000
his
bank
account
through a scheme
and
1344.
then
make
to falsely
transfers
and
144
455.
and
Appellant
potential personal
bias
alleged
that
or prejudice
the
against
judge had
me"
"a
because
The
affidavit attached
to the
motion referenced an
"Exhibit A"
Bar
Overseers.
The
district
court
denied
the
noted that
'A' was
not
the government
guilty to
the charge and the government agreed that it would not make a
specific sentencing recommendation.
agreement
stated
Guidelines,
that
the
relevant
Sentencing
"[u]nder
In
fact,
U.S.S.G.
2B1.1
Guidelines Section
sets forth
the
base
2F1.1,
guilty,
are contained
-3-
the offense to
at U.S.S.G.
also
ten.
corrected
The
erroneous citation
to
2B1.1
was
later
pre-sentence report
(PSI) originally
calculated a
$20,000.
Following
$10,000,
months.
an
was amended
resulting in
Before
objection
by
to indicate a
a guideline
sentencing,
appellant's
total loss
range
another
of 6
guideline
range was
reduced
to 4
to 10
to 12
objection
of
was
applicable
months.
At
the
recommended that
the sentence be
served in
diabetes,
chronic
fatigue syndrome
ailments.
Fennell had
appellant
by changing
and his
other physical
Fennell, removed on
conspired with
the plea
the grounds
the government
agreement to
to deceive
reference the
neglected
withdraw.
his case.
The
sentence, Fennell
court denied
Attorney Fennell
both motions.
also
moved to
Following
the
court.
Appellant filed a
notice of
-4-
appeal, a motion to
for
release
Appellant
pending
then filed
court.
a motion to
ruled on
his
The
motions
se motion
We denied the
were
denied.
for release
pending
motion.
motion for
release
a motion
Appellant
Circuit judges
pending appeal
from
motion.
Discussion
__________
Appellant raises
the following
appellant's
seven issues on
actions by
motion for
appeal, objecting
1) denial
failure to
to
of
comply with
acceptance
of appellant's guilty plea when such plea was not knowing and
voluntary;
of
4) denial of motion to
motions to
stay execution
of sentence
and
for release
pending appeal;
the Eighth
6) sentencing
Amendment; and 7)
of appellant in
violation of
of Conduct
Appellant
district court
Those
statutes provide, in
relevant part, as
follows:
144.
Whenever a party to
district court makes and
any proceeding in a
files
a timely and
-5-
the
or
this
court
has
"[d]isqualification under
determination of
Chantal,
_______
455(a),
902
"is
1023
Id.
___
The
(1st
an independent
and
following
explained,
bias/prejudice in fact."
__ ____
F.2d 1018,
however,
144
recently
United States v.
_____________
Cir. 1990).
basis
for
Section
mandatory
no determination of bias
objective
standard applies
455(a):
-6-
in
to
United States
______________
v. Lopez,
_____
944 F.2d
33,
37 (1st
Cir. 1991)
(quoting United States v. Cowden, 545 F.2d 257, 265 (1st Cir.
_____________
______
1976), cert. denied, 430 U.S. 909 (1977)).
_____ ______
The
district
himself is
court
judge's
reviewable only
decision
for abuse of
not
to
recuse
discretion. United
______
not
in
finding
that
the
district court
bias in fact.
judge
Appellant alleges
exhibited
actual bias
and
appellant's
affidavit
violating federal
accompanying his
motion,
and by
appellate procedure
unsupported
of actual bias.
allegations do
not constitute
son-in-law,
a member
of
the
bar, apparently
was
is included among
court.
It is
referred
judge
to
to it in his motion.
as appellant
recuse that "The exhibit marked 'A' was not enclosed with
the affidavit."
-7-
also baseless.
not
violate any
rules of
to make
there
is
no
455(a).
Overseers
showing
1036
bias
of
requires
actual
recusal even
bias
if
the
reasonably be questioned."
accompanying his
motion
where
judge's
28 U.S.C.
an
to recuse
are meant
"provide
the actual
a showing of
455(a), however,
"impartiality might
appellate procedure.
Section
criminal or
Giorgi, 840
______
The question is
to
of lack
F.2d 1022,
objective, knowledgeable
member
of
the
doubting the
as a
is allowed considerable
to recuse himself
rational conclusion
unless it "cannot
supported by
be
reasonable
that the
himself
was
accompanying
district judge's
not
erroneous.
we
decision not
to recuse
Appellant's
affidavit
-8-
[appellant] and
Goodman,
wherein
sent
[the judge's]
the
letter
"past experience
son-in-law, Attorney
attached
hereto
as
attached
letter (not
marked
"Exhibit
A") was
It stated
January,
percentage
1988
and
that
that
of the fee he
appellant met
Goodman
Attorney
offered
received in any
to
Goodman in
pay
him
cases referred to
him by appellant.
Goodman offered
medical
claims and
reports
that Attorney
preparation of certain
in connection
with the
cases.
Goodman of
sending
his clients
to "his
accused
favorite
bills
which actually comes out from client's share and enhances his
cut
considerably,"
associating
Attorney
neglecting
Goodman
settlements
of
is
without
his
clients
and
of
"into
making
getting
the
quick
optimum
money
amount
by
for
quick
the
clients."
Appellant
before he
filed
this
complaint
to recuse.
more
than
He does
two years
not allege
-9-
took any
Goodman in
response to
the letter.
To
district judge
need
accusations would
resentment towards
his
certainly
offensive,
Board of
judge to
appellant that
sentencing discretion
illogical complaint
the
cause the
in an
he could
Bar Overseers,
not
unbiased manner.
the unsubstantiated
feel
and
often
resulting action
would not
appear to
by
test the
allegations
of
misconduct
against
filed
almost
he requests
against the
that
criminal proceedings
be
brought
In
doubtful that
appellants' filing of a complaint against the judge's son-inlaw would cause a reasonable member of the public to question
the judge's impartiality. See
___
equal,
the
more
common
-10-
"other things
potentially
biasing
to a knowledgeable observer as
himself.
Compare
_______
In re Olsen,
____________
20 B.R. 206, 210-11 (D. Neb. 1982) (holding that it was error
for
officials,
creating
an
appearance
of
possible
lack
of
(S.D.N.Y. 1988)
recuse
himself
from
(explaining that
the
case because
district
he
judge will
"resent[s]
the
not recuse
appellant
appropriate
requests
remedy.
this
court
"[T]he
to
do) would
Supreme Court
conviction (as
not
has
be
the
said,
in
respect
to
judicial
disqualification
actions
already
taken,
statute,
28
any
particular
that the
statute
prescribes
nor
prohibits
violation
of' the
duty
U.S.C.
F.2d at
that
455,
remedy
the
'neither
for
imposes." In Re
______
973 (quoting
Liljeberg v.
_________
-11-
has
held that
the
following
The
considerations
violation of
will produce
injustice
in
denial of relief
cases, and
the
risk
of
is very little
at
that stage,
where
the judge's
role
is
limited (in
comparison to his
the acceptance
in other cases.
a
guilty
role in a trial).
Nor could
produce injustice
plea
(even
impartiality on
if
the part
there
of the
was
an
appearance
of
be
limited role
of the judge
in the
guilty
plea process.
Even
under the
have discretion
In
this case,
months,
to
sentencing guidelines,
the judge
does
of the proceedings.
sentenced appellant
to 9
10 months).
sentence
Appellant
was ordered to
Therefore, he has
-12-
presumably
already completed
his
sentence and
he has
not
in not
recusing himself.
to disqualify
if he had,
appellant would
Fed.
meritless.
a copy
Crim.
32
when
of the PSI
required
P.
at least
by Fed. R. Crim.
him
sentencing, as
P. 32(c)(3)(A).
At the November
are
and
appellant stated
Crim.
P.
allegations
32(c)(3)(D) by
of inaccuracies
not
making
contained
in
finding as
the
report
the
PSI
at
the
sentencing hearing,
changes
probation department
attorney, with
the result
hearing.
that
-13-
to
and
No such
no objections
Prior
made
to
the
several
to objections by appellant's
the recommended
sentencing
guideline range
months.
At
to 14 months to
appellant's attorney,
and
responded that
Attorney Fennell
appellant
raise any
objections
4 to 10
court asked
to the
not.
PSI
Nor did
when given
an
opportunity to speak.
Appellant's final claim
and disobediently
defendant
of his
appeal
to appeal.
appellant filed
timely manner on
the sentence.
right to
November 25,
This was
his
The
to advise
harmless error,
notice of
appeal in
day that
a
the
Guilty Plea.
_____________
Appellant
claims
that
the
by Attorney
government.
He
reference in
the
Appellant
contends
Fennel and
refers to
the
plea agreement
that the
the
guilty
change of
2B1.1
plea
defaced
attorney for
attorneys'
from
plea
the
the
to
2F1.1.
was not
entered
known of
plea.
-14-
Assuming
that,
as
he
error, the
appellant
error was
appellant's base
contends,
harmless.
sections,
10 under the
of the loss
base
increased by 6 for
offense
level
of
would
not
notify him
Under both
assumptions then in
was
Under
have
been
Under
is
merely
will
estimate
be applied.
The
of
how
the
in the plea
sentencing
plea agreement
clearly
than
base offense
level
in the
under the
of calculating
guidelines.
In
original
PSI in
reliance upon
2F1.1,
-15-
comment,
n.
7(b).
Therefore, any
error in
not informing
the
plea agreement.
In the
for the
plea
government
agreement the
sentencing
hearing, the
government
fulfilled
this
promise.
Although
several
aggravating
the attorney
for the
circumstances,
government raised
including
appellant's
as a
make
government
specific
stated
at
sentencing recommendation.
the
guilty
plea
the agreement.
to
Contrary
be
the
"[t]he
that that
As
hearing,
Or
attorney agreed
time
was a proper
whether or
Appellant's
characterization of
to appellant's
that
any
time
should be
served.
agreement did
-16-
final contention
agreement is that
with respect to
the plea
Fed. R. Crim.
read to
the
defendant in
open
court.
Rule
11(e)(2)
disclosed.
government's description
accurate one.
of the
Rule 11(e)(2)
United States v.
_____________
Daniels, 821
_______
(Crim. R. Civ. P.
does
plea agreement
not require
F.2d 76, 80
was an
more.
(1st Cir.
See
___
1987)
inform trial
to
the failure
2F1.1, even
to
if a
disclose the
violation of
this change.
-17-
Rule 11,
were affected by
to become informed of
change from
would
No
above, the
correction
of
the
guidelines
would
misstated
not
have
section
of
increased
the
the
sentencing
estimated
base
hearing and
four days
Attorney
attorney
Fennell
prior to
his sentencing
conspired with
the
without appellant's
knowledge,
by failing to
failing to
and
were
government
2F1.1)
phone
Subsequent to his
2B1.1 to
that he
had
return appellant's
make objections
to the
PSI as
requested by appellant.
On November 21, 1991, the
on
appellant's motion
motion to
withdraw.
to remove
After the
and on
Attorney Fennell's
reasons
court
vehemently"
concluded
on
that
appellant's
Attorney
behalf
Fennell
and
had
had
"argued
succeeded
in
sentence
in
the
PSI.
He
further
concluded
that
his sentence
to be
section,
2F1.1.
guidelines
reduced under
the
by
the appropriate
Following its
sentencing of
-18-
appellant,
the district
court
granted
Attorney
Fennell's
motion to withdraw.
On appeal,
assistance of
Pandey argues
that he was
denied effective
denial of his
to sentencing.
We
review the
district court's
cert. denied,
_____________
479
U.S.
846
(1986).
In
an
filed the
motion to
remove his
who's
has a right to
attorney on
represented
by
an
appointed
in terms of delay."
United States v.
_____________
945, 952 (1st Cir. 1989), cert. denied, 493 U.S. 1094 (1990).
____________
To
have
appointed new
counsel at
this
late stage
of the
The
district
court's
inquiry
into
the
remove was
filed.
adequacy
of
The district
court considered
the
motion to
withdraw.
movants
to
district
judge's
representation of
present their
Fennell's motion to
positions and
to
knowledge
appellant in the
of
the
attorney's
proceedings before
him,
" 2B1.1"
does
appellant's claims
refused to
not
constitue
cause.
file requested
good cause.
good
Attorney
objections to the
Nor
do
to the
months.
Attorney
At the
hearing
Fennell explained
on
his
months to 4 to
motion to
his failure to
withdraw,
make all
of the
of
the
objections
requested
by his
failure to make
client
did
not
at 92.
At
the
hearing on
his
motion to
withdraw,
the PSI
alleging misconduct
or criminal conduct
by the
He stated:
able
to
overcome
sufficiently to provide
at sentencing.
his
differences
with
appellant
representation
to
-21-
the
Probation
Department's attention
positively
in
presented
mitigating
sentencing
hearing,
minimize
the
Attorney
his poor
succeed in
court was
favor."
including
of
that
should result
confinement.
at
acted upon
length
appellant's
the damage
argued
been
Attorney
circumstances
relatively small
health
rather than
client's
extent
Fennell
remorse, the
extent
your
has
from
Fennell
at
attempts
his
the
to
wrongdoing,
appellant's
demonstrated
amount of money
involved and
in a
sentence of
Although Attorney
probation
arguments to the
attorney
. . . , I'm going
syndrome
that you
prison for
have
prevents me
from
going to
ordering you
recommend that
to
you
district court
refusal to grant
of counsel by
his motion to
remove
his attorney.
Nor was appellant denied effective assistance of counsel
by the district court's granting of Attorney Fennell's motion
to
withdraw
following
appellant's
sentencing.
With
his
constitutional
appointed
violation
new counsel
Subsequently,
we
to
granted
case
represent
There was no
because this
appellant
appellant's
motion
court
on
appeal.
to
remove
appointed counsel.
5.
At
the
requested
allow
a stay
him
report."
motion
of
to "get
hearing,
execution of
his affairs
appellant's
attorney
appellant's sentence
together
before he
to
has to
concern that
November
sentencing
appellant
26, 1991,
for a stay of
might
the
flee.
district
In
an
court denied
order
dated
appellant's
for the same
reason.1
____________________
1.
The district court did not expressly rule on appellant's
motion for release pending appeal, filed on November 25,
1991.
The same standard applies, however, to releases
-23-
It
is
the defendant's
convincing evidence
pose
a danger
burden to
prove "by
to
the safety
of any
other
defendant's submissions
For
the same
3143(b).
In an
likely to flee
reason, we
and convincing
if released pending
find that
the district
and for
the
that he is not
appeal."
person or
evidence
clear and
on the
a stay
ground
sentencing appellant
for a stay
of execution "because
to report."
his
sentence before
foreclosed
assuming
that
situation,
he
from
Morales-Diaz,
____________
of his medical
the district
raising them
925
F.2d 535,
court and,
here.
539
appellant's Eighth
See
___
(1st
therefore, is
United States
_____________
Cir. 1991).
Amendment
claims
v.
Even
can be
____________________
pending
appeal as
to a
stay of
execution pending
appeal.
Therefore,
the November 26,
1991 court order denying
appellant's motion to stay execution of his sentence pending
appeal, by implication, was also a denial of his motion for
release pending appeal.
-24-
without merit.
"An
appellate
sentence
unless
court
it
will
exceeds
ordinarily
statutory
not
limits
review
or
is
a
'so
The
applicable
v.
sentence imposed
sentencing
817, 823
in this case
guidelines
maximum.
(quoting
(1st
was within
imprisonment
Therefore, it is
range
Cir.
the
and
subject to
Court cases
on whether
upheld
sentences
of
much
greater
claimed
sentence of life
(1991) (upholding a
for possession
light
we
of
these
cases,
threshold comparison
criminal
conduct and
[imposed] does
conclude
between
the
not support
that
the gravity
severity of
of
the
the
In
"required
[appellant's]
. .
penalty
of gross
-25-
disproportionality'
challenge."
United States
_____________
(1st
1992).
Cir.
v. Bucuvalas,
_________
(quoting
Tart
____
v.
970 F.2d
937, 946
Commonwealth
of
_________________
to
be
in
violation
of
various
statutes
and
Conduct
of
judicial misconduct
is also meritless.
has
including
wantonly
directed
against
claims of conspiracy,
Appellant
the
district
court,
____________________
2.
Appellant's claims about the conditions in which he was
kept during the three weeks between his sentence and his
arrival at a suitable medical facility are not properly
before us. Those claims concern not the sentence imposed by
the district court, but the execution of the sentence by the
federal authorities. Although such claims might properly be
raised in a
1983 action, they are not appropriately raised
on direct appeal.
-26-