                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE FIFTH CIRCUIT

                                    _____________________

                                         No. 97-11398
                                    _____________________


       UNITED STATES OF AMERICA,

                                                             Plaintiff-Appellee,

                                              versus

       HERNAN ENRIQUE BURGOS,

                                                             Defendant-Appellant,

       and

       OLGA BURGOS,

                                                             Appellant.

              _______________________________________________________

                       Appeal from the United States District Court
                            for the Northern District of Texas
                                    (4:96-CR-55-1-A)
              _______________________________________________________

                                          May 11, 1999

Before REAVLEY, JOLLY and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

       Because the Burgos’ attorney, Arch McColl, testified adversely to Judge McBryde in the

proceedings of the investigatory committee of the Fifth Circuit, the motion for recusal should

have been granted. United States v. Anderson, 160 F.3d 231 (5th Cir. 1998); United States v.

Avilez-Reyes, 160 F.3d 258 (5th Cir. 1998).



   *
    Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
       The court’s order determining ownership of the bond money and granting the

Government’s request to apply it against the fine imposed on Hernan Burgos, is vacated. The

case is remanded for reassignment to a different judge.

       VACATED and REMANDED.




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