           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206
        ELECTRONIC CITATION: 2000 FED App. 0106P (6th Cir.)
                    File Name: 00a0106p.06


UNITED STATES COURT OF APPEALS
                  FOR THE SIXTH CIRCUIT
                    _________________


                                  ;
                                   
 UNITED STATES OF AMERICA,
                                   
           Plaintiff-Appellee,
                                   
                                   
                                      No. 99-6086
            v.
                                   
                                    >
 CYNTHIA WHITMAN,                  
          Defendant-Appellant. 
                                  1
       Appeal from the United States District Court
    for the Western District of Tennessee at Memphis.
   No. 99-20085—Jon Phipps McCalla, District Judge.
                    Argued: March 6, 2000
              Decided and Filed: March 24, 2000
         Before: SILER and GILMAN, Circuit* Judges;
                 O’MALLEY, District Judge.
                      _________________
                           COUNSEL
ARGUED: Stephen B. Shankman, OFFICE OF THE
FEDERAL PUBLIC DEFENDER FOR THE WESTERN
DISTRICT OF TENNESSEE, Memphis, Tennessee, for

    *
      The Honorable Kathleen M. O’Malley, United States District Judge
for the Northern District of Ohio, sitting by designation.

                                  1
2    United States v. Whitman                   No. 99-6086     No. 99-6086                   United States v. Whitman      11

Appellant. Stephen C. Parker, ASSISTANT UNITED                  at the end of the day is have you had a serious intellectual
STATES ATTORNEY, Memphis, Tennessee, for Appellee.              discussion—whether the person listened or not—on issues
ON BRIEF: Stephen B. Shankman, OFFICE OF THE                    which would improve the practice of the law, that’s all I want
FEDERAL PUBLIC DEFENDER FOR THE WESTERN                         to do . . . .”
DISTRICT OF TENNESSEE, Memphis, Tennessee, for
Appellant. Stephen C. Parker, Vivian R. Donelson,                  With all due deference to the district judge, the primary
ASSISTANT UNITED STATES ATTORNEYS, Memphis,                     function of a judge is neither to “educat[e] the bar” nor to
Tennessee, for Appellee.                                        “improve the practice of the law.” Above all else, the mission
                                                                of a federal judge is to “administer justice without respect to
                   _________________                            persons, and . . . faithfully and impartially discharge and
                                                                perform all the duties incumbent upon [him] . . . under the
                       OPINION                                  Constitution and laws of the United States.” 28 U.S.C. § 453
                   _________________                            (judicial oath of office).
  PER CURIAM. On April 26, 1999, Cynthia Whitman pled             We must emphasize that there is no evidence that the
guilty to one count of bank embezzlement in violation of 18     district judge was actually swayed by bias in this matter, nor
U.S.C. § 656. The district court denied Whitman a two-level     do we suggest that he allowed secondary considerations as to
downward adjustment for acceptance of responsibility under      his mission to influence his judgment. However, the district
the United States Sentencing Guidelines and sentenced her to    judge’s lengthy harangue in this case had the unfortunate
a thirteen-month term of imprisonment and five years of         effect of creating the impression that the impartial
supervised release. Whitman appealed, contending that she       administration of the law was not his primary concern. We
should have been granted the downward adjustment and that       therefore believe it advisable to assign Whitman’s
the district court judge should have recused himself because    resentencing on remand to a different judge. See Bercheny,
his comments and demeanor at the sentencing hearing             633 F.2d at 476-77.
reflected impermissible bias against her and her counsel. For
the reasons set forth below, we VACATE the sentencing             On remand, a new judge may or may not arrive at the same
order of the district court and REMAND for resentencing         determination as did the district court below. Indeed, as the
before a different judge.                                       above discussion reveals, valid grounds exist for a sentencing
                                                                court to deny Whitman an acceptance of responsibility
                   I. BACKGROUND                                reduction. In the end, though, “justice must satisfy the
                                                                appearance of justice.” Anderson, 856 F.2d at 747 (citing In
   On July 24, 1995, Whitman began work as a teller at La       re Murchison, 349 U.S. 133, 136 (1955)).
Capitol Federal Credit Union in Louisiana. Whitman failed
to advise the credit union that she had previously been                             III. CONCLUSION
convicted of a misdemeanor embezzlement charge in 1989.
On April 28, 1997, a branch manager of the credit union           For all of the reasons set forth above, we VACATE the
conducted a surprise audit of Whitman’s teller drawer and       sentencing order of the district court and REMAND for
discovered unauthorized withdrawals from five customer          resentencing before a different judge.
accounts totaling $6,940. When confronted by an internal
auditor and an FBI agent, Whitman gave a written confession
in which she admitted to stealing the $6,940. Whitman failed
10    United States v. Whitman                     No. 99-6086      No. 99-6086                   United States v. Whitman       3

acceptance of responsibility, did I do that?” Examined in           to apprise the FBI of the fact that she had taken an additional
context, it is possible that the district judge was referring not   $3,800 from two other accounts in which shortfalls had not
to counsel’s conduct before the court that day but to the           yet been detected.
advice that counsel may have given or failed to give to
Whitman prior to her presentence interview. Regardless, a              On March 23, 1999, the United States Attorney for the
court should carefully guard against giving the impression          Western District of Louisiana filed a one-count bill of
that its holdings are motivated by animosity towards a party’s      information against Whitman, charging her with bank
counsel. See generally Anderson v. Sheppard, 856 F.2d 741,          embezzlement of $11,840 in violation of 18 U.S.C. § 656.
745 (6th Cir. 1988) (“The judge should exercise self-restraint      (The record does not resolve the disparity between the
and preserve an atmosphere of impartiality.” (citation              $10,740 shortfall that the investigation uncovered and the
omitted)); Webbe v. McGhie Land Title Co., 549 F.2d 1358,           $11,840 charged in the bill of information.) Whitman
1361 (10th Cir. 1977) (“Hence, appearance of impartiality is        declared her intent to plead guilty and requested that the case
virtually as important as the fact of impartiality.”).              be transferred to the Western District of Tennessee where she
                                                                    was then living. The district court in Louisiana agreed, and
  We also note that despite numerous comments about the             transferred her case pursuant to Rule 20 of the Federal Rules
“attitude” of Whitman’s counsel, the record does not reveal         of Criminal Procedure. On April 26, 1999, Whitman pled
any display of impertinence or disrespect to the court on his       guilty. Whitman advised the court, however, that she would
part. Indeed, at oral argument, the government’s attorney had       be disputing the amount embezzled for the purposes of
nothing but positive things to say about the conduct of             sentencing.
Whitman’s counsel in this case. Absent clear justification, a
court should treat parties and officers of the court with             United States Probation Officer Anna Wells was assigned
courtesy and respect. See United States v. Robinson, 635 F.2d       the responsibility for drafting Whitman’s presentence report.
981, 986 (2d Cir. 1980) (“Trial judges, like all government         When Wells interviewed Whitman, Whitman admitted to
officials, must exercise power with restraint, and display          possibly having embezzled as much as $8,000, but stated that
patience with counsel . . . .” (citation and internal quotation     she did not believe that she had embezzled $11,840 as alleged
marks omitted)).                                                    by the government. Based on Whitman’s refusal to admit to
                                                                    having embezzled the full amount, Wells recommended that
  In addition to chastising Whitman’s counsel, the district         Whitman be denied an adjustment for acceptance of
judge also spoke at length about his perceived mission as a         responsibility.
federal judge. “I’m not attacking you personally. . . . [T]hat’s
the furthest thing from my mind, but I’m trying to begin the          After the initial presentence report was issued on June 1,
process of educating the bar so that the lawyers, the last          1999, Whitman contacted Wells and told her that “[t]here is
bastion of making up their own mind and doing what they             no way I can dispute the $11,400. It could be $11,400.”
want to do[,] will start to conform their conduct to the rules.”    (Whitman was apparently referring to the $11,840 amount
“I’m trying to teach people, because I have decided there is        charged in the bill of information.) Whitman explained that
not much left in the United States for me to try to do except       her drug use during the period of her embezzlement made it
improve the practice of law . . . .” “I didn’t reach this           hard for her to remember exactly how much money she had
conclusion overnight, it has taken me almost eight years to get     stolen. Wells subsequently issued a revised presentence
to this point where I have resolved as to what the problems         report on July 2, 1999, recommending a two-point reduction
are and what we need to start to address . . . .” “The question     for acceptance of responsibility and a guideline imprisonment
4     United States v. Whitman                     No. 99-6086      No. 99-6086                    United States v. Whitman         9

range of six to twelve months. The government, which had            right to be sentenced by a fair and impartial judge and her
not objected to the original presentence report, also declined      Sixth Amendment right to effective assistance of counsel.
to object to the revised report.
                                                                      Because we are vacating Whitman’s sentence due to the
  On July 12, 1999, the district court conducted a sentencing       ambiguous record below, we need not address her claims of
hearing. Despite the unchallenged recommendation of the             judicial bias. Nevertheless, in light of the district judge’s
probation officer, the court found that Whitman had failed to       intemperate demeanor towards Whitman’s counsel, we
accept responsibility for her crime and thus refused to grant       believe that this case should be assigned to a different judge
her a two-point reduction under the sentencing guidelines.          upon remand. See Bercheny v. Johnson, 633 F.2d 473, 476-
                                                                    77 (6th Cir. 1980) (listing, as one of the principal factors to be
                       II. ANALYSIS                                 considered in determining whether a case should be remanded
                                                                    to a different judge, whether reassignment is advisable to
A. Acceptance of responsibility                                     preserve the appearance of justice).
   A district court’s conclusion that a defendant is not entitled      The district court lectured Whitman’s counsel at length as
to an adjustment for acceptance of responsibility is generally      to his ethical responsibilities and rebuked him repeatedly for
considered a question of fact that should not be disturbed          his conduct in this case. Indeed, a hearing that could have
unless it is clearly erroneous. See United States v. Childers,      been conducted in less than an hour took nearly four
86 F.3d 562, 563 (6th Cir. 1996); see also U.S.S.G. § 3E1.1         hours—much of which was gratuitously devoted to the
cmt. 5 (“[T]he determination of the sentencing judge is             behavior of Whitman’s counsel rather than the length of
entitled to great deference on review.”). “However, this court      Whitman’s sentence. A sampling of the district judge’s
renders de novo review of an acceptance of responsibility           comments will suffice. “[M]y whole observation in this case
determination where . . . the only issue presented is the           is that so far [your client’s interest] hasn’t come first at all.
propriety of the application of the adjustment to uncontested       You have only talked of yourself and never talked of your
facts . . . .” Id. (citation and internal quotation marks           client . . . .” “Now I hope that as a result of this conversation
omitted).                                                           you’ll re-examine your approach toward what your role is in
                                                                    these proceedings and you will re-examine placing your ego
  The district court, shortly after the sentencing hearing          and your pride above your client’s interest, and I don’t
began, characterized Whitman as “simply an untruthful               imagine you will, because people in your situation don’t
human.” Throughout the course of the extended hearing, the          usually, but you might . . . .” “[Y]ou need to explore in your
court then cited to multiple instances in which it concluded        soul the way that you have been conducting these matters
that Whitman had either lied or failed to volunteer truthful        routinely in the Court because your client couldn’t possibly
information. The majority of these instances, however, were         have done any worse than you did. And I want you to—I
unrelated to the question of whether Whitman had accepted           want you to think about that.”
responsibility for her crime of embezzlement.
                                                                      Most disturbing is a comment that can be read to imply that
  Among the instances cited by the district court, the most         the conduct of Whitman’s counsel would be held against
relevant was Whitman’s statement to Wells that she might            Whitman. At one point, the district judge stated that
have embezzled as much as $8,000, but that she did not              Whitman’s counsel would have “to go home and ask
believe that she embezzled the $11,840 charged in the bill of       [him]self . . . did I contribute to Ms. Whitman not getting her
information. After the initial presentence report was
8     United States v. Whitman                      No. 99-6086      No. 99-6086                   United States v. Whitman        5

cited these omissions as partial justifications for its holding.     issued—recommending that Whitman not receive a
Concerning Whitman’s failure to inform her parents, the              downward adjustment for acceptance of
district court stated, “she apparently failed to tell her parents,   responsibility—Whitman admitted to Wells that she had no
that’s part of—she doesn’t have to do that, but if you won’t         basis to dispute the full amount charged in the indictment.
go home and tell your folks, then maybe you hadn’t gotten to
that realization that you should, and that would be useful for          On appeal, Whitman maintains that, having been on drugs
the Court to know.” Later in the hearing the court said, “I          during the relevant period, she was unable to state definitively
don’t think you’re required to go tell your parents if you don’t     how much money she had taken. Whitman’s claim of a poor
want to, that is just another little piece to the puzzle here.”      memory is belied, however, by her statement to the probation
                                                                     officer that she “kept notes concerning the amount of money
  Regarding Whitman’s failure to tell her employers at La            that she had stolen.” Furthermore, it is somewhat suspect that
Capitol Credit Union about her prior misdemeanor conviction          Whitman claimed to have embezzled no more than $8,000 in
for embezzlement, the court said: “And we had the fact that          light of the fact that any amount less than $10,000 would have
she went to work for a bank after being convicted of                 placed her in a lower sentencing range. See U.S.S.G.
embezzlement at another bank. She failed to change her               § 2B1.1.
course of conduct knowing that her previous course of
conduct was illegal. She is not entitled, as far as the Court          In any event, the district court’s finding that Whitman
can tell, to acceptance of responsibility in this case, and that’s   intentionally misled the probation officer is not clearly
what we’re trying to get to.”                                        erroneous. A false statement about a material fact to a
                                                                     probation officer may, by itself, justify a finding that a
  Our review of this sentencing determination is complicated,        defendant has failed to accept responsibility. See United
moreover, by the context within which it occurred. The               States v. Greene, 71 F.3d 232, 234 (6th Cir. 1995) (denying
district court’s reasons for denying Whitman an adjustment           a reduction for acceptance of responsibility where the
for acceptance of responsibility were scattered throughout a         defendant had lied to a probation officer about his motivation
lengthy hearing replete with statements that were seemingly          for his crimes).
unnecessary to the matter at hand, as will be discussed more
fully in Part B below.                                                  In addition to the preceding false statement, the court also
                                                                     noted that, as of the time of her sentencing hearing, Whitman
  In the face of such an ambiguous record, we are uncertain          had made no voluntary restitution of the monies that she had
whether the district court would have reached the same result        embezzled despite having been gainfully employed for the
had it relied solely on the permissible factors. We therefore        previous eighteen months.             The application notes
conclude that Whitman’s case should be remanded for                  accompanying the acceptance of responsibility section permit
resentencing.                                                        a sentencing court to consider whether a defendant has made
                                                                     “voluntary payment of restitution prior to adjudication of
B. Judicial Bias                                                     guilt.” U.S.S.G. § 3E1.1 cmt. 1. Thus, the district court’s
                                                                     reliance on this factor was justified.
  Whitman also contends that the district judge exhibited
impermissible bias against her and her counsel, and was                Unfortunately, we are unable to say with confidence that
therefore required to sua sponte disqualify himself pursuant         the district court based its determination solely, or even
to 28 U.S.C. § 455(a). She further alleges that reversal is          primarily, upon the above two factors. Along with the initial
required because the judge’s bias violated her due process           misstatement to Wells and Whitman’s failure to make
6    United States v. Whitman                    No. 99-6086      No. 99-6086                   United States v. Whitman        7

restitution, the district court repeatedly referenced several        We do not believe that any of these omissions are relevant
other instances of Whitman’s “untruthful” behavior that had       to the acceptance of responsibility determination. Whitman’s
no bearing on her acceptance of responsibility.                   1989 conviction was on a misdemeanor embezzlement
                                                                  charge, whereas La Capitol Credit Union only instructed
   First, the district court cited the fact that Whitman told     applicants to identify prior felonies. Furthermore, even if the
Wells that she had been diagnosed with cervical cancer and        credit union had requested such information, Whitman’s
had had her cervix removed. To the contrary, the district         failure to list her 1989 conviction could, at most, be construed
court determined that Whitman had in fact only had dysplasia,     as a failure to accept responsibility for a previous crime.
a condition that is an early indicator of cancer, and that only   More importantly, all three of these omissions involve
a portion of her cervix was removed. In the context of the        Whitman’s failure to inform third parties—her parents and
acceptance of responsibility determination, the district court    employers—of her offenses. Section 3E1.1 of the United
concluded that this misstatement was “material in the sense       States Sentencing Guidelines is concerned solely with
that it would tend to paint [Whitman] in a more favorable         whether a defendant admits or denies material conduct during
light, tend to show that she was a person who had had             her investigation, prosecution, or sentencing. Whether
extreme health problems in June of 1998.”                         Whitman is or is not a generally candid person is thus not the
                                                                  proper inquiry in the case before us.
   We disagree. As Whitman points out, she did not file a
motion for a downward departure on the basis of an                  In sum, the district court cited two factors that were
“extraordinary impairment,” nor did she argue that she should     legitimate grounds for a denial of an acceptance of
be treated more favorably because of her medical history. We      responsibility reduction (Whitman’s misstatements about the
therefore cannot see how the misstatement is material to the      scope of her offense and her failure to make voluntary
issue of whether she accepted responsibility for her crime of     restitution) and three factors that were not (the misstatement
embezzlement.                                                     about her medical history, the failure to inform her employers
                                                                  about her prior crimes, and the failure to inform her parents
   The district court also found that Whitman had exhibited       about her present situation). We recognize the possibility that
“untruthful” behavior by omitting any mention of her 1989         the district court premised its ultimate judgment only on the
misdemeanor embezzlement conviction when she was hired            relevant factors and cited the other instances of Whitman’s
by the La Capitol Credit Union in 1995 and again when she         lack of candor solely for the sake of context. Looking at the
neglected to mention her two past embezzlement offenses           entire record, however, we are unable to say with assurance
when she began working for her most recent employer,              that the district court’s holding was properly limited to the
Webster Lock, in 1998. As further evidence of Whitman’s           relevant factors.
untruthful nature, the district court cited the fact that Wells
had instructed Whitman to inform her parents of her offense,        In fact, at least as far as Whitman’s medical history is
but that Whitman had not yet done so at the time of the           concerned, the district court expressly held that her
sentencing hearing. (Wells intended to call Whitman’s             misstatements were “material.” As for Whitman’s failure to
parents to verify their contact information so that Whitman       inform her parents and employers about her offense, it cannot
could be informed if a family member became sick while she        be determined from the record whether the district court relied
was in prison. Whitman asked if Wells could wait until            upon these instances in reaching its determination. At times
Whitman first had the opportunity to speak to her parents and     the district court openly questioned the relevance of these
tell them about her conviction.)                                  omissions. In the same breath, however, the court seemingly
