In the
United States Court of Appeals
For the Seventh Circuit

No. 99-3326

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

WILLIAM K. SMITH,

Defendant-Appellant.



Appeal from the United States District Court for the
Southern District of Illinois, East St. Louis Division.
No. 99 CR 30044--G. Patrick Murphy, Judge.


Argued January 20, 2000--Decided April 12, 2000




  Before COFFEY, MANION and ROVNER, Circuit Judges.

  ROVNER, Circuit Judge. William K. Smith pled
guilty to charges of conspiring to manufacture
methamphetamine and assaulting a federal officer.
The district court sentenced him to 33 months on
each count, to be served concurrently. In
calculating this sentence, the district court
adjusted Smith’s sentence two levels upward
pursuant to U.S.S.G. sec. 3C1.2, for reckless
endangerment during flight. On appeal, Smith
objects to this enhancement on two grounds.
First, he contends the government failed to meet
its burden in proving that he actually endangered
the officers’ lives. Second, Smith faults the
district court for relying on personal, extra-
record knowledge instead of record evidence in
making its findings on this enhancement. We
vacate the sentence and remand.

I.

  One of the substances used in the manufacture
of methamphetamine is anhydrous ammonia, which is
also used in the farming industry as a
fertilizer. Anhydrous ammonia has a boiling point
of 28 degrees below zero, which means that to
store it in a liquid form, it must be kept at
extremely low temperatures or it must be stored
under pressure. On farms, it is typically stored
under pressure, and then injected into the soil
where it combines with the water in the soil to
form a fertilizer. "Anhydrous" means "free from
water" and this same quality which makes
anhydrous ammonia useful in farming renders it
very dangerous to people. When liquid anhydrous
ammonia comes into contact with skin or eyes or
when the vapor is inhaled, it can severely burn
and damage tissues. In sufficient quantities and
concentrations, it can cause death.

  On the day of Smith’s arrest, police officers
had been alerted to a possible methamphetamine
manufacturing operation, and were surveilling
Smith and his co-conspirator Alfred Poppen. The
officers observed Smith and Poppen stop off at an
anhydrous ammonia storage tank at a local farm,
where they apparently obtained some of the
substance in a bucket. After driving a short
distance, Poppen and Smith allegedly transferred
the anhydrous ammonia into a thermos and
continued on to Smith’s home. At that time,
officers attempted to stop the vehicle by
activating their lights. Poppen and Smith
continued driving, and began to head out of town.
The two officers continued to follow the car
driven by Poppen. During the pursuit, the
officers saw Smith toss a thermos lid out the
window. One officer observed Smith dumping
anhydrous ammonia out of the thermos through the
rolled down window of the car. The chase took
place on a gravel road and the officers kept a
distance of only five to ten feet between the
vehicles because they did not want the road dust
to obscure their vision of the activity in the
car. One officer reported that the ammonia was in
liquid form as it was being poured out the window
but that it instantly vaporized, creating a cloud
through which the officers then drove in the
course of the pursuit. The officers closed the
vents of their car and ensured that the windows
were closed, and they were not actually injured
by the ammonia dumping. Once the defendants’ car
stopped, Smith tried to run from the officers and
attacked one of them as he was being captured,
giving rise to the charge of assaulting a federal
officer.

  The district court enhanced Smith’s offense
level under section 3C1.2 of the Sentencing
Guidelines, and Smith objected to the
enhancement. In sentencing Smith, the court
listened to argument from the government and from
Smith regarding the dangerousness of anhydrous
ammonia. The court considered two reports
published by universities regarding the safe
handling of anhydrous ammonia in the agricultural
setting. Smith’s counsel argued that there was no
evidence of the quantity of the substance
released, and no evidence of what quantity would
be harmful under the circumstances in which it
was released, out in the open air during close
pursuit. After hearing argument from Smith’s
counsel, the court asked whether counsel had ever
worked on a farm. Smith’s counsel replied that
she had not, and the court ruled on Smith’s
objection:

All right. Thank you. The court understands the
defendant’s objection; but, the objection is
overruled. There is--I’m satisfied that you get
a nose full of anhydrous ammonia or a face full
of it, it is dangerous. And I’m not trying to
bring my own personal experience into this; but,
I can’t ignore the fact that growing up in the
country I know what anhydrous ammonia is. And
this is very dangerous. It just is.

Sentencing Tr. at 9. The court then adopted the
probation officer’s position that Smith’s dumping
of anhydrous ammonia created a risk of serious
bodily injury. Smith appeals from the two-level
increase on two grounds. First, he contends the
government did not meet its burden of proving the
dangerous nature of anhydrous ammonia in the
quantity and concentrations that he released in
the course of flight from the officers. Second,
he contends that the district court improperly
relied on extra-record knowledge in assessing the
dangerousness of anhydrous ammonia, and the
district judge should have recused himself when
he became aware that he was unable to disregard
his prior knowledge.

II.

  We review the district court’s enhancement for
clear error. United States v. Watson, 189 F.3d
496, 501 (7th Cir. 1999); United States v.
Chandler, 12 F.3d 1427, 1433 (7th Cir. 1994). The
government has the burden of establishing by a
preponderance of the evidence facts which justify
an upward adjustment of the defendant’s base
offense level. Watson, 189 F.3d at 502. Section
3C1.2 provides:

If the defendant recklessly created a substantial
risk of death or serious bodily injury to another
person in the course of fleeing from a law
enforcement officer, increase by 2 levels.

U.S.S.G. sec. 3C1.2./1 Smith argues that
although anhydrous ammonia is a dangerous
substance, there is no evidence in the record
supporting a finding that he created a
substantial risk of death or serious bodily
injury in the quantity and concentration he
released from the car during flight. A defendant
recklessly creates a substantial risk when he is
aware of the risk created by his conduct, and the
risk was of such a nature and degree that to
disregard that risk constituted a gross deviation
from the standard of care that a reasonable
person would exercise. Chandler, 12 F.3d at 1433.
He also contends that the district judge relied
on his own personal knowledge of the
dangerousness of this substance rather than on
any record evidence in reaching his conclusion.
The government contends that we should look to
the dangerousness of the act and not the
consequences of the act in assessing whether
Smith created a substantial risk of death or
serious bodily injury. The government argues that
it was merely fortuitous that the substance
vaporized and did not harm the officers as they
drove through the vapor cloud, and that the
defendant should not benefit from this fortuitous
outcome. The government further maintains that
because Smith did not request that the district
judge recuse himself, Smith waived any claim for
recusal.

  We begin by reviewing the record to determine
if there is evidence supporting the finding that
Smith’s dumping of anhydrous ammonia created a
substantial risk of death or serious bodily
injury to the officers during the pursuit. The
district court adopted the probation officer’s
position in rejecting Smith’s challenge to the
adjustment. The probation officer’s Presentence
Investigation Report ("PSR") recounts the
officers’ testimony that during the pursuit,
Smith first tossed a thermos lid out the car
window and then twice dumped anhydrous ammonia
from the thermos. The PSR then concludes that
"[b]ecause the defendant recklessly endangered
law enforcement officials during flight by
dumping anhydrous ammonia out of a window of a
moving vehicle, a two level increase is warranted
pursuant to sec. 3C1.2." In the calculations
section of the report, the PSR repeats that "two
levels are added for reckless endangerment during
flight because the defendant dumped the anhydrous
ammonia out of the car and endangered officers."
The PSR contains no information about the
quantity of anhydrous ammonia dumped, the
quantity the thermos could hold, what
concentration and duration of exposure to ammonia
vapor is harmful, what concentration and duration
of exposure the officers experienced during the
chase, how fast the vehicles were traveling, the
weather conditions that day and the effect of the
temperature on the vaporizing of the substance,
and what harm was likely given the circumstances
of the dumping.

  In objecting to the enhancement, Smith submitted
two reports, culled from the Internet, regarding
the safe handling of anhydrous ammonia in the
farm setting. Much of the information in these
reports addresses the special harms posed by the
storage of ammonia under pressure. Leaks in
equipment or improper handling can result in
blasts of the substance hitting the skin or eyes
in liquid form, which can result in severe tissue
damage. In some circumstances, vapors can damage
the skin and eyes as well. Persons trapped in a
confined space with vapors of anhydrous ammonia
can seriously damage their lungs, and exposure to
vapors of certain concentrations for certain
durations can cause death. The reports are quite
precise in detailing the potential harms of
anhydrous ammonia vapor. Five parts per million
may cause nose irritation after five minutes of
exposure. Seven hundred parts per million causes
coughing, and also causes eye irritation that can
lead to partial or total loss of sight if not
treated. Two thousand parts per million will burn
and blister skin after only a few seconds of
exposure, and five thousand parts per million
will cause death by suffocation within minutes.
The record thus contains substantial evidence
that anhydrous ammonia is a dangerous substance,
and that under certain conditions it can cause
death or serious bodily injury.

  What is missing here is what amount Smith
dumped, what concentration of vapors the officers
were exposed to, and for what length of time that
exposure lasted. The government candidly admitted
at oral argument that it did not produce evidence
to the district court of the amount of ammonia
the thermos could hold, or how much ammonia was
in the thermos. Nor does the record indicate the
weather, or the speed of the cars, or any way to
calculate what concentration of vapors the
officers experienced during the pursuit. Indeed
the record does not reveal how it was physically
possible for Smith to transfer first to a bucket
and then to an ordinary thermos a substance that
vaporizes at temperatures above 28 degrees below
zero.

  Contrary to the government’s assertion that any
dangerous act will suffice to meet the standard
of section 3C1.2, the act must create a
substantial risk of death or serious bodily harm.
We know, for example, that fire is dangerous,
that it can cause death or serious bodily harm.
But if Smith had tossed a lighted match out the
car window during the chase, no one would
seriously argue that that action created
substantial risk of death or serious bodily harm.
Here, we do not know if Smith poured the
equivalent of a lighted match out the window, or
if he poured out an amount that would expose
passengers in another car following closely
behind to a substantial risk. The district court
stated that if a person gets a "nose full" or a
"face full" of anhydrous ammonia, the danger for
serious harm exists. The question is whether
Smith released enough of the substance under the
circumstances for that to occur. Because the
government has not met its burden of proving by
a preponderance of the evidence that Smith
created a substantial risk of death or serious
bodily harm to the officers, we vacate the
sentence and remand for proceedings consistent
with this order.

  Smith also contends that the district court
should have recused itself under 28 U.S.C. sec.
455. That section provides:

(a) Any justice, judge, or magistrate of the
United States shall disqualify himself in any
proceeding in which his impartiality might
reasonably be questioned.

(b) He shall also disqualify himself in the
following circumstances:

(1) Where he has a personal bias or prejudice
concerning a party, or personal knowledge of
disputed evidentiary facts concerning the
proceeding. . . .

However, Smith failed to properly appeal the
court’s refusal to recuse under section 455(a).
"[T]he denial of a request that the judge recuse
himself under section 455(a) must be appealed
immediately by application for writ of mandamus,
or it is waived." United States v. Horton, 98
F.3d 313, 316 (7th Cir. 1996); United States v.
Balistrieri, 779 F.2d 1191, 1205 (7th Cir. 1985),
cert. denied, 475 U.S. 1095 (1986). It is less
clear under our case law whether we may review a
refusal to recuse under section 455(b) when the
argument is raised for the first time on appeal.
Edgar v. K.L., 93 F.3d 256, 257 (7th Cir. 1996),
cert. denied, 519 U.S. 1111 (1997) (delay in
seeking disqualification can be fatal but passage
of time is not conclusive if the justification
for disqualification is compelling); Hook v.
McDade, 89 F.3d 350, 353 n.2 (7th Cir. 1996),
cert. denied, 519 U.S. 1071 (1997) (petition for
writ of mandamus is the only recourse available
to challenge a judge’s denial of a motion for
disqualification under section 455). Assuming for
the sake of argument that we may appropriately
review a section 455(b) claim raised for the
first time on appeal, we will review for clear
error when the claim is based on the judge’s
personal knowledge and the party moving for
recusal is aware of the existence of the ground
for recusal at the time the case is still before
the trial court. See Baldwin Hardware Corp. v.
Franksu Enterprise Corp., 78 F.3d 550, 557 (Fed.
Cir. 1996), cert. denied, 519 U.S. 949 (1996);
United States v. Bosch, 951 F.2d 1546, 1548 (9th
Cir. 1991), cert. denied, 504 U.S. 989 (1992);
Osei-Afriyie v. Medical College of Pennsylvania,
937 F.2d 876, 886 (3rd Cir. 1991). Here, the
district judge admitted that he "can’t ignore the
fact that growing up in the country I know what
anhydrous ammonia is. And this is very dangerous.
It just is." That appears to be an admission that
the court may have ruled, at least in part, on
the basis of personal knowledge. However, all of
the evidence in the record is consistent with the
district judge’s personal belief, and Smith
himself agrees that anhydrous ammonia is a
dangerous substance. Thus, we fail to see how
Smith was harmed by the court’s reliance, if any,
on personal knowledge of the dangers of this
substance. In fact, the dangerousness of the
substance was not a fact under dispute and
arguably the rule does not apply at all. We do
not think the judge clearly erred by not recusing
sua sponte when he became aware that he had some
extra-record knowledge regarding anhydrous
ammonia. To hold otherwise would require the
recusal of every judge who owns a hunting rifle,
for example, when the issue of the dangerous
nature of firearms is before the court. That is
not the kind of personal knowledge of disputed
facts that the rule was meant to protect against.
On remand, we have no doubt that the court will
make its fact findings on the basis of the
evidence in the record before it.

VACATED AND REMANDED.



/1 The Application Notes to section 3C1.2 specify
that "another person" includes any person other
than a participant in the offense who willingly
participated in the flight. Therefore, we do not
consider whether Smith exposed his co-defendant
Poppen to a substantial risk of death or serious
bodily injury by pouring the anhydrous ammonia
out the window.
