16-3842
United States v. Burke

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT
ON ANY PARTY NOT REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
8th day of March, two thousand nineteen.

Present:
            DEBRA ANN LIVINGSTON,
            GERARD E. LYNCH,
                  Circuit Judges,
            ALISON J. NATHAN,
                  District Judge.*
_____________________________________

UNITED STATES OF AMERICA,

                         Appellee,

                 v.                                                       16-3842

JAMES BURKE,

                  Defendant-Appellant.
_____________________________________

For Appellee:                                 JOHN J. DURHAM (David C. James, Lara Treinis Gatz,
                                              Assistant U.S. Attorneys, on the brief), Assistant U.S.
                                              Attorney, for Richard P. Donoghue, U.S. Attorney for
                                              the Eastern District of New York, Brooklyn, NY.



*
  Judge Alison J. Nathan, of the United States District Court for the Southern District of New York, sitting
by designation.


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For Defendant-Appellant:                      CLARA KALHOUS, ESQ., New York, NY.

        Appeal from a judgment of the United States District Court for the Eastern District of New

York (Wexler, J.).

        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

        Defendant-Appellant James Burke (“Burke”) appeals from a November 14, 2016 amended

judgment of the U.S. District Court for the Eastern District of New York (Wexler, J.), convicting

him of depriving an individual of civil rights, in violation of 18 U.S.C. § 242, and conspiring to

obstruct justice, in violation of 18 U.S.C. § 1512(k) and 1512(c)(2), and sentencing him to 46

months’ imprisonment, three years of supervised release, and a $200 special assessment. On

appeal, Burke contends that Judge Wexler should have, sua sponte, recused himself from the case

or held a hearing based upon the contents of a February 22, 2016 letter (“Feb. 22 letter”) that the

government sent to Judge Wexler and Burke. 1 We assume the parties’ familiarity with the

underlying facts, the procedural history of the case, and the issues on appeal.

        Under 28 U.S.C. § 455(a), parties can move for “[a]ny justice, judge, or magistrate judge

of the United States” to “disqualify himself in any proceeding in which his impartiality might

reasonably be questioned.” This Court has interpreted § 455 to incorporate a timeliness

requirement. See Polizzi v. United States, 926 F.2d 1311, 1321 (2d Cir. 1991) (“While § 455 does

not explicitly contain a timeliness requirement for the filing of a recusal claim, timeliness has been

read into this section as well.”). And “[i]t is well-settled” that “a party must raise its claim of a

district court’s disqualification at the earliest possible moment after obtaining knowledge of facts


1
  The Feb. 22 letter was filed under seal, as were the briefs and much of the record on this appeal. Based
on the government’s representation at oral argument that sealing is no longer required, we hereby direct the
Clerk of Court to unseal the entire file on appeal, including the Feb. 22 letter.


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demonstrating the basis for such a claim.” Id. We have explained the purpose of the timeliness

requirement as follows:

        [I]t is important to present recusal applications promptly for at least two reasons.
        First, a prompt application affords the district judge an opportunity to assess the
        merits of the application before taking any further steps that may be inappropriate
        for the judge to take. Second, a prompt application avoids the risk that a party is
        holding back a recusal application as a fall-back position in the event of adverse
        rulings on pending matters.

In re Int’l Bus. Machines Corp., 45 F.3d 641, 643 (2d Cir. 1995).

        We have also determined that, at least in some instances, untimeliness in this context can

constitute a basis for finding an implied waiver. See United States v. Bayless, 201 F.3d 116, 127

(2d Cir. 2000); see also, e.g., United States v. Yu-Leung, 51 F.3d 1116, 1120 (2d Cir. 1995)

(“[Defendant] failed to file a timely disqualification motion before [the district judge] . . . and we

therefore conclude that he waived his right to do so.”); Polizzi v. United States, 926 F.2d 1311,

1321 (2d Cir. 1991) (“[W]e agree with the Government that [defendant] waived the claim that [the

district judge] should have recused himself when he failed to timely move for such recusal pursuant

to . . . 28 U.S.C. § 455.”).

        This is one of those instances. Burke’s recusal claim on appeal is based entirely on the Feb.

22 letter. But he provides no explanation as to why he failed to move for recusal or request a

hearing before the district court during the eight-month period between his receipt of the Feb. 22

letter and his sentencing hearing on November 2, 2016. Having failed to raise his recusal claim

below, “let alone having done so timely,” Burke “is poorly positioned at this late date to take issue

with [Judge Wexler’s] role” in Burke’s sentencing hearing. Polizzi, 926 F.2d at 1321.

        We note that Burke entered into a plea agreement in which he agreed not to file an appeal

challenging his conviction or sentence in the event that the district court imposed a sentence of

imprisonment of 51 months or below. He received a sentence of 46 months—five months below


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the sentence sought by the government. But we need not rely on this appeal waiver in reaching our

determination here. Burke has pointed to no facts, whether contained in the Feb. 22 letter or

elsewhere, that should have compelled Judge Wexler’s sua sponte recusal. See SEC v. Razmilovic,

738 F.3d 14, 29 (2d Cir. 2013) (stating that recusal is appropriate under § 455(a) only where “an

objective and disinterested observer, knowing and understanding all of the facts and

circumstances, could reasonably question the court’s impartiality”). And given Burke’s failure to

timely move for recusal at any point during the lengthy period this matter remained pending before

Judge Wexler after Burke was in receipt of the Feb. 22 letter, his § 455(a) challenge has been

waived.

                                        *       *      *

       We have considered Burke’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the district court.

                                                    FOR THE COURT:
                                                    Catherine O’Hagan Wolfe, Clerk




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