In the
United States Court of Appeals
For the Seventh Circuit

No. 99-4033

United States of America,

Plaintiff-Appellee,

v.

David A. Ruzzano,

Defendant-Appellant.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 84 CR 610--Suzanne B. Conlon, Judge.


Argued October 26, 2000--Decided April 4, 2001



  Before Easterbrook, Kanne, and Evans, Circuit Judges.

  Kanne, Circuit Judge. On August 9, 1984, a grand
jury in the Northern District of Illinois
returned a sixteen count indictment against David
A. Ruzzano. Counts fifteen and sixteen, at issue
here, charged Ruzzano with tax evasion in
violation of 26 U.S.C. sec. 7201 in the amount of
$313,000 and $236,000 for the years of 1979 and
1980 respectively. The indictment was the result
of an investigation into Ruzzano’s participation
in an oil swindle in which he allegedly promised
investors substantial profits on investments in
oil producing corporations that did not actually
produce oil. At the time of the indictment,
Ruzzano was not present in the United States, and
his location abroad was unknown.

  Ruzzano, who left the country in 1980, claims
that he first learned of the criminal charges
pending against him in 1985 when he entered the
American Embassy in the Netherlands to renew his
passport. At the request of the United States,
Dutch authorities provisionally arrested Ruzzano,
but they later released him on bond pending
extradition. By the time U.S. Marshals had
arrived to bring Ruzzano back to the United
States, he had disappeared. Ruzzano’s whereabouts
remained unknown until he was discovered in the
French Carribean on St. Martin in 1995. The
French detained him for six months, but he was
never arrested. After his release from French
custody, Ruzzano’s whereabouts again became
unknown to U.S. authorities until three years
later when Ruzzano presented himself to the
American Embassy in Lisbon, Portugal. He told the
authorities there that he wanted to clear up the
criminal charges pending against him. Eight
months later--nearly fifteen years after he was
indicted--Ruzzano was extradited to the United
States.

  Upon his return to the United States, Ruzzano
entered an agreement with the government in which
he pleaded guilty to two counts of tax evasion.
In the plea agreement, Ruzzano acknowledged that
he wilfully and knowingly attempted to evade the
income tax due and owing to the United States of
America by keeping improper records, failing to
report income derived from a substantial number
of cash transactions, and by failing to file
income tax returns with the Internal Revenue
Service for the calendar years of 1979 and 1980.

  District Court Judge Suzanne B. Conlon conducted
a guidelines-type sentencing hearing although
none was required inasmuch as this was to be a
pre-guidelines sentence. Before sentencing, both
Ruzzano and the government submitted their own
versions of Ruzzano’s offense. Ruzzano also
submitted a position paper for sentencing in
which he asked the court to consider the fact
that he ultimately turned himself in. The
position paper also took issue with a number of
the government’s characterizations of his
actions. In the position paper, Ruzzano claimed
that he never intended to defraud anyone.
Instead, he contended that his legal troubles
were the result of "dreamy expectations and
reckless bookkeeping." The position paper also
disputed the government’s characterization of
Ruzzano’s initial departure from the United
States as an attempt to evade the law. Although
he did not deny that "he was a fugitive from
justice for many years," Ruzzano maintained that
he initially left the country not to evade the
authorities but solely to avoid the effects of
the recently enacted windfall profits tax. In
support of this assertion, the position paper
pointed out that no criminal charges were pending
against Ruzzano when he left the country.

  At sentencing, Ruzzano’s counsel repeated many
of the same arguments made in the position paper.
Ruzzano’s attorneys emphasized the fact that
Ruzzano, while once a fugitive, did ultimately
decide to turn himself in and accept
responsibility for his actions. Counsel also
asked the court to take into account certain
mitigating factors including contriteness,
exemplary military service, chronic health
problems, and time spent in "horrifying
conditions" in a Portugese prison. In response,
the government argued that Ruzzano’s attempts to
avoid apprehension should aggravate his sentence.
Noting that he would be sentenced under the pre-
guidelines sentencing regime in which defendants
serve less of their sentence than under the
guidelines, the government recommended that
Ruzzano be sentenced to the maximum term of
imprisonment--five years per count. The district
court agreed. The court stated that the fact that
Ruzzano ultimately turned himself in to the
authorities some fifteen years after he was
indicted was not enough to show acceptance of
responsibility. Consistent with the government’s
recommendation, the district court then imposed
the maximum allowable sentence: five years for
each count, the terms to run consecutively, for
a total of ten years imprisonment.

  Ruzzano raises three issues on appeal. First,
he claims that the district judge should have
recused herself pursuant to 28 U.S.C. sec.sec.
455(a) and 455(b)(3). Next, Ruzzano contends that
his counsel failed to provide effective
assistance at sentencing. Lastly, he claims that
the district court abused its discretion in
sentencing by overlooking evidence of remorse,
contrition, acceptance of responsibility, and
other mitigating factors.

I.   Analysis
A.   sec. 455 Claims

  Ruzzano argues that Judge Conlon should have
recused herself from his case pursuant to 28
U.S.C. sec.sec. 455(a) and 455(b)(3). His claim,
never presented to Judge Conlon and raised for
the first time on appeal, is based on the fact
that Judge Conlon served as an Assistant United
States’ Attorney (AUSA) in the U.S. Attorney’s
Office for the Northern District of Illinois at
the same time that Ruzzano was indicted by a
grand jury in that district. At the outset, we
note that we do not know whether Judge Conlon
played any role in or was even aware of Ruzzano’s
indictment during her time in the U.S. Attorney’s
Office. While it is undisputed that her name does
not appear on any of the documents related to the
case, Ruzzano argues that Judge Conlon may have
provided assistance or expressed an opinion about
his case to a fellow AUSA.

  Ruzzano sent a Freedom of Information Act
(FOIA) request to the Department of Justice
asking for information relating to Judge Conlon’s
involvement with his case, but he did not receive
a response. Although the government’s failure to
respond to the FOIA request does concern us, we
find it highly unlikely that the U.S. Attorney’s
Office keeps a record of every time one AUSA
sticks his head into another AUSA’s office to ask
her a question about a pending case. Almost
certainly, the sole person who knows whether
Judge Conlon may have expressed an opinion on the
merits of the defendant’s case is Judge Conlon
herself. Had Ruzzano raised this issue in the
district court, we would now have the benefit of
Judge Conlon’s response.

1.   Ruzzano’s sec. 455(a) Claim.

  28 U.S.C. sec. 455(a) provides that a judge
must disqualify herself "in any proceeding in
which h[er] impartiality might reasonably be
questioned." In this circuit, appellate review of
a judge’s failure to disqualify herself under
sec. 455(a) may only be obtained by petitioning
the appellate court for a writ of mandamus prior
to trial. See United States v. Horton, 98 F.3d
313, 316-17 (7th Cir. 1996); United States v.
Balistrieri, 779 F.2d 1191, 1205 (7th Cir. 1985).
Our cases have reasoned that

"[i]t is a fundamental principle of appellate
review that unless an error affects the
substantial rights of the appellant, it is not a
basis for reversal. . . . [I]f a judge proceeds
in a case when there is (only) an appearance of
impropriety in his doing so, the injury is to the
judicial system as a whole and not to the
substantial rights of the parties. The parties
receive a fair trial, even though a reasonable
member of the public might be in doubt as to its
fairness, because of misleading appearances."
Once the proceedings in the district court are
complete, the harm sought to be avoided by the
requirement of recusal for appearance of
impropriety has been done--the public image of
the judiciary has already been damaged.

United States v. Troxell, 887 F.2d 830, 833 (7th
Cir. 1989) (quoting Balistrieri, 779 F.2d at
1204-05; other citations omitted). While we
recognize that this is a minority position, see
United States v. Boyd, 208 F.3d 638, 650 (7th
Cir. 2000) (Ripple, J. dissenting) (arguing that
this circuit’s requirement of mandamus is in
"considerable tension" with the Supreme Court’s
decisions in Liteky v. United States, 510 U.S.
540, 114 S. Ct. 1147, 127 L. Ed. 2d 474 (1994),
and Liljeberg v. Health Services Acquisition
Corp., 486 U.S. 847, 108 S. Ct. 2194, 100 L. Ed.
2d 855 (1988)), cert. granted in part and
judgment vacated on other grounds by 2001 WL
137610 (U.S. Feb. 20, 2001) (No. 00-6674), it
remains the law in this circuit. See id. at 645.

  However, in this case the issue is not
Ruzzano’s failure to petition for a writ of
mandamus, but rather his failure to raise the
issue before the district court at all. Because
a party waives his sec. 455(a) recusal argument
by failing to petition for a writ of mandamus, it
follows that he also waives it by failing
altogether to raise it at the district court
level. See United States v. Franklin, 197 F.3d
266, 269 (7th Cir. 1999). Moreover, although we
are the only circuit to require parties to
petition for a writ of mandamus in order to
preserve recusal challenges, we are not alone in
requiring a party to raise recusal issues at the
trial level. Several circuits that do entertain
sec. 455(a) claims on direct appeal have also
found waiver when a party failed to raise the
issue before the district court. See United
States v. Mathison, 157 F.3d 541, 545-46 (8th
Cir. 1998); United States v. Barrett, 111 F.3d
947, 952-53 (D.C. Cir. 1997). Ruzzano argues that
his case is distinguishable from cases that have
found waiver because he did not find out that
Judge Conlon was an AUSA until after he was
sentenced. While we do not foreclose the
possibility that exceptional circumstances might
excuse a failure to seek recusal in a timely
manner, we do not believe that Ruzzano has shown
such a circumstance. Far from being a secret, the
time Judge Conlon spent in the U.S. Attorney’s
Office is a matter of public record. Therefore,
Ruzzano has waived his sec. 455(a) claim by
failing to raise it before the trial court. In
any event, the fact that a judge was an AUSA
during the prosecution, standing alone, does not
require recusal under sec. 455(a). See United
States v. Di Pasquale, 864 F.2d 271, 279 (3rd
Cir. 1988).

2.   Ruzzano’s sec. 455(b)(3) Claim

  Ruzzano next argues that the district judge
erred by not disqualifying herself pursuant to 28
U.S.C. sec. 455(b)(3). Like his sec. 455(a)
claim, Ruzzano did not request recusal in the
district court under sec. 455(b)(3) and thus
raises this issue for the first time on appeal.
Our cases have not directly addressed the issue
of whether we may review a sec. 455(b) claim
raised for the first time on appeal where the
appellant did not move for recusal below. See
United States v. Smith, 210 F.3d 760, 764 (7th
Cir. 2000). It seems, however, that our rationale
for requiring a party to petition for a writ of
mandamus in order to preserve a sec. 455(a) claim
does not apply with equal force to sec. 455
(b)(3) claims. We require the parties to petition
for a writ of mandamus for sec. 455(a) claims
because the injury we are seeking to prevent is
not an injury to an individual party, but rather
to the judicial system as a whole. In the case of
a meritorious sec. 455(b) claim, where the judge
actually did participate in the earlier
proceeding in some manner, it is more likely that
the substantial rights of the individual party
have actually been implicated. Therefore,
although mandamus is the preferred route, we will
review sec. 455(b)(3) claims notwithstanding the
failure to petition for a writ of mandamus. But,
because Ruzzano did not raise his sec. 455(b)(3)
claim before the district court, we will only
review for plain error. See Smith, 210 F.3d at
764; United States v. Ramusack, 928 F.2d 780, 784
(7th Cir. 1991).

  Section 455(b)(3) provides that a judge must
recuse herself "[w]here [s]he has served in
governmental employment and in such capacity
participated as counsel, adviser or material
witness concerning the proceeding or expressed an
opinion concerning the merits of the particular
case in controversy." Id. As applied to judges
who were formerly AUSAs, sec. 455(b)(3) requires
some level of actual participation in a case to
trigger disqualification. See Boyd, 208 F.3d at
647; Mangum v. Hargett, 67 F.3d 80, 83 (5th Cir.
1995) (holding that sec. 455(b)(3) does not
require recusal "unless the former government
attorney has actually participated in some
fashion in the proceedings"); Kendrick v.
Carlson, 995 F.2d 1440, 1444 (8th Cir. 1993);
United States v. Di Pasquale, 864 F.2d 271, 279
(3rd Cir. 1988) (finding that sec. 455(b)(3) does
not mandate recusal "absent a specific showing
that that judge was previously involved with a
case while in the U.S. Attorney’s Office."); cf.,
United States v. Pepper & Potter, Inc., 677 F.
Supp. 123, 126 (E.D.N.Y. 1988) (recusal required
when judge was the U.S. Attorney at the time of
the indictment and involvement "was not merely of
a pro forma nature"). Even an AUSA who occupied
a supervisory position in the U.S. Attorney’s
Office during the prosecution is not later
required to recuse herself solely on that basis.
See Boyd, 208 F.3d at 647 (stating that "the
requisite ’participation’ is not imputed to a
supervisor by virtue of his supervisory
authority; it must be personal"). Although there
is an exception to the requirement of actual
participation for a judge who was formerly the
U.S. Attorney, see id. at 648, this exception is
not applicable here.

  In order to show plain error, Ruzzano must show
that Judge Conlon’s participation in the
disposition of the case was an obvious or clear
error and that it affected his substantial
rights. See United States v. Olano, 507 U.S. 725,
732, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993).
Of course, to begin with, Ruzzano did not alert
Judge Conlon to any potential conflict. To date,
Ruzzano has not presented any evidence that Judge
Conlon participated in his case in any fashion.
It is undisputed that Judge Conlon’s name does
not appear on any documents relating to the case.
While there is a theoretical possibility that
Judge Conlon did express her opinion about the
merits of Ruzzano’s case, without some actual
evidence of that fact we will not find that she
erred in handling the case. Therefore, we find
that Judge Conlon did not commit plain error when
she imposed sentence on Ruzzano even though she
had been an AUSA at the time of his indictment.

B.   Ineffective Assistance of Counsel Claim

  Ruzzano next claims that he was denied
effective assistance of counsel in violation of
the Sixth Amendment because his counsel failed to
move for recusal of the district judge and did
not object to the government’s characterization
of Ruzzano as a fleeing felon. Generally, we are
reluctant to hear ineffective assistance of
counsel claims on direct appeal. See United
States v. Hall, 212 F.3d 1016, 1021 (7th Cir.
2000). Nevertheless, whether counsel has rendered
constitutionally ineffective assistance is a
mixed question of law and fact, and we review de
novo. See United States v. Shukri, 207 F.3d 412,
418 (7th Cir. 2000).

  Because we begin with a strong presumption that
counsel’s conduct falls within the wide range of
acceptable professional assistance, see Long v.
Krenke, 138 F.3d 1160, 1163 (7th Cir. 1998),
Ruzzano faces a heavy burden in making out a
winning ineffective assistance of counsel claim.
See Hall, 212 F.3d at 1021 (citing United States
v. Trevino, 60 F.3d 333, 338 (7th Cir. 1995));
see also United States v. Williams, 106 F.3d
1362, 1367 (7th Cir. 1997) (noting that the
Strickland test is highly deferential to
counsel). To prevail, Ruzzano must show that: (1)
his attorney’s performance fell below objective
standards for reasonably effective
representation; and (2) the deficient performance
prejudiced his defense. See Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984).

1. Failure to Move For Recusal of the
District Judge Under sec. 455(a) or sec.
455(b)(3)

  As one basis for his ineffective assistance of
counsel claim, Ruzzano cites to his counsel’s
failure to move for the recusal of the district
judge. Because we do not know whether Judge
Conlon played any role in Ruzzano’s indictment,
or whether Ruzzano’s counsel ever investigated
that possibility, it would be difficult to
determine on direct appeal whether counsel’s
performance fell below an objective standard of
effective representation. It is unnecessary,
however, for us to make such a determination
because we are not required to make a finding as
to the performance prong of the Strickland test
before we examine the prejudice prong. See United
States v. Depoister, 116 F.3d 292, 295 (7th Cir.
1997).

  Ruzzano’s attempt to show that he was
prejudiced by counsel’s failure to move for the
recusal of Judge Conlon falls short. In order to
show prejudice, a defendant must show a
reasonable probability that, if not for counsel’s
unprofessional errors, the outcome of the
proceeding would have been different. See
Strickland, 466 U.S. at 694. A showing that
counsel’s errors had "some conceivable effect on
the outcome of the proceeding" is not sufficient
to demonstrate prejudice. Long, 138 F.3d at 1163.
Although we are mindful of the Supreme Court’s
recent admonition that any amount of additional
time in prison can constitute prejudice, see
Glover v. United States, 121 S. Ct. 696, 700
(2001), Ruzzano has not shown a reasonable
probability that he received additional prison
time because of counsel’s error. Even if Judge
Conlon had not been involved, Ruzzano can not
show a reasonable probability that another judge
would have issued a lesser sentence. In deciding
whether a particular error prejudiced the
defendant, "a court should presume . . . that the
judge or jury acted according to law."
Strickland, 466 U.S. at 695. There is nothing in
the record to challenge this presumption; to the
contrary, it appears that Judge Conlon issued a
fair, well-considered sentence.

  The prejudice inquiry revolves around the
question of whether counsel’s deficient
performance renders the proceeding fundamentally
unfair. See Foster v. Schomig, 223 F.3d 626, 636
(7th Cir. 2000). Here, Ruzzano has not
demonstrated that his counsel’s failure to move
for the recusal of Judge Conlon rendered his
sentencing fundamentally unfair. At best, he has
shown a possibility that a different judge would
have handed down a different sentence. This falls
short of the required showing of a reasonable
probability that the sentence would have been
different. See Ransom v. Johnson, 126 F.3d 716,
721 (5th Cir. 1997) (stating that "[t]he mere
possibility of a different outcome is not
sufficient to prevail on the prejudice prong").

2. Failure to Object to
the Government’s Characterization of
Ruzzano as a Fleeing Felon

  Ruzzano also claims that he was denied
effective assistance of counsel because the
government erroneously portrayed him as a fleeing
felon in the government’s version of the offense
and at sentencing, and his counsel failed to
object. Specifically, Ruzzano argues that his
counsel erred by: (1) admitting at sentencing
that Ruzzano had been a fugitive; and by (2)
failing to object to the false impression given
by the Pre-Sentence Investigation Report (PSI)
that Ruzzano "knowingly fled the United States to
escape prosecution." We disagree. First, it is
clear that Ruzzano’s attorney did try and correct
the government’s characterization of Ruzzano as
a fugitive from justice. In defendant’s position
paper for sentencing, Ruzzano’s counsel pointed
out that Ruzzano left the country well before he
was indicted. It also maintained that Ruzzano did
not know that he was under federal criminal
investigation when he left the United States.
According to the position paper, Ruzzano left the
country not to avoid criminal charges but because
newly enacted tax laws destroyed his business
opportunities in the United States. The fact that
the district court did not accept the
interpretation of Ruzzano’s behavior urged by
Ruzzano’s counsel does not give rise to an
ineffective assistance of counsel claim.

  Given the circumstances surrounding Ruzzano’s
extradition, Ruzzano would not be able to show
that counsel’s performance fell below an
objectively reasonable standard even if his
counsel had failed to object to the
characterization of Ruzzano as a fleeing felon.
As we have already noted, "[t]he Strickland test
is ’highly deferential to counsel, presuming
reasonable judgment and declining to second guess
strategic choices.’" Shukri, 207 F.3d at 418
(quoting United States v. Williams, 106 F.3d
1362, 1367 (7th Cir. 1997)). The decision by
Ruzzano’s counsel to admit that Ruzzano was a
fugitive at one point but to focus on his
ultimate decision to turn himself in was a
reasonable tactical decision given the length of
time that Ruzzano spent overseas after he knew of
the charges against him. Similarly, counsel’s
failure to object to the contents of the PSI was
reasonable under the circumstances because the
PSI did not even take a position on the issue
that Ruzzano disputes most vigorously--whether
Ruzzano fled the country to escape prosecution.
The PSI did, in discussing the series of events
that led to Ruzzano’s extradition, note that
Ruzzano’s whereabouts were unknown to the United
States authorities at various times, but failure
to object to this portion of the PSI, far from
showing a sub-par performance by counsel, was
most likely the wisest course of action.
Therefore, we decline to second-guess Ruzzano’s
counsel’s strategic decisions about how to best
frame the time Ruzzano spent overseas.
C.   Sentencing Claims

  Ruzzano’s last claim is that the district court
abused its discretion by relying on erroneous
information and failing to take mitigating
factors into consideration during sentencing./1
As we have repeatedly noted, our review of pre-
guidelines sentences is extremely limited. See
United States v. Stevenson, 942 F.2d 1111, 1116
(7th Cir. 1991); United States v. Johnson, 903
F.2d 1084, 1089 (7th Cir. 1990). Sentences which
fall within the statutory limits will only be
reversed if the district court relied on improper
information or failed to exercise discretion. See
Johnson, 903 F.2d at 1089. Here, Ruzzano argues
that the district court erroneously relied on
dismissed counts of the indictment as well as the
government’s characterization of him as a fleeing
felon. Ruzzano’s first argument finds no support
in the record. Although the district court did
refer to Ruzzano’s investors as "victims," this
was not improper because Ruzzano admitted
committing fraud in the plea agreement. "In pre-
Guideline cases, the sentencing court may
consider the defendant’s background, character,
and conduct. Indeed, there is ’little limit on
the type of information the district court can
consider in sentencing.’" Stevenson, 942 F.2d at
1116 (quoting United States v. Marshall, 719 F.2d
887, 891 (7th Cir. 1983)). Similarly, Ruzzano can
not show that the district court abused its
discretion by agreeing with the government’s
conclusion that Ruzzano was a fugitive from
justice. Even if we accept Ruzzano’s claim that
he had no idea that he was under criminal
investigation when he left the United States, he
was surely aware of the charges against him by
1985. Thus, the district court’s determination
that Ruzzano was a fugitive from justice during
the thirteen years that Ruzzano spent overseas
after learning of the charges against him is
clearly not an abuse of discretion.

  Lastly, Ruzzano claims that the district court
erred in imposing his sentence because it failed
to consider mitigating factors such as his
remorse, acceptance of responsibility, bad
health, and time spent in "horrifying conditions"
in a Portugese prison. Ruzzano’s argument ignores
the fact that judges are entitled to determine
what weight to give mitigating factors, see
United States v. Perez, 858 F.2d 1272, 1276 (7th
Cir. 1988), and we will not upset such a
determination absent evidence that the sentencing
judge utterly failed to exercise discretion. See
United States v. Harris, 761 F.2d 394, 402-03
(7th Cir. 1985). It is clear in this case that
the district court did exercise discretion to
consider possible mitigating factors. The
district court heard arguments from two of
Ruzzano’s attorneys in mitigation, asked Ruzzano
for a statement on his own behalf, and
specifically stated that it had read and
considered the defendant’s position paper for
sentencing. We will not find an abuse of
discretion where, as here, the defendant merely
disagrees with the weight that the district judge
assigned to various mitigating factors.

II.   Conclusion

  For the foregoing reasons, we AFFIRM the sentence
imposed by the district court.



/1 Ruzzano also argues that his sentence is unduly
harsh because he would have received a lighter
sentence under the sentencing guidelines. The
appropriate punishment under the sentencing
guidelines is not relevant here, however, because
Ruzzano committed his crimes in 1979 and 1980 and
the guidelines do not apply to offenses that
occurred before November 1, 1987. See United
States v. Johnson, 903 F.2d 1084, 1092 (7th Cir.
1990) ("[I]t is irrelevant that had this been a
Guidelines case, the defendants might have
received lighter sentences.").
