                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-6-2007

USA v. De Graaff
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2093




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                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 06-2093


                           UNITED STATES OF AMERICA,

                                            v.

                             KATHLEEN T. DE GRAAFF,

                                                 Appellant


                    On Appeal from the United States District Court
                             for the District of New Jersey
                           (D.C. Criminal No. 05-cr-00829)
                        District Judge: Hon. William J. Martini


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                     June 4, 2007

                            BEFORE: SMITH and COWEN,
                              and SILER*, Circuit Judges

                                  (Filed: July 6, 2007)




*Honorable Eugene E. Siler, Jr., Senior United States Circuit Judge, U.S. Court of
Appeals for the Sixth Circuit, sitting by designation.
                                         OPINION


COWEN, Circuit Judge.

       Kathleen T. De Graaff appeals from an order entered by the United States District

Court for the District of New Jersey affirming a judgment of conviction and sentence

entered by a United States Magistrate Judge following a bench trial. The District Court

had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction over the appeal

pursuant to 28 U.S.C. § 1291. For the reasons set forth below, we will affirm.

                                             I.

       Because we write solely for the parties, we set forth only those facts necessary to

our decision.

       On April 18, 2004, police officers of the Department of Veterans Affairs (“VA”)

issued De Graaff two Violation Notices, charging her with simple assault in violation of

18 U.S.C. § 113(a)(5), and disorderly conduct in violation of 38 C.F.R. § 1.218(b)(11).

The charges arose out of an incident involving De Graaff and a nurse at the VA New

Jersey Healthcare Facility in Lyons, New Jersey.

       At her initial appearance on June 24, 2004, De Graaff submitted a financial

affidavit to the court. Based upon the affidavit, the Magistrate Judge appointed a federal

public defender to represent De Graaff. Thereafter, the Magistrate Judge entered a plea of

not guilty onto the record and set the next court date, noting that officers from the VA had

informed her that the security officers involved in the incident were not present in court.

                                             2
       Before concluding the initial appearance, the Magistrate Judge discussed a letter

which De Graaff had written and addressed to the Chief Judge of the District Court. The

letter apparently dealt with De Graaff’s concerns about problems at the VA hospital,

because the Magistrate Judge responded that she “c[ould]n’t order [] people at the V.A.

Hospital to rectify whatever problems you think are there.” (S.A. at 6.) Despite the

Magistrate Judge’s lack of authority, he asked De Graaff several questions concerning her

trips to the VA hospital and the laundering of her late husband’s clothing during his stay

at the VA hospital, which De Graaff answered. Subsequently, the Magistrate Judge

concluded the hearing.

       At no time during the initial appearance did the Magistrate Judge inform De Graaff

of the penalties associated with the charges against her, her right to retain counsel, or her

right not to make a statement, nor did the Magistrate Judge advise De Graaff that any

statement she made may be used against her. The Magistrate Judge stated only in passing

that she “d[id]n’t know what it is that they allege you did, which gives rise to the charge

of assault and being a disorderly person.” (Id.)

       At a hearing held on July 29, 2004, De Graaff indicated to the Magistrate Judge

that she wished to apply for pretrial diversion. The Magistrate Judge therefore postponed

the trial pending a decision on defendant’s pretrial diversion application.

       On August 26, 2004, the Magistrate Judge held a pretrial conference. At the

conference, De Graaff indicated to the Magistrate Judge that she did not wish to proceed

with pretrial diversion. The Magistrate Judge, therefore, scheduled the matter for trial.

                                              3
Toward the end of the conference, De Graaff spoke out of turn, prompting the Magistrate

Judge to warn De Graaff that if she spoke or disrupted the courtroom, he would have her

“locked up.” (Id. at 28.) When De Graaff stated that she had “one thing to say,” the

Magistrate Judge retorted, “You have nothing to say. Leave the courtroom, Mrs. De

Graaff.” (Id.) After De Graaff had left the courtroom, the Magistrate Judge’s clerk

asked what she should do if De Graaff called inquiring about transcripts of the

proceedings. The Magistrate Judge instructed the clerk to “tell [De Graaff] she can get all

of her transcripts at once at the end.” (Id. at 29.)

       On September 15, 2004, the government superceded the charges by way of

Complaint. The Complaint charged De Graaff with assault by striking, beating, or

wounding in violation of 18 U.S.C. § 113(a)(4), in addition to the disorderly conduct

charge.

       A bench trial on the charges occurred on September 30, 2004 and November 23,

2004 before the Magistrate Judge. The Magistrate Judge found De Graaff guilty of

assault and disorderly conduct. She was sentenced to one year of probation, ordered to

refrain from contact with the VA nurse, and ordered to participate in a mental health

program. De Graaff appealed her conviction and sentence to the District Court, which

affirmed, and this appeal ensued.

                                               II.

       The District Court’s legal determinations are reviewed de novo, United States v.

Ledesma-Cuesta, 347 F.3d 527, 530 (3d Cir. 2003), and its factual findings are reviewed

                                               4
for clear error, United States v. Helbling, 209 F.3d 226, 237 (3d Cir. 2000).

                                             A.

       De Graaff’s first contention is that her conviction should be set aside because the

Magistrate Judge failed to comply with the procedures set forth in Rule 58(b) of the

Federal Rules of Criminal Procedure, governing initial appearances. For the reasons

expressed below, we conclude that the Magistrate Judge’s non-compliance with Rule

58(b) amounts to harmless error, and, thus, even assuming arguendo that De Graaff raised

this claim below, we cannot find any error in the District Court’s judgment.

       Rule 58 imposes a mandatory obligation on a magistrate judge to inform a

defendant at her initial appearance on a petty offense of the following: (1) the charge(s),

(2) the minimum and maximum penalties, (3) the right to retain counsel, and (4) the right

not to make a statement, and that any statement made may be used against her. Fed. R.

Crim. P. 58(b)(2)(A)-(B), (D). Here, there is no question that the Magistrate Judge failed

to comply with these procedures.

       Despite the importance of the Rule 58 procedures, we are compelled to conclude

that the Magistrate Judge’s error was harmless because it is “highly probable” that the

omission did not contribute to the conviction. United States v. Zehrbach, 47 F.3d 1252,

1265 (3d Cir. 1995) (internal quotation marks, emphasis, and citation omitted) (setting

forth the harmless error standard for non-constitutional violations). While the Magistrate

Judge unquestionably failed to advise De Graaff of her right to retain counsel, it is highly

improbable that De Graaff would have exercised that right, given that her financial

                                              5
situation necessitated the appointment of a federal public defender. Similarly, while the

Magistrate Judge did not inform De Graaff of her right not to make a statement and that

any statement might be used against her, there is no indication that the statements she

made at her initial appearance, concerning the frequency of her visits to the VA hospital

and the laundering of her husband’s clothes, or any inferences drawn therefrom, were

used against her at trial.

       Likewise, no prejudice resulted from the Magistrate Judge’s failure to inform De

Graaff of the precise charges against her. De Graaff had notice of the initial charges

brought against her by way of the Violation Notices, and the Magistrate Judge at least

adverted to the “charge of assault and being a disorderly person” at the initial appearance.

(S.A. at 6.) As defense counsel conceded at the beginning of trial, De Graaff “had notice

of the facts” and had “been able to investigate and prepare.” (Id. at 40.)

       Finally, although we are very troubled by the Magistrate Judge’s complete failure

to address the minimum and maximum penalties at the initial appearance, it is highly

improbable that any prejudice resulted. De Graaff was made aware of the maximum

penalty for the upgraded assault charge at the beginning of trial, when the government

stated in open court that the penalty for assault by striking, beating, or wounding was “a

maximum [of] six months imprisonment, and a maximum fine of $5,000.” (Id. at 38.)

There is no indication in the record that De Graaff would have proceeded differently had

she known of the penalties at the initial appearance. Moreover, even if she would have

pled guilty, it is highly improbable that she would have received a lesser sentence than the

                                             6
one year of probation.

       In summary, we conclude that while the Magistrate Judge failed to comply with

the Rule 58 procedures, the District Court’s decision to affirm the judgment of conviction

was not erroneous because there is a “high probability” that the Magistrate Judge’s error

did not contribute to the conviction.

                                             B.

       De Graaff’s next argument is that the Magistrate Judge evinced a deep-seated

prejudice and hostility toward her, necessitating vacatur of her conviction. Again even

assuming arguendo that De Graaff raised this claim below, we conclude that the record

does not support her claim of bias and therefore find no error in the District Court’s

decision.

       Under 28 U.S.C. § 455(a), a magistrate judge must “disqualify himself in any

proceeding in which his impartiality might reasonably be questioned.” The test for

recusal under § 455(a) is whether a “reasonable person, with knowledge of all the facts,

would conclude that the judge’s impartiality might reasonably be questioned.” In re

Kensington Int’l Ltd., 368 F.3d 289, 301 (3d Cir. 2004). Generally, “beliefs or opinions

which merit recusal must involve an extrajudicial factor.” Selkridge v. United of Omaha

Life Ins. Co., 360 F.3d 155, 167 (3d Cir. 2004) (internal quotation marks and citation

omitted). Absent an extrajudicial factor, the facts must display a “deep-seated favoritism

or antagonism that would make fair judgment impossible.” Liteky v. United States, 510

U.S. 540, 555 (1994).

                                             7
       De Graaff claims that the above-mentioned letter she wrote to the Chief Judge of

the District Court was the impetus for the Magistrate Judge’s prejudice and hostility. She

claims that after learning about the letter, the Magistrate Judge committed “countless

errors,” but specifically refers only to an alleged violation of her right against self-

incrimination. She complains that the Magistrate Judge’s questioning at her initial

appearance required her to give self-incriminating answers and emanated from bias.

       After careful review of the record, we cannot conclude that a reasonable person,

knowing all of the circumstances, would have questioned the Magistrate Judge’s

impartiality in this case. While De Graaff’s letter constitutes an extrajudicial factor, and

the Magistrate Judge did make some errors in this case, such as his failure to comply with

Rule 58, there is no evidence that the Magistrate Judge acted with bias against De Graaff.

Indeed, the Magistrate Judge’s questioning at the initial appearance was responsive to De

Graaff’s own stated concerns about problems which she perceived existed at the VA

hospital, not any bias or hostility toward De Graaff. Moreover, as discussed above, there

is no indication that the answers which De Graaff gave in response to the Magistrate

Judge’s questioning were used against her at trial.

       In sum, we conclude that the record does not support a finding of an extrajudicial

factor causing impartiality or such a high degree of favoritism or antagonism as to make

fair judgment impossible. Thus, we find no error in the District Court’s rejection of De




                                               8
Graaff’s claim of bias.1

                                               C.

       De Graaff’s final contention is that she was a victim of a conspiracy to deny her

access to tape recordings of the proceedings. The District Court rejected this argument,

as do we, because the conspiracy claim is unsupported by the evidence.

       In support of her conspiracy claim, De Graaff points to the following statement

made by the Magistrate Judge to her clerk on August 26, 2004 at the end of the pretrial

conference: “If [De Graafff] calls you, tell her she can get all of her transcripts at once at

the end.” (S.A. at 29.) De Graaff claims that by remaining silent after the Magistrate

Judge made this statement, the prosecutor joined the alleged conspiracy. She further

asserts that in papers filed with the District Court, the prosecutor misquoted a portion of

the August 26, 2004 hearing transcript. Whatever the meaning of the Magistrate Judge’s

and the prosecutor’s actions, the record reveals that De Graaff was, in fact, allowed

access to tape recordings of the proceedings. De Graaff’s trial counsel indicated that in

preparation for trial, he had listened to the tape recordings of the pretrial proceedings.

Similarly, her post-trial counsel acknowledged that he had ordered and obtained



  1
    In the part of her brief addressing bias, De Graaff also posits that the Magistrate Judge
violated her right to a speedy trial by not setting her case for trial at her initial appearance,
thereby causing a one-month delay in the proceedings. Even assuming arguendo that a
constitutional right to a speedy trial attaches to petty offenses, we find no violation in this
case requiring reversal because De Graaff has not alleged that she suffered any prejudice
as a result of the brief delay. See Chapman v. California, 386 U.S. 18, 24 (1967) (no
reversal required where constitutional error is “harmless beyond a reasonable doubt”).

                                               9
transcripts of all of the proceedings. At most, De Graaff’s access to the tape recordings

was delayed; however, there is no indication in the record that the delay caused her any

prejudice whatsoever. Given this factual record, we cannot conclude that the District

Court committed error.

       For the foregoing reasons, the order of the District Court entered on March 20,

2006 will be affirmed.




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