* Pursuant to 5 TH C IR

. R. 47.5, the court has determined that this opinion should not be published and is

not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

July 22, 2004

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-10278

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROBERT H. GROSS,

Defendant-Appellant.

__________________________________________

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:96-CR-82-ALL-A

__________________________________________

Before WIENER, BENAVIDES and STEWART, Circuit Judges.

PER CURIAM: *

Robert H. Gross appeals from 1996 conviction, following a bench proc eeding, o f criminal

contempt, a violation of 18 U.S.C. § 401(3). In 2004, following Gross’s return from an abscondence

of more than seven years, Gross was sentenced to six months in prison and fined $5,000.

Gross contends that the district court erred by denying his motion for recusal, filed pursuant

to 28 U.S.C. § 455. At a civil-contempt hearing on May 22, 1996, more than one month before the

conviction, the district court stated that Gross had “thumbed his nose” at a grand-jury subpoena, that2

Gross’s conduct was “outrageou s,” and that he “should be punished.” Gross maintains that these

remarks showed that there was reason to question the court’s impartiality at the subsequent criminalcontempt proceedi ng o n June 26, 1996. Because Gross has not established that these remarks

“display[ed] a

deep-seated favoritism or antagonism that would make fair judgment impossible,”

see Liteky v. United States

, 510 U.S. 540, 555 (1994), he has not shown that the court abused its

discretion in denying the motion for recusal. M atassarin v. Lynch

, 174 F.3d 549, 571 (5th Cir. 1999).

Gross implies that the district court was under the mistaken impression that any bias was required to

be based on an “extrajudicial source,” b ut t he record does not reflect that the court held any such

impression.

Gross asserts that the court actually foun d him guilty of criminal contempt at the May 22,

1996, civil-contempt proceeding and that the June 26, 1996, proceeding was merely “window

dressing.” He contends that court failed to provide him with notice, as required by the former F E D

.

R. C RIM

. P. 42(b), that he was facing a cr iminal contempt proceeding on May 22, 1996. Because

Gross did not make such a challeng e in dist rict court, this contention is reviewable for plain error

only. S ee United St ates v. Burton , 126 F.3d 666, 671 (5th Cir. 1997). Under the plain-error

standard, the defendant bears the burden of showing that (1) there is an error (2) that is cl e ar or

obvious and (3) that affects substanti al rights. S ee United States v. Olano

, 507 U.S. 725, 732-34

(1993). Gross has not made such a showing. Although the co urt opined at the May 22, 1996,

proceeding that he “should be punished,” these remarks amounted only to a determination that there

was sufficient evidence to establish to require Gross to show cause why he should be held in criminal

contempt. Gross does not suggest that he was not provided with proper notice for the June 26, 1996,

criminal-contempt proceeding.3

The judgment of the district court is AFFIRMED. Gross’s motion for a stay of execution of

his fine is DENIED.