### In the 

# United States Court of A p peals For the Seventh Circuit

____________________ No. 14

- 2223
U NITED S TATES OF A MERICA , Plaintiff

- Appell ee ,

v.
J ESSE A. S MITH , Defendant

- Appell ant

.

____________________ Appeal from t he United States District Court for the C entral District of Illinois

. No

. 4:08

- cr

- 40067

- SLD

- JEH

- 1

— Sara Darrow , Judge

.

____________________
S UBMITTED D ECEMBER 3 , 2014

— D ECIDED J ANUARY 5, 2015

____________________

Before P OSNER , R OVNER , and T INDER , Circuit Judges

. P OSNER , Circuit Judge

. In an opinion reported at 770 F.3d 653 (7th Cir. 2014), we considered the appeal of Jesse Smith from a se n tence of 15 months in prison imposed on him by Judge Darr ow for violati ng conditions of supe r vised release. While remar k ing that the defendant’s current profile was not that of a dangerous crimi nal and expressing doubt about the utility of his continued imprisonment , we indica t ed that we would have affirmed Judg e Darrow’s judgment had we not2 No. 14

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discovered in the record a document (called a Violation Memorandum ) , mentioned by neither party, dated February 18, 2011, that had been prepared by the probation service shortly before the defendant had been sentenced by anot her district judge for an earlier v i olation of supervised release. The document states that the assistant U.S. attorney ha ndling the revocation case was Sara Darrow , who six months later was confirmed as a federal district judge

. The docket sheet in this c ase states that she had a p peared before the judge handling the defendant’s first violation on January 7, 2011, for the in i tial hearing on that alleged violation. There is no indication that she had appeared at any subsequent hea ring , or had had any further involvement with the defendant until the present case

. One of the government’s appellate lawyers noticed the reference on the docket sheet to Da rrow’s particip a tion in the earlier revocation hearing as an assistant U.S. a t torney and asked one of the defen dant’s lawyers whether he wanted to make an issue of it on appeal

. (The issue had not be en raised in the district court.) The la w yer declined . We just happened to come across the Viol ation Memorandum, which is part of the record in this case, and having re ad it became concerned there might be an i ssue of recusal

. The hearing at which Judge Darrow sentenced the d efendant was held on May 29 , 2014

. We did not know, when we were considering the defendant‘s appeal from the se ntence , how extensive her participati on in the 2011 hea r ing had been, or whether at the hearing this past May at which she had sentenced the defendant she had had any conscious or unconscious memory of the ea r lier hearing

. We could not exclude the po s sibility that the sentence had been influe nced by a recollection by the judge , perhaps prompted by the d e-No. 14

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fendant’s history of violations of supervised release pr epared by the probation service, that she had participated in the defendant’s first revocation hea r ing

. S ection 455(b)(3) of the Judicial Code provides that a judge “shall ... disqualify himself ... where he has served in governmental e m ployment and in such capacity participated as counsel, adviser or material witness concerning the pr ocee d ing or expressed an opinion concerning the merits of the particular case in controversy.” “Proceeding” is defined to include “pretrial, trial, appellate review, or other stages of lit i gation.” 28 U.S.C. § 455(d)(1). For purposes of this case, at least, “proceeding” includes the entire sequence of the d efenda nt’s violations of supervised release, since the judge in sentencing the defendant relied in part on his earlier viol ations.

B ecause the record in this case was i n adequate to enable us to determine whether Judge Darrow had violated the J udicial Code , we de cided to suspend our decision of the a ppeal pending receipt from the parties of supplemental briefs , which we asked them to file, addressing the applicability of section 455(b)(3) to her participation in this lit i gation. Those briefs have now been submitte d and the issue of disqualif ication is ripe for resol u tion.
The government acknowledges that Judge Darrow i ndeed violated the Judicial Code by failing to disqualify he rself; the language of the statute is clear and clearly applic able to her. The defendant’ s brief acknowledges his counsel’s “strategic decision” not to complain about the violation on appeal , but argues that it was only after our opinion on the merits of the appeal expressed doubt about the severity of the sentence (while concluding that Judge Darrow had not4 No. 14

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commi t ted a reversible error in sentencing the defendant to 15 months in prison) that it occurred to counsel that the judge might have been influenced, consciously or un co nsciously, by her earlier prosecutorial involvement with the defendan t. Ordinarily a decision not to raise an issue is a waiver, ba r ring further judicial review. However, a ground for disqual i fication that is specified in 28 U.S.C. § 455(b)

— and the possible ground in this case is , as we noted, spec ified in section 455(b)(3)

— cannot be waived. 28 U.S.C. § 455(e). The government acknowledges as we said the judge’s statutory viol a tion but argues that it was harmless

— that her involvement in the case as a prosecutor “was min i mal”: “she appeared only once, and her appearance then w as strictly pro forma ; it involved virtually no substantive dec i sion

making. At most, she requested temporary detention pen ding a detention hearing, which she did not handle.” But the government does not indicate the source for its description of her invol vement. The revocation hear ing in which she participated occurred four years ago. There appears to be no wri t ten record of what she did or said or heard during the hea r ing, and the government has not told us whose memory it’s relying on in telling us that her pa r ticipation “was stric tly pro forma .” Tellingly, the government does not say that AUSA Da rrow did not discuss the case with other members of the U.S. Attorney’s office. For all we know , in preparation for the hearing she discussed the defendant and h is misdeeds at length with other members of the office. And the gover nment’s statement that her appearance at the hearing was “strictly pro forma ” is false. The docket sheet states that at theNo. 14

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hearing the government in the person of AUSA Da r row asked the j udge to jail the defendant pending a further hea ring on the charge of violating supervised release

. There was nothing pro forma about that. And the government does not really believe that her pa r ticipation was pro forma , for if it

were there would be no vi o lation of section 455(b)(3) , United States v. Ruzzano , 247 F.3d 688, 695 (7th Cir. 2011)

— y et the government concedes the viol a tion.
Later of course the defendant committed additional vi olations of supervised release , winding up in front of Judge Darrow. I n imposing a 15

- month sentence she commented on the defendant's his tory of non compliance with co n ditions of supervised release, and on the disappointment that she was experiencing on behalf of her predecessor, Judge McDade, who had given Smith various brea ks during his appearances b e fore him on charges of violating supervised release.
So we have a situation in which a prosecutor who adv ocates against a particular defendant later sentences him to prison, albeit for subsequent though related violations

— suffic iently related that she referred to the prior violations as influencing the sentence she imposed

. One might say that the judge was finishing the work of the prosecutor she had been

. Judge Darrow has said nothing about her participation as a prosecutor in t hat earlier proceeding against the d efe n dant, however, and we do not su g gest that she reme mbered it . But the possibility that a co n scious or (more likely, we think) an unconscious recollection influen c ed the se ntence she imposed cannot be excluded. The d e f endant had been ac cused of a more serious violation of supervised r elease in the earlier hearing, had been treated leniently by the6 No. 14

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judge, yet had continued violating supervised release , and the po s sibility that this history exerted an influence on the

cur rent sentence cannot be r e jected on the basis of t he go vernment’s casual assertions

. A “ risk of undermin ing the pu blic’ s conf i dence in the judicial pr o c ess”

— a proper consider ation when deciding on the appropriate remedy for a viol ation of the Judicial Code , see Liljeberg v. Health Services Acqu isition Corp. , 486 U.S. 847, 864 (1988)

— is present

. In order, therefore, to dispel any possibility of an injustice stemming from the judge’s violation of the Code , we have decided to vacate the judgment and remand for a do

- over of the se ntencing pr o ceeding b e fore a different district judge.

S O O RDERED

.