In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 14-2223

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JESSE A. SMITH,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the

Central District of Illinois.

No. 4:08-cr-40067-SLD-JEH-1— Sara Darrow, Judge.

____________________

SUBMITTED DECEMBER 3, 2014 — DECIDED JANUARY 5, 2015

____________________

Before POSNER, ROVNER, and TINDER, Circuit Judges.

POSNER, Circuit Judge. In an opinion reported at 770 F.3d 

653 (7th Cir. 2014), we considered the appeal of Jesse Smith 

from a sentence of 15 months in prison imposed on him by 

Judge Darrow for violating conditions of supervised release. 

While remarking that the defendant’s current profile was not 

that of a dangerous criminal and expressing doubt about the 

utility of his continued imprisonment, we indicated that we 

would have affirmed Judge Darrow’s judgment had we not 
2 No. 14-2223

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 another 

district judge for an earlier violation of supervised release. 

The document states that the assistant U.S. attorney handling the revocation case was Sara Darrow, who six months 

later was confirmed as a federal district judge. The docket 

sheet in this case states that she had appeared before the 

judge handling the defendant’s first violation on January 7, 

2011, for the initial hearing on that alleged violation. There is 

no indication that she had appeared at any subsequent hearing, 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 Darrow’s participation in the earlier revocation hearing as an 

assistant U.S. attorney and asked one of the defendant’s 

lawyers whether he wanted to make an issue of it on appeal. 

(The issue had not been raised in the district court.) The 

lawyer declined. We just happened to come across the Violation Memorandum, which is part of the record in this case, 

and having read it became concerned there might be an issue of recusal.

The hearing at which Judge Darrow sentenced the defendant was held on May 29, 2014. We did not know, when 

we were considering the defendant‘s appeal from the sentence, how extensive her participation in the 2011 hearing 

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 earlier hearing. We could not

exclude the possibility that the sentence had been influenced 

by a recollection by the judge, perhaps prompted by the de-
No. 14-2223 3

fendant’s history of violations of supervised release prepared by the probation service, that she had participated in 

the defendant’s first revocation hearing.

Section 455(b)(3) of the Judicial Code provides that a 

judge “shall ... disqualify himself ... where 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.” “Proceeding” is defined to 

include “pretrial, trial, appellate review, or other stages of 

litigation.” 28 U.S.C. § 455(d)(1). For purposes of this case, at 

least, “proceeding” includes the entire sequence of the defendant’s violations of supervised release, since the judge in 

sentencing the defendant relied in part on his earlier violations.

Because the record in this case was inadequate to enable 

us to determine whether Judge Darrow had violated the Judicial Code, we decided to suspend our decision of the appeal 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 litigation. Those 

briefs have now been submitted and the issue of disqualification is ripe for resolution.

The government acknowledges that Judge Darrow indeed violated the Judicial Code by failing to disqualify herself; the language of the statute is clear and clearly applicable 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 not 
4 No. 14-2223

committed 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 unconsciously, by her earlier prosecutorial involvement with the 

defendant. Ordinarily a decision not to raise an issue is a 

waiver, barring further judicial review. However, a ground 

for disqualification that is specified in 28 U.S.C. § 455(b)—

and the possible ground in this case is, as we noted, specified in section 455(b)(3)—cannot be waived. 28 U.S.C. 

§ 455(e).

The government acknowledges as we said the judge’s 

statutory violation but argues that it was harmless—that her 

involvement in the case as a prosecutor “was minimal”: “she 

appeared only once, and her appearance then was strictly 

pro forma; it involved virtually no substantive decisionmaking. At most, she requested temporary detention pending a detention hearing, which she did not handle.” But the 

government does not indicate the source for its description 

of her involvement. The revocation hearing in which she 

participated occurred four years ago. There appears to be no 

written record of what she did or said or heard during the 

hearing, and the government has not told us whose memory 

it’s relying on in telling us that her participation “was strictly pro forma.”

Tellingly, the government does not say that AUSA Darrow 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 his misdeeds at 

length with other members of the office. And the government’s statement that her appearance at the hearing was 

“strictly pro forma” is false. The docket sheet states that at the 
No. 14-2223 5

hearing the government in the person of AUSA Darrow

asked the judge to jail the defendant pending a further hearing on the charge of violating supervised release. There was 

nothing pro forma about that. And the government does not 

really believe that her participation was pro forma, for if it 

were there would be no violation of section 455(b)(3), United 

States v. Ruzzano, 247 F.3d 688, 695 (7th Cir. 2011)—yet the 

government concedes the violation.

Later of course the defendant committed additional violations of supervised release, winding up in front of Judge 

Darrow. In imposing a 15-month sentence she commented 

on the defendant's history of noncompliance with conditions 

of supervised release, and on the disappointment that she 

was experiencing on behalf of her predecessor, Judge 

McDade, who had given Smith various breaks during his 

appearances before him on charges of violating supervised 

release.

So we have a situation in which a prosecutor who advocates against a particular defendant later sentences him to 

prison, albeit for subsequent though related violations—

sufficiently 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 that earlier proceeding against the defendant, however, and we do not suggest that she remembered it. But the possibility that a conscious or (more likely, 

we think) an unconscious recollection influenced the sentence she imposed cannot be excluded. The defendant had 

been accused of a more serious violation of supervised release in the earlier hearing, had been treated leniently by the 
6 No. 14-2223

judge, yet had continued violating supervised release, and 

the possibility that this history exerted an influence on the 

current sentence cannot be rejected on the basis of the government’s casual assertions. A “risk of undermining the public’s confidence in the judicial process”—a proper consideration when deciding on the appropriate remedy for a violation of the Judicial Code, see Liljeberg v. Health Services Acquisition 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 sentencing proceeding before a different district judge.

SO ORDERED.