Submitted: April 6, 2017
from United States District Court for the Western District of
Missouri - Kansas City
LOKEN, BOWMAN, and MURPHY, Circuit Judges.
Anthony Norwood appeals the judgment of the district
court entered after a jury found him guilty of
conspiracy to commit bank fraud. See 18 U.S.C.
§§ 1344, 1349. Norwood's counsel filed a brief
pursuant to Anders v. California, 386 U.S. 738
(1967), challenging the sufficiency of the evidence, the
admission of certain evidence, and certain sentence
enhancements. In a pro se brief, Norwood challenges the
ruling of District Judge Phillips at sentencing that she need
not recuse; he also challenges sentence enhancements and
argues that he received ineffective assistance of counsel.
For the reasons that follow, we affirm.
indictment charged that Norwood conspired with others to
commit bank fraud from December 10, 2012 to about January 4,
2013. The evidence at a three-day trial showed that United
States Postal Service investigators uncovered a scheme in
which groups from Atlanta, Georgia, traveled throughout the
United States, stole business mail from industrial business
parks, and used the stolen mail to create counterfeit payroll
checks. Norwood's conspiracy involved transactions that
occurred primarily in the Kansas City area. According to the
Postal Inspector, conspirators known as "handlers"
recruited homeless individuals who had state-issued
identification cards and were willing to cash counterfeit
checks for a small fee. The handlers provided the recruits
with clothing, transportation, and instructions on what to do
upon entering the bank and leaving with the cash. The
handlers exchanged text messages with conspirators creating
counterfeit checks and then picked up the counterfeit checks
on the way to FDIC-insured banks. The check makers ran the
crew and divided the proceeds. Law enforcement officials and
cooperating witnesses confirmed the Postal Inspector's
description of the scheme and Norwood's participation as
a check maker. The jury found him guilty. Upon careful
review, we conclude that the evidence was sufficient to
sustain the jury's verdict, and that evidence about past
events was properly admitted under Federal Rule of Evidence
404(b). See United States v. Maxwell, 778 F.3d 719,
725 (8th Cir.) (sufficiency), cert. denied, 135
S.Ct. 2390, 135 S.Ct. 2827, 136 S.Ct. 176, 136 S.Ct. 319
(2015); United States v. Beckman, 787 F.3d 466, 477-
78 (8th Cir.) (admission of Rule 404(b) evidence), cert.
denied, 136 S.Ct. 160 (2015).
beginning of the multi-day sentencing hearing, Judge Phillips
noted that, according to the presentence report, the
conspiracy for which Norwood was convicted "is part of a
nationwide counterfeit check ring out of Atlanta, Georgia,
that has been under investigation by the United States Postal
Inspection Service since 2010" --before Judge Phillips
left her position as United States Attorney for the Western
District of Missouri on March 22, 2012. Judge Phillips asked
the government for clarification as to when investigation of
the conspiracy involving Norwood had begun, so that she could
determine whether she had a conflict of interest. Assistant
United States Attorney John Cowles responded that, while the
first arrests of persons recruiting homeless persons in
Kansas City occurred in December 2011, the government
"had literally no information about Mr. Norwood"
prior to January 2013. Norwood was not indicted until
November 2013, and the counterfeit checks used in prosecuting
his conspiracy were collected no earlier than September 2012,
although evidence gathered later showed that Norwood's
involvement pre-dated the acts for which he was charged.
Judge Phillips determined that the investigation and
prosecution of Norwood's conspiracy offense occurred
after she was U.S. Attorney, so she had no conflict of
interest and recusal was not required. We agree.
federal statute governing judicial disqualification provides
that a judge "shall" disqualify if she "has
served in governmental employment and in such capacity
participated as counsel . . . or expressed an
opinion concerning the merits of the particular case in
controversy." 28 U.S.C. § 455(b)(3) (emphasis
added). Before Congress adopted this language in 1974, the
statute provided that a judge shall disqualify "in any
case in which [she] . . . has been of counsel . . . ."
28 U.S.C. § 455 (1970). As the U.S. Attorney serves as
counsel for the United States in all prosecutions brought in
her District, the term "of counsel" was construed
as requiring a federal judge to recuse in all cases where the
prosecution was brought while she was in office. Barry v.
United States, 528 F.2d 1094, 1099 n.14 (7th Cir. 1976);
see Kendrick v. Carlson, 995 F.2d 1440, 1444 (8th
Cir. 1993). However, the word "case" was given
"a rather strict meaning, " namely, that "a
'case' begins with the first formal prosecutorial
proceeding (arrest, complaint or indictment) which is
designed to bring a named alleged offender before the
court." Barry, 528 F.2d at 1098 (quotation
omitted); see In re Grand Jury Investigation, 486
F.2d 1013, 1015 (3d Cir. 1973). Though the 1974 revision
changed the word "case" to "proceeding, "
its legislative history reflected no intent to change the
restrictive case requirement of the prior statute.
Barry, 528 F.2d at 1098-99 & n.9.
1974 revision did, however, replace the reference to "of
counsel, " which suggested a per se rule of
disqualification for U.S. Attorneys, with the more limited
standard in § 455(b)(3) -- a judge must recuse if she
served in government employ "and in such capacity
participated as counsel." Under this standard,
a party seeking recusal must show that the judge while
serving as U.S. Attorney actually participated as counsel for
the government in investigating or prosecuting the specific
conspiracy underlying the present indictment. See United
States v. Di Pasquale, 864 F.2d 271, 278-79 (3d Cir.
1988); United States v. Gipson, 835 F.2d 1323, 1326
(10th Cir. 1988). Norwood made no such belated showing. Nor
did he offer evidence tending to show that a reasonable
person with knowledge of the relevant circumstances might
reasonably question Judge Phillips's impartiality,
requiring recusal under 28 U.S.C. § 455(a).
Norwood's further suggestion that due process required
Judge Phillips to recuse sua sponte is without
merit. "[U]nder the Due Process Clause there is an
impermissible risk of actual bias when a judge earlier had
significant, personal involvement as a prosecutor in a
critical decision regarding the defendant's case."
Williams v. Pennsylvania, 136 S.Ct. 1899, 1905-06
(2016). Judge Phillips while U.S. Attorney had no significant
personal involvement in a critical decision regarding
Norwood's subsequent prosecution for mail fraud
sentencing, following the presentation of evidence in support
of the recommended Guidelines calculations, the district
court sustained Norwood's objections to enhancements
involving the number of victims and the amount of intended
losses (assessing 49 victims rather than 50 or more, and
finding an intended loss of $389, 172.89 rather than $50
million or more). The court overruled his objections to
enhancements for the use of sophisticated means, the
unauthorized use of identification, and his leadership role.
We conclude that the district court properly applied the
Guidelines and made no clearly erroneous factual finding.
See United States v. Jenkins, 578 F.3d 745, 748-49
(8th Cir. 2009). The resulting advisory guidelines range was
140-175 months in prison. The district court imposed a
144-month sentence and ordered restitution of $275, 747.34.
We find nothing in the record to indicate that sentence is
as in most cases, Norwood's pro se ineffective-assistance
claims are best left for proceedings under 28 U.S.C. §
2255. See United States v. Davies, 583 F.3d 1081,
1091 (8th Cir. 2009). Following review under Penson v.
Ohio, 488 U.S. 75, 80 (1988), we find no other
nonfrivolous issue for direct appeal. Accordingly, the
judgment of the district court is affirmed. We grant
counsel's motion to withdraw.
The Honorable Beth Phillips, United
States District Judge for the Western District of