United States v. Larry Hill , 622 F. App'x 193 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4652
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LARRY A. HILL,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Margaret B. Seymour, Senior
District Judge. (3:08-cr-00734-MBS-1)
Submitted: February 9, 2015 Decided: February 12, 2015
Before KING, Circuit Judge, and HAMILTON and DAVIS, Senior
Circuit Judges.
Affirmed by unpublished per curiam opinion.
Larry A. Hill, Appellant Pro Se. James Hunter May, Assistant
United States Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In the proceedings below, the district court found
that Larry Hill violated certain conditions of his supervised
release, revoked his release, and sentenced him to ten months of
imprisonment, while continuing him on supervised release for two
years. Specifically, the court found Hill’s conduct (the
creation of false and fraudulent IRS forms) amounted to
retaliation against a federal judge and federal law enforcement
officers by making false claims, in violation of 18 U.S.C.
§ 1521. On appeal, Hill contends that the district court erred
when it: (1) deprived him of due process; (2) denied his motion
to dismiss; (3) denied his requests for witness subpoenas;
(4) denied his motion for recusal; and (5) denied his challenge
to the revocation proceedings for lack of sufficient evidence.
We find no merit in these contentions and we therefore affirm.
First, “[w]e review the alleged denial of due process
de novo.” United States v. Legree, 205 F.3d 724, 729 (4th Cir.
2000). A defendant on supervised release has a procedural due
process right to a fair and impartially conducted revocation
hearing. See United States v. Copley, 978 F.2d 829, 831 (4th
Cir. 1992). Our review of the record reflects that Hill
received the appropriate process. He received a full hearing,
was permitted to confront his accusers, and was given notice of
the charges via the supervised release revocation report. While
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the report was amended, the amendment properly notified Hill of
the revisions to the allegations. See Fed. R. Crim. P.
32.1(b)(2)(A). We thus find no merit in Hill’s generalized due
process claim.
Second, we note that, in his opening brief, Hill fails
to address the district court’s grounds for denying his motion
to dismiss. By this failure, he has forfeited review of this
issue on appeal. See 4th Cir. R. 34(b) (limiting review to
issues raised in opening brief); see also Edwards v. City of
Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999) (holding that
failure to raise issue in opening brief constitutes abandonment
on appeal).
Third, we review the district court’s denial of the
request for witness subpoenas for abuse of discretion. See
United States v. Espinoza, 641 F.2d 153, 159 (4th Cir. 1981).
To the extent Hill claims that this denial violated his right to
confrontation, our review is de novo. United States v. Summers,
666 F.3d 192, 197 (4th Cir. 2011).
Supervised release revocation hearings are not
“criminal prosecutions” under the Sixth Amendment. United
States v. Ward, 770 F.3d 1090, 1097 (4th Cir. 2014).
Accordingly, as we have recently reiterated, defendants in
supervised release revocation hearings are only entitled to the
limited right of confrontation guaranteed by Fed. R. Crim. P.
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32.1(b)(2)(C). United States v. Ferguson, 752 F.3d 613, 616
(4th Cir. 2014). Our review of the record shows that the
district court neither abused its discretion nor violated Hill’s
right to confrontation in denying his subpoena requests. To the
contrary, Hill was afforded a full opportunity to confront his
accusers via cross-examination and he did so, at length.
Fourth, we review the denial of a motion for recusal
for abuse of discretion. United States v. Whorley, 550 F.3d
326, 339 (4th Cir. 2008). A judge should grant a motion for
recusal “in any proceeding in which h[er] impartiality might
reasonably be questioned”; “[w]here [s]he has a personal bias or
prejudice concerning a party, or personal knowledge of disputed
evidentiary facts concerning the proceeding”; or where she has a
financial interest in the litigation. 28 U.S.C. § 455 (2012).
Generally, “[appellate] courts have only [reversed the
denial of] recusal motions in cases involving particularly
egregious conduct [by the presiding judge].” Belue v.
Leventhal, 640 F.3d 567, 573 (4th Cir. 2011). Moreover, in
order to disqualify a judge, the “bias or prejudice must, as a
general matter, stem from a source outside the judicial
proceeding at hand.” Id. at 572 (internal quotation marks
omitted). As to whether a financial interest is disqualifying,
it “depends upon the remoteness of the interest and its extent
or degree. . . . As the interest becomes less direct, it will
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require disqualification only if the litigation substantially
affects that interest.” In re Beard, 811 F.2d 818, 831 (4th
Cir. 1987). Ultimately, the test for whether a judge must
recuse herself “is an objective one: . . . a judge must
disqualify [her]self whenever [her] impartiality might
reasonably be questioned.” United States v. Cherry, 330 F.3d
658, 665 (4th Cir. 2003).
We have reviewed the record and discern no abuse of
discretion in the denial of the recusal motion. Under the
unique circumstances presented here, the fact that Hill was
charged with attempting to file a false lien against the
presiding judge (among other federal officials and employees
involved in this case) did not necessitate the judge’s recusal.
See United States v. Cooley, 1 F.3d 985, 993-94 (10th Cir. 1993)
(noting that party’s baseless suits against judge do not require
judge’s recusal); United States v. Parker, 724 F.2d 127, 128
(4th Cir. 1984) (noting that knowledge acquired through
involvement in judicial proceedings does not constitute personal
bias necessitating recusal). Indeed, we note that even were one
to regard the case as involving the judge’s “financial
interest,” a view which no reasonable person would entertain in
any event, that “interest” is far too remote and speculative to
necessitate recusal. We therefore hold that the district court
did not abuse its discretion in denying the recusal motion.
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Fifth and finally, in a supervised release revocation
hearing, we review the decision on revocation under an abuse of
discretion standard. United States v. Pregent, 190 F.3d 279,
282 (4th Cir. 1999). To revoke supervised release, a district
court need only find a violation of a condition of supervised
release by a preponderance of the evidence. 18 U.S.C.
§ 3583(e)(3). We review for clear error the district court’s
factual findings underlying the conclusion that a violation of
the terms of supervised release occurred. See United States v.
Carothers, 337 F.3d 1017, 1019 (8th Cir. 2003).
We have reviewed the record and determined that the
district court had sufficient evidence to find that Hill engaged
in conduct constituting a violation of supervised release.
Specifically, the district court did not commit clear error in
finding, by a preponderance of the evidence, that Hill attempted
to create a false liens by filing IRS Form 56 with the IRS and
Form 1099c with the district court.
For the foregoing reasons, the judgment is affirmed.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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