United States of America v. Cynthia Whitman

*The Honorable Kathleen M. O’Malley, United States District Judge
for the Northern District of Ohio, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0106P (6th Cir.)
File Name: 00a0106p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED S TATES OF AMERICA ,
Plaintiff-Appellee,
v.
C YNTHIA W HITMAN ,
Defendant-Appellant.
;>

1
No. 99-6086
Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
No. 99-20085—Jon Phipps McCalla, District Judge.
Argued: March 6, 2000
Decided and Filed: March 24, 2000
Before: SILER and GILMAN, Circuit Judges;
O’MALLEY, District Judge.*
_________________
COUNSEL
ARGUED: Stephen B. Shankman, OFFICE OF THE
FEDERAL PUBLIC DEFENDER FOR THE WESTERN
DISTRICT OF TENNESSEE, Memphis, Tennessee, for

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2 United States v. Whitman No. 99-6086
Appellant. Stephen C. Parker, ASSISTANT UNITED
STATES ATTORNEY, Memphis, Tennessee, for Appellee.
ON BRIEF: Stephen B. Shankman, OFFICE OF THE
FEDERAL PUBLIC DEFENDER FOR THE WESTERN
DISTRICT OF TENNESSEE, Memphis, Tennessee, for
Appellant. Stephen C. Parker, Vivian R. Donelson,
ASSISTANT UNITED STATES ATTORNEYS, Memphis,
Tennessee, for Appellee.
_________________
OPINION
_________________
PER CURIAM. On April 26, 1999, Cynthia Whitman pled
guilty to one count of bank embezzlement in violation of 18
U.S.C. § 656. The district court denied Whitman a two-level
downward adjustment for acceptance of responsibility under
the United States Sentencing Guidelines and sentenced her to
a thirteen-month term of imprisonment and five years of
supervised release. Whitman appealed, contending that she
should have been granted the downward adjustment and that
the district court judge should have recused himself because
his comments and demeanor at the sentencing hearing
reflected impermissible bias against her and her counsel. For
the reasons set forth below, we VACATE the sentencing
order of the district court and REMAND for resentencing
before a different judge.
I. BACKGROUND
On July 24, 1995, Whitman began work as a teller at La
Capitol Federal Credit Union in Louisiana. Whitman failed
to advise the credit union that she had previously been
convicted of a misdemeanor embezzlement charge in 1989.
On April 28, 1997, a branch manager of the credit union
conducted a surprise audit of Whitman’s teller drawer and
discovered unauthorized withdrawals from five customer
accounts totaling $6,940. When confronted by an internal
auditor and an FBI agent, Whitman gave a written confession
in which she admitted to stealing the $6,940. Whitman failed
No. 99-6086 United States v. Whitman 11
at the end of the day is have you had a serious intellectual
discussion—whether the person listened or not—on issues
which would improve the practice of the law, that’s all I want
to do . . . .”
With all due deference to the district judge, the primary
function of a judge is neither to “educat[e] the bar” nor to
“improve the practice of the law.” Above all else, the mission
of a federal judge is to “administer justice without respect to
persons, and . . . faithfully and impartially discharge and
perform all the duties incumbent upon [him] . . . under the
Constitution and laws of the United States.” 28 U.S.C. § 453
(judicial oath of office).
We must emphasize that there is no evidence that the
district judge was actually swayed by bias in this matter, nor
do we suggest that he allowed secondary considerations as to
his mission to influence his judgment. However, the district
judge’s lengthy harangue in this case had the unfortunate
effect of creating the impression that the impartial
administration of the law was not his primary concern. We
therefore believe it advisable to assign Whitman’s
resentencing on remand to a different judge. See Bercheny,
633 F.2d at 476-77.
On remand, a new judge may or may not arrive at the same
determination as did the district court below. Indeed, as the
above discussion reveals, valid grounds exist for a sentencing
court to deny Whitman an acceptance of responsibility
reduction. In the end, though, “justice must satisfy the
appearance of justice.” Anderson, 856 F.2d at 747 (citing In
re Murchison, 349 U.S. 133, 136 (1955)).
III. CONCLUSION
For all of the reasons set forth above, we VACATE the
sentencing order of the district court and REMAND for
resentencing before a different judge.

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10 United States v. Whitman No. 99-6086
acceptance of responsibility, did I do that?” Examined in
context, it is possible that the district judge was referring not
to counsel’s conduct before the court that day but to the
advice that counsel may have given or failed to give to
Whitman prior to her presentence interview. Regardless, a
court should carefully guard against giving the impression
that its holdings are motivated by animosity towards a party’s
counsel. See generally Anderson v. Sheppard, 856 F.2d 741,
745 (6th Cir. 1988) (“The judge should exercise self-restraint
and preserve an atmosphere of impartiality.” (citation
omitted)); Webbe v. McGhie Land Title Co., 549 F.2d 1358,
1361 (10th Cir. 1977) (“Hence, appearance of impartiality is
virtually as important as the fact of impartiality.”).
We also note that despite numerous comments about the
“attitude” of Whitman’s counsel, the record does not reveal
any display of impertinence or disrespect to the court on his
part. Indeed, at oral argument, the government’s attorney had
nothing but positive things to say about the conduct of
Whitman’s counsel in this case. Absent clear justification, a
court should treat parties and officers of the court with
courtesy and respect. See United States v. Robinson, 635 F.2d
981, 986 (2d Cir. 1980) (“Trial judges, like all government
officials, must exercise power with restraint, and display
patience with counsel . . . .” (citation and internal quotation
marks omitted)).
In addition to chastising Whitman’s counsel, the district
judge also spoke at length about his perceived mission as a
federal judge. “I’m not attacking you personally. . . . [T]hat’s
the furthest thing from my mind, but I’m trying to begin the
process of educating the bar so that the lawyers, the last
bastion of making up their own mind and doing what they
want to do[,] will start to conform their conduct to the rules.”
“I’m trying to teach people, because I have decided there is
not much left in the United States for me to try to do except
improve the practice of law . . . .” “I didn’t reach this
conclusion overnight, it has taken me almost eight years to get
to this point where I have resolved as to what the problems
are and what we need to start to address . . . .” “The question
No. 99-6086 United States v. Whitman 3
to apprise the FBI of the fact that she had taken an additional
$3,800 from two other accounts in which shortfalls had not
yet been detected.
On March 23, 1999, the United States Attorney for the
Western District of Louisiana filed a one-count bill of
information against Whitman, charging her with bank
embezzlement of $11,840 in violation of 18 U.S.C. § 656.
(The record does not resolve the disparity between the
$10,740 shortfall that the investigation uncovered and the
$11,840 charged in the bill of information.) Whitman
declared her intent to plead guilty and requested that the case
be transferred to the Western District of Tennessee where she
was then living. The district court in Louisiana agreed, and
transferred her case pursuant to Rule 20 of the Federal Rules
of Criminal Procedure. On April 26, 1999, Whitman pled
guilty. Whitman advised the court, however, that she would
be disputing the amount embezzled for the purposes of
sentencing.
United States Probation Officer Anna Wells was assigned
the responsibility for drafting Whitman’s presentence report.
When Wells interviewed Whitman, Whitman admitted to
possibly having embezzled as much as $8,000, but stated that
she did not believe that she had embezzled $11,840 as alleged
by the government. Based on Whitman’s refusal to admit to
having embezzled the full amount, Wells recommended that
Whitman be denied an adjustment for acceptance of
responsibility.
After the initial presentence report was issued on June 1,
1999, Whitman contacted Wells and told her that “[t]here is
no way I can dispute the $11,400. It could be $11,400.”
(Whitman was apparently referring to the $11,840 amount
charged in the bill of information.) Whitman explained that
her drug use during the period of her embezzlement made it
hard for her to remember exactly how much money she had
stolen. Wells subsequently issued a revised presentence
report on July 2, 1999, recommending a two-point reduction
for acceptance of responsibility and a guideline imprisonment

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4 United States v. Whitman No. 99-6086
range of six to twelve months. The government, which had
not objected to the original presentence report, also declined
to object to the revised report.
On July 12, 1999, the district court conducted a sentencing
hearing. Despite the unchallenged recommendation of the
probation officer, the court found that Whitman had failed to
accept responsibility for her crime and thus refused to grant
her a two-point reduction under the sentencing guidelines.
II. ANALYSIS
A. Acceptance of responsibility
A district court’s conclusion that a defendant is not entitled
to an adjustment for acceptance of responsibility is generally
considered a question of fact that should not be disturbed
unless it is clearly erroneous. See United States v. Childers,
86 F.3d 562, 563 (6th Cir. 1996); see also U.S.S.G. § 3E1.1
cmt. 5 (“[T]he determination of the sentencing judge is
entitled to great deference on review.”). “However, this court
renders de novo review of an acceptance of responsibility
determination where . . . the only issue presented is the
propriety of the application of the adjustment to uncontested
facts . . . .” Id. (citation and internal quotation marks
omitted).
The district court, shortly after the sentencing hearing
began, characterized Whitman as “simply an untruthful
human.” Throughout the course of the extended hearing, the
court then cited to multiple instances in which it concluded
that Whitman had either lied or failed to volunteer truthful
information. The majority of these instances, however, were
unrelated to the question of whether Whitman had accepted
responsibility for her crime of embezzlement.
Among the instances cited by the district court, the most
relevant was Whitman’s statement to Wells that she might
have embezzled as much as $8,000, but that she did not
believe that she embezzled the $11,840 charged in the bill of
information. After the initial presentence report was
No. 99-6086 United States v. Whitman 9
right to be sentenced by a fair and impartial judge and her
Sixth Amendment right to effective assistance of counsel.
Because we are vacating Whitman’s sentence due to the
ambiguous record below, we need not address her claims of
judicial bias. Nevertheless, in light of the district judge’s
intemperate demeanor towards Whitman’s counsel, we
believe that this case should be assigned to a different judge
upon remand. See Bercheny v. Johnson, 633 F.2d 473, 476-
77 (6th Cir. 1980) (listing, as one of the principal factors to be
considered in determining whether a case should be remanded
to a different judge, whether reassignment is advisable to
preserve the appearance of justice).
The district court lectured Whitman’s counsel at length as
to his ethical responsibilities and rebuked him repeatedly for
his conduct in this case. Indeed, a hearing that could have
been conducted in less than an hour took nearly four
hours—much of which was gratuitously devoted to the
behavior of Whitman’s counsel rather than the length of
Whitman’s sentence. A sampling of the district judge’s
comments will suffice. “[M]y whole observation in this case
is that so far [your client’s interest] hasn’t come first at all.
You have only talked of yourself and never talked of your
client . . . .” “Now I hope that as a result of this conversation
you’ll re-examine your approach toward what your role is in
these proceedings and you will re-examine placing your ego
and your pride above your client’s interest, and I don’t
imagine you will, because people in your situation don’t
usually, but you might . . . .” “[Y]ou need to explore in your
soul the way that you have been conducting these matters
routinely in the Court because your client couldn’t possibly
have done any worse than you did. And I want you to—I
want you to think about that.”
Most disturbing is a comment that can be read to imply that
the conduct of Whitman’s counsel would be held against
Whitman. At one point, the district judge stated that
Whitman’s counsel would have “to go home and ask
[him]self . . . did I contribute to Ms. Whitman not getting her

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8 United States v. Whitman No. 99-6086
cited these omissions as partial justifications for its holding.
Concerning Whitman’s failure to inform her parents, the
district court stated, “she apparently failed to tell her parents,
that’s part of—she doesn’t have to do that, but if you won’t
go home and tell your folks, then maybe you hadn’t gotten to
that realization that you should, and that would be useful for
the Court to know.” Later in the hearing the court said, “I
don’t think you’re required to go tell your parents if you don’t
want to, that is just another little piece to the puzzle here.”
Regarding Whitman’s failure to tell her employers at La
Capitol Credit Union about her prior misdemeanor conviction
for embezzlement, the court said: “And we had the fact that
she went to work for a bank after being convicted of
embezzlement at another bank. She failed to change her
course of conduct knowing that her previous course of
conduct was illegal. She is not entitled, as far as the Court
can tell, to acceptance of responsibility in this case, and that’s
what we’re trying to get to.”
Our review of this sentencing determination is complicated,
moreover, by the context within which it occurred. The
district court’s reasons for denying Whitman an adjustment
for acceptance of responsibility were scattered throughout a
lengthy hearing replete with statements that were seemingly
unnecessary to the matter at hand, as will be discussed more
fully in Part B below.
In the face of such an ambiguous record, we are uncertain
whether the district court would have reached the same result
had it relied solely on the permissible factors. We therefore
conclude that Whitman’s case should be remanded for
resentencing.
B. Judicial Bias
Whitman also contends that the district judge exhibited
impermissible bias against her and her counsel, and was
therefore required to sua sponte disqualify himself pursuant
to 28 U.S.C. § 455(a). She further alleges that reversal is
required because the judge’s bias violated her due process
No. 99-6086 United States v. Whitman 5
issued—recommending that Whitman not receive a
d o w n w a r d a d j u s t m e n t f o r a c c e p t a n c e o f
responsibility—Whitman admitted to Wells that she had no
basis to dispute the full amount charged in the indictment.
On appeal, Whitman maintains that, having been on drugs
during the relevant period, she was unable to state definitively
how much money she had taken. Whitman’s claim of a poor
memory is belied, however, by her statement to the probation
officer that she “kept notes concerning the amount of money
that she had stolen.” Furthermore, it is somewhat suspect that
Whitman claimed to have embezzled no more than $8,000 in
light of the fact that any amount less than $10,000 would have
placed her in a lower sentencing range. See U.S.S.G.
§ 2B1.1.
In any event, the district court’s finding that Whitman
intentionally misled the probation officer is not clearly
erroneous. A false statement about a material fact to a
probation officer may, by itself, justify a finding that a
defendant has failed to accept responsibility. See United
States v. Greene, 71 F.3d 232, 234 (6th Cir. 1995) (denying
a reduction for acceptance of responsibility where the
defendant had lied to a probation officer about his motivation
for his crimes).
In addition to the preceding false statement, the court also
noted that, as of the time of her sentencing hearing, Whitman
had made no voluntary restitution of the monies that she had
embezzled despite having been gainfully employed for the
previous eighteen months. The application notes
accompanying the acceptance of responsibility section permit
a sentencing court to consider whether a defendant has made
“voluntary payment of restitution prior to adjudication of
guilt.” U.S.S.G. § 3E1.1 cmt. 1. Thus, the district court’s
reliance on this factor was justified.
Unfortunately, we are unable to say with confidence that
the district court based its determination solely, or even
primarily, upon the above two factors. Along with the initial
misstatement to Wells and Whitman’s failure to make

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6 United States v. Whitman No. 99-6086
restitution, the district court repeatedly referenced several
other instances of Whitman’s “untruthful” behavior that had
no bearing on her acceptance of responsibility.
First, the district court cited the fact that Whitman told
Wells that she had been diagnosed with cervical cancer and
had had her cervix removed. To the contrary, the district
court determined that Whitman had in fact only had dysplasia,
a condition that is an early indicator of cancer, and that only
a portion of her cervix was removed. In the context of the
acceptance of responsibility determination, the district court
concluded that this misstatement was “material in the sense
that it would tend to paint [Whitman] in a more favorable
light, tend to show that she was a person who had had
extreme health problems in June of 1998.”
We disagree. As Whitman points out, she did not file a
motion for a downward departure on the basis of an
“extraordinary impairment,” nor did she argue that she should
be treated more favorably because of her medical history. We
therefore cannot see how the misstatement is material to the
issue of whether she accepted responsibility for her crime of
embezzlement.
The district court also found that Whitman had exhibited
“untruthful” behavior by omitting any mention of her 1989
misdemeanor embezzlement conviction when she was hired
by the La Capitol Credit Union in 1995 and again when she
neglected to mention her two past embezzlement offenses
when she began working for her most recent employer,
Webster Lock, in 1998. As further evidence of Whitman’s
untruthful nature, the district court cited the fact that Wells
had instructed Whitman to inform her parents of her offense,
but that Whitman had not yet done so at the time of the
sentencing hearing. (Wells intended to call Whitman’s
parents to verify their contact information so that Whitman
could be informed if a family member became sick while she
was in prison. Whitman asked if Wells could wait until
Whitman first had the opportunity to speak to her parents and
tell them about her conviction.)
No. 99-6086 United States v. Whitman 7
We do not believe that any of these omissions are relevant
to the acceptance of responsibility determination. Whitman’s
1989 conviction was on a misdemeanor embezzlement
charge, whereas La Capitol Credit Union only instructed
applicants to identify prior felonies. Furthermore, even if the
credit union had requested such information, Whitman’s
failure to list her 1989 conviction could, at most, be construed
as a failure to accept responsibility for a previous crime.
More importantly, all three of these omissions involve
Whitman’s failure to inform third parties—her parents and
employers—of her offenses. Section 3E1.1 of the United
States Sentencing Guidelines is concerned solely with
whether a defendant admits or denies material conduct during
her investigation, prosecution, or sentencing. Whether
Whitman is or is not a generally candid person is thus not the
proper inquiry in the case before us.
In sum, the district court cited two factors that were
legitimate grounds for a denial of an acceptance of
responsibility reduction (Whitman’s misstatements about the
scope of her offense and her failure to make voluntary
restitution) and three factors that were not (the misstatement
about her medical history, the failure to inform her employers
about her prior crimes, and the failure to inform her parents
about her present situation). We recognize the possibility that
the district court premised its ultimate judgment only on the
relevant factors and cited the other instances of Whitman’s
lack of candor solely for the sake of context. Looking at the
entire record, however, we are unable to say with assurance
that the district court’s holding was properly limited to the
relevant factors.
In fact, at least as far as Whitman’s medical history is
concerned, the district court expressly held that her
misstatements were “material.” As for Whitman’s failure to
inform her parents and employers about her offense, it cannot
be determined from the record whether the district court relied
upon these instances in reaching its determination. At times
the district court openly questioned the relevance of these
omissions. In the same breath, however, the court seemingly

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