## Facts

- In summer 1991, large anti-abortion demonstrations in Wichita, Kansas targeted clinics performing lawful abortions, including efforts to block clinic entrances.
- Clinic owners obtained a federal temporary restraining order and later a preliminary injunction barring named protest leaders and those acting with them from, among other conduct, blocking access to specified clinics, including the Tiller clinic.
- Federal marshals were present at the Tiller clinic to enforce the injunction and keep access open.
- The defendants, abortion protesters, climbed a fence and attempted to block access to the Tiller clinic.
- Defendants were arrested and prosecuted under 18 U.S.C. § 1509 for willfully obstructing or interfering, by threat or force, with federal marshals’ performance of duties under a federal court order.
- The district judge who issued the injunction also presided over the criminal trials and appeared on the nationally televised program *Nightline*, making public comments about enforcement in the related protest litigation.

## Issues

1. Whether the evidence was sufficient to support convictions under 18 U.S.C. § 1509.
2. Whether the jury instructions improperly permitted guilt to be inferred from the collective actions of other protesters.
3. Whether the indictment was improperly obtained.
4. Whether the district judge was required to recuse under 28 U.S.C. § 455(a) because his impartiality might reasonably be questioned, including due to his televised appearance and related public statements.

## Decision

- The Tenth Circuit held the evidence, instructions, and indictment challenges did not warrant relief.
- The court held the district judge should have disqualified himself under 28 U.S.C. § 455(a) because his impartiality might reasonably be questioned, including due to his *Nightline* appearance.
- The court vacated each defendant’s conviction and sentence.
- The court remanded for reassignment to a different judge and a new trial.

## Legal Principles

- Under 28 U.S.C. § 455(a), a federal judge must disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
- The § 455(a) inquiry is objective: whether a reasonable person, informed of the relevant facts, would harbor doubts about the judge’s impartiality.
- Disqualification under § 455(a) may be required based on the appearance of partiality, even without proof of actual bias under 28 U.S.C. § 455(b)(1) or 28 U.S.C. § 144.
- When a § 455(a) violation affects a criminal trial, the resulting convictions may be vacated and the case remanded for retrial before a different judge.

## Conclusion

The Tenth Circuit vacated the defendants’ convictions for obstructing enforcement of a federal injunction because the presiding judge’s extrajudicial televised comments created an objectively reasonable question about impartiality under 28 U.S.C. § 455(a), requiring reassignment and a new trial.


United States v. Cooley, 1 F.3d 985 (10th Cir. 1993)