Tarrio v. United States

Citation: Not availableDocket: 21-CF-615 & 21-CM-616

Court: District of Columbia Court of Appeals; September 8, 2022; District Of Columbia; State Supreme Court

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Henry Tarrio, the appellant, argues that the trial judge should have recused himself due to an alleged appearance of bias stemming from the judge's past connection with the church whose property Tarrio was convicted of damaging. This claim is based on perceived bias manifested through adverse rulings at sentencing. The court rejected Tarrio’s argument, noting he had waived the issue by declining the judge’s offers to recuse. Additionally, the court found no evidence suggesting an appearance of bias related to the judge's past relationship or his rulings. Consequently, Tarrio’s convictions were affirmed.

Tarrio, the National Chairman of the Proud Boys, was involved in an incident on December 12, 2020, where he and others stole a Black Lives Matter (BLM) banner from Asbury United Methodist Church and subsequently set it on fire, actions recorded on video. Tarrio publicly admitted to burning the banner through social media, including a post on his Parler account and a podcast. Following the issuance of an arrest warrant, he was apprehended on January 4, 2021, where police found two unloaded high-capacity firearm magazines in his backpack, which he claimed he intended to sell, stating he was unaware of their illegality in the District. He faced misdemeanor charges for destruction of property and felony charges for possession of large-capacity ammunition feeding devices.

On July 19, 2021, appellant entered guilty pleas to misdemeanor destruction of property and attempted possession of a large-capacity ammunition feeding device during an online proceeding before Judge Harold L. Cushenberry, Jr. During the hearing, the judge disclosed a past connection to the Asbury United Methodist Church, from which the BLM banner had been taken, and offered to recuse himself if the appellant had concerns about impartiality. The appellant declined the offer, stating it was unnecessary and expressing regret about the banner's destruction, claiming he was unaware it belonged to a church and asserting he had no involvement in its removal.

Following the acceptance of the guilty pleas, the judge scheduled sentencing for a later date to allow for a presentence investigation report and sentencing memoranda. The judge reiterated his willingness to recuse himself if the appellant or his counsel desired another judge for sentencing, but the counsel opted for Judge Cushenberry to retain the case for efficiency.

On August 20, 2021, the government submitted its sentencing memorandum, emphasizing the appellant's public admission of burning the banner and disputing his claim of ignorance regarding its church origins. The government presented evidence, including a video showing the appellant at the scene of the crime and an interview where he suggested the banner was targeted for its representation. The government argued that the appellant's lack of acknowledgment of the church's ownership indicated a failure to fully accept responsibility for his actions. In his sentencing memorandum, the appellant maintained that he had accepted responsibility for his offenses and continued to assert his ignorance of the banner's origins.

Appellant contested the government's reliance on video evidence, arguing it did not clearly show him removing the flag from the church or observing its removal. He submitted character letters from nine individuals in support of his sentencing. During the sentencing hearing on August 23, 2021, the government maintained that appellant should receive a 360-day sentence, with 90 days to be served, followed by 18 months of probation, and restitution of $5,387 to Asbury United Methodist Church—$347 for the banner and $5,040 for security services due to violence associated with appellant and his group. Reverend Mills, the church's Senior Pastor, provided a victim impact statement, describing the psychological harm caused by the banner burning as an act of intimidation and racism that instilled fear in congregants.

Neither appellant nor his counsel disputed his awareness of the banner's origin. Appellant expressed remorse, acknowledging wrongdoing irrespective of the church's identity. His counsel requested probation with community service, but the judge declined to hear a character witness. Judge Cushenberry emphasized that appellant's opinions did not influence his decision but noted that the appellant had crossed the line from peaceful protest to potentially violent conduct. He found that appellant had not shown genuine remorse and rejected his claims of ignorance regarding the banner's theft, citing video evidence and social media posts. The judge pointed out that the video clearly depicted appellant on the church's lawn, where its identity was unmistakable.

Judge Cushenberry determined that the appellant posed a continuing danger to the community due to his criminal behavior, which he openly discussed on social media, and his intent to sell high-capacity magazines in the District. The judge found the appellant's claim of ignorance regarding the legality of possessing the magazines to be "wholly not credible," especially considering his prior criminal record, including a conviction for fraud. Ultimately, the judge ruled that a longer incarceration was warranted, sentencing the appellant to 240 days, with 155 days to be served, and three years of probation. Additional penalties included a $500 fine for each offense, a $50 payment to the Victim of Crimes Fund per count, and $347 in restitution for a burned banner. Appellant was given until September 6, 2021, to surrender to the Department of Corrections.

On September 4, 2021, two days before his surrender, the appellant filed an emergency motion requesting Judge Cushenberry's recusal, arguing that the judge's change in position regarding his knowledge of the banner's origin indicated an appearance of impropriety. The motion also criticized the exclusion of character witness testimony and the severity of the sentence. Before this motion could be addressed, the appellant surrendered, subsequently appealing his convictions and filing for release pending appeal. On October 26, 2021, the case was reassigned to Associate Judge Jonathan H. Pittman, who deemed the recusal motion moot and denied the other motions.

On appeal, the appellant contends that Judge Cushenberry was required to recuse himself due to perceived impartiality linked to a past relationship with the church whose banner was destroyed. The government argues that the appellant waived his right to challenge the recusal due to a lack of action at the plea hearing and before sentencing. It also contends that, even if the challenge were not waived, no objective observer could reasonably question Judge Cushenberry’s impartiality. The appeal necessitates determining whether the grounds for disqualification were waivable, as established in judicial ethics, noting that most bases for disqualification are waivable, except for personal bias or prejudice. A party typically waives such claims if aware of the grounds and fails to act in a timely manner.

The government argues that the appellant's claims regarding disqualification are waivable, as he does not assert actual bias from Judge Cushenberry but rather claims the judge should have avoided any appearance of impropriety. The government maintains that the appellant waived his disqualification claim by his statements during the plea hearing and by not filing a written motion until after sentencing. Judge Cushenberry offered to recuse himself due to his past attendance at Asbury United Methodist Church, but the appellant, through counsel, declined this offer both before and after the plea. The government's position is supported by the record, indicating the appellant's claims are based on waivable grounds, and he validly waived them.

Additionally, the appellant suggests that certain judicial actions during sentencing indicate bias, specifically citing the judge's disbelief regarding his awareness of the BLM banner's origins, the refusal to allow a character witness for him while permitting testimony from the church’s pastor, and the imposition of what he considers an excessively harsh sentence. While the appellant did not object during sentencing, he argues this should be excused due to the unique context. Despite doubts about the validity of this excuse, the court chooses to treat the claim as preserved for the sake of discretion.

A judge must disqualify themselves if their impartiality might reasonably be questioned. Recusal is necessary if an objective observer would have significant doubts about the judge's fairness. The court concluded that the appellant's complaints do not raise such doubts. Although Judge Cushenberry offered to recuse himself due to a past relationship with the Asbury United Methodist Church, this offer did not indicate a lack of impartiality, nor did the appellant view it as such. At sentencing, the judge did not reference his relationship with the church or the victim impact statement from the church's Senior Pastor. 

The appellant claimed ignorance of the BLM banner's origin, which was not a crime element but was relevant to assessing his acceptance of responsibility. The judge's disbelief of this claim was supported by evidence from the government, suggesting that the appellant was not fully contrite. The judge's determination regarding the appellant's knowledge of the banner's origin did not imply bias and provided no grounds for questioning his impartiality. The appellant's assertion that he relied on the judge's acceptance of his ignorance does not justify recusal, as he did not condition his waiver on the judge's belief in that claim. 

Furthermore, the judge's denial of the appellant's request to call a character witness while allowing a victim's testimony did not question his impartiality. Under the law, crime victims have the right to make statements at sentencing, and Reverend Mills' testimony was appropriate in this context, as it reflected the impact of the crime on the church and community. A character witness for the appellant would not have undermined this victim impact statement.

Appellant has not identified any legal authority that grants him the right to present character testimony or mitigation witnesses at sentencing, nor is there any known authority that supports such a right. Criminal Rule 32(c)(2) allows trial courts discretion in permitting evidence at sentencing hearings, and this discretion is well-established in case law. The Federal Rule of Criminal Procedure similarly does not provide defendants with the right to present character witnesses for mitigation purposes. Prior to sentencing, Judge Cushenberry received written statements from nine character witnesses included in appellant’s sentencing memorandum, and appellant did not demonstrate that live testimony from an additional witness would provide anything beyond cumulative information. The decision not to accept this testimony did not question the judge’s impartiality. Additionally, the sentence imposed by Judge Cushenberry was lawful and below the maximum allowed for the charges, taking into account the appellant's lack of full responsibility for his actions, his criminal history, his public statements regarding his offenses, and the danger he posed to the community. Appellant’s claim that the sentence was unusually harsh is unpersuasive, particularly in light of his own travels to the District of Columbia to commit the offenses. The judge's rationale for the sentence was justified, and comparisons to other unrelated cases are deemed irrelevant. Consequently, the judgment of the Superior Court is affirmed.