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UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 98-10542
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
GARY DAVID VADNER,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
November 10, 1998
Before REYNALDO G. GARZA, JONES, and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:
In the United States District Court for the Northern District
of Texas, the Honorable John H. McBryde presiding, Gary David
Vadner pleaded guilty to one count of bank fraud on January 16,
1998. He was sentenced by Judge McBryde on April 24, 1998 to a
fourteen-month prison term, to be followed by five years of
supervised release.
Vadner was represented in the district court by Assistant
Federal Public Defender Douglas Greene. Several of Greene's

colleagues -- attorneys with the Federal Public Defender's office
-- testified during August and September 1997 in proceedings
against Judge McBryde before the Judicial Council of the Fifth
Circuit. See In re: Matters Involving United States District Judge
John H. McBryde, Under the Judicial Conduct and Disability Act of
1980, Nos. 95-05-372-0023 et al. (Jud. Council 5th Cir. Dec. 31,
1997), aff'd, No. 98-372-001 (Jud. Conf. U.S. Sept. 21, 1998).
Greene himself did not testify in the proceedings against Judge
McBryde.
On appeal, Vadner now contends that Judge McBryde
should have sua sponte recused himself pursuant to 28 U.S.C.
§ 455(a) because his attorney, Greene, works in the Federal Public
Defender's office with lawyers who did actually testify against
Judge McBryde. The statute provides: "Any justice, judge, or
magistrate of the United States shall disqualify himself in any
proceeding in which his impartiality might reasonably be
questioned." 28 U.S.C. § 455(a).
Vadner did not move for Judge McBryde's recusal in the trial
court. The general rule on timeliness requires that "one seeking
disqualification must do so at the earliest moment after knowledge
of the facts demonstrating the basis for such disqualification."
Travelers Ins. Co. v. Liljeberg Entrs., Inc., 38 F.3d 1404, 1410
(5th Cir. 1994). The most egregious delay -- the closest thing to
per se untimeliness -- occurs when a party already knows the facts
purportedly showing an appearance of impropriety but waits until
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after an adverse decision has been made by the judge before raising
the issue of recusal.
However, even if it had been timely raised, we reject the
suggestion that the mere fact that several attorneys with the
Federal Public Defender's office offered testimony adverse to Judge
McBryde in a proceeding before the Judicial Council constitutes
such an inherent and pervasive specter of impartiality that any
time a lawyer from the same office appears in Judge McBryde's court
Judge McBryde's failure to recuse himself sua sponte would be
error.
As an additional point on appeal, Vadner contends that
his plea was taken in violation of FED. R. CRIM. P. 11, and was
involuntary because the court failed to advise him that he would be
ineligible for probation. Our Court has consistently rejected this
argument. See, e.g., United States v. Bartholomew, No. 94-30750,
slip op. at 15 (5th Cir. Sept. 21, 1995).
The judgment of the district court is
AFFIRMED.
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