Unrelated Prior Representation of a Victim Bank Does Not Require § 455(a) Recusal on Plain-Error Review; Bruton Is Not Triggered by a Co-Defendant Guilty Plea That Only Implicates by Inference

1. Introduction

United States v. Page (5th Cir. July 8, 2026) is a revised panel opinion issued “ON REHEARING,” substituting for the court’s earlier published decision, United States v. Page, 161 F.4th 875 (5th Cir. 2025). After a week-long jury trial in the Eastern District of Texas, Jon Phillip Page, Jr. (“Phillip”) was convicted of (1) conspiring to commit bank fraud and (2) conspiring to commit money laundering. The conspiracy centered on obtaining multimillion-dollar bank loans by presenting fabricated securities-account statements created by co-conspirator Clayton Wertz at the request of Phillip’s brother and co-defendant, Thomas Page.

On appeal, Phillip challenged (among other issues): the district judge’s failure to recuse based on prior unrelated representation of the victim bank; Confrontation Clause and evidentiary issues arising from Thomas’s partial guilty plea and the Government’s use of guilty pleas; denial of severance; admission of multiple categories of evidence (including a prior affidavit, a WhatsApp message, “dancing with the devil” testimony, home photographs, and Rule 1006 summary charts); alleged prosecutorial delay; rejected jury instructions; and sufficiency of the evidence. The Fifth Circuit affirmed across the board and rejected cumulative error.

2. Summary of the Opinion

  • Recusal: No plain error under 28 U.S.C. § 455(a) where the district judge previously represented the victim bank in unrelated civil appellate matters; the court relied on authority indicating such relationships generally do not compel recusal.
  • Confrontation Clause / Bruton: No Bruton v. United States violation from Thomas’s guilty plea because it did not “directly implicate” Phillip; any link required inference.
  • Guilty pleas & limiting instructions: Applying the “Black factors,” the court found no reversible (and no plain) error in how Thomas’s and Wertz’s guilty pleas were handled, including where limiting instructions were given in the final charge rather than contemporaneously.
  • Severance: No abuse of discretion; joint trials are favored in conspiracy cases and Phillip failed to show the required “serious risk” under Zafiro v. United States.
  • Evidentiary rulings: Even assuming error in admitting Wertz’s 2019 affidavit as a prior consistent statement, any error was harmless; other challenged items were admissible or harmless; Rule 1006 summary charts satisfied Fifth Circuit requirements.
  • Delay claims: No due process violation from adding a money-laundering conspiracy count; Phillip failed to show bad faith and failed to proffer the missing witness testimony required to prove prejudice.
  • Jury instructions: Denial of requested good-faith/apparent-authority and theory-of-the-case instructions was not an abuse of discretion because willfulness/knowledge instructions substantially covered the defense.
  • Sufficiency/new trial: The jury could credit Wertz; uncorroborated accomplice testimony can sustain a verdict unless “incredible or insubstantial on its face.”
  • Cumulative error: No denial of a fair trial.

3. Analysis

3.1. Precedents Cited

A. Recusal and § 455

  • United States v. Sanford, 157 F.3d 987 (5th Cir. 1998): The Government argued Phillip’s untimely recusal request foreclosed relief absent “good cause” or “exceptional circumstances.” The panel ultimately held Phillip could not show even plain error, avoiding a deeper timeliness-remedy dispute.
  • United States v. Gray, 105 F.3d 956 (5th Cir. 1997): Provided the abuse-of-discretion standard for reviewing recusal decisions.
  • Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847 (1988): Cited for the remedial framework (risk of injustice, systemic injustice, and public confidence) if a § 455 violation is found. The panel did not reach this step because it found no clear/obvious duty to recuse.
  • Chitimacha Tribe of La. v. Harry L. Laws Co., 690 F.2d 1157 (5th Cir. 1982): Central to the panel’s reasoning: unrelated prior representation did not require recusal, and the inapplicability of § 455(b)(2) weighed against finding a § 455(a) appearance problem.
  • National Auto Brokers Corp. v. Gen. Motors Corp., 572 F.2d 953 (2d Cir. 1978), Clemens v. U.S. Dist. Ct. for Cent. Dist. of Cal., 428 F.3d 1175 (9th Cir. 2005), United States v. Cherry, 330 F.3d 658 (4th Cir. 2003), United States v. Saavedra, No. 22-2149, 2024 WL 855199 (10th Cir. Feb. 29, 2024): Used to show a broad judicial consensus that even professional relationships with victims, including potentially ongoing ones, often do not compel recusal—undercutting any claim that recusal here was “clear or obvious” for plain-error purposes.

B. Confrontation Clause / Bruton line

  • Bruton v. United States, 391 U.S. 123 (1968): Phillip’s theory attempted to treat Thomas’s guilty plea as an accusatory confession implicating him through the indictment’s conspiracy allegation. The panel rejected that framing because the plea did not directly implicate Phillip.
  • Crawford v. Washington, 541 U.S. 36 (2004): The panel noted (without deciding) the Government’s threshold position that a guilty plea and an indictment are not evidence and thus not “testimonial,” especially given repeated instructions that the indictment was not evidence.
  • Douglas v. Alabama, 380 U.S. 415 (1965) and United States v. Pando Franco, 503 F.3d 389 (5th Cir. 2007): Douglas was distinguished: there the prosecutor effectively introduced a testimonial confession through questioning of an invoking witness; the Page panel found no comparable testimonial statement here.
  • Richardson v. Marsh, 481 U.S. 200 (1987) and Samia v. United States, 599 U.S. 635 (2023): The key doctrinal move: Bruton generally is not triggered where the statement requires inferential linkage rather than directly naming/accusing the defendant.
  • United States v. Nanda, 867 F.3d 522 (5th Cir. 2017): The Fifth Circuit’s own application of the “inference” limitation on Bruton, reinforcing the holding that Thomas’s plea did not directly implicate Phillip.
  • United States v. Powell, 732 F.3d 361 (5th Cir. 2013) and United States v. Jimenez, 509 F.3d 682 (5th Cir. 2007): Cited for the standard of review on Bruton-adjacent evidentiary rulings (abuse of discretion).

C. Co-conspirator guilty pleas and limiting instructions (“Black factors”)

  • United States v. Fleetwood, 528 F.2d 528 (5th Cir. 1976) and Babb v. United States, 218 F.2d 538 (5th Cir. 1955): Anchored the baseline rule: a co-defendant’s guilty plea cannot be used as substantive proof of another defendant’s guilt.
  • United States v. Murray, 988 F.2d 518 (5th Cir. 1993) and United States v. Black, 685 F.2d 132 (5th Cir. 1982): Supplied the four-factor framework (limiting instruction; proper purpose; improper emphasis/substantive use; invited error).
  • United States v. Devers, 4 F.3d 990, 1993 WL 360813 (5th Cir. 1993) and United States v. Borchardt, 698 F.2d 697 (5th Cir. 1983): Supported the proposition that later (non-contemporaneous) limiting instructions can suffice and that certain uses of pleas (e.g., anticipating impeachment) are legitimate.
  • United States v. Moparty, 11 F.4th 280 (5th Cir. 2021): Pleas can be introduced to negate anticipated impeachment or respond to defense strategy.
  • United States v. Miranda, 593 F.2d 590 (5th Cir. 1979): Even if properly introduced, the Government must stay within “permissible bounds” in argument.
  • United States v. Jordan, 945 F.3d 245 (5th Cir. 2019): Warned against the Government “lingering” on pleas.
  • Donnelly v. DeChristoforo, 416 U.S. 637 (1974): Used to contextualize isolated prosecutorial remarks and avoid reversal for minor, non-outcome-determinative misstatements.
  • United States v. Roland, 130 F.4th 479 (5th Cir. 2025): Cited as analogous authority in assessing whether the Government improperly emphasized plea evidence.
  • United States v. Leach, 918 F.2d 464 (5th Cir. 1990) and United States v. Handly, 591 F.2d 1125 (5th Cir. 1979): Concerned “invited error” and when a defendant who instigates use of plea evidence cannot complain.
  • United States v. Delgado, 401 F.3d 290 (5th Cir. 2005): Supported treating the “invited” factor as weakened where the defense uses plea information for impeachment after the Government introduces it.

D. Prior consistent statements

  • Tome v. United States, 513 U.S. 150 (1995): The governing rule that a prior consistent statement under Rule 801(d)(1)(B) must predate the motive to fabricate.
  • United States v. Wilson, 355 F.3d 358 (5th Cir. 2003): A prior consistent statement need only predate the specific motive alleged at trial (not all conceivable motives).
  • United States v. Quinn, 826 F. App'x 337 (5th Cir. 2020): Noted the “majority view” that where multiple motives are alleged, predating at least one motive may suffice.
  • United States v. Portillo, 969 F.3d 144 (5th Cir. 2020): The most influential comparator: the Fifth Circuit previously declined to slice “motive to fabricate” narrowly (e.g., avoiding charges versus seeking a cooperation benefit), treating them as essentially the same “leniency” motive even without a plea agreement.

E. Other evidence and Rule 403 framing

  • United States v. Beechum, 582 F.2d 898 (5th Cir. 1978): Provided the two-step approach for evidence potentially used as character/propensity evidence, with the real battleground often being Rule 403 balancing.
  • Old Chief v. United States, 519 U.S. 172 (1997): Invoked to emphasize that the prosecution is not required to sanitize probative narrative evidence merely because it may be morally offensive or prejudicial.
  • United States v. Shows Urquidi, 71 F.4th 357 (5th Cir. 2023): Used to underscore deference in Rule 403 balancing—admitting even highly inflammatory evidence when probative.
  • United States v. Rao, 123 F.4th 270 (5th Cir. 2024): Referenced on plain-error principles where the absence of binding precedent typically defeats “clear or obvious” error.

F. Rule 1006 summary charts

  • United States v. Bishop, 264 F.3d 535 (5th Cir. 2001): Set out the four requirements for admissibility of Rule 1006 charts (competent underlying evidence; availability for comparison; preparer cross-examinable; proper jury instruction).
  • United States v. Means, 695 F.2d 811 (5th Cir. 1983): Approved the use of assumptions in summary charts when supported by evidence and accompanied by instructions that the jury decides weight.
  • United States v. Spalding, 894 F.3d 173 (5th Cir. 2018) and United States v. Mazkouri, 945 F.3d 293 (5th Cir. 2019): Reinforced harmlessness where cross-examination exposed chart issues and the jury received limiting guidance.

G. Pre-indictment delay / due process

  • United States v. Scully, 951 F.3d 656 (5th Cir. 2020) and United States v. Seale, 600 F.3d 473 (5th Cir. 2010): Supplied the two-part test: (1) bad faith/tactical delay; and (2) actual, substantial prejudice.
  • United States v. Crouch, 84 F.3d 1497 (5th Cir. 1996) (en banc) and United States v. Beszborn, 21 F.3d 62 (5th Cir. 1994): Established that loss of potential witnesses is insufficient without showing their testimony would have aided the defense.
  • United States v. Proctor, 505 F.3d 366 (5th Cir. 2007): Required a proffer of what the unavailable witness would have said to establish prejudice.
  • United States v. Dixon, 509 U.S. 688 (1993): Used in a footnote to explain why Thomas may still have had Fifth Amendment exposure even absent the superseding charge (future prosecution may be possible unless double jeopardy bars it).

H. Severance, instructions, sufficiency, cumulative error

  • Zafiro v. United States, 506 U.S. 534 (1993) and United States v. Daniel, 933 F.3d 370 (5th Cir. 2019): Emphasized the strong preference for joint trials and the high threshold for severance.
  • United States v. Shah, 95 F.4th 328 (5th Cir. 2024) and United States v. St. Gelais, 952 F.2d 90 (5th Cir. 1992): Supplied the three-part test for refusing requested defense instructions and the conclusion that “willfully/knowingly” instructions often substantially cover good faith.
  • United States v. Washington, 688 F.2d 953 (5th Cir. 1982) and United States v. Barham, 595 F.2d 231 (5th Cir. 1979): Distinguished between a necessary legal-principle instruction and an impermissible “judicial narrative” theory-of-the-case instruction.
  • United States v. Bermea, 30 F.3d 1539 (5th Cir. 1994): Confirmed that accomplice testimony alone can sustain a conviction unless incredible on its face; credibility is for the jury.
  • United States v. Delgado, 672 F.3d 320 (5th Cir. 2012) (en banc): Set the cumulative error standard and cautioned that it rarely warrants reversal where evidence of guilt is substantial.

3.2. Legal Reasoning

A. Recusal: “clear or obvious” is doing most of the work

Phillip’s recusal claim was reviewed through the lens of forfeiture and plain error. The panel emphasized that § 455(a) turns on whether the judge’s “impartiality might reasonably be questioned,” but held Phillip could not show that the judge’s unrelated prior representation of the victim bank made recusal clearly or obviously required. Two features of the reasoning are notable:

  1. Comparative-case method: The court treated cross-circuit authority as persuasive evidence that the asserted rule (automatic recusal for prior unrelated representation of a victim) is not settled enough to be “clear or obvious” error.
  2. § 455(b)(2) as a structural clue: By pointing out that § 455(b)(2) targets a judge’s prior involvement as a lawyer in the “matter in controversy,” and that this was unrelated, the court treated the specific-recusal subsection’s inapplicability as a reason to resist expanding § 455(a) by implication.

B. Bruton: direct implication versus inferential linkage

The panel’s rejection of the Confrontation Clause claim is an application of the Supreme Court’s narrowing of Bruton: if the jury must infer the defendant’s involvement from a statement plus other evidence, Bruton generally does not apply. Here, Thomas’s guilty plea did not name Phillip or directly accuse him; any connection required inference from the indictment’s joint-conspiracy allegation and the trial context. Relying on Richardson v. Marsh, Samia v. United States, and United States v. Nanda, the panel found no Bruton violation.

C. Guilty pleas: the “Black factors” and a pragmatic view of prejudice

The court’s guilty-plea analysis is important for its disciplined use of the four-factor framework and for its handling of an “unusual” fact pattern—where a co-defendant (Thomas), not the Government, pressed to inform the jury of his plea.

  • Limiting instruction: Although not contemporaneous, the final charge expressly told jurors that an accomplice’s guilty plea is not evidence of anyone else’s guilt, which the court treated as sufficient under Fifth Circuit law.
  • Improper use acknowledged but neutralized: The court identified a clear misstep in the Government’s closing—suggesting jurors could rely on Thomas’s and Wertz’s pleas to establish the conspiracy’s existence. But the court deemed the error practically weightless because Phillip “conceded there was a conspiracy,” leaving the real dispute as Phillip’s participation/knowledge.
  • “Invited” factor clarified: The panel treated the fourth factor as essentially a waiver principle: it matters most when the complaining defendant instigated or exploited the plea evidence. Because Phillip tried to keep Thomas’s plea out, the “invited” factor was deemed inapplicable rather than affirmatively favoring either side.

D. Evidence rulings: deference, harmlessness, and narrative completeness

On contested evidence, the panel repeatedly relied on (i) the deferential abuse-of-discretion standard and (ii) harmlessness where the evidence was cumulative or minor compared to the full record. The “dancing with the devil” testimony illustrates the court’s narrative approach to probative value: the prosecution need not replace vivid inculpatory details with a sanitized paraphrase merely to reduce prejudice.

E. Pre-indictment delay: the proffer requirement as a hard gate

Even assuming suspicious timing, the panel emphasized two barriers to relief under Scully/Seale: (1) deference to the district court’s factual finding that the Government plausibly added the money-laundering conspiracy charge after strategic review rather than to suppress defense testimony; and (2) the absence of a Proctor-type proffer of Thomas’s proposed testimony—fatal to showing “actual, substantial prejudice” under Crouch.

F. Instructions and sufficiency: the Fifth Circuit’s familiar themes

The instructions holding follows United States v. Shah: when the charge requires proof of “knowingly” and “willfully,” a separate good-faith instruction is often redundant. The sufficiency holding follows United States v. Bermea: the jury decides credibility, and accomplice testimony—even with plea incentives—can be enough unless facially incredible.

3.3. Impact

  • Recusal practice in victim-bank fraud cases: The opinion strengthens the practical proposition that prior unrelated representation of a victim entity—without more—will rarely justify reversal, particularly when the issue is unpreserved and reviewed for plain error.
  • Constraining Bruton claims: The court reinforces a bright operational line: Bruton problems generally require a statement that directly implicates the defendant, not one that does so only after inferential steps. This is especially relevant in multi-defendant conspiracy trials with mixed plea postures.
  • Guilty plea handling: The application of the Black factors—combined with the court’s willingness to deem a prosecutorial misuse harmless when directed to an uncontested element—signals that reversal will turn on demonstrable prejudice, not merely technical misstatements.
  • Pre-indictment delay doctrine: The decision underscores that “lost witness” prejudice claims must be supported by concrete proffers; speculative assertions about what a now-unavailable witness “would have said” are inadequate.
  • Financial-summary evidence: The Rule 1006 analysis reaffirms that methodological attacks on charts (including tracing assumptions) usually go to weight, not admissibility, when the Bishop prerequisites are satisfied and cross-examination exposes weaknesses.

4. Complex Concepts Simplified

  • 28 U.S.C. § 455(a) (“appearance” recusal): A judge must step aside when a reasonable observer could question impartiality. On appeal—especially under plain-error review—the question becomes whether the need to recuse was unmistakable, not merely debatable.
  • Plain error: An unpreserved issue is reversible only if the error is clear/obvious, affected the outcome, and seriously undermined the proceedings’ fairness or integrity.
  • Bruton / Confrontation Clause: A defendant can be harmed when a non-testifying co-defendant’s testimonial confession directly accuses the defendant. If the jury must connect dots using other evidence, modern Supreme Court cases usually treat the problem as outside Bruton.
  • Rule 801(d)(1)(B) prior consistent statements: A witness’s earlier statement can come in for its truth to rebut a charge of fabrication only if it predates the motive to lie that the opponent claims drove the witness’s story.
  • Rule 1006 summary charts: Charts can replace voluminous records as evidence if the underlying records are admissible, available for inspection, and the chart maker can be cross-examined—then disputes about assumptions usually become jury questions.
  • Severance: Co-defendants are often tried together; severance is reserved for situations where a joint trial creates a serious risk to specific rights or to the jury’s ability to make reliable guilt determinations.

5. Conclusion

United States v. Page is primarily a reaffirmation opinion, but it is consequential in its consolidation of several trial-management principles in conspiracy prosecutions: (1) unpreserved recusal claims based on a judge’s unrelated past representation of a victim entity are unlikely to satisfy plain-error standards; (2) Bruton is not triggered by a co-defendant’s plea posture when any implication of the defendant arises only by inference; (3) the Fifth Circuit’s “Black factors” provide the controlling lens for guilty-plea evidence, with limiting instructions and demonstrated prejudice doing the heavy lifting; and (4) due process claims premised on pre-indictment “tactical” maneuvering fail without concrete proof of bad faith and a specific proffer of the lost defense evidence. The decision’s unifying theme is appellate deference: where the district court provided instructions, permitted cross-examination, and the record contained substantial evidence of guilt, reversal is exceptional.