Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Patrick H. Owen, District Judge.
The opinion of the court was delivered by: Melanson, Judge
2012 Unpublished Opinion No. 760
THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY
Judgment of conviction for four counts of selling unregistered securities, affirmed.
Michael J. Breinholt appeals from his judgment of conviction entered upon his guilty pleas to four counts of selling unregistered securities. For the reasons set forth below, we affirm.
Upon being sued by the Idaho Department of Finance, Breinholt admitted to committing fraud under the Uniform Securities Act, I.C. § 30-14-501, and agreed to the entry of a judgment against him for five million dollars. After resolution of the civil case, a grand jury indicted Breinholt on eight counts of securities fraud, seven counts of selling unregistered securities, two counts of grand theft, and six sentencing enhancements for knowingly accepting money representing equity in a person's home in connection with committing securities fraud. Breinholt initially represented himself in this criminal case, but was later appointed counsel. Breinholt secured private counsel and, shortly thereafter, delivered a letter to counsel unequivocally firing him. Breinholt's counsel moved to withdraw. The trial judge granted that motion and appointed the public defender's office to represent Breinholt as stand-by counsel. Breinholt made several pro se filings, including a document entitled "Motion in Limine to Dismiss Criminal Complaint." In that motion, Breinholt asserted the trial judge, who had also presided over the civil case, abused his discretion because the judge "should have disqualified himself to preside over the criminal court with the same defendant on related case allegations; that there exists a prejudicial or an appearance of bias in this case." At a subsequent hearing on both parties' outstanding pretrial motions, the state and Breinholt informed a substitute judge*fn1 that they had reached a resolution and Breinholt wished to plead guilty. Pursuant to a plea agreement, Breinholt entered Alford*fn2 pleas to four counts of selling unregistered securities, I.C. §§ 30-14-301 & 30-14-508, and the state dismissed the remaining charges. Breinholt secured new private counsel to represent him at the sentencing hearing. The trial judge withheld judgment, placed Breinholt on probation for twenty years, imposed 180 days of incarceration, and ordered that Breinholt pay $240,000 in restitution. Breinholt appeals.
Breinholt argues that the trial judge should have been disqualified from presiding over this case. It is unclear whether Breinholt contends that the substitute judge should have construed his "Motion in Limine to Dismiss Criminal Complaint" as a motion to disqualify the trial judge for cause and granted that motion or whether Breinholt contends that the trial judge should have affirmatively recused himself.
Breinholt's "Motion in Limine to Dismiss Criminal Complaint" did not satisfy the requirements of a motion to disqualify a judge for cause pursuant to I.C.R. 25. Specifically, while I.C.R. 25(b)(4) allows for the disqualification of a judge who is biased or prejudiced for or against any party or that party's case in the action, I.C.R. 25(b)(c) requires that any such disqualification for cause be made by a motion to disqualify and accompanied by an affidavit of the party or that party's attorney stating distinctly the grounds upon which disqualification is based and the facts relied upon in support of the motion. In his "Motion in Limine to Dismiss Criminal Complaint," Breinholt did not reference I.C.R. 25 and did not file any affidavit in support of the motion. Therefore, Breinholt cannot show that the substitute judge erred by not construing his "Motion in Limine to Dismiss Criminal Complaint" as a motion to disqualify the trial judge for cause and not granting that motion.
Even if Breinholt could show that the substitute judge erred by declining to construe Breinholt's motion as a motion to disqualify and declining to grant that motion, Breinholt is precluded from challenging any such error because the doctrine of invited error applies to estop a party from asserting an error when his or her own conduct induces the commission of the error. State v. Atkinson, 124 Idaho 816, 819, 864 P.2d 654, 657 (Ct. App. 1993). One may not complain of errors one has consented to or acquiesced in. State v. Caudill, 109 Idaho 222, 226, 706 P.2d 456, 460 (1985); State v. Lee, 131 Idaho 600, 605, 961 P.2d 1203, 1208 (Ct. App. 1998). In short, invited errors are not reversible. State v. Gittins, 129 Idaho 54, 58, 921 P.2d 754, 758 (Ct. App. 1996). Here, during the hearing on Breinholt's "Motion in Limine to Dismiss Criminal Complaint," the substitute judge inquired of Breinholt whether he wanted to have the trial judge disqualified from the case. Breinholt replied that he would have to do some research to determine whether that was what he wanted. The substitute judge then informed Breinholt that, if he wanted to have the trial judge removed from the case, he would have to file a motion to disqualify the judge for cause prior to sentencing. Breinholt responded that he understood, but never filed any motion. Thus, Breinholt acquiesced in any error made by the substitute judge in declining to construe Breinholt's motion as a motion to disqualify the trial judge for cause and declining to grant that motion.
Although Breinholt did not file an appropriate motion to disqualify the trial judge for cause pursuant to I.C.R. 25, this Court will consider whether the judge should have affirmatively recused himself. The Code of Judicial Conduct, Canon 3(E)(1) & (a), provides that a judge shall disqualify himself or herself in a proceeding where the judge's impartiality might reasonably be questioned, including, but not limited to, instances where the judge has personal knowledge of disputed evidentiary facts that might reasonably affect the judge's impartiality in the proceedings. This appears to be the ground upon which Breinholt relies in his "Motion in Limine to Dismiss Criminal Complaint" and on appeal. Specifically, Breinholt argues that the trial judge should have affirmatively recused himself from this case because "it was obvious to anyone that [the judge's] impartiality might reasonably be questioned due to him being the judge in the civil case." However, Breinholt does not assert, and there is no indication, that the trial judge had personal knowledge of disputed evidentiary facts.*fn3 Therefore, the only question we need to address is whether the trial judge placed himself in a position in which his impartiality might reasonably be questioned by sitting on this case. See State v. Wood, 132 Idaho 88, 95, 967 P.2d 702, 709 (1998).
Whether a judge's involvement in a case reaches a point where disqualification from further participation in a defendant's case becomes necessary is left to the sound discretion of the judge. Sivak v. State, 112 Idaho 197, 206, 731 P.2d 192, 201 (1986). A statement of former United States Supreme Court Chief Justice William Rehnquist is instructive as to how a judge might make a recusal decision. See Microsoft Corp. v. United States, 530 U.S. 1301, 1302 (2000). There, the Chief Justice was considering whether he should recuse himself in an appeal where his son was a partner in a firm representing a party in the appeal. Chief Justice Rehnquist considered 28 U.S.C. § 455, a federal statute that sets forth the legal criteria for the disqualification of federal judicial officers. Although the federal statute and its interpretation are not binding on this Court, the Idaho Supreme Court has determined that Chief Justice Rehnquist's statement is instructive because ...