United States of America v. Trina Mae Johnson

United States Court of Appeals
For the Eighth Circuit
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No. 24-2837
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Trina Mae Johnson
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the District of Minnesota
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Submitted: June 11, 2025
Filed: January 5, 2026
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Before LOKEN, ERICKSON, and KOBES, Circuit Judges.
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LOKEN, Circuit Judge.
On the eve of trial, after rejecting the government’s plea agreement offer of a
120-month mandatory minimum sentence, Trina Mae Johnson pleaded guilty without
a plea agreement to child torture, child neglect, child endangerment, and assaulting
a minor with a dangerous weapon in violation of Minn. Stat. §§ 609.3775, 609.05,
609.378 subdiv. 1(a)(1), 609.378 subdiv. 1(b)(1), and 18 U.S.C. §§ 113(a)(2) &
3559(f)(3). See 18 U.S.C. § 1153. Three of these major crimes offenses have neither

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applicable nor analogous sentencing guidelines, so determining the appropriate
sentence is controlled by 18 U.S.C. § 3553(a). See 18 U.S.C. § 3742(a)(4).
The Presentence Investigation Report (PSR) determined that the advisory
guidelines sentencing range for the fourth conviction, assaulting a minor with a
deadly weapon, is 120 months imprisonment with a 10-year mandatory minimum.
At sentencing, the government requested a 20-year sentence. Expressing remorse,
Johnson urged a sentence close to the government’s plea agreement offer of a 120-
month mandatory minimum sentence. The district court1 overruled PSR objections
unrelated to this appeal, considered the 18 U.S.C. § 3553(a) sentencing factors at
length, and imposed a sentence of 216 months imprisonment. Johnson appeals,
arguing the sentence is “plainly unreasonable” because the sympathy and empathy
expressed by the court in addressing victim L.D. during the sentencing hearing
violated Johnson’s due process right to judicial neutrality in sentencing. Concluding
that the court’s statements to the victim during the hearing were insufficient to
establish judicial bias, we affirm.
I. Background
In November 2020, when he was 11 years old, L.D. was placed in the foster
care of Johnson. In April 2022, Johnson brought L.D. to a youth shelter, claiming he
was “out of control” and harming himself. The youth shelter contacted Red Lake
Minnesota Family and Child Services. An FBI investigation revealed that over the
course of fifteen months, Johnson had subjected L.D. to sustained abuse, including
sleep deprivation, starvation, denial of medical care, physical torture, and
psychological torment. He lost 100 pounds, had multiple wounds and broken bones
that improperly healed, scarring in multiple locations from being stabbed by a knife
1The Honorable Katherine M. Menendez, United States District Judge for the
District of Minnesota.
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and scissors on different occasions, brain injuries, and severe lasting mental and
physical trauma. He was described as “completely unrecognizable” compared to
when he was placed in Johnson’s care. There were many serious abuses, carried out
using a wide range of inhumane and violent methods. Johnson had facilitated and
encouraged those around her to further the abuse, including her sisters, partner, and
other foster children under her care. The abuse and L.D.’s condition were concealed
during the COVID-19 pandemic by turning off his camera during online schooling,
hiding him away when his sister visited, and demanding he tell others the injuries
were self-inflicted under the threat of further harm to him and his family.
A federal indictment charged Johnson and four other participants in the abuse
with the four federal and Minnesota offenses. Three co-defendants pleaded guilty to
Count 3, child endangerment. The fourth, Johnson’s sister, Bobbi Jo Johnson, did not
plead guilty and was found guilty after a trial of child neglect and child
endangerment. Prior to that trial, the government offered Johnson and Bobbi Jo a
“wired” plea agreement, conditioned on both pleading guilty, of a 10-year mandatory
minimum sentence and a maximum government-recommended sentence of 12 years.
Because Bobbi Jo refused the agreement and proceeded to trial, Johnson could not
accept the government’s agreement. She instead pleaded guilty without an
agreement. That plea is not at issue on appeal.
Prior to sentencing, Johnson argued that a sentence comparable to the 12 years
proposed in the government’s wired plea agreement was appropriate, claiming she
was prevented from accepting the agreement by her sister’s refusal. Johnson cited
various mitigating factors, including prior personal traumas and post-offense
rehabilitation efforts. Absent a plea agreement, the government requested a sentence
of 240 months imprisonment based on the severity of the crimes, Johnson’s
minimization of responsibility in claiming L.D.’s misbehavior warranted punishment,
and its review of various guideline provisions. The government urged the court to
disregard its prior offer because it would have been non-binding on the court, and it
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was offered to spare L.D. the trauma of testifying, which he was required to do at
Bobbi Jo’s trial.
During the sentencing hearing, the district court heard L.D.’s victim impact
statement describing the treatment and lasting effects of the abuse, which was read
into the record by his sister, and impact statements from L.D.’s new foster parents.
After these statements, the judge directly addressed L.D.:
There is something I want to say to you, and it is that I think you
might be the strongest person I have ever come across. And I have been
involved in the criminal justice system for a really long time, so I’ve
seen some tough people. But it takes extraordinary strength to survive
what you survived, and it takes a lot of strength to keep on surviving.
And I am so, so glad that you did. I’m so glad that you held on.
And I am really grateful to your foster family, that you landed
somewhere wonderful, because I think that we are going to see every
day a little bit more the kind and sweet kid that is inside of you that’s
already come out.
One of the things that I am most struck by in the things that I’ve
learned about you, and I’ve learned a lot, is the compassion that you
show to other people. It’s something that they talked about at Evergreen
[youth shelter]. It’s something that the FBI agent talked about. It’s
something that your family talked about. And it’s something that’s clear
to me when you talk about how much you worry about your niece and
nephew.
One of the things that I’ve thought a lot about is that you weren’t
just fragile when you got to Evergreen. You were fragile when you got
to Trina’s house too. You had already been through more in your almost
12 years than anybody should, and that child deserved love and care and
protection. That child was already struggling with a lot of stuff that
you’d already been through. And it’s heartbreaking that that didn’t
happen for you until now.
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And the last thing I want to say is that I think I understand that
your sister has passed away also? . . . And I’m really sorry about that.
But I know that -- I know that she and everybody else in your family,
whether they’re here or not, is proud of you today. And I just wanted
you to hear that from me.
The district court then ruled on objections raised and proceeded to consider the
§ 3553(a) factors, extensively balancing the mitigating and aggravating factors in
detail. The court noted Johnson’s prior traumas, her time already served, her efforts
for rehabilitation, and how there was something “kind of unfair” about being denied
the plea agreement because her sister insisted on a trial. On the other hand, the court
considered the extent and duration of the abuse, her engagement of others in the
crimes, and her efforts at concealment. The judge concluded:
The reason I am not giving the 240 months requested by the government
is that I think it slightly undervalues the acceptance of responsibility of
the straight plea, and I want to give credit for the six months that were
served in Red Lake County Jail. But any less would not give adequate
weight to the trauma that [Johnson] has inflicted on such a long list of
victims, the first of which is [L.D.], who I will quote again, saying “I am
a kid and you’re an adult, and you’re supposed to take care of me.” And
to picture the 11-year-old and 12-year-old boy that he was enduring this
for 18 months is hard to do.
The court sentenced Johnson to 216 months imprisonment, below the
government’s requested sentence. Johnson did not object to the court’s statement to
L.D., its conduct toward the defense at sentencing, or argue that judicial bias
warranted the court’s recusal.
II. Discussion
On appeal, Johnson argues the district court’s overwhelming empathy for
victim L.D. as expressed at the sentencing hearing violated her procedural due
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process right “to an impartial and disinterested tribunal,” which is rooted in the
“requirement of neutrality.” Marshall v. Jerrico, Inc. 446 U.S. 238, 242 (1980). At
or before sentencing, Johnson did not object or question the court’s neutrality,
whether the district judge should recuse, or whether the sentence imposed reflects
undue bias and is therefore unreasonable. Therefore, she concedes that our review
is for plain error. United States v. Minard, 856 F.3d 555, 557 (8th Cir. 2017) (citation
omitted).
Unlike Johnson, the defendant in Minard filed a timely motion in the district
court under Rule 35 of the Federal Rules of Criminal Procedure “alleging that the
district court’s statement to the crime victim at sentencing ‘might have caused the
Court to lack impartiality resulting in a harsher sentence.’” Id. at 556. But he did not
object or move for recusal at sentencing, so our review was for plain error.2 Unlike
the defendant in Minard, Johnson did not file a timely Rule 35 motion to correct or
reduce her sentence, so she gave the district court no opportunity to respond to her
due process argument and claim of judicial partiality. Moreover, a timely claim for
post-sentence relief under Rule 35 or 28 U.S.C. § 2255 would be based on the
statutory bias and disqualification requirements of 28 U.S.C. §§ 144 and 455; a
claimant must “utilize the procedures available to him under” those provisions.
Holloway v. United States, 960 F.2d 1348, 1354 (8th Cir. 1992). “Relief under
section 144 is expressly conditioned on the timely filing of a legally sufficient
affidavit,” and “claims under [§ 455] will not be considered unless timely made.” Id.
at 1355 (citations and quotations omitted). If these Holloway principles apply to the
statutory claim of the bias alleged in this case, we would have no jurisdiction to
consider the claim because it was not preserved in the district court. But there are
cases where we have conducted plain error review of judicial bias claims first asserted
2We observed that “Minard cites no case, and we have found none, in which
Rule 35 relief was granted because the sentencing judge failed to recuse sua sponte,”
Id. at 557. Not surprisingly, Johnson cites no case in which an unpreserved claim for
due process relief was granted on appeal for this reason.
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on appeal, and this case involves an unpreserved due process claim of judicial bias
or lack of neutrality, not a statutory claim. Although the question has not been
briefed nor apparently considered by any other circuit, we doubt that we have
appellate jurisdiction to consider Johnson’s unpreserved due process claim of judicial
bias but conclude we need not decide the question.
Even if we do have jurisdiction to consider Johnson’s due process claim, we
conclude that it is without merit. Under plain error review, we will affirm unless
“there was (1) an error, (2) that is clear and obvious, (3) that affected substantial
rights, and (4) that seriously affected the fairness, integrity or public reputation of
judicial proceedings.” United States v. Ingram, 91 F.4th 1271, 1273 (8th Cir. 2024).
“[A] judge is presumed to be impartial and the party seeking disqualification bears
the substantial burden of proving otherwise.” United States v. Ali, 799 F.3d 1008,
1017 (8th Cir. 2015) (quotations omitted).
Though “[a] judge must recuse if his impartiality might reasonably be
questioned because of bias or prejudice,” United States v. Burnette, 518 F.3d 942,
945 (8th Cir. 2008), quoting 28 U.S.C. § 455, “opinions formed by the judge on the
basis of facts introduced or events occurring in the course of the current proceedings,
or of prior proceedings, do not constitute a basis for a bias or partiality motion unless
they display a deep-seated favoritism or antagonism that would make fair judgment
impossible.” Id., quoting Liteky v. United States, 510 U.S. 540, 555 (1994). “Rules
against ‘bias’ and ‘partiality’ can never mean to require the total absence of
preconception, predispositions and other mental habits.” Id. (quotation omitted).
Denial of due process requiring recusal is appropriate in “various situations . . . in
which experience teaches that the probability of actual bias on the part of the judge
or decisionmaker is too high to be constitutionally tolerable,” such as when “the
adjudicator has a pecuniary interest in the outcome . . . [or] has been the target of
personal abuse or criticism from the party before him.” Withrow v. Larkin, 421 U.S.
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35, 47 (1975). Judge Menendez’s statements at sentencing fall far short of this high
bar for establishing bias.
Focusing on the writing of “scholars” who have identified “phenomena
captured by the word” empathy, Johnson argues that the empathy for victim L.D.
expressed by the district court at the sentencing hearing “fell over the hard edge of
fairness,” and “[p]rejudice to Ms. Johnson is found in the uneasy balancing that
empathy requires.” This contention finds no support in reported recusal caselaw and
is contrary to the principle that a judge’s opinions formed “on the basis of facts
introduced or events occurring in the course of the current proceedings . . . do not
constitute a basis for a bias or partiality motion unless they display a deep-seated
favoritism or antagonism that would make fair judgment impossible.” Liteky, 510
U.S. at 555. Judge Menendez’s comments, directed to a young victim struggling to
express the impact of the horrible abuse he had endured, understandably expressed
sympathy -- and empathy -- for enduring the physical and emotional harm caused by
the defendant’s crime. This is not a case where the judge “shed [her] robe . . . and .
. . assumed the mantle of the advocate.” Reserve Mining Company v. Lord, 529 F.2d
181, 185 (8th Cir. 1976). As in Minard, we conclude there was no bias or partiality
reflected when the judge spoke directly to a victim after the victim addressed the
court during sentencing and expressed empathy for the harm caused by the
defendant’s crime. 856 F.3d 555-57. We noted in Minard that “Congress has given
crime victims the statutory rights ‘to be reasonably heard at any public proceeding in
the district court involving . . . sentencing,’ and ‘to be treated with fairness and with
respect for the victim’s dignity and privacy.’” Id., quoting 18 U.S.C. § 3771(a)(4) and
(8). A judge’s impromptu statement to a victim does not demonstrate bias toward the
defendant; rather, it “further[s] the congressional policy of encouraging crime victim
participation in the criminal justice process.” Id.
Johnson provides no basis to conclude that Judge Menendez’s brief expression
of sympathy and empathy toward a child who had been required to recount the
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traumatic and extreme abuse he suffered, first during Bobbi Jo’s trial and again in his
victim impact letter at sentencing, improperly influenced the court’s sentencing.
After noting and weighing the relevant § 3553(a) mitigating and aggravating factors
in detail, the court sentenced Johnson below the government’s requested sentence,
noting it would never have reduced the sentence to the non-binding agreement
previously offered by the government. That the court weighed relevant sentencing
factors differently than Johnson would prefer does not warrant reversal or
intervention by this court. United States v. Maluoth, 121 F.4th 1158, 1165 (8th Cir.
2024).
For the foregoing reasons, the judgment of the district court is affirmed.
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