Timothy Barton
3926 Vista Woods
Carrollton, TX 75007
Phone: 214-673-8714
Email: timothy.barton@proton.me
May 5, 2025
Office of the Circuit Executive
Judicial Council of the Fifth Circuit
600 Camp Street, Room 100
New Orleans, LA 70130
Re: Judicial Misconduct Complaint Against Judge Don Willett and Judge James Ho
Dear Chief Judge,
I submit this formal complaint of judicial misconduct pursuant to the Judicial Conduct and Disability Act against Judge Don Willett and Judge James Ho of the U.S. court of Appeals for the Fifth Circuit for actions taken in the matter of SEC v. Barton, No. 23-11237.
SUMMARY
This complaint addresses the extraordinary and improper actions taken by Judge Willett and Judge Ho—in relying on and effectively adopting arguments and alleged “facts” presented by a court-appointed receiver, Cort Thomas, in an amicus brief filed after the case was already on appeal. The eleventh-hour recusal of Judge Ho, just moments before oral argument, conveniently cleared the path for Judge Willett to dominate the panel’s direction unchecked. With no third voice to balance or challenge potential bias, Judge Willett — who once mentored District Judge Brantley Starr — was left free to effectively defend the rulings of his former clerk, including by adopting arguments from a discredited receiver whose appointment had already been vacated as unlawful. This maneuver not only undermined the neutrality of the panel but also lent the impression that judicial loyalties had overtaken judicial fairness. The amicus brief was prepared by Thomas, a lawyer at Brown Fox PLLC, who had been appointed as a pre-judgment receiver by District Court Judge Brantley Starr. The Fifth Circuit subsequently vacated the appointment of this receiver as unlawful via Case No. 23-11132 Dkt No 51.
Nonetheless, in a published opinion issued via Case No 23-11237 Dkt No 115 on April 17th 2025, Judge Willett cited to the amicus brief and directly repeated its language, drawing multiple slanderous and false conclusions about me (Tim Barton), which had not been litigated, presented to the panel, or subject to any adversarial testing. These findings were inserted into the opinion without a trial, in violation of fundamental due process and without basis in the appellate record.
Appended below are a few such examples extracted and described according to the published opinion:
1. Willett Relied on a Discredited and Improper Amicus Brief
The amicus brief filed by Cort Thomas was authored after his appointment was vacated by the Fifth Circuit, and after the DOJ had instructed the district court to stay all proceedings in the underlying enforcement action [Dkt No 44 Case No 3:22-cv-02118-X]. Under Federal Rule of Appellate Procedure 29, an amicus brief must be submitted with either the court’s permission or the consent of all parties. The appellant did not consent, and the court was misled by fraudulent statements of the receiver. The receiver stated that he had matters asserted are relevant to the disposition of this case, unfortunately, his amicus brief was full of simple rants and accusations and little legal facts and had no additional information beyond the SEC’s brief. For that reason and as well as for the Judge Starr’s agreement that there are only two sources of evidence; SEC and defendant when Mr. Michael Edney clarified for the court that there are only two sources of evidence; that of the SEC and the defendant of which the receiver is neither and it was agreed by the Judge Starr, still both the judges considered non-evidence and self-justified employment with built-up stories as evidences without due process.
Moreover, the brief was not neutral—it was overtly self-serving, aimed at defending Thomas’s vacated appointment and casting me in a prejudicial light. It included defamatory, untested claims, such as:
- “Barton executed a textbook swindle…”
- “He moved millions in investor funds to related parties…”
- “He controls a maze of LLCs to siphon money and conceal fraud…”
- “He routed funds to his ex-wife for services that were never rendered…”
Judge Willett’s opinion repeats these very phrases:
- “Barton executed a textbook swindle.”
- “He moved millions in investor funds to his own affiliates.”
- “He used a maze of LLCs to hide money and mislead investors.”
- “He directed fraudulent payments to his ex-wife.”
The amicus itself was a transparent attempt by Cort Thomas to defend his own prior conduct and appointment—an appointment that was declared unlawful by the Fifth Circuit. Worse, Thomas’s brief was co-authored by former clerks of Judge Starr, suggesting a conflict of interest and the potential for undue influence on the process.
Crucially, one of the most inflammatory accusations—concerning payments to my ex-wife for alleged sham work—has now been quietly walked back. The very lawsuit that the receiver referenced, claiming improper payments to my ex-wife, has been voluntarily invalidated and likely to be dismissed. The receiver no longer stands by the accusation, which confirms that it was baseless. Yet Judge Willett repeated this falsehood as fact in a published opinion, with no opportunity for me to refute it and no acknowledgement that the case was unproven and now likely to be abandoned.
Moreover, Judge Willett escalated the falsehood by fabricating a timeline not even claimed by the receiver. In his opinion, Judge Willett wrote that I “continued spending company money after the SEC complaint was filed,” citing as examples that I paid my ex-wife and bought a plane. This assertion is patently false and wholly unsupported by the record. The receiver never alleged that these actions occurred after the SEC complaint. Willett inserted that narrative on his own and then used it to justify that I could not serve as trustee and that Judge Starr was correct in appointing a receiver.
This was not a judicial interpretation—it was judicial invention. Willett’s addition of a timeline that did not exist in the record, and that was not advanced by any party or the receiver, proves his bias and his determination to justify the receiver’s appointment no matter the facts. It further confirms that Willett should have recused himself and certainly should not have authored the panel’s opinion.
2. Willett Decided Facts That Were Not Before the Panel
None of the statements adopted by Judge Willett were issues raised on appeal. The questions before the panel were narrow and procedural—whether the appointment of the receiver had been lawful. The merits of the SEC’s allegations against me were not before the court.
Judge Willett went far beyond what the record supported, issuing sweeping factual conclusions about fraud, deception, and control of LLCs. He inserted findings that no lower court had made. This type of judicial conduct has been condemned as improper. See United States v. Grinnell Corp., 384 U.S. 563 (1966) (due process violated when judge acts as investigator and factfinder without hearing).
Further, case law routinely requires courts and government agencies to refer to unadjudicated claims as “alleged” misconduct. See, Sanders v. State, 191 S.W.3d 272 (Tex. App. 2006), Berger v. United States, 295 U.S. 78, 88 (1935) and Richardson v. Perales, 402 U.S. 389 (1971). In Liteky v. United States, 510 U.S. 540 (1994), the Court held that judicial bias must stem from an extrajudicial source or reflect a deeply rooted partiality. Judge Willett’s adoption of the amicus’s inflammatory and discredited statements demonstrates just that.
3. Violation of DOJ-Directed Stay
The Department of Justice had expressly instructed the district court to stay proceedings in SEC v. Barton 3:22-CV-02118-X. Judge Starr permitted post-stay filings by the receiver. Judge Willett, instead of rejecting these filings, used them as the basis for extrajudicial fact-finding. This violated the intended effect of the stay.
The actions of Judge Starr and Judge Willett go beyond mere violation of the stay—they have now directly jeopardized my right to a fair trial. By labeling me as having “swindled” investors and committed fraud without using the term “alleged,” both judges broadcast to the public and potential jurors that I am guilty prior to any trial in the SEC or DOJ actions. The use of these definitive, accusatory statements is not only unsupported by judicial findings, but has now been echoed and amplified through the receiver’s website, media, and the court record—all of which are publicly accessible.
This is precisely why the DOJ approved a stay: to avoid prejudicing any criminal or enforcement action and to protect the due process rights of the accused. Judge Starr and Judge Willett have undermined those protections, creating a public record of guilt that has already tainted the pool of potential jurors and eroded the impartiality of any future proceedings.
This type of judicial conduct—prejudging guilt and broadcasting false or unadjudicated findings as fact—cuts to the heart of judicial ethics and due process. These breaches of the stay and constitutional protections should independently serve as grounds for disciplinary action. In Hamdi v. Rumsfeld, 542 U.S. 507 (2004), the Court emphasized that even where the government claims significant interests, due process must not be compromised. That principle was ignored here.
4. Improper Recusal Procedure by Judge Ho
Just minutes before oral argument, Judge James Ho abruptly recused himself without providing any reason or explanation to the parties. This eleventh-hour recusal blindsided the appellant and denied a full, impartial appellate panel as guaranteed under due process. The appellant was not offered any procedural remedy — no opportunity to request a replacement judge, no chance to re-brief or reschedule, and no explanation for why this recusal came at such a critical stage.
Such timing severely prejudiced the defense. In Mickens v. Taylor, 535 U.S. 162 (2002), the Supreme Court emphasized that undisclosed or inadequately addressed conflicts of interest erode the fairness and legitimacy of judicial proceedings. The last-minute nature of Judge Ho’s recusal here deprived the appellant of any meaningful opportunity to address the impact of losing one-third of the appellate panel.
Compounding the harm, the panel continued with only two judges. Of those two, Judge Don Willett had previously employed Judge Brantley Starr — the district judge whose rulings are being challenged — as his law clerk. This created an unacceptable appearance of partiality and mentorship bias, especially given that the appellant had already moved for Judge Starr’s recusal and case reassignment in the lower court.
This setup left the appellant with no realistic path to an impartial appellate review. It raises the critical question:
- Why did Judge Ho recuse himself moments before argument, yet Judge Willett — despite a clear professional relationship with the district judge under appeal — remained on the panel?
- Why was the appellant not informed in advance of any potential recusal?
- Why did the Court proceed with a two-judge panel when established practice favors a full three-judge bench unless parties stipulate otherwise?
- Was the recusal designed to insulate Judge Willett from scrutiny or criticism tied to his prior relationship with Judge Starr?
The totality of these circumstances strips the appellant of confidence in the fairness of the proceeding. This maneuvering — whether intentional or recklessly indifferent — undermines the integrity of the appellate process and serves as yet another instance where due process has been quietly bypassed in favor of procedural expediency at the cost of fundamental fairness.
5. Motive to Protect Former Clerk
Judge Willett’s opinion appears crafted to vindicate the actions of a former clerk of Judge Starr who co-authored the amicus. By echoing that amicus’s claims, Willett not only disregarded the judicial record, but also gave an official imprimatur to biased assertions.
This conduct implicates multiple provisions of the Code of Conduct for U.S. Judges:
Canon 2: A judge must avoid both impropriety and the appearance of impropriety.
Canon 3(A)(4): A judge should afford each party the right to be heard before relying on disputed evidence.
Canon 3©(1)(a): A judge must disqualify himself where he has prior knowledge of disputed evidentiary facts or a relationship that creates an appearance of bias.
In Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009), the Supreme Court ruled that personal relationships that create a risk of bias demand recusal. Willett’s actions suggest loyalty to his former clerk Starr rather than impartial justice. The consequences of these violations are not just academic—the damage to my constitutional rights and the fairness of future proceedings is immediate and ongoing.
Judge Willett’s opinion appears crafted to vindicate the actions of his former clerk and further to the ex-clerks of Judge Starr himself who co-authored the amicus brief. By echoing that amicus’s claims, Willett not only disregarded the judicial record, but also gave an official imprimatur to biased assertions.
CONCLUSION
Judge Willett’s opinion adopted false, discredited allegations from a vacated receiver and his co-authors, including a claim about payments to my ex-wife that is now fully discredited and likely to be dismissed. At no point did Judge Willett use the word “allegedly” or otherwise clarify that these accusations had never been adjudicated by a court or jury. Instead, he presented the allegations as established facts—declaring that I had executed a “textbook swindle” and engaged in fraudulent conduct—despite these matters being unproven and still pending. Willett further fabricated a post-SEC complaint timeline that no party alleged, inventing a false basis to justify Judge Starr’s conduct. Judge Ho’s abrupt recusal without procedural safeguards undermines the integrity of the appellate process and paving a clear path for partial opinion as we see, issued by Judge Willett.
These actions not only violated due process, but they continue to cause ongoing harm. The published appellate opinion remains accessible in public records and is cited in media and by the receiver’s website. As a result, it continues to damage my professional reputation and prejudices any future proceedings, including my right to a fair trial in DOJ or SEC matters. This is precisely the type of harm the DOJ’s stay was meant to prevent.
The public record now reflects judicial declarations of guilt absent a trial—precisely what the Fifth and Fourteenth Amendments prohibit. In adopting these conclusions from discredited, extrajudicial sources, the panel violated my right to be heard and denied me the opportunity to rebut accusations before an impartial tribunal. Such conduct runs afoul of basic procedural due process and accepted judicial ethics.
Further, under judicial ethics principles, including Rule 3B(7) of the Model Code of Judicial Conduct, judges must refrain from public commentary that risks impairing the fairness of matters still pending or foreseeable. Courts, prosecutors, and public officials are also held to a standard of neutrality and accuracy when referring to unresolved allegations. Numerous decisions reaffirm that unadjudicated claims must be treated as alleged, not established. For example:
United States v. Lanier, 520 U.S. 259, 264 (1997): Reaffirming that due process requires fair notice and adjudication before government action can attach criminal stigma.
Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991): Emphasizing that prejudicial public statements about pending litigation—especially those suggesting guilt—risk undermining the fairness of proceedings.
Berger v. United States, 295 U.S. 78, 88 (1935): A prosecutor or judge may not state opinions as facts in matters not proven.
Judicial remarks that declare wrongdoing prior to adjudication are inconsistent with these principles, particularly in pre-judgment proceedings stayed by the Department of Justice to protect constitutional rights. These actions violated due process, created an appearance of bias, and undermined public confidence in the fairness of the judiciary.
RELIEF REQUESTED
In light of the foregoing, I respectfully request the following relief:
- That the Judicial Council require the Fifth Circuit to publish a formal correction or clarification disavowing the prejudicial and unsubstantiated statements contained in the appellate opinion, in order to protect the fairness of any future trial and to restore my professional and personal reputation.
- That the Fifth Circuit assign a new appellate panel composed of three impartial and uninvolved judges to rehear any matters related to this appeal, ensuring a full and fair judicial review.
- That the Judicial Council investigate whether Judge Don Willett’s conduct—particularly his reliance on discredited amicus materials, factual misrepresentations, and failure to use neutral language—constitutes misconduct.
- That the Council examine the procedural handling and timing of Judge James Ho’s recusal to determine if it denied due process and appropriate notice.
- That the Judicial Council issue or reaffirm guidance prohibiting the adoption of disputed factual narratives from biased or unauthorized amici and requiring that all unadjudicated allegations be clearly described as such. These actions violated due process, created an appearance of bias, and undermined public confidence in the fairness of the judiciary.
I thank you for your kind consideration of this matter.
Respectfully submitted,
Timothy Barton