Opinion
CRIMINAL ACTION NUMBER 98-165-C.
June 17, 2004
RULING
This matter is before the court on the petitioners' Motion to Recuse pursuant to 28 U.S.C. § 455(a) and (b)(1). The motion is opposed.
Record document number 2039.
Record document number 2056.
Petitioners Edwin Edwards, Stephen Edwards, and Andrew Martin were found guilty of extortion, money laundering, interstate travel in aid of racketeering and RICO violations in the United States District Court for the Middle District of Louisiana. Petitioners' convictions were affirmed on appeal. United States v. Edwin Edwards, et al 303 F.3d 606 (5th Cir. 2002), cert. denied, 537 U.S. 1192, 123 S.Ct. 1272, 154 L.Ed.2d 1025 (2003).
18 U.S.C. § 1951, 18 U.S.C. § 1956, 18 U.S.C. § 1952, and 18 U.S.C. § 1962 (c) and (d).
Petitioners filed separate motions pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct sentence. Petitioners also filed separate motions to recuse the judge who presided over the petitioners' criminal trial. The trial judge granted the recusal motions. The matter was randomly re-allotted to the undersigned on April 5, 2004.
Record document numbers 1969, 1978, and 1987.
Record document numbers 1975, 1984 and 1992.
Record document number 2031.
Petitioners filed a joint motion to recuse the undersigned pursuant to 28 U.S.C. § 455(a) and (b)(1) on the following two grounds: (1) an objective observer would harbor doubts about whether the undersigned could impartially decide the petitioners' due process claim, and (2) the undersigned may have extrajudicial knowledge of evidentiary facts related to their due process claim.
See, ground III, petitioners' Motion to Vacate, Set Aside, or Correct Sentence.
To warrant the disqualification of a judge under Title 28 U.S.C. § 455, a party must allege "personal, extrajudicial bias or the appearance of partiality arising out of such [extrajudicial] bias." In re Corrugated Container Antitrust Litigation, 614 F.2d 958, 965 (5th Cir. 1980), cert. denied, 449 U.S. 888, 101 S.Ct. 244, 66 L.Ed.2d 114 (1980). Section 455(a) provides that a federal judge shall disqualify himself in any proceeding in which his impartiality might be reasonably questioned. Section 455(b)(1) has two parts. First, it requires recusal when the judge "has a personal bias or prejudice concerning a party." Second, it requires recusal when the judge has "personal knowledge of disputed evidentiary facts concerning the proceeding."
The two provisions afford separate, though overlapping, grounds for recusal. Andrade v. Chojnacki, 338 F.3d 448, 454 (5th Cir. 2003), cert. denied, ___ U.S. ___, 124 S.Ct. 1655 (2004). Subsection (a) serves as a catch-all provision, covering circumstances that are not specifically delineated by the other subsections. Id.; see also Liteky v. United States, 510 U.S. 540, 552, 114 S.Ct. 1147, 1156, 127 L.Ed.2d 474 (1994) ("section 455(a) expands the protection of § 455(b), but duplicates some of its protection as well"). The first prong of subsection (b)(1) pertains to specific instances of conflicts of interest while the second prong of subsection (b)(1) pertains to personal knowledge derived from an extrajudicial source. Conkling v. Turner, 138 F.3d 577, 592 (5th Cir. 1998).
The standard for determining whether a judge's impartiality "might reasonably be questioned" under § 455(a) is an objective one. The party seeking recusal must demonstrate that, if a reasonable person knew of all the circumstances, they would harbor doubts about the judge's impartiality. United States v. Anderson, 160 F.3d 231, 233 (5th Cir. 1998). Review should entail a careful consideration of the entire course of judicial proceedings, rather than isolated incidents. Andrade v. Chojnacki, 338 F.3d at 455.
The origin of the judge's alleged bias is of critical importance. Id. To be a basis for disqualification, the alleged bias and prejudice must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case. Liteky v. United States, 510 U.S. at 555, 114 S.Ct. at 1157; United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 1710, 16 L.Ed.2d 778 (1966); United States v. Clark, 605 F.2d 939, 942 (5th Cir. 1979).
Petitioners sought the recusal of the undersigned under § 455(a) and (b)(1). In order to succeed on their motion, the petitioners must (1) demonstrate that the alleged comment, action, or circumstance was of "extrajudicial" origin, (2) place the offending event into the context of the entire trial, and (3) do so by an "objective" observer's standard. Andrade v. Chojnacki, 338 F.3d at 455.
Each § 455(a) case is extremely fact intensive and fact bound, and must be judged on its unique facts and circumstances rather than by comparison to similar situations considered in prior jurisprudence. United States v. Jordan, 49 F.3d 152, 157 (5th Cir. 1995).
With respect to their first ground for recusal, brought pursuant to 28 U.S.C. § 455(a), the petitioners argued that because the merits of the petitioners' due process claim and the trial judge's fitness were extensively addressed in the trial judge's ruling on the petitioners' motion to recuse him, the undersigned could not decide their due process claim without creating an appearance of impropriety.
Petitioners do not claim that the undersigned has exhibited actual bias or prejudice concerning a party.
Petitioners do not challenge any extrajudicial comment or action taken by the undersigned. Rather, the petitioners' argued that disqualification is appropriate because the circumstances peculiar to this matter are such that the undersigned's impartiality might be reasonably questioned. Specifically, the petitioners argued that an appearance of impropriety is created by (1) the need for the undersigned to review the trial judge's ruling on the petitioners' recusal motions, (2) the possibility that the undersigned will have to determine the credibility of the trial judge, (3) the undersigned will have to decide whether to permit discovery into the fitness of the trial judge, and (4) the undersigned will have to decide the petitioners' Motion For Remand
Record document number 2032.
Disqualification of the trial judge does not imply the disqualification of all judges of this district. United States v. Jordan, 49 F.3d at 160 n. 18. Nor is disqualification under § 455(a) required merely because the undersigned will have to review the rulings of a colleague on the bench. See United States v. Cutler, 796 F. Supp. 710, 714 (E.D.N.Y. 1992) (holding that judges of Eastern District were not required to recuse themselves under 28 U.S.C. § 455(a) from presiding over a charge of criminal contempt for willful violation of the orders of a colleague); United States v. Colon, 961 F.2d 41, 44 (2d Cir. 1992) (summarily rejecting suggestion that Circuit Court would be reluctant to reverse the district court rulings of a recently-elevated colleague).
Petitioners' due process claim can be decided on the merits of the claim without resort to the trial judge's ruling on the petitioners' recusal motion. Nevertheless, review of the pleadings in this matter, including the trial judge's ruling on the petitioners' motions to recuse him, is judicial rather than extrajudicial in nature. Opinions formed on the merits of the petitioners' due process claim based on facts introduced or events occurring in the course of these proceedings do not constitute a basis for recusal. Liteky v. United States, 510 U.S. at 555, 114 S.Ct. at 1147; United States v. Clark, 605 F.2d at 942. Moreover, the credibility of the trial judge is not an issue to be decided in conjunction with the petitioners' due process claim. See Jorgensen v. Cassiday, 320 F.3d 906 (9th Cir. 2003) (only where the outcome of a proceeding depends on the credibility of an acquaintance of the district judge is the concern over the appearance of impartiality heightened). Finally, determination whether to permit discovery under Rule 6, of the Rules Governing Section 2255 Proceedings, or to grant the petitioners' Motion For Remand, is judicial rather than extrajudicial in nature. None of the petitioners' allegations satisfy the "extrajudicial" origin prerequisite to warrant disqualification under § 455(a).
With respect to the petitioners' second ground for recusal, the petitioners argued that because the undersigned may have extra-judicial knowledge of evidentiary facts related to their due process claim, the undersigned is required to disqualify himself pursuant to the second prong of § 455(b)(1).
In the first component of their § 455(b)(1) ground for recusal, the petitioners argued that the trial judge suggested in his ruling on the petitioners' recusal motions that the undersigned has "personal knowledge of pertinent facts."
Petitioners failed to identify what extrajudicial knowledge of disputed evidentiary facts related to their due process claim is revealed in the trial judge's recusal ruling. Insofar as the petitioners' motion can be read to argue that the undersigned has knowledge that no judicial officer has ever taken any action to suspend or terminate the trial judge's duties as Chief Judge of this district, such knowledge, even if an evidentiary fact, is neither extrajudicial nor in dispute.
In the second component of their § 455(b)(1) ground for recusal, the petitioners argued that "[i]t is possible that [the undersigned may] have personal knowledge of the reasons for [the trial judge's] removal from criminal case allotment [following the petitioners' criminal convictions] and whether it relates to [the trial judge's] `impairment of function.'"
Petitioners' allegations are wholly speculative and are insufficient to support disqualification. Moreover, such knowledge is not extrajudicial. See Mayes v. Leipziger, 729 F.2d 605, 607 (9th Cir. 1984) (information obtained by judge in the performance of his judicial duties is not extrajudicial); United States v. Azhocar, 581 F.2d 735, 740 (9th Cir. 1978) (same), cert. denied, 440 U.S. 907, 99 S.Ct. 1213, 59 L.Ed.2d 454 (1979). Even if such knowledge were extrajudicial, it is not an evidentiary fact related to the petitioners' due process claim. The issue to be decided in the petitioners' due process claim is whether the petitioners received a fair trial before a competent tribunal.
For the foregoing reasons, the petitioners' motion to recuse the undersigned pursuant to 28 U.S.C. § 455(a) and (b)(1) is denied.