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UNITED STATES v. JONNET

October 31, 1985

UNITED STATES OF AMERICA
v.
ELMER J. JONNET



The opinion of the court was delivered by: TEITELBAUM

TEITELBAUM, United States District Judge

 MEMORANDUM OPINION

 I.

 Defendant Elmer J. Jonnet recently filed motions on August 19, 1985 and September 16, 1985 asking me to recuse from further proceedings in the above-captioned case. Both motions were denied. Defendant twice sought a Writ of Mandamus compelling my recusal and was unsuccessful both times.

 Since then I have reviewed the matter further and now conclude that my recusal is required by 28 U.S.C. § 455(a). Although I have no bias-in-fact against the defendant, he and his counsel have contrived to create a situation in which it well might appear to a reasonable person that I am biased against the defendant.

 II.

 A judge shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. 28 U.S.C. § 455(a). The test for determining whether recusal is required under this subsection is whether a reasonable person, knowing all the circumstances, would believe that a judge's impartiality could be questioned. See United States v. Schreiber, 599 F.2d 534, 536 (3d Cir. 1979). What matters is the objective appearance of bias, not actual bias. United States v. Nobel, 696 F.2d 231, 235 (3d Cir. 1982).

 III.

 The objective appearance of bias arises out of a number of accusations made by defendant and his counsel concerning me and certain members of my staff.

 Defendant alleged in an affidavit in support of the motion to recuse filed on August 19, 1985 that Mr. Sanford Lampl, Esquire, had told defendant and his son that I considered myself to be "the Archangel Gabriel " and defendant to be "the greatest evil on earth."

 The allegation that I hold or expressed such beliefs is untrue. In addition, Mr. Lampl contacted me on his own initiative and insisted that he never made the statement attributed to him to defendant, his son, or anyone else. It was for these reasons that I stated during the conference on August 19, 1985 that defendant had perjured himself in making such an allegation.

 Also, Mr. Lampl informed me that Mr. H. F. Salsbery, one of defendant's counsel, had approached him in a hostile manner and had attempted to induce such statements concerning my attitudes from Mr. Lampl. It was for this reason that I accused Mr. Stanley Preiser, also one of defendant's counsel, and his law firm, of engaging in a blatant campaign to malign my reputation and of filing the recusal motion in bad faith.

 Mr. Preiser and other members of his law firm unquestionably were aware that defendant had perjured himself in his affidavit. Although counsel understandably would be expected to fight zealously to protect defendant's interests, there are limits to the stratagems that may be employed in aid of the defendant's cause. See In The Matter Of The Complaint of Bankers Trust Co., et al., 775 F.2d 545, slip op. at 9 (3d Cir. 1985) (per Judge Higginbotham). For counsel to file the recusal motion and false affidavits was unprofessional ...


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