bias or the appearance of impropriety may exist are insufficient
to require a Judge's disqualification."). In addition, "[p]rior
rulings of the Court cannot provide such a factual basis [so as
to require recusal]." Id. at 713.
In this case, petitioner states in his affidavit that the
Court is personally biased against petitioner and in favor of
the government. In support of this general proposition,
petitioner states that improper ex parte communication between
the Court and counsel for defendant occurred in 1997. In his
affidavit, defendant states that Christopher Warren, former
counsel to Enigwe, told defendant that he "spoke with the Judge
who is willing to consider a lenient sentence under nine years
so that this case will stop bouncing back and forth from him to
the court of appeals." Pet.'s Aff. ¶ 4. Petitioner also points
to the transcript of a hearing that occurred on June 3, 1997, as
providing further evidence of this conversation and the
resulting prejudice or bias. Enigwe claims that when the issue
of whether any ex parte communications had occurred was
raised, the Court became defensive and agitated and stated that
"I am not going to let you set Mr. Warren up for another
ineffective assistance of counsel claim." Pet.'s Aff. ¶ 5.
Petitioner also avers that the Court cautioned Mr. Warren
against speaking about the alleged ex parte communication with
petitioner, id. ¶ 6,*fn3 and made an effort to conceal that
ex parte communication had occurred. Id. ¶¶ 6, 8.
In addition, defendant points to a number of unfavorable
rulings and comments made by the Court as evidence of personal
bias. In his affidavit, petitioner relies on the following
allegations: (1) prior to ruling on petitioner's § 2255 motion,
at the June 3, 1997 hearing, the Court stated: "if there is a
vacating [of Enigwe's sentence] — that's a big if. . . ." (Pet's
Aff. ¶ 7), without having seen and reviewed the evidence at the
hearing; (2) the Court denied petitioner's § 2255 motion so that
the Court's ex parte communication with Mr. Warren would not
be investigated by the government (Pet.'s Aff. ¶ 9); (3) the
denial of one of petitioner's motions was without any factual
support other than the Judge stating that "`[t]he court has had
much experience with defendant and has heard his consistent
assertions of his innocence.'" (Pet.'s Aff. ¶ 10); (4) the
Court's ruling with respect to petitioner's claim that he was
denied due process was incorrect; see United States v. Enigwe,
17 F. Supp.2d 388 (E.D.Pa. 1998) (Pet.'s Aff. ¶ 11); (5) the
Court concealed from the Third Circuit an affidavit that
petitioner claims demonstrates his actual innocence (Pet.'s Aff.
¶ 12);*fn4 and (6) the Court has
an actual conflict of interest with defendant arising out of a
RICO suit that Enigwe filed against the Court and the Court's
employees (Pet.'s Aff. ¶ 13).*fn5
In reviewing a motion for recusal under § 144, the Court is
mindful of the rule that the allegations contained in an
affidavit in support of such a motion must be accepted as true.
The Court is, however, firmly of the conviction that
petitioner's affidavit is insufficient as a matter of law. As an
initial matter, there are no statements in the affidavit in
support of disqualification based on personal, or
extrajudicial, bias. All of the facts and allegations set
forth in petitioner's affidavit relate to proceedings involving
Enigwe and information the Court has learned in the course of
its participation in this case. See United States v. Grinnell
Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966)
("The alleged bias and prejudice to be disqualifying 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.").
Moreover, Enigwe's affidavit is insufficient in that it does
not contain particularized facts. See Townsend, 478 F.2d at
1074. The affidavit contains a number of theories as to what
occurred based on circumstantial inferences, but opinions,
theories and conclusory allegations are insufficient to require
recusal. See Vespe, 868 F.2d at 1340 (citing United States v.
Haldeman, 559 F.2d 31, 134 (D.C.Cir. 1976) (en banc));
Bumpus, 385 F. Supp. at 715.
With respect to the ex parte communication issue, petitioner
relies on United States v. Furst, 886 F.2d 558 (3d Cir. 1989),
a case in which the Third Circuit found that allegations of ex
parte communications with defense counsel were sufficient to
require recusal. Furst, however, is distinguishable from this
case on its facts. In Furst, there was no question as to the
accuracy of the underlying facts on which the affidavit of
recusal was based — the district judge in Furst acknowledged
that he had two ex parte communications with defendant Furst's
attorney. In contrast, in this case, Enigwe's assertion that the
Court had ex parte communications with his attorney is based
on hearsay statements, opinions, inference and conclusory
assertions — not particularized facts.
Similarly, Enigwe's statement that the Court concealed
evidence from the Third Circuit is based entirely on inference.
In addition, petitioner's other allegations — the Court's "big
if" comment, allegations regarding the Court's motives and bases
for prior rulings, and the existence of a conflict of interest
arising out of an alleged RICO suit — do not form a proper basis
for recusal under 28 U.S.C. § 144. All of these allegations
clearly stem from the Court's participation in the case or are
based on the Court's prior rulings; they are therefore improper
grounds for recusal under 28 U.S.C. § 144. See Bumpus,
385 F. Supp. at 713 ("Prior rulings of the Court cannot provide such
a factual basis [so as to require recusal]."). For all of these
reasons, the Court concludes that, upon consideration of the
facts alleged in petitioner's affidavit, a reasonable person
would not conclude that a personal bias exists. See Mims v.
Shapp, 541 F.2d 415 (3d Cir. 1976).
For the foregoing reasons, Defendant's Motion for Recusal of
Judge is denied and
the affidavit under 28 U.S.C. § 144 is dismissed.
The Court recognizes that it is unnecessary to explain any of
the statements made in the Enigwe affidavit and motion.
Nevertheless, this opinion would be incomplete without an
explanation of what appears to be at the root of the affidavit
and motion — an alleged ex parte communication between the
Court and Enigwe's attorney appointed in connection with his
second § 2255 motion, Christopher Warren. The short answer to
these allegations is that there was no ex parte communication.
The allegations arise out of a hearing that the Court
scheduled on June 3, 1997 for the purpose of receiving evidence
with respect to Enigwe's second § 2255 motion. At that hearing,
the Court addressed a letter, dated April 14, 1997, that Enigwe
sent to his attorney, a copy of which was sent to the Court. A
copy of the April 14, 1997 letter is appended to this
Memorandum. The April 14, 1997 letter was addressed at length at
the hearing because of Enigwe's statement in the letter that he
"waived all my other issues because you [Warren] told me, in
the presence of a witness, that you [Warren] will try to get me
under nine years." Letter from Enigwe to Warren, dated April
14, 1997 (emphasis in original). The Court decided to give
Enigwe an opportunity to present evidence related to all such
issues in order to avoid a problem if the Court decided to deny
the second § 2255 motion or, in the event of a resentencing; the
Court imposed a sentence in excess of nine years.
In his affidavit under 28 U.S.C. § 144, Enigwe states that the
Court had "an ex parte communication with court-appointed
lawyer Christopher Warren" and Christopher Warren told Enigwe
that the Court "is willing to consider a lenient sentence under
nine years so that his case will stop bouncing back and forth
from him to the court of appeals." Pet.'s Aff. ¶¶ 3 & 4. Those
statements are diametrically opposed to a statement Enigwe made
in the April 14, 1997 letter. In the letter, as stated above,
Enigwe said: "Before I continue, I would like to remind you that
I waived all my other issues because you told me in the presence
of a witness that you will try to get me under nine years."
Letter from Enigwe to Warren, dated April 14, 1997 (emphasis in
original); see Hearing Tr. at 6 (June 3, 1997). He said
absolutely nothing in the letter or at the June 3, 1997 hearing
about any ex parte communication.
In paragraph 5 of the affidavit, Enigwe states that, when
"this issue [of ex parte communication with Warren by the
Court] was brought up by this Petitioner[,]" Judge DuBois
stated: "I am not going to let you set Mr. Warren up for another
ineffective assistance of counsel claim." Pet.'s Aff. ¶ 5; see
Hearing Tr. at 12 (June 3, 1997). The very next part of in the
transcript reads: "If you have anything to present to me, you're
going to present it now. If you need more time, you'll be back.
But, we're going to stop this — this trip, if you will, from
this court to the Court of Appeals and back again. You have a
right to appeal anything I do. But, I also intend to do what I
can to avoid making any error." Hearing Tr. at 12 (June 3,
1997). The statement with respect to the ineffective assistance
of counsel claim was related to the Court's concern that, if the
Court denied the motion
or resentenced Enigwe to a term of incarceration of more than
nine years, Enigwe would claim that his waiver of his right to
assert the "other issues" was invalid. The Court was simply
attempting to eliminate any alleged promise as a basis for
giving up those claims. That was made clear later in the hearing
when the Court stated:
I want you to assume that you might not get a
sentence of nine years. You might not get any reduced
sentence at all. I might deny your petition. Assume
that and tell me what you want to do regarding all of
these other issues. If you wish to go forward with
them, we'll give you an opportunity to do that. If
you're prepared to go forward now, we'll do it now.
If you need more time, we'll give you more time. You
tell me what you want to do. But, you're going to do
Hearing Tr. at 30 (June 3, 1997).
To make certain that Enigwe understood what the Court
intended, the Court repeated what is set forth supra at page
30 of the hearing transcript. In response, Enigwe stated the
Well, Your Honor, knowing everything you've said now
and knowing that with the denial of the motion that I
still have 235 months, I'm still going to waive all
those claims and I'm still going to shake Mr.
Warren's hand as a good lawyer. And, I'm doing that
knowingly, voluntarily and intelligently today.
Hearing Tr. at 31 (June 3, 1997).
The above-quoted parts of the hearing transcript leave no
doubt about the basis for the statement made by the Court
regarding an ineffective assistance of counsel claim. The
statement was made in connection with what Enigwe said in the
April 14, 1997 letter to the effect that Enigwe waived all of
his other claims because of the alleged promise by Warren. The
Court wanted to make certain that Enigwe's waiver of any such
claims was not linked to anything Warren might have said about a
nine year sentence.
The only other statement in the affidavit that warrants
comment is the statement that the Court refused to allow Warren
to get on the witness stand and be questioned by government
counsel. The explanation for that is a simple one. Warren took
the position at the hearing that what he said in his response to
Enigwe's April 14, 1997 letter was privileged and that,
notwithstanding the fact that a copy of the April 14, 1997
letter was sent to the Court, the privilege was not waived.
See Hearing Tr. at 33 (June 3, 1997). Under those
circumstances, the Court concluded that allowing Warren to
testify would lead to questioning about matters subject to the
attorney/client privilege, which was not necessary to any
relevant issue before the Court.
Dear Mr. Warren:
I received your letter and government's post-hearing
memorandum, including the "Restrepo Verification", on Friday,
April 11, 1997. You also enclosed a cover letter which made
several suggestions to me as to what you feel should be done.
Well, I have read the government's memorandum and the "Restrepo
Verification", and am hereby letting you know that I do not
agree with anything you had to say in your cover letter to me.
This disagreement now brings me to comment on the post-hering
memorandum you filed on my behalf-I do not like the way you
argued your issue Part C, at page 11, of the memorandum filed on
March 19, 1997.
Before I continue, I would like to remind you that I waived
all my other issues because you told me, in the presence of a
witness, that you will try to get me under nine years. And if
that were to happen, I am prepared to also waive all my
rights so that the case will be forever put to rest. But the
level 34 that you kept arguing does not seem to amount to under
nine years, and what made it worse, is that even in the
"Restrepo Verification", he indicated that his notes reflect a
calculation of 121-151 months as having been told to me, which
reflects a level 32, but yet in your letter, you still stated
that "Restrepo's affidavit thus indicates that he told you that
the base offense level applicable to this case was 34 . . ." It
seems that you are bent on arguing this level 34, because when I
discussed with you on the phone, on March 26, 1997, pertaining
to this level 34 argument, you told me that there is no other
way you could argue for a lesser offense level. I then brought
to your attention that since I was not told of the enhancements
(leadership role, and perjury), that these enhancements should
be deleted as a remedy for ineffective assistance of counsel.
I based my argument to you on Judge Gawthrop's action in
Kates. But in defending your position, you told me that
Kates' lawyers did not tell him about the "career-offender"
status, and that it is the reason why the court agreed to delete
it. So too, here, I was not told about the two enhancements that
I received, therefore, it should be deleted as a remedy for the
ineffective assistance I received for not being told about them.
You also indicated that I do not have a leg to stand on in
arguing that the leadership role enhancement should be deleted
because Judge DuBois already found it as a fact, but you forgot
that Judge Gawthrop also found it as a fact that Kates was a
career-offender. In Kates, the court pointed out that "I
conclude that the least unjust resolution would be to resentence
Mr. Kates upon his conviction, but without the career-offender
finding under § 4B1.1. It is that provision that stuck him with
a mandatory 30-year minimum, an it was that provision and his
various attorney's failure to let him in on it, to let him know
of the devastating looming presence in his case, that made
their assistance ineffective. I recognize that this tends to
penalize the government, whisking away from its grasp in this
case a significant sentencing enhancer, a factor that I have
already found to have been borne out by the facts and the law.
This will however, tend to allay at least some of the real harm
to Mr. Kates caused by his attorney's failure to inform him
about the true range of his sentencing exposure." Kates,
930 F. Supp. at 193 (E.D.Pa. 1996).
The Court's reason in Kates speaks for it self, and is
exactly identical to the reason I should be arguing for level 32
in this case, without the leadership role enhancement. And that
is what I am arguing for. Your other reasons and proposed
arguments which you covered in your cover letter to me, do not
conform with my own assessment of the case, and I do not agree
with them. However, I would wait to see you in person before I
could discuss the matter, since you spoke casually the other day
about not trusting your telephone. Plus there other things I
would like to discuss with you about Restrepo's sudden
predominance in this proceeding.
There is another thing the government used in its memorandum
which I felt we could have explored before it happened. The
government indicated that "[w]hen asked at the hearing in
February 1997 whether he was `Damien', Enigwe took the Fifth
Amendment upon Counsel's advice. Based on these facts, it is
inconceivable to the government that Enigwe would have accepted
a guilty plea under any circumstances." Govt.'s Post-hearing
memo. @5. If you remember, and you should, that prior to the
commencement of the evidentiary hearing on February 20, 1997,
in the courtroom, Mr. Nugent walked in and referred to me as
"Noble", and stated that he feels for my family, specifically,
my son who is growing up without a father; Marlisa (my spouse)
who is going through emotional turmoil, and my father who died
in all these. That it is time for me to stop thinking about
myself, and start thinking about my family. That I was stupid to
have fought the way I did, when he, me, and God know what
happened. That he hopes this Judge gives me relief today, and
that he will not be mad. That he is a nice guy, but when put
through the test in his job, that he is a "ball" buster.
When Mr. Nugent finished saying all those things, I expected
that we would approach him and ask him how these ordeal could be
brought to a closure since he had some kind of compassion in his
heart towards the case, like arranging with him so that I can
admit my guilt and possibly tell about the offense, without
being charged for perjury, but you did nothing with that cue.
Now, he is using my silence on the witness stand against me,
whereas I was willing to admit all guilt and see if I can
begin to salvage all the damages that have befallen me in this
case. You know that without the bad advice I received from Mr.
Capone, I would have pleaded guilty, and most possibly
cooperated, especially when I had good reasons to cooperate. Had
I known that the government wanted to talk to me, and also that
I faced up to twenty years, there is no way I would not have
been pressured to cooperate, where I could cooperate.
About the issue of my mother coming from Nigeria for the
hearing, I would like to discourage that for now, and my reason
is that it takes a long time to obtain a passport in Nigeria
(something like two to three months), and as the court
indicated, it did not want to prolong this proceeding too long
to await my mother's arrival. But if the court would still write
an order for her to obtain the visa, so that she can come, in
the event of re-sentencing where she, at least, would testify
for me, that will great.
You might look at this letter as being harsh, but I want you
to know that two heads are always better than one, and as your
head is good, added to mine, we may achieve something better.
And remember, Judge gawthrop said that "not every little
tete-a-tete with [a] client will be all peaches and cream." Id.
@192. So remain focused, but take heed to my suggestions. And I
will see you real soon before the hearing.
Thank you for your attention to this letter, and please make
the necessary arrangement to bring me down to Fairton, N.J. And
please let the Judge specify FAIRTON, N.J, so that I don't get
taken to a county jail where no law library is available.