The opinion of the court was delivered by: Arthur J. Schwab United States District Judge
ORDER OF COURT DENYING DEFENDANT'S RENEWED MOTION FOR RECUSAL (DOC. NO. 918)
Defendant's Renewed Motion for Recusal (doc. no. 918) marks an unprecedented third attempt to remove this randomly assigned, Article III United States District Judge from presiding over this criminal proceeding. As with defendant's first two unsuccessful attempts, the Renewed Motion for Recusal is premised upon his allegations of bias or partiality by this Court in rulings and statements made during the course of pretrial, trial and post trial proceedings. The Court denies defendant's Renewed Motion for Recusal because a reasonable observer, aware of all of the facts and circumstances of record, could not find an appearance of partiality or bias.
With only rare exceptions, motions to remove a District Judge should be denied when said motion is based on the Judge's rulings or statements made during the course of a judicial proceeding. As the United States Supreme Court stated in Liteky v. United States, 510 U.S. 540 (1994), "judicial rulings alone almost never constitute a valid basis for a bias or partiality motion. . . . [They] can only in the rarest circumstances evidence the degree of favoritism or antagonism required . . . when no extra-judicial source is involved. Almost invariably, they are proper grounds for appeal, not for recusal." 510 U.S. at 555 (emphasis added), quoted in United States v. Wecht, 484 F.3d 194, 218 (3d Cir. 2007) (finding that this Court's rulings in this proceeding did not present a valid basis for defendant's motion to recuse based on allegations of bias and partiality).
There is nothing about this Court's fair and impartial rulings and statements throughout these proceedings that present, to any reasonable observer who knows all of the facts and circumstances of record, any degree of favoritism or antagonism -- let alone the sort of "deep-seated" or "high degree" of favoritism or antagonism that might qualify as one of the rare exceptions to the general rule that dissatisfaction with a Court's rulings "almost never constitute a valid basis for a bias or partiality motion" to recuse. Quite to the contrary, the record of these lengthy pretrial, trial and post trial proceedings demonstrates the evenhanded and even tempered administration of Justice and this Court's ardent dedication to protecting the constitutional rights of the accused.
Moreover, the record demonstrates that this case is exactly the type of case where the District Judge must remain steadfast and undaunted in his commitment and obligation, under Article III of the Constitution of the United States, to provide fair and impartial adjudication to all litigants who come before the Court, including those seeking to obtain his ouster by repeated recusal motions replete with ad hominem attacks.*fn1 Because granting a motion to recuse "necessarily results in a waste of the judicial resources which have already been invested in the proceeding," In re Int'l Business Machines Corp., 618 F.2d 923, 933 (2d Cir. 1980), a District Judge is "as much obliged not to recuse himself when it is not called for as he is obligated to when it is." In re Drexel Burnham Lambert, Inc., 861 F.2d 1307, 1312 (2d Cir. 1988), cert. denied sub nom. Milken v. SEC, 490 U.S. 1102 (1989).*fn2
II. PROCEDURAL BACKGROUND
A. First Writ of Mandamus at Court of Appeals Docket No. 06-3704
Much of the procedural background of this criminal prosecution is set forth in United States v. Wecht, 484 F.3d 194, 218 (3d Cir. 2007) and there is no need to repeat it herein. After considering defendant's First Writ of Mandamus, the Court of Appeals held:
Having considered all of the evidence and arguments that Wecht has presented, we do not agree that the Judge should be disqualified. This case has imposed significant burdens on the District Court Judge, who has pursued the important goal of moving the matter swiftly toward trial. In that effort, the Judge has presided over several lengthy status conferences and has ruled on numerous pre-trial motions in an efficient manner. Whether we agree with aspects of the Judge's management of this case is irrelevant to our present inquiry. Wecht simply has failed to demonstrate the "deep-seated" or "high degree" of "favoritism or antagonism that would make fair judgment impossible." [Liteky], at 555-56, 114 S.Ct. 1147. 484 F.3d at 221.
The Court of Appeals also disapproved of defendant's habit of distorting the record and the law in his motions and briefs in this Court and in the Court of Appeals,*fn3 a pattern which the pending Renewed Motion to Recuse repeats.
B. Second Writ of Mandamus at Court of Appeals Docket No. 07-4794
Following remand by the Court of Appeals to this Court on July 10, 2007 to resume pretrial and trial proceedings, this Court scheduled trial for January 28, 2008, and scheduled jury selection to commence on January 10, 2008. On December 28, 2007, defendant filed his Second Writ of Mandamus to the Court of Appeals ("Emergency Petition for a Writ of Mandamus"), seeking to stop the trial again, based primarily if not exclusively on this Court's pretrial rulings. The Court of Appeals denied this Second Writ of Mandamus on January 2, 2008, without reasoning or explanation. (Ironically, one of defendant's chief complaints therein was the "fundamental refusal of an Article III judge to . . . explain to the parties . . . the legal reasoning . . . ," Emergency Petition for a Writ of Mandamus, at 31, for its text-only denial of defendant's Motion to Reconsider its denial of his Supplemental Suppression Motion for the reasons explained in a sixteen page Memorandum and Order dated October 24, 2007 (doc. no. 553). See generally Emergency Petition for a Writ of Mandamus, at 28-32, 47-52.)
The more recent relevant procedural history, critical to understanding defendant's false allegations that this Court prejudged his pretrial motions, is as follows:
On April 9, 2008, defendant filed a Motion to Continue, Motion for Adjournment of Trial Date and Motion for Scheduling Conference with the Court (doc. no. 865), seeking to delay the retrial that is scheduled to commence with jury selection on May 12, 2008, following this Court's declaration of a mistrial on the basis of an unequivocally deadlocked jury and defendant's two motions to discharge the jury as hopelessly deadlocked. Defendant's motion to continue was predicated in part upon defense counsels' scheduling conflicts, and in very large part upon his explicitly stated intention to file a variety of pretrial motions with this Court and, thereafter, take interlocutory appeals and file petitions addressed to the original jurisdiction of the Court of Appeals (i.e., a Third Writ of Mandamus to remove this randomly assigned, Article III District Judge).
Defendant advocated for a continuance, therefore, on the basis of the enormous amount of time and resources defense counsel would need to prepare his promised motions and the briefs in support of the various relief he intended to request. Defendant described his future motions as follows:
16. The defense respectfully asks for vacation of the Third Pretrial Order at Doc. No. 863 and the Order at Doc. No. 864; a continuance of the trial date; and a conference with the Court to set realistic schedules which take into account the motions to be filed, possible appeals and petitions to the Third Circuit, and the schedules of trial counsel for the defense none of which were given any consideration in the hurried process to retry this case with an urgency unwarranted by the circumstances.
19. Thirdly, the defense intends to present, if necessary, substantial motions and briefings to this Court seeking the dismissal of the Indictment on various grounds now that all the evidence has been presented. Those motions and briefs will raise substantial issues which should be decided before a new trial date is even set and juror summons sent out, which quite frankly appear to prejudge the motions under the circumstances existing here. Among other things, the defense intends to renew its Rule 29 motion based on the Government's closing argument, which clearly failed to even argue necessary elements of the crimes, and also intends to seek dismissal on double jeopardy grounds and for deliberate Brady violations under the authority of Govt. of Virgin Islands v. Fahie, 419 F.3d 249 (3d Cir. 2005). The prosecution's deliberate Brady violations became manifest shortly prior to trial; permeated the suppression hearings held by the Court; and answer the question as to why Agent Orsini was never permitted to take an oath again by this prosecution team after obtaining the opening search warrants. Aside from constituting grounds under Fahie to dismiss the Indictment, such evidence will also be argued to be grounds to reopen and redecide the suppression issues. Some or all of these grounds may be immediately appealable, and the defense is diligently researching those issues.
20. Fourth, in light of the manner in which the trial was conducted and the consistent bias against the defense and for the prosecution displayed throughout the trial, the defense will be moving this Court to recuse itself from further proceedings and intends to seek review by the Third Circuit Court of Appeals if the Court declines, as expected, to recuse itself.
21. The hasty schedule established by the Court operates to preclude the defense from meaningful judicial review of these and other issues and is reminiscent of the steps taken by the Court in connection with the first recusal petition, where juror summons were sent out knowing that a recusal motion was forthcoming and then used by the Court to advocate to the Third Circuit not to stay the trial until that Court could decide the issues.
22. Accordingly, the defense requests that the Court vacate its Third Pretrial Order at Doc. 863 and Order at Doc. 864. The defense is diligently working to comply with the Court's request to have motions filed by noon next Friday, and will file appropriate requests for a short extension if needed to finalize those motions over that weekend. The Court can then establish a briefing schedule, allowing itself time to deliberate the various motions, and for the defense to pursue appellate remedies if necessary.
23. Thereafter, if anything remains of this case, a reasonable pretrial order can be established.
Motion to Continue, Motion for Adjournment of Trial Date and Motion for Scheduling Conference with the Court (doc. no. 865), ¶¶ 16, 19-23 (emphasis added).
After carefully considering said motion for continuance and the government's response, the Court denied defendant's motion for continuance. This decision was based upon this Court's intimate familiarity with the evidence adduced at the seven week trial, the Court's rulings on a number of motions filed by the defendant and by the government, rulings on disputed jury instructions and rulings regarding matters that arose during jury deliberations. See April 16, 2008, Order of Court (doc. no. 911) Denying Defendant's Motion for Continuance, Adjournment of Trial Date, and Scheduling Conference with Court (Doc. No. 865).
As defendant announced his explicit intention to file a variety of pretrial motions, it became necessary for this Court to consider defendant's promised motions in the context of considering the merits of his pending motion to continue, which the Court proceeded to do. Nevertheless, after inviting this Court's consideration of his promised pretrial motions, the constant refrain of defendant's Renewed Motion for Recusal is that this Court "prejudged" his various motions-to-be even before they were filed. See Brief in Support of Renewed Motion for Recusal (doc. no. 919) at 2-3, 22-25.
This Court did not "prejudge" anything in its Order denying defendant's motion to continue the retrial, but rather, simply assessed defendant's motions-to-be as he had previewed them, based upon similar motions that have been previously filed by defendant and based upon this Court's prior rulings thereon. Even in the limited context of deciding defendant's motion to continue, this Court did not discuss any of the promised motions at length, with one exception regarding the promised motion to recuse.
The April 16, 2008 Order of Court (doc. no. 911) Denying Defendant's Motion for Continuance, Adjournment of Trial Date, and Scheduling Conference with Court (Doc. No. 865) did contain some discussion of defendant's promised third attempt to remove this District Judge by motion to recuse and/or an unprecedented Third Writ of Mandamus. Defendant's Motion for Continuance states that the soon-to-be-filed recusal motion would be based upon the Court's own rulings during the pretrial, trial and jury selection and deliberation processes. See doc. no. 911 at 3, 6-8. Therefore, the matters that defendant announced would be raised in his motion to recuse indicated that said motion intended to relitigate the Court's rulings on issues with which the Court was keenly aware and which the Court had actually adjudicated and previously decided.
Defendant's announced intent came to fruition when he filed his Renewed Motion for Recusal, which alleges fifteen specific grounds for recusal, fourteen of which are complaints about official rulings or statements of the Court from the bench.*fn4 See Defendant's Renewed Motion for Recusal (doc. no. 918).
Therefore, to the extent the Order of Court (doc. no. 911) Denying Defendant's Motion for Continuance, Adjournment of Trial Date, and Scheduling Conference with Court (Doc. No. 865) implied that the motion to recuse would be of dubious persuasion, that implication was based upon this Court's precise knowledge about, and its actual adjudication of, defendant's previous motions and requests for relief containing most of the issues and arguments that were promised to and did form the basis of this current Renewed Motion for Recusal.
Moreover, because there is not and has never been any judicial bias, prejudice or ill-will, actual or apparent, that could be gleaned from any of those rulings or statements, and because two previous attempts to disqualify this Court have been found by the Court of Appeals to be without merit, it seemed unlikely that defendant would raise any ground for recusal of any substance in this third attempt, and indeed, no ground for recusal of arguable merit has been raised.
III. STANDARDS FOR MOTION FOR RECUSAL
Section 455(a) provides that "any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." 28 U.S.C. § 455(a). Unlike Section 144, which requires recusal whenever a timely and legally sufficient affidavit is filed demonstrating that the presiding judge subjectively harbors a personal bias or prejudice against or in favor of a party, 28 U.S.C. § 144, the inquiry under section 455(a) is "whether the record, viewed objectively, reasonably supports the appearance of prejudice or bias." United States v. Pungiatore, 2003 WL 22657087, *4 (E.D.Pa 2003), quoting SEC v. Antar, 71 F.3d 97, 101 (3d. Cir. 1995).
The test is whether a reasonable person, knowing all of the circumstances of record, would harbor doubts about the judge's impartiality. In re Prudential Ins. Co. of Am. Sales Practice Litig., Agent Actions, 148 F. 3d. 283, 343 (3d Cir. 1998); United States v. Antar, 53 F.3d 568, 574 (3d Cir. 1995); United States v. DiPasquale, 864 F. 2d 271, 279 (3d Cir. 1988). As the United States Supreme Court explained, the key to application of the "reasonable observer standard" for judging recusal motions is that the judge's impartiality must not be assessed in disregard of the actual facts of record, but instead must be viewed from the perspective of a reasonable observer having knowledge of all of the facts of record. Sao Paulo State of Federative Republic of Brazil v. American Tobacco Co., Inc., 535 U.S. 229, 233 (2002).
Where, as here, defendant's motion to recuse the trial judge is based on rulings and statements made during the proceedings, the Court of Appeals for the Third Circuit articulated the appropriate standards when it denied defendant's First Writ of Mandamus, as follows:
We note at the outset that "judicial rulings alone almost never constitute a valid basis for a bias or partiality motion. . . . [They] can only in the rarest circumstances evidence the degree of favoritism or antagonism required . . . when no extra-judicial source is involved. Almost invariably, they are proper grounds for appeal, not for recusal." Liteky, 510 U.S. at 555, 114 S.Ct. 1147. We will not discuss each of the rulings Wecht cites other than to note that they are not grounds for recusal.
It is "vital to the integrity of the system of justice that a judge not recuse himself on unsupported, irrational or highly tenuous speculation," McCann v. Commc'n. Design Corp., 775 F.Supp. 1506, 1523 (D. Conn. 1991), citing Hinman v. Rogers, 831 F.2d 937, 939 (10th Cir. 1987), and the judge has an "affirmative duty not to recuse himself if the movant fails to establish a reasonable doubt concerning his impartiality." Grand Entertainment Group Ltd. v. Arazy, 676 F. Supp. 616, 619 (E.D. Pa. 1987). Moreover, recusal motions must not be permitted to be used as "strategic devices ...