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United States v. Rashid

July 26, 2010

UNITED STATES OF AMERICA
v.
AMIN A. RASHID, DEFENDANT



The opinion of the court was delivered by: Rufe, J.

MEMORANDUM OPINION AND ORDER

Presently before this Court is pro se Defendant's request that the undersigned judge recuse herself from these proceedings. This request is accompanied by an affidavit which purports to be in compliance with 28 U.S.C. § 144 ( Exhibit A ). For the following reasons, Defendant's request for recusal is DENIED.

I. FACTUAL AND PROCEDURAL BACKGROUND*fn1

On August 21, 2008, the federal grand jury issued an Indictment charging defendant Amin A. Rashid with two counts of mail fraud and one count of aggravated identity theft. On May 28, 2009, the federal grand jury issued a Superceding Indictment*fn2 charging Defendant with ten counts of mail fraud, eight counts of aggravated identity theft, and one count of passing an altered postal money order. The Superceding Indictment alleges that, from approximately December 2005 to August 2008, Defendant defrauded and/or attempted to defraud the Philadelphia Sheriff's Office and the owners of properties sold at Sheriff's sale by submitting false identification and power of attorney documents to the Sheriff in order to collect the sales proceeds. In addition, the Superceding Indictment alleges that Defendant defrauded and/or attempted to defraud clients of his company, the Center for Constitutional and Criminal Justice, by accepting fees to stop or reverse Sheriff's sales, or to recover proceeds from the Sheriff's sales, while in fact performing none of these services.

The case was initially assigned to United States District Judge Anita Brody, and counsel was appointed to Defendant on September 3, 2008. On March 6, 2009, Defendant moved to dismiss his court-appointed counsel and proceed with this case pro se, and Judge Brody granted that motion.*fn3 Since that time, Defendant has filed at least forty-five pro se motions, petitions or requests to the court on discovery and other matters, including motions for modification of custody and bail, motions for sanctions against the Assistant United States Attorney ("A.U.S.A.")*fn4 and against a court-appointed private investigator,*fn5 and at least thirteen separate motions to dismiss the indictment or reconsider orders denying motions to dismiss the indictment as duplicitous, defective, vindictive, fraudulent or in violation of the Speedy Trial Act.*fn6

Defendant maintains that there is a criminal conspiracy afoot to deprive him of his civil rights and to obstruct justice by delaying his trial, because the affidavit pursuant to which the government obtained its initial search warrant was "fraudulent."*fn7

On February 15, 2010, Defendant sent a letter titled "Request for Judicial Disqualification"*fn8 to Judge Brody, who presided over this case at that time. In that letter motion, Defendant requested that Judge Brody disqualify herself pursuant to 28 U.S.C. § 455, citing a series of unfavorable rulings, trial continuances, and other judicial actions that Defendant alleged showed Judge Brody's bias against Defendant and in favor of the prosecution. Defendant also filed notice of his intent to petition the Third Circuit for Judge Brody's disqualification if she did not recuse herself by March 10, 2010.*fn9 Judge Brody granted Defendant's Disqualification Request at a hearing on March 22, 2010 (and by Order on March 23, 2010)*fn10 and recused herself from this case without commenting on Defendant's allegations.

On March 25, 2010, this case was randomly reassigned to the undersigned judge by Eastern District Chief Judge Bartle, pursuant to Local Rule 3(a) of the Eastern District of Pennsylvania's Local Rules of Criminal Procedure.*fn11 The first hearing presided over by the undersigned took place on April 26, 2010,*fn12 at which, after considering the parties' oral arguments, this Court ruled on a number of motions filed by Defendant both before and after Judge Brody's recusal, reserving pre-trial motions for a separate hearing, and denying his Motion for Reconsideration of Judge Brody's denial of a Motion to Dismiss for Defective Indictment, Motion for Reconsideration of Pretrial Rulings Made by Disqualified Judge and Dismissal of this Case with Prejudice, and Motion to Dismiss Prosecution with Prejudice Due to Violation of Civil Rights.*fn13 On May 4, 2010, Defendant filed notice of an interlocutory appeal to the Third Circuit of this Court's April 27th rulings "regarding his Double Jeopardy Issues."*fn14 That appeal remains pending.

On June 4, 2010, Defendant filed an affidavit,*fn15 pursuant to 28 U.S.C. § 144, "in support of [his] claim that the judge to whom this case has been assigned has a personal bias or prejudice against [him] and in favor of Government personnel" prosecuting the case.*fn16 After a status hearing held on July 7, 2010, this Court deferred ruling on all outstanding pre-trial motions and continued the scheduled trial date, pending both resolution of Defendant's Third Circuit appeal and this Court's decision on Defendant's § 144 Affidavit.

II. DISCUSSION

A. Recusal Under 28 U.S.C. § 144

Two principal statutes deal with judicial recusal: 28 U.S.C. § 144, "Bias or prejudice of a judge," and 28 U.S.C. § 455, "Disqualification of a justice, judge, or magistrate." Section 455- which applies to any justice, judge, or magistrate of the United States-addresses actual bias or conflict of interest and/or the appearance thereof. Section 455 may be invoked by motion, but also requires a judge to recuse himself or herself sua sponte. Section 144, on the other hand, deals only with actual bias or prejudice on the part of a judge, applies only to district judges, and is triggered by a party's affidavit alleging bias. Section 144 reads as follows:

Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.

The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be ...


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