United States District Court, W.D. Pennsylvania
NORA BARRY FISCHER, District Judge.
Presently before the Court are Defendant Michael Tyrone Waller's Motion to Recuse, (Docket No. 72), and Motion to Dismiss the Indictment on the Grounds of Vindictive and Selective Prosecution, (Docket No. 31). The Government opposes said Motions. Upon consideration of all of the parties' submissions, the evidence of record, their arguments, and for the following reasons, Defendant's Motion to Recuse, (Docket No. 72), and Motion to Dismiss the Indictment on the Grounds of Vindictive and Selective Prosecution, (Docket No. 31), are denied, with prejudice. As Defendant moves for recusal, this Court finds it proper to address said Motion first.
II. MOTION TO RECUSE
A. PROCEDURAL HISTORY
Despite this Court's August 22, 2014 Order, to not to file any more Pretrial Motions,  Defendant filed a Motion to Recuse on October 2, 2014. (Docket Nos. 57, 72). With leave of Court for a brief extension, the Government responded to same on October 21, 2014, (Docket Nos. 76, 78). The Court took this Motion to Recuse under advisement on October 22, 2014. As this matter has been fully briefed, it is now ripe for decision.
Pursuant to 28 U.S.C. §§ 144, 455(a) and 455(b)(1), Defendant seeks recusal on the basis that this Court "harbors a bias and prejudice against the defendant of such magnitude that the Court is permitting United Sates Attorney Ross Lenhardt to commit perjury." (Docket No. 72 at 1). He claims that this Court has permitted AUSA Lenhardt and the police to support the Government's case with a "false impression by the false representation pretenses of representation of an imaginary witness." ( Id. at 1).
Although the legal standard of recusal is the same under each provision-bias-the provisions differ slightly. N'Jai v. U.S. E.P.A., 2013 WL 5357159, at *1 (W.D. Pa. Sept. 25, 2013) (J. Fischer). Section 144 requires federal district court judges to recuse if a party timely files a sufficient affidavit, setting forth factual statements showing the judge has personal bias or prejudice against a party. 28 U.S.C. § 144. An affidavit that puts forth conclusory statements and opinions, however, is insufficient and does not require recusal under § 144. Hill v. Carpenter, 323 F.Appx. 167, 170 (3d Cir. 2009) (citing United States v. Vespe 868 F.2d 1328, 1340 (3d Cir. 1989). Section 455 applies regardless of whether a party files a formal motion and affidavit for recusal, and requires recusal when a judge's impartiality "might reasonably be questioned, " 28 U.S.C. § 455(a), or "[w]here [she] has a personal bias or prejudice concerning a party." 28 U.S.C. § 455(b)(1).
The test for recusal is an objective one and requires recusal where a "reasonable person, with knowledge of all the facts, would conclude that the judge's impartiality might reasonably be questioned." In re Kensington Int'l Ltd., 368 F.3d 289, 301 (3d Cir. 2004). The bias required before recusal is warranted under either § 144 or § 455 "must stem from a source outside of the official proceedings." Liteky v. United States, 510 U.S. 540, 544 (1994). Moreover, the Third Circuit has made it clear that "a party's displeasure with legal rulings does not form an adequate basis for recusal." Securacomm Consulting, Inc. v. Securacom Inc., 224 F.3d 273, 278 (3d Cir. 2000). The court recently reinforced the point that disqualification and recusal should not be methods of "judge shop[ping]." In re Earl A. Pondexter, 537 F.Appx. 15 (3d Cir. 2013) (citation omitted). In order to establish the level of bias necessary to require recusal, facts that arose during the course of litigation are usually insufficient. Generally, "opinions formed by a judge on the basis of events occurring in the course of prior proceedings do not constitute a basis for a bias motion under 28 U.S.C. §§ 144, 455(a) and 455(b)(1), unless they display a deep-seated antagonism that would make fair judgment impossible." Atwell v. Schweiker, 274 F.Appx. 116, 117 (3d Cir. 2007) (citing Liteky, 510 U.S. at 555).
Here, Defendant has not met the standard for recusal under either § 144 or § 455. As to § 144, Defendant has not filed the requisite Affidavit. Even if this Court construed this pro se Defendant's assertions in his Motion for Recusal as an Affidavit, it nevertheless would not meet the standard. He has not set forth any objective, factual assertions to indicate this Court's bias. Rather, he proffers conclusory statements and opinions that derive from proceedings before this Court. See Vespe, 868 F.2d at 1340 ("[c]onclusory statements and opinions" made by a litigant in his § 144 Affidavit "need not be credited").
Next, recusal is not required under § 455's objective standard. Apart from Defendant's conclusory statements and accusations, he has set forth no evidence to demonstrate extrajudicial bias. As the Government correctly points out, the crux of Defendant's claim is his desire to ascertain the full identity of the witness with the initials "R.N." (Docket No. 78 at 16). Despite Defendant's accusations that this witness is imaginary, (Docket No. 72 at 5-6), this Court has previously found that R.N. exists. (Docket No. 61 at 2-3, 15-16). The Court based its finding on the testimony presented by the Government's witnesses. See, e.g. (5/30/14 Tr. at 60:23-65:24, 75:2-19). The Court points out that Defendant cross-examined the Government's witnesses about R.N. (5/30/14 Tr. at 66:8-70:21, 76:6-78:18). In light of all of the evidence presented, the Court found that the Government's witnesses were credible. (Docket No. 61 at 2); see, e.g. United States v. Richardson, 501 F.Supp.2d 724, 734 (W.D.Pa. 2007) ("the credibility of the witnesses and the weight to be given the evidence, together with the inferences, deductions and conclusions to be drawn from the evidence, are all matters to be determined by the trial judge.") (citations omitted). Despite Defendant's repeated accusations to the contrary, this Court's findings relative to R.N. are not to be disturbed.
In addition, this Court notes that disagreement with its ruling on Defendant's Motion to Suppress, (Docket No. 61), is not a basis to bring a claim for recusal. The Third Circuit has long held that a party's displeasure with rulings does not form an adequate basis for recusal. Securacomm Consulting, Inc., 224 F.3d at 278; In re TMI Litig., 193 F.3d at 728); Jones v. Pittsburgh Nat'l Corp., 899 F.2d 1350, 1356 (3d Cir. 1990). The Supreme Court of the United States has held that "judicial rulings alone almost never constitute a valid basis for a bias or partiality motion." Liteky, 510 U.S. at 555. Thus, Defendant's difference of opinion from this Court is not a basis for recusal.
In consideration of the above, Defendant's Motion for Recusal is denied. The Court proceeds to address Defendant's Motion to Dismiss Indictment.
III. MOTION TO DISMISS INDICTMENT
A. FINDINGS OF FACT
The Court now makes findings based on the credible evidence presented at the August 22, 2014 hearing on Defendant's Motion to Dismiss. (Docket No. 56). During the Hearing,  the parties presented documentary evidence and Defendant called AUSA Lenhardt as a witness. (Docket No. 56). In this Court's estimation, based on his earnest demeanor and answers to counsel's, Defendant's, and the Court's questioning, AUSA Lenhardt offered a convincing version of the events in this case and of Defendant's and his prior encounters. See United States v. Garcia, 521 F.Appx. 71, 73 (3d Cir. 2013) (quoting Anderson v. City of Bessemer, 470 U.S. 564, 574 (1985) ("[w]hen findings are based on determinations regarding the credibility of witnesses... for only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding of and belief in what is said.'"). To the extent that Defendant's testimony and/or statements to the Court contradicted the AUSA Lenhardt's, the Court finds AUSA Lenhart's testimony to be more credible.
As background, Defendant has a substantial criminal history, during which Assistant United States Attorney Ross Lenhardt ("AUSA Lenhardt" or "Lenhardt") has prosecuted him in both state and federal court. (Docket No. 56-3); United States v. Waller , Cr. No. 08-423. Lenhardt has been an AUSA since December 2005. (8/22/14 Tr. at 38:15-17). Prior to that, he was an Assistant District Attorney ("ADA") for Allegheny County for approximately 15 or 16 years. (8/22/14 Tr. at 38:18-19).
Defendant introduced a listing of his prior cases in the Court of Common Pleas of Allegheny County. (Docket No. 56-2). The Government then offered a separate chart listing Defendant's prior cases in Allegheny County, including the prosecutors for the various phases of each case. (Docket No. 56-3). Notably, Defendant did not object to this exhibit. (8/22/14 Tr. at 41:24). Lenhardt credibly testified that, because of its size and the volume of cases before it, the Allegheny County District Attorney's Office does not adhere to a vertical prosecution model, i.e., one where one ADA handles a case from beginning to end. (8/22/14 Tr. at 28:4-31:11). Indeed, the Government's ...