The opinion of the court was delivered by: Robert L. Carter, District Judge.
Defendant Harvey Johnpoll, in a petition pursuant to 28 U.S.C. § 2255,
seeks an order vacating his conviction and judgment,
dismissing the indictment against him with prejudice, granting
him a full hearing on the issues raised in the petition, and
granting him a new trial. Additionally, Johnpoll moves pursuant
to 28 U.S.C. § 144 and 455 that the court recuse itself from
deciding the instant petition.
Johnpoll was convicted on seven counts of a twelve count
indictment on September 30, 1983, charging him with
masterminding and participating in a scheme to transport six
million dollars in stolen securities to Switzerland, sell these
securities abroad and return the proceeds to the United States.
He was sentenced to 15 years imprisonment and a $70,000
committed fine. On appeal, the conviction was affirmed on four
of the seven counts, and reversed on three. United States of
America v. Johnpoll, 739 F.2d 702 (2d Cir. 1984). Johnpoll's
petition for rehearing was denied. No. 83-1335, slip op. (2d
Cir.Aug. 1, 1984). Following the appeal, Johnpoll was
resentenced and he thereafter filed a writ of certiorari in the
Supreme Court. That petition was denied, 469 U.S. 1075, 105
S.Ct. 571, 83 L.Ed.2d 511 (1984), as was a subsequent request
for reconsideration. 469 U.S. 1197, 105 S.Ct. 982, 83 L.Ed.2d
Despite having taken an appeal and been denied certicrari,
Johnpoll persisted in his efforts to overturn his conviction.
In May, 1985, he filed a Rule 35 motion in this court seeking a
reduction of his sentence. That motion was denied. No. 83 Cr.
82 (RLC), slip op. (S.D.N.Y. July 10, 1985). On June 17, 1985,
he sought rehearing in the Court of Appeals asserting some 18
grounds for reconsideration. That application was also denied.
No. 83-1335, slip op. (2d Cir.Sept. 3, 1985). Still undeterred
and now claiming mental incompetence at the time of his trial,
Johnpoll invoked 28 U.S.C. § 2255 and moved for a hearing
before this court, a psychological examination and an order
vacating his conviction. The court denied that motion on
December 11, 1985. No. 83 Cr. 82 (RLC). slip op. (S.D.N.Y. Dec.
11, 1985). Johnpoll promptly appealed to the Court of Appeals,
which affirmed this court's ruling, No. 83-1335, slip op. (2d
Cir. July 14, 1986), and rejected his request for rehearing en
banc. No. 83-1335, slip op. (2d Cir.Aug. 13, 1986).
Johnpoll now is proceeding with another § 2255 motion, claiming
that: 1) the securities in question were worthless at the time
they were stolen; 2) the government did not prove that the
securities were stolen; 3) the trial court erred by failing to
ask specific questions requested during voir dire; 4) he was
denied his constitutional right of confrontation; 5) he was
denied his right of compulsory process; 6) the government
suppressed evidence crucial to his defense; 7) he was
improperly ordered to cease his Swiss litigation; 8) the
indictment was flawed and must be dismissed; 9) the jury charge
was error laden; 10) the trial transcript does not accurately
reflect the trial proceedings, and 11) the trial judge was not
impartial to him.
Under § 144, a judge shall disqualify himself "[w]henever 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 . . .
against him." Section 455(b)(1) provides for disqualification
of a judge "[w]here he has a personal bias or prejudice
concerning a party." Section 144 and § 455(b)(1) are construed
in pari materia. Apple v. Jewish Hosp. and Medical Center,
829 F.2d 326, 333 (2d Cir. 1987). Section 455(a) is broader in
scope than the above sections and requires a judge to
disqualify himself "in any proceeding in which his impartiality
might reasonably be questioned." A motion for recusal is a
matter committed to the sound discretion of the district court
and there is a substantial burden on the movant to show that
the judge is biased. Lamborn v. Dittmer, 726 F. Supp. 510, 514
(S.D.N.Y. 1989) (Carter, J.).
Essentially, Johnpoll alleges two bases of prejudice against
him. First, he claims that the court was biased in favor of the
prosecutor, Assistant United States Attorney Patricia Ann
Williams. Johnpoll claims that I had a romantic relationship
with Williams during the time of the trial and, in support of
this theory, declares that he was told by "numerous" unnamed
individuals that Williams and I were personally involved.
Johnpoll also declares that he personally observed Williams and
me seated at the same table at a Law Day dinner, that we left
at approximately the same time, and that I did not appear in
court the next day. Additionally, Johnpoll suggests that I was
prejudiced in favor of Williams because she was the only
African-American prosecutor in the Southern District United
States Attorney's Office at that time.
Second, Johnpoll argues that my various rulings during the
course of the proceedings show prejudice against him.
Specifically, Johnpoll complains that the court: 1) allowed him
to be tried and convicted based on an allegedly error-laden
indictment; 2) admitted allegedly improperly obtained evidence
from the Swiss government in violation of a United States-Swiss
treaty;*fn1 3) denied his request for certain legal
materials, and office equipment and supplies; 4) allowed
certain witnesses to be deposed in Switzerland rather than
appearing in New York for the trial when he was denied access
to Switzerland because of an outstanding arrest warrant; 5)
prohibited him from objecting to certain deposition testimony
taken in Switzerland and admitted that testimony; 6) directed
him to withdraw an appeal pending before the Swiss courts; 7)
refused to ask certain requested voir dire questions; 8)
quashed certain of his subpoenas; 9) gave an allegedly
incorrect jury charge, and; 10) "fixed" the trial transcript.
Before reaching the merits of the recusal motion, it is
necessary to determine whether procedural requirements as to
form and timeliness have been met. Affidavits filed under § 144
are strictly scrutinized for form and timeliness, United
States v. Womack, 454 F.2d 1337, 1341 (5th Cir. 1972), cert.
denied, 414 U.S. 1025, 94 S.Ct. 450, 38 L.Ed.2d 316 (1973),
and, although the Second Circuit has not yet decided whether an
affidavit is required to bring a motion for recusal under §
455, when one is offered it will be subject to the same
scrutiny as an affidavit offered under § 144. Apple v. Jewish
Hosp. and Medical Center, supra, 829 F.2d at 333.
As a general rule, a motion to recuse should be made at the
earliest possible moment after obtaining facts demonstrating a
basis for recusal, Id. at 333, and such motions are often
denied on the basis of untimeliness when there has been only a
short delay. See, Lamborn v. Dittmer, supra, 726 F. Supp. at
515. Johnpoll's motion comes over six years after the date of
the trial during which the alleged prejudicial
conduct occurred and therefore is presumptively untimely.
As Johnpoll points out, in addition to lapse of time four other
factors are taken into account in considering the timeliness of
a recusal motion: 1) whether granting the motion would
represent a waste of judicial resources, 2) whether the movant
has participated in a substantial manner in trial or pre-trial
proceedings, 3) whether the motion was made after the entry of
judgment, and 4) whether the movant ...