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August 2, 1990


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 983 (1985).

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.


Before considering Johnpoll's § 2255 petition, it is necessary to consider his recusal motion. Johnpoll contends that the court is biased against him and therefore must recuse itself under 28 U.S.C. § 144, 455(b)(1), and 455(a) from any further dealings with this case.

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 ...

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