The opinion of the court was delivered by: RICHARD OWEN
In the summer of 1989, I presided over a sixteen week trial, following which defendant Eugene Robert Wallach was convicted by the jury of various violations of federal criminal law arising out of his activities in connection with the Wedtech Corporation. That conviction was reversed on May 31, 1991 by the Court of Appeals for the Second Circuit and remanded for a new trial, see United States v. Wallach, 935 F.2d 445 (2d Cir. 1991), familiarity with which is presumed. On remand to the District Court, and Wallach
coming before me again, Wallach now moves for three types of relief: a motion to recuse me from presiding over any retrial; a motion to disqualify Assistant United States Attorneys Baruch Weiss and Elliott Jacobson from representing the United States on any retrial; and a motion to dismiss the indictment in its entirety on grounds of double jeopardy. For the reasons stated below, each motion is denied.
Wallach moves to have me recuse myself from any retrial. Recusal is within the Court's discretion. In re Drexel Burnham Lambert Inc., 861 F.2d 1307, 1312 (2d Cir. 1988), cert denied, 490 U.S. 1102, 109 S. Ct. 2458, 104 L. Ed. 2d 1012 (1989). Unless there is good reason to recuse, a district judge ought not to recuse himself. In re Drexel Burnham, 861 F.2d at 1312; National Auto Brokers v. General Motors Corp., 572 F.2d 953, 958 (2d Cir. 1978), cert. denied, 439 U.S. 1072, 59 L. Ed. 2d 38, 99 S. Ct. 844 (1979).
Wallach bases his motion for recusal on 28 U.S.C. § 455(a) which provides that a judge "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." Wallach made clear in his motion papers, and reasserted at oral argument, that this motion is based not on any reasonable question as to "personal bias or prejudice", pursuant to 28 U.S.C. § 144, but only on the appearance of impartiality in some unspecified quarters.
At oral argument defense counsel stated:
We are not raising a claim of personal bias under 28 U.S.C. 144. I have not submitted an affidavit claiming that you, your Honor, are biased personally against my client. I could not make such a sworn claim, your Honor.
But the "objective standard" for recusal under section 455(a), can not be met by pointing to in-court rulings or pronouncements based on information the judge learned by presiding over the case. In re International Business Machines Corp., 618 F.2d 923, 929-30 (2d Cir. 1980). "Prior adverse rulings 'without more, . . . do not provide a reasonable basis for questioning a judge's impartiality.'" Schiff v. United States, 919 F.2d 830, 834 (2d Cir. 1990) cert. denied, 115 L. Ed. 2d 1037, 111 S. Ct. 2871 (1991) (quoting United States v. Wolfson, 558 F.2d 59, 64 (2d Cir. 1977)). Since the basis of Wallach's assertion of the appearance of impartiality is solely rulings or statements this Court made during trial or sentencing in response to matters adduced at trial, this argument fails.
Wallach also moves for recusal under United States v. Robin, 553 F.2d 8 (2d Cir. 1977). Robin, 553 F.2d at 10, sets forth the factors considered by the Court of Appeals on an application to remand to a different judge.
Absent proof of personal bias requiring recusation, Title 28 U.S.C. § 144, [which is not alleged herein] the principal factors considered by us in determining whether further proceedings should be conducted before a different judge are (1) whether the original judge would reasonably be expected upon remand to have substantial difficulty in putting out of his or her mind previously-expressed views or findings determined to be erroneous or based on evidence that must be rejected, (2) whether reassignment is advisable to preserve the appearance of justice, and (3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness.
Finally, this motion is clearly untimely. Although Wallach moves pursuant to 28 U.S.C. § 455 which has no timeliness requirement - unlike 28 U.S.C. § 144
which requires that motions be filed in a timely manner - nevertheless, the timeliness requirement of section 144 has been read into section 455 and is applied with equal force to motions brought under this section. Polizzi v. United States, 926 F.2d 1311, 1321 (2d Cir. 1991); Apple v. Jewish Hospital and Medical Center, 829 F.2d 326, 333 (2d Cir. 1987); In Re International Business Machines Corp., 618 F.2d at 932. Under both sections, a motion for recusal should be made "at the earliest possible moment after obtaining knowledge of facts demonstrating the basis for such a claim." Polizzi, 926 F.2d at 1321, quoting Apple, 829 F.2d at 333.
As the basis for his motion, Wallach points only to facts arising during trial or at sentencing, all of which took place in 1989. Despite the fact that these events occurred over two years ago, Wallach did not seek recusal at the time he made his motion for new trial before me in 1990. Wallach argues, however, that the motion for recusal was not ripe until I had denied the motion and the Court of Appeals had reversed. This argument is without merit. The basis for a recusal motion is the perceived partiality of the District Court and such a motion becomes ripe at the time of the acts so perceived, and before ...