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UNITED STATES v. CUTLER

June 24, 1992

UNITED STATES OF AMERICA, against BRUCE CUTLER, Defendant.


The opinion of the court was delivered by: THOMAS C. PLATT

 PLATT, Chief Judge.

 Defendant has moved, pursuant to 28 U.S.C. § 455(a), to recuse all of the judges of the Eastern District of New York from presiding over his criminal contempt trial and to either transfer this action to the Southern District of New York or to a judge from the United States Court of Appeals for the Second Circuit. For the reasons that follow, defendant's motion must be denied.

 BACKGROUND

 This case has its genesis in the case United States v. John Gotti, et al., 90 CR 1051 (E.D.N.Y. Glasser, J.). Defendant served as Mr. Gotti's trial counsel in that case until July 1991 when Judge I. Leo Glasser disqualified defendant from serving as such. See United States v. Gotti, 771 F. Supp. 552 (E.D.N.Y. 1991). Due to what he perceived to be numerous violations of Local Criminal Rule 7, *fn1" Judge Glasser signed an order on November 4, 1991 appointing John Gallagher, pursuant to Federal Rule of Criminal Procedure 42 (b) and the court's inherent authority, as the special prosecutor:

 On March 18, 1992, the special prosecutor requested that Judge Glasser sign an order to show cause as to why the defendant should not be held in criminal contempt. Judge Glasser signed this order on April 27, 1992 and on May 8, 1992, without providing any reasons, Judge Glasser recused himself from this case. Pursuant to Rule 50.4 of the Eastern District's Guidelines for the Division of Business, this case was then reassigned by random selection to this Court.

 Defendant was arraigned on May 15, 1992 and entered a plea of "not guilty." Defendant then made the present motion requesting that this Court as well as the entire bench of the Eastern District of New York be recused from this matter pursuant to 28 U.S.C. § 455(a).

 DISCUSSION

 Defendant argues that recusal of the Eastern District is required because this District is functioning as both the prosecutor and the judge in this action. In defendant's view, this situation has arisen because Judge Glasser was the individual who initiated the criminal proceeding and because this Court will preside over the contempt trial and may in fact act as the jury since, as stated in the order, the punishment imposed may not exceed six months imprisonment. In addition, defendant argues that in the course of the contempt trial, this Court may have to judge the validity of Judge Glasser's "complaint" against defendant.

 Furthermore, defendant argues that "should this case remain in the Eastern District of New York, 'a reasonable person could question whether a judge in this district might be affected in ruling, either consciously or subconsciously, by friendship or a spirit of collegiality or because of the relationship of judges on the same bench.'" Defendant's Memorandum of Law at 7 (hereinafter "Defendant's Memo.") (quoting United States v. Singer, 575 F. Supp. 63, 68 (D. Minn. 1983)). In support of this argument, defendant points to "the fact that in public perception there is animus between Judge Glasser and Mr. Cutler" which could result in the public doubting "the ability of Judge Glasser's close colleagues to be absolutely impartial." Defendant's Memo. at 8. Defendant argues that the perception of animus developed due to Judge Glasser's decision to disqualify defendant from acting as Mr. Gotti's trial counsel, defendant's subsequent public criticism of Judge Glasser and finally, Judge Glasser's decision to initiate this contempt proceeding.

 Defendant is careful to note that he is not claiming that this Court or any other member of this District would not be impartial or that actual bias or impartiality exists; rather, defendant focuses on the appearance of impropriety raised by this case and "whether an objective observer would conclude that the strength of the personal and professional relationships between judges in the same district might, in this case, mitigate against complete impartiality." Id. at 9.

 In response to the special prosecutor's argument that this motion is untimely and that defendant is "forum shopping," defendant counters that his intention to file this motion was made at the earliest possible time - at defendant's initial appearance before this Court. In addition, defendant also argues that it would not have been possible to make such a motion before the order to show cause was signed because there was no case pending before the order was signed and defendant did not know the substance of the order to show cause because it was submitted ex parte with defendant receiving a copy only after it was signed.

 The special prosecutor argues against recusal of this Court and the Eastern District because the Second Circuit, in both United States v. Pilsbury, 866 F.2d 22 (2d Cir. 1989), and United States v. Lumumba, 794 F.2d 806 (@d Cir.), cert. denied, 479 U.S. 855, 93 L. Ed. 2d 125, 107 S. Ct. 192 (1986), expressly approved of reassigning criminal contempt trials to another judge within the same district as the judge who held the defendants in contempt. In both cases, the Court had already found the defendants in contempt when the cases were remanded and the contemptuous conduct took place in front of the judge who initially found the defendants in contempt. The special prosecutor argues that the situation presented here differs because Mr. Cutler has not yet been found in contempt and consistent with the provisions of Federal Rule of Criminal Procedure 42(b), Mr. Cutler will be given an opportunity to be heard. Also, in this case the alleged contemptuous ...


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