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UNITED STATES v. OCCHIPINTI

October 25, 1993

UNITED STATES OF AMERICA
v.
JOSEPH OCCHIPINTI, Defendant.


Motley


The opinion of the court was delivered by: CONSTANCE B. MOTLEY

MOTLEY, District Judge.

 This action is presently before the court on petitioner's motion for recusal and transfer of his case from the Southern District of New York. For the reasons stated herein, his motion is denied.

 BACKGROUND

 Petitioner Joseph Occhipinti is a former Supervisory Special Agent with the Immigration and Naturalization Service (INS). In 1991, petitioner was indicted by a grand jury for conducting interrogations and searches in violation of the Fourth Amendment, seizing large amounts of cash and merchandise for his own profit, and falsifying reports covering up his illegal behavior.

 Following a four-week jury trial, Occhipinti was convicted of conspiring to violate civil rights while acting under color of law in violation of 18 U.S.C. § 242 and making false statements in official reports in violation of 18 U.S.C. § 1001. His conviction was upheld by the Second Circuit Court of Appeals. *fn1" On January 15, 1993, after serving seven months of a thirty-seven month sentence, former U.S. President George Bush commuted his sentence to time served.

 Pursuant to Rule 33 of the Federal Rules of Civil Procedure, petitioner has moved for a new trial based on "new evidence" obtained after his conviction. He has also moved under 28 U.S.C. §§ 144 and 455 that I recuse myself from deciding his motion. To support petitioner's motion, counsel has appended a six-page certification (as opposed to an affidavit as required under § 144) raising several allegations and ultimately requesting that I "recuse myself from this matter, as well as . . . transfer . . . this matter from the Southern District of New York to another District Court." (Certification of Anthony J. Pope, Esq. in support of Petitioner's Motion for Recusal, P 1 ("Pope Cert.")). After carefully considering the allegations raised, his motion for recusal is denied.

 DISCUSSION

 I. Motion to Recuse

 28 U.S.C. § 144 requires recusal "whenever 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 either against him or in favor or any adverse party. . . ." It further requires that the affidavit "state the facts and reasons for the belief that bias or prejudice exists" and be "accompanied by a certificate of counsel of record stating that it is made in good faith."

 Similarly, § 455 provides in pertinent part: "Any justice, judge or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned," such as "where he has a personal bias or prejudice concerning a party. . . ." 28 U.S.C. §§ 144, 455(b)(1) (1993).

 While courts have generally considered § 455 broader in application than its counterpart, the analysis and standards under both sections are the same. See Apple v. Jewish Hospital and Medical Center, 829 F.2d 326, 333 (2d Cir. 1987) (§§ 144 and 455 should be read in pari materia). For instance, both sections require that the alleged personal bias or prejudice stem from an extrajudicial source. King v. United States, 434 F. Supp. 1141, 1144 (S.D.N.Y. 1977), aff'd, 576 F.2d 432 (2d Cir.), cert. denied, 439 U.S. 850, 58 L. Ed. 2d 154, 99 S. Ct. 155 (1978). Moreover, the standard for recusal under both § 144 and § 455 is whether a reasonable person, knowing and understanding all relevant facts, would recuse the judge. Person v. General Motors Corp., 730 F. Supp. 516, 518 (W.D.N.Y. 1990); Allen-Myland v. International Business Machines, 709 F. Supp. 491, 493 (S.D.N.Y. 1989) (quoting In re Drexel Burnham Lambert, Inc., 861 F.2d 1307, 1313 (2d Cir. 1988)).

 When considering a recusal motion, this District has consistently held that a judge must accept all factual allegations raised in the affidavit as true, even if she knows them to be false. Blank v. Sullivan, 418 F. Supp. 1, 2 (S.D.N.Y. 1975) (Motley, J.). However, this does not prohibit the court from inquiring into the legal sufficiency of the affidavit, and if the allegations are found insufficient as a matter of law, the judge has a duty not to recuse herself. Id. See also, National Auto Brokers Corp. 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 (the mere filing of an affidavit does not result in automatic recusal; the judge has a duty to inquire into the legal sufficiency of the complaint); King, 434 F. Supp. at 1144 (judge has a duty to pass on the legal sufficiency of the complaint). The affidavit must "show a true personal bias and allege specific facts" as opposed to mere conclusions and generalizations. United States v. International Business Machines, 475 F. Supp. 1372, 1379 (S.D.N.Y. 1979) [hereinafter IBM]. Moreover, the judge is presumed to be impartial and a substantial burden is imposed on the affiant to prove otherwise. Farkas v. Ellis, 768 F. Supp. 476, 478 (S.D.N.Y. 1991); IBM, 475 F. Supp. at 1379.


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