untimely affidavit that fails to conform to the requirements established under § 144. Second, while he alleges that my personal bias against him stems from a "personal relationship" between myself and the former Assistant United States Attorney assigned to this case, Mr. Jeh Johnson, he has raised no facts to support this conclusory allegation. Finally, the remaining allegations are based solely on my trial rulings and conduct, evidence which cannot be used to substantiate a recusal motion.
A. Procedural Defects
Although the substantive tests for bias under §§ 144 and 455 are identical, the procedural requirements are different: § 144 expressly conditions relief upon the filing of a timely and legally sufficient affidavit accompanied by a certification that the affidavit has been filed in good faith. 28 U.S.C. § 144 (1993); Lamborn v. Dittmer, 726 F. Supp. 510, 514 (S.D.N.Y. 1989). As many courts have held, these procedures must be strictly followed and if there is any deviation, the motion should be denied. Id. United States v. Johnpoll, 748 F. Supp. 86, 88 (S.D.N.Y. 1990).
It is well-established that a motion for recusal should be filed "at the earliest possible moment after obtaining facts demonstrating a basis for recusal."
Dittmer, 726 F. Supp. at 514; Apple, 829 F.2d at 333. Further, courts have considered four factors in determining the timeliness of a disqualification motion: (1) whether the movant has substantially participated in trial or pre-trial proceedings; (2) whether granting the motion would represent a waste of judicial resources, (3) whether the motion was made after the entry of judgment, and (4) whether the movant can demonstrate good cause for delay. Apple, 829 F.2d at 334.
Petitioner states that my "prejudice, bias and/or lack of impartiality mandate recusal" because it "stems from extra judicial [sic] sources." (Pope Cert. P 5). Yet, this accusation is based primarily on an alleged "social and personal relationship" between myself and former Assistant U.S. Attorney Jeh Johnson, my former "law clerk." Interestingly enough, while petitioner mentions obtaining this information from the "trial record," he neglects to accurately acknowledge that he actually learned of this "relationship" at the first pre-trial conference held in this matter.
Clearly, petitioner's motion is untimely. As early as March 1991, Occhipinti and his counsel
knew about my former association with Mr. Johnson because it was fully disclosed on the record at the first pre-trial conference. However, not once during the ensuing trial did petitioner allege that this court exhibited personal bias or prejudice either against himself or in favor of Mr. Johnson. After the conclusion of a four-week trial and subsequent appeal, petitioner only now raises issues that should have been addressed almost two years ago.
Additionally, a careful reading of § 144 clearly shows that a motion for recusal should be accompanied by both a factual affidavit and a separate certificate that the affidavit was made in good faith. Totally disregarding the statute, petitioner offers a single "Certification" which purports to satisfy the requirements of § 144. Moreover, while petitioner's counsel states that the allegations which he has raised are true and acknowledges that if they are "wilfully false, [he] is subject to punishment" (Pope Cert. P 9), this blanket statement does not satisfy the statutory requirement that counsel certify that the motion is made in good faith.
I have been associated with this case for almost two years and have become greatly familiar with the issues involved. It is readily apparent that if I granted petitioner's motion at this time, it would result in a significant waste of judicial resources. Although I would be justified in denying this motion on these grounds alone, Johnpoll, 748 F. Supp. at 88, given the seriousness of such a motion, I will address petitioner's remaining allegations.
B. Professional Association With Former Law Clerk
As stated previously, Mr. Johnson fully informed both the court and Occhipinti that he served as a student intern in my chambers during the Fall of 1991. Further, I attended Fisk University with his uncle over fifty years ago and have seen him only once since graduating from Fisk. Apart from these instances, I have had no personal contact with either Mr. Johnson or his uncle that would suggest the "social and personal" relationship which petitioner has alleged.
Recusal is appropriate when a judge has a personal interest at stake, such as financial ownership in a company, Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 850, 100 L. Ed. 2d 855, 108 S. Ct. 2194 (1988), or some personal bias in favor of or against a party to the action. Ellis, 768 F. Supp. at 478. The mere knowledge of one of the attorney's involved by itself is irrelevant without some factual allegation of bias or prejudice resulting from this association.
By the time a judge has attained senior status, she has many former law clerks and former student interns who are engaged in all aspects of the legal profession. Former clerks and former student interns become members of the criminal defense bar, become federal and state prosecutors, and even become members of the judiciary. Petitioner's argument, if taken to its illogical conclusion, would have virtually every judge recuse himself or herself whenever a former law clerk, or any attorney with whom he or she is acquainted for that matter, appears before the court. Accordingly, this argument is totally without merit and instantly rejected.
C. Trial-Related Conduct and Rulings
While petitioner claims that my prejudice against him stems from my "personal relationship" with Mr. Johnson, it is supposedly "established by the trial record. . . ." (Pope Cert. P 6). To support this claim, petitioner refers to a tape and transcript alleging that I was pre-selected for this trial, which I "refused" to hear or review.
He further states that I exhibited my partiality through "Orders [sic] requiring the exclusion of [his] children from the court room [sic] throughout the trial, the exclusion of [his] personnel file, the exclusion of the Clinka Commission report, ordering of the defense to reduce their witness list from forty to twenty witnesses, as well as the cancellation of Occhipinti's voluntary surrender agreement and the order of his immediate attention [sic] without safeguards." Id. All of these rulings could have and should have been raised on appeal.
As petitioner himself correctly points out, "personal bias must be based on extra judicial [sic] conduct, not conduct arising in [the] trial setting; ruling[s] adverse to [a] party, without more, [are] not bias against [the] client." (Pope Cert. P 3). See also United States v. Wallach, 788 F. Supp. 739, 741 (S.D.N.Y. 1992) (objective standard for recusal cannot be met by pointing to in-court rulings or pronouncements based on information judge learned presiding over the case). Yet, despite this acknowledgement, he continues to raise allegations which even he supposedly understands should not be the basis of a recusal motion. If petitioner disagrees with any of these rulings, he is well aware that the appropriate method by which to resolve his concerns was by appealing my trial rulings to the court of appeals, not by raising them in a disqualification motion. Person, 730 F. Supp. at 519. Accordingly, such claims are disregarded for purposes of this ruling.
As the Second Circuit aptly stated in Drexel:
In deciding the sensitive question of whether to recuse a judge, the test of impartiality is what a reasonable person, knowing and understanding all the facts and circumstances would believe. It is for that reason that we cannot adopt a per se rule holding that whenever someone claims to see smoke, we must find that there is fire. That which is seen is sometimes merely a smokescreen. 861 F.2d at 1309.
Considering the allegations raised by petitioner's motion, I find that to characterize them as even a smokescreen would lend them far more credit than they deserve. Counsel's allegations are so vague and transparent that petitioner's true intentions are painfully obvious--he has evidently brought this motion in the hopes of obtaining a "fresh start" with a new judge. Not only is such a purpose unethical, but it directly contradicts the mandate of the Second Circuit that "an attorney cannot be allowed to pick and to choose which judge shall hear his or her case simply by making unfounded and conclusory allegations of bias or prejudice." Id. at 1312. Accordingly, petitioner's motion for recusal is denied.
II. Motion to Transfer
Petitioner further argues that his "allegations" of prosecutorial misconduct suffice to warrant a transfer of this matter from the Southern District of New York to another District. (Pope Cert. PP 5, 8).
Not unlike his allegations concerning my "relationship" with Mr. Johnson, he again raises a transparent smokescreen hoping that this court will automatically take action. This argument is patently absurd. If mere allegations of misconduct were sufficient to warrant transferring a matter, beyond a doubt, all criminal matters would be repeatedly transferred until they just disappeared.
Petitioner has not raised one argument suggesting that his case should be transferred in the interest of justice or for the convenience of the parties. To the contrary, he has failed to present one shred of credible evidence which would warrant a transfer. Accordingly, this court will not indulge his incredulous speculation and his motion is denied.
For the reasons stated above, petitioner's motion for recusal and transfer of this matter is denied.
Separate Order Dismissing Motion.
Petitioner's motion for this court to recuse itself and transfer his case from the Southern District of New York to another District is denied for the reasons stated in the accompanying opinion.
New York, New York
October 25, 1993
Constance B. Motley