The opinion of the court was delivered by: MICHAEL B. MUKASEY
MICHAEL B. MUKASEY, U.S.D.J.
Based on the joint affidavit of his attorneys, defendant Ibrahim El-Gabrowny moves pursuant to 28 U.S.C. §§ 144 and 455 that I recuse myself on the ground that I follow the precepts of Orthodox Judaism and hold Zionist political beliefs. As explained below, the motion is without merit and is denied.
The indictment in this case charges 15 defendants with participating in a far-reaching seditious conspiracy to conduct a war of urban terrorism against the United States through a series of violent acts in New York, both accomplished and proposed. These include principally the bombing of the World Trade Center in February 1993, the planned bombing of buildings and vehicular tunnels in June 1993, and the assassination of various public figures. The indictment contains no statement of the motive for these alleged actions, although defense counsel have averred, and it should be accepted for purposes of this motion, that it is the government's theory that these actions were undertaken in order to oppose United States support for the State of Israel.
At a conference on July 15, 1993, the initial appearance after the filing of a since superseded indictment that charged a plan to bomb buildings and tunnels, one of El-Gabrowny's counsel alluded to the grounds he now asserts in this motion, and to other grounds he does not assert, when he declared:
MR. KUNSTLER: You are our cross to bear, you know, and for many reasons that I won't go into at this moment. I don't think you are the right judge for this case, not only former U.S. Attorney but ethnic affiliation and you are going to be judging a case where the claim is that Jews were going to be destroyed on 47th Street, among other things.
The motion was filed based on counsel's affidavit unaccompanied by a single citation to any of the vast body of case authority on the subject of recusal, and thus it becomes somewhat a matter of guesswork to fit counsel's rhetoric into the grid of governing legal principles. El-Gabrowny appears to argue that the combination of beliefs he hypothesizes generates a personal bias or raises sufficient suspicion that a reasonable person would question my impartiality in deciding issues of law in this case. He proffers his version -- or, more accurately, his lawyers -- of various rulings and other events in the case thus far, apparently arguing that they are so unjustified as to raise the inference that they could have resulted only from the bias he alleges. Included within the motion is a series of inquiries demanding that I disclose relationships between me or members of my family to the third degree of consanguinity, and the State of Israel, such information apparently intended to disclose further evidence of ties to political Zionism.
The two statutes El-Gabrowny cites without explanation, 28 U.S.C. §§ 144 and 455, are the two that govern judicial disqualification, and are set forth in the margin.
As noted, there is a substantial body of case-law governing application of these statutes, none of it cited in El-Gabrowny's papers. The principles underlying that neglected case-law uniformly warrant denial of El-Gabrowny's motion.
As a general matter, recusal motions are committed to the discretion of the judge who is being asked to disqualify himself, who is enjoined to "weigh the policy of promoting public confidence in the judiciary against the possibility that those questioning his impartiality might be seeking to avoid the adverse consequences of his presiding over their case. Litigants are entitled to an unbiased judge, not to a judge of their choosing." In re Drexel Burnham Lambert, Inc., 861 F.2d 1307, 1312 (2d Cir. 1988) (citation omitted) ("Drexel"), cert. denied sub nom. Milken v. S.E.C., 490 U.S. 1102, 104 L. Ed. 2d 1012, 109 S. Ct. 2458 (1989). Which is to say, recusal motions should not be allowed to be used as "strategic devices to judge shop." Lamborn v. Dittmer, 726 F. Supp. 510, 515 (S.D.N.Y. 1989). Moreover, "[a] judge is as much obliged not to recuse himself when it is not called for as he is obliged to when it is." Drexel, 861 F.2d at 1312.
1. Sections 144 and 455(b)(1)
Sections 144 and 455(b)(1), which require recusal when there is personal bias or prejudice, are construed in pari materia. Apple v. Jewish Hosp. & Medical Ctr., 829 F.2d 326, 333 (2d Cir. 1987); see 13A C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3542, at 556 (2d ed. 1984). In particular, both sections, and this is true for all subsections of § 455, are construed to require a timely application, which our Circuit reads as a ...