Mr. Liotti states that it would be improper for him to appear before his former partner. (Id. P 17).
As for the motion to disqualify the prosecutor, Mr. Liotti stated: "...this case was apparently being investigated in early December, 1994 when Judge Gleeson was still a prosecutor in the United States Attorney's Office. Ms. Adelman and Judge Gleeson worked in the same office together. Whether there was a Chinese Wall in existence between them is a question yet to be resolved as far as this case is concerned." (Id. P 19.)
E. The Withdrawal of the Motion to Disqualify the Prosecutor
At the oral argument of the motion on March 30, 1995, AUSA Adelman pointed out that she did not join the United States Attorney's office until after I had left it, and that the investigation of the case did not begin until January 6, 1995, more than two months after I was sworn in as a district judge. The next day, Mr. Liotti withdrew his motion to disqualify the prosecutor. From this, the Court has concluded that Mr. Liotti's initial allegation -- that the prosecutor had helped to "hand-pick" Mr. Savitt to represent Etheridge -- has been abandoned.
Oluwafemi moves under 28 U.S.C. § 455(a), to disqualify the Court. In the event that motion is denied, Mr. Liotti then seeks the disqualification of Ephraim Savitt, counsel for codefendant Marvin Etheridge.
A. The Motion to Disqualify the Court
Subsection (a) of 28 U.S.C. § 455 provides: "Any justice, judge or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." It requires recusal not only when the judge evidences actual partiality, but also in the event of an appearance of partiality. Liljeberg v. Health Serv. Acquisition Corp., 486 U.S. 847, 860, 100 L. Ed. 2d 855, 108 S. Ct. 2194 (1988); United States v. International Brotherhood of Teamsters, 831 F. Supp. 278, 286 (S.D.N.Y. 1993); United States v. Johnpoll, 748 F. Supp. 86, 90 (S.D.N.Y. 1990). The section was enacted to foster public confidence in the impartiality of the judiciary by establishing an objective standard to govern judicial disqualification. United States v. Lovaglia, 954 F.2d 811, 815 (2d Cir. 1992); see also Liljeberg, 486 U.S. at 847-48. The test to be applied upon a motion to recuse is whether a reasonable person, knowing all the facts, would conclude that the trial judge's impartiality could reasonably be questioned. Apple v. Jewish Hospital and Medical Center, 829 F.2d 326, 333 (2d Cir. 1987). Stated differently, the question to be resolved is whether an objective, disinterested observer fully informed of the underlying facts would entertain significant doubt that justice would be done absent recusal. Deluca v. Long Island Lighting Co., Inc., 862 F.2d 427, 428-29 (2d Cir. 1988).
The application of the above standard is committed to the sound discretion of the judge whose disqualification is sought. In re Drexel Burnham Lambert, Inc., 861 F.2d 1307, 1312 (2d Cir. 1988), cert. denied, 109 S. Ct. 2458, 116 L. Ed. 2d 324 (1989). In making the determination, the judge must "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." Id.; see also Lamborn v. Dittmer, 726 F. Supp. 510, 516 (S.D.N.Y. 1989); H.R. Rep. No. 1453, 93d Cong., 2d Sess., reprinted in 1974 U.S. Code Cong. & Admin. News 6351, 6355 ("In assessing the reasonableness of a challenge to his impartiality, each judge must be alert to avoid the possibility that those who would question his impartiality are in fact seeking to avoid the consequences of his expected adverse decision. . . [Litigants] are not entitled to judges of their own choice.")
Where grounds for recusal do not exist, the judge is obligated not to recuse herself. Drexel, 861 F.2d at 1312; Wolfson v. Palmieri, 396 F.2d 121, 124 (2d Cir. 1968) ("There is as much obligation upon a judge not to recuse himself when there is no occasion for him to do so as there is for him to do so when there is.") "Remote, contingent, or speculative" interests do not constitute grounds for disqualification. Drexel, 861 F.2d at 1313. Therefore, the moving party bears a substantial burden to show that disqualification is proper. United States v. International Business Machines, c 475 F. Supp. 1372, 1379 (S.D.N.Y. 1979), aff'd, 618 F.2d 923 (2d Cir. 1980).
Here that burden has not been met. The allegations concerning my supposed hostility toward Thomas Liotti are not only speculative, they are incorrect. I had never seen Mr. Liotti before he entered the courtroom in the present case, nor had I ever communicated with him in any way. The sole ground for his allegation of personal animus is the use of blunt statements about the merits of his arguments in an appellate brief I edited when I was an AUSA. These alleged affronts, which accurately set forth the government's position in the Gene Gotti appeal, are standard fare in appellate litigation. They are not personal attacks on the adversary.
In short, Mr. Liotti's basic premise -- that the "disrespectful adjectives" in the government's brief are "evidence" of "ire" and "contemptuous feelings for Mr. Liotti" which require disqualification, (Aff. P 11) -- is fatally flawed. In fact, I have never had any personal feelings about Mr. Liotti at all, and no basis on which to develop any. Moreover, it bears noting that the most "disrespectful" of the "adjectives" in the government's brief in the Gene Gotti appeal was its characterization of Mr. Liotti's jurisdictional argument -- he had sought to base appellate jurisdiction in a rule of evidence -- as "simply bizarre." This is not mentioned in Mr. Liotti's various submissions, no doubt because the Second Circuit panel explicitly adopted that characterization in its written order dismissing the appeal for lack of jurisdiction. (Government's Memorandum, Ex. A at 4.) Carried to its logical extreme, Mr. Liotti's faulty argument, which equates blunt disagreement with personal contempt, would require the disqualification of those three judges in future cases involving Mr. Liotti.
Of course, even if I had personal feelings about Mr. Liotti, my recusal would not necessarily be appropriate. It has been held repeatedly that, except in rare circumstances, an alleged appearance of hostility between a judge and the lawyer for a party is not sufficient to warrant disqualification under 18 U.S.C. § 455. See, e.g., United States v. Ahmed, 788 F. Supp. 196, 202 (S.D.N.Y.), aff'd, 980 F.2d 161 (2d Cir. 1992); United States v. Helmsley, 760 F. Supp. 338, 341 (S.D.N.Y. 1991); aff'd, 963 F.2d 1522 (2d Cir. 1992); In re Cooper, 821 F.2d 833, 838-39 (1st Cir. 1987); Gilbert v. City of Little Rock, 722 F.2d 1390, 1398-99 (8th Cir. 1983). Rather, "the hostility or bias must be so virulent and of such magnitude that it prejudices the judge against the attorney's client." Ahmed, 788 F. Supp. at 203; United States v. Jacobs, 855 F.2d 652, 656 n.2 (9th Cir. 1988); Gilbert, 722 F.2d at 1399.
In Ahmed, the defendant's attorney had been verbally assaulted and held in contempt by the judge in a prior action.
788 F. Supp. at 200. Although the judge's statements and punitive action against the lawyer were far more demonstrative of virulent animosity than the affronts of which Mr. Liotti complains here, they were nevertheless held insufficient to warrant recusal. Id. at 203. See also In re Beard, 811 F.2d 818, 830 (4th Cir. 1987) (district court's remarks that a lawyer was a "wise-ass" and a "son-of-a-bitch" were ill-advised, but did not require disqualification).
Another facet of Mr. Liotti's motion is the claim that I will be biased against Oluwafemi because it "is no secret that [Mr. Liotti] openly and vehemently opposed Mr. Gleeson's appointment to the bench." (Aff. P 16.) He also claims that "numerous defense organizations" opposed my nomination and appointment as well, and I should "be well aware of [my] antagonistic conflict with the defense bar and with [Mr. Liotti] in particular." (Supp. Aff. P 5.)
If Mr. Liotti opposed my nomination or confirmation, it was in fact a secret to me. I was aware of no such effort before Mr. Liotti filed this motion. It was never brought to my attention at any point in that process that Mr. Liotti (or any "defense organizations," for that matter) had registered even the slightest opposition to my appointment, either to the President or the Congress or their staffs.
Even now, there is no evidence of Mr. Liotti's opposition. The only mention of the subject anywhere in the record is in Mr. Liotti's 29-page reply brief in the Gene Gotti appeal, where he contended that my "sudden appearance" on the government's brief "is a glaring example of precisely why Mr. Gleeson's name should not be confirmed by the Senate." (See Government Memorandum, Ex. B.) I did not understand that to be "opposition" to my confirmation at all, let alone "open" or "vehement" opposition. It was an argument in a federal case about whether Gene Gotti and John Carneglia should have access to the anonymous jurors who found them guilty. Concededly, it was an unusual argument, but that did not distinguish it from many others in Mr. Liotti's briefs in that appeal.
Nevertheless, even if Mr. Liotti had in fact participated in the nomination or confirmation process by opposing my candidacy, my recusal would not necessarily be appropriate. In United States v. Helmsley, supra, the defendant was represented by Alan M. Dershowitz, who had requested Judge John Walker's recusal on the ground that Dershowitz had publicly opposed the judge's nomination to the Second Circuit. This opposition, unlike Mr. Liotti's, was expressed in newspaper columns, a letter to the New York Law Journal, interviews with newspaper and magazine reporters, and in testimony before the Senate Judiciary Committee. 760 F. Supp. at 340. Nevertheless, Judge Walker concluded that those events would not impair his ability to preside fairly over the case. Dershowitz's criticisms had had little effect on the nomination, and had not caused the judge to worry about the outcome. The judge stated moreover, that he was required and able to preside fairly over cases involving attorneys with whom he had had "prior acerbic relations." Id. at 341.
As in Helmsley, Mr. Liotti's alleged opposition to my nomination ultimately did not hinder my confirmation and, far from being a source of concern, eluded my knowledge entirely until Oluwafemi filed the instant motion. Moreover, as the Helmsley decision points out, the Second Circuit has repeatedly held that even a hostile attack by a criminal defendant on the judge who presides over his case does not constitute a sufficient ground for recusal. 760 F. Supp. at 342. See King v. United States, 576 F.2d 432 (2d Cir.), cert. denied, 439 U.S. 850, 58 L. Ed. 2d 154, 99 S. Ct. 155 (1978); United States v. Wolfson, 558 F.2d 59 (2d Cir. 1977). In light of these holdings, the argument that an attorney's criticisms require disqualification of the Court is particularly unpersuasive. For all these reasons, the motion to disqualify the Court because of an allegedly antagonistic relationship with Mr. Liotti is denied.
Another offered ground for the motion -- that my career as an AUSA overlapped with the investigation leading to Oluwafemi's arrest -- is similarly meritless. In fact, I was sworn in as district judge in October 1994, more than two months before the investigation began.
Finally, Mr. Liotti contends that because Ephraim Savitt and I were employed by the United States Attorney's Office at the same time, I must recuse myself from this matter. He compares these circumstances with those existing when a partner in a law firm becomes a judge, and the judge's former partner appears before her in court. In such a case, Mr. Liotti contends, the judge must recuse herself. This, however, is not such a case. Mr. Savitt and I were employed by the government, not a private law firm. This distinction is material. The American Bar Association Code of Judicial conduct, on which Mr. Liotti relies, states:
"A judge shall disqualify himself or herself in a proceeding in which . . . a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter [in controversy] . . ."
ABA Code of Judicial Conduct, § 3(E)(1)(b) (emphasis added). The Commentary to § 3(E)(1)(b) states however, that lawyers who work together in a government agency are not considered to have an "association" for purposes of the section. Consequently, if one such lawyer becomes a judge, he may preside over a case in which a former co-worker appears. Thus, I may properly preside over cases involving former colleagues who are still prosecutors, provided I had no involvement in the cases while I was a prosecutor. See, e.g., Kendrick v. Carlson, 995 F.2d 1440, 1444 (8th Cir. 1993). In light of the above, there is no reason at all why Mr. Savitt, who has left the government, cannot appear before me. Indeed, a contrary rule would preclude literally hundreds of lawyers from ever appearing before me or before more than a dozen of my judicial colleagues in this district.
B. The Motion to Disqualify Mr. Savitt
As noted above, Mr. Liotti's initial accusation regarding Mr. Savitt, i.e., that he was "hand-picked" by the Court and the government, appears to have been abandoned. In any event, the allegation is false, as even the most cursory examination of the docket sheet would have revealed to Mr. Liotti. Similarly, the allegation of a "special relationship" between Mr. Savitt and the AUSA seems to have fallen by the wayside. Since it was based only on a "private" conversation (i.e., one that excluded Mr. Liotti) and the failure to accuse the AUSA of intentional wrongdoing where there was no basis for doing so (see supra at 7), it is rejected in any event.
By the time of oral argument of these motions on March 31, 1995, Mr. Liotti's motion to disqualify Mr. Savitt had been honed to two points. The first was that Mr. Savitt's service as an AUSA overlapped with mine. As set forth above, there is no merit to that contention.
The second is the contention that Mr. Savitt "may convert his client into becoming a cooperating witness." (Supp. Aff. P 9.) Mr. Liotti elaborated on this contention at oral argument. He stated that the government had produced in discovery a business card bearing the names of John Best, a cooperating witness, and Etheridge, Mr. Savitt's client. According to Mr. Liotti:
... There certainly seem to be, on the strength of that business card alone, some prior relationship between [Best and Etheridge], and it certainly, at least in my mind as a defense lawyer, heightens my awareness of the direction that Mr. Etheridge may be moving in concerning his case, and I worry about working with Mr. Savitt day to day, let's say, on this case in preparation for respective defenses if he may be representing someone who will ultimately be a cooperating witness for the United States Government. I certainly would be very reluctant to have confidential communications with him, discussions and so on.