The opinion of the court was delivered by: Sprizzo, District Judge.
MEMORANDUM OPINION AND ORDER
Pursuant to Rule 33 of the Federal Rules of Criminal Procedure
("Rule 33") and 28 U.S.C. § 2255 ("§ 2255"), petitioner moves to
vacate his conviction or, alternatively, for an order granting a
new trial based upon newly-discovered evidence, prosecutorial
misconduct, and ineffective assistance of counsel. In addition,
pursuant to 28 U.S.C. § 144, 455(a) and 455(b)(1), petitioner
moves for this Court to recuse itself from determination of his
§ 2255 motion on the grounds that this Court has a personal
prejudice against him or, absent actual bias, has created a
strong appearance of prejudice. For the reasons stated below,
petitioner's motions are denied.
On October 26, 1993, petitioner, Menachem Pri-har ("Pri-har"),
was indicted on twenty-four counts charging him with
fraudulently obtaining more than $84 million in loans and U.S.
government subsidies by submitting false documents and
statements to the U.S. Department of Agriculture ("USDA") and to
numerous domestic and foreign banks. Pri-har pled not guilty to
all charges of the indictment. A jury trial began on November 9,
1993, and proceeded for two months.
At trial, the government presented evidence that established
that Pri-har operated and controlled Red Rock Commodities, Ltd.
("RRC"), a commodities trading firm headquartered in New York
City. Through RRC, Pri-har was able to obtain financing for a
number of elaborate commodity trading schemes. First, by falsely
naming an RRC affiliate, Olges, Ltd. ("Olges"), as a buyer of
barley from RRC at excessively high prices, Pri-har obtained
approximately $4 million in subsidies from the USDA. Second, by
submitting false financial statements and overstating the price
RRC paid for its wheat, Pri-har secured approximately $35
million in loans to finance RRC's contract to supply wheat for
the Israeli Emergency Wheat Program ("IEWP"). Third, by wiring
numerous fabricated invoices and forwarding misleading RRC bank
statements, Pri-har obtained financing from Dresdner Bank in
Germany in order to assert control over the IEWP. Fourth, by
misrepresenting RRC's financial condition and purporting to use
the loans for margin purchases of steel and grain futures
contracts, Pri-har acquired and maintained a $1.5 million credit
line from Banque Nationale de Paris, New York branch ("BNP-New
York"). Fifth, by submitting false RRC financial statements and
misrepresenting the status of the loan collateral, Pri-har
acquired from BNP-New York and ABN-AMRO Bank approximately $17
million in loans to finance the shipment of steel from Poland to
Israel. Finally, by falsely claiming
ownership of two New York properties on his personal financial
statements, Pri-har obtained a $1 million loan from Citibank and
a $17 million loan from the Bank of Tokyo to finance the
short-term borrowing needs and various real estate transactions
of RRC's parent company, Red Rock Holding, Ltd. ("RRH").
The government directly implicated Prihar in the various
commodities schemes with testimony from employees of the USDA,
the defrauded banks, and RRC. The government also presented
physical evidence implicating Pri-har, including incriminating
contracts, memoranda, correspondence, and tape recordings seized
from Pri-har's home and business offices. In his defense,
Pri-har called two witnesses — his business manager and his
secretary — and also testified on his own behalf.
On January 10, 1994, a jury found Prihar guilty on all
twenty-four counts of the indictment. After two unsuccessful
posttrial motions, one for a new trial and the other for a
judgment of acquittal, this Court sentenced Pri-har to 168
months of incarceration and five years of supervised release.
This Court also ordered him to pay $39 million in restitution,
in addition to a $1 million fine and the mandatory assessments.
The Second Circuit affirmed the conviction and sentence on
January 3, 1995. See United States v. Pri-Har, 47 F.3d 1157
(2d Cir. 1995) (table opinion), cert. denied, 514 U.S. 1052,
115 S.Ct. 1431, 131 L.Ed.2d 312 (1995), and reh'g denied,
515 U.S. 1138, 115 S.Ct. 2571, 132 L.Ed.2d 822 (1995).
Pri-har filed the instant petition pro se on December 10,
1996, and a supplemental petition ("Sup.Pet.") on March 10,
1997. In these petitions, Pri-har claims that his conviction and
sentence should be vacated because inconsistencies in the
testimonies of various government witnesses constitute
newly-discovered evidence. He argues that this newly-discovered
evidence establishes his innocence and supports his allegations
that the government suborned perjury, withheld exculpatory
evidence, and misled the jury at trial. As additional grounds
for relief, Pri-har propounds the failure of counsel to call
expert witnesses, offer proper summation, and meet with an
In reply, the government primarily offers two contentions.
First, the government charges that Pri-har's claims of
prosecutorial misconduct and newly-discovered evidence are
baseless and, in any event, fail to meet the heavy burden
required for habeas relief under Rule 33 and § 2255. Second, the
government argues that Prihar's allegations of ineffective
counsel are procedurally barred and without merit.
On November 13, 1998, Pri-har filed a motion requesting that
this Court recuse itself from determination of his petition. In
his recusal motion, Pri-har contends that comments made by this
Court during oral argument of his § 2255 petition evidence a
personal antagonism toward him that could threaten this Court's
objectivity. Furthermore, Pri-har argues that, even absent
actual bias against him, recusal is required because of the
strong appearance of prejudice created by this Court's comments,
Pri-har's nationality, and this Court's recusal in an unrelated
criminal case based on its prior representation of the Libyan
Pri-har moves this Court, pursuant to 28 U.S.C. § 144 and §
455(b)(1), to recuse itself from deciding the instant petition
because of comments made by the Court at oral argument that
petitioner alleges demonstrate personal prejudice against
petitioner. Petitioner also contends, in the alternative, that
even if the Court determines that their is no personal prejudice
against petitioner, the Court should still recuse itself
pursuant to 28 U.S.C. § 455(a), because the facts create the
impression, to a reasonable observer, of the existence of such
prejudice. Since petitioner has failed to demonstrate either
actual bias or prejudice, or the appearance of such bias, the
Court denies his motion to recuse for the reasons set forth
Under both 28 U.S.C. § 144 and § 455(b)(1), a judge shall
recuse himself from a pending matter where a party sufficiently
demonstrates that the judge has an actual "personal bias or
prejudice" against a party. The source of the bias or prejudice
must normally be based on extrajudicial conduct. See Apple v.
Jewish Hospital and Medical Center, 829 F.2d 326, 333 (2d Cir.
1987); Curley v. St. John's University, 7 F. Supp.2d 359, 362
(S.D.N.Y. 1998). "Events occurring in the course of judicial
proceedings generally do not constitute a basis for recusal
unless they indicate that the judge has a deep-seated favoritism
or antagonism that would make fair judgment impossible." United
States v. Conte, 99 F.3d 60, 65 (2d Cir. 1996) (internal
citations omitted). Thus, "judicial remarks . . . that are
critical or disapproving of, or even hostile to, counsel, the
parties, or their cases, ordinarily do not, support a bias or
partiality challenge." Liteky v. United States, 510 U.S. 540,
555, 114 S.Ct. 1147, 1157, 127 L.Ed.2d 474 (1994). Moreover, it
is well-settled that a judge's adverse rulings and decisions
against a party almost never are a valid basis for a party to
seek disqualification based on bias or impartiality. See id.
Finally, the Court notes that a judge should not grant a recusal
motion lightly lest the court encourage litigants "to advance
speculative and ethereal arguments for recusal and thus arrogate
to themselves a veto power over the assignment of judges."
Thomas v. Trustees for Columbia University, 30 F. Supp.2d 430,
431 (S.D.N.Y. 1998).
Pri-har's motion alleges that observations made by the Court
at oral argument evince a personal antagonism toward petitioner
that render the Court incapable of objectively ruling on his
petition. See Petitioner's Memorandum of Law in Support of
Motion for Recusal dated November 13, 1998 ("Rec.Mem.") at 1.
According to Prihar, "the thrust of these comments was that
Petitioner is overly aggressive, domineering, controlling,
arrogant and excessively demanding." Id. at 2. Petitioner also
cites the Court's characterization of the events immediately
preceding the return of the jury's verdict as additional
evidence that the Court has an intense personal dislike of him.
Furthermore, petitioner argues that the Court appeared not to
have considered several theories offered by petitioner's counsel
at oral argument, and that the Court has a "muted concern for
justice in Petitioner's case," id. at 7, as additional
evidence of bias.
The Court declines petitioner's invitation to recuse itself
from the instant case for a number of reasons. First, the Court
disagrees with petitioner's view that it cannot objectively
decide his petition because of remarks made by the Court at oral
argument. The remarks made by the Court at the oral argument
were based upon the Court's observation of petitioner
during numerous pre-trial proceedings, a two-month trial, and
several posttrial motions, and were directly relevant to the
issues raised in Pri-har's petition. For example, petitioner
cites the Court's comment that he was "very loquacious in rasing
almost everything at trial," see Rec. Mem. at 2, and the
Court's observation that Pri-har has a "forceful personality" as
evidence of bias. To the contrary, the Court's observation was
made in the context of petitioner's argument that the Court
should grant him a new trial based on newly-discovered evidence.
As the Court noted, given Pri-har's trial strategy of pursuing
almost every available line of defense, his claims of
newly-discovered evidence were unpersuasive. See Transcript of
Oral Argument held on October 1, 1998 ("Arg.Tr.") at 6.
Second, the Court rejects Pri-har's complaint that the Court
exhibited a "muted concern for justice" when it expressed its
opinion that petitioner "had received a fair trial. He may have
gotten the wrong result." Arg.Tr. at 54. This comment, and
others cited by petitioner, provide no basis for the conclusion
that the Court should recuse itself on the basis of bias or
animosity. Rather, the comments merely reflect this Court's
opinion that petitioner received a fair trial, but he did not
receive the result that he wanted.
Finally, the Court notes that Pri-har filed his recusal motion
only after it became clear from the oral argument (which
petitioner attended because the Court afforded him, at the
request of counsel, a benefit not normally afforded most
petitioners, i.e. the opportunity to personally appear on a
writ to hear argument) that the Court was not receptive to the
theories of relief raised in his petition. The Court suspects
that petitioner filed the motion in order to avoid the negative
outcome that petitioner anticipated would result from the tenor
of the argument. This, of course, is also no basis upon which
the Court should recuse itself from deciding the merits of
Pri-har's petition. Accordingly, for all of the aforementioned
reasons, the Court must conclude that Pri-har has failed to
demonstrate that the Court should recuse itself on the basis of
bias or partiality. Therefore, Pri-har's motion to recuse
brought pursuant to 28 U.S.C. § 144 and 455(b)(1) is denied.
In the alternative, Pri-har seeks recusal pursuant to
28 U.S.C. § 455(a) because "the Court's impartiality might
reasonably be questioned." Rec.Mem. at 8. According to Pri-har,
a reasonable observer familiar with Court's comments at oral
argument would conclude that the Court has a strong personal
dislike of petitioner sufficient to require recusal. In
addition, Pri-har asserts that the Court should recuse itself
because an observer could "reasonably infer that the Court's
obvious dislike of Petitioner is fueled by the Petitioner's
nationality." Id. at 10. This claim rests on a series of
dubious assumptions that gravitate around the Court's recusal
based on a potential conflict in another case because while in
private practice the Court represented the Libyan government.
From this fact Pri-har argues that since there is enmity between
Libya and Israel, the Court should recuse itself in the instant
case because petitioner is an Israeli citizen and "an objective
observer . . . might have good reason to believe that the Court
harbored a bias against petitioner." Id. Prihar also contends
that recusal is warranted because "the characteristics which the
Court has attributed to Petitioner — aggressiveness, arrogance,
manipulativeness vis-a-vis banks — often are those attributed to
the negative stereotype of Israelis." Id.
Given the dubious and speculative nature of the assumptions
noted above, the Court is constrained to conclude that there is
no basis for recusal on any of those grounds. ...