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U.S. v. AMICO

United States District Court, Western District of New York


April 11, 2003

UNITED STATES OF AMERICA, VS. ROBERT A. AMICO, ROBERT J. AMICO, AND RICHARD N. AMICO, DEFENDANTS.

The opinion of the court was delivered by: Charles J. Siragusa, District Judge.

DECISION and ORDER

INTRODUCTION

This matter has been pending since December 2000. On November 6, 2002, less than two weeks before the scheduled November 18, 2002 trial date, defendant Richard N. Amico filed a motion for recusal, pursuant to 28 U.S.C. § 455(a) & 455(b)(5)(iv), or in the alternative, for severance. On November 8, 2002, the Government, by letter and then by written application, joined in the recusal motion, although it should be noted that the Government's papers refer solely to 28 U.S.C. § 455(a). The parties appeared before the Court on November 8, 2002, at which time counsel for defendants Robert A. Amico and Robert J. Amico orally sought permission from the Court to join in Richard N. Amico's application for recusal, which request was granted. For the reasons that follow, the applications are in all respects denied.*fn1

BACKGROUND

Richard N. Amico's motion is made pursuant to 28 U.S.C. § 455(a) & (b)(5)(iv). In the application, he contends that the Court should recuse itself under § 455(b)(5)(iv), since it may be called as a witness at the trial of the subject case; or alternatively, that even if the Court is not a witness at trial, that it should recuse itself under § 455(a), since there is an appearance of partiality, because of the Court's alleged prior contact with a government witness, Patrick McNamara ("McNamara"), regarding a mortgage loan the Court received in 1987 for 1440 Blossom Road. The motion expressly denies any claim that the Court is actually biased. Jacobson Aff. Supp. Mot. for Recusal ¶ 4 ("Actual bias is not alleged").

In order to understand the application now before the Court, it is necessary to review the history of this case. Therefore, the Court will set forth the facts and circumstances relevant to its determination of the Motion for Recusal or Severance.

On December 19, 2000, a federal grand jury returned a 116-count indictment against Robert A. Amico, Robert J. Amico, Richard N. Amico, and McNamara, as well as five other individuals and one corporation, charging them with, inter alia, bank fraud and conspiracy.

On January 12, 2001, McNamara and the Government entered into a plea agreement. That plea agreement contained a provision requiring McNamara to cooperate with the Government, and stated, in relevant part:

The defendant will cooperate with the government by providing complete and truthful information regarding the defendant's knowledge of any and all criminal activity, whether undertaken by the defendant or others, in any way involving or related to the charges contained in the Indictment.
It is also a condition of this agreement that the defendant must, at all times, give complete, truthful and accurate information and testimony and not withhold information from the government or refuse to testify truthfully and completely.
McNamara Plea Agreement, ¶¶ 29, 34.

On May 1, 2001, the grand jury returned a 97-count Superseding Indictment against Robert A. Amico, Robert J. Amico, Richard N. Amico, and others. On October 19, 2001, the grand jury returned a 98-count Second Superseding Indictment against Robert A. Amico, Robert J. Amico, Richard J. Amico, and others.

On January 10, 2002, approximately one year after McNamara signed his plea agreement, the Government wrote to the Court, in relevant part, that, "during a debriefing, defendant Patrick J. McNamara advised the government that he believes he assisted your honor in obtaining a mortgage loan in the late 1980s."

The following day, January 11, 2002, prior to a scheduled court appearance, counsel for the parties met with the Court in chambers. Present were: counsel for Robert A. Amico, David Rothenberg, Esq. ("Rothenberg"); counsel for Robert J. Amico, Matthew R. Lembke, Esq. ("Lembke"); counsel for Richard N. Amico, Peter A. Jacobson, Esq. ("Jacobson"); and counsel for the Government, Assistant United States Attorney Richard A. Resnick, ("Resnick") and Assistant United States Attorney Deirdre M. Flynn ("Flynn"). At the meeting, the January 10, 2002, letter from the Government was discussed. In that regard, Jacobson suggested that because McNamara was claiming to have worked on the Court's mortgage loan in 1987 for 1440 Blossom Road, that the Court could somehow be called to testify at trial. In response, the Court indicated it disagreed. During this conference, not Jacobson, Rothenberg, Lembke, Resnick, or Flynn ever informed the Court that McNamara was claiming that either he or the Court had engaged in any wrongdoing in connection with the loan.*fn2 However, at the court appearance, proceeding the chambers conference, the following exchange occurred on the record.*fn3 For reasons that will be discussed in the "Analysis" section, infra, the Court would specifically draw the reader's attention to the three bolded portions.

THE COURT: Yes, two issues raised in the correspondence; one being the government pointed out to the Court that Robert [sic] McNamara said he may have been involved in a mortgage I had obtained in property in the late '80s. The only thing I purchased in the late '80s was a condo, and I don't recall dealing with Mr. McNamara whatsoever, or who — unless the real estate agent, Mr. McLeod, knew him.
MR. RESNICK: Based on your notoriety back then he recalled you.
THE COURT: Since I have no recollection of Mr. McNamara whatsoever — in fact, I don't even recall the institution I got the loan from — the Court does not see that as far as my — to the extent — I guess the prospect is — it's a jury trial. I don't know what I could do, give favorable rulings if Mr. McNamara is testifying? I don't even recall Mr. McNamara.
The Court has thought about it. I've seen Mr. McNamara in court. I didn't recognize him. I don't recall ever dealing with Mr. McNamara, to the extent he may have signed off in some fashion on a mortgage I got, I certainly didn't go to any institution by which Mr. McNamara was employed. The Court having thought about it, can say that this will in no way affect its ability to sit on the case. That's the Court's ruling.
The next thing would be, based on that, if the defense wants to make some sort of motion to recuse the Court, I will consider it. Ultimately, it's my determination; and I tell you my determination is I don't even remember the name, so it's not going to affect my ability to fairly preside over the case. Now, Mr. Jacobson, detail the concerns.
MR. JACOBSON: One of the concerns is — and I don't suggest that you may have known that there was anything unusual going on in the mortgage broker application process involving Patrick McNamara and your purchase of the condo; but one of the defense contentions, and it is a solid contention, is that Mr. McNamara on his own with the use of software technology and without the consent of our clients, and in many cases the purchaser who was obtaining the mortgage, went ahead and falsified documents. We have further reason to make an offer of proof that, that may have occurred in your case. So my point is I don't know. Now, if that kind of proof comes out during the trial, it may not affect your rulings, but would it potentially affect your sentence? I don't know.
THE COURT: I don't even know — I don't even remember when I purchased the condo. It probably was in '87, '88, somewhere in that time frame. There's no indication from — all I have is a letter from the government saying that he thinks he may have; thinks he may have. I mean, somebody has got to provide to me — did he provide documentation? Let me start off, what institution was it?
MR. RESNICK: I asked him that today; REMS brokerage. He was a mortgage broker for REMS, R-E-M-S, where he may have gone to that company to obtain the mortgage loan.
THE COURT: Is this local, REMS?

MR. RESNICK: Yes, REMS is local. That's not the bank you would have gotten the loan from.
THE COURT: No.

MR. RESNICK: Yes, it is local.

THE COURT: I'm trying to recollect what may have happened. If it's REMS and I contacted them directly, and I may have if it's local, I'm trying to think. I may have called an attorney who worked there to see if I could get a mortgage loan through them, but you're saying he was employed there?
MR. RESNICK: That's what I understand.

THE COURT: I come back to, I would have had no contact with him, and because he was the administrative person who may have placed the loan — —
Mr. Jacobson, if you can — there's no motion for me to recuse now, so it's moot. Are you suggesting that on the loan app — first of all, I don't know that he did the application. I have not seen anything.
MR. RESNICK: I don't even know if we could get it if it was '87. He told me the late '80s.
MR. JACOBSON: Perhaps we could do it — I don't have privy to the information because I haven't talked to Mr. McNamara, and I don't know what McNamara is — I'm not going to make a motion to recuse. Obviously, I don't have any specifics; but if there's some — you know if we —
THE COURT: I guess I'm trying to think about your suggestion. You may want to call me as a witness at trial?
MR. JACOBSON: No. I'm concerned that the witness' testimony —
THE COURT: Okay, McNamara gets on the stand.

MR. JACOBSON: And it comes out that he doctored some mortgage documents that you had to obtain the mortgage; is that going to affect your treatment —
THE COURT: I'll tell you this. I never got a mortgage loan for $300,000. I think my mortgage loan was, like, 130,000 for a $150,000 condo.
Official Transcript of Proceedings at 110-114 (Jan. 11, 2002) (emphasis added).

On January 18, 2002, prior to another scheduled court appearance, all counsel requested the opportunity to meet with the Court in chambers. The Court granted the request, and at that time was informed by the Government, without any advance written notice, that now McNamara was claiming he had submitted a false mortgage application on behalf of the Court in which it had indicated that the Court was married, when in fact, the Court was separated. This was the first moment that the Court became aware of any allegation by McNamara that he had done anything wrong in connection with the Court's 1987 mortgage loan. At that time no one informed the Court that McNamara was claiming to have acted with the Court's knowledge or consent.*fn4 Although suddenly confronted with this information, the Court promptly called home and asked its spouse to check the Court's personal files. As a result of the inquiry, the Court's spouse faxed a letter from its divorce file which confirmed that the separation agreement was forwarded to the lender. Upon receipt, the Court shared that letter with all counsel. The letter indicated that, at the mortgage lender's request, the Court had mailed a copy of the separation agreement to the mortgage lender on July 30, 1987. Based upon the letter, the Court considered McNamara's claim a dead issue and so informed counsel. However, despite the Court's assessment, Jacobson suggested that he would still want to subpoena the lender's file relating to the Court's loan and that he still believed the Court could be a witness.

On January 24, 2002, the Government wrote to the Court, asking the Court to preclude defense counsel from questioning McNamara at trial regarding his alleged prior contact with the Court. The Government further stated that prior to January 18, 2002:

McNamara also informed the government that he may have indicated on the mortgage application that Your Honor was married, rather than separated. He stated that he believed that he may have done this because he remembers Your Honor's marital status being an issue that was discussed, and that he had routinely indicated on many other separated individual's mortgage applications, that they were married. He stated that he advised individuals to claim they were married because technically they still were, and that banks would then have less reason to question the individual's qualifications for the loan.
McNamara further advised the government that he had advised Robert A. Amico of the above while they were being detained on the charges in the Indictment. Finally, McNamara advised the government of his contact with Your Honor because he believed, correctly, that under the terms of his cooperation agreement he was required to inform the government of all information he had, and he knew that he had mentioned the above to Robert A. Amico before he had agreed to cooperate with the government.
After the court appearance last Friday [January 18, 2002], the government advised McNamara that Your Honor had provided a copy of the separation agreement to an individual named Terry at Goldpost Mortgage. McNamara advised that he had worked for Goldpost Mortgage as a loan officer and that Terry was someone who worked in the processing department. He further stated that based on the fact that Terry requested a copy of Your Honor's separation agreement, he is now certain that he did not indicate you were married on your mortgage application (and that he was working for Goldpost Mortgage then, not REMS).
Consequently, because McNamara is now certain that he did not do anything improper with respect to Your Honor's mortgage loan application, there is no good faith basis for defense counsel to ask him during cross-examination whether he had previously falsified information for Your Honor.
Letter from Resnick (Jan. 24, 2002) (emphasis added).

On February 26, 2002, the grand jury returned a 56-count Third Superseding Indictment against Robert A. Amico, Robert J. Amico, and Richard N. Amico, charging them with, inter alia, conspiracy, bank fraud, mail fraud, and filing false tax returns.

On April 23, 2002, Jacobson submitted to the Court a proposed subpoena, directed to Key Bank of New York, seeking the following: "All files . . . which relate to the mortgage between 1434-56 Blossom Road, Inc., 100 Turk Hill Road, Fairport, N.Y. 14450, Grantor, and Charles J. Siragusa, 1440 Blossom Road, Rochester, N.Y. 14610, Grantee." It should be explained that Jacobson erroneously believed he needed court authorization to obtain the records, and therefore submitted the subpoena to the Court for its signature. The Court, in a phone conversation with Jacobson, informed him that the subpoena was overbroad and would require the disclosure of confidential information, and that he should be more specific in seeking only information arguably applicable to his concerns.

The next relevant event occurred on August 16, 2002. A copy of a plea agreement between the Government and Richard N. Amico was forwarded via e-mail to the Court's chambers. At the time, the Court was on vacation in Massachusetts; however, one of the Court's law clerks informed the Court of the plea agreement by telephone on either August 17, 2002, or August 18, 2002, when the Court called in to check on matters. At that time the Court, based upon the Court's conversation with its law clerk, incorrectly believed that Richard N. Amico would be pleading to less than the entire indictment. The Court's law clerk further indicated that the plea agreement reserved the defendant's right to contest the offense level, which could result in additional litigation. The Court then directed its law clerk to contact counsel and inform them that the Court would not accept any plea agreement which would require a hearing in order to determine the offense level, and from which either side could appeal. It is the Court's understanding that when the Court's law clerk spoke with Jacobson, counsel asked which specific paragraphs of the agreement were objectionable to the Court. Although the Court had not indicated any specific paragraphs, the Court's clerk indicated that he believed the relevant paragraphs were the 15th, 16th, and 27th paragraphs.

The Court returned to work on August 19, 2002, and that same day the Court met in chambers with counsel for the Government and Jacobson. Prior to the meeting, the Court had a chance to examine the plea agreement for itself and ascertained that it would require Richard N. Amico to plead guilty to the entire indictment. The Court indicated at the meeting that, having read the plea agreement, it would accept it, although it questioned why the defendant would waive any of his rights, since he would be pleading to the entire indictment. The Court also asked Jacobson whether his client would actually admit, as required by, ¶ 11 of the agreement, that he conspired with his father and brother. Jacobson responded that he wasn't sure whether his client would or not. At that time, the Court also discussed the difference between a plea under Federal Rule of Criminal Procedure Rule 11(e)(1)(C) versus one under Rule 11(e)(1)(B), since there appeared to be some misunderstanding on Jacobson's part, that under the plea agreement, as proposed, under no circumstances could his client withdraw his plea of guilty once entered, even if the Court were to impose a sentence greater than that allowed for in ¶ 21 of the plea agreement.

Then, on August 22, 2002, Jacobson wrote to the Court, in relevant part:

I have advised my client not to enter a guilty plea on August 23, 2002. . . . After reviewing the plea agreement, I initially advised my client to accept it. However, you advised counsel that the plea agreement as proposed was unacceptable unless paragraphs 15, 16 and 27 were amended. As I understand your objections, they were to the language reserving to the defendant his right to argue at sentencing a lesser total loss than maintained by the government and to defendant's right to appeal if you were to sentence him outside of the proposed range for imprisonment which in this case provided for a maximum of 63 months.
Since my client would be required to plead to every count charged without any guaranteed maximum sentence and without any right to appeal, I have advised him to take this matter to trial. However, this letter is to affirm that before trial Richard Amico was willing to accept responsibility for his actions, and if he is convicted, I would ask the Court to factor that into its sentence, if at that time he accepts responsibility.
Letter from Jacobson (Aug. 22, 2002). The Government responded with a letter dated September 3, 2002, which in relevant part stated:

This is in response to Peter A. Jacobson's letter to the Court dated August 22, 2002, regarding Richard N. Amico's decision to not enter into the plea agreement proposed to the Court by the government and the defendant. In his letter, Mr. Jacobson indicated that the only reason his client is not entering a guilty plea is due to the Court advising Mr. Jacobson that it would not accept a plea agreement in which Mr. Amico reserved the right to argue the total loss amount and to appeal the determination by the Court that such loss amount is more than the amount advocated by Mr Amico. Mr. Jacobson further stated that
[T]his letter is to affirm that before trial Richard Amico was willing to accept responsibility for his actions, and if he is convicted, I would ask the Court to factor that into his sentence, if at the time he accepts responsibility.
First the government's understanding of the Court's concern about the proposed plea agreement differs from that of Mr. Jacobson. After the parties' discussion with the Court on August 20, 2002 [sic], the government understood that the Court would accept the proposed plea agreement provided that Mr. Amico was willing to admit his guilt at the time of his plea, and provided that he was fully aware that the Court was not bound by the calculations in the agreement.
Letter from Resnick (Sept. 3, 2002).

On September 6, 2002, at the next regularly scheduled court appearance, the Court dealt with the dispute and clearly informed Richard N. Amico that it would accept the proposed agreement, or that he could plead without a plea agreement, and in either case he could contest the amount of loss and appeal any adverse ruling by the Court. The Court then gave him an additional amount of time to make up his mind.

On September 16, 2002, Richard N. Amico and Jacobson appeared before the Court, at which time Mr. Amico indicated that he would not plead guilty. The Court again made it clear to Mr. Amico that the Court would accept the plea agreement as originally presented to the Court; however, he declined. At that time, the Court also placed on the record the history, up to that point, of McNamara's allegations regarding the Court's mortgage for Blossom Road.

Then on October 9, 2002, the Court presided over a hearing to determine whether to revoke the pretrial release of Robert A. Amico. At that hearing, Margaret Thomas, who at that time was charged with conspiring with the Amicos and who has since pled guilty, testified that on September 4, 2002, the day she was arraigned on a criminal complaint related to the Amico case, she had a telephone conversation with Robert A. Amico. She testified:

He stated that they had come upon some information about the Judge that was being tried — or that was trying them. . . . He stated that the Judge had purchased homes through Pat McNamara like we did, and that they had asked the Judge to step down, but the Judge wouldn't; so they had a plan to go public with it, to get rid of that particular judge.
Official Transcript of Proceedings at 12 (Oct. 9, 2002).

On October 7, 2002, the United States Marshal for the Western District of New York, Peter Lawrence ("Lawrence"), spoke to the Court in chambers and advised that the Marshal had received subpoenas from Jacobson for service. One was directed to the Court, requesting personal records relating to the mortgage on 1440 Blossom Road (this despite the fact that the Court had informed Jacobson and other counsel on January 18, 2002, that the only record that the Court had was the letter it produced, relating to provision of the Court's separation agreement to the lender); another directed to the lender's successor-in-interest requesting numerous documents relating to 1440 Blossom Road; and a third regarding a mortgage loan taken out by the Court's former spouse, subsequent to their separation, which in no way related to 1440 Blossom Road, in which the Court had no involvement whatsoever, and in which there was no allegation that McNamara had any involvement.*fn5 Lawrence indicated that it was not the Marshal Service's policy to serve subpoenas on federal judges; and moreover, there was a concern about confidential information that might be contained in the documents being sought which could place the Court in jeopardy. The Court indicated to the Marshal that he should follow his policy; however, after doing research, the Court came to the conclusion that it could and should accept the subpoena from the Marshal. The Court felt it would be a waste of time and resources to make Jacobson "jump through hoops," and consequently had him notified of its position and advised that it would accept service through the Marshal. The Court was subsequently served with a subpoena on October 9, 2002. However, prior to being served, the Court, on its own initiative, requested and obtained the file from the lawyer who represented the Court on the purchase of 1440 Blossom Road.

At a court hearing on October 15, 2002, relating to the subpoena, the Court informed counsel that it had obtained this file and indicated its security concerns relating to confidential information, such as its separation agreement, its social security number, and its bank account numbers. The Court, however, indicated to Jacobson that he could inspect the file at will in the Court's chambers with the proviso that, absent application, he could not disclose or copy any information contained within because of the security concerns. The Court also directed Jacobson's attention to a commitment letter from the lender, dated June 26, 1987, which indicated that the mortgage was approved subject to the Court providing a copy of its separation agreement ten days prior to closing and directed his attention to the separation agreement itself. The Court further drew Jacobson's attention to an unsigned residential loan application, with the "married" as opposed to "separated" box checked, along with answers on the application indicating that the Court had no support or alimony obligations. (The Court has since informed counsel that it learned from the lawyer who represented the Court at the closing that the unsigned application was a closing document prepared by the lender in advance of closing and after the lender had received the Court's separation agreement.) Subsequently, Jacobson did come to the Court's chambers to inspect the file, and on another occasion examined a document from the file in court.

Thereafter, the Court received correspondence from the Government dated October 23, 2002, which in relevant part states:

In furtherance of the issue involving a potential conflict of interest, raised in the government's previous letters to the Court, dated January 10, 2002 and January 24, 2002, . . . the government writes to clarify the potential trial testimony of Patrick J. McNamara. As the Court will recall, once the government explained to Mr. McNamara in January 2002, that Your Honor provided a copy of your separation agreement to an individual at Goldpost Mortgage (his then employer), McNamara indicated that he thought he was then mistaken when he believed that he had prepared a loan application which, for marital status, indicated that Your Honor was "married" rather than "separated."
The government has not reviewed the file obtained by the Court, which had been kept by the lender's attorney for this transaction. Therefore, the government relies on its recollection of the Court's description of the documents kept in the file, at the appearance on Tuesday, October 15, 2002. We recollect that the Court indicated that an unsigned, typewritten loan application contained an "X" in the box designating marital status as "married" (rather than "separated" or "single")
On October 21, 2002, at counsel's first scheduled meeting with Mr. McNamara since the last court appearance, the government discussed this newly discovered information with him. The government anticipates that if asked questions regarding this issue at trial, McNamara would testify that it is his recollection that while working as a loan officer for Goldpost Mortage, he created a handwritten loan application during his meeting with Your Honor at your office [the office of the First Assistant District Attorney for Monroe County] in downtown Rochester. He believes that he indicated on the handwritten application that Your Honor was married (not separated), after discussing the issue of your marital status. He recollects explaining that if "separated" was marked, the lender would require a copy of a separation agreement. He would further testify that he believes that Your Honor signed the handwritten application, which he believes was marked "married," after this discussion, Further, McNamara would testify that he had no further input with the application, once it was submitted to Goldpost Mortgage's processing department.
The government anticipates that the defense will seek to cross-examine McNamara on the issue of this loan application. In particular, the defense may ask McNamara whether he prepared a loan application for Your Honor, and argue that the loan application he prepared contained a false statement (a matter which has NOT been established by the available evidence). If McNamara testifies that he did prepare a false application after discussing the matter with Your Honor, the government anticipates that the defense may seek to introduce extrinsic evidence of the transaction at trial, including loan documents obtained by subpoena and/or calling Your Honor as a witness to (1) impeach McNamara's recollection and/or (2) to improperly bolster the defense argument that the defendants were unaware of false information provided to lenders in connection with their loan applications, only because in this collateral transaction involving the Court, Your Honor may have been misled by McNamara.
The government anticipates that it will file a motion in limine, seeking to exclude any such inquiry of McNamara, as well as any extrinsic evidence related thereto, as it is irrelevant and cumulative.
Further, the government will request an order excluding any inquiry of McNamara regarding his conversation about this matter with Robert A. Amico and/or Robert J. Amico in the Batavia Detention Center in December 2000 or January 2001. McNamara has informed the government that during that conversation, it was discussed that in the event that McNamara and the Amicos were convicted after trial, they would go public with the accusation that Your Honor knew your loan application contained a misstatement. McNamara advised that he and the Amicos believed that this would somehow result in a mistrial. Thus, while the defense may agree not to question McNamara about the loan transaction itself, they may attempt to question him about his conversation about the transaction with Robert A. Amico. This may create an appearance of a conflict of interest.
Letter from Resnick (Oct. 23, 2002) (emphasis added).

On October 25, 2002, all parties and counsel appeared before the Court, at which time the Court went through again, in exhaustive detail, the history of this case, and the history of the Court's mortgage transaction in 1987.*fn6 In that regard, the Court indicated that it had no recollection of ever having dealt with McNamara in connection with a mortgage loan. The Court indicated that while it was certainly possible that it may have signed something in error, it was certain that it had never conspired with McNamara, or anyone else for that matter, to submit a false loan application. The Court further indicated that it found it extremely improbable that McNamara would walk into the office of the then First Assistant District Attorney, whom he had never before met, and propose that he submit a false mortgage application on his behalf. The Court also indicated that, even assuming that McNamara made such an incredible proposal, without even knowing whether the Court had any type of support or maintenance obligation, it defied both logic and common sense to believe that the Court would enter into such an agreement, since there was absolutely nothing to be gained by agreeing to falsify information. In that regard, the Court explained that it would have had no motive to falsify its marital status since the Court had more than adequate income to justify the loan, had no maintenance or support obligations, was purchasing a home which was appraised for more than the amount of the loan, and was under no time constraints since it would already be living in the residence pursuant to a rental agreement.

The Court then explained how the documents in the mortgage loan file, obtained from the Court's own real estate lawyer, refuted McNamara's claim. Specifically, the Court explained that it did not have an executed contract for the purchase of 1440 Blossom Road until May 29, 1987. Therefore, the Court explained, it appeared that the Court had applied for a mortgage sometime between May 29, 1987 and June 26, 1987, the date the lender issued its mortgage commitment letter. That mortgage commitment letter expressly required, as a condition of the loan, that the Court provide a copy of the Court's separation agreement prior to closing. Obviously, had the lender been unaware of the Court's marital status, as McNamara claims, the lender would have had no knowledge that the Court was separated, and thus would not have requested a copy of a separation agreement. Therefore, as the Court explained, it had no reason to believe that the lender was in any way misled; and, in fact, the separation agreement was provided to the lender on July 30, 1987, well in advance of the ten-day requirement of the commitment letter, since the property closed on August 20, 1987.

As the Court further explained, the mortgage file does contain an original, unsigned and undated typed mortgage application. However, as the Court previously indicated, according to the Court's closing attorney, such typed applications were ordinarily prepared by the lender and signed by the borrower at closing. The application is unsigned, has no indication of who prepared it, and, in any event, at the time it was forwarded by the lender, the lender was in possession of the Court's separation agreement. Also, it is worthy to note that whoever prepared the application was apparently not knowledgeable in real estate matters, since, although the Court was the sole purchaser of the property, the application indicates that the Court was taking title as a "Tenant by the Entireties [sic]." As indicated, the Court made the mortgage closing file available to Jacobson, and subsequently, the Court had the mortgage file docketed in this action as a sealed exhibit to Jacobson's recusal motion.

Also during the appearance on October 25, 2002, the Court reviewed, in detail, the four versions of McNamara's claims regarding the Court, as related by the Government, which the Court suggested would lead a reasonable person to seriously question McNamara's credibility on this point and lead such reasonable person to the conclusion that he was not telling the truth. The Court itself frankly expressed the opinion that, because McNamara had changed his story so many times, he did not appear to be a credible witness. The Court, therefore, strongly urged the Government to consider whether or not it wanted to call McNamara to testify at trial. At the close of the appearance on October 25, 2002, counsel for Robert A. Amico made an oral application to preclude the Government from calling McNamara as a witness for the trial, on the grounds that McNamara was likely to testify falsely. The Court indicated that it would not rule on the motion at that time, and wanted to give the Government an opportunity to engage in some "soul searching" over whether it wanted to call McNamara, in light of the inconsistent versions he had related concerning his alleged involvement in the Court's mortgage application.

On October 31, 2002, the Government filed a document entitled, "Government's Response to Defendant's Motion to Preclude the Testimony of Patrick J. McNamara*fn7 and Motion In Limine to Exclude Certain Evidence," which stated, in relevant part:

On October 25, 2002, the Court set forth the circumstances regarding the Court's 1987 mortgage loan transaction. The Court established that Patrick J. McNamara is at best, mistaken in his recollection that the Court was aware of anything improper. The Court clearly established that the Court was not aware of any falsity on the mortgage loan application. The government does not believe that the Court did anything improper with respect to this transaction. The government acknowledges that the facts do not support McNamara's recollection of the events.
The Court further suggested that the government consider not calling Patrick J. McNamara as a witness. . . . At this point, based on a thorough review of the government's prospects for success at trial without McNamara, the government intends to call McNamara as a witness. . . . The government anticipates that the defendants will make McNamara a focal point of the defense case. . . . McNamara will testify that he conspired with the Amicos to mislead most of the third-party Amico home purchasers into executing false documents in connection with the mortgage loan applications. . . . The government anticipates that most of the third-party purchasers of Amico homes . . . will testify that they were unaware that false documents were submitted to lenders in connection with the mortgage loans they obtained when they purchased Amico homes. . . .
Govt.'s Resp. Deft's Mot. to Preclude Test. of McNamara and Mot. In Limine to Exclude Certain Evidence at 1-6. The Government further stated that it anticipated that the defense would attempt to question McNamara about his alleged contact with the Court in 1987, but argued that the Court should preclude such questioning of McNamara, since it was not relevant, was cumulative, and would result in undue delay. Specifically as to whether or not McNamara's testimony would be cumulative, the Government noted that the defense had indicated that it would attempt to prove that McNamara misled the Court into filing a false loan application in order to prove that he had similarly misled the Amicos. The Government argued that such evidence would be cumulative, since the Government is already calling numerous home buyers who will testify that McNamara filed false mortgage documents without their knowledge.

On November 4, 2002, defendant Robert A. Amico filed a response to the Government's request for a motion in limine. Robert A. Amico indicated that cross-examination of McNamara concerning the Court's mortgage transaction was relevant as to McNamara's credibility, and not cumulative. Robert A. Amico further indicated that he had "no intention" of calling the Court as a witness at trial, although he indicated that he might attempt to introduce a transcript of the Court's comments regarding the loan transaction which were made on October 25, 2002. Rothenberg Aff. (Nov. 4, 2002) ¶¶ 33-34. On November 6, 2002, Robert J. Amico filed a motion to preclude McNamara from testifying at trial, or in the alternative, to deny the Government's motion in limine.

On November 6, 2002, the Government filed a supplemental response to Robert A. Amico's motion to preclude, reiterating the Government's position that any testimony by McNamara regarding the Court's mortgage loan would be irrelevant and cumulative. Govt's Suppl. Resp. (Nov. 6, 2002).

However, in an about face, on November 8, 2002, two days after Jacobson had filed his "Motion for Recusal or Severance," the Government wrote to the Court indicating that it was "joining the defendant's motion to recuse," stating:

On November 7, 2002, at approximately 5:00 p.m., our office was instructed by the Assistant Attorney General for the Criminal Division, to either join the defendant's motion, or make our own motion for recusal. Therefore, we are reluctantly advising the Court that the government is joining the defendant's motion to recuse.
Letter from Resnick (Nov. 8, 2002).

Further, although the Government had previously filed a motion in limine seeking to prevent the defendants from cross-examining McNamara about his alleged involvement with the Court's mortgage loan, the Government withdrew that motion.

ANALYSIS

I. PARTIES' CONTENTIONS

Having set forth the above facts, the Court will now examine the pending motions. As noted, defendants contend that the Court should recuse itself from this case for two reasons. The first is that the defense intends to call the Court to testify at trial. In this regard, defendants indicate that, at trial, they will attempt to prove that McNamara falsified information on various mortgage applications without the defendants' knowledge. Jacobson Aff. Supp. Mot. for Recusal ¶¶ 12-13. Defendants intend to show that if McNamara was able to dupe the Court, who at the time was a "sophisticated attorney," that he could have similarly duped the defendants into signing false documents. In this regard, defendants rely upon the fact that contained in the Court's mortgage file is the aforementioned unsigned, undated, typed version of a mortgage application, which lists the Court's marital status as married, not separated. Id. at ¶ 12. Defendants indicate that, at trial, they would call the Court to testify regarding this unsigned loan application. Id. at ¶ 13 ("Testimony by the then First Assistant District attorney that he inadvertently signed [sic] a falsely prepared mortgage application is, therefore, neither cumulative nor irrelevant to the Amico's defense") (emphasis added). Alternatively, if McNamara were to testify that the Court knowingly attempted to defraud the mortgage lender, defendants would intend to call the Court to impeach McNamara. Id. at ¶ 15. ("The Court becomes a disinterested, credible witness who was not only duped [sic] by McNamara but falsely accused by him of committing fraud. That is the crux of Richard N. Amico's defense, that he has been falsely accused by McNamara") (emphasis added).

Defendants' second argument for recusal is that the Court's "impartiality might reasonably be questioned." Id. at ¶ 19. In this regard, defendants cite two factors. The first is the Court's "relationship" with McNamara, as discussed above. The second factor, according to defendants, is that the Court violated Rule 11 of the Federal Rules of Criminal Procedure, "by involving itself in pre-plea discussions" involving a plea agreement between the Government and Richard N. Amico. Id. at ¶ 21. According to Richard N. Amico, in August 2002 the Government sent the Court "a proposed, but not final, plea agreement," and that the Court indicated it would not accept the plea unless three paragraphs were amended. Richard N. Amico admits that the Court, upon returning from vacation, offered to allow him to plead guilty pursuant to the plea agreement as originally transmitted to the Court; however, he indicates that he declined for the following reasons:

Richard N. Amico declined to accept the plea agreement in Court on September 16, 2002 feeling that the Court had treated his plea agreement differently than any of the other defendants who previously pled guilty. Richard N. Amico was also concerned that he would be pleading before a Judge that had rejected his initial plea agreement without reading it.
Id. at ¶ 21. Defendants then argue, although "the Court's explanation of the plea agreement issue is not believed by counsel to warrant a recusal motion," that "when viewed together with the Court's relationship [sic] to McNamara," a reasonable person would question the Court's impartiality. Id. at ¶ 22; see also, Id. at ¶ 25 ("It is . . . clear that a recusal motion based upon the plea agreement issue alone would not have been sufficient to make a 455(a) motion [sic].") Defendants Robert A. Amico and Robert J. Amico have asked to join in the motion by Richard N. Amico; therefore, the Court understands them to be relying upon the same arguments raised in Richard N. Amico's papers.

II. RECUSAL

Title 28 U.S.C. § 455 provides, in relevant part, as follows:

(a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. (b) He shall also disqualify himself in the following circumstances: . . . (5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person: . . . (iv) Is to the judge's knowledge likely to be a material witness in the proceeding.
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), cert. denied sub nom. Milken v. S.E.C., 490 U.S. 1102 (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." Id. at 1312 (citation omitted). Recusal motions should not be used as strategic devices to judge shop or delay the proceedings. Lamborn v. Dittmer, 726 F. Supp. 510, 515 (S.D.N.Y. 1989).

It is well settled that all subsections of § 455 are construed to require a timely application, which our Circuit reads as a "threshold" issue — i.e., one to be evaluated before matters of substance are reached. Apple v. Jewish Hospital and Medical Center, 829 F.2d 326, 333 (2d Cir. 1987) (emphasis added). In U.S. v. Brinkworth, 68 F.3d 633, 639-40 (2d Cir. 1995), the Second Circuit, relying on Apple, 829 F.2d at 333, stated that, in general, one seeking disqualification must do so "at the earliest possible moment after obtaining knowledge of facts demonstrating the basis for such a claim" of disqualification. Accord, Gil Enters., Inc. v. Delvy, 79 F.3d 241, 247 (2d Cir. 1996). Thus, "[u]ntimeliness . . . is . . . a failure to seek recusal when it should first have been sought, that is, as soon as the facts on which it is premised are known to the parties." United States v. Bayless, 201 F.3d 116, 127 (2d Cir. 2000), cert. denied, 529 U.S. 1061 (2000). Moreover, "untimeliness in making a motion for recusal can sometimes constitute the basis for finding an implied waiver." Id. The Second Circuit has written that, in the context of on-going litigation, this timeliness requirement serves two functions:

First, a prompt application affords the district judge an opportunity to assess the merits of the application before taking any further steps that may be inappropriate for the judge to take. Second, a prompt application avoids the risk that a party is holding back a recusal application as a fall-back position in the event of adverse rulings on pending matters.
In re Int'l Bus. Mach. Corp., 45 F.3d 641, 643 (2d Cir. 1995). In deciding whether a recusal motion is timely, courts must "apply a four-factor test which asks whether: (1) the movant has participated in a substantial manner in trial or pre-trial proceedings; (2) granting the motion would represent a waste of judicial resources; (3) the motion was made after the entry of judgment; and (4) the movant can demonstrate good cause for delay." Apple, 829 F.2d at 334 (citations omitted).

If the Court determines that the recusal motion is timely, it must then address the merits of the application. As to that, the relevant inquiry is: "Would a reasonable person, knowing all the facts, conclude that the trial judge's impartiality could reasonably be questioned? Or phrased differently, would an objective, disinterested observer fully informed of the underlying facts, entertain significant doubt that justice would be done absent recusal?" U.S. v. Bayless, 201 F.3d at 127; accord, Diamondstone v. Macaluso, 148 F.3d 113, 120-21 (2d Cir. 1998). The standard is "designed to promote public confidence in the impartiality of the judicial process." In re Drexel Burnham Lambert Inc., 861 F.2d at 1313 (quoting H.R. Rep. No. 93-1453, at 5 (1974), reprinted in 1974 U.S.C.C.A.N. 6351, 6354-55). "Nevertheless, the existence of the appearance of impropriety is to be determined not by considering what a straw poll of the only partly informed man-in-the-street would show, but by examining the record facts and the law, and then deciding whether a reasonable person knowing and understanding all the relevant facts would recuse the judge." U.S. v. Bayless, 201 F.3d at 126-27 (citation and internal quotations omitted).

Furthermore, although the "extrajudicial source" doctrine applies to recusal motions under 28 U.S.C. § 455(a), "[t]he fact that an opinion held by a judge derives from a source outside judicial proceedings is not a necessary condition for `bias or prejudice' recusal. . . . Nor is it a sufficient condition for [such] recusal . . ." Liteky v. United States, 510 U.S. 540, 554 (1994) (emphasis in original). In other words, the "presence of an extrajudicial source [does not] necessarily establish bias, nor [does] the absence of an extrajudicial source necessarily preclude [] bias." Id. In any event, "[j]udicial rulings alone almost never constitute valid basis for a bias or partiality motion." Id. Instead, the judge's rulings should constitute grounds for appeal, not for recusal. Id. Further, opinions formed by the judge that are based on the evidence in the case or events occurring during the proceedings do not constitute a basis for recusal "unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks during the course 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." Id. Further, expressions of impatience, annoyance, dissatisfaction, and even anger, do not establish bias or partiality. U.S. v. Landerman, 109 F.3d 1053, 1066 (5th Cir. 1997).

A. TIMELINESS OF THE RECUSAL MOTIONS

At the outset, the Court finds that the recusal motions should be denied as untimely brought. Applying the four-factor test from the Apple case set forth above, the Court first finds that the movants have participated in a substantial manner in two years of pretrial proceedings. Instructive of the extensive activity on this case, is the fact that the docket, which records documents filed and proceedings, is 41 pages long. There has been an indictment, a superseding indictment, a second superseding indictment, a third superseding indictment, and numerous proceedings have been held. As for the second factor, the Court finds that granting the recusal motion would represent a waste of judicial resources. Significant time and judicial resources have been spent on this case. It should be noted that the trial in this case was originally scheduled to begin in May 2002. That was adjourned after the Court had blocked out four months of its calendar. The Court has dealt with many matters in this case, including taking a plea from McNamara.*fn8 Considering the amount of time and energy this Court has put into this case, one can only guess how long it would take another court to get up to speed. The third factor does not apply here, since there has been no judgment. The fourth factor is whether the movants can demonstrate good cause for delay. Apple, 829 F.2d at 334 (citations omitted). As to that, defendants contend that their motions are timely, since they only became aware that the Court might be a witness at trial on October 23, 2002. Jacobson Aff. Supp. Mot. For Recusal ¶ 25. Specifically, Jacobson states that,

[p]rior to October 23, 2002 the defense was led to believe that McNamara was "certain" he did not create an application containing false information. Since the Court had made counsel aware that Your Honor's separation agreement had been provided to the lender, there was absolutely no basis to believe the lender was provided false information, such as to make the Court a witness. Not until such information was provided to the Court and the defense by the government, that is, on October 23, 2002, did the Court likely become a witness. [The government's] recent letter of October 23, 2002 substantiates that McNamara is now expected to testify that a false application was prepared by McNamara with the Court's knowledge and consent and was most likely signed by the Court at closing.
Jacobson Aff. Supp. Mot. for Recusal ¶ 25.

As an aside, counsel's statement that McNamara "is now expected to testify that a false application . . . was most likely signed by the Court at closing," is incorrect. Rather, the Government's letter of October 23, 2002, expressly states that, according to McNamara, he had "no further input with the application, once it was submitted to [the] processing department." At this time, there is no reason to believe that McNamara has any knowledge about what occurred at closing. What the Government actually stated, in its October 23rd letter, is that McNamara "believes" the Court signed a handwritten mortgage application, some months prior to closing. As the Court has indicated, it has no recollection of ever having met Mr. McNamara before becoming involved in this case, and the mortgage commitment letter issued by the lender clearly indicates that the lender was aware that the Court was separated.

In any event, the Court finds defendants' explanation for their delay in bringing the instant recusal motion is clearly contradicted by the record. Specifically, the record indicates that defendants were aware, in either December 2000 or January 2001, that McNamara was claiming to have conspired with the Court to submit a false mortgage application. For example, the Government's October 23rd letter states that,

McNamara has informed the government that during that conversation [with Robert A. Amico and Robert J. Amico at the Batavia Detention Center in December 2000 or January 2001], it was discussed that in the event that McNamara and the Amicos were convicted after trial, they would go public with the accusation that Your Honor knew your loan application contained a misstatement. McNamara advised that he and the Amicos believed that this would somehow result in a mistrial.
Letter from Resnick at 2. (Oct. 23, 2002) (emphasis added). This version of events is corroborated by defendant Robert A. Amico, who avers, in a sworn affidavit, that while he was at the Batavia Detention Center, McNamara told him that he, McNamara, "told the Judge it would be easier to get the loan approved if his marital status were misrepresented as married rather than separated and McNamara said Judge Siragusa agreed." Richard N. Amico Recusal Mot., Exhibit A, Amico Aff. ¶ 3. Similarly, defendant Robert J. Amico, who was also held at the Batavia Detention Center with Robert A. Amico and Patrick McNamara, swears in an affidavit that he overheard McNamara tell Robert A. Amico, that McNamara "told the Judge it would be easier to get the loan approved if his marital status were misrepresented as married rather than separated and McNamara said Judge Siragusa agreed." Id. Exhibit B, ¶ 3 (emphasis added). It is undisputed that this conversation between McNamara and the Amicos had to have taken place on or before January 12, 2001, since that is when McNamara was released from the Batavia Detention Center.*fn9

Jacobson's awareness of McNamara's allegations, prior to his receipt of the October 25, 2002, letter from the Government is further indicated by the following statements he made at the court appearance on January 11, 2002, to which the Court previously referred:

[o]ne of the defense contentions, and it is a solid contention, is that Mr. McNamara on his own with the use of software technology and without the consent of our clients, and in many cases the purchaser who was obtaining the mortgage, went ahead and falsified documents. We have further reason to make an offer of proof that, that may have occurred in your case.
Official Transcript of Proceedings at 112 (Jan. 11, 2002). This comment by Jacobson could certainly lead a reasonable person to conclude that Jacobson was aware of some specific fraudulent act that McNamara supposedly committed with respect to the Court's mortgage for 1440 Blossom Road. This conclusion is obviously consistent with the information contained in the Government's October 23, 2002, letter, as well as two affidavits of Robert A. Amico and Robert J. Amico, attached to the recusal/severance application.

Also, despite the clear import of Jacobson's comment, it is noteworthy that later during the January 11th proceeding, he stated, "[P]erhaps we could do it — I don't have privy to the information because I haven't talked to Mr. McNamara, and I don't know what McNamara is — I'm not going to make a motion to recuse. Obviously I don't have any specifics." Official Transcript of Proceedings at 113 (Jan. 11, 2002). A reasonable person could conclude that this statement by Jacobson is contradictory and somewhat disingenuous in light of his previous comment during this same proceeding, and perhaps a belated attempt to play it close to the vest.

Furthermore, the fact that Jacobson sought to subpoena information from the Court relating to the mortgage for 1440 Blossom Road, first on April 23, 2002, and then again on October 7, 2002, is inconsistent with his claim, that from January 18, 2002, when the Court produced a copy of the July 30, 1987 letter indicating its separation agreement was being provided to the lender, until receipt of correspondence from the Government, dated October 23, 2002, he had "absolutely no basis to believe that the lender was provided false information, such as to make the court a witness." Jacobson Aff. Supp. Mot. for Recusal (emphasis added). To the contrary, it is reasonable to conclude that Jacobson had some information in advance of October 23rd which caused him twice to pursue subpoenas. (Presumably, this was the information that now has been set forth in the affidavits of Robert A. Amico and Richard J. Amico, referenced above, which were attached to the recusal/severance application.)

Therefore, the defense's excuse, that it only became aware of McNamara's claim about conspiring with the Court to misrepresent the Court's marital status upon receipt of the Government's October 23, 2002, correspondence, is not plausible. The record clearly indicates the defense was aware of McNamara's accusation almost two years before making its recusal motion, which, incidentally, was approximately a year before the Government, by its account, learned of it.

As to the Government's account, as indicated earlier, Resnick believes, despite the Court's and Jacobson's recollection to the contrary, that he informed the Court on January 18, 2002, that McNamara claimed to have fraudulently completed the mortgage application for 1440 Blossom with the Court's knowledge. However, there is no dispute that the Government never informed the Court, although admittedly aware as of January 18, 2002, of the substance of McNamara's conversation with "Robert A. Amico and/or Robert J. Amico" while at the Batavia Detention Center. Compare the below detailed excerpts from the Government's letters of January 24, 2002 and October 23, 2002.

McNamara further advised the government that he had advised Robert A. Amico of the above while they were being detained on the charges in the Indictment. Finally, McNamara advised the government of his contact with Your Honor because he believed, correctly, that under the terms of his cooperation agreement he was required to inform the government of all information he had, and he knew that he had mentioned the above to Robert A. Amico before he had agreed to cooperate with the government.
Letter from Resnick (Jan. 24, 2002).

McNamara has informed the government that during that conversation, it was discussed that in the event that McNamara and the Amicos were convicted after trial, they would go public with the accusation that Your Honor knew your loan application contained a misstatement. McNamara advised that he and the Amicos believed that this would somehow result in a mistrial.
Letter from Resnick (Oct. 23, 2002).

In this regard, the following exchange occurred between the Court and Resnick at the court appearance on November 8, 2002, regarding the fact that the Government was aware on January 18, 2002, of McNamara's statements that he had discussed with the Amicos that, if convicted, they would go public with the accusation that there was a misstatement on the Court's loan application to force a mistrial:

THE COURT: Mr. Resnick, let me get this clear. Is it your position that as of the 18th [referring to January 18, 2002] McNamara had told you that he had this conversation with —
MR. RESNICK: Yes, that's what I was trying to tell the Court.
THE COURT: Let me — that McNamara had told you that he had this conversation with the Amicos and they were all planning to spring this on the Court; are you telling me you told me that?
MR. RESNICK: Well, not all that detail, your Honor.

THE COURT: Let me leave you with this thought. That was a pretty important detail, Mr. Resnick, to leave out.
Official Transcript of Proceedings at 96-97 (Nov. 8, 2002).

A reasonable person might have expected that the Government would have informed the Court on January 18, 2002, as opposed to October 23, 2002, of its knowledge of the "plan," if convicted, to "go public with the accusation that Your Honor knew your loan application contained a misstatement," because McNamara "believed that this would somehow result in a mistrial." The import of this information is obviously significant especially when juxtaposed with the testimony of Margaret Thomas at the October 9, 2002, Robert A. Amico bail revocation hearing, to which the Court previously referred. Any attempt to impede the orderly administration of justice is something of which a court should be made aware.

This case has been pending since December of 2000. The recusal motion filed on November 6, 2002, comes almost two years after the case was commenced. The original application comes less than two weeks before the scheduled start of the trial, and it was not until two days after that point that the other defendants and the government joined in the application. Based upon all of the foregoing, the Court finds that the motions for recusal are untimely, and must be denied on that basis.

B. MERITS OF THE RECUSAL MOTIONS

1. 28 U.S.C. § 455(b)(5)(iv)

The Court cannot conceive of any situation in which the Court could properly be called as a witness in this case. Defendants claim that, "McNamara's most recent testimony [sic] and the application from Your Honor's file indicating `married' are all that is needed to make the Court a witness." Jacobson Aff. Supp. Mot. for Recusal ¶ 26. That is clearly incorrect, however. First, as the Court has indicated on numerous occasions, it does not recall meeting McNamara. Therefore, the Court could not even testify that it ever dealt with McNamara, let alone that it inadvertently signed a loan application prepared by him that contained a misstatement.*fn10

Second, even if the Court had a recollection of dealing with McNamara, the testimony Jacobson proffers would not be admissible. According to Jacobson, he now understands that McNamara, if asked, would testify that he, with the Court's knowledge and approval, prepared and submitted a false residential loan application in 1987, and it is specifically this understanding which prompted him to make the recusal motion. Such a statement by McNamara, however, is not consistent with the announced theory of Jacobson's defense, which is that his client was duped by McNamara, not that his client knew and consented to what McNamara was doing. Clearly then, the proposed testimony by the Court would be collateral and inadmissible since it is well settled that "one may not contradict for the sake of contradiction; the evidence must have an independent purpose and an independent ground." Michael H. Graham, 2 Handbook of Fed. Evid. § 607.8 (5th ed. 2001 & Supp. 2003) (citing U.S. v. Payne, 102 F.3d 289, 294 (7th Cir. 1996)). Here there is neither.

Moreover, even if the Court could testify, as Jacobson proffers (that McNamara in 1987 made a false notation on the Court's loan application without the Court's knowledge), such testimony would be cumulative under Federal Rule of Evidence 403. This is because

Next, the Court was not involved in the preparation of the unsigned, undated, typed mortgage application that was in the closing attorney's file. Therefore, there is no way that document could be introduced as evidence at trial through the Court. The fact is the Court does not know, and could never testify, that the person representing the lender, with whom the Court dealt, was Patrick McNamara.*fn11 Moreover, while it is possible that the Court could have inadvertently signed a document with the wrong box checked, there is no evidence that occurred, and in any event it would be irrelevant. The undisputed evidence in the Court's mortgage file clearly establishes that the lender was aware of the Court's marital status, since the Court's mortgage commitment letter referred to the Court's separation agreement. It is also clear that no fraud occurred, since the lender's commitment was conditional upon the Court providing a copy of the separation agreement, which it did, well in advance of the closing.

Finally, to the extent Jacobson would be seeking to impeach McNamara `s credibility by reference to his alleged activity with the Court in 1987 as a prior bad act, he would be bound by McNamara's answer and would not be able to prove the bad act by using extrinsic evidence. FED. R. EVID. 608(b) ("Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness's credibility, other than a conviction of a crime as provided in Rule 609, may not be proved by extrinsic evidence").

2. 28 U.S.C. § 455(a)

The Court also finds that recusal is not required on the basis that the Court's impartiality could reasonably be questioned. That is, the Court determines that an objective, disinterested observer, fully informed of the underlying facts, would not entertain any significant doubt that justice would be done absent recusal. U.S. v. Bayless, 201 F.3d at 127; accord, Diamondstone v. Macaluso, 148 F.3d at 120-21 (2d Cir. 1998).

Logically and objectively, any determination of the merits of the recusal motion pursuant to § 455(a) requires a consideration of the validity of McNamara's accusation that he submitted, on the Court's behalf and with the Court's knowledge, a fraudulent loan application. Obviously, if this allegation has any validity or even if it would appear to a reasonable person to have any validity, this Court should and would recuse itself. On the other hand, if the allegation is without basis, the Court should not recuse itself, since to do otherwise would be tantamount to the Court abdicating its decision-making responsibility to anyone coming forward with a spurious accusation. In this regard, the Court finds that a reasonable person, knowledgeable of the relevant facts and law, would conclude that McNamara's claim is baseless and false. U.S. v. Bayless, 201 F.3d at 126-27. The Court reaches this determination based upon its analysis of the following four factors: the Court's own conduct; the documentary evidence; the contradictory accounts given by McNamara; and common sense.

The Court's Own Conduct

First, the Court will consider McNamara's accusation in of light of its own conduct.
• Upon learning in chambers on January 18, 2002, of McNamara's claim that the Court's mortgage for 1440 Blossom Road was issued based upon the fraudulent representation that the Court was married as opposed to separated, the Court produced for counsel a copy of a cover letter indicating that the Court had in fact sent its separation agreement to the lender.
• The Court fully cooperated with Jacobson with respect to his issuance of subpoenas to obtain information relating to the Court's purchase of 1440 Blossom Road. In that regard, the Court, on or about October 7, 2002, informed the Marshal that it would accept service, rather than make Jacobson extend additional effort and resources. The Court, on its own initiative, obtained the file for 1440 Blossom Road maintained by the attorney who represented the Court on the transaction, and allowed Jacobson unfettered access to the file.
• The Court, on September 16, 2002, October 25, 2002, and November 8, 2002, set forth on the record the history to date of McNamara's allegations and unequivocally denied any wrongdoing. Moreover, on both October 25th and November 8th, the Court challenged the veracity of McNamara's claim de jour that the Court conspired with him to submit a fraudulent loan application by referencing and detailing the documentary evidence.
The Court finds that such conduct on its part would lead a reasonable person to conclude that McNamara's accusation lacks validity.

Documentary Evidence

Next the Court considers the documentary evidence. The cover letter, which the Court produced for counsel in chambers on January 18, 2002, and the documents contained within the file for 1440 Blossom Road, which the Court obtained on its own initiative from its real estate attorney, establish these facts:

• The Court did not have an executed contract for the purchase of 1440 Blossom Road until May 29, 1987.
• The Court applied for a mortgage sometime between May 29, 1987, and June 26, 1987, the date the lender issued its mortgage commitment letter.
• That mortgage commitment letter expressly required, as a condition of the loan, that the Court provide a copy of the Court's separation agreement prior to closing.
• The separation agreement was provided to the lender on July 30, 1987, well in advance of the ten-day requirement of the commitment letter, since the property closed on August 20, 1987.
• The mortgage file does contain an original, unsigned and undated typed mortgage application with the box labeled "married" checked, but indicating no maintenance or support obligation. It does not indicate who prepared it on behalf of the lender and erroneously indicates ownership as "Tenant by the Entireties [sic]."
• This original, unsigned and undated typed mortgage application was a closing document submitted by the lender to the Court's attorney for review and execution at closing, at a time when the lender was already in possession of the Court's separation agreement.
Obviously, had the lender been unaware of the Court's marital status, as McNamara claims, the lender would have had no knowledge that the Court was separated, and thus would not have requested a copy of a separation agreement. Therefore, the Court finds that a reasonable person would conclude that the lender was not in any way misled as McNamara contends.

McNamara's Contradictory Accounts

The Court now turns its attention to McNamara's different accounts of his contact with the Court.

• Initially, McNamara claimed that he specifically recollected the Court because of the Court's "notoriety" as First Assistant District Attorney. See Official Transcript of Proceedings at 110 (Jan. 11, 2002) supra. However, despite such notoriety and despite agreeing on January 12, 2001, to provide the Government with complete, truthful, and accurate information and not to withhold information, McNamara did not inform the Government about his alleged contact with the Court until approximately a year later. This unexplained delay on McNamara's part reasonably leads to the following question: If this "notoriety" so firmly lodged the Court in McNamara's memory, why would he wait until a year after entering into his cooperation agreement to inform the Government that he purportedly had previous contact with the Court?
• By the same token, one would logically expect McNamara to remember by whom he was employed at the time of this memorable event. Yet, while initially indicating he was employed by REMS at the time he purportedly worked on the Court's mortgage, he subsequently recalled that he was working for Goldpost. (See January 24, 2002 letter from Resnick at page 9, above.) However, his memory improved only after he was alerted that the Court had produced for counsel, during the January 18, 2002 chambers conference, documentation that it had forwarded a copy of its separation agreement to Terry at Goldpost.
• As of January 10, 2002, all McNamara reported to the Government is that he previously worked on a mortgage for the Court, but did not indicate, in any way, that he did anything wrong with respect to the mortgage.
• By January 18, 2002, McNamara now claimed that he fraudulently misrepresented the Court's marital status on the loan application.
• Between January 18, 2002, and January 24, 2002, after he had been alerted to the fact that the Court produced a copy of the cover letter indicating its separation agreement had been sent to the lender on July 30, 1987, McNamara told the government that he was certain that he did not misrepresent the Court's marital status.
• Then on October 21, 2002, as set forth in the Government's October 23, 2002 letter, McNamara remembered that:
. . . while working as a loan officer for Goldpost Mortage, he created a handwritten loan application during his meeting with Your Honor at your office [the office of the First Assistant District Attorney for Monroe County] in downtown Rochester. He believes that he indicated on the handwritten application that Your Honor was married (not separated), after discussing the issue of your marital status. He recollects explaining that if "separated" was marked, the lender would require a copy of a separation agreement. He would further testify that he believes that Your Honor signed the handwritten application, which he believes was marked "married," after this discussion. Further, McNamara would testify that he had no further input with the application, once it was submitted to Goldpost Mortgage's processing department.
Letter from Resnick (Oct. 23, 2002).

• Additionally, in the Government's October 23, 2002, correspondence, the Court learned for the first time that McNamara was telling the Government that while he was housed together with Robert A. Amico and Robert J. Amico at the Batavia Detention Center "it was discussed that in the event that McNamara and the Amicos were convicted after trial, they would go public with the accusation that Your Honor knew your loan application contained a misstatement. McNamara advised that he and the Amicos believed that this would somehow result in a mistrial." Letter from Resnick (Oct. 23, 2002).
In objectively viewing the evolution of McNamara's allegations, the Court cannot help but consider the following language from the falsus in uno, falsus in omnibus instruction utilized in jury trials:

If you find that any witness has knowingly, that is, willfully and intentionally, testified falsely as to any material fact, that is, as to an important matter, the law permits you to disregard completely the entire testimony of that witness upon the principle that one who testified falsely about one material fact is quite likely to testify falsely about everything.
New York Pattern Jury Instructions § 1:22. McNamara's various versions of his interaction with the Court bring to mind the old saying, "[T]he falsehoods that one tells are not only at odds with the truth, they quarrel among themselves." Consequently, the Court determines that a reasonable person would conclude that McNamara's contradictory accounts as to his prior involvement with the Court effectively undermine his credibility on this matter.

Common Sense

Finally, the Court considers common sense. There certainly can be no dispute that a reasonable person in resolving the truth or falsity of McNamara's accusation should rely on common sense and reason. In doing so, obvious questions are raised.

• Is it consistent with common sense and reason that McNamara would walk into the office of the then First Assistant District Attorney, whom he had never before met, and propose that McNamara submit a false mortgage application on the Court's behalf?
• Is it consistent with common sense and reason, even assuming McNamara made such an incredible proposal, without even knowing whether the Court had any type of support or maintenance obligation, that the Court would enter into such an agreement, with absolutely nothing to gain; i.e., the Court had more than adequate income to justify the loan, had no maintenance or support obligations, was purchasing a home which was appraised for more than the amount of the loan, and was under no time constraints since it would already be living in the residence pursuant to a rental agreement?
• Is it consistent with common sense and reason that if, as McNamara claims, he, as the lender's representative, and the Court conspired to keep from the lender the fact that the Court was separated, that the lender would issue a commitment letter contingent upon the Court providing a copy of its separation agreement.
• What insights do common sense and reason offer concerning McNamara's discussion with the Amicos while incarcerated at the Batavia Detention Center that, in the event they "were convicted after trial, they would go public with the accusation that Your Honor knew your loan application contained a misstatement" to affect a mistrial?
• What insights do common sense and reason offer concerning Robert A. Amico's statement to Margaret Thomas, "that the Judge had purchased homes through Pat McNamara like we did, and that they had asked the Judge to step down, but the Judge wouldn't; so they had a plan to go public with it, to get rid of that particular judge"?
The Court determines that, as with the factors previously discussed, common sense would lead a reasonable person to conclude that McNamara's accusation of wrongdoing on the part of the Court is nothing but a sham.

As indicated above, the standard applicable to a recusal motion under § 455(a) is one "designed to promote public confidence in the judicial process." In re Drexel Burnham Lambert Inc., 861 F.2d 1313. Such public confidence could not be achieved if the Court were to allow itself to be removed from this matter based upon a manufactured rationale. The Court, in reaching its determination, is very cognizant of two principles of law previously stated: first, a recusal motion should not be used as a strategic device to judge shop or delay the proceedings, Lamborn v. Dittmer, 726 F. Supp. at 515; and second, "[a] judge is as much obliged not to recuse himself when it is not called for as he is obliged to when it is." In re Drexel Burnham Lambert, Inc., 861 F.2d at 1312.

III. PLEA NEGOTIATION

There is no dispute that Rule 11 limits the Court's role in the plea process. In that regard, the Second Circuit has held that,

[t]he commentaries regarding this injunction, and consideration of its intendment, leave no room for doubt that its purpose and meaning are that the sentencing judge should take no part whatever in any discussion or communication regarding the sentence to be imposed prior to the entry of a plea of guilty or conviction, or submission to him of a plea agreement.
U.S. v. Werker, 535 F.2d 198, 201 (2d Cir. 1976) (citations omitted) (emphasis added).

As an additional argument in support of the motion for recusal, Richard N. Amico's counsel, Mr. Jacobson, suggests that the Court violated Rule 11 of the Federal Rules of Criminal Procedure by involving itself in the negotiation of his plea agreement. The Court finds this contention to be without merit. There is no allegation that the Court involved itself in the discussions between the Government and the defendant prior to the presentation to the Court of a plea agreement. Consistent with Werker, the only input the Court gave in this case came after it was presented with a plea agreement. Furthermore, Jacobson concedes in his papers that this issue in and of itself would not be sufficient to warrant recusal.

IV. SEVERANCE

Under Rule 14 of the Federal Rules of Criminal Procedure, the Court may grant severance "[i]f it appears that a defendant . . . is prejudiced by a joinder of . . . defendants . . . for trial together." FED. R. CRIM. P. 14. A trial need not be severed any time co-defendants raise conflicting defenses. Zafiro v. United States, 506 U.S. 534, 538-39 (1993); United States v. Haynes, 16 F.3d 29, 32 (2d Cir. 1994). Indeed, there is a "preference in the federal system for joint trials of defendants who are indicted together." Zafiro, 506 U.S. at 537. A defendant challenging the denial of a motion to sever must demonstrate that he was so prejudiced by the joinder that he was denied a constitutionally fair trial and that a "miscarriage of justice" occurred. United States v. Torres, 901 F.2d 205, 230 (2d Cir. 1990); United States v. Aulicino, 44 F.3d 1102, 1117 (2d Cir. 1995).

In support of his alternative motion for severance, Richard N. Amico states:

If the Court rules that McNamara's testimony regarding the Court's contact with him is irrelevant or cumulative to the government's case against the co-defendants, the Court is asked to sever Richard N. Amico's trial. McNamara's testimony is crucial to the government's case against Richard N. Amico because of his minimal participation. Any limitation on the cross-examination of McNamara is, therefore, not cumulative to the sparse evidence against Richard N. Amico and such cross-examination should be allowed in a separate trial. . . .
Jacobson Aff. Supp. Mot. for Recusal ¶ 27. At the outset, the Court notes that Jacobson cites no authority in support of his alternative application for severance. It seems that he is seeking, in advance of trial, an evidentiary ruling pursuant to Rules 402, 403, and 608 of the Federal Rules of Evidence, although he is not making a motion in limine to that effect.*fn12 To the extent that Jacobson is arguing that, based on a potential evidentiary ruling, the case against his client should be severed because the proof against the co-defendants is stronger, that argument has been consistently rejected by the Second Circuit. U.S. v. Locascio, 6 F.3d 924, 947 (2d Cir. 1993); U.S. v. Carson, 702 F.2d 351, 366-67 (2d Cir. 1983). Therefore, the alternative application for severance is denied.

CONCLUSION

For all of the foregoing reasons, the application for recusal, and the alternative application for severance, are denied.

IT IS SO ORDERED.


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