The opinion of the court was delivered by: Charles J. Siragusa, District Judge.
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
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
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
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
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
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
MR. JACOBSON: No. I'm concerned that the witness'
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
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 ...