United States District Court, W.D. New York
June 20, 2005.
UNITED STATES OF AMERICA, Plaintiff,
BENJAMIN POWELL Defendant.
The opinion of the court was delivered by: RICHARD ARCARA, District Judge
DECISION AND ORDER
The defendant is charged in a 32 count indictment with
violations of 18 U.S.C. §§ 1029 and 1341, specifically alleging
access device fraud, fraud in connection with identification
documents and mail fraud. On March 10, 2004, Magistrate Judge H.
Kenneth Schroeder revoked defendant's bail and issued a written
decision concerning the revocation on March 23, 2004. Defendant
appeals from that decision as well as Magistrate Judge
Schroeder's August 31, 2004 decision denying defendant's motion
to have the Magistrate recuse or disqualify himself from
Upon his arrest in this matter in July 2003, defendant was incarcerated through the Niagara County High Impact Incarceration
Program. Upon defendant's completion of that program in September
2003, he was released on his own recognizance and placed under
the supervision of the United States Probation Office. On January
29, 2004, defendant's Probation Officer sent a memorandum to
Magistrate Judge Schroeder detailing several instances of
conflict beginning in October 2003 between defendant and the
Officer as well as between defendant and his substance abuse
counselors. The Probation Officer suggested that a bail review be
conducted and, if warranted, that defendant be required to submit
to a mental health evaluation.
Magistrate Judge Schroeder held a bail review hearing on
February 11, 2004, at which time he amended defendant's bail
conditions and ordered defendant to submit to a mental health
evaluation as a condition of his bail. An appointment for the
evaluation was made on defendant's behalf and he was informed of
the date, time and location for the appointment. Defendant failed
to appear for the appointment.
On February 25, 2004 Magistrate Judge Schroeder again ordered
defendant to submit to the evaluation and warned defendant that
his failure to comply with the Court's directive could result in
the revocation of his bail. Defendant was again informed of the
date, time and location for the evaluation. Defendant again
failed to appear at the appointed date and time. On March 10,
2004 Magistrate Judge Schroeder revoked defendant's bail. On
March 11, 2004 Magistrate Judge Schroeder conducted a revocation hearing and
issued a written decision on March 23, 2004. Defendant filed a
Notice of Appeal from that order on March 29, 2004.*fn1
Subsequently, defendant made two motions seeking recusal or
disqualification of Magistrate Judge Schroeder. Magistrate Judge
Schroeder denied the motions in a decision dated August 31, 2004.
Defendant filed a Notice of Appeal from that decision on
September 8, 2004. This Court heard oral argument on both appeals
on May 12, 2005.
A. Bail Appeal
Section 3148 of Title 18 of the United States Code provides
that an order of revocation shall be entered if "after a hearing,
the judicial officer finds that there is . . . clear and
convincing evidence that the person has violated any other condition of release and . . . finds that . . . the person
is unlikely to abide by any condition or combination of
conditions of release." 18 U.S.C. § 3148(b)(1)(B) and (b)(2)(B).
In reviewing a Magistrate Judge's revocation order, the District
Court should reach its own independent conclusion, and not simply
rely on the Magistrate Judge's conclusions. See United States
v. Leon, 766 F.2d 77, 80 (2d Cir. 1985).
The Court finds by clear and convincing evidence that the
defendant violated a condition of his bail. Defendant twice
failed to appear for a mental health evaluation ordered by the
Magistrate Judge. Defendant does not contest this fact.
Defendant argues that the Magistrate Judge's order to submit to
an evaluation was based on the Probation Officer's memorandum of
January 29 and that the memorandum contained lies and
misstatements of fact. Defendant contends that the Probation
Officer sent the memorandum to the Magistrate Judge in
retaliation for the complaints defendant made against the
Probation Officer. Defendant's opinion, however, as to the wisdom
of the Magistrate Judge's decision to order the evaluation is
irrelevant to the issue at hand. The undisputed facts show that
the defendant was ordered to undergo an evaluation and he failed
to comply with the Court's directive.
Also irrelevant is the fact that defendant voluntarily
submitted to a mental health evaluation at Erie County Medical
Center on February 9, 2004. It was not until February 11, 2004, that the Magistrate Judge
ordered, for the first time, that the defendant be evaluated.
Whether the defendant had been evaluated prior to that time is
not the issue.*fn2 The record establishes, by clear and
convincing evidence, that the defendant violated a condition of
his bail when he failed to submit to a mental health evaluation
as ordered by the Magistrate Judge.
Since the defendant violated a condition of his bail,
revocation is required if the Court finds, by a preponderance of
the evidence, that the defendant is unlikely to abide by any
condition or combination of conditions in the future. See
United States v. Poinsett, 953 F. Supp. 37, 38 (N.D.N.Y. 1997),
citing United States v. Gotti, 794 F.2d 773, 778 (2d Cir.
1986). Defendant began pre-trial supervision in September 2003,
and his behavioral problems with his Probation Officer began in
October 2003, the very next month. The defendant refuses to
acknowledge the authority of the Court to order him to submit to
an evaluation. He also refuses to acknowledge that he was in
error in failing to comply. Rather, he continues to insist that
he did not have to comply. It seems likely that the defendant
will continue to disregard instructions of the Court with which he disagrees. The preponderance of the evidence standard is
met here, and defendant's appeal from the Magistrate Judge's
order of revocation is denied.
B. Recusal Appeal
On July 17, and August 26, 2004, the defendant filed motions
seeking to have Magistrate Judge Schroeder recuse or disqualify
himself from defendant's case based on the appearance of
partiality. On August 31, 2004, Magistrate Judge Schroeder issued
a decision denying defendant's motions. A Notice of Appeal to
this Court was filed on September 8, 2004.
Defendant contends that the Magistrate Judge should recuse or
disqualify himself from defendant's case because his acts of: (1)
ordering a mental health evaluation based on the Probation
Officer's memo, (2) revoking defendant's bail when defendant did
not submit to the evaluation at the appointed date and time; and
(3) other unspecified instances of "conspiracy" with the
government and "cover up," create the appearance of bias or
partiality. Defendant also asserts that the Magistrate Judge's
reference to defendant as "dog who tail wag or wag the tail"
indicates some bias against the defendant.
A motion to recuse is a non-dispositive matter, and therefore,
this Court's review of the Magistrate Judge's denial of the
motion is governed by the "clearly erroneous or contrary to law"
standard of review. See Kampfer on Behalf of Kampfer v. Gokey, 159 F.R.D. 370, 372 (N.D.N.Y. 1995)
(applying "clearly erroneous or contrary to law" standard to
Magistrate Judge's denial of motion to recuse). Defendant seeks
recusal under 28 U.S.C. §§ 144, and 455.
Section 144 of Title 28 of the United States Code states that:
[w]henever a party to any proceeding in a district
court makes and files a timely and sufficient
affidavit that the judge before whom the matter is
pending has a personal bias or prejudice either
against him or in favor of any adverse party, such
judge shall proceed no further therein, but anpother
judge shall be assigned to hear such proceeding . . .
The affidavit shall state the facts and the reasons
for the belief that bias or prejudice exists, and
shall be filed not less than ten days before the
beginning of the term at which the proceeding is to
be heard. [The affidavit] shall be accompanied by a
certificate of counsel of record stating that it is
made in good faith.
28 U.S.C. § 144. Defendant also seeks recusal under § 455, which
provides that a judge shall disqualify himself
(a) . . . in any proceeding in which his impartiality
might reasonably be questioned. and
(b) (1) where he has a personal bias or prejudice
concerning a party.
28 U.S.C. § 455. The analysis is the same under both sections, as
they are construed in pari materia. See Apple v. Jewish
Hosp. and Medical Center, 829 F.2d 326
, 333 (2d Cir. 1987).
"The substantive standard for recusal is whether a reasonable
person, knowing all the facts, would conclude that the court's
impartiality might reasonably be questioned." Kampfer, at 372, citing United
States v. Pitera, 5 F.3d 624, 626 (2d Cir. 1993), cert.
denied, 510 U.S. 1131 (1994). As the government notes, the
determination should focus on "conduct extrajudicial in nature as
distinguished from conduct within a judicial context." In re
International Business Machines Corp., 618 F. 2d 923, 928 (2d
The acts of the Magistrate Judge upon which defendant's motions
are based clearly fall within the judicial context. The Supreme
Court has stated that "judicial rulings alone almost never
constitute a valid basis for a bias or partiality motion."
Liteky v. United States, 510 U.S. 540, 555 (1994). "Opinions
formed by a judge on the basis of facts introduced or events
occurring in the course of judicial proceedings do not constitute
a basis for recusal unless they indicate that the judge has a
deep-seated favoritism or antagonism that would make fair
judgment impossible." United States v. Diaz, 176 F.3d 52, 112
(2d Cir. 1999) (internal citation and quotation omitted).
There is no indication that the Magistrate Judge harbors any
antagonism toward the defendant, or favoritism toward the
government. The Magistrate Judge's decisions in this matter
merely reflect the defendant's willful disregard of the bail
conditions imposed by the Court. The Magistrate Judge's decision
is not clearly erroneous or contrary to law and therefore
defendant's appeal is denied. CONCLUSION
Defendant's appeals from the decisions of the Magistrate Judge
The Court further orders that defendant be committed to the
custody of the Attorney General for confinement in a corrections
facility separate, to the extent practical, from persons awaiting
or serving sentences or being held in custody pending appeal.
The Court further orders that defendant be afforded reasonable
opportunity for private consultation with counsel.
Finally, the Court directs that on order of a Court of the
United States or on request of an attorney for the government,
the person in charge of the corrections facility in which
defendant is confined deliver the defendant to a United States
Marshal for the purpose of appearance in connection with any
The parties shall appear on June 23, 2005 at 9:00 a.m. for a
meeting to set a trial date.
IT IS SO ORDERED.