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U.S. v. FANTA
December 13, 2005.
UNITED STATES OF AMERICA,
RONALD FANTA, Defendant.
The opinion of the court was delivered by: JOHN KEENAN, Senior District Judge
Defendant, an admittedly disbarred New York lawyer, stands
indicted on two counts for allegedly making "false, fictitious
and fraudulent statements" relative to his standing as a lawyer.
These statements allegedly were in forms submitted to the United
States Labor Department and to the United States Department of
Immigration and Naturalization Service (18 U.S.C. § 1001(a)(2)).
He now moves that I recuse myself, pursuant to
28 U.S.C. § 455(a).
At a pretrial conference held on October 17, 2005, there was
colloquy amongst the Court, the prosecutor and counsel for the
defendant concerning a motion that defense counsel wanted to make
and the availability of documents from the Disciplinary Committee
and the Appellate Division. During the discussion, the Court
Before I came on the bench, I was on the policy
committee of the disciplinary committee which I think
is now called the executive committee of the
disciplinary committee in the First Department. And
before that I was a member of a panel on the
disciplinary committee. And I heard cases brought by the disciplinary committee against lawyers. Now, I'm
not aware of any like body in the First Department
other than the disciplinary committee.
In paragraph three of defendant's undated affidavit in support
of the motion it is urged, as one of the grounds for recusal,
that my service on the Disciplinary Committee prevents me from
presiding over the case. Defendant states at paragraph five of
this affidavit that he "was disbarred by the New York State
Supreme Court, Appellate Division First Department in 1998."
The second ground for recusal urged is in paragraph four of the
Fanta affidavit. It reads as follows:
To the best of my recollection Judge Keenan also
stated that his ears would turn red if he learned
that a disbarred New York State attorney practiced
law in the District Court before him without
disclosing that said attorney was previously
disbarred in the State of that attorney's admission.
In fact, the colloquy at the October 17, 2005 pretrial
conference at Tr. 16 reads as follows:
THE COURT: I'll tell you, Mr. Seidler, if someone
came in here and stood where you're standing or where
Mr. Garcia were standing and they were disbarred in
the First Department and they didn't tell me, their ears would be pretty red when I found out.
MR. SEIDLER: But, your Honor, that's really not
respectfully, the issue here is criminal penalty. Not
and if they came in and they filled out a notice of
appearance and they didn't make that representation,
I can understand your Honor's making their ears red,
but what we're dealing with here is an indictment for
failure to do what, that's the issue at this point.
Title 28 § 455(a) of the United States Code mandates a Federal
Judge "to disqualify himself in any proceeding in which his
impartiality may reasonably be questioned." The key case on the
subject is Liteky v. United States, 510 U.S. 544 (1994),
wherein Justice Scalia, in delivering the opinion of the Court,
recounted the history of recusal and the method by which the test
is to be applied. Also enlightening on the subject is the
decision of the late Chief Judge Caffrey of the District of
Massachusetts and the cases cited therein in Honneus v. United
States, 425 F. Supp. 164 (1977).
As to the fact that I was a member of the Disciplinary
Committee, the motion is absurd. Members of the Disciplinary
Committee serve in a quasi-judicial capacity. They pass upon
allegations of misconduct against lawyers and do not serve as advocates. They do not bring
the charges, and they do not prosecute them.
But, even if Disciplinary Committee members brought the
charges, this would be no grounds for recusal. Former federal
prosecutors often preside over trials, as Federal Judges, in
districts where they have served as United States Attorney or as
an Assistant United States Attorney. That has been the situation
in the Southern District of New York for decades, and the
suggestion that a former prosecutor would not reasonably appear
to be impartial is ridiculous. Former membership on the
Disciplinary Committee is no ground for recusal.
As to the second point, the fact is that I would expect a
lawyer, who was disbarred in the State, to tell me this was so if
he appeared before me in Federal Court. The fact that I might
"turn his ears red" by embarrassing him if this came to my
attention, and he had not told me, is not grounds to suggest that
I cannot be fair in the case of Mr. Fanta. There is nothing in
Liteky or in United States v. Bayless, 201 F.3d 116
2000), requiring my recusal. As Justice Scalia wrote in Liteky, pages 556-557:
". . . judicial remarks during the course of a trial
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. . . .
Not establishing bias or partiality, however, are
expressions of impatience, dissatisfaction,
annoyance, and even anger, that are within the bounds
of what imperfect men and women, even after having
been confirmed as federal judges, sometimes display.
A judge's ...
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