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United States v. Nelson

June 28, 2010


The opinion of the court was delivered by: Trager, J.


On August 10, 1994, defendant was charged in a juvenile information with violating §§ 2 and 245(b)(2)(B), Title 18 of the federal civil rights law. The information alleges that on August 19, 1991, defendant and others "did wilfully injure, intimidate and interfere with, and attempt to injure, intimidate and interfere with, Yankel Rosenbaum, an Orthodox Jew, because of his religion and because he was enjoying facilities provided and administered by a subdivision of the State of New York, namely, the public streets provided and administered by the City of New York, and bodily injury to and the death of Yankel Rosenbaum did result."

On August 10, 1994, this case was assigned to me pursuant to a random draw from the criminal assignment wheel of the United States District Court for the Eastern District of New York. Subsequently, defendant moved that I recuse myself. On October 11, 1994, I denied the motion and indicated that an opinion explaining the reasons for the denial would be filed at the conclusion of the case. This is that opinion, slightly revised to reflect the Second Circuit's recent decision in MacDraw, Inc. v. CIT Group Equip. Fin., Inc., 138 F.3d 33 (2d Cir. 1998).*fn1 Defendant's Notice of Motion and moving affidavit sets forth essentially four grounds for the recusal motion.

First, I am an Orthodox Jew and a board member of an Orthodox Jewish group.

Second, I have a "close relationship" with and am a "close friend" of Judah Gribetz, Esq., "the head of an organization which brought about this federal prosecution" and "seeks . . . [defendant's] conviction on federal criminal civil rights charges." The moving affidavit states that I am "beholden to [Mr.] Gribetz, who . . . nominated [me] to Senator Daniel Moynihan for [my] present federal judgeship, as head of an 11 member nomination panel." In addition, the affidavit asserts the defendant's belief that Mr. Gribetz is a financial contributor to the Rashi Association, the Orthodox group of which I am a board member.

Third, I was formerly an Assistant United States Attorney for the Eastern District of New York.

Fourth, while serving as chairman of the Temporary State Commission of Investigations, I was accused by a New York State Supreme Court Justice of improperly attempting to interfere with a criminal case.

Defendant's motion is made pursuant to two statutory provisions -- 28 U.S.C. §§ 144 and 455(a). Section 144, entitled "Bias or prejudice of judge," provides for recusal "[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." (emphasis added). Section 455(a), entitled "Disqualification of justice, judge, or magistrate," provides for disqualification in "any proceeding in which [the judge's] impartiality might reasonably be questioned."

While § 144 is directed towards a judge's bias or prejudice against a particular litigant, section "455(a) concerns not only fairness to individual litigants, but, equally important, it concerns 'the public's confidence in the judiciary, which may be irreparably harmed if a case is allowed to proceed before a judge who appears ;to be tainted.'" Alexander v. Primerica Holdings Inc., 10 F.3d 155, 162 (2d Cir. 1993)(quoting In re Sch. Asbestos Litig., 977 F.2d 764, 776 (3d Cir. 1992)).

28 U.S.C. § 144

In this circuit, a judge who is presented with a motion for recusal made pursuant to 28 U.S.C. § 144 must first determine whether the procedural requirements have been met and whether the affidavit submitted in support of the motion is legally sufficient. See, e.g., McCann v. Commc'ns Design Corp., 775 F. Supp. 1506, 1523 (D. Conn. 1991) (Cabranes, J.); United States v. Johnpoll, 748 F. Supp. 86, 88 (S.D.N.Y. 1990) (Carter, J.); Lamborn v. Dittmer, 726 F. Supp. 510, 514 (S.D.N.Y. 1989) (Carter, J.). Because the motion and the affidavit in support of the motion under § 144 are both procedurally deficient and substantively insufficient, the motion is denied.

I discuss first the substantive inadequacies of the motion. In determining legal sufficiency of a § 144 motion, the judge must accept the allegations in the affidavit as true, see Berger v. United States, 255 U.S. 22, 30 (1921), even if the judge knows that the allegations are false. Accepting and applying this principle here, defendant's affidavit still does not provide a legally sufficient basis for recusal under 28 U.S.C. § 144.

The first ground offered by defendant in his affidavit in support of recusal is that I am an Orthodox Jew and am a board member of an Orthodox Jewish organization devoted "to preserv[ing] Jewish memorials in Europe." Affidavit of Lemrick Nelson, Jr., sworn to September 21, 1994, ¶ 3. This is a constitutionally impermissible basis on which to make such a motion. The Supreme Court has held that the Equal Protection Clause precludes challenges to jurors on the basis of race and gender. In Batson v. Kentucky, 476 U.S. 79 (1986), the Supreme Court held that the Equal Protection Clause of Fourteenth Amendment forbids a prosecutor in a criminal case from exercising peremptory challenges based on the race of a juror, and in J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994), the Court held that gender, like race, is an unconstitutional basis on which to challenge juror competence and impartiality.

While it has not yet ruled explicitly that religion is an equally offensive ground for a peremptory challenge, there is no principled basis for sanctioning such challenges. In United States v. Greer, 968 F.2d 433 (5th Cir. 1992) (en banc), the Court of Appeals for the Fifth Circuit upheld a district court's refusal to strike all black, Latino and Jewish jurors for cause in a civil rights violation case against a group of white "skinheads". See also Davis v. Minnesota, 511 U.S. 1115 (1994) (Thomas, J., joined by Scalia, J., dissenting from a denial of certiorari) (Justice Thomas would extend Batson and J.E.B. to prohibit peremptory challenges based on religion of juror). In addition to the Equal Protection Clause, such a challenge implicates the Free Exercise Clause of the First Amendment. In McDaniel v. Paty, 435 U.S. 618 (1978), the Supreme Court invalidated on First Amendment grounds a Tennessee provision disqualifying clergy from being legislators or constitutional convention delegates.

Moreover, when a judge, instead of a juror, is asked to recuse himself from a case because of his religion, the challenge implicates the declaration in Art. VI, cl. 3 of the Constitution which provides that "no religious Test shall ever be required as a Qualification to any office or public Trust under the United States." See Torcaso v. Watkins, 367 U.S. 488, 496 (1961) (holding that a Maryland law requiring all holders of public office to declare a belief in the existence of God was unconstitutional).

If Congress had enacted a statute disqualifying judges from sitting on certain cases because of their religious beliefs or because one of their co-religionists had some involvement or interest in the outcome of the case, there is no doubt that such a statute would be struck down. The defendant's effort to invoke an act of Congress to achieve such a result is equally unacceptable.

Indeed, defendant's argument stands on the same infirm footing as motions that have been made to recuse my African-American and female colleagues in civil rights cases where the victim of the alleged discrimination was black or female. See, e.g., Paschall v. Mayone, 454 F. Supp. 1289, 1299-1301 (S.D.N.Y. 1978) (Carter, J.) (in civil rights violation case, defendants were not entitled to disqualification of trial judge under 28 U.S.C. ยงยง 144 and 455(a) where affidavit merely sketched the judge's employment background and civil rights involvement as Assistant Special Counsel and General Counsel to the N.A.A.C.P. and a member of N.Y.S. Special Comm. on Attica just prior to becoming a federal judge); Blank v. Sullivan & Cromwell, 418 F. Supp. 1, 4 (S.D.N.Y. 1975) (Motley, J.) (in sex discrimination case, defendants were not entitled to disqualification of trial judge who had engaged in civil rights litigation and who was of the same sex as plaintiff); United States v. Ibrahim ...

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