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United States v. Miller

January 27, 2005

UNITED STATES OF AMERICA,
v.
FREDERICK MILLER, DEFENDANT.



The opinion of the court was delivered by: Royce C. Lamberth United States District Judge

MEMORANDUM AND ORDER

Frederick Miller, one of twenty co-defendants charged with participating in a narcotics conspiracy, moves this Court to recuse itself from hearing his criminal case. For the reasons set forth below, the Court DENIES defendant's motion.

Defendant moves for disqualification pursuant to 28 U.S.C. § 144, which provides: Whenever 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 another 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.... A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.

The judge who is the object of the recusal motion rules on the motion. United States v. Mitchell, 377 F. Supp. 1312, 1315 (D.D.C. 1974). "In order to prevent a truly biased judge from blocking an attempt to recuse, the judge, in deciding whether to grant the recusal motion, must accept the affidavit's factual allegations as true even if the judge knows them to be false." SEC v. Loving Spirit Found., 392 F.3d 486, 496 (D.C. Cir. 2004). On the other hand, disqualification is not automatic upon submission of affidavit and certificate; rather, the judge must review these submissions for legal sufficiency, James v. District of Columbia, 191 F. Supp.2d 44, 46-47 (D.D.C. 2002), and construe them strictly against the movant to prevent abuse, United States v. Haldeman, 559 F.2d 31, 135 (D.C. Cir. 1976); Beland v. United States, 117 F.2d 958, 960 (5th Cir. 1941).

Defendant's Affidavit

In an affidavit dated November 11, 2004, the defendant Miller tells a story about how this Judge denied him payment for work he completed as an investigator hired by court-provided defense counsel for Brian Bostick, a defendant in United States v. Edelin (Crim. No. 98-264)and United States v. Gray (Crim. No. 00-157), two other criminal matters before this Judge. Miller states that allegations that Bostick committed forgery "resulted in an investigation issued by Judge Lamberth, into my firm, Dream Team Investigation Services." Miller then states that the investigation cleared him of wrongdoing. Finally, Miller states that he submitted a voucher to this Judge requesting payment and that he "was denied payment by Judge Lamberth."

Absence of Certificate

Defendant has submitted an affidavit and defendant's counsel has filed a motion for recusal, but defendant's counsel has failed to certify that defendant's affidavit is in good faith. "[T]he attorney's certificate plays a critical role in the recusal process." Loving Spirit, 392 F.3d at 496. To prevent parties from filing frivolous affidavits, "the statute requires the attorney presenting the motion to sign a certificate stating that both the motion and declaration are made in good faith." Id. (citations omitted); see also James, 191 F. Supp.2d at 47. Counsel's failure to make this certification is grounds for denying the motion. United States v. Sepulveda, 512 F. Supp. 592, 595 (D.D.C. 1981) (citing Galella v. Onassis, 487 F.2d 986, 997 (2d Cir. 1973); Coppedge v. United States, 311 F.2d 128, 133 (D.C. Cir.1962)). Therefore, on this basis alone, defendant's motion fails.

Substance of the Allegations

Even if the Court considers the substance of defendant's allegations of bias, the motion to recuse must still be denied. If the Court is to recuse itself, defendant's allegations must concern personal bias, which means they "must stem from an extra-judicial source" United States v. Grinnell Corp., 384 U.S. 563, 583 (1966). A judicial source not only includes events at a trial and hearing in the pending case, but events in chambers, e.g., United States v. Prof. Air Traffic Controllers Org., 527 F. Supp. 1344, 1356 (N.D. Ill. 1981), and matters related to prior court proceedings, e.g., Haldeman, 559 F.2d at 132; Tripp v. Executive Office of the President, 104 F. Supp. 2d 30, 35 (D.D.C. 2000). Here, the refusal of payment - the act that allegedly shows this Judge's bias - was, as defendant notes, a decision made in the course of a pending criminal matter before this Judge. This Judge became aware of defendant only by fulfilling judicial duties and, assuming the truth of defendant's allegation as must be assumed, by making a decision in an official capacity as a judge. Therefore, because the matter was placed "before the court in the course of fulfilling its judicial responsibilities, the court's exposure... is not properly characterized as 'extra-judicial.' Liteky v. United States, 510 U.S. 540, 555 (1994); see also United States v. Gordon, 61 F.3d 263, 268 (4th Cir.1995) (affirming district court's denial of recusal motion, which was based upon the court's involvement in prior related proceedings); United States v. Bailey, 175 F.3d 966, 969 (11th Cir.1999) (in camera hearing does not constitute extra-judicial source) (citations omitted); United States v. Nicholson, 955 F. Supp. 582, 583 (E.D. Va. 1997) (denying defendant's motion to recuse, which was based on court's prior participation in the case as a member of the U.S. Foreign Intelligence Surveillance Court)." Tripp, 104 F. Supp. 2d 30, 35. Defendant's allegations concern judicial, non-personal matters and cannot properly be the basis of a motion for disqualification.

Further, courts in this Circuit require that the affidavit "meet exacting standards." Haldeman, 559 F.2d at 135. The affidavit "must be strictly construed; it must be definite as to time, place, persons and circumstances. Assertions merely of a conclusionary nature are not enough, nor are opinions or rumors. And the affidavit must give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment." Id. (citations and internal quotations omitted). The present affidavit is not definite. It offers no specifics about the unsigned payment voucher: no date, no amount, and no list of services. It alleges bias based on the single denial of a payment voucher. It requires the Court to infer that just because the defendant was cleared by an investigation he is entitled to payment, no matter what the contents of the voucher. This inference is weak at best. Moreover, the denial of a single voucher does not give fair support to defendant's charge of bias. A reasonable person would expect a judge who denied a voucher in one instance to grant a voucher in another instance, or, more to the point, preside over the trial of a person whose voucher he once denied.

Conclusion

For all these reasons, the motion to recuse is hereby DENIED. Even though the Court denies defendant's motion, it will place several documents into the record of this case that will, it is hoped, set at ease the minds of defendant and counsel. These documents will show that several statements in defendant's affidavit are untrue. While the Court could not contest the facts stated in defendant's affidavit while considering the ...


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