Arocena v. US, 89 Civ. 1122 (RJW).

• Decision Date: 12 September 1989
• Docket Number: No. 89 Civ. 1122 (RJW).,89 Civ. 1122 (RJW).
• Parties: Eduardo AROCENA, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Southern District of New York

721 F. Supp. 528

Eduardo AROCENA, Petitioner, v. UNITED STATES of America, Respondent.

No. 89 Civ. 1122 (RJW).

United States District Court, S.D. New York.

September 12, 1989.

Miller, Hochman, Meyerson & Schwartz, Jersey City, N.J. (Gerald D. Miller, of counsel), Markewich, Friedman & Markewich, New York City (Daniel Markewich, of counsel), for petitioner.

Benito Romano, U.S. Atty. S.D. New York, New York City (Michael L. Tabak, of counsel), for respondent.

OPINION

ROBERT J. WARD, District Judge.

Petitioner, Eduardo Arocena, moves pursuant to 28 U.S.C. § 2255 to vacate the conviction and sentence imposed upon him on the grounds that he was denied (1) due process of law by partisan judicial interference during his trial and (2) a fair trial due to ineffective assistance of counsel. Petitioner also moves, pursuant to 28 U.S.C. § 455(a), for the Court to disqualify itself from considering the section 2255 motion. For the reasons that follow, the motion to disqualify the Court and the motion to vacate the conviction and sentence are denied.

BACKGROUND

Petitioner, the leader of a terrorist organization known as "Omega 7", was convicted on September 22, 1984, after a six week jury trial, on the following charges: first degree murder of a diplomat; two counts of conspiracy to murder diplomats; attempted murder of a diplomat; conspiracy to violate the Racketeering Influenced and Corrupt Organizations Act (RICO); interstate transportation of explosives with intent to cause injury; three counts of malicious damage by explosives to property used in commerce with personal injury resulting; malicious damage by explosives to property used in commerce; placing a destructive substance near an aircraft or air terminal; unlicensed interstate transportation of explosives; six counts of possession of unregistered bombs; four counts of destruction of property within the United States used by foreign governments; conspiracy to, inter alia, use explosives to commit felonies; conspiracy to knowingly make false material declarations under oath before a grand jury and obstruct the administration of justice; and perjury before a grand jury.

On November 9, 1984, petitioner was sentenced to serve consecutive sentences of life imprisonment and thirty-five years imprisonment by this Court.¹ The conviction was upheld by the Court of Appeals for the Second Circuit in United States v. Arocena, 778 F.2d 943, 944 (2d Cir.1985), cert. denied, 475 U.S. 1053, 106 S.Ct. 1281, 89 L.Ed.2d 588 (1986), and Arocena's grounds for appeal were found to be "entirely devoid of merit."² The Second Circuit concluded that:

Overall, the Government's case against Eduardo Arocena was overwhelming and impressive. Arocena's interviews with FBI agents and his lengthy taped conversations with Agent Wack, combined with the copious physical evidence against him and the testimony of eighty-five witnesses, piece together the details of a terrorist campaign shocking in its ferocity and persistence.

Id. at 950.³

DISCUSSION

Preliminarily, the Court must address petitioner's motion that the Court disqualify itself from deciding the motion to vacate his conviction and sentence. Petitioner asserts that disqualification is appropriate under 28 U.S.C. § 455(a) which provides that:

any ... judge ... shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

The purpose of section 455(a) is to promote confidence in the judiciary by avoiding even the appearance of impropriety. Hardy v. United States, 878 F.2d 94, 96 (2d Cir.1989). The standard used to determine if recusal is appropriate under section 455 is an objective one. E.g. In re Int'l Business Machines Corp., 618 F.2d 923, 929 (2d Cir.1980). Recusal is warranted if a reasonable person, knowing all the facts, would conclude that the court's impartiality might reasonably be questioned. See Apple v. Jewish Hospital and Medical Center, 829 F.2d 326, 333 (2d Cir.1987).

Section 455(a) provides broader grounds for disqualification than the recusal provisions contained in 28 U.S.C. §§ 144 and 455(b)(1)⁴, but "when, as here, a party has not alleged any grounds for recusal other than those relating to the district court's alleged bias or prejudice which arose from the proceedings in court, those broader grounds are not implicated." Id.

Accordingly, section 455(a) requires that the source of the alleged judicial bias or prejudice originate outside the judicial context. In re Int'l Business Machines Corp., supra, 618 F.2d at 929.

We conclude that under section 455(a) the bias to be established must be extra-judicial and not based upon in-court rulings.... The bias which requires recusal must be personal and cannot rest upon trial court rulings or conduct....

Id. See also United States v. Sibla, 624 F.2d 864, 867 (9th Cir.1980) (§ 455(a) does not provide grounds for recusal based on allegations of bias or prejudice stemming from district judge's courtroom remarks); Markus v. United States, 545 F.Supp. 998, 999 (S.D.N.Y.1982) (alleged bias sufficient for recusal must arise by virtue of some factor that occurs outside the events in the trial itself), aff'd without opinion, 742 F.2d 1444 (2d Cir.1983).

Petitioner does not assert that the Court's alleged bias arose from an extrajudicial source. Instead, without mentioning the above authority, petitioner argues that section 455(a) provides for recusal based solely on allegations of bias and prejudice arising from conduct in the trial setting. Petitioner relies on cases outside this circuit which identify the general rule that bias or prejudice sufficient to disqualify a judge must arise from extrajudicial sources, but go on to state a limited exception to this rule when a judge's remarks demonstrate such pervasive bias or prejudice that it constitutes bias against a party. See Wiley v. Wainwright, 793 F.2d 1190, 1193 (11th Cir.1986) (citing Davis v. Board of School Commissioners of Mobile County, 517 F.2d 1044, 1051 (5th Cir.1975), cert. denied, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188 (1976)); Quachita National Bank v. TOSCO Corp., 686 F.2d 1291, 1300 (8th Cir.1982) aff'd in part on rehearing en banc, 716 F.2d 485 (1983); Whitehurst v. Wright, 592 F.2d 834, 838 (5th Cir.1979).⁵

The Court, in keeping with the spirit of section 455(a), and out of its own belief in the seriousness of a charge of partiality, has endeavored to examine the substance of the disqualification motion despite the absence of allegations that any bias or prejudice arose from an extrajudicial source. After reviewing petitioner's argument, the Court concludes that the motion for disqualification is utterly without merit.

Petitioner relies on a short excerpt from the six week trial to support his claim that the Court's impartiality in deciding the section 2255 motion might reasonably be questioned. Trial Transcript ("Tr.") at 1111-12, 1114-15. Petitioner argues that a comment by the Court indicated a view as to Arocena's guilt during the course of the trial. Petitioner, quoting selectively from the transcript, fails to provide any context for the quoted colloquy between the Court and counsel, thereby conveniently ignoring the fact that these comments occurred: (1) outside the presence of the jury, (2) during the course of the Government's presentation of its case in chief, (3) at the end of a short trial day, approximately two weeks into the trial which lasted six weeks and consumed almost two thousand eight hundred (2800) pages of transcript, (4) during a discussion of scheduling matters for the Government's remaining witnesses, and (4) in the context of a suggestion by the Court that the Government might want to shorten its presentation of proof. Tr. 1093-1115. Moreover, petitioner fails to acknowledge that the exchange he cites between the Court and counsel was immediately followed by an explanation from the Court that it was not attempting to substitute its judgment for that of the jury, but only to preside fairly in the case and encourage the parties to continue as expeditiously as they felt was proper. Tr. 1115. The Court finds no reasonable construction of these comments which could indicate a bias against petitioner such as to bring the Court's impartiality into question in deciding the section 2255 motion.

One other point is worth noting in analyzing the recusal request on petitioner's section 2255 motion. The determination of the motion to disqualify is necessarily interrelated with the merits of petitioner's allegation that he was denied due process and a fair trial due to partisan interference by the Court. Part of petitioner's challenge to his conviction and sentence requires the Court to review its own actions to determine if a constitutional violation occurred. This review, in and of itself, is perfectly appropriate, and does not impugn the Court's impartiality in contravention of section 455(a). See e.g., Gravenmier v. United States, 469 F.2d 66, 69 (9th Cir.1972) (it is well established that the trial judge can hear and decide a motion pursuant to 28 U.S.C. § 2255 even when the section 2255 motion is based on a claim that the trial judge should have disqualified himself from presiding over the trial); Walters v. United States, 404 F.Supp. 996, 997-98 (S.D.N.Y.1975). Furthermore, the bare allegation by a petitioner of partiality by the Court in a section 2255 motion cannot have the effect of eviscerating the statutory scheme for challenges to federal sentences which expressly provides for review by the sentencing court in the first instance. 28 U.S.C. § 2255.

Accordingly, recusal is not warranted in these circumstances under any reading of section 455(a) and the motion to disqualify the Court from considering the section 2255 claim is denied. The Court now turns to the merits of petitioner's section 2255 motion.

A. 28 U.S.C. § 2255

Section 2255 provides a mechanism for federal prisoners to vacate convictions and sentences imposed in...