U.S. v. Bell

Citation79 F.Supp.2d 1169
Decision Date20 July 1999
Docket NumberNo. CV-F-95-5346 OWW SMS.,CV-F-95-5346 OWW SMS.
PartiesUNITED STATES of America, Plaintiff, v. Glen D. BELL, et al., Defendants.
CourtU.S. District Court — Eastern District of California

G Patrick Jennings, United States Department of Justice, Tax Division, Washington, DC, for plaintiff.

Glen D. Bell, Modesto, CA, pro se.

Jeanette Bell, Modesto, CA, pro se.

Alan Richard Coon, Bray Geiger Rudquist and Nuss, Stockton, CA, for Stockton Financial Corp., defendant.

MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS' MOTIONS 1) FOR RECUSAL OF UNITED STATES DISTRICT JUDGE; 2) TO RECUSE ASSISTANT UNITED STATES ATTORNEY; AND 3) FOR RECONSIDERATION

WANGER, District Judge.

I. INTRODUCTION

Defendants filed the following documents June 17, 1999:

1. Notice of Demand for Reconsideration of Order Re: Miscellaneous Filings Declaration in Support

2. Notice and Demand for recusal of Judge Oliver Wanger for Bias and Prejudice

3. Notice of Prosecutorial Misconduct and Demand for recusal of U.S. Attorney G. Patrick Jennings

See Doc. No. 124, 125, 126. The United States filed written opposition to defendants' demands and requests July 6, 1999. Defendants did not file a written reply.

II. BACKGROUND

In this action the United States sought to set aside fraudulent transfers, reduce tax assessments to judgment, and foreclose tax liens on real property owned by Glen Bell and his spouse Jeanette Bell. On October 23, 1998, Judgment was entered in this case in favor of the United States and against defendants. See Doc. No. 103. An order of judicial sale was filed December 24, 1998. See Doc. No. 112.

III. DISCUSSION
A. MOTION TO RECUSE UNITED STATES DISTRICT JUDGE

Section 144, Title 28 United States Code, provides for disqualification "[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 ... against him or in favor of any adverse party...." Section 455(b)(1) provides that a judge shall disqualify himself "[w]here he has a personal bias or prejudice concerning a party...." Sections 144 and 455(b)(1) are construed in pari materia. Apple v. Jewish Hosp. and Medical Center, 829 F.2d 326, 333 (2d Cir.1987). Section 455(a) is broader than the above sections, requiring a judge to disqualify himself "in any proceeding in which his impartiality might reasonably be questioned." A motion for recusal is committed to the sound discretion of the district court. See In re Drexel Burnham Lambert Inc., 861 F.2d 1307, 1312 (2d Cir.1988), cert. denied sub nom., Milken v. SEC, 490 U.S. 1102, 109 S.Ct. 2458, 104 L.Ed.2d 1012 (1989). The moving party bears a "substantial burden" to show that the judge is not impartial. United States v. International Business Machines, 475 F.Supp. 1372, 1379 (S.D.N.Y.1979), aff'd, 618 F.2d 923 (2d Cir.1980). "A judge should not recuse himself on unsupported, irrational, or highly tenuous speculation." Hinman v. Rogers, 831 F.2d 937, 939 (10th Cir.1987); see also New York City Housing Develop. Corp. v. Hart, 796 F.2d 976, 980 (7th Cir.1986).

In support of their "Notice and Demand for recusal of Judge Oliver Wanger for Bias and Prejudice" pursuant to 28 U.S.C. §§ 144 and 455, Defendants filed a "Declaration [of Glen Bell] of Bias and Prejudice Against Judge Oliver W. Wanger." Mr. Bell's declaration contains 8 separately numbered paragraphs and asserts the following "facts" warrants disqualification of the district judge:

(1) The Judge is an employee of the United States government, and as such has vested interest in these proceedings; and receives fees for his services in violation of among other things conflict of interest laws, doctrine of separation of powers and Article III of the Constitution for the United States of America by exercising judicial powers outside the limitations imposed in Article III supra. In light of the foregoing, the Judge is in violation of the ancient maxim of law that "a man should not be a judge in his own cause."

(2) the Judge is an agent of the United States Government, and as such said agent is responsible to the United States Government; and hence suffers an intolerable conflict of interest with respect to such facts.

(3) The Judge is employed by and represents as an employee, the United States, the same as the Plaintiff.

(4) The Judge has shown distinct and intolerable bias by the mere filing of 1040 income tax forms, and the refusal to respond to my multiple questions regarding jurisdiction of the United States District Court being an Article IV court and not an Article III court. Therefore this refusal constitutes a distinct predetermined bias.

(5) The Judge as a member of the United States District Court is further under criminal investigation by the Department of the Treasury, Internal Revenue Service's Criminal Investigation Division pursuant to Treasury Document 46.002. [see document attached Exhibit R-1] As such said judge is biased and prejudice [sic] and no doubt compromised to the extent that Declarant has no confidence in the impartiality of the court to guarantee due process of law in light of the intolerable inherent conflict of interest of said judge in light of the civil tax claims leveled against the Falsely Accused by the assistant U.S. Attorney, G. Patrick Jennings.

A motion under section 144 must be timely, i.e., the motion should be made at the earliest possible moment after obtaining facts demonstrating a basis for recusal.

First, a prompt application affords the district judge an opportunity to assess the merits of the application before taking any further steps that may be inappropriate for the judge to take. Second, a prompt application avoids the risk that a party is holding back a recusal application as a fall-back position in the event of adverse rulings on pending matters.

In re International Bus. Mach. Corp., 45 F.3d 641, 643 (2d Cir.1995); see also In re Anwiler, 958 F.2d 925, 930 (9th Cir.1992). It is clear from the record in this case that defendants' affidavit is untimely.1 Defendants contend the district judge has demonstrated bias by refusing to respond to defendants' objections to the Article III jurisdiction of the court. This is incorrect. The court addressed a similar "demand" by defendants to know the "nature and character" of the court. See Doc. No. 94 (Sept. 2, 1998). Defendants' objections to the Article III jurisdiction of the court have been analyzed and found legally frivolous. If the failure to rule on any motion properly filed by defendants in this case constitutes grounds for recusal, then defendants knew of any such "refusal" when the motions were not ruled upon. The grounds asserted for recusal which have not already been addressed in earlier decisions in this case responding to a motion to recuse the district judge are frivolous.

Defendants' motion comes after entry of judgment in this case. The Ninth Circuit has warned that a recusal motion made after the entry of judgment is presumptively untimely. See E. & J. Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280, 1295 (9th Cir.1992) (recusal motion made after entry of judgment was untimely; "[t]o hold otherwise would encourage parties to withhold recusal motions, pending a resolution of their disputes on the merits, and then if necessary invoke section 455 in order to get a second bite at the apple."); see also First National Bank of Peoria v. Muller, 851 F.2d 916, 919 (7th Cir.1988) (movant waived any grounds for making a recusal motion where movant knew the facts at a preliminary hearing and proceeded to trial without objection and only raised the bias issue after Judge's unfavorable ruling), cert. denied., 490 U.S. 1007, 109 S.Ct. 1645, 104 L.Ed.2d 160 (1989).

In addition to being untimely, defendants' motion is deficient in form because the affidavit was not "accompanied by a certificate of counsel of record stating that it is made in good faith." See 28 U.S.C. § 144. Although Fed.R.Civ.P. 11(b) requires a parties' signature on any motion or paper presented to the court for filing is a certification by the party that the motion or other paper is not presented for any improper purpose, section 144 clearly requires a certificate of good faith which defendants have not provided. Procedural requirements under section 144 are strictly construed and this lack of respect for clear requirements itself sufficient grounds for denying defendants' motion.

Even assuming defendants' motion was timely and in the proper form, defendants' motion under either section 144 or 455(b)(1) is without merit. Insofar as "the grounds for disqualification set out in section 144 `personal bias or prejudice either against (a party) or in favor of any adverse party' are included in section 455", see United States v. Ritter, 540 F.2d 459, 462 (10th Cir.1976), both sections are considered together. Recusal under either section 144 or section 455(b)(1) is required only if the judge's bias is 1) directed against a party; 2) stems from an extrajudicial source; and 3) casts doubt on his or her impartiality. See Liteky v. United States, 510 U.S. 540, 114 S.Ct. 1147, 1152, 127 L.Ed.2d 474 (1994); United States v. Studley, 783 F.2d 934, 939 (9th Cir.1986).

Apparently realizing the necessity for an extra-judicial source of bias, defendants speculate that there is an "intolerable conflict of interest" between the plaintiff, the United States of America, and the district judge. Defendants accuse the district judge in this case of having an irreconcilable conflict of interest with the plaintiff because 1) this judge is paid a salary by the federal government, 2) has filed income tax returns, 3) refuses to address, in a manner that satisfies defendants, a long litany of meritless claims that the court lacks Article III jurisdiction in this case, and 4) because of an ongoing Treasury Department investigation into the United States District Courts defendants have lost confidence in...

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