U.S. v. Edwards, Crim.A. 98-165-B-M2.

Decision Date26 January 1999
Docket NumberNo. Crim.A. 98-165-B-M2.,Crim.A. 98-165-B-M2.
PartiesUNITED STATES of America v. Edwin W. EDWARDS, et al.
CourtU.S. District Court — Middle District of Louisiana

Michael S. Fawer, Covington, LA, for Edwin Edwards, defendant.

Karl J. Koch, Unglesby & Koch, Baton Rouge, LA, Lewis O. Unglesby, Lewis O. Unglesby, Attorney at Law, Baton Rouge, LA, for Stephen Edwards, defendant.

Rebecca L. Hudsmith, Federal Public Defenders Office for Middle and Western Districts of LA, Lafayette, LA, for Cecil Brown, defendant.

Servando C. Garcia, III, Garcia & Bishop, Metairie, LA, for Andrew Martin, defendant.

Patrick Fanning, New Orleans, LA, for Bobby Johnson, defendant.

Mary Olive Pierson, Cooper & Pierson, Baton Rouge, LA, Camille F. Gravel, Jr., Alexandria, LA, James Michael Small, Law Offices of J. Michael Small, Alexandria, LA, Hillar C. Moore, III, Baton Rouge, LA, for Gregory Tarver, defendant.

James B. Letten, Peter G. Strasser, Department of Justice, U.S. Attorney's Office, New Orleans, LA, Michael William Magner, United States Attorney's Office, New Orleans, LA, Eddie J. Jordan, Jr., United States Attorney's Office, New Orleans, LA, for U.S.


POLOZOLA, Chief Judge.

All defendants except Gregory Tarver have filed motions to recuse Chief Judge Frank J. Polozola and all of the other judges in the Middle District of Louisiana for various reasons. In a short memorandum ruling, the court denied the motions to recuse Judge Polozola and found the motions to recuse the other judges of the Middle District moot.1 The court now assigns its reasons for denying the motions to recuse.2


Two separate motions to recuse Judge Polozola were filed in this case. In one motion, Edwin W. Edwards, Stephen Edwards, Andrew Martin, Cecil Brown and Bobby Johnson filed a motion to recuse based on various grounds which will be discussed in detail hereinafter in this opinion.3 In addition, Cecil Brown, Andrew Martin and Bobby Johnson have filed a separate motion to recuse on the additional ground that Judge Polozola's son is a member of the law firm representing Stephen Edwards.4

A. Recusal Motion I

In this motion to recuse, the defendants have alleged a number of reasons in support of their motion to recuse this judge and the remaining judges of the district. A careful reading of this motion reveals the following basic grounds for my recusal:

1. The United States was involved in forum shopping.

2. The court's rulings and comments made in pre-indictment grand jury challenges and other jury challenges made by the Edwards defendants and defendants in United States v. Phillips et al., Criminal Action No. 97-68 (M.D.La.).

3. The manner in which the cases involving the defendants who pled guilty in related cases were assigned.

4. This case was not randomly assigned which prevented the defendants from having an African-American judge to preside in their case.

5. This judge issued a "gag" order after the indictment was returned.

6. This judge has denied the defendants access to information in the clerk's office.

7. This judge previously held Michael Fawer in contempt in the Phillips case.

8. The "personalization" of the court's rulings on various issues.

The United States has filed an opposition to the defendants' motion. The United States contends that neither 28 U.S.C. § 455 nor the facts of this case require Judge Polozola to recuse himself in this case.

B. Recusal Motion II

In Recusal Motion II, the defendants Brown, Martin and Johnson allege that Judge Polozola should recuse himself because his son is a member of the Kean, Miller law firm and allegedly will become a partner while this case is pending before the court. These defendants concede that mandatory recusal is not required if the judge's son is not a partner in the Kean, Miller firm, will not become a partner while the case is pending before me, and does not work on the case. The court ordered the Kean, Miller firm to set forth in writing the current and future status of Gordon D. Polozola with the firm. This statement was timely filed in the record and will be discussed below.5

The United States opposes this motion to recuse on the ground that Gordon Polozola's status as an associate in the Kean, Miller law firm does not require Judge Polozola's recusal.


The starting point to decide the two pending motions to recuse is 28 U.S.C. § 455. The defendants basically rely on § 455(a) and § 455(b)(1) and (b)(5)(ii) to support their motions to recuse. These sections provide:

§ 455(a):

Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

§ 455(b)(1) and (b)(5)(ii):

He shall also disqualify himself in the following circumstances:

(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;


(5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:


(ii) Is acting as a lawyer in the proceeding.

Thus, Section 455(a) requires a judge to stand recused in "any proceeding in which his impartiality might reasonably be questioned." Section 455(b)(1) requires a judge to disqualify himself where "he has a personal bias or prejudice concerning a party". Section 455(b)(5) requires a judge to disqualify himself if a "person within the third degree of relationship ... [i]s acting as a lawyer in the proceeding."

The standard by which courts judge recusal is an objective one. If a "reasonable man, were he to know all the circumstances, would harbor doubts about the judge's impartiality," then recusal is warranted.6 In Liteky v. United States,7 the United States Supreme Court addressed the circumstances which would necessitate the recusal of a judge for "impartiality" pursuant to § 455(a), or for "bias or prejudice," pursuant to § 455(b)(1). One of the issues before the Liteky Court was whether the "extrajudicial source" doctrine applied to § 455(a). The "extrajudicial source" doctrine provides that matters arising out of the course of judicial proceedings are not a proper basis for recusal.8 The Supreme Court noted that the "extrajudicial source" doctrine is one application of the "pejorativeness requirement" to the terms "bias" and "prejudice" as they are used in § 455(a) and § 455(b)(1).9 This requirement mandates that a judge be recused under § 455(b)(1) when his "judicial predispositions ... go beyond what is normal and acceptable,"10 and under § 455(a) when his predisposition is "wrongful or inappropriate."11 When explaining predispositions that a judge might possess, the Court noted:

It is enough for present purposes to say the following: First, judicial rulings alone almost never constitute a valid basis for a bias or partiality motion. In and of themselves (i.e., apart from surrounding comments or accompanying opinion), they cannot possibly show reliance upon an extrajudicial source; and can only in the rarest circumstances evidence the degree of favoritism or antagonism required (as discussed below) when no extrajudicial source is involved. Almost invariably, they are proper grounds for appeal, not for recusal. Second, opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Thus, 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. They may do so if they reveal an opinion that derives from an extrajudicial source; and they will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible.... 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 ordinary efforts at courtroom administration — even a stern and short-tempered judge's ordinary efforts at courtroom administration — remain immune.12

In affirming the lower court's denial of the motion to disqualify, the Court concluded:

All of these grounds are inadequate under the principles we have described above: They consist of judicial rulings, routine trial administration efforts, and ordinary admonishments (whether or not legally supportable) to counsel and to witnesses. All occurred in the course of judicial proceedings, and neither (1) relied upon knowledge acquired outside such proceedings nor (2) displayed deep-seated and unequivocal antagonism that would render fair judgment impossible.13

The Fifth Circuit has followed Liteky in affirming rulings of district judges who denied motions to disqualify: United States v. Mizell14 (trial judge refused to recuse himself in retrial of defendant and rejected defendant's plea agreement prior to the first trial); United States v. Landerman15 (defendant claimed judge's remarks and rulings favored the United States; the Fifth Circuit emphasized the Liteky Court's holding that the judge's rulings constitute grounds for appeal, not recusal); United States v. Gray16 (defendants argued that the judge made improper remarks during voir dire, unfairly limited opening and closing arguments, arbitrarily limited the number of character witnesses and abandoned the neutral role); In re Corrugated Container Antitrust Litigation17 (defendants sought recusal in the civil case because of evidentiary rulings and remarks made during...

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