U.S. v. Fernandez
| Decision Date | 07 June 2011 |
| Docket Number | Criminal No. 10–232 (FAB). |
| Parties | UNITED STATES of America, Plaintiff,v.Juan BRAVO FERNANDEZ and Hector Martinez Maldonado, Defendants. |
| Court | U.S. District Court — District of Puerto Rico |
OPINION TEXT STARTS HERE
Peter M. Koski, U.S. Department of Justice, Washington, DC, for Plaintiff.
David Z. Chesnoff, Chesnoff & Schonfeld, Las Vegas, NV, Jose A. Pagan–Nieves, Joseph C. Laws, San Juan, PR, for Defendants.
On April 5, 2011, defendants filed a joint motion for a new trial and the recusal of the undersigned for future proceedings. (Docket No. 477.) The government filed its opposition to defendants' joint motion on May 9, 2011. (Docket No. 483.) Defendant Martinez filed a supplemental motion on May 11, 2011 (Docket No. 484), both defendants filed replies (Docket Nos. 488 and 489), the government filed a sur-reply (Docket No. 492) and defendants filed a sur-reply to the government's sur-reply (Docket No. 495).
For the reasons expressed below, the Court DENIES defendants' motion for recusal. Defendant Martinez's supplemental motion is NOTED.
Defendants move for recusal of the undersigned pursuant to 28 U.S.C. §§ 144, 455(a), 455(b)(1), and 455(b)(5)(iii). They allege that the undersigned's impartiality is in question because in 1993, when the undersigned's wife, the Honorable Enid Martinez–Moya, was nominated to be the Attorney General of Puerto Rico by then—Governor Pedro Rossello, her confirmation was not recommended by then—Senator Freddy Valentin, who was, at the time, the Chairman of the Senate's Nominations Committee, and who later, in 1994, employed defendant Martinez. (Docket No. 477 at 2–4.) The Senate did not confirm Ms. Martinez–Moya. Defendants claim that the undersigned never disclosed anything about those events, which took place eighteen years ago; that the connection between Valentin and defendant Martinez became a very important issue in the case; and that the undersigned made rulings against defendant Martinez directly involving matters concerning Valentin during trial that must now be called into question. Id. In the supporting affidavit filed by defendant Martinez, he admits that at the time the events between Valentin and the undersigned's wife occurred, defendant Martinez “was just 24 years old, and was not working for then-Senator Valentin and [ ] had nothing to do with the nomination or its review or with Senator Valentin's opposition and action.” (Docket No. 477–1 at 3.) Defendants also allege that in the criminal case filed against former Senator de Castro–Font, the undersigned made rulings in favor of de Castro–Font because in 2005, de Castro–Font voted to confirm the undersigned's wife's nomination to the judgeship which she still occupies. (Docket No. 477 at 2–4.) In his supporting affidavit, defendant Martinez states that in 2005, he, as a Senator, also voted to confirm the undersigned's wife to be a Superior Court Judge. (Docket No. 477–1 at 3.)
Defendants also challenge rulings made by the undersigned, claiming that they resulted from a bias still harbored by the undersigned towards Valentin and that bias spilled over to defendant Martinez. Defendants identify and contest a number of issues that arose in pre-trial proceedings and during the course of trial, including the following: denying defendants' Rule 12 motion to dismiss, which allowed, in part, the government to pursue the section 666 counts against defendants; granting the government's request for an anonymous jury; questioning witnesses in front of the jury; making critical and disapproving comments towards defendants' counsel; engaging in independent legal research; finding admissible a transcript of defendant Martinez's 1999 grand jury testimony; rejecting defendants' proposed jury instructions; and granting the government's request to provide defendant Martinez's grand jury transcript to the United States Probation Officers for their use in preparation of the presentence investigation reports. (Docket No. 477.) The Court first addresses the procedural requirements under 28 U.S.C. § 144, and then moves on to a substantive analysis under both 28 U.S.C. §§ 144 and 455.
I. Applicable StatutesA. 28 U.S.C. § 144
The statute reads, in its entirety:
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, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. 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.
This recusal statute requires a district judge to accept the moving party's affidavit as true, even though it may contain averments that are false and known to be so to the judge. In re Martinez–Catala, 129 F.3d 213, 218 (1st Cir.1997). While a trial judge may not pass upon the truth of the matters asserted in the moving party's affidavit, a trial judge is not required to recuse himself immediately, because the “judge must pass upon the legal sufficiency of the affidavit.” United States v. Giorgi, 840 F.2d 1022, 1034–35 (1st Cir.1988) (emphasis original). Furthermore, “[s]ince sections 144 and 455 of 28 U.S.C. use similar language, and are intended to govern the same area of conduct, they have been construed in pari materia, and the test of the legal sufficiency of a motion for disqualification is the same under both statutes.” United States v. Kelley, 712 F.2d 884, 889 (1st Cir.1983).
B. 28 U.S.C. § 455
Section 455(b)(1) provides for mandatory disqualification when a judge “has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding[.]” 28 U.S.C. § 455(b)(1). Section 455(b)(5)(iii) provides for mandatory disqualification where a judge “or his spouse ... [i]s known by the judge to have an interest that could be substantially affected by the outcome of the proceeding.” 28 U.S.C. § 455(b)(5)(iii). Section 455(a), on the other hand, directs “[a]ny justice, judge, or magistrate judge of the United States [to] disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a).
Section 455(a) reaches farther than both 455(b)(1) and section 144 because it is not limited to “personal” bias or prejudice “concerning a party” and because it does not require that the movant establish bias or prejudice in fact. In re Martinez–Catala, 129 F.3d 213, 220 (1st Cir.1997) (emphasis original). Section 455(a) requires recusal when the objective circumstances “create an appearance of impartiality.” Id. (emphasis original). Dual, sometimes competing, policies underlie section 455(a). In re United States, 666 F.2d 690, 694 (1st Cir.1981). First, “courts must not only be, but must seem to be, free of bias or prejudice.” Id. Second, the section is intended to prevent litigants from obtaining “recusal on demand” that would provide them with “a veto against unwanted judges.” In re Boston's Children First, 244 F.3d 164, 167 (1st Cir.2001). In the final balance, compulsory recusal requires “more than subjective fears, unsupported accusations or unfounded surmise.” In re United States, 158 F.3d 26, 30 (1st Cir.1998). Furthermore, “[t]he trial judge has a duty not to recuse himself or herself if there is no objective basis for recusal.” In re United States, 441 F.3d 44, 67 (1st Cir.2006).
Disqualification under section 455(a) occurs only where a charge of bias is supported by a factual basis and those facts “provide what an objective, knowledgeable member of the public would find to be a reasonable basis for doubting the judge's impartiality.” In re Boston's Children First, 244 F.3d at 167 (quoting In re United States, 666 F.2d at 695). “While doubts ordinarily ought to be resolved in favor of recusal, the challenged judge enjoys a margin of discretion[.]” In re United States, 158 F.3d at 30 (citations omitted). This discretion exists because “in many cases reasonable deciders may disagree....” In re United States, 666 F.2d at 695. Each case implicating section 455(a) is sui generis, requiring a fact-specific analysis done on a case-by-case basis. In re Boston's Children First, 244 F.3d at 171; In re United States, 158 F.3d at 31. Ultimately, the question for an appellate court is “not whether it would have decided as did the trial court, but whether that decision cannot be defended as a rational conclusion supported by [a] reasonable reading of the record.” In re United States, 666 F.2d at 695.
II. Procedural Requirements of 28 U.S.C. § 144
Courts have interpreted section 144's unusual requirement that the district judge accept the moving party's affidavit as true even though it may contain false averments known to the judge “by insisting on a firm showing in the affidavit that the judge does have a personal bias or prejudice toward a party, and also by insisting on strict compliance with the procedural requirements of the section.” In re Martinez–Catala, 129 F.3d at 218 (footnote omitted). We start with the procedural issues outlined in section 144's second paragraph.
Both sections 455 and 144 require that the party moving for recusal of the judge raise the issue “at the earliest moment after acquiring knowledge of the facts providing a basis for disqualification.” Cordova Gonzalez v. United States, 987 F.Supp. 87, 90 (D.P.R.1997); see also United States v. Studley, 783 F.2d 934, 939 (9th Cir.1986) (...
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