U.S. v. Hatchett, 92-1065

• Decision Date: 15 October 1992
• Docket Number: No. 92-1065,92-1065
• Parties: NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. UNITED STATES of America, Plaintiff-Appellee, v. Elbert L. HATCHETT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1259

978 F.2d 1259

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

UNITED STATES of America, Plaintiff-Appellee, v. Elbert L. HATCHETT, Defendant-Appellant.

No. 92-1065.

United States Court of Appeals, Sixth Circuit.

Oct. 15, 1992.

Before BOYCE F. MARTIN, Jr. and BOGGS, Circuit Judges, and CONTIE, Senior Circuit Judge.

PER CURIAM.

Defendant, Elbert L. Hatchett, who was convicted on four counts of failure to pay income tax, appeals the district court's denial of his motion to reduce his sentence and to disqualify the trial judge from considering the motion to reduce his sentence.

I.

Attorney Elbert L. Hatchett was indicted on October 28, 1988, for three felony counts and five misdemeanor counts for failing to pay his income taxes. On March 31, 1989, a jury acquitted Hatchett of all the felony counts, but found him guilty on four of the five misdemeanor charges of willful failure to pay income tax. Hatchett was sentenced to one year in jail and a $25,000 fine on each of three counts. On the fourth count, his sentence was suspended and he was placed on five years probation in addition to a $25,000 fine. The court ordered that all the sentences run consecutively for a total three year jail sentence. ¹

Hatchett filed a notice of appeal and sought to continue his bond pending appeal. The district court determined, however, that Hatchett's appeal did not raise a substantial question that would likely result in reversal of his conviction. This court overturned the district court's decision and ordered that Hatchett's bond be reinstated.

On November 11, 1990, this court affirmed Hatchett's conviction, and Hatchett's petition for rehearing en banc was denied. On June 17, 1991, the Supreme Court denied Hatchett's petition for writ of certiorari. While this writ was pending, Hatchett accepted a position as defense counsel in a criminal trial before a different judge in the United States District Court for the Eastern District of Michigan. (Case No. 90-CR-80166). This trial lasted from April 1991 to August 1991 and, pursuant to a stipulation of the parties, Hatchett was permitted to remain free on bond until the trial was concluded. On August 8, 1991, Hatchett's client was convicted. Hatchett sought to extend the time he had to report to prison by sixty days in order to deal with post-trial matters. Both Hatchett and the United States Attorney stipulated to extend the report date to October 28, 1991. However, Hatchett's attorney never filed the stipulation with the district court and the order was never signed by the judge. Accordingly, the district court ordered Hatchett to report to prison by August 27, 1991. The defendant is currently incarcerated at the Federal Prison Camp in Goldsboro, North Carolina.

On October 15, 1991, Hatchett filed a motion for reduction of sentence pursuant to Fed.R.Crim.P. 35(b) and a motion to disqualify the trial judge pursuant to 28 U.S.C. § 455(a) or, in the alternative, to refer the motion to disqualify to a different district court judge for decision. On December 17, 1991, the district court denied Hatchett's motions. He filed a timely notice of appeal on January 8, 1992.

II.

Defendant first argues that this court, under its supervisory authority, should establish a procedural rule whereby all motions to disqualify a trial judge must be assigned to a judge other than the judge in question. For the following reasons we disagree with the defendant's proposal.

Although this court does have the supervisory power to promulgate procedural rules to manage litigation, it cannot adopt any rule which would violate either a statutory or constitutional provision. Thomas v. Arn, 474 U.S. 140, 148 (1985). In Thomas, the Supreme Court upheld a Sixth Circuit rule which provided that a failure to file objections to a report and recommendation of a United States Magistrate within ten days would constitute waiver of the right to appeal the district court's order. See United States v. Walters, 638 F.2d 947 (6th Cir.1981). The Court upheld the rule because it found that nothing in the Federal Magistrate Act, 28 U.S.C. § 636(b)(1)(C), or in its legislative history, demonstrated that Congress intended to forbid such a rule. Thomas, 474 U.S. at 152. Furthermore, the Court found that the Walters rule was not inconsistent with the purposes of the Act. Id.

In the case at hand, however, the rule proposed by the defendant is at odds with the statute governing disqualification. The statute, codified as amended at 28 U.S.C. § 455(a), states:

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

Id. (emphasis added). The statute is addressed to the trial judge who is the subject of the motion to disqualify, and requires that the judge disqualify himself from the proceeding. The use of the imperative "shall disqualify himself" further demonstrates that the decision is placed squarely in the hands of the questioned judge himself. See Roberts v. Bailar, 625 F.2d 125, 128 (6th Cir.1980) (section 455 is self-executing, requiring a biased judge to disqualify himself even where no motion to disqualify has been filed by a party). The legislative history adds support to the position that the district judge, on his own, is to decide motions to disqualify, as Congress frequently noted that the judge "himself" was to decide the motions. H.R.Rep. No. 1453, 93d Cong., 2d Sess. 4-5, reprinted in 1974 U.S.C.C.A.N. 6351, 6354, 6355. Since the appellant's proposed rule seeks to allow the decision to be made by a judge other than the one in question, it appears to contravene section 455(a). We have no authority to establish such a rule.

At least one court, however, has held that a judge, at his option, may transfer a section 455 motion to another judge for decision. United States v. Heldt, 668 F.2d 1238, 1271 (D.C.Cir.1981), cert. denied, 456 U.S. 926 (1982); United States v. Haldeman, 559 F.2d 31 (D.C.Cir.1976) (Under section 455 the transfer to another judge for decision is "at most permissive."), cert. denied, 431 U.S. 933 (1977); see also Levitt v. University of Texas, 847 F.2d 221, 226 (5th Cir.) (If the judge determines that the claim is within § 455, then "a disinterested judge must decide what the facts are."), cert. denied, 488 U.S. 984 (1988).

Even if some courts allow the questioned judge to transfer the section 455 motion to another judge, the case law makes clear that he is not required to make such a transfer, and it is entirely proper for the challenged judge to pass on the matter himself. In re Corrugated Container Antitrust Litigation, 614 F.2d 958, 963 n. 9 (5th Cir.), cert. denied, 449 U.S. 888 (1980); United States v. Professional Air Traffic Controllers Org., 527 F.Supp. 1344, 1351-52 (N.D.Ill.1981). "While the statute undoubtedly permits referring the disposition of a [section 455 motion] ... to another judge," the adoption of a procedure requiring the judge to refer a motion to another judge "would be unwise." In re Corrugated Container, 614 F.2d at 963 n. 9 (citing United States v. Azhocar, 581 F.2d 735, 738 (9th Cir.1978), cert. denied, 440 U.S. 907 (1979)). Therefore, even if the questioned judge is not required to rule on the section 455 motion, he certainly has the discretion to make such a decision himself. Any rule that requires the motion to disqualify to be reassigned to another judge would violate section 455 as interpreted by the courts.

In the alternative, Hatchett asks this court to establish a rule granting an automatic right to appeal an adverse decision on a motion to disqualify to the chief judge of the district. We do not believe it is necessary to add another layer of procedure to these cases as parties are adequately protected by appealing such adverse decisions directly to this court. We, therefore, reject Hatchett's second proposed rule.

III.

The defendant next argues that the district court erred in denying his section 455 motion because he adequately demonstrated the existence of bias sufficient to warrant disqualification. We disagree. "A recusal motion is committed to the sound discretion of the district judge, and on appeal we ask only whether he has abused his discretion." In re M. Ibrahim Khan, 751 F.2d 162, 165 (6th Cir.1984).

Under 28 U.S.C. § 455(a) a judge must disqualify himself "in any proceeding in which his impartiality might reasonably be questioned." Subsection (a) establishes an objective standard "so that a judge should disqualify himself only if there is a reasonable factual basis for doubting his impartiality." In re M. Ibrahim Khan, 751 F.2d at 164; Roberts v. Bailar, 625 F.2d at 129. Prejudice or bias sufficient to justify recusal must be personal or extrajudicial. In re M. Ibrahim Khan, 751 F.2d at 164. "Personal bias is prejudice that emanates from some source other than participation in the proceedings or prior contact with related cases." United States v. Nelson, 922 F.2d 311, 319-20 (6th Cir.1990), cert. denied, 111 S.Ct. 1635 (1991). Personal bias may arise from the judge's background or associations which "results in an opinion on the merits on some basis other than what the judge learned from participation in the case." Id. Personal bias finding its source in the judge's view of the law is not sufficient to warrant disqualification. United States v. Story, 716 F.2d 1088, 1090 (6th Cir.1983).

In the case at bar, Hatchett cites as evidence of the judge's personal bias the following occurrences: (1) the harsh three year jail sentence; (2) the cancellation of bond and the subsequent reversal of the cancellation; and, (3) the refusal to grant Hatchett's motion to extend the time to report to prison. However, these examples of alleged...