U.S. v. Nicholson

• Decision Date: 03 February 1997
• Docket Number: Criminal No. 96-448-A.
• Citation: 955 F.Supp. 582
• Court: U.S. District Court — Eastern District of Virginia
• Parties: UNITED STATES of America v. Harold J. NICHOLSON, Defendant.

Page 582

955 F.Supp. 582

UNITED STATES of America v. Harold J. NICHOLSON, Defendant.

Criminal No. 96-448-A.

United States District Court, E.D. Virginia, Alexandria Division.

February 3, 1997.

Helen F. Fahey, United States Attorney, for Plaintiff.

Jonathan Shapiro, Liam O'Grady, Washington, D.C., for Defendant.

MEMORANDUM OPINION

CACHERIS, District Judge.

This matter comes before the Court on Defendant Harold J. Nicholson's ("the Defendant") Motion requesting this Judge to recuse himself.¹ The Defendant is charged with Espionage, Attempted Espionage, and Conspiracy to Commit Espionage, all in violation of 18 U.S.C. § 794. Motions have been set for February 14, 1997, and Classified Information Procedures Act ("CIPA") hearings and trial have been set for March 3, 1997 and April 14, 1997, respectively.²

The basis for the Motion is Defendant's assertion that this Court's impartiality might reasonably be questioned because of this Judge's participation as a member of the United States Foreign Intelligence Surveillance Court ("FISA Court"), established under the Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. §§ 1801-1811 ("FISA"). Specifically, the Defendant asserts that this Judge should disqualify himself because: (1) this Judge authorized two FISA orders in this case, and should not be permitted to adjudicate the validity of those orders; (2) this Judge received ex parte communications during FISA proceedings, which will cause his impartiality during the trial and sentencing to be reasonably questioned; and (3) "this case will present the first constitutional challenge of the FISA Court's authority to order physical searches without conventional warrants" and thus should not be heard by this Judge, a sitting member of that Court. For the reasons set forth in this Opinion, this Motion is hereby DENIED.

I.

A litigant has two statutory bases to remove a judge from a case: 28 U.S.C. § 144 and 28 U.S.C. § 455. The Defendant brought this Motion pursuant to a provision within the latter, which provides that a judge "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." 28 U.S.C. § 455(a) (West 1996). The issue of recusal is assessed from the perspective of a reasonable man; disqualification is proper if a "reasonable factual basis [exists] for doubting the judge's impartiality." Rice v. McKenzie, 581 F.2d 1114, 1116 (4th Cir.1978). The Court properly hears this Motion; the statute provides that "a judge shall disqualify himself." 28 U.S.C. § 455 (emphasis added). The Court will now examine each of the Defendant's arguments in turn.

II.

The Defendant argues that, even if FISA is constitutional, the participation of this Judge in issuing two search authorizations should prevent him from hearing this case. The relevant case law indicates otherwise.

The Court does not know of any precedent directly assessing the effect of a trial judge having previously issued a FISA surveillance order. The Court's analysis will thus be guided by the most recent Supreme Court precedent concerning judicial recusal, as well as analogous instances in which the trial judge participated in preliminary proceedings.

Liteky v. United States, 510 U.S. 540, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994), stands as the Supreme Court's latest word on judicial recusal under section 455. In that case, a criminal defendant argued that the trial judge should have recused himself because his statements and rulings manifested "impatience, disregard for the defense, and animosity" towards the defendant. 510 U.S. at 542, 114 S.Ct. at 1151. In ruling against the defendant, the Supreme Court held:

[f]irst, judicial rulings alone almost never constitute valid basis for a bias or partiality motion.... 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.

510 U.S. at 555, 114 S.Ct. at 1157 (emphasis added).

As the First Circuit recently reiterated, "mere exposure to prejudicial information does not, in itself, establish the requisite factual basis" for recusal. United States v. Voccola, 99 F.3d 37, 42 (1st Cir.1996) (quoting United States v. Giorgi, 840 F.2d 1022, 1035 (1st Cir.1988)). Accordingly, "facts learned by a judge while acting in his judicial capacity cannot be the basis for disqualification." Union Independiente de Empleados de Servicios Legales v. Puerto Rico Legal Servs., Inc., 550 F.Supp. 1109, 1111 (D.P.R. 1982) (citing United States v. Patrick, 542 F.2d 381, 390 (7th Cir.1976), cert. denied, 430 U.S. 931, 97 S.Ct. 1551, 51 L.Ed.2d 775 (1977), and United States v. Bernstein, 533 F.2d 775, 785 (2d Cir.), cert. denied, 429 U.S. 998, 97 S.Ct. 523, 50 L.Ed.2d 608 (1976)); see also United States v. Gordon, 61 F.3d 263, 268 (4th Cir.1995). When sitting on the FISA Court, this Judge is properly "acting in his judicial capacity." See United States v. Johnson, 1990 WL 78522, at *7 (D.Mass. Apr. 13, 1990), aff'd, 952 F.2d 565 (1st Cir. 1991), cert. denied, 506 U.S. 816, 113 S.Ct. 58, 121 L.Ed.2d 27 (1992); United States v. Hovsepian, 1985 WL 5970, *3 (C.D.Cal. Jan. 28, 1985); United States v. Megahey, 553 F.Supp. 1180, 1196-98 (E.D.N.Y.1982), aff'd, sub nom United States v. Duggan, 743 F.2d 59 (2d Cir.1984). This Judge holds no opinions regarding this case based on his involvement in FISA proceedings, and certainly harbors none of the "deep-seated favoritism or antagonism" which would require recusal. See Liteky, 510 U.S. at 555, 114 S.Ct. at 1157.

The Court believes that the circumstances of the case at bar most closely resemble previous cases in which the trial judge had issued wiretap orders. Under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510, et seq., a judge decides whether to grant authority to wiretap the subject of an investigation in a manner similar to a FISA judge's review of search requests. Besides United States v. Zarowitz, 326 F.Supp. 90, 93-94 (C.D.Cal. 1971), which will be further analyzed below, this Court knows of no case in which a judge recused himself because of previously authorizing the wiretap which led to the defendant's arrest.

In one Title III case, the First Circuit held that the "mere fact" that the trial judge had authorized "some (or all) of the underlying intercepts" did not require recusal. Camacho v. Autoridad de Telefonos de Puerto Rico, 868 F.2d 482, 490 (1st Cir.1989). The court emphasized that "[n]othing about the fact that the judge signed the orders sought by federal officials would lead a reasonable person to question the jurist's impartiality." Id. at 491.³

On similar facts, the trial judge in United States v. Garramone had issued the order authorizing electronic surveillance of the eventual defendant. 374 F.Supp. 256, 259 (E.D.Pa.1974). The judge refused to recuse himself, ruling that "prior judicial exposure to the parties or questions [is] not sufficient to establish personal bias or prejudice." Id. at 258. That holding mirrors the Supreme Court's view as expressed in Liteky.

In other instances, courts have ruled that a judge need not recuse himself based on participation in pretrial proceedings related to wire tapping. The Second Circuit ruled proper a trial judge's refusal to recuse himself in a case in which he had "conducted an eleven-day hearing on the wire tapping." United States v. Foddrell, 523 F.2d 86, 87 (2d Cir.), cert. denied, 423 U.S. 950, 96 S.Ct. 370, 46 L.Ed.2d 286 (1975). The Fifth Circuit similarly held that a trial judge need not recuse himself based on his presiding at a pretrial suppression hearing regarding wiretap evidence. United States v. de la Fuente, 548 F.2d 528, 541 (5th Cir.) ("Merely presiding at a pretrial suppression hearing does not disqualify a judge from conducting the trial on the merits"), cert. denied sub nom. Stewart v. United States, 431 U.S. 932, 97 S.Ct. 2640, 53 L.Ed.2d 249, and sub nom. Sierra v. United States, 434 U.S. 954, 98 S.Ct. 479, 54 L.Ed.2d 312 (1977).

The Fourth Circuit has ruled that a trial judge need not testify as to when he gave an oral order to seal tapes of telephonic and oral conversations obtained via electronic surveillance. United States v. Diana, 605 F.2d 1307, 1316 (4th Cir.1979), cert. denied, 444 U.S. 1102, 100 S.Ct. 1067, 62 L.Ed.2d 787 (1980). Accordingly, the court held that the judge properly refused to recuse himself pursuant to 28 U.S.C. § 455. Id. In doing so, the Fourth Circuit implicitly ruled that a trial judge need not recuse himself in a case in which he granted an order to seal tapes.

The Fourth Circuit has also ruled recusal is not warranted in an instance in which a judge entered rulings on pretrial motions or presided over other parallel proceedings. See United States v. Parker, 742 F.2d 127, 128-29 (4th Cir.), cert. denied, 469 U.S. 1076, 105 S.Ct. 575, 83 L.Ed.2d 514 (1984). Though not expressly considering a motion to recuse, other courts have allowed the same judge to preside over the trial after having ruled on a pretrial motion to suppress materials obtained pursuant to FISA. See, e.g., United States v. Miller, 984 F.2d 1028, 1032 (9th Cir.), cert. denied, 510 U.S. 894, 114 S.Ct. 258, 126 L.Ed.2d 210 (1993).

The Defendant's reliance on Rice v. McKenzie, 581 F.2d 1114 (4th Cir.1978) is misplaced.⁴ In Rice, the Fourth Circuit held that a recently appointed federal district judge should not conduct Habeas Corpus review of a conviction over which he presided while still a state court judge. Id. at 1117. Certainly, the review of an entire case, as in Rice, is significantly different than any review this Court might be called on to conduct here. On a routine basis, district judges are called on to review their own decisions in numerous situations. These...