United States v. Cohen

• Decision Date: 22 August 1986
• Docket Number: No. 84-20641.,84-20641.
• Parties: UNITED STATES, Plaintiff, v. Loy COHEN, Defendant.
• Court: U.S. District Court — Western District of Michigan

644 F. Supp. 113

UNITED STATES, Plaintiff, v. Loy COHEN, Defendant.

No. 84-20641.

United States District Court, E.D. Michigan, S.D.

August 22, 1986.

Thomas Ziolkowski, Asst. U.S. Atty., Detroit, Mich., for plaintiff.

Milton Henry, Detroit, Mich., for defendant.

OPINION AND ORDER

COHN, District Judge.

I.

This case involves a one count indictment for misprision of a felony in violation of 18 U.S.C. § 4. Defendant was initially charged as part of a twenty-four count indictment naming fourteen defendants for violations of various narcotics offenses. Defendant pleaded not guilty on July 23, 1985. Defendant's case was severed pretrial on November 12, 1985. On February 7, 1986, defendant entered into a written plea of guilty, Fed.R.Crim.P. 11, to the offense of possession of a small quantity of marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 844(b). On February 10, 1986, defendant tendered the plea in open court. I received and reviewed defendant's presentence report by June 5. On June 5, I requested of the Supervising Probation Officer additional information regarding the report's reference to defendant's $350,000 tax obligations.¹ On July 1, the United States Probation Officer filed a response to my request, being a personal financial statement by defendant. On July 3, I rejected the plea without explanation.

Defendant moved on July 23, 1986 to disqualify me for bias or prejudice pursuant to 28 U.S.C. § 144. Defendant argues that I am biased against him personally. He offers the affidavit of his attorney, who says that his long experience as an attorney and previous practice before this Court convinces him that his observations of my "demeanor," "tone of voice," and "countenance" toward defendant show that I hold personal animosity toward him and do not treat him with the same impartiality I have demonstrated toward all other defendants. In particular, defendant argues that my summary rejection of his plea offer is further evidence of my disposition against him. The affidavit indicates that defendant holds himself out to be a "mystic" and, after reading my "spiritual auras," has determined based on his "experience" and "spiritual development" that I am biased and prejudiced against him.

The motion is legally insufficient to require recusal. I further conclude that recusal is not appropriate because of any conceivable appearance of prejudice derived from my knowledge of defendant's tax obligations before I rejected the Rule 11 offer.

II.

A.

The affidavit, submitted by defendant's attorney rather than defendant himself, is insufficient under the statute. The statute requires "a party" to file the affidavit. This requirement is not met by an affidavit signed by an attorney. United States ex rel. Wilson v. Coughlin, 472 F.2d 100 (7th Cir.1973); Martelli v. City of Sonoma, 359 F.Supp. 397 (N.D.Cal.1973). Here, the affiant is defendant's attorney and the affidavit is signed only by the attorney.

The affiant does, however, relate facts purportedly "known" to defendant. Even if this affidavit is sufficient in form under the statute, the following discussion shows that it is not legally sufficient to require recusal.

B.

As an initial matter, there is the issue whether I am required to allow another member of this court to rule. The answer is no. The mere filing of an affidavit of personal bias and prejudice does not result in automatic disqualification of the judge against whom it is directed. Oliver v. Michigan State Board of Education, 508 F.2d 178 (6th Cir.1974), cert denied, 421 U.S. 963, 95 S.Ct. 1950, 44 L.Ed.2d 449 (1975); Albert v. United States Dist. Ct. for Western Dist. of Mich. Northern Div., 283 F.2d 61 (6th Cir.1960), cert. denied, 365 U.S. 828, 81 S.Ct. 713, 5 L.Ed.2d 706 (1961); see also Williams v. Kent, 216 F.2d 342 (6th Cir.1954). Pursuant to the statute's requirement that the "affidavit shall state the facts and the reasons for the belief" of bias or prejudice, I have "a duty to determine whether the statutory requirement has been met." Id., 283 F.2d at 62. I must "pass upon the legal sufficiency of the affidavit." Id.

C.

The truth of defendant's allegations is admitted, Saunders v. Piggly-Wiggly Corp., 1 F.2d 582 (D.Tenn.1924), and I must disqualify myself if the statutory standards are met even if I know the allegations to be false, Tynan v. United States, 376 F.2d 761 (D.C.Cir.), cert. denied, 389 U.S. 845, 88 S.Ct. 95, 19 L.Ed.2d 111 (1967).

Even if the affidavit is legally insufficient, however, I may in my discretion disqualify myself, Saunders, supra, and should do so if an examination of my conscience reveals bias or prejudice, or if I have doubts as to my impartiality, or for the sake of appearances, Smith v. Insurance Co. of North America, 213 F.Supp. 675 (M.D.Tenn.1962), aff'd in part, rev'd in part on other grounds sub nom. Trice v. Commercial Union Assurance Co., 334 F.2d 673 (6th Cir.1964), cert. denied, 380 U.S. 915, 85 S.Ct. 895, 13 L.Ed.2d 801 (1965).

III.

A.

Defendant first argues that my demeanor and statements to him indicate bias and prejudice. It is true that bias or prejudice on the part of a judge may exhibit itself prior to trial by his statements such that it will furnish a basis for disqualification to conduct the trial. Knapp v. Kinsey, 232 F.2d 458 (6th Cir.), reh'g denied, 235 F.2d 129, cert. denied, 352 U.S. 892, 77 S.Ct. 131, 1 L.Ed.2d 86 (1956). Unless bias or prejudice is pervasive, there must ordinarily be a showing of an extrajudicial source of the prejudice, United States v. Baker, 441 F.Supp. 612 (M.D.Tenn.1977). For example, my knowledge of facts contained in a presentence report that was properly brought to my attention is not a basis for disqualification. United States v. Montecalvo, 545 F.2d 684 (9th Cir.1976), vacating 533 F.2d 1110, cert. denied, 431 U.S. 918, 97 S.Ct. 2184, 53 L.Ed.2d 229 (1977); United States v. Sciuto, 531 F.2d 842 (7th Cir.1976) (information in probation report requires disqualification only if it causes judge to prejudge an issue of fact).

"Intemperate" statements, Johnson v. Trueblood, 629 F.2d 287 (3rd Cir.1980), cert. denied, 450 U.S. 999, 101 S.Ct. 1704, 68 L.Ed.2d 200 (1981), or evidence that I show "irritation" or emotions in common with other men, United States v. Valenti, 120 F.Supp. 80 (D.N.J.1954), or "vehement" statements, or bias claimed to derive from my background, Knapp, supra, do not require disqualification. Neither do statements made at plea hearings that do not appear to have arisen from an extrajudicial source. United States v. Bernstein, 533 F.2d 775 (2d Cir.) (comments made by judge at time of accepting guilty pleas of coindictees did not reveal prejudice against the remaining indictees), cert. denied, 429 U.S. 998, 97 S.Ct. 523, 50 L.Ed.2d 608 (1976).

The test is not subjective based on the affiant's observations, but is objective and depends upon whether a reasonable person would conclude I am biased or prejudiced against defendant. United States v. Story, 716 F.2d 1088 (6th Cir. 1983); Baker, supra. The affidavit must do more than assert bias and prejudice and must give fair and adequate support for the conclusion asserted. Story, supra; Saunders, supra. Mere conclusions and opinions are insufficient. Hodgson v. Liquor Salemen's Union, 444 F.2d 1344 (2d Cir.1971). Recusal is not required where the nature, time, conditions, and circumstances of the facts supposedly giving rise to bias are not asserted. Carbana v. Cruz, 595 F.Supp. 585 (D.P.R.1984), aff'd, 767 F.2d 905 (1st Cir.1985). Alleged statements and conclusory generalities about undescribed official gestures and expressions in the case are not properly grounds for disqualification. United States v. Civella, 416 F.Supp. 676 (W.D.Mo.1975). Any remarks of the court that are relied upon must be set forth in the affidavit. United States v. Hoffa, 245 F.Supp. 772 (E.D.Tenn. 1965).

The affidavit is insufficient to require recusal insofar as it is based upon my statements and expressions. The affidavit is conclusory as to such facts. Nor do the cases suggest recusal is required by defendant's perception, however unsupported, of my attitude in the case. Defendant's purported reading of my "aura" does not lend any greater support to the affidavit, for no reasonable person would objectively conclude from the facts alleged in the affidavit that I am personally biased toward defendant. In good conscience, I find no reason to recuse myself.

B.

The personal bias required by the statute requires antagonism or animosity towards the affiant, and the mere fact that a court rules adversely to a defendant during the course of a case does not establish "personal bias" or prejudice. Ex parte American Steel Barrel Co., 230 U.S. 35, 33 S.Ct. 1007, 57 L.Ed. 1379 (1913); Southerland v. Irons, 628 F.2d 978 (6th Cir.1980); Oliver, supra; Baker, supra.

In particular, my rejection of defendant's plea agreement, by itself, does not necessitate recusal. United States v. LeFrere, 553 F.Supp. 133 (C.D.Ill.1982). This is true even though I read defendant's presentence report before rejecting his plea. E.g., United States v. Bunch, 730 F.2d 517 (7th Cir.1984); United States v. Sonderup, 639 F.2d 294 (5th Cir.), cert. denied, 452 U.S. 920, 101 S.Ct. 3059, 69 L.Ed.2d 426, reh'g denied, 453 U.S. 928, 102 S.Ct. 892, 69 L.Ed.2d 1024 (1981); see also III ABA Standards for Criminal Justice § 14-3.3(b) at 14-81 n. 10 (1986). See discussion, infra, at Part IV. Further, Federal Rule of Criminal Procedure 11(e)(4) does not require that I announce my reasons for rejecting a plea offer, and therefore my failure to do so does not show personal bias or prejudice. Cf. United States v. Pastor, 419 F.Supp. 1318 (S.D.N. Y.1976) (court's delay in explaining pretrial decision, where it was not under obligation to file written opinion, could not be considered evidence of extrajudicial bias or prejudice warranting recusal). But see United States v. Ammidown, 497 F.2d 615, 622-23...