United States v. Totaro
| Decision Date | 22 November 2022 |
| Docket Number | 4:99-CR-40137-RAL |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. RONALD N. TOTARO, Defendant. |
| Court | U.S. District Court — District of South Dakota |
Defendant Ronald N. Totaro (“Totaro”) filed a Second Motion for Judicial Disqualification and Reconsideration of the Terms of Probation and Restitution, Doc. 757, and Motion for Preliminary Injunction (Temporary Restraining Order), Doc 760, after this Court increased his monthly restitution in the aftermath of granting Totaro's motion for compassionate release, Doc. 741. This Court denies the second motion to disqualify due to an absence of judicial bias denies the motion for reconsideration, and denies the motion for preliminary injunction (temporary restraining order) because the Federal Rule of Civil Procedure 65 standard is not met, and the motion essentially seeks reconsideration of a prior ruling.
I. Factual Background
In 2001, Totaro was convicted by a jury of 61 counts of mail fraud, wire fraud, money laundering, engaging in unlawful money transactions, and RICO racketeering. United States v. Totaro, No CR 99-40137-RHB, 2010 WL 883773, at * 1 (D.S.D. March 10, 2010). The convictions resulted from an “advance fee” scheme Totaro ran from 1984 until 1999 in which he scammed investors out of millions of dollars. United States v, Totaro, 40 Fed.Appx. 321, 322 (8th Cir. 2002). Prior to this scheme, Totaro had been convicted of mail fraud for a similar scheme in the Western District of New York in 1984. Id.
For these crimes, Totaro was sentenced to thirty years in prison and ordered to pay more than two million dollars in restitution.[1] Id. Thereafter, Totaro filed numerous motions, new lawsuits, and appeals seeking relief in this Court, the United States Court of Appeals for the Eighth Circuit, and Supreme Court of the United States.[2] In 2013, the undersigned judge was reassigned to Totaro's case after the retirement of the trial and sentencing judge, the Honorable Richard H. Battey. Doc. 695.
In March 2020, Totaro filed a compassionate release request in a parallel habeas action. Doc. 29 in 19-cv-4057-RAL. This Court dismissed the parallel habeas case on August 11, 2020, Doc. 33 in 19-cv-4057-RAL, and filed the same opinion and order in the present file, 4:99-cr-40137-RAL, denying the requested compassionate release, Doc. 718. While the habeas action was ongoing and considering the COVID-19 pandemic, the Bureau of Prisons (“BOP”) on June 3, 2020, transferred Totaro from FCI Fort Dix Camp to home confinement under the supervision of a halfway house, The Drapelick Center, Community Solutions, in Bloomfield, Connecticut. Doc. 725. He has lived with his wife since his release, who has been in treatment for cancer. Id.
Despite his release to home confinement, Totaro asked this Court again for compassionate release in September 2021, arguing that home confinement may still be withheld or revoked by the BOP. Doc. 725. Totaro contended his failing health, as well as his wife's cancer diagnosis and treatment plan, qualified as extraordinary and compelling reasons justifying compassionate release. Doc. 725. This Court initially denied Totaro's compassionate release request in December 2021, Doc. 735, but granted Totaro's second compassionate release request in March 2022, Doc. 741; Doc. 743. The Second Amended Judgment of Conviction accordingly ordered that Totaro be committed to a term of imprisonment of “[a]ll time served through the date of this Second Amended Judgment.” Doc. 743 at 2. As a condition of supervised release, this Court ordered that Doc. 743 at 3. The Second Amended Judgment carried through language from the original judgment for Totaro to make $200 monthly restitution payments. Doc. 743.
This Court, realizing that Totaro would hardly make a dent in the approximately two million dollars of restitution owed by paying $200 per month and that Totaro's early release might allow him to pay more in monthly restitution, ordered Totaro to show cause why his monthly restitution payments should not be increased. Doc. 742. The government, Doc. 751; Doc. 752, and Totaro responded, Doc. 745; Doc. 747; Doc. 754, with financial data and memorandums. Totaro claimed to have monthly income of $1,132 from social security payments. Doc. 745. He claimed his monthly expenses totaled $1,940, and that he gives his wife $1,000 each month. Doc. 745; Doc. 747. Totaro moved to suspend restitution payments. Doc. 750. Totaro also submitted a request to correct error in the record regarding the order granting him supervised release. Doc. 746. This Court denied those motions because Totaro's circumstances showed a better ability to pay now that he is on supervised release and because there was no actual error in the record. Doc. 755. Based on the briefing, this Court amended the judgment and ordered Totaro to pay $1,000 a month towards restitution. Doc. 755.
Totaro had previously filed motions for disqualification, Doc. 634; Doc. 736, which were denied, Doc. 636; Doc. 741. Totaro now has filed another motion for judicial disqualification and reconsideration of the terms of probation[3] and restitution, Doc. 757, and a motion for preliminary injunction (temporary restraining order), Doc. 760. For the reasons discussed below, this Court denies all pending motions.
Totaro contends this Court exhibited bias throughout his proceedings and therefore must recuse itself. Doc. 757. Totaro reiterates the arguments he made in his prior motion for judicial disqualification, Doc. 736, which was denied, Doc. 741. This Court will not retread old ground, and instead will focus on arguments not initially made in Totaro's prior motion. Besides his old arguments, Totaro points to a text order that he believes resulted in a letter in support being “disregarded” and the recent decisions issued in this case, specifically the orders denying his . motion to correct the record and increasing the amount of his monthly restitution payments. See generally Doc. 757-1 (describing all Totaro's arguments, including ones already addressed by this Court).
“Title 28, U.S.C. § 455 dictates the circumstances in which a judge must disqualify himself in a proceeding.” In re Kansas Pub. Emps. Ret. Sys. (In re KPERS), 85 F.3d 1353, 1358 (8th Cir. 1996). Subsection 455(a) requires a United States judge to disqualify himself[4] “in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). Subsection 455(b)(1) requires a judge to recuse himself when “he 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). The Eighth Circuit applies “an objective standard of reasonableness in determining whether recusal is required,” Am. Prairie Const. Co. v. Hoich, 560 F.3d 780, 789 (8th Cir. 2009), and has recast the issue as “whether the judge's impartiality might reasonably be questioned by the average person on the street who knows all the relevant facts of a case.” In re KPERS, 85 F.3d at 1358. Specifically, “(u]nder § 455(a), disqualification is required if a reasonable person who knew the circumstances would question the judge's impartiality, even though no actual bias or prejudice has been shown.” Fletcher v. Conoco Pipe Line Co., 323 F.3d 661, 664 (8th Cir. 2003) (). “This restriction is intended to promote public confidence in the integrity of the judicial process.” Moran v, Clarke, 296 F.3d 638, 648 (8th Cir. 2002) ().
The legislative history of 28 U.S.C. § 455(a) provides guidance forjudges who must decide whether to disqualify themselves:
[I]n assessing the reasonableness of a challenge to his impartiality, each judge must be alert to avoid the possibility that those who would question his impartiality are in fact seeking to avoid the consequences of his expected adverse decision. Disqualification for lack of impartiality must have a reasonable basis. Nothing in [§ 455(a)] should be read to warrant the transformation of a litigant's fear that a judge may decide a question against him into a “reasonable fear” that the judge will not be impartial. Litigants ought not have to face a judge where there is a reasonable question of impartiality, but they are not entitled to judges of their own choice.
In re KPERS, 85 F.3d at 1358-59 ().
“[A] judge is presumed to be impartial and the party seeking disqualification bears the substantial burden of proving otherwise.” United States v. Minard, 856 F.3d 555, 557 (8th Cir. 2017) (); see also United States v. Denton, 434 F.3d 1104, 1111 (8th Cir. 2006). “An unfavorable judicial ruling . .. does not raise an inference of bias or require the trial judge's recusal.” Harris v. Missouri, 960 F.2d 738, 740 (8th Cir. 1992) (citations omitted).
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