US v. Burger

• Decision Date: 22 August 1991
• Docket Number: No. 91-40002-01,91-40002-03.,91-40002-01
• Citation: 773 F. Supp. 289
• Parties: UNITED STATES of America, Plaintiff, v. Thomas A. BURGER, James R. Cruce, Defendants.
• Court: U.S. District Court — District of Kansas

773 F. Supp. 289

UNITED STATES of America, Plaintiff, v. Thomas A. BURGER, James R. Cruce, Defendants.

Nos. 91-40002-01, 91-40002-03.

United States District Court, D. Kansas.

August 22, 1991.

Lee Thompson, U.S. Atty., Richard L. Hathaway, Asst. U.S. Atty., for U.S.

Dennis W. Moore, Overland Park, Kan., Sam Rosenthal, Curtis Mallet-Prevose, Colt & Mosle, pro hac vice, Washington, D.C., for Thomas A. Burger.

Mark L. Bennett, Jr., Glenda L. Cafer, Bennett, Dillon & Callahan, Topeka, Kan., for James R. Cruce.

MEMORANDUM AND ORDER

SAFFELS, Senior District Judge.

This matter is before the court on the motions of defendant Thomas A. Burger ("defendant Burger") and defendant James R. Cruce ("defendant Cruce") for recusal; defendant Burger's motion for reconsideration of this court's order denying his motion to withdraw his plea or for resentencing and to dismiss the Indictment; defendant Burger's motion for a Franks hearing; and defendant Burger's motion for bail pending disposition of the motion for reconsideration, or pending appeal. Also before the court is defendant Cruce's motion for reconsideration, and to vacate the sentence and for resentencing.

Defendants Burger and Cruce pled guilty to certain counts contained in an indictment returned on January 10, 1991. This Indictment charged defendants with conspiring to obtain monies from Peoples Heritage Federal Savings and Loan ("Peoples Heritage") by false or fraudulent pretenses in violation of 18 U.S.C. § 1344; making false, fictitious and fraudulent statements in violation of 18 U.S.C. § 1001; and 23 counts of bank fraud in violation of 18 U.S.C. § 1344.

On April 17 and 23, 1991, the court accepted defendants Cruce and Burger's guilty pleas. Following the preparation of the Presentence Investigation Reports by the United States Probation Office, both defendants contested the recommendation that the United States Sentencing Guidelines ("Sentencing Guidelines"), as amended in 1988, and 1989, were applicable to the defendants' sentences. Subsequently, defendants Burger and Cruce filed motions requesting that they be sentenced under the Sentencing Guidelines effective during November 1988, or in the alternative, that they be allowed to withdraw their guilty pleas. On July 31, 1991, this court issued a Memorandum and Order in which it denied defendants' motions. Both defendants were sentenced on August 1, 1991, under the amended Sentencing Guidelines. Defendant Burger was sentenced to 12 years imprisonment and was ordered to pay $6,000,000 in restitution. Defendant Cruce was sentenced to 14 years imprisonment and was ordered to pay $8,000,000 in restitution. Defendants now contend that the court's previous ruling and sentences imposed were based upon improper ex parte contact between the prosecution and the court. Thus, defendants contend this court should recuse itself, and vacate its sentences as imposed on August 1, 1991.

MOTIONS TO RECUSE OR DISQUALIFY

Defendants move the court to recuse itself pursuant to 28 U.S.C. §§ 144 and 455. Whether to recuse itself is a matter within this court's discretion. Weatherhead v. Globe Int'l, Inc., 832 F.2d 1226, 1227 (10th Cir.1987); Hinman v. Rogers, 831 F.2d 937, 938 (10th Cir.1987). Title 28, United States Code, Section 144 provides:

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....

In determining whether the affidavits are sufficient to establish that a judge has a personal bias or prejudice against him or in favor of an adverse party, the court must accept the truth of the facts alleged. Hinman, 831 F.2d at 939 (citing United States v. Gigax, 605 F.2d 507, 511 (10th Cir.1979)). Nonetheless, "conclusions, rumors, beliefs, and opinions are not sufficient to form a basis for disqualification." Hinman, 831 F.2d at 939. Further, the affidavit must state with particularity the "facts of time, place, persons, occasion, and circumstances." Id. Finally, the "affidavit is strictly construed against the affiant, and there is a substantial burden on the moving party to demonstrate the judge is not impartial." Id.

A different standard for recusal applies under 28 U.S.C. § 455. Under this section, the applicable test is "whether a reasonable person, knowing all the relevant facts, would harbor doubts about the judge's impartiality." United States v. Hines, 696 F.2d 722, 728 (10th Cir.1982). Under this provision, the factual allegations contained in the affidavit do not have to be taken as true. Hinman, 831 F.2d at 939 (citing United States v. Greenough, 782 F.2d 1556, 1558 (11th Cir.1986)). Moreover, a court is not limited to those facts asserted in the affidavit. Hinman, 831 F.2d at 939 (citing Gilbert v. Little Rock, 722 F.2d 1390, 1398 (8th Cir.1983) (judge may consider all the circumstances)).

Upon consideration of the defendants' motions and applicable law, the court finds that the defendants' motions for recusal should be denied. First, and perhaps of foremost importance, the court finds that the basis upon which defendants' motions are founded, i.e., that ex parte contact occurred between the court and the prosecution thereby prejudicing the court against the defendants, is faulty. Quite simply, no ex parte communication occurred between the prosecution and the court. Black's Law Dictionary defines ex parte as "on one side only; by or for one party; done for, in behalf of, or on the application of, one party only." The affidavits filed by both defendants allege improper contact between the court and the FDIC and RTC. However, the court finds that the letters complained of by the defendants are letters from the victim of the defendants' crimes, not from the prosecution. Thus, even assuming the factual allegations contained in the affidavits are true, the facts simply do not support that any ex parte contact occurred between the court and the prosecution. Indeed, the letters are part of the victim impact aspect of the presentence investigation which the probation office is statutorily required to investigate and request.¹ See 18 U.S.C. §§ 3663 and 3664. Letters such as these are routinely received by the court and are forwarded to the United States Probation Office so that a proper investigation may be conducted in accordance with the Congressional mandate that the impact on the victim be assessed.² Subsequently, allegations contained in such letters are then either excluded or included in the Presentence Investigation Report so that the parties have a chance to dispute and refute any factual allegations. This was the manner in which the letters from the FDIC and its Chairman, L. William Seidman were handled.

Further, the court finds that defendants' affidavits contain no statements made by this court which would indicate that it is biased toward either side in this case, or that it was relying upon allegations contained in the letters in dispute. Rather, the defendants' complaints center around the court's previous rulings. Recusal may not be based upon judicial bias, i.e., the judge's view of the law. Rather, it must be personal. As the Tenth Circuit has stated, "a motion to recuse cannot be based solely on adverse rulings." Willner v. Budig, 848 F.2d 1032, 1035 (10th Cir. 1988), cert. denied, 488 U.S. 1031, 109 S.Ct. 840, 102 L.Ed.2d 972 (1989) (citing Willner v. University of Kansas, 848 F.2d 1023, 1028 (10th Cir.1988) (per curiam), cert. denied, 488 U.S. 1031, 109 S.Ct. 840, 102 L.Ed.2d 972 (1989)); See also Antonello v. Wunsch, 500 F.2d 1260, 1262 (10th Cir. 1974); United States v. Story, 716 F.2d 1088, 1090 (6th Cir.1983). Moreover, rumors, beliefs, conclusions and opinions are not sufficient to form a basis for disqualification. Hinman, 831 F.2d at 939.

The court finds that defendants' affidavits contain speculation and unfounded conclusions. Further, any personal knowledge of the facts of this case held by the court was derived solely from presiding over a lengthy trial of codefendants. Personal knowledge derived from presiding over a trial of codefendants may be considered by a court when imposing a sentence. See United States v. Beaulieu, 893 F.2d 1177, 1179 (10th Cir.1990), cert. denied, ___ U.S. ___, 110 S.Ct. 3302, 111 L.Ed.2d 811 (1990). Thus, defendants' motions for recusal due to personal bias resulting from ex parte contact under 28 U.S.C. § 144 must fail.

Moreover, when applying the standard for recusal under 28 U.S.C. § 455, the court finds that in this case, a reasonable person knowing all the relevant facts would not harbor doubts about the judge's impartiality. The court finds that its earlier ruling which denied the defendants' motions for sentencing under the 1988 Sentencing Guidelines, or in the alternative, to withdraw their guilty pleas, was based upon express findings contained in its Memorandum and Order filed on July 31, 1991. Clearly, the finding made by the court that the defendants should be sentenced according to the Sentencing Guidelines, as amended, was based upon two factors, namely that the defendants pled guilty to a conspiracy continuing up until the issuance of the Indictment on January 10, 1991, and that the defendants continued their involvement in the conspiracy beyond the effective dates of the amended guidelines. See United States v. Morrison, 938 F.2d 168 (10th Cir.1991) (citing United States v. Broce, 488 U.S. 563, 570, 109 S.Ct. 757, 762-63, 102 L.Ed.2d 927 (1989)); see also United States v. Edgecomb, 910 F.2d 1309, 1312 (6th Cir.1990) ("If defendant disagreed with the dates of the scheme, he should have attempted to negotiate a change in the plea agreement"). This...