US v. Cutler

• Decision Date: 24 June 1992
• Docket Number: No. 91 CR 1189(TCP).,91 CR 1189(TCP).
• Citation: 796 F. Supp. 710
• Parties: UNITED STATES of America v. Bruce CUTLER, Defendant.
• Court: U.S. District Court — Eastern District of New York

796 F. Supp. 710

UNITED STATES of America v. Bruce CUTLER, Defendant.

No. 91 CR 1189(TCP).

United States District Court, E.D. New York.

June 24, 1992.

Andrew J. Maloney, U.S. Atty. by John J. Gallagher, Sp. Prosecutor, Corbin Silverman & Sanseverino, New York City, for U.S.

Frederick P. Hafetz, Susan R. Necheles, Robert Heilbrun, Goldman & Hafetz, New York City, for defendant.

MEMORANDUM AND ORDER

PLATT, Chief Judge.

Defendant has moved, pursuant to 28 U.S.C. § 455(a), to recuse all of the judges of the Eastern District of New York from presiding over his criminal contempt trial and to either transfer this action to the Southern District of New York or to a judge from the United States Court of Appeals for the Second Circuit. For the reasons that follow, defendant's motion must be denied.

BACKGROUND

This case has its genesis in the case United States v. John Gotti, et al., 90 CR 1051 (E.D.N.Y. Glasser, J.). Defendant served as Mr. Gotti's trial counsel in that case until July 1991 when Judge I. Leo Glasser disqualified defendant from serving as such. See United States v. Gotti, 771 F.Supp. 552 (E.D.N.Y.1991). Due to what he perceived to be numerous violations of Local Criminal Rule 7¹, Judge Glasser signed an order on November 4, 1991 appointing John Gallagher, pursuant to Federal Rule of Criminal Procedure 42(b) and the court's inherent authority, as the special prosecutor: to prosecute, on behalf of the United States, Bruce Cutler for criminal contempt in that Bruce Cutler intentionally and wilfully violated the orders of this court and Local Criminal Rule 7. In the event the prosecutor appointed hereby determines to initiate such prosecution, he shall specify the basis for the criminal contempt prosecution in an order to show cause.

On March 18, 1992, the special prosecutor requested that Judge Glasser sign an order to show cause as to why the defendant should not be held in criminal contempt. Judge Glasser signed this order on April 27, 1992 and on May 8, 1992, without providing any reasons, Judge Glasser recused himself from this case. Pursuant to Rule 50.4 of the Eastern District's Guidelines for the Division of Business, this case was then reassigned by random selection to this Court.

Defendant was arraigned on May 15, 1992 and entered a plea of "not guilty." Defendant then made the present motion requesting that this Court as well as the entire bench of the Eastern District of New York be recused from this matter pursuant to 28 U.S.C. § 455(a).

DISCUSSION

Defendant argues that recusal of the Eastern District is required because this District is functioning as both the prosecutor and the judge in this action. In defendant's view, this situation has arisen because Judge Glasser was the individual who initiated the criminal proceeding and because this Court will preside over the contempt trial and may in fact act as the jury since, as stated in the order, the punishment imposed may not exceed six months imprisonment. In addition, defendant argues that in the course of the contempt trial, this Court may have to judge the validity of Judge Glasser's "complaint" against defendant.

Furthermore, defendant argues that "should this case remain in the Eastern District of New York, `a reasonable person could question whether a judge in this district might be affected in ruling, either consciously or subconsciously, by friendship or a spirit of collegiality or because of the relationship of judges on the same bench.'" Defendant's Memorandum of Law at 7 (hereinafter "Defendant's Memo.") (quoting United States v. Singer, 575 F.Supp. 63, 68 (D.Minn.1983)). In support of this argument, defendant points to "the fact that in public perception there is animus between Judge Glasser and Mr. Cutler" which could result in the public doubting "the ability of Judge Glasser's close colleagues to be absolutely impartial." Defendant's Memo. at 8. Defendant argues that the perception of animus developed due to Judge Glasser's decision to disqualify defendant from acting as Mr. Gotti's trial counsel, defendant's subsequent public criticism of Judge Glasser and finally, Judge Glasser's decision to initiate this contempt proceeding.

Defendant is careful to note that he is not claiming that this Court or any other member of this District would not be impartial or that actual bias or impartiality exists; rather, defendant focuses on the appearance of impropriety raised by this case and "whether an objective observer would conclude that the strength of the personal and professional relationships between judges in the same district might, in this case, mitigate against complete impartiality." Id. at 9.

In response to the special prosecutor's argument that this motion is untimely and that defendant is "forum shopping," defendant counters that his intention to file this motion was made at the earliest possible time — at defendant's initial appearance before this Court. In addition, defendant also argues that it would not have been possible to make such a motion before the order to show cause was signed because there was no case pending before the order was signed and defendant did not know the substance of the order to show cause because it was submitted ex parte with defendant receiving a copy only after it was signed.

The special prosecutor argues against recusal of this Court and the Eastern District because the Second Circuit, in both United States v. Pilsbury, 866 F.2d 22 (2d Cir. 1989) and United States v. Lumumba, 794 F.2d 806 (2d Cir.), cert. denied, 479 U.S. 855, 107 S.Ct. 192, 93 L.Ed.2d 125 (1986), expressly approved of reassigning criminal contempt trials to another judge within the same district as the judge who held the defendants in contempt. In both cases, the Court had already found the defendants in contempt when the cases were remanded and the contemptuous conduct took place in front of the judge who initially found the defendants in contempt. The special prosecutor argues that the situation presented here differs because Mr. Cutler has not yet been found in contempt and consistent with the provisions of Federal Rule of Criminal Procedure 42(b), Mr. Cutler will be given an opportunity to be heard. Also, in this case the alleged contemptuous conduct took place outside of Judge Glasser's presence, thus avoiding the situations that arose in Pilsbury and Lumumba where the second judge had to pass on conduct that another judge had personally witnessed and determined contemptuous.

Recusal is also not warranted, the special prosecutor argues, simply because of the fact that the judges on this bench are colleagues of Judge Glasser. In addition, the special prosecutor asserts that defendant has not come forward with any facts demonstrating that any of the judges in this District could not handle this matter in an impartial manner. Finally, the special prosecutor charges defendant with forum shopping by filing the recusal motion in an untimely manner. According to the special prosecutor, defendant knew that an order to show cause might have been signed as early as November 1991, but defendant waited until the case was reassigned to this Court to file this motion. In the special prosecutor's opinion, this delay of over six months in waiting to file this motion violates the timeliness requirement that has been read into 28 U.S.C. § 455 in cases such as In re International Business Machines Corp., 618 F.2d 923, 932 (2d Cir. 1980).

Section 455(a) provides that a judge "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." The statute deals with situations in which there is actual bias or impartiality and situations in which the public might reasonably question the judge's impartiality. The statute embodies an objective standard and is "designed to promote public confidence in the impartiality of the judicial process." H.R.Rep. No. 1453, 93d Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Admin.News 6351, 6355. The aim of the statute was to set down a standard as to when recusal was appropriate, so as to increase public confidence in the judiciary, however, the statute was not designed to allow litigants to select their own judges. The legislative history cautioned: "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.... Litigants ought not to have to face a judge where there is a reasonable question of impartiality, but they are not entitled to judges of their own choice." Id.

Thus, with this background in mind, the Second Circuit has recently stated that in deciding a recusal motion, the following questions should be asked:

Would a reasonable person, knowing all the facts, conclude that the trial judge's impartiality could reasonably be questioned? Or phrased differently, would an objective, disinterested observer fully informed of the underlying facts, entertain significant doubt that justice could be done absent recusal?

United States v. Lovaglia, 954 F.2d 811, 815 (2d Cir.1992) (emphasis added; citations omitted). Thus, the focus is not on "the only partly informed man-in-the-street," In re Drexel Burnham Lambert Inc., 861 F.2d 1307, 1313 (2d Cir.1988), cert. denied, 490 U.S. 1102, 109 S.Ct. 2458, 104 L.Ed.2d 1012 (1989), and whether that individual would conclude that the judge is impartial, but rather the focus is on the reasonable person, who understands and knows all of the relevant facts, and whether that fully-informed individual would conclude that the judge is impartial. See id. (citations omitted); Singer, 575 F.Supp. at 67.

In United States v. Ferguson, 550 F.Supp. 1256 (S.D.N.Y.1982), Judge Edward Weinfeld determined that recusal was necessary. In that case, the defendants had filed numerous motions, including one to dismiss the indictment which was based, in part, on an allegation that the government had abused the...