US v. Helmsley, 88 Cr. 219 (JMW).

• Decision Date: 27 March 1991
• Docket Number: No. 88 Cr. 219 (JMW).,88 Cr. 219 (JMW).
• Court: U.S. District Court — Southern District of New York
• Parties: UNITED STATES of America v. Leona M. HELMSLEY, Defendant.

760 F. Supp. 338

UNITED STATES of America v. Leona M. HELMSLEY, Defendant.

No. 88 Cr. 219 (JMW).

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

March 27, 1991.

Cathy Seibel, Asst. U.S. Atty., and Roger Hayes, Acting U.S. Atty., S.D.N.Y., New York City, for U.S.

Alan M. Dershowitz Cambridge, Mass., Nathan Z. Dershowitz, Dershowitz & Eiger, New York City, Sandor Frankel, Bender & Frankel, New York City, and Andrew Good and Harvey Silverglate, Silverglate & Good, Boston, Mass., for defendant.

MEMORANDUM OF LAW

WALKER, Circuit Judge.¹

Defendant Leona M. Helmsley moves to disqualify this judge from ruling on her motion for a new trial pursuant to Fed.R. Crim.P. 33. She argues, in substance, that hostility and antagonism demonstrated toward me by her lawyer prior to his representation of her makes it questionable whether I can act impartially in her case. Helmsley contends that my recusal is required under 28 U.S.C. § 455(a) and Canon 3 C(1) of the American Bar Association Code of Judicial Conduct.

Background

From June 26, 1989 to August 30, 1989, I presided over the criminal trial of Helmsley and two co-defendants. The jury found Helmsley guilty on thirty-three counts of tax evasion, filing false tax returns and mail fraud. On December 12, 1989, I imposed a sentence that included a term of imprisonment of four years and fines exceeding $7 million. Throughout the pre-trial, trial, post-trial and sentencing proceedings, Helmsley was represented by Gerald A. Feffer, Esq. and Williams & Connolly. Shortly after sentencing, Heimsley retained Alan M. Dershowitz, Esq. for her appeal and subsequent proceedings.

During the immediately preceding months, Mr. Dershowitz had been engaged in a public campaign in opposition to my nomination to the United States Court of Appeals for the Second Circuit. After I was nominated in September 1989, Mr. Dershowitz expressed his criticisms in newspapers columns, a letter to the New York Law Journal and interviews given to newspaper and magazine reporters. On November 7, 1989, at the Senate Judiciary Committee's confirmation hearing, Mr. Dershowitz asked to appear and testified in opposition to my appointment. The Judiciary Committee and the Senate voted unanimously to confirm my appointment and I was sworn in as a judge of the Court of Appeals on December 19, 1989.

In April 1990, Helmsley's co-defendants filed motions in the District Court to reduce their sentences. In so doing, they requested that Chief Judge Brieant assign their motions to me. Chief Judge Brieant asked me whether I was willing to resume handling the matter in the District Court. I agreed and the motions were then assigned to me.

On October 10, 1990, while her appeal from conviction was sub judice in the Court of Appeals, Helmsley filed a motion for a new trial pursuant to Rule 33 in the District Court. With her motion, she submitted a stipulation substituting Mr. Dershowitz and his colleagues for Mr. Feffer and Williams and Connolly as well as a motion to permit their appearance pro hac vice. The stipulation of substitution was "so ordered" before Judge Duffy in Part I. On October 10, 1990, Chief Judge Brieant asked me whether I would handle the new trial motion. I agreed to do so. On October 11, 1990, Chief Judge Brieant granted the pro hac vice motion and referred the motion for a new trial to me. Apparently, copies of Chief Judge Brieant's order of referral were not forwarded by his chambers to counsel for either side.

On December 13, 1990, at a conference, Helmsley, through Mr. Dershowitz, suggested that I recuse myself from the matter. While I concluded that nothing said at the conference seemed to warrant recusal, I set a schedule for the submission of motion papers. This motion followed.

Discussion

Section 455(a) provides that "any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned."

Helmsley argues that events surrounding her attorney's criticisms of me and his public opposition to my appointment to the Court of Appeals give rise to an appearance of bias on my part that requires my disqualification.

Helmsley does not contend that I in fact harbor bias, or will be motivated to rule against her out of resentment for her attorney's antagonism. Despite the absence of an allegation of actual bias, I address the question because I would recuse myself even in the absence of a motion if I believed I would have difficulty ruling impartially. In fact, I have no bias toward Helmsley or toward the conduct of her litigation through Mr. Dershowitz. I can perceive no danger that I would be influenced in any ruling by any feelings about Mr. Dershowitz or reaction to his conduct toward me.

In this regard I note two points. First, although it is never pleasant to be criticized, Mr. Dershowitz's opposition was not of major significance for me. He was alone in expressing opposition to my appointment.² There was no indication that any of the Senators who needed to pass on my confirmation gave any credence to his criticisms, which were consistent with his longstanding, widely known practice of criticizing judges.³ It appeared from one Senator's questioning that his criticisms may have been seen as motivated by a ruling I had made in a matter in which he was interested. See Part B, infra n. 5.

I therefore never regarded Mr. Dershowitz's hostile campaign as a cause for any concern. I did not feel that it required a response, and, apart from brief and neutral responses to a few Senators' questions at the hearing, I did not address or respond to his criticisms. In short, Mr. Dershowitz's attacks and criticisms have not been an important preoccupation for me.

Secondly, it is not at all unusual, given the combative nature of litigation for a judge to have an attorney before him with whom the judge has had prior acerbic relations. It is one of the earliest and most fundamental lessons of judging that a judge must rule on the merits without regard to the personality of the attorney or any unpleasant experiences the judge may have had with the attorney in the past. In fact, it is a standard part of a judge's instructions to the jury that any predisposition toward or against any attorney must be set aside in reaching a verdict. Jurors are directed to follow this instruction; judges follow it as a matter of course.

Thus, I have no reason whatsoever to question my ability to rule with impartiality on Mrs. Helmsley's motion. Whether she is represented by Mr. Dershowitz or any other lawyer, my ruling would be based on the merits. I therefore move on to Helmsley's contentions as to the appearance of partiality under § 455(a).

Section 455(a) is designed to "promote public confidence in the impartiality of the judiciary by saying, in effect, if there is a reasonable factual basis for doubting the judge's impartiality he should disqualify himself." H.R.Rep. No. 93-1453, 93d Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Admin.News 6351, 6355 ("House Report"). Section 455(a) was designed to abolish the so-called "duty-to-sit" rule, whereby a judge faced with close recusal questions was required to resolve them in favor of remaining on the case. See generally 13A Wright, Miller & Cooper, Federal Practice and Procedure § 3549, at 609-12 (2d ed. 1984). The test under § 455(a) therefore turns not only on whether the judge is actually biased or impartial, but also on whether to a reasonable observer the judge's impartiality would be open to question. Moreover, the reasonable observer is assumed to be possessed of all of the relevant facts and circumstances bearing on the question. See 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); Gilbert v. City of Little Rock, 722 F.2d 1390, 1399 (8th Cir.1983) cert. denied, 466 U.S. 972, 104 S.Ct. 2347, 80 L.Ed.2d 820 (1984).

Section 455(a) as presently drafted was amended in 1974 to conform to Canon 3 C(1) of the ABA Code of Judicial Conduct. See Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 858 n. 7, 108 S.Ct. 2194, 2201 n. 7, 100 L.Ed.2d 855 (1988). Canon 3 C(1) provides in pertinent part as follows:

A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where: (a) he has a personal bias or prejudice concerning a party ...

In amending § 455(a), however, Congress warned of a potential for abuse:

In 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 this proposed legislation 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.

House Report at 6355 (emphasis in original).

The potential for abuse by the litigant who desires to disqualify a judge because he fears an unwelcome decision by the judge on the merits was recognized by the Second Circuit in In re Drexel Burnham Lambert, 861 F.2d at 1313. The court stated that, when deciding a recusal motion, "the trial judge must carefully weigh the policy of promoting public confidence in the judiciary against the possibility that those questioning his impartiality might be seeking to avoid the adverse consequences of his presiding over their case." Id. at 1312 (citing In re United States, 666 F.2d 690, 695 (1st Cir.1981)).

The court added that "a judge is as much obliged not to recuse himself when it is not...