US v. Kehlbeck

• Decision Date: 20 July 1990
• Docket Number: No. IP 90-73-CR.,IP 90-73-CR.
• Parties: UNITED STATES of America, Plaintiff, v. Keith KEHLBECK, Defendant.
• Court: U.S. District Court — Southern District of Indiana

766 F. Supp. 707

UNITED STATES of America, Plaintiff, v. Keith KEHLBECK, Defendant.

No. IP 90-73-CR.

United States District Court, S.D. Indiana, Indianapolis Division.

July 20, 1990.

Richard Kammen, McClure, McClure & Kammen, Indianapolis, Ind., for plaintiff.

Larry Mackey, Asst. U.S. Atty., Office of U.S. Atty., Indianapolis, Ind., for defendant.

ENTRY ON DEFENDANT'S REQUEST FOR RECUSAL

TINDER, District Judge.

This matter comes before the court on a request by the defendant, Keith Kehlbeck, seeking recusal of the undersigned judge in this case pursuant to the provisions of 28 U.S.C. §§ 144 and 455(a). The request comes in the form of the defendant's sworn affidavit, which is accompanied by a certificate of good faith signed by counsel for the defendant. The defendant's affidavit sets forward the basis for the recusal motion in three paragraphs:

1. This cause has been assigned to the Honorable John D. Tinder. That the defendant and the Government had agreed upon a preindictment guilty plea and plea bargain.

2. That the defendant has had several social contacts of a nature which concern the defendant of John D. Tinder's ability to be fair and impartial in this cause. That these social contacts are of a nature that his impartiality in this matter might reasonably be questioned.

a. That most recently, the petitioner met with Hon. John D. Tinder and others at Dalt's restaurant, within the past nine months, when this matter was under investigation. That this matter was not discussed. However, because these contacts were social, and not completely superficial, petitioner is concerned that the Hon. John D. Tinder may entertain a bias against him or for him. That, in either event, it is inappropriate for the Hon. John D. Tinder to sit in judgment of this matter.

b. That an individual who may figure prominently in the disposition of this cause specifically Mr. Stuart Rhodes has upon information and belief, had significant social and perhaps political contacts with the Honorable John D. Tinder.

3. That based upon the foregoing, the defendant believes that under 28 U.S.C. 144 and 28 U.S.C. 455 that the Honorable John D. Tinder should recuse himself from this cause and that this cause be assigned to another District Judge.

Having considered the law on recusal and the affidavit submitted in support, this court now rules as follows:

A. Recusal under 28 U.S.C. § 144

Because the two recusal statutes relied upon by the defendant are not identical, this court addresses first the merits of recusal under § 144.¹ The mere filing of an affidavit under § 144 does not work the automatic recusal of the judge. Recusal can result only after the judge has ruled on the affidavit and has issued an order of recusal. The judge who is the object of the recusal motion may pass on the merits of motion. Berger v. United States, 255 U.S. 22, 36, 41 S.Ct. 230, 234, 65 L.Ed. 481 (1921) (Supreme Court rules that District Judge Kenesaw Mountain Landis may pass on sufficiency of affidavit seeking his recusal from treason criminal prosecution); 13A Wright, Miller & Cooper, Federal Practice & Procedure, § 3551, p. 633 (2d ed. 1984). Thus, the filing of an affidavit pursuant to § 144 is akin to the filing of a motion. Both require an order of the court to become effective. (Indeed, the defendant in this case entitled his affidavit a "request" for recusal, and "moved" for recusal in the body of the affidavit.)

Although recusal does not occur until a judge rules on the affidavit, the judge's role is a limited one. Upon the filing of an affidavit to recuse under § 144, the trial judge is called upon to decide only whether the affiant has met three requirements: (1) whether a party has made and filed a timely affidavit; (2) whether the affidavit is accompanied by a good faith certificate of counsel; and, (3) whether the affidavit is legally sufficient. If all three issues are resolved in the affiant's favor, then § 144 mandates that "such judge shall proceed no further therein."

The defendant has filed a timely affidavit as well as a good faith certificate of counsel, but recusal is still not proper under § 144 because the third requirement has not been met. In order to be legally sufficient, an affidavit must contain allegations of particularly stated material facts that are adequate to convince a reasonable person that personal bias against the affiant or in favor of an adverse party actually exists in the mind of the presiding judge. United States v. Jeffers, 532 F.2d 1101, 1112 (7th Cir.1976), aff'd in part & vacated in part, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977); Phillips v. Joint Legislative Comm., 637 F.2d 1014, 1019 (5th Cir. Unit A Feb. 1981), cert. denied, 456 U.S. 960, 102 S.Ct. 2035, 72 L.Ed.2d 483 (1982).

The requirement that facts be pleaded with particularity exists for a good reason. An opposing party may not bring forward contradictory facts; nor may the judge, despite the fact that he will often have personal knowledge of the events or circumstances at issue. Berger v. United States, 225 U.S. at 36, 41 S.Ct. at 234. The decision to recuse under § 144 is based only on the facts produced in the affidavit, and thus, is made without the benefit of the adversarial fact-finding process. Church of Scientology v. Cooper, 495 F.Supp. 455, 458 (D.C.Calif.1980) (even false allegations must be accepted as true under § 144). By removing from the judge's authority the power to resolve factual disputes, § 144 enables the judge who is the object of the recusal affidavit to retain the authority to pass judgment on its legal sufficiency. Because the affiant's version of the facts cannot be contested, the affiant is required to plead with particularity those facts that establish the judge's bias. As a corollary to this rule, the affiant's conclusional allegations, gossip, rumor, and speculation do not have to be accepted as true by the judge. Berger v. United States, 255 U.S. at 34, 41 S.Ct. at 233; United States v. Professional Air Traffic Controllers Org., 527 F.Supp. 1344, 1355 (N.D.Ill.1981); Action Realty Co. v. Will, 427 F.2d 843, 844 (7th Cir.1970).

In this case, most of the statements contained in Kehlbeck's affidavit fall into this later category, and need not be accepted as true by the undersigned. If the particularly pleaded facts were distilled from the affidavit, they would read as follows:

The defendant has had more than one social contact with John Tinder. On one occasion between September 25, 1989 and June 25, 1990, the defendant met with the undersigned and others at an Indianapolis restaurant. This matter was under investigation by the United States Attorney's Office at that time, but was not discussed between the defendant and the undersigned. In addition, a likely witness in this case, Stuart Rhodes, has come into contact with the undersigned on a social basis.

As discussed below, the rest of the statements in the affidavit are non-facts. In the first line of paragraph 2, the word "several" is a conclusional term that can be used to describe any number of social contacts above one. The bulk of paragraph two is nothing more than a conclusional statement of the defendant's belief regarding the undersigned's impartiality. Within paragraph 2(a) of the affidavit, the defendant characterizes his encounter with the undersigned at a restaurant as "social, and not completely superficial." While "social" is an adequate factual allegation, "not completely superficial" is an ambiguously negative description of the encounter. For example, a judge may not preside over a case in which his father appears as a defendant, but that does not mean the judge must recuse himself from a case simply because the defendant is characterized in an affidavit as "a man who is not childless." While it is implicit in such a negative statement that the defendant could be the judge's father, a properly worded affidavit should affirmatively state that the defendant is the judge's father.

This court has accepted as a fact that the defendant "met with" the undersigned at an Indianapolis restaurant.²

The rest of paragraph 2(a) of the affidavit contains the defendant's conclusional opinions about the effect of this encounter on the undersigned's impartiality. In paragraph 2(b) of the affidavit, the characterization of Rhodes' social contact with the undersigned as "significant" is conclusional. In that same paragraph, the defendant speculates that Rhodes has "perhaps political contacts" with the undersigned, but pleads no facts to support this speculation. All of paragraph 3 of the affidavit is conclusional.

Under § 144, the well-pleaded facts must show actual extra-judicial, personal bias or prejudice in order for recusal to be proper—the appearance of bias or prejudice is not sufficient. Contrast 28 U.S.C. § 455(a). Here, the well-pleaded facts are not legally adequate to convince a reasonable person that personal bias against the affiant or in favor of an adverse party actually exists in this court's mind. Rarely does a judge's mere acquaintance with a party or witness justify recusal. See, e.g., United States ex rel. Perry v. Cuyler, 584 F.2d 644 (3d Cir.1978), cert. denied, 440 U.S. 925, 99 S.Ct. 1257, 59 L.Ed.2d 480 (1979) (judge who had attended the funeral of murdered police officer could preside over the alleged murderer's criminal prosecution); United States v. Meyerson, 677 F.Supp. 1309 (S.D.N.Y.1988) (judge who had met defendant on only two occasions need not recuse from criminal case); Clay v. Doherty, 608 F.Supp. 295 (N.D.Ill.1985) (judge's acquaintance with key witness in civil rights case did not justify recusal); M.K. Metals, Inc. v. National Steel Corp., 593 F.Supp. 991, 994-95 (N.D.Ill.1984) (judge's friendship with the principal of a "think-tank" that was providing an expert witness to the defendant did not justify recusal); United States v. Conforte, 457 F.Supp. 641 (D.C.Nev.1978), aff'd, 624 F.2d 869, cert. denied, 449...