Opinion
09 CR 00354 (SJF) (WDW).
August 25, 2009
OPINION ORDER
I. Introduction
Before the Court is a motion of defendant Roger Corbin ("Defendant" or "Corbin") pursuant to 28 U.S.C. § 455 and Canons 2(B) and 2(C) of the Code of Conduct for United States Judges seeking that I "immediately recuse [myself] in this matter and in all others in which [Defendant's counsel, Thomas F. Liotti ("Liotti")] may be involved." (Decl. in Supp. of Order to Show Cause ("Liotti Decl."), p. 10.) For the reasons set forth herein, the motion is denied.
Canon 2(B) provides that "[a] judge should not allow family, social, political, financial, or other relationships to influence judicial conduct or judgment. A judge should neither lend the prestige of the judicial office to advance the private interests of the judge or others nor convey or permit others to convey the impression that they are in a special position to influence the judge. A judge should not testify voluntarily as a character witness."
Canon 2(C) provides that "[a] judge should not hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion, or national origin."
II. The Charges Against Defendant
On May 5, 2009, the United States of America filed a complaint and affidavit in support of an arrest warrant against Corbin, an elected member of the Nassau County Legislature, for filing false tax returns and making a false statement to law enforcement agents. The following day, Corbin was arrested, arraigned and released on his own recognizance. On June 2, 2009, a grand jury returned a four (4) count indictment, charging Corbin with three (3) counts of knowingly making and subscribing false and fraudulent income tax returns, in violation of 26 U.S.C. § 7206(1), and one (1) count of making a materially false statement to law enforcement agents, in violation of 18 U.S.C. § 1001(a)(2).
III. Relevant Law
Pursuant to 28 U.S.C. § 455(a), a "judge . . . shall disqualify [herself] in any proceeding in which [her] impartiality might reasonably be questioned." 28 U.S.C. § 455(a). "[T]his test deals exclusively with appearances" and "[i]ts purpose is the protection of the public's confidence in the impartiality of the judiciary." United States v. Amico, 486 F.3d 764, 775 (2d Cir. 2007).
A judge shall also disqualify herself "[w]here [she] 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). To determine whether recusal is warranted under § 455(b)(1), the court "looks to extrajudicial conduct as the basis for making such a determination, not conduct which arises in a judicial context." Apple v. Jewish Hosp. and Med. Ctr, 829 F.2d 326, 333 (2d Cir. 1987) (citation omitted); see also In re Drexel Burnham Lambert Inc, 861 F.2d 1307, 1314 (2d Cir. 1988) (stating that "[a] determination of bias under this section must be based on extrajudicial conduct, not conduct arising in a trial setting").
"[R]ecusal motions are committed to the sound discretion of the district court." United States v. Lovaglia, 954 F.2d 811, 815 (2d Cir. 1992) (citing Apple, 829 F.2d at 333); see also Diamondstone v. Macaluso, 148 F.3d 113, 120 (2d Cir. 1998). "The judge to whom a recusal motion is addressed is presumed to be impartial . . . and there is a substantial burden on the moving party to show that the judge is not impartial." Burgie v. Euro Brokers, Inc., No. 05 Civ. 0968, 2007 WL 669608, at * 1 (E.D.N.Y. Feb. 28, 2007) (citation and quotation marks omitted).
"A judge considering recusal must balance the need for public confidence in the judiciary against the possibility that those questioning [her] impartiality might be seeking to avoid the adverse consequences of [her] presiding over their case." In re Certain Underwriter, 294 F.3d 297, 302 (2d Cir. 2002) (citation and quotation marks omitted). In addition, a judge "is as much obliged not to recuse herself unnecessarily as she is obliged to recuse herself when necessary." Id. (citation and quotation marks omitted).
The relevant inquiry is "`would an objective, disinterested observer fully informed of the underlying facts, entertain significant doubt that justice would be done absent recusal.'"Diamondstone, 148 F.3d at 121 (quoting Lovaglia 954 F.2d at 815);see also In re Basciano, 542 F.3d 950, 956 (2d Cir. 2008). Recusal is not warranted "on the basis of `remote, contingent, indirect or speculative interests.'" Diamondstone, 148 F.3d at 121 (quoting United States v. Thompson, 76 F.3d 442, 451 (2d Cir. 1996)); see also United States v. Morrison., 153 F.3d 34, 48 (2d Cir. 1998); Drexel, 861 F.2d at 1313.
IV. Analysis
A disinterested observer fully informed of the facts in this case would find no basis for defendant's motion, entertain no doubt of my impartiality and determine that recusal would, in fact, be a dereliction of my responsibility to discharge justice fairly and maintain the confidence of the public. See Diamondstone, 148 F.3d at 121. The allegations contained in Defendant's moving and reply papers are meritless, unsupported, and for the most part irrelevant (to say nothing of inaccurate, inconsistent and inappropriate) to a motion for recusal. The statements in Mr. Liotti's Declarations amount to little more than a risible rant. Suffice it to say that I bear no "ill-will" or "grudge" against, nor do I favor, any party or counsel in this prosecution.
Defendant seeks my recusal claiming, inter alia, that: (1) the "denial of [his] request [to adjourn the trial date] is ill-informed or ill-advised or for political reasons;" and (2) I "harbor a grudge" against Mr. Liotti. (Decl. in Supp. of Order to Show Cause ("Liotti Decl."), ¶¶ 7, 15.) Defendant also asserts that my purported inexperience and political affiliations "explain[] [my] lack of empathy for Mr. Corbin and the practical problems of defense counsel in preparing for trial under these circumstances" and that "the only ostensible reason for [my ruling] is to inconvenience this defense counsel and prejudice Mr. Corbin." (Id. at ¶ 14.)
Insofar as Defendant contends that my denial of his request to adjourn the scheduled trial date is a basis for recusal, it appears that he has conveniently ignored or did not comprehend the discussion following the denial of his adjournment request. Defendant also has failed to provide any relevant law on this point (or any other) as a basis for my recusal.
This may also be said of Defendant's reply statement in which he confuses legal argument with oral argument and contends that this is evidence of this Court's "prejudgment on the motion and the case itself." (Def.'s Mem. of Law in Supp. of Def.'s Mot. for Recusal, ("Reply Mem."), p. 1.); see also Rule 1(C) of this Court's Individual Rules (stating that "[n]o motions will be argued orally unless the Court so orders").
At the status conference on July 8, 2009, at the request of the Government and over Defendant's objection, this Court scheduled a trial date for October 19, 2009. When Mr. Liotti stated, inter alia, that Defendant "is in the process now in running in a primary election," which "impact[s] [Mr. Liotti's] ability to work with [Defendant] and . . . experts," (Tr. 3:20-25), and that he "just [didn't] think [that they will] be ready at that time," (Tr. 8:18-20), the Court informed Mr. Liotti twice that it would revisit the issue as the trial date approached, (Tr. 8:18-25-9:3), and explained that the trial date was scheduled to secure a position on the Court's calender in order to avoid a delay in the resolution of the charges looming over the defendant, (Tr. 7:20-24).
While Defendant alleges that I have "substantial prejudice" against him and Mr. Liotti, (Reply Decl. ("Liotti Reply"), ¶ 9), at the same status conference, prior to my setting the trial date, the Court granted Defendant's request for an extended briefing schedule, for which Mr. Liotti repeatedly thanked the Court. (Tr. 6:6-9.)
Although the Court indicated twice at the conference that it would entertain requests for adjournment closer to the trial date, Defendant immediately filed a letter requesting that the Court reconsider its scheduled trial date "as it will create extreme havoc for the defense if it is not immediately modified" claiming, inter alia, that: (1) Defendant "must spend nearly all of his time campaigning;" (2) he intends to file pre-trial motions to dismiss and suppress, on which hearings may be scheduled, transcripts may be ordered, and decisions must be rendered; (3) there is a pending interlocutory appeal of the Order dated June 1, 2009 by Judge Arthur D. Spatt, (Docket No. 23), with which, he alleges, this Court's ruling is "in conflict" and which "implicate[s] a change of venue application and possibly a recusal application as well; and (4) "we are attempting to resolve this case civilly and our forensic accountant is working with us and the Department of Justice to resolve these issues." (Docket No. 32, 09-MJ-00444). By letter dated July 20, 2009, the Government responded stating, inter alia, that: (1) it "stands ready to try this case on any date the Court selects;" and (2) "[c]ontrary to Mr. Liotti's claim, the [G]overnment is not working with any members of the defense team to reach a civil disposition of this criminal case, nor does it intend to do so in the future." (Docket No. 29.) On July 28, 2009, this Court denied Defendant's request. (Docket No. 33, 09-MJ-00444).
Defendant contends that the Court's denial of his request to adjourn the trial date "defeat[s]" the "rationale for Judge Spatt's decision" claiming, inter alia, that Judge Spatt "remarked that the average time from arraignment to trial in the Eastern District of New York in a criminal case is 18-19 months." (Liotti Reply ¶ 7). In fact, Judge Spatt's June 1, 2009 Order states that "the trial and jury selection in this matter is, with reasonable certainty based on past experience, at least six months away." (Docket No. 23, p. 9.)
Defendant did not refute the Government's contention at that time. He now claims, for the first time in his reply declaration and without any basis in fact or law, that (1) "without the cooperation of the federal government, [a forensic accountant retained in this case] has attempted to resolve this case administratively and also to file amended tax returns;" (2) Mr. Liotti has "written to the Attorney General of the United States on two occasions urging that this matter be resolved civilly without a continuing prosecution;" and (3) "[u]pon information and belief, several Congressmen have spoken with the Attorney General about this matter and he has promised to look into it" and "the President has also been contacted." (Liotti Reply ¶¶ 3, 5.) Defendant also raises for the first time in his reply memorandum and without any factual or legal basis that his counsel's office workload should be considered by this Court. (Reply Mem. pp. 1-2.)
Defendant further contends that my political history creates a basis for my recusal. As the Court of Appeals of the Second Circuit explained:
. . . a judge is not impartial solely because an attorney is embroiled in a controversy with the administration that appointed the judge. Judges generally have political backgrounds to one degree or another but must be presumed, absent more, to be impartial. At least in the federal system, judges separate themselves from politics when going on the bench, and their life tenure reduces any felt reliance on political patrons. Indeed, a suggestion of partiality based on the appointing administration may often be a double-edged sword. If a Democratic appointee's impartiality toward lawyers publicly identified as active Republicans may be questioned, a Republican appointee's impartiality toward lawyers' adversaries might similarly be questioned on the ground that a Republican judge might favor the Republican lawyers.MacDraw, Inc. v. CIT Group Equip. Fin., Inc., 138 F.3d 33, 38 (2d Cir. 1998) ("MacDraw II"); see also MacDraw, Inc. v. CIT Group Equip. Fin. Inc., 157 F.3d 956, 963 (2d Cir. 1998) ("MacDraw III") (stating "[a]s we noted in MacDraw II, it is intolerable for a litigant, without any factual basis, to suggest that a judge cannot be impartial because of his or her race and political background").
Defendant's contention that my recusal is warranted based upon my alleged "hostility" or "ill-will toward [Mr. Liotti]," which he claims is evidenced by previous rulings, decisions and events that occurred during prior proceedings, (Liotti Decl. ¶¶ 17-23), is unsubstantiated and without merit. As the United States Supreme Court explained:
First, judicial rulings alone almost never constitute a valid basis for a bias or partiality motion . . . in and of themselves (i.e., apart from surrounding comments or accompanying opinion), they cannot possibly show reliance upon an extrajudicial source; and can only in the rarest circumstances evidence the degree of favoritism or antagonism required (as discussed below) when no extrajudicial source is involved. Almost invariably, they are proper grounds for appeal, not for recusal. Second, opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. They may do so if they reveal an opinion that derives from an extrajudicial source; and they will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible.Liteky v. United States, 510 U.S. 540, 555-56, 114 S.Ct. 1147, 1157, 127 L.Ed.2d 474 (1994).
Morever, "[i]t has been held repeatedly that, except in rare circumstances, an alleged appearance of hostility between a judge and the lawyer for a party is not sufficient to warrant disqualification under 28 U.S.C. § 455." United States v. Oluwafemi, 883 F. Supp. 885, 891 (E.D.N.Y. 1995) (citing cases). "The hostility or bias must be so virulent and of such magnitude that it prejudices the judge against the attorney's client."United States v. Ahmed, 788 F. Supp. 196, 203 (S.D.N.Y. 1992) (citations omitted). Moreover, "bias against a lawyer, even if found to exist, without more is not bias against his client."Drexel, 861 F.2d at 1314 (citations omitted).
Defendant's remaining contentions are entirely baseless, irrelevant to a motion for recusal, and unworthy of further comment by this Court.
V. Conclusion
For the reasons stated herein, the motion of Defendant for recusal is DENIED.
SO ORDERED.