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United States v. Smith

United States District Court, N.D. Iowa, Eastern Division

July 5, 2017





         The matter before the court is Defendant Darrell Smith's “Motion to Recuse” (“Motion”) (docket no. 7).


         On May 22, 2017, a two-count Information (docket no. 2) was filed charging Defendant with (1) wire fraud in violation of 18 U.S.C. § 1343 and (2) aggravated identify theft in violation 18 U.S.C. § 1028A(a)(1). On that same date, Defendant filed a Waiver of Indictment (docket no. 3). Also on that date, Defendant filed a Notice Regarding Entry of a Plea of Guilty and Consent to Proceed Before a Magistrate Judge (docket no. 4).

         On June 18, 2017, Defendant filed the Motion, which seeks recusal of the undersigned pursuant to 28 U.S.C. §§ 144, 455(a)(1), (b)(1) and (b)(5). On June 23, 2017, the government filed a Resistance (docket no. 8). The Motion is fully submitted and ready for decision.

         III. ANALYSIS

         A. Actual Prejudice or Bias

         In the Motion, Defendant seeks recusal of the undersigned pursuant to 28 U.S.C. § 144. See Motion at 1. “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 . . . .” 28 U.S.C. § 144. “28 U.S.C. § 144 sets out the procedure to disqualify a judge for bias or prejudice.” In re Medlock, 406 F.3d 1066, 1073 (8th Cir. 2005). “[A] party must ‘make and file a timely and sufficient affidavit stat[ing] the facts and the reasons for the belief that bias or prejudice exists.'” Id. (alterations omitted) (quoting 28 U.S.C. § 144). “To be legally sufficient, an affidavit must allege bias or prejudice, and such ‘bias and prejudice to be disqualifying must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his [or her] participation in the case.'” United States v. Faul, 748 F.2d 1204, 1211 (8th Cir. 1984) (quoting United States v. Grinnell Corp., 384 U.S. 563, 583 (1966)). The affidavit “shall be accompanied by a certificate of counsel of record stating that it is made in good faith.” 28 U.S.C. § 144.

         Here, Defendant did not file an affidavit or a certificate of counsel as required by 28 U.S.C. § 144. “Relief under [§] 144 is expressly conditioned on the timely filing of a legally sufficient affidavit.” Holloway v. United States, 960 F.2d 1348, 1354-55 (8th Cir. 1992) (quoting Faul, 748 F.2d at 1210). Because Defendant has failed to comply with the statutory requirements, he is not entitled to relief on his claim of actual bias pursuant 28 U.S.C. § 144. See United States v. Young, 907 F.2d 867, 868 (8th Cir. 1990) (concluding “[t]he district court judge properly refused to recuse himself because [the defendant's] affidavit was untimely and legally insufficient”). The court further notes that, in the Brief in Support of Motion, Defendant makes no assertion that the court is personally biased or prejudice. See generally Brief in Support of Motion (docket no. 7-1).

         B. Appearance of Prejudice or Bias

         Defendant further argues that recusal is required pursuant to 28 U.S.C. §§ 455(a), 455(b)(1) and 455(b)(5). See Motion at 1. The court notes that, although Defendant asserts grounds for recusal under §§ 455(b)(1) and 455(b)(5), these statutes are not discussed in the Brief in Support of Motion. Therefore, Defendant has failed to carry his substantial burden of proving the undersigned should be disqualified on these bases. See United States v. Dehghani, 550 F.3d 716, 721 (8th Cir. 2008) (“Because a judge is presumed to be impartial, ‘the party seeking disqualification bears the substantial burden of proving otherwise.'” (quoting United States v. Denton, 434 F.3d 1104, 1111 (8th Cir. 2006)); Fletcher v. Conoco Pipe Line Co., 323 F.3d 661, 664 (8th Cir. 2003) (“A party introducing a motion to recuse carries a heavy burden of proof . . . .” (quoting Pope v. Fed. Express Corp., 974 F.2d 982, 985 (8th Cir. 1992))). The court will proceed to consider Defendant's argument under 28 U.S.C. § 455(a) as it is the sole basis for recusal discussed in Defendant's brief. However, because the facts asserted by Defendant in the Brief in Support of Motion are applicable to 28 U.S.C. § 455(b)(5)(iii), the court will proceed out of an abundance of caution and consider whether recusal pursuant to such statute as well as § 455(a) is appropriate.

         “Any . . . judge . . . of the United States shall disqualify [her]self in any proceeding in which [her] impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). “Section 455(a) sets forth an objective standard for assessing a judge's duty to recuse; the question is whether the judge's impartiality might reasonably be questioned by the average person on the street who knows all the relevant facts of a case.” United States v. Melton, 738 F.3d 903, 905 (8th Cir. 2013) (internal quotation marks omitted) (quoting Moran v. Clarke, 296 F.3d 638, 648 (8th Cir. 2002) (en banc)). “Section 455(a) was designed to promote public confidence in the integrity of the judicial process by replacing the subjective ‘in h[er] opinion' standard with an objective test.” United States v. Tucker, 78 F.3d 1313, 1324 (8th Cir. 1996) (quoting Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 858 n.7 (1988)). When considering Defendant's claim,

the undersigned will . . . keep in mind that (1) it is important that a judge be and appear impartial and (2) it is equally important that a judge not recuse unless required to do so or it would be too easy for those who seek a judge who is favorable to their case to disqualify those judges that they ...

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