BESOSA, District Judge.
On April 5, 2011, defendants filed a joint motion for a new trial and the recusal of the undersigned for future proceedings. (Docket No. 477.) The government filed its opposition to defendants' joint motion on May 9, 2011. (Docket No. 483.) Defendant Martinez filed a supplemental motion on May 11, 2011 (Docket No. 484), both defendants filed replies (Docket Nos. 488 and 489), the government filed a sur-reply (Docket No. 492) and defendants filed a sur-reply to the government's sur-reply (Docket No. 495).
For the reasons expressed below, the Court
Defendants move for recusal of the undersigned pursuant to 28 U.S.C. §§ 144, 455(a), 455(b)(1), and 455(b)(5)(iii). They allege that the undersigned's impartiality is in question because in 1993, when the undersigned's wife, the Honorable Enid Martinez-Moya, was nominated to be the Attorney General of Puerto Rico by then—Governor Pedro Rossello, her confirmation was not recommended by then—Senator Freddy Valentin, who was, at the time, the Chairman of the Senate's Nominations Committee, and who later, in 1994, employed defendant Martinez. (Docket No. 477 at 2-4.) The Senate did not confirm Ms. Martinez-Moya. Defendants claim that the undersigned never disclosed anything about those events, which took place eighteen years ago; that the connection between Valentin and defendant Martinez became a very important issue in the case; and that the undersigned made rulings against defendant Martinez directly involving matters concerning Valentin during trial that must now be called into question. Id. In the supporting affidavit filed by defendant Martinez, he admits that at the time the events between Valentin and the undersigned's wife occurred, defendant Martinez "was just 24 years old, and was not working for then-Senator Valentin and [] had nothing to do with the nomination or its review or with Senator Valentin's opposition and action." (Docket No. 477-1 at 3.) Defendants also allege that in the criminal case filed against former Senator de Castro-Font, the undersigned made rulings in favor of de Castro-Font because in 2005, de Castro-Font voted to confirm the undersigned's wife's nomination to the judgeship which she still occupies. (Docket No. 477 at 2-4.) In his supporting affidavit, defendant Martinez states that in 2005, he, as a Senator, also voted to confirm the undersigned's wife to be a Superior Court Judge. (Docket No. 477-1 at 3.)
Defendants also challenge rulings made by the undersigned, claiming that they resulted from a bias still harbored by the undersigned towards Valentin and that bias spilled over to defendant Martinez. Defendants identify and contest a number of issues that arose in pre-trial proceedings and during the course of trial, including the following: denying defendants' Rule 12 motion to dismiss, which allowed, in part, the government to pursue the section 666 counts against defendants; granting the government's request for an anonymous jury; questioning witnesses in front of the jury; making critical and disapproving comments towards defendants' counsel; engaging in independent legal research; finding admissible a transcript of defendant Martinez's 1999 grand jury testimony; rejecting defendants' proposed
The statute reads, in its entirety:
This recusal statute requires a district judge to accept the moving party's affidavit as true, even though it may contain averments that are false and known to be so to the judge. In re Martinez-Catala, 129 F.3d 213, 218 (1st Cir.1997). While a trial judge may not pass upon the truth of the matters asserted in the moving party's affidavit, a trial judge is not required to recuse himself immediately, because the "judge must pass upon the legal sufficiency of the affidavit." United States v. Giorgi, 840 F.2d 1022, 1034-35 (1st Cir.1988) (emphasis original). Furthermore, "[s]ince sections 144 and 455 of 28 U.S.C. use similar language, and are intended to govern the same area of conduct, they have been construed in pari materia, and the test of the legal sufficiency of a motion for disqualification is the same under both statutes." United States v. Kelley, 712 F.2d 884, 889 (1st Cir.1983).
Section 455(b)(1) provides for mandatory disqualification when a judge "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). Section 455(b)(5)(iii) provides for mandatory disqualification where a judge "or his spouse. . . [i]s known by the judge to have an interest that could be substantially affected by the outcome of the proceeding." 28 U.S.C. § 455(b)(5)(iii). Section 455(a), on the other hand, directs "[a]ny justice, judge, or magistrate judge of the United States [to] disqualify himself in any proceeding in which his impartiality might reasonably be questioned." 28 U.S.C. § 455(a).
Section 455(a) reaches farther than both 455(b)(1) and section 144 because it is not limited to "personal" bias or prejudice "concerning a party" and because it does not require that the movant establish bias or prejudice in fact. In re Martinez-Catala, 129 F.3d 213, 220 (1st Cir.1997) (emphasis original). Section 455(a) requires recusal when the objective circumstances "create an appearance of impartiality." Id. (emphasis original). Dual, sometimes competing, policies underlie section 455(a). In re United States, 666 F.2d 690, 694 (1st Cir.1981). First, "courts
Disqualification under section 455(a) occurs only where a charge of bias is supported by a factual basis and those facts "provide what an objective, knowledgeable member of the public would find to be a reasonable basis for doubting the judge's impartiality." In re Boston's Children First, 244 F.3d at 167 (quoting In re United States, 666 F.2d at 695). "While doubts ordinarily ought to be resolved in favor of recusal, the challenged judge enjoys a margin of discretion[.]" In re United States, 158 F.3d at 30 (citations omitted). This discretion exists because "in many cases reasonable deciders may disagree.. . ." In re United States, 666 F.2d at 695. Each case implicating section 455(a) is sui generis, requiring a fact-specific analysis done on a case-by-case basis. In re Boston's Children's First, 244 F.3d at 171; In re United States, 158 F.3d at 31. Ultimately, the question for an appellate court is "not whether it would have decided as did the trial court, but whether that decision cannot be defended as a rational conclusion supported by [a] reasonable reading of the record." In re United States, 666 F.2d at 695.
Courts have interpreted section 144's unusual requirement that the district judge accept the moving party's affidavit as true even though it may contain false averments known to the judge "by insisting on a firm showing in the affidavit that the judge does have a personal bias or prejudice toward a party, and also by insisting on strict compliance with the procedural requirements of the section." In re Martinez-Catala, 129 F.3d at 218 (footnote omitted). We start with the procedural issues outlined in section 144's second paragraph.
Both sections 455 and 144 require that the party moving for recusal of the judge raise the issue "at the earliest moment after acquiring knowledge of the facts providing a basis for disqualification." Cordova Gonzalez v. United States, 987 F.Supp. 87, 90 (D.P.R.1997); see also United States v. Studley, 783 F.2d 934, 939 (9th Cir.1986) (noting that "a motion for recusal filed weeks after the conclusion of trial is presumptively untimely absent a showing of good cause for its tardiness."); Jones v. Pittsburg Nat. Corp., 899 F.2d 1350, 1356 (3rd Cir.1990) (finding that a recusal motion filed after entry of an order dismissing complaint and imposing sanctions was not timely because "[a]ny other conclusion would permit a party to play fast and loose with the judicial process by `betting' on the outcome.") Defendants allege that the motion for recusal is timely because it was filed ten days before a "proceeding,"—in this case, the sentencing proceeding. (Docket No. 489 at 2.) (citing United States v. Thompson, 483 F.2d 527, 529 (3d Cir.1973)). Thompson, however, is inapposite. The defendant in Thompson filed his motion to recuse under section
The acts that give rise to defendant Martinez's belief of bias or prejudice occurred in 1993 and have been in the public record for eighteen years. Defendant Martinez states that he first learned that the undersigned was married to Judge Martinez-Moya prior to trial, but was "not aware of the events that occurred in 1993." (Docket No. 477-1 at 3.) He avers that he "started to become aware that issues concerning former Senator Valentin would be important in [this] case" around January 2011. Id. at 3-4. Finally, defendant Martinez alleges that it was after a verdict was reached in his case that he was alerted to the undersigned's "undisclosed conflict of interest or potential conflict of interest arising out of his wife's nomination for the position of Secretary of the Puerto Rico Department of Justice in 1993" by "a number of media outlets". Id. at 2.
Notably, defendant Martinez does not explicitly state when he actually acquired knowledge of the relevant facts that are the basis for this motion for recusal. Defendants argue that although they learned about the undersigned's alleged conflict of interest "after this case began", they had good cause for waiting to raise the issue until they did because they were unable to "act upon this information until they were able to verify the facts necessary to make this motion, which required receiving dated materials from the Puerto Rico Legislature." Id. at 1, n. 1. The Court disagrees. Defendant Martinez's argument that he had no basis for raising the issue of recusal sooner because the undersigned never disclosed the alleged conflict and because the press did not report it until after the trial lacks merit. (See Docket No. 489 at 2.) The materials from the Puerto Rico Legislature which form the basis of this recusal motion have been publicly available for 18 years, and if defendant Martinez learned about the apparent conflict of interest "after this case began", there is no reason why the issue was not raised before the verdict was reached. See United States v. Sypher, No. 09-CR-00085, 2010 WL 5393849, at *2 (W.D.Ky. Dec. 22, 2010) (denying motion for recusal as untimely and finding no good cause where defendant failed to "specifically indicate what previously unknown facts she learned, when she became aware of them, or why she waited until nearly two months after the end of her trial to bring them to light" where many of the facts had been "publicly available since the inception of her case.") These facts, taken together, do not constitute good cause for failing to meet section 144's timeliness requirement.
Section 144 also requires that the moving party's affidavit be accompanied by a certificate of counsel of record stating that it is made in good faith. Defendant Martinez's affidavit was accompanied by a certificate provided by Mr. Abbe David Lowell, who has been admitted pro hac vice to practice before this Court. (Docket No. 477-1.) The phrase "counsel of record" in the statute has been interpreted by courts to mean "an attorney at law admitted to the bar of the court who has been counsel of record" in the case. Currin v. Nourse, 74 F.2d 273, 275 (8th Cir.1934); Morse v. Lewis, 54 F.2d 1027, 1032 (4th
Mr. Lowell, admitted pro hac vice, is undisputedly not a member of the bar of this court. As the government points out in its opposition to defendants' motion, this Court's Local Rules require that an attorney applying for permission to appear pro hac vice must "designate a member of the bar of this Court as local counsel. . . ." D.P.R. Loc.Civ.R. 83A(f)(1). The Local Rules also require the attorney admitted pro hac vice to "remain associated in the action with a member of the bar of this Court"; state that "[a]ll process, notices, and other papers shall be served on the attorney admitted pro hac vice and on the member of the bar of this Court"; and mandate that "attendance of the member of the bar of this Court is required at all proceedings, unless excused by the Court." D.P.R. Loc.Civ.R. 83A(f).
While defendant Martinez has been represented throughout the course of this trial by local counsel who are members of the bar of this Court, no local counsel submitted a certificate of good faith along with the initial motion for recusal and defendant Martinez's affidavit. In fact, defendant Martinez filed a supplemental certification from local counsel only after the government had filed its opposition to defendants' motion for recusal noting this particular deficiency. (Docket No. 484.) In their supplemental certification, defendants stated that Mr. Lowell's certification was to be supplemented by local counsel, Ms. Sonia Torres-Pabon, "[i]n order to avoid unnecessary litigation over this particular procedural matter." Id. at 1. As previously noted, courts have insisted upon "strict compliance with the procedural requirements" of section 144. In re Martinez-Catala, 129 F.3d at 218. Unfortunately for defendants, the initial filing of their improper certification and the untimely filing of their supplemental certification blatantly fail to comply with the procedural requirements of section 144.
While defendants' motion for recusal of the undersigned is titled as a "joint motion", defendant Bravo's failure to submit an affidavit and his counsel's failure to submit a certification of good faith are in clear contradiction to section 144's explicit language requiring that a party alleging "that the judge before whom the matter is pending has a personal bias or prejudice" must file a timely and sufficient affidavit stating "the facts and the reasons for the belief that bias or prejudice exists" to "be accompanied by a certificate of counsel of record stating that it is made in good faith." Only defendant Martinez filed such an affidavit with the joint motion, and both the certification of Mr. Lowell and the supplemental certification of Ms. Sonia Torres-Pabon certify that the affidavit of Hector Martinez was filed in good faith. (Docket Nos. 477-1 & 484-1.) Defendant Bravo cannot rely on these documents in support of a "joint motion" for recusal.
Faced with that situation, defendants aver, again after the Government's opposition alerted them of their misstep, that "Mr. Bravo has joined the motion as to the
Although the untimeliness and deficiency of defendant Martinez's motion is sufficient reason to deny the motion, the Court nevertheless addresses the merits of the motion filed pursuant to sections 144 and 455. See Kelley, 712 F.2d at 888. While a trial judge may not pass on the truth of the matters asserted in an affidavit filed pursuant to section 144, "the trial judge must pass upon the legal sufficiency of the affidavit." Kelley, 712 F.2d at 889. Moreover, the First Circuit Court of Appeals has held that "[s]ince sections 144 and 455 of 28 U.S.C. use similar language, and are intended to govern the same area of conduct, they have been construed in pari materia, and the test of the legal sufficiency of a motion for disqualification is the same under both statutes." Id. at 889 (citations omitted); see also In re Kouri-Perez, 181 F.3d 79 (Table), No. 99-1215, 1999 WL 525923, at *1 (1st Cir. Feb. 26, 1999) (holding that the court "would reach the same conclusion" that the judge was not required to recuse himself "whether applying the standard of 28 U.S.C. § 144 actually invoked by petitioner, or applying the standards of 28 U.S.C. §§ 455(a) and 455(b)(1) additionally mentioned by the district court.")
Defendant Martinez has raised three possible grounds for the undersigned's recusal: (1) a personal bias or prejudice concerning a party, governed by sections 144 and 455(b)(1); (2) an impartiality that may reasonably be questioned, governed by section 455(a); and (3) the undersigned's spouse's alleged interest in the litigation that could be substantially affected by the outcome of the proceeding, governed by section 455(b)(5)(iii). (Docket No. 477.) The Court addresses each of these in turn.
Disqualification due to personal bias or prejudice "necessitates a showing that the alleged bias or prejudice be both personal and extrajudicial." United States v. Giorgi, 840 F.2d 1022, 1035 (1st Cir. 1988). Moreover, automatic removal of a judge requires "averment of facts showing that the judge `has' a personal bias or prejudice, not that the judge might have such a bias or prejudice or that grounds exist for further inquiry." In re Martinez-Catala, 129 F.3d at 219. Defendant Martinez's sole allegation regarding personal bias is that the undersigned "harbors a personal bias against Mr. Valentin due to his attacks on [the undersigned's] wife, and [the undersigned] harbors a personal bias against Mr. Martinez based on his relationship with Mr. Valentin." (See Docket No. 495 at 1-2.) Defendant Martinez is careful not to assert that the
It is well-settled that "opinions formed by the judge on the basis of facts introduced or events occurring during current or prior proceedings are not grounds for a recusal motion unless they display a. . . [deep-seated] . . . favoritism or antagonism." Liteky v. United States, 510 U.S. 540, 541, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994). Furthermore, the First Circuit Court of Appeals has held that where the knowledge alleged by a defendant to mandate a judge's recusal was "indisputably obtained . . . during the performance of his judicial duties[,] . . . it cannot serve as a basis for disqualifying [that judge] on grounds of personal bias." Kelley, 712 F.2d at 889-90. Here, even defendant Martinez admits that the undersigned's knowledge of the relationship between defendant Martinez and Valentin was likely obtained during the course of these very proceedings.
Apart from his allegations that the undersigned was biased against him because of his relationship with Valentin, defendant Martinez focuses a large portion of his motion for recusal on the various rulings that were deemed unfavorable to him made by the Court during the course of the proceedings. (See Docket No. 477 at 5-7, 11-17, 19-46, 55-60.) The Supreme Court has repeatedly upheld, however, that "judicial rulings alone almost never constitute valid basis for a bias or partiality recusal motion." Liteky, 510 U.S. at 540, 114 S.Ct. 1147 (citing United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966)). Defendant Martinez has failed to identify any extrajudicial source of the undersigned's alleged prejudice, and, as explained below, also fails to show that any alleged prejudice was "personal".
The First Circuit Court of Appeals has held that "disqualification under section 144 and section 455(b)(1) each require determination of bias/prejudice in fact." United States v. Pandey, 979 F.2d 844 (Table), No. 91-2219, 1992 WL 348046, at *3 (1st Cir. Nov. 23, 1992) (emphasis original) (quoting United States v. Chantal, 902 F.2d 1018, 1023 (1st Cir.1990)). The court's decision in Pandey is illustrative here. In that case, appellant filed a motion to recuse the district judge assigned to his case, alleging that the judge had a personal bias against him because appellant had filed a complaint with the Massachusetts Board of Bar Overseers against the judge's son-in-law approximately four years before the motion for recusal was filed. Id. The judge denied the motion, and the Court of Appeals affirmed, finding that the district judge did not abuse "his discretion in finding that there was no bias in fact." Id. Specifically, the court found that while appellant's complaint against the judge's son-in-law was "certainly offensive", the complaint alone, "without any resulting action by the Board of Bar Overseers, would not appear to test the judge's capacity for impartiality." Id. at *4.
In this case, defendant Martinez argues that the undersigned has a personal bias or prejudice against him because of defendant Martinez's relationship with Valentin, who allegedly did not recommend that the Senate confirm the undersigned's wife for the position of Attorney General of Puerto Rico in 1993, eighteen years ago. (Docket No. 477 at 1-3.) Defendant Martinez admits he had nothing to do with the nomination, and that he was not even working for Valentin at the time these events occurred.
Defendant Martinez asserts that bias and prejudice is shown because the undersigned's treatment of issues involving Valentin differed markedly from rulings on issues involving Jorge de Castro-Font, a co-conspirator of defendants. (Docket No. 477 at 4.) The law is clear, however, that in order to require disqualification, the alleged bias or prejudice must be "personal, i.e. directed against a party." Kelley, 712 F.2d at 889 (citations omitted). Thus, the Court evaluates defendant Martinez's claims in the context of the alleged personal bias directed against defendant Martinez himself, not against third parties. Defendant Martinez attributes this allegedly different treatment to the fact that de Castro-Font supported the undersigned's wife's nomination to the position of Superior Court Judge in 2005. (Docket No. 477 at 4.) Notably, defendant Martinez fails to admit in his initial motion, but does mention in his affidavit, that he too voted to confirm the undersigned's wife to be a Superior Court Judge in 2005. (Docket No. 477-1 at 3.) Indeed, it is a tenuous proposition to suggest that the undersigned would be biased against defendant Martinez because of his relationship with Valentin for acts that occurred in 1993, yet favor de Castro-Font and not defendant Martinez, even though they both voted to confirm the undersigned's wife to be a Superior Court Judge in 2005. Defendant Martinez's assertion that this information is "irrelevant" is completely unjustified. (See Docket No. 489 at 5.) His failure to address this inconsistency seriously undermines the strength of his argument. In light of his inability to explain the weaknesses outlined above satisfactorily, the Court finds that defendant Martinez has failed to make a showing of actual personal bias or prejudice as required under sections 144 and 455(b)(1).
Section 455(a) "requires recusal even where there is no showing of actual bias if the judge's `impartiality might reasonably be questioned.'" Pandey, 979 F.2d 844, at *3 (citing 28 U.S.C. § 455(a)). Under this section, however, "a judge is not compelled automatically to accept as true the allegations made by the party seeking recusal. To the extent that facts are in dispute, factual determinations are made by the judge whose recusal is in question, and the same judge also decides whether the facts trigger disqualification, subject always to review on appeal, normally for abuse of discretion." In re Martinez-Catala, 129 F.3d at 220 (citations omitted). The judge must apply an objective standard in determining whether recusal is required under section 455(a). The judge must determine:
United States v. Voccola, 99 F.3d 37, 42 (1st Cir.1996) (citations omitted).
The Court has already gone into extensive detail regarding defendant Martinez's claim of alleged "spillover" prejudice caused to him because of the undersigned's alleged bias toward Valentin. Defendant Martinez's argument that the undersigned was biased against him because of his relationship with Valentin for events occurring in 1993 and favored de Castro-Font because he voted to confirm the undersigned's wife to be a Superior Court Judge in 2005 is illogical and unreasonable, particularly in light of the fact that defendant Martinez also voted to confirm the undersigned's wife's nomination to the same position in 2005.
Defendant Martinez cites to a radio program, "El Show de Harold," that aired on March 10, 2011, three days after the verdict was reached, as proof that the undersigned's "appearance of impartiality has been called into question publicly". (Docket No. 477 at 2-3.) At the outset, the commentary regarding the trial on "El Show de Harold," a gossip radio program in Puerto Rico, cannot be seriously considered determinative of the voice of a "reasonable person". Moreover, the radio show host misstates many of the critical facts alleged in defendants' motion. For example, the radio host states in part: "the wife of Judge Besosa was evaluated under the Administration of Hector Martinez for the position of Judge and Hector and the [sic] Senator Freddy Valentin recommended the non confirmation of Judge's wife." (See Docket No. 477-8.) As defendant Martinez admits in his affidavit, however, at the time Valentin recommended that the undersigned's wife not be confirmed in 1993, defendant Martinez "was just 24 years old, and was not working for then-Senator Valentin and [] had nothing to do with the nomination or its review or with Senator Valentin's opposition and action." (Docket No. 477-1 at 3.) Additionally, the record is clear that Valentin's opposition to the undersigned's wife's nomination was for the position of Attorney General in 1993, and defendant Martinez's support for the undersigned's wife's nomination was for the position of Superior Court Judge in 2005-facts that are undisputed by defendant Martinez but were clearly misrepresented by the radio show host. For the reasons stated previously, the Court finds that defendant Martinez's argument fails to show that the undersigned's impartiality can be reasonably questioned.
Finally, defendant Martinez, citing Liteky, alleges that the undersigned's bias toward him can be ascertained by review of the Court's prior rulings in this case. (Docket No. 495 at 5.) Dissatisfaction with a Court's rulings and case management, however, is not grounds for recusal. See Liteky, 510 U.S. 540, 555, 114 S.Ct. 1147 (1994) (stating that "judicial rulings alone almost never constitute a valid basis for a bias or partiality motion," while discussing the applicability of the
The final, and weakest, claim defendant Martinez makes in favor of the undersigned's recusal is that the undersigned's wife has an "interest" in the litigation. (See Docket No. 477 at 51.) The argument that follows in defendants' brief, however, focuses on the undersigned's "interest in his wife's `reputation and goodwill'", and alleges that "the fact that the press already has called [the undersigned's] impartiality into question based on this undisclosed conflict of interest shows that an appearance of impropriety does exist." Id. at 50-52. Defendant Martinez appears to misunderstand and conflate the applicable legal standards for recusal under section 455(b)(5)(iii) and section 455(a).
As applied to the facts alleged by defendant Martinez, under section 455(b)(5)(iii), a judge must recuse himself if his spouse "is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding". The cases cited by defendant Martinez have no bearing on the facts of this case. In SCA Services, Inc. v. Morgan, the Seventh Circuit Court of Appeals granted petitioner's mandamus relief for recusal of the trial judge, finding that the judge's brother, a senior partner at the law firm representing a party in a civil action pending before the judge, had both a financial interest in the outcome of the litigation and an "interest in his and his firm's reputation and goodwill." 557 F.2d 110, 115-16 (7th Cir.1977). Conversely, the undersigned's wife has no direct interest in the outcome of the criminal proceedings against defendant Martinez. In Public Utils. Comm'n of D.C. v. Pollak, Justice Frankfurter disqualified himself from a case regarding whether the use of transit radio receivers on buses
Defendant Martinez frequently alludes to "retribution", injury to "Valentin's reputation", and protection of "honor", suggesting that the undersigned and his wife both had an interest in seeking revenge for events that occurred eighteen years ago. (See Docket No. 477 at 51-54.) These allegations amount to little more than attacks involving an unlikely eighteen-year long conspiracy against defendant Martinez and Valentin, which are insufficient to warrant recusal of the undersigned under section 455(b)(5)(iii). See Sensley v. Albritton, 385 F.3d 591, 600 (5th Cir.2004) (citations omitted) ("[W]here an interest is not direct, but is remote, contingent or speculative, it is not the kind of interest which reasonably brings into question a judge's partiality.") For the reasons stated, defendant Martinez has failed to identify any interest of the undersigned or the undersigned's wife that could be affected by the outcome of the criminal case against him.
For the foregoing reasons, the Court
