MEMORANDUM AND ORDER ON DEFENDANT'S MOTION FOR RECUSAL
RICHARD G. STEARNS, District Judge.
Defendant's motion for recusal will be DENIED. There is a long-standing presumption of judicial impartiality in the federal courts of the United States, including those of the First Circuit.1 This presumption is not overcome by specious and unsupported factual allegations. See In re United States, 158 F.3d 26, 35 (1st Cir. 1998) ("A party cannot cast sinister aspersions, fail to provide a factual basis for those aspersions, and then claim that the judge must disqualify [him]self because the aspersions, exproprio vigore, create a cloud on [his] impartiality."). "If a party could force recusal of a judge by [false] factual allegations, the result would be a virtual `open season' for recusal." United States v. Greenough, 782 F.2d 1556, 1558 (11th Cir. 1986) (citation omitted).
The rules governing recusal are well established. Recusal is required where a judge's impartiality might reasonably be questioned, see 28 U.S.C. § 455(a), or where actual bias exists, see 28 U.S.C. § 455(b) (and its sub-parts). Defendant's motion is predicated on § 455(a), as well as § 455(b)(1), § 455(b)(3), and § 455(b)(5)(iv).
Recusal under § 455(b)(1) requires a "determination of bias/prejudice in fact." United States v. Chantal, 902 F.2d 1018, 1023 (1st Cir. 1990) (emphasis in original). Recusal is necessary "[w]here [the judge] has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding." See § 455(b)(1) (emphasis added). Defendant's argument under § 455(b)(1) depends on theories of "guilt by institutional association" and imputed knowledge. The first theory is not recognized under (b)(1), while the second is legally and factually unsustainable, as will be explained.
Under § 455(b)(3), a judge must recuse himself "[w]here he has served in government employment and in such capacity participated as counsel, advisor or material witness concerning the merits of the particular case in controversy." Here, there is no allegation by defendant (nor could there be) that as an Assistant United States Attorney (AUSA), I was involved in the prosecution of any case in which he was a subject or target. See United States v. Di Pasquale, 864 F.2d 271, 279 (3d Cir. 1988) (the statute requires "a specific showing that the judge was previously involved with a case while in the U.S. Attorney's office that he or she is later assigned to preside over as a judge") (emphasis in original).2
Moreover, defendant's allegation of vertical imputation or vicarious liability pursuant to § 455(b)(3) is based on a misreading of United States v. Arnpriester, 37 F.3d 466 (9th Cir. 1994). The vertical theory applies only to United States Attorneys, and not to subordinate supervisors (unless they have actually participated in the investigation or prosecution of a defendant).3 See United States v. Scholl, 166 F.3d 964, 977 (9th Cir. 1999) (finding defendant's reliance on Arnpriester unwarranted where the judge was not the United States Attorney but an Assistant United States Attorney during the relevant time period, and although for much of that time was the Chief Criminal Assistant, she did not have supervisory power over the section of the office that investigated the defendant). See also United States v. Ruzzano, 247 F.3d 688, 695 (7th Cir. 2001) ("As applied to judges who were former AUSAs, § 455(b)(3) requires some level of actual participation in a case to trigger disqualification.") .
The test under § 455(a) for determining whether a judge's impartiality might reasonably be questioned is
[w]hether the charge of lack of impartiality is grounded on facts that would create a reasonable doubt concerning the judge's impartiality, not in the mind of the judge himself or even necessarily in the mind of the litigant filing the motion under 28 U.S.C. § 455, but rather in the mind of the reasonable man.
United States v. Voccola, 99 F.3d 37, 42 (1st Cir. 1996) (citations omitted). As elaborated by the Court of Appeals:
[a] charge of partiality must be supported by a factual basis. [citations omitted]. Although public confidence may be as much shaken by publicized inferences of bias that are false as by those that are true, a judge considering whether to disqualify himself must ignore rumors, innuendos, and erroneous information published as fact in the newspapers. . . . [Disqualification is appropriate only if the facts provide what an objective, knowledgeable member of the public would find to be a reasonable basis for doubting the judge's impartiality. Were less required, a judge could abdicate in difficult cases at the mere sound of controversy or a litigant could avoid adverse decisions by alleging the slightest of factual bases for bias.
In re United States, 666 F.2d 690, 695 (1st Cir. 1981).
No permissible reading of subsection 455(a) would suggest that Congress intended to allow a litigant to compel disqualification simply on unfounded innuendo concerning the possible partiality of the presiding judge. Indeed, "[a] trial judge must hear cases unless some reasonable factual basis to doubt the impartiality of the tribunal is shown by some kind of probative evidence."
El Fenix de Puerto Rico v. M/Y JOHANNY, 36 F.3d 136, 140 (1st Cir. 1994), quoting Blizard v. Frechette, 601 F.2d 1217, 1221 (1st Cir. 1979) (emphasis in El Fenix de Puerto Rico).
Defendant's recusal motion is based, for the most part, on a historically mistaken premise. Contrary to defendant's assumption, in the 1970's and 1980's, the United States Attorney's Office was separate from the New England Organized Crime Strike Force (OCSF). See United States v. Salemme, 164 F.Supp.2d 49, 67 (D. Mass. 1998) (stating the same in considering a similar recusal motion).4 The strike forces were created by Attorney General Robert Kennedy in 1966 as autonomous units with jurisdiction over organized crime investigations and prosecutions, reporting directly to the Department of Justice.5 See Note, The Strike Force: Organized Law Enforcement v. Organized Crime, 6 Colum. J.L. & Soc. Probs. 496, 509-521 (1970). The strike forces
eventually expanded to have offices in scores of cities. The strike force attorneys reported directly to the Department, not to the local U.S. Attorney, and they were seen as a serious blow to the autonomy of the U.S. Attorneys and their control of federal law enforcement in their districts. The tension between strike forces and U.S. Attorneys' Offices was well known, and the strain was especially pronounced in districts with the greatest tradition of autonomy.
Sara Beale, Rethinking the Identity and Role of United States Attorneys, 6 Ohio St. J. Crim. L. 369, 398 (2009). In 1990, then Attorney General Richard Thornburgh, who "had opposed the independence of strike force attorneys when he served as the U.S. Attorney in Philadelphia," dissolved them. Id. at 407. See also James B. Jacobs & Elizabeth A. Mullin, Congress' Role in the Defeat of Organized Crime, 39 Crim. L. Bull. 3 at 12 & n.140 (2003). Significantly, I left the U.S. Attorney's Office in the fall of 1989. As an AUSA in the 1980's, supervisory or otherwise, I was not, and would not have been, privy to knowledge of any OCSF investigation of defendant.
Another mistaken supposition involves the drug investigation — "Operation Beans" — Title III wiretap application prepared by AUSA Gary Crossen. The criticism of this application by senior Department of Justice officials is discussed at some length by Judge Wolf in United States v. Salemme, 91 F.Supp.2d 141 (D. Mass. 1999), reversed in part on other grounds by United States v. Flemmi, 225 F.3d 78 (1st Cir. 2000). As Judge Wolf's decision makes clear, the application was prepared and submitted before I was made Chief of the Criminal Division on December 23, 1984. Prior to that time, as Chief of General Crimes, I would not have been called upon to review this Title III drug investigation wiretap.6,7
Finally, recusal is not required by defendant's suggestion that it would be appropriate to summons me as a witness in a hearing on his claim of immunity. See 28 U.S.C. § 455(b)(5)(iv) (a judge will recuse himself where to his knowledge he is likely to be a material witness in the proceeding); see also Salemme, 164 F. Supp. 2d at 111, citing Murray v. Sevier, 929 F.Supp. 1461, 1467-1468 (N.D. Ala. 1996) ("`[U]nsubstantiated speculation' about the possibility that the judge will be required to be a material witness concerning a disputed issue is not enough to require recusal."). Because at no time during my service as an AUSA did I participate in or have any knowledge of any case or investigation in which defendant was a subject or target, I have nothing of a relevant or material nature to offer with regard to this case or any claim of immunity.8
One of the most important of the measures taken in recent years by the federal court to promote public confidence in its inner workings was the random assignment of cases to judges to eliminate any suspicion, real or imagined, that case assignments were part of a politicized process in which certain judges and lawyers were favored actors. Cf. In re Charge of Judicial Misconduct or Disability, 196 F.3d 1285 (D.C. Cir. 1999). It would be institutionally irresponsible for me, or for that matter, any other judge, to enter a recusal in a case where a party has chosen to make untrue accusations in the possible hope of subverting that process, or at the very least, forcing a delay of a trial by injecting a diversionary issue into the proceedings. See In re United States, 666 F.2d at 694 ("[A] judge once having drawn a case should not recuse himself on an unsupported, irrational, or highly tenuous speculation; were he or she to do so, the price of maintaining the purity of appearance would be the power of litigants or third parties to exercise a negative veto over the assignment of judges."). These considerations have special force where, as here, I have no doubt whatsoever about my ability to remain impartial at all times while presiding over this case.9 Moreover, I am confident that no reasonable person could doubt my impartiality.
ORDER
For the foregoing reasons, the Motion for Recusal is DENIED. The Exhibits to Defendant's Motion for Recusal are ordered to be UNSEALED and placed on the public docket.10
SO ORDERED.
