MICHAEL P. MILLS, District Judge.
These matters come before the Court for consideration on the Motion for Recusal [404], the Motion for Disqualification of Prosecutors Robert Mims and Clyde McGee (the "Motion to Disqualify") [402], and the Brief in Support of Motion for Recusal of Judge Mills and to Disqualify AUSA Robert Mims (the "Brief in Support")[405], all filed on October 5, 2015, by former-defendant and movant Peter Bernegger (the "Movant"). Upon consideration of the motions and the Brief in Support, the Court finds that the Movant is not entitled to the relief requested. In fact, the Court finds both motions to be not only without merit, but legally indefensible. Accordingly, for the reasons set forth below, the Motion for Recusal and Motion to Disqualify are both due to be denied.
Movant was charged in five counts of a six-count Superseding Indictment ("Indictment") alleging mail fraud, wire fraud, conspiracy to commit mail and wire fraud, and bank fraud. Movant's business partner, Stephen Finch, was also charged in the Indictment. The Indictment described a general scheme in which Movant and Finch made fraudulent misrepresentations to investors and potential investors to induce them to invest in various business ventures of Movant and Finch. Specific counts charged either the Movant (Counts Two, Three, and Four) or Finch (Count One) with specific acts of mail fraud or wire fraud within the framework of the overall scheme. Count Five charged both Movant and Finch with conspiracy to commit acts of mail and wire fraud. Count Six charged Movant with bank fraud, alleging that he also made fraudulent misrepresentations to a local bank in order to secure a loan for the business. The defendants proceeded to trial on November 2, 2009. On November 12, 2009, Finch was acquitted of all charges while Movant was convicted on Counts Three, Four, and Six. On May 13, 2010, Movant was sentenced to 70 months in prison and ordered to pay restitution in the approximate amount of $2.2 million. Movant appealed his conviction to the Fifth Circuit, which issued an order dated October 20, 2011, affirming the conviction and the length of the sentence, but modifying the amount of restitution by reducing it to $1,725,000.00. On February 12, 2012, Movant filed a Motion to Vacate, Set aside, or Correct His Sentence Under 28 U.S.C. § 2255 (the "§ 2255 Motion"). After an exhaustingly detailed review and analysis by this Court, the § 2255 Motion was denied on March 9, 2015. [380][381].
Since that time, Movant has filed several related motions, including motions to strike court orders and/or to stay court rulings.
The Court will first consider the Motion for Recusal, as it is the threshold issue to considering the Movant's various other filings.
The statutes for deciding whether recusal is appropriate for a federal judge are 28 U.S.C.A. § 455, and 28 U.S.C. § 144, which use the same standard, namely, "`[W]hether a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned.'" United States v. Hernandez, 109 F.3d 1450, 1453 (9th Cir. 1997) (quoting United States v. Studley, 783 F.2d 934, 939 (9th Cir.1986)). In addition, "[A] motion for disqualification ordinarily may not be predicated on the judge's rulings in the instant case. . . ." Phillips v. Joint Legislative Committee on Performance & Expenditure Review, 637 F.2d 1014, 1020 (5th Cir. 1981). Adverse judicial rulings will only support a claim of bias if they reveal an opinion based on an extrajudicial source — or if they demonstrate such a high degree of animosity as to make fair judgment impossible. Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994).
Thus, the only question regarding the propriety of recusal in this case is, "Does a reasonable extrajudicial basis exist upon which someone could question the impartiality of the judge presiding over this case?" As with Movant's past motions demanding recusal, the Court answers this question with a resounding "no." Movant has set forth several reasons he believes should call the impartiality of the court into question — each intertwined with the other; each lacking merit.
First, it bears noting that the primary difficulty in addressing the Motion for Recusal is deciphering what wrongs the Movant believes have been committed against him, or on what grounds he believes recusal is necessary. As best as can be inferred from the Motion for Recusal, the Movant predicates his motion on four separate (though undeniably overlapping) claims:
These are not novel arguments for the Movant, as the first three issues were already raised by the Movant in the §2255 Motion. As explained by this Court in the Memorandum Opinion dealing with the §2255 Motion:
[381].
These claims and arguments have surfaced again in the current pleadings, as Movant essentially claims it was fraudulent of the Court not to have corrected these supposed wrongs when they were raised in the §2255 Motion. It appears that the Movant simply does not agree with the Court's conclusions reached in its Memorandum Opinion denying the §2255 Motion, so he instead asserts that denial of the §2255 Motion was fraud.
A challenge to the impartiality of a presiding judge should be based on some rational basis.
Movant may not agree with the Court's denial of the §2255 Motion, but adverse judicial rulings will only support a claim of bias if they reveal an opinion based on an extrajudicial source — or if they demonstrate such a high degree of animosity as to make fair judgment impossible. Liteky, 510 U.S. at 555. No bias can logically be inferred from the Court's denial of the §2255 Motion, as the claims in the §2255 Motion were themselves lacking in legal, or even logical, bases.
In this case, Movant has not made an allegation of any bias developed outside this judicial proceeding, of any deep-seated favoritism that would make fair judgment impossible, or of a requirement of the presiding judge to be witness as to any material fact in the case. Pesnell v. Arsenault, 543 F.3d 1038, 1043-44 (9th Cir. 2008). The Movant has, admittedly, made broad, generalized accusations that this Court's rulings in this case can be attributed to some sort of effort to protect colleagues from exposure "for the fraud and felony crimes such as obstruction of justice." [405, pg. 14]. Movant has failed, however, to substantiate such claims with any evidence (credible or otherwise). As such, he has not shown that the presiding judge should recuse himself. Given the complete lack of factual and/or evidentiary support for Movant's claims, this Court can only conclude there is no extrajudicial basis upon which a reasonable person could question its impartiality. This allegation is simply without merit.
This is the Movant's second attempt to disqualify Assistant U.S. Attorneys Mims and McGee. [285]. As with the first attempt, the present Motion to Disqualify is without merit and due to be denied.
First,
Cole v. Ruidoso Mun. Sch., 43 F.3d 1373, 1383 (10th Cir. 1994) (citing . In re American Airlines, Inc., 972 F.2d 605, 610 (5th Cir.1992), cert. denied sub nom. Northwest Airlines, Inc. v. American Airlines, 507 U.S. 912, 113 S.Ct. 1262, 122 L.Ed.2d 659 (1993)). Although there are specific tests applied to certain motions to disqualify counsel in circumstances governed by statute or the Constitution, the Movant does not appear to have alleged any such circumstances here.
Movant fails to adequately demonstrate how either Mims or McGee might have violated either the Mississippi Rules of Professional Conduct or standards developed under federal law, so that their disqualification from proceedings might be necessary. Similar to the Motion for Recusal, the Movant's alleged basis for disqualification of attorneys Mims and McGee is rooted in Movant's belief that his right to due process was violated by not being charged with Count 1 of the Indictment. According to the Movant, Mims and McGee (along with the Court) all fraudulently worked in concert to deny Movant his rights, and to then cover up their supposed wrong-doings. As with the Motion for Recusal, however, Movant's allegations are baseless and unsubstantiated. Movant fails to present any new arguments or claims, but instead simply restates the arguments made (and subsequently rejected) in his §2255 Motion, as well as arguments made (and rejected) in Movant's 2013 Motion to Disqualify. [285]. Again, the Court declines to waste judicial resources on issues and claims that have already been decided, simply because the Movant does not agree with prior court rulings. The Motion to Disqualify is due to be denied for the same reasons already set forth above regarding the Motion for Recusal.
For the reasons set forth above, the Court finds that both the Motion for Recusal and Motion to Disqualify are due to be denied. Movant has failed to adequately demonstrate grounds on which he is entitled to the relief requested. There is simply no evidence that recusal of this Court, or disqualification of attorneys Mims and McGee, is warranted or necessary under the standards set forth by federal law. Accordingly, it is hereby,
ORDERED that the Motion for Recusal [404] and the Motion to Disqualify [402] are DENIED.
SO ORDERED.
[381].
