United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND OPINION
Rosenthal Chief United States District Judge
defendant, Abraham Moses Fisch, has moved to have this judge
recuse herself or be disqualified from presiding over this
case under 28 U.S.C. § 455(a). Fisch argues that the
court should transfer his 28 U.S.C. § 2255 motion to
another judge. (Docket Entry No. 685). Fisch makes two
arguments for recusal or disqualification: (1) that the court
predetermined Fisch's participation in the conspiracy;
and (2) that the court previously determined the
effectiveness of his trial counsel, which he challenges in
this § 2255 motion. The government opposes recusal and
disqualification and has cross-moved for sanctions. (Docket
Entry No. 686). Fisch replied. (Docket Entry No. 692).
on the record, the motions, the briefing, and the applicable
law, the motion to recuse or be disqualified and the motion
for sanctions are both denied. The reasons for these
decisions are explained below.
Fisch's Motion for Recusal or Disqualification Under 28
U.S.C. § 455
The Legal Standard
may move to recuse a judge under 28 U.S.C. § 455, which
requires a judge to disqualify when “his [or her]
impartiality might reasonably be questioned.” 28 U.S.C.
§ 455. The appearance of impartiality controls the
§ 455 analysis, not whether a judge subjectively
believes herself to harbor bias or prejudice. See
Liljeberg v. Health Servs. Acquisition Corp., 486 U.S.
847 (1988). An objective standard for evaluating bias
applies. See Andrade v. Chojnacki, 338 F.3d 448,
454-55 (5th Cir. 2003). (citing Vieux Carre Prop. Owners,
Residents & Assocs., Inc. v. Brown, 948 F.2d 1436,
1448 (5th Cir. 1991)). Recusal is required under §
455(a) only if “a reasonable and objective person,
knowing all of the facts, would harbor doubts concerning the
judge's impartiality.” Patterson v. Mobil Oil
Corp., 335 F.3d 476, 484 (5th Cir. 2003), cert.
denied, 540 U.S. 1108 (2004).
court's “review should entail a careful
consideration of context, that is, the entire course of
judicial proceedings, rather than isolated incidents, ”
id. (citing Sao Paulo State of Federative Rep.
of Brazil v. Am. Tobacco Co., 535 U.S. 229 (2002)),
which includes the origin of a judge's alleged bias.
Id. (citing Liteky v. United States, 510
U.S. 540 (1994)). “As articulated by the Supreme Court,
this rule more or less divides events occurring or opinions
expressed in the course of judicial proceedings from those
that take place outside of the litigation context and holds
that the former rarely require recusal.” Id.
The Court Does Not Need To Refer The Recusal Or
may refer a recusal or disqualification motion to another
court. Doddy v. Oxy USA, Inc., 101 F.3d 448, 458
(5th Cir. 1996) (“If the issue of the judge recusing
herself arises (either through a motion to recuse under
§ 455, an affidavit of prejudice under 28 U.S.C. §
144, or the judge's own motion), the judge may-at her
option-transfer the matter to another judge for decision or
determine it herself.”); Azam v. Brown, 2017
WL 4816795 at *5 (9th Cir. 2017) (“It was not error for
a different district judge to adjudicate the disqualification
motion because 28 U.S.C. § 455 does not preclude
independent review by another district judge.”);
Bettis v. Toys R Us, 646 F.Supp.2d 1273, 1274-1286
(S.D. Fla. 2009) (motion transferred to magistrate judge for
consideration). But the Fifth Circuit has held that
transferring recusal or disqualification motions “is
not to be encouraged” because it “raises problems
of administrative inconvenience and delay.”
Chitimacha Tribe of Louisiana v. Harry L. Laws Co.,
690 F.2d 1157, 1162 (5th Cir. 1982). “Although the
matter is ultimately within the discretion of the challenged
judge, recusal motions should only be transferred in unusual
circumstances.” Id. Fisch's recusal or
disqualification motion does not present unusual
circumstances that require transfer to another judge. The
court declines to transfer this motion.
The Court Did Not Predetermine Fisch's Participation In
argues that the court assumed his participation in the
conspiracy before hearing any evidence, citing the
court's comments at a pretrial hearing held on April 10,
2015. (Docket Entry Nos. 308, 314, 685 at 2). The comments
were made during arguments on the admissibility of documents
and tape recordings in co-defendant Lloyd Glen Williams's
FBI source file. (Docket Entry No. 308 at 18, 22). The
government argued that the evidence was inadmissible as
irrelevant to Fisch's intent because he had never seen
the material. Id. at 18-19. Fisch argued the
opposite. Id. at 22-23. Fisch cites the following
McCrum (Fisch's counsel): . . . There was a small stack
of documents relative to Mr. Williams' cooperation that
was shown not only to Mr. Fisch, but also to an agent who had
gone to interview Mr. Williams. It not only goes to Mr.
The Court: Well, again, if all we're talking about is
documents that Mr. Fisch saw ...