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United States v. Fisch

United States District Court, S.D. Texas, Houston Division

May 23, 2018



          Lee H. Rosenthal Chief United States District Judge

         I. Background

         The 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).

         Based 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.

         II. Fisch's Motion for Recusal or Disqualification Under 28 U.S.C. § 455

         A. The Legal Standard

         A party 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).

         A 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.

         B. The Court Does Not Need To Refer The Recusal Or Disqualification Motion

         A judge 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.

         C. The Court Did Not Predetermine Fisch's Participation In The Conspiracy

         Fisch 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 transcript excerpt:

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. Fisch's -
The Court: Well, again, if all we're talking about is documents that Mr. Fisch saw ...

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