Opinion
Case No. 2:08-cv-168, Crim. No. 2:04-cr-134-1.
April 9, 2008
OPINION AND ORDER
Petitioner Roger D. Blackwell was indicted on August 26, 2004, for conspiracy to engage in insider trading, insider trading, conspiracy to obstruct an agency proceeding, obstruction of an agency proceeding, and making false statements. Following his conviction by a jury, he was sentenced by this court on December 15, 2005. Petitioner pursued a direct appeal, and his conviction was affirmed by the Sixth Circuit Court of Appeals in a decision filed on August 29, 2006. Petitioner filed a petition for writ of certiorari in the United States Supreme Court. The petition was denied on March 12, 2007. On February 22, 2008, petitioner filed a motion for writ of habeas corpus pursuant to 28 U.S.C. § 2255.
This matter is before the court on petitioner's motion for recusal pursuant to 28 U.S.C. § 455. In particular, petitioner notes the following portions of that provision:
(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
(1) where he has personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
(2) Where in private practice he served as lawyer in the matter in controversy, . . . or the judge or such lawyer has been a material witness concerning it[.]
A district judge is required to recuse himself "`only if a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned.'"United States v. Story, 716 F.2d 1088, 1091 (6th Cir. 1983) (quoting Trotter v. International Longshoremen's Warehousemen's Union, 704 F.2d 1141, 1144 (9th Cir. 1983)). This standard is objective, not based on the subjective view of the party. United States v. Sammons, 918 F.2d 592, 599 (6th Cir. 1990); Wheeler v. Southland Corp., 875 F.2d 1246, 1251 (6th Cir. 1989).
A judge must recuse himself when the objective appearance-of-impartiality standard presents a close question.Union Planters Bank v. L J Dev. Co., Inc., 115 F.3d 378, 383 (6th Cir. 1997). However, as the late Chief Justice Rehnquist noted, "a federal judge has a duty to sit where not disqualified which is equally as strong as the duty to not sit where disqualified." Laird v. Tatum, 409 U.S. 824, 837 (1972) (emphasis omitted).
Because § 455, unlike 28 U.S.C. § 144, does not require an affidavit or a certification of good faith from counsel, the court is not required to accept as true the allegations made by petitioner, and may make any necessary factual findings in deciding whether the facts warrant disqualification. Scott v. Metropolitan Health Corp., 234 Fed.App'x. 341, 353-54 (6th Cir. April 3, 2007) (citing In re Martinez-Catala, 129 F.3d 213, 220 (1st Cir. 1997)). The court is "free to make credibility determinations, assign to the evidence what he believes to be its proper weight, and to contradict the evidence with facts drawn from his personal knowledge." United States v. Balistrieri, 779 F.2d 1191, 1202 (7th Cir. 1985).
I. Prior Acquaintance with Petitioner and Ann Blackwell
Petitioner states in his affidavit that he was acquainted with me in the past because we attended the same church. Mrs. Blackwell states in her affidavit that she observed me with the defendant at social and religious meetings on multiple occasions prior to her divorce in 1991.
Mere acquaintance is typically not sufficient to warrant recusal. See United States v. Vaught, 133 Fed.App'x 229, 232-33 (6th Cir. May 23, 2005) (fact that judge was acquainted with defendant's brother-in-law, a government witness, did not require recusal where judge's relationship was not personal or fiduciary in nature); United States v. Dandy, 998 F.2d 1344, 1349 (6th Cir. 1993) (where judge's relationship with government witness and owners of business which was victim of defendant's crime was merely that of an acquaintance, not an intimate, personal relationship or one of obligation, recusal was not necessary). "`Every judge comes to the bench with a life-time of background experiences, a roster of associations, and a myriad of views. This past history, in and of itself, is seldom sufficient to require recusal.'" Scott, 234 Fed.App'x at 358 (quoting Comfort v. Lynn Sch. Comm'n, 418 F.3d 1, 26 (1st Cir. 2005)).
The court held a preliminary scheduling conference with counsel on September 10, 2004, just two weeks after the indictment was filed. At that conference, I disclosed that I was acquainted with petitioner and his former wife, Ann Blackwell:
Like many members of this community, I have met Dr. Blackwell. In fact, over 20 years ago, while I was practicing law, he was an expert witness for me in a case. His former wife is a member of the church that I attend and is an acquaintance of mine, and I would certainly call Dr. Blackwell an acquaintance as well.
I have had no social contact with him and no professional contact with him since the matter that he served as an expert witness for some — I'm assuming it was about twenty years ago. I have been on the bench now 18 years, so it was a couple of years before I came on the bench. And I had a harmonious relationship with him, and we won our case, but I have had not business with Dr. Blackwell since then.
Transcript, pp. 26-27.
In or about 1983, my wife and I began attending the Xenos Christian Fellowship, a non-denominational protestant church in Columbus, Ohio. The church then had a congregation of five hundred to one thousand members, and over the years it has grown to a congregation of three thousand to four thousand members. As the church grew, it became impossible to accommodate the entire congregation in one weekly service, and the church began scheduling services at different times and on different days of the week. These services would be attended weekly by groups of several hundred people. The church also encouraged members to attend small Bible study groups of twenty to thirty people who would meet weekly in a member's home.
For a short time beginning in 1987 or 1988, petitioner's former spouse, Ann Blackwell, attended the same study group that my wife and I attended, and I became acquainted with her at that time. Petitioner seldom if ever attended weekly services or small group meetings with his wife, and whatever involvement he had with the church ended completely when they separated in or about 1988. I seldom saw Mrs. Blackwell after my wife and I left the study group she attended in 1988 or 1989.
Mrs. Blackwell's divorce action was filed in February of 1990. In her complaint, she alleges that she and her husband had lived separate and apart for more than one year. Thus, I conclude that petitioner ceased attending any church-related functions with his wife sometime prior to February of 1989, and that I had no social contact with him after that date, a period of fifteen years prior to his indictment.
I never had an intimate, personal, or fiduciary relationship with petitioner, and the facts stated by petitioner in his affidavit do not establish any more than mere acquaintance. Petitioner rarely attended church functions with his wife. He himself described the situation in his statement to the probation officer, recounted in paragraph 104 of the presentence investigation report:
Blackwell stated his wife did not like the materialistic success that he was pursuing. She was involved in religious activities. They had different fundamental interests.
The fact that I may have had casual discussions with petitioner when I encountered him in social settings fifteen or more years prior to his indictment is not sufficient to establish grounds for recusal.
Petitioner states that I was mistaken when I recalled that he assisted me as an expert witness in a trial over twenty years ago while I was still in private practice. He claims that in fact he testified for the other side. I believe it is petitioner who is mistaken.
In 1983, I was a civil trial attorney with the law firm of Graham, Dutro and Nemeth in Columbus, Ohio. In August of that year, I was retained by Donald Kenney, the owner of a motel doing business as "Cross Country Inn," to represent him in a trademark infringement case filed by Country Inns International, a corporation which operated several motels under the name "Country Inn." In the course of representing Mr. Kenney, I sought out the services of an expert witness. I first consulted Dr. Wayne Talarzyk, Chairman of the Department of Marketing at The Ohio State University's Fisher College of Business, who referred me to petitioner, a professor in his department.
I contacted petitioner, and he agreed to help me, but soon informed me that he had learned that another professor in his department had already been retained by Country Inns to be its expert witness. Petitioner told me that he did not feel comfortable testifying against another member of his department. I met with petitioner to discuss the case on at least one occasion that I recall, and I believe he assisted me in finding another qualified expert who did testify at the trial. The case proceeded to trial, and the court rendered a decision in favor of my client, Mr. Kenney.
As documentation of the foregoing, the following exhibits are attached to the instant memorandum opinion and incorporated herein: (1) the complaint in the Country Inn case; (2) the written closing argument of plaintiff Country Inns International; (3) the decision in the Country Inn case; (4) the judgment entry in the Country Inn case.
The plaintiff's written closing argument in Country Inns International vs. Donald Kenney identifies plaintiff's expert as Dr. Paul Miniard, see Exhibit 1, p. 13. Petitioner's name does not appear in any of the surviving records of this case which I have been able to obtain from the clerk of the Franklin County Common Pleas Court. Petitioner is not mentioned in either the plaintiff's written closing argument or the court's decision. If he did in fact testify as he claims, then it is obvious that his testimony was insignificant and had no effect on the outcome of the case and could not have caused me to harbor a personal bias against him.
To the best of my recollection, petitioner gave me valuable assistance as an expert in representing my client, Mr. Kenney. I was grateful for his assistance. In any event, I had no further business dealings of any kind with him, and I do not recall having any significant personal contact with petitioner during the fifteen-year period preceding his indictment in the instant case. Even if I was mistaken in my recollection about petitioner's role in the Country Inns case, the fact that I recalled at the time of the scheduling conference that he assisted me in winning the case would hardly establish that I was biased against him.
Petitioner has presented an affidavit from his former wife, Ann Blackwell, in which she states that she "discussed this case with Judge Graham to obtain his recommendations about defense counsel for Christian Blackwell," her son. She states that Christian Blackwell was named as a government witness in petitioner's criminal case, although his name is not on the government's witness list (Doc. # 135), and he did not testify for the government at trial. I do recall that Mrs. Blackwell contacted me after her son was named as a defendant in a civil action filed by the Securities and Exchange Commission on January 21, 2003, over one-and-a-half years before the filing of the indictment in the instant case. See United States Security Exchange Comm'n v. Blackwell, Case No. 2:03-cv-63. This civil action was assigned to another judge. This is the case that Mrs. Blackwell called me about. At this time, Mrs. Blackwell and petitioner had been divorced for almost twelve years. As I recall, Mrs. Blackwell was concerned about the nature of the government's action against her son. I told her that the government's complaint was a matter of public record and that I would send her a copy, and I did so. I do not recall making a recommendation of counsel for Mrs. Blackwell's son, and I never talked to her son.
Any information I may have received about the SEC case at that time was limited to the contents of the government's complaint and what was reported in the newspaper at that time. See Matter of Hatcher, 150 F.3d 631, 635 (7th Cir. 1998) (information which judge learned as a spectator in the courtroom during an earlier related criminal trial was no more than a member of the public could have learned by reading a newspaper account; such "limited exposure is simply not the kind of personal knowledge of disputed evidentiary facts with which § 455(b)(1) is concerned.")
Mrs. Blackwell says that I recommended an attorney to represent her in her divorce action against petitioner. While I have no independent recollection of doing so, I do not doubt her word. This would have occurred in 1989, over fifteen years before the return of the indictment in this case. Lawyers and judges are often asked to recommend attorneys to their acquaintances, and I have often made such recommendations. However, I never discussed Mrs. Blackwell's case with her attorney, Mr. Friedman. Attached to the instant memorandum opinion and incorporated herein is the following exhibit: (5) the complaint in Blackwell v. Blackwell, 90DR-02-459, filed in the Domestic Relations Court, Franklin County, Ohio.
The Sixth Circuit has held that far more significant past acts by the trial judge as an attorney did not warrant recusal. See United States v. Hurst, 951 F.2d 1490, 1503 (6th Cir. 1991) (fact that trial judge, as an attorney years earlier, had filed a lawsuit against defendant alleging fraud on behalf of a group of investors was insufficient to warrant recusal); Story, 716 F.2d at 1091 (fact that judge represented the victim of defendant's crime in an unrelated matter thirteen years previously not sufficient to warrant recusal).
III. Rulings During Trial
In support of his motion for recusal, petitioner points to rulings which this court made during the course of his trial. These rulings, made during the course of the proceedings in this case, are not sufficient to constitute bias or prejudice under § 455. In order to justify recusal under § 455, the judge's prejudice or bias must be personal or extrajudicial. United States v. Jamieson, 427 F.3d 394, 405 (6th Cir. 2005). "`Personal' bias is prejudice that emanates from some source other than participation in the proceedings or prior contact with related cases." Id. (quoting Youn v. Track, Inc., 324 F.3d 409, 423 (6th Cir. 2003)). Bias that is not extrajudicial warrants recusal only when it is so "extreme as to display clear inability to render fair judgment[.]" Liteky v. United States, 510 U.S. 540, 551 (1994). Since most of the rulings noted by petitioner were challenged in his direct appeal and were upheld by the court of appeals, they do not meet this standard.
IV. Comments During Sentencing
Petitioner also notes the comments which the court made during the sentencing hearing. These comments were based on information which I learned during the trial of this case. Even if they can also be construed as expressing opinions held by the court, "[o]pinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible." Alley v. Bell, 307 F.3d 380, 388 (6th Cir. 2002) (quoting Liteky, 510 U.S. at 555). See also United States v. Roberts, 64 Fed.App'x 473, 475-76 (6th Cir. May 2, 2003) (judge's statements at sentencing that defendant was a "con man" and "I have seen armed robbers who were less cruel" insufficient to establish grounds for recusal).
This case involved complicated securities law violations and other offenses. Since numerous members of the local media were present at the sentencing hearing, I felt that it would be in the best interests of both the public and the defendant that the media receive an accurate summary about the nature of the case at the beginning of the hearing. This statement was not made for the purpose of causing embarrassment to the defendant. I also made a statement in imposing sentence. It is customary for a court to state its reasons for imposing a particular sentence on the record to permit appellate review of the sentence. My remarks included both favorable and unfavorable comments concerning petitioner. Although my statements reveal little sympathy for petitioner's decision to engage in the criminal conduct for which he was convicted, they do not show any deep-seated antagonism toward petitioner. The sentence imposed was upheld by the court of appeals.
Petitioner includes in his affidavit the allegation that I told one of my fellow church members "I am afraid the prosecution blew it." This is unsupported hearsay. In any event, such a statement would not indicate any bias or prejudice against petitioner. He also alleges that I invited church members to attend the sentencing hearing. If I received an inquiry from a member of the public about the sentencing, or if a person had previously indicated an interest in the case, I may well have informed him or her of the date of the sentencing, but I did not "invite" anyone to attend the sentencing hearing.
Petitioner also notes that I sent letters, along with a copy of the transcript of the statements I made during sentencing to individuals who had submitted letters on petitioner's behalf for consideration at sentencing. Many of these letters were from prominent members of the community offered in support of petitioner, who was also a well-known and prominent member of the community. Exhibit 6 is a copy of the excerpt from the sentencing hearing transcript which I sent to persons who had written me concerning petitioner's case prior to the sentencing hearing. This transcript was accompanied by a cover letter, which is attached as Exhibit 7. I sent these individuals a copy of the transcript simply as a courtesy to them because they had expressed an interest in the case, and to ensure that they were reasonably informed about the facts of the case and the reasons for the sentence.
V. Untimeliness of Request for Recusal
It should also be noted that at the very first meeting with counsel in this case, the September 10, 2004, scheduling conference, I disclosed to counsel the fact that petitioner and the former Mrs. Blackwell were acquaintances of mine, yet no motion for recusal was filed prior to or during trial or sentencing. With the exception of the matters of responding to his wife's request for a recommendation of a domestic relations attorney fifteen years ago and responding to her inquiry concerning the nature of the government's civil action against her son a year and a half before the petitioner's indictment, the circumstances concerning my previous acquaintance with petitioner were matters within petitioner's knowledge at that time, yet petitioner waited until three-and-a-half years after the return of the indictment to file his motion for recusal. While there is no specific timeliness requirement in § 455, this delay in requesting recusal significantly undercuts petitioner's claims of bias and prejudice. See Bosley v. 21 WFMJ Television, Inc., 245 Fed.App'x 445, 455 (6th Cir. July 13, 2007); Davis v. Wendy's International, Inc., 187 F.3d 635 (table), 1999 WL 552597 at *7 (6th Cir. July 23, 1999) (delay of three years in filing motion under § 455 "casts doubt on the timeliness of the motion."); In re City of Detroit, 828 F.2d 1160, 1167-68 (6th Cir. 1987) ("Timeliness is a factor that obviously merits consideration by a court that is trying to determine whether a judge is truly biased or a litigant is merely trying to avoid an . . . adverse decision."), overruled in part on other grounds by In re Aetna Cas. Sur. Co., 919 F.2d 1136, 1140-43 (6th Cir. 1990) (en banc).
VI. Conclusion
The court concludes that nothing in the materials submitted by petitioner or the record of this case would support a finding that this court has a personal bias or prejudice against the petitioner, or that this court had extrajudicial knowledge of the facts of this case, which would result in the court's impartiality being reasonably subject to question. Petitioner's motion for the assignment of this case to a new judge is denied.
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