The opinion of the court was delivered by: Bua, District Judge.
Before the Court is defendant Michael C. Antonelli's motion to
disqualify the Honorable Frank J. McGarr from presiding over
pending and future hearings in this case on the grounds of
personal bias and prejudice pursuant to 28 U.S.C. § 144 and
455(a). Defendant's motion was reassigned to this Court by order
of the Executive Committee dated February 27, 1984. For the
reasons stated below, defendant's motion is denied.
In his motion and supporting affidavit, Antonelli asserts
essentially three grounds in support of his belief that Chief
Judge McGarr's impartiality in this case might reasonably be
questioned. First, Antonelli cites three statements allegedly
attributable to Chief Judge McGarr. Second, Antonelli cites
alleged delay by Chief Judge McGarr in ruling on defendant's
motion for a new trial. Third, Antonelli cites an alleged ex
parte and in camera communication between federal agents and
Chief Judge McGarr.
For the purpose of determining the legal sufficiency of an
affidavit in support of a motion to disqualify, the factual
allegations must be accepted as true. Berger v. United States,
255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481 (1921); United States v.
Zagari, 419 F. Supp. 494, 500 (N.D.Calif. 1976). The judge,
however, is presumed to be qualified, and there is a substantial
burden upon the movant to show otherwise. Zagari, 419 F. Supp. at
501. The affidavit is strictly construed against the party
seeking disqualification. United States v. Womack, 454 F.2d 1337,
1341 (5th Cir. 1972); Zagari, 419 F. Supp. at 501.
Two of the statements allegedly made by Chief Judge McGarr
occurred during the course of judicial proceedings concerning
Antonelli's case. The first statement was made during a bond
revocation hearing where Chief Judge McGarr allegedly referred to
Antonelli as "[t]he most viciously antisocial person who has ever
come before me." Defendant's Motion, ¶ 4. The second statement
was allegedly made during Antonelli's second sentencing hearing.
There, Chief Judge McGarr allegedly remarked that "[s]ociety has
been too lenient with you up to this point." Id. at ¶ 6.
Antonelli, however, has failed to sustain his burden of
demonstrating personal bias or prejudice based on these
allegations. Bias or prejudice sufficient to require
disqualification "must stem from an extrajudicial source and
result in an opinion on the merits on some basis other than what
the judge learned from his participation in the
case." Ma v. Community Bank, 686 F.2d 459, 472 (7th Cir. 1982)
(quoting United States v. Grinnell Corp., 384 U.S. 563, 583, 86
S.Ct. 1698, 1710, 16 L.Ed.2d 778 (1966). See also United States
v. English, 501 F.2d 1254, 1263 (7th Cir. 1974). The alleged
statements do not suggest that Chief Judge McGarr had access to
any "extrajudicial" information regarding Antonelli. Like in
United States v. Board of School Commissioners, 503 F.2d 68 (7th
Cir. 1974), the alleged remarks were "derived from proceedings
had before the court, and not on attitudes or conceptions that
were formed outside the courtroom. . . ." Id. at 81. As such,
Antonelli has failed to articulate grounds for disqualification
based on Chief Judge McGarr's alleged remarks from the bench. See
also Sperry Rand Corp. v. Pentronix, Inc., 403 F. Supp. 367,
371-73 (E.D.Pa. 1975).
The third statement cited by Antonelli in support of his motion
was allegedly made by Chief Judge McGarr during a speech before
the Federal Bar Association in Chicago on February 9, 1984.
Antonelli charges that Chief Judge McGarr referred to prisoners
litigating pro se as "psychopaths." Defendant's Motion, at ¶ 11.
A judge, however, may express his indignation over civil rights
matters before a public audience, so long as the remarks do not
refer to parties before the court. See Pennsylvania v. Local
Union 542, International Union of Operating Engineers,
388 F. Supp. 155 (E.D.Pa. 1974). See also United States v. Montecalvo,
545 F.2d 684, 685 (9th Cir. 1976). Antonelli has alleged no facts
which suggest that Chief Judge McGarr's alleged statements before
the Federal Bar Association evidence a personal animosity against
Antonelli. Cf. Mims v. Shapp, 541 F.2d 415 (3d Cir. 1976).
Neither will this Court infer that such animosity exists.
In addition to the alleged statements, Antonelli charges that
Chief Judge McGarr should be disqualified because of an alleged
ex parte and in camera communication between federal agents and
the judge. Antonelli, however, fails to indicate when the alleged
conversations took place, who was present during the
conversations, or the source of Antonelli's knowledge that such
conversations ever occurred. Neither does Antonelli cite when he
first learned of the alleged conversation so that this Court may
determine whether his motion to disqualify is timely. Without
such facts, Antonelli's motion based upon an alleged ex parte
communication is legally insufficient. See United States v.
Haldeman, 559 F.2d 31, 134 (D.C.Cir. 1976); Sperry Rand Corp. v.
Pentronix, Inc., 403 F. Supp. 367, 371 (E.D.Pa. 1975); United
States v. Partin, 312 F. Supp. 1355, 1359 (E.D.La. 1970).
Furthermore, Antonelli's contentions, apparently based on
unsupported hearsay, are insufficient to warrant
disqualification. Roussel v. Tidelands Capital Corp., 438 F. Supp. 684,
690 (N.D.Ala. 1977); United States v. Partin, 312 F. Supp. 1355
The third ground for disqualification asserted by Antonelli
concerns Chief Judge McGarr's alleged delay in ruling on
Antonelli's motion for a new trial. Antonelli claims that the
fact that his motion has been pending "over 3 1/2 years" is
additional evidence of Chief Judge McGarr's personal bias and
prejudice in this case. Given, however, the fact that Antonelli
did not file a memoranda in support of his motion for a new trial
until over three years after his motion was filed, it is
difficult, at best, to attribute blame to Chief Judge McGarr for
the 3 1/2-year delay. Even assuming, however, that the delay can
be attributable to Chief Judge McGarr, such delay is insufficient
to establish personal bias or prejudice under 28 U.S.C. § 144.
Curl v. International Business Machines Corp., 517 F.2d 212, 214
(5th Cir. 1975).
Defendant has failed to sustain his burden under 28 U.S.C. § 144
and 455(a). Defendant's motion to disqualify the Honorable
Frank J. McGarr is therefore denied.
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