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United States v. Peel

May 18, 2006

UNITED STATES OF AMERICA, PLAINTIFF,
v.
GARY E. PEEL, DEFENDANT.



The opinion of the court was delivered by: Herndon, District Judge

MEMORANDUM AND ORDER

I. Introduction and Background

Pending before the Court is Peel's motion for recusal filed on May 8, 2006 (Doc. 15). Specifically, Peel argues that the mere appearance of impartiality of this Court might reasonably be questioned due to the "relationship" between the undersigned and Defendant. He concedes that he does not contend that the Court harbors any actual bias or prejudice in this matter.

On March 22, 2006, the grand jury returned a four count indictment against Gary E. Peel alleging bankruptcy fraud (Count 1), obstruction of justice (Count 2) and possession of child pornography (Counts 3 & 4) in violation of 18 U.S.C. § § 152(6), 1512(c) and 2252A(a)(5)(B) (Doc. 1). On April 13, 2006, Peel appeared before Magistrate Judge Wilkerson and pled not guilty to the charges contained in the indictment (Doc. 4). During the arraignment, the undersigned district judge made a disclosure of his prior business relationship with Peel. The undersigned indicated that in the early 80s (about 20 years ago) he was the managing partner and that Peel was an employee of the law firm Lakin Herndon & Peel*fn1 ; that Peel was with the firm for about 3 years; and that Peel left the firm to make more money and that his departure was amicable. The undersigned also disclosed that since Peel left the law firm there has been no other relationship (business or otherwise) with Peel other than "knowing him like any other lawyer in this fairly small legal community." The undersigned also noted that sometime in late 2003 Bradly Lakin of the Lakin law firm called the undersigned and inquired about Peel because the Lakin law firm was interested in rehiring Peel. Mr. Lakin called to inquire about why and under what circumstances Peel had left Lakin Herndon & Peel in the early 80s. The undersigned affirmed that Peel left of own his own accord and that his work with the firm had been fine at that time. Further, the undersigned noted that he does not have any interest (financial or otherwise) in the current Lakin law firm; that he does not recuse from Lakin law firm cases and that in the one case that Peel appeared as counsel before the undersigned (since he has been on the bench), the undersigned ruled against him on a pending motion. Thereafter on May 8, 2006, despite the fact that the Court carefully pointed out that it has no "relationship" with Defendant, Peel filed the present motion to recuse based on some perceived "relationship." The Court now turns to address the merits of Peel's motion.

II. Code of Conduct for United States Judges

Canon 3, Section A sets out the adjudicative responsibilities of a federal judge. Specifically, subsection 2 thereof states: "A judge should hear and decide matters assigned, unless disqualified, and should maintain order and decorum in all judicial proceedings." Subsection C describes the area of disqualification. It is not by happenstance that the canon begins with the admonition that a judge handle matters assigned. A judge should always begin with the proposition that he or she handle the caseload entrusted to him or her in order to facilitate an efficient and well organized court system with a truly random assignment of cases. Doing so further insures a well balanced assignment of cases. A judge's recusal from a case is not something to be exercised on a whim or without considerable thought and certainly only for appropriate reasons.

This judge certainly considers his work ethic seriously and only recuses when absolutely necessary. If anything, the judge is used to taking on extra work rather than passing on work to his brethren who are already burdened with plenty to do. The judge's colleagues can attest to his absence from this district while helping out in another district much of November and December of last year and April and May of this year. Having suggested a primary inclination to handle what is assigned to a judge should not be interpreted as a "duty to sit," at least in close cases. Clearly such has been found to have be nonexistent with the passage of 28 U.S.C. § 455. See,SCA Services, Inc. v. Morgan, 557 F.2d 110, 113 (7th Cir. 1977). By the same token, a party should not seek a judge's recusal simply to avoid a judge and facilitate the desire to shop around for another judge, perhaps one who is more lenient in the imposition of sentences.

III. Recusal Under 28 U.S.C. § 455(a)

According to 28 U.S.C. § 455(a) "[a]ny justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." See Liteky v. United States, 510 U.S. 540, 548 (1994). Section 455(a) has been termed the "'catchall ' recusal provision, covering both 'interest and relationship' and 'bias and prejudice grounds." Id. at 548. Actual bias is not necessary; the appearance of bias is adequate to trigger recusal under § 455. The inquiry under § 455(a) is based on an objective standard. Id. Thus, the inquiry to be made is "whether a reasonable person perceives a significant risk that the judge will resolve the case on a basis other than the merits." Hook v. McDade, 89 F.3d 350, 354 (7th Cir.1996) (citation omitted). "The decision whether a judge's impartiality can 'reasonably be questioned' is to be made in light of the facts as they existed, and not as they were surmised or reported." Cheney v. United States District Court for the District of Columbia, 541 U.S. 913, 124 S.Ct. 1391, 1392 (2004) (quoting Microsoft Corp. v. United States, 530 U.S. 1301, 1302 (2000)). This inquiry is made based on a reasonable person standard, as opposed to "a hypersensitive or unduly suspicious person." Hook, 89 F.3d at 354 (citation omitted). Thus, trivial risks of perceived impartiality are insufficient to warrant recusal. SeeId. The objective, reasonable person standard of § 455(a) is intended to promote public confidence in the impartiality of the judicial process. "In furthering the policy of public confidence in the impartiality of the judicial process, a court faced with a motion under § 455(a) must recuse itself where valid reasons are presented, and must not recuse itself where the proffered reasons are not valid." New York City Housing Development Corp. v. Hart, 796 F.2d 976, 981 (7th Cir. 1986); see also United States v. Baskes, 687 F.2d 165, 170 (7th Cir. 1981)(rev'd on other grounds)("A motion for recusal should not be granted lightly; a judge is under as much obligation not to recuse himself when facts do not show prejudice as he is to recuse himself if they do.").

IV. Analysis

In support of his recusal motion, Peel contends a prior business relationship between the undersigned and himself and the publicity surrounding this case warrants recusal. Specifically, Peel contends that recent local media accounts and future media accounts regarding the undersigned's association with Peel require the undersigned to recuse from this matter.*fn2 The Government and the undersigned disagree.

First, "A judge's friendship with one of the attorneys, or acquaintance with witnesses or even parties, does not ordinarily require recusal ... [h]owever, there are cases where the extent of intimacy, or other circumstances, renders recusal necessary." Recusal: Analysis of Case Law Under 28 U.S.C. §§ 455 & 144 (Fed.Jud.Ctr.2002). This is not such a case. The mere fact that a judge knows any attorney, witness or litigant is insufficient to warrant recusal. Further, the mere fact that at some point in time the attorney, witness or litigant may appear before him is insufficient to warrant recusal. Similarly, the mere fact that a judge was once a boss of a litigant is insufficient to warrant recusal. See United States v. Murphy, 768 F.2d 1518, 1537 (7th Cir. 1985)(A judge need not cut himself off from the rest of the legal community.); see also Cheney, 124 S.Ct. at 1394-95 ("A rule that required Members of this Court to remove themselves from cases in which the official actions of friends were at issue would be utterly disabling"). As the Seventh Circuit has stated:

In today's legal culture friendships among judges and lawyers are common. They are more than common; they are desirable. A judge need not cut himself off from the rest of the legal community. Social as well as official communications among judges and lawyers may improve the quality of legal decisions. Social interactions also make service on the bench, quite isolated as a rule, more tolerable to judges. Many well- qualified people would hesitate to become judges if they knew ...


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