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United States of America v. David T. Morrow

July 19, 2011


The opinion of the court was delivered by: J. Phil Gilbert District Judge


This matter comes before the Court on a variety of motions filed by defendant David T. Morrow: motion for a new trial (Doc. 434), motion for grand jury transcripts (Docs. 444 & 448), motion for discovery material (Doc. 445), motion for disqualification (Doc. 451) and motion to change publication status (Doc. 452). The Government has responded to some of the motions (Docs. 435, 446, 447). The Court will address each motion in turn, beginning with the request that the Court recuse itself.

I. Motion for Disqualification (Doc. 451)

Morrow asks this judge to recuse himself from further proceedings in this case, including any forthcoming motion under 28 U.S.C. § 2255, pursuant to 28 U.S.C. §§ 144 and § 455(b) on the grounds that the Court showed bias toward the Government and against him (1) in its ruling on the jury instructions, (2) in imposing the same sentence after remand despite considering his medical condition, (3) giving a downward departure to co-defendant Robert Harris, (4) admission of certain evidence under Federal Rule of Evidence 404(b), and (5) possibly on other reasons that are not completely clear from Morrow's motion. Morrow attaches his own affidavit stating his belief that the Court has "a personal bias and prejudice against" him and citing examples from court proceedings he claims reflect that bias.

A. 28 U.S.C. § 144

A judge must recuse himself "[w]henever a party . . . makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party." 28 U.S.C. § 144. An affidavit is not timely unless filed as soon as the movant is aware of the facts establishing the basis for the judge's disqualification. United States v. Sykes, 7 F.3d 1331, 1339 (7th Cir. 1993). "An affidavit is sufficient if it avers facts that, if true, would convince a reasonable person that bias exists." United States v. Balistrieri, 779 F.2d 1191, 1199 (7th Cir. 1985); accord O'Regan v. Arbitration Forums, Inc., 246 F.3d 975, 989 (7th Cir. 2001). The facts in the affidavit must be stated with particularity and must be definite as to times, places, persons and circumstances. They cannot be mere conclusions, opinions, or rumors. O'Regan, 246 F.3d at 989; Sykes, 7 F.3d at 1339; Balistrieri, 779 F.2d at 1199. The affidavit also must show "that the bias is personal rather than judicial, and that it stems from an extra-judicial source -- some source other than what the judge has learned through participation in the case." Balistrieri, 779 F.2d at 1199 (citations omitted); accord Sykes, 7 F.3d at 1339. All allegations in the affidavit must be taken as true, even if the Court knows them to be false. Sykes, 7 F.3d at 1339; Balistrieri, 779 F.2d at 1199. Because the statute "is heavily weighed in favor of recusal," its requirements are to be strictly construed to prevent abuse. Sykes, 7 F.3d at 1339; Balistrieri, 779 F.2d at 1199.

B. 28 U.S.C. § 455(b)

A judge must recuse himself "[w]here he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding." 28 U.S.C. § 455(b)(1). As with § 144, bias justifying recusal under this statute must arise from an extra-judicial source. O'Regan v. Arbitration Forums, Inc., 246 F.3d 975, 988 (7th Cir. 2001)

"[N]either judicial rulings nor opinions formed by the judge as a result of current or prior proceedings constitute a basis for recusal 'unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.'" United States v. White, 582 F.3d 787, 807 (7th Cir. 2009) (quoting Liteky v. United States, 510 U.S. 540, 555 (1994)), cert. denied, 130 S. Ct. 1542 (2010).

Morrow has not described any bias from an extra-judicial source that could cause a reasonable person to believe that the Court is biased against Morrow or for the Government. Nor has he pointed to any evidence of actual bias or any "deep-seated favoritism or antagonism" that made a fair trial impossible. The Court ruled against Morrow on a number of occasions because he was wrong, not because of any bias. It further rendered some decisions with which Morrow was unhappy, but those decisions were either supported by the appropriate justifications or were corrected when the case was remanded for resentencing. See United States v. Harris, 567 F.3d 846, 854-56 (7th Cir. 2009) (remand for resentencing because Court failed to acknowledge consideration of Morrow's medical condition as a mitigating factor in sentencing and for consideration of Kimbrough v. United States, 552 U.S. 85 (2007)); United States v. Morrow, No. 10-1602, 2011 WL 1460174, at *1 (7th Cir. Apr. 18, 2011) (stating "we are satisfied that the court adequately addressed our concerns on remand"). In the absence of any evidence of bias, the undersigned judge will not recuse himself under 28 U.S.C. §§ 144 or 455(b)(1).

II. Motion for a New Trial (Doc. 434)

Morrow asks the Court to give him a new trial pursuant to Federal Rule of Criminal Procedure 33(b)(1) on the grounds that he has newly discovered evidence of "wanton fraud" by the Court and mental incapacity of the undersigned judge. Morrow believes such "evidence" justifies a new trial with a fair, impartial and competent judge. He makes further unsupported allegations that the Court has colluded with the Government to convict Morrow in areas such as grand jury proceedings, the indictment, the trial, jury instructions and sentencing. He does not point to a single bit of real evidence of facts.

The Government has responded to Morrow's motion (Doc. 435) arguing first that it is untimely and second that it has no merit.

A court may vacate a judgment and grant a defendant a new trial if the interest of justice so requires. Fed. R. Crim. P. 33(a). The decision to grant a new trial is within the Court's discretion. See United States v. Ervin,540 F.3d 623, 630 (7th Cir. 2008), cert. denied, 129 S. Ct. 1030 (2009). Where the motion is based on newly discovered evidence, as Morrow's motion ...

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