United States District Court, E.D. Michigan, Southern Division
ORDER DENYING DEFENDANT'S “MOTION FOR
H. CLELAND UNITED STATES DISTRICT JUDGE.
before the court is Defendant's motion for
disqualification. (ECF No. 30.) The court held oral argument
for this motion on April 25, 2019, and a continuation of the
motion hearing was held on May 6, 2019. In the written
motion, Defendant requests that the undersigned judge
disqualify himself based on what Defendant asserts is
“an avowed position” of this court in this case,
communicated to Defendant through his former attorney, Mr.
Fishman, “that the computed guideline range is barely,
minimally sufficient and that, if sentence were being imposed
following a guilty verdict, [the court] would depart upward
to five (5) years.” (Id. at PageID 143.)
Defendant further asserts that the court allowed the
Government to obtain portions of a sealed sentencing
transcript of another defendant, “to be utilized in a
foreboding manner” in attempts to force Defendant to
accept a plea agreement. (Id.) Defendant argues that
the court's decision to unseal the sentencing transcript
amounted to an act of judicial coercion in violation of Rule
11 and infringed upon Defendant's Fifth Amendment Right
to the presumption of innocence. Defendant's oral
argument centered as well on this alleged Rule 11 violation.
Defendant argued, paradoxically, that the court did not
consciously involve itself in plea negotiations by unsealing
the sentencing transcript but, at the same time, implicitly
knew that unsealing the transcript would be used to influence
Defendant's plea. The court's act of unsealing the
transcript, Defendant contends, necessitates disqualification
to avoid an “unacceptable risk and perception of
partiality” and to “maintain the appearance of
justice.” (Id. at 147.) The court will deny
for disqualification are governed under 28 U.S.C. § 455,
which provides that “[a]ny justice, judge, or
magistrate judge of the United States shall disqualify
himself in any proceeding in which his impartiality might
reasonably be questioned.” 28 U.S.C. § 455(a).
“In order to justify recusal under 28 U.S.C. §
455, the judge's prejudice or bias must be personal or
extrajudicial.” United States v. Jamieson, 427
F.3d 394, 405 (6th Cir. 2005) (citing United States v.
Hartsel, 199 F.3d 812, 820 (6th Cir. 1999)).
“‘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)). Therefore, it is not an abuse of discretion to
deny a motion to disqualify where, as here, the motion
“is merely based upon the judge's rulings in the
instant case or related cases or attitude derived from his
experience on the bench.” Shaw v. Martin, 733
F.2d 304, 308 (4th Cir. 1984).
rulings alone almost never constitute a valid basis for a
bias or partiality motion.” Liteky v. Unites
States, 510 U.S. 540, 555 (1994). An objective standard
governs whether a judge must disqualify. See United
States v. Sammons, 918 F.2d 592, 599 (6th Cir. 1990)
(quoting Hughes v. United States, 899 F.2d 1495,
1501 (6th Cir. 1990), cert. denied, 498 U.S. 980
(1990)). A judge must disqualify when an objective,
reasonable person who “knowing all of the
circumstances, would have questioned the judge's
impartiality” but a judge need not disqualify,
“based on the ‘subjective view of a party' no
matter how strongly that view is held.”
Sammons, 918 F.2d at 599 (quoting Browning v.
Foltz, 837 F.2d 276, 279 (6th Cir. 1988), cert.
denied, 488 U.S. 1018 (1989)).
takes pains to assert no suggestion that this court is biased
in fact, but rather argues generally that
“circumstances presented when applied to the policies
and constitutional concerns, mandate reassignment.”
(ECF No. 30, PageID 147.) This does not identify or analyze
an appropriate legal standard for disqualification. Defendant
makes no argument that the court holds some deep-seated bias
that would make rendering an impartial judgment impossible;
indeed, quite the opposite as noted above.
Defendant supports his motion with a purported belief that
the court will impose a five-year sentence should Defendant
be found guilty at trial, a belief, he claims, that stems
from the court's comments in a sentencing hearing in a
different (albeit related) case in which the court was
speaking to another defendant concerning the facts and
circumstances of that other case.
tries to deflect responsibility for accusing the court of
actual bias, while at the same time phrasing his factual
statements with provocative grammar such as the assertion
that the court allowed the Government to obtain the
sentencing transcript “to be utilized in a foreboding
manner.” Does the Defendant thereby identify the
court's intent to forebode, or the government's?
either event, it is clear from a review of the sentencing
transcript at issue that the court was admonishing a
defendant who was receiving a very favorable 5(k)1.1 sentence
and explaining that a sentence could well have been more
punitive in the absence of his truthful cooperation. The
court's comments in that case highlighted “the
nature and circumstances of the offense, ” 18 U.S. Code
§ 3553(a)(1), and “the need for the sentence
imposed to reflect the seriousness of the offense.” 18
U.S.C. § 3553(a)(2)(A).
sentencing is and must be unique, personally administered,
and tailored to the facts of that defendant's situation.
Comments rendered and explained to a defendant in one case
may-or may not-apply in another case even if there are
similarities in the statute governing the conviction. Things
said by a judge in articulating the sentence are best
understood as providing the judge's thinking in that
case. Even if they are taken correctly as the
judge's thinking about similar cases, they are not the
kind of extra-judicial statements that could qualify as
potentially disqualifying. As explained, neither
Defendant's subjective beliefs, nor the court's
statements and rulings, require disqualification. See
Liteky, 510 U.S. at 555; Sammons, 918 F.2d at
disqualification is not properly grounded on Defendant's
allegation that the court participated in plea negotiations.
Defendant asserts that the court participated in plea
negotiations by agreeing with the Government's motion to
unseal a sentencing transcript in the earlier related case.
At argument, counsel for Defendant, Mr. Halpern, stated that
Defendant's former counsel, Mr. Fishman, informed the
Defendant of the sealed transcript and that the Government
had “approached” the court to obtain an order to
unseal it. According to Mr. Halpern, once the court signed
the order to unseal the transcript, it had ipso
facto inserted itself into plea negotiations and
committed a violation of Rule 11. The court is left to wonder
at Mr. Halpern's simultaneous arguments in this regard:
he states with firm assurance that the court became
“involved” only unwittingly and at the behest of
the Government, while also arguing that an evidentiary
hearing is needed to determine what the parties'
understood the court's intention to be in signing the
order to unseal. Such a collateral proceeding is not
the Government in fact used portions of the formerly sealed
transcript as part of its approach to plea negotiations, the
court's signature on an order to unseal it is too far
attenuated to constitute the type of direct judicial
involvement in plea negotiations prohibited by Rule 11.
Compare, United States v. Davila, 569 U.S.
597, 600 (2013) (judge's overt comment that guilty plea
would be the defendant's “best course” is
improper judicial involvement).
transcript at issue, the court did not acknowledge the
Defendant, made no comments about him, did not discuss the
facts of his case, and did not refer to his personal
characteristics. Mr. Halpern's attempt to ascribe
coercive effect or intent to the court's largely
administrative action of unsealing a sentencing transcript is
predicated on a collection of speculative assumptions that
have no basis in fact.
related case, the Government filed a motion to unseal and
then reseal the transcript. The motion did not describe how
the Government intended to use the requested transcripts
apart from its desire to share them with Defendant's
attorney. Defendant, in briefs and arguments, asserts that
the Government had “approached” the court, and
seems to intimate impropriety in so doing; the fact, however,
is that the Government did not engage in any ex
parte discussions with the court concerning its intended
use of the sealed materials, or anything else, for that
exists no requirement known to the court that Government
counsel provide such background information to the court,
although often it does. The court retains broad authority to
order materials filed under seal in ongoing cases, and an