U.S. v. Cooper

283 F.Supp.2d 1215

UNITED STATES of America, Plaintiff, v. Terence W. COOPER, Frank D. Heck, and Paige A. Heck, Defendants.

No. 02-40069-01/02/03-SAC.

United States District Court, D. Kansas.

August 21, 2003.

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Mark L. Bennett, Jr., Bennett & Hendrix, LLP, Topeka, KS, Terrence J. Campbell, Barber, Emerson, Springer, Zinn & Murray, LC, Lawrence, KS, Melody J. Evans, Office of Federal Public Defender, Stephen W. Kessler, Topeka, KS, for defendants.

Tanya J. Treadway, Office of United States Attorney, Topeka, KS, for plaintiff.

MEMORANDUM AND ORDER

CROW, Senior District Judge.

The case comes before the court on the parties' numerous contested pretrial motions. The following motions filed by the government are pending:

Motion for Discovery (Dk.45), Motion to Allow Two Case Agents to be Excused From Rule 615 Sequestration (Dk.88), and Motion to Supplement (Dk.127). The defendants have filed the following joint motions that await decision: Motion in Limine (Dk.94), Motion to Dismiss Indictment (Dk.95), Motion to Determine Admissibility of Extra-Judicial Statements of Alleged Co-Conspirators (Dk.96), Motion for Discovery (Dk.99), Motion to Require Preservation of Investigative Officers' Handwritten Notes (Dk.101), Motion for Bill of Particulars (Dk.106), Motion to Strike Surplusage From the Indictment (Dk.107), Motion to Suppress (Dk.110), Motion for Recusal (Dk.130). In addition, the defendant Frank D. Heck has filed a motion for joinder (Dk.93), the defendant Paige A. Heck has given notice of her joinder in co-defendants' motions (Dks. 92 and 97), and the defendant Terence W. Cooper had filed a Motion for Simmons Immunity (Dk.140). Because it goes to the propriety of even handling this case, the court will look first at the motion to recuse.

DEFENDANTS' MOTION TO RECUSE (Dk.130)

The defendants jointly move the court for an order of recusal pursuant to 28 U.S.C. § 455 arguing that the court's impartiality in this case might reasonably be questioned as a result of its prior ruling on the government's motion to compel in the underlying grand jury proceedings. On May 2, 2001, in its assigned role of overseeing the grand jury proceedings, this court issued a memorandum granting in part and denying in part the government's motion to compel compliance with its subpoena duces tecum issued to Scott Long, who was represented to be a business partner of the defendants and an officer, shareholder or consultant to the entities under investigation. As summarized in that order, Mr. Long opposed the production of some documents claiming they were protected from discovery by either the attorney-client privilege or the work product doctrine, and the government argued first that the documents were not privileged and, alternatively, that the privilege had been waived by the abandonment of certain attorney-client communications. Without conducting any hearing, the court relied on declarations from Agent Brian Holt with HHS-OIG (Health and Human Services-Office of Inspector General) and the building owner, James Leon Coker, in concluding in that order: "The uncontroverted facts (solely for purposes of this motion) establish that in November of 1988(sic), Midwest Health Care Providers Inc. (`Midwest') locked the doors to the premises it had been leasing and abandoned the premises, leaving behind a cat, furniture, other items and numerous documents."

Acknowledging that courts do not recognize prior adverse rulings in a proceeding as sufficient grounds alone for recusal, the defendants emphasize that the adverse ruling here occurred prior to indictment and without the defendants' opportunity for input and that this ex parte ruling concerns the very same issue of abandonment now being raised in their motion to suppress. In opposing the motion, the government denies that the defendants' interests were not represented by counsel in the underlying grand jury proceeding and that the court issued an ex parte ruling in the grand jury proceeding. The government points to a memorandum filed in opposition to the motion to compel by counsel for Scott Long, Midwest Health Care Providers, Inc., Frank Heck, Paige Heck and Troy Heck.¹ The government does agree that the defendants' counsel in those proceedings did not dispute the government's factual allegations on the abandonment issue. Not only are adverse rulings insufficient grounds alone for recusal, but the government also argues that the defendants have not identified any extrajudicial source as grounds for impartiality and have not alleged any facts that would indicate the prior ruling is evidence of a deepseated bias preventing the court from being fair.

The defendants rely on 28 U.S.C. § 455(a) which provides:

(a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

"This statute seeks to balance two competing policy considerations: first, that courts must not only be, but seem to be, free of bias or prejudice, ...; and second, the fear that recusal on demand would provide litigants with a veto against unwanted judges." In re Boston's Children First, 244 F.3d 164, 167 (1st Cir.2001) (internal quotation and citations omitted). Under § 455(a), "the obligation to identify the existence of [bias or prejudice] is upon the judge himself, rather than requiring recusal only in response to a party affidavit." Liteky v. United States, 510 U.S. 540, 548, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994). A judge has a duty to recuse herself if she "concludes that sufficient factual grounds exist to cause an objective observer reasonably to question the judge's impartiality." United States v. Cooley, 1 F.3d 985, 992 (10th Cir.1993) (citation omitted). The decision to recuse remains within the sound discretion of the district court judge. United States v. Stenzel, 49 F.3d 658 (10th Cir.), cert. denied, 516 U.S. 840, 116 S.Ct. 123, 133 L.Ed.2d 73 (1995). However, "if the question of whether § 455(a) requires disqualification is a close one, the balance tips in favor of recusal." Nichols v. Alley, 71 F.3d 347, 352 (10th Cir.1995).

When a judge fails to remove himself sua sponte under § 455(a), a party may ask the judge to recuse himself pursuant to that section. See, e.g., Liteky, 510 U.S. at 542-43, 114 S.Ct. 1147; Green v. Branson, 108 F.3d 1296, 1305 (10th Cir. 1997). Section 455(a) motions for recusal "must be timely filed," which means a movant must act promptly upon learning the facts underlying the motion. United States v. Pearson, 203 F.3d 1243, 1276 (10th Cir.) (quoting Willner v. University of Kansas, 848 F.2d 1023, 1028 (10th Cir. 1988), cert. denied, 488 U.S. 1031, 109 S.Ct. 840, 102 L.Ed.2d 972 (1989)), cert. denied, 530 U.S. 1268, 120 S.Ct. 2734, 147 L.Ed.2d 995 (2000). On the other hand, litigants may assume the impartiality of the assigned judge rather than investigating a judge's private affairs and financial matters, for judges have an ethical duty to "disclose on the record information which the judge believes the parties or their lawyers might consider relevant to the question of disqualification." American Textile Mfrs. Institute, Inc. v. The Limited, Inc., 190 F.3d 729, 742 (6th Cir.1999) (quotation omitted), cert. denied, 529 U.S. 1054, 120 S.Ct. 1556, 146 L.Ed.2d 461 (2000).

The important policy behind this statute is to promote "public confidence in the integrity of the judicial process." Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 858 n. 7, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988). The Tenth Circuit recently summarized the law relevant in analyzing these provisions:

The trial judge must recuse himself when there is the appearance of bias, regardless of whether there is actual bias. Nichols v. Alley, 71 F.3d 347, 350 (10th Cir.1995). "The test is whether a reasonable person, knowing all the relevant facts, would harbor doubts about the judge's impartiality." Hinman v. Rogers, 831 F.2d 937, 939 (10th Cir.1987) (citation omitted). If the issue of whether § 455 requires disqualification is a close one, the judge must be recused. Nichols, 71 F.3d at 352.

On the other hand, a judge also has "as strong a duty to sit when there is no legitimate reason to recuse as he does to recuse when the law and facts require." Id. at 351. The recusal statute should not be construed so broadly as to become presumptive or to require recusal based on unsubstantiated suggestions of personal bias or prejudice. Switzer v. Berry, 198 F.3d 1255, 1258 (10th Cir. 2000); see also United States v. Cooley, 1 F.3d 985, 993 (10th Cir.1993) ("The statute is not intended to give litigants a veto power over sitting judges, or a vehicle for obtaining a judge of their choice.").

Bryce v. Episcopal Church in the Diocese of Colorado, 289 F.3d 648, 659-660 (10th Cir.2002). It covers both "interest or relationship" grounds and "bias or prejudice" grounds. Liteky v. United States, 510 U.S. at 548, 114 S.Ct. 1147.

The inquiry under Section 455(a) "is limited to outward manifestations and reasonable inferences drawn therefrom." United States v. Cooley, 1 F.3d at 993. "[T]he appearance of impartiality is virtually as important as the fact of impartiality." Webbe v. McGhie Land Title Co., 549 F.2d 1358, 1361 (10th Cir.1977). "The standard is purely objective. The inquiry is limited to outward manifestations and reasonable inferences drawn therefrom." Estate of Bishop v. Equinox Intern. Corp., 256 F.3d 1050, 1058 (10th Cir.2001) (quotation and citation omitted), cert. denied, 534 U.S. 1130, 122 S.Ct. 1069, 151 L.Ed.2d 972 (2002). "Factors that do not merit disqualification include: rumor, speculation, beliefs, conclusions, or other non-factual matters." Id. (citation omitted). Put another way, "disqualification [is] appropriate only when the charge is supported by a factual...