United States v. Hicks

1

UNITED STATES OF AMERICA, v. AARON HICKS, Defendant.

Nos. 15-CR-33-RJA, 23-CV-166-RJA

United States District Court, W.D. New York

January 16, 2024

DECISION AND ORDER

HONORABLE RICHARD J. ARCARA UNITED STATES DISTRICT COURT JUDGE

Before the Court is Defendant/Petitioner Aaron Hicks' pro se motion seeking recusal of this Court. (Dkt. No 1022). The Government filed a response in opposition to the motion. (Dkt. No. 1032) and Hicks replied. (Dkt. No 1033).^[1]For the reasons which follow, Hicks' motion is DENIED.

I. Background

Hicks was initially tried in 2017 on a three-count Superseding Indictment that charged him with: RICO conspiracy, in violation of 18 U.S.C. § 1962(d); narcotics conspiracy, in violation of 21 U.S.C. § 846; and possession of firearms in furtherance of a crime of violence and drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i). The jury did not reach a verdict on the RICO conspiracy charge, and otherwise rendered a split verdict, convicting Hicks of narcotics conspiracy but acquitting him of the firearms possession count. (Dkt. Entry, dated 10/13/2017).

Hicks was retried on the RICO conspiracy charge in April and May of 2018 and convicted. (Dkt. Entry, dated 5/2/2018). On February 27, 2019, Hicks was sentenced to an aggregate term of 360 months imprisonment, consisting of 240 months for his conviction on the RICO conspiracy conviction and 120 months as to his initial conviction for narcotics conspiracy, to run consecutively. (Dkt. No. 473).

Hicks appealed his convictions to the Second Circuit in 2019. (Dkt. No. 475). Following the Second Circuit's affirmance of his convictions (Dkt. No. 638), Hicks filed a Petition for Certiorari with the Supreme Court, which was denied on February 22, 2022. See United States v. Hicks, 5 F.4th 270 (2d Cir. 2021), cert. denied, 142. S.Ct. at 1157 (2022).

Nearly one year later, on February 21, 2023, Hicks filed a motion to vacate his convictions pursuant to 28 U.S.C. § 2255 (Dkt. No. 964), which he amended with the Court's leave on April 25, 2023. (Dkt. Nos. 1005, 1008; Dkt. Entry, dated 5/26/2023). After filing his Amended § 2255 Motion, Hicks filed a Motion to for Discovery (Dkt. No. 1015); a Motion for Relief Under Rule 60(b) and Rule 59(a) (Dkt. No. 1021); and the instant Motion for Recusal (Dkt. No. 1022).

Thereafter, this Court granted a Government motion for an extension of time to respond to Hicks' Motion for Recusal (Dkt. No. 1022) and ordered that the Government's response deadlines for Hicks' other pending motions (Dkt. Nos. 1015 and 1021)-including his §2255 motion (Dkt. Nos. 964 and 1005)-be held in abeyance until the resolution of this Recusal Motion. (Dkt. No. 1022).

In his motion, which is styled as one brought pursuant to 28 U.S.C. §455, Hicks cites three items to support his contention that this Court ought to be recused. Those items are: (1) a signed-but undated-declaration from Ms. Barbary, a juror at Hicks' 2018 second trial (Dkt. No. 1022, pp. 7-8)^[2]; (2) a declaration from Patricia Kessel, a juror at Hicks' first trial in 2017 (Dkt. No. 1022, pp. 16-17);^[3]and (3) an article, dated August 2, 2021, from an entity called “Filter,” which according to Hicks', “discusses the racial bias of the trial judge that presided over [his] trials.” (Dkt. No. 1022, pp. 2; 13-14).^[4]None of these materials-individually or collectively-warrant recusal of this Court.

II. Legal Framework

Hicks brings his motion pursuant to 28 U.S.C. §§ 455(a) and 455(b). (Dkt. No 1022, p. 1).

Under 28 U.S.C. § 455(a), “[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.” The Second Circuit has advised that this subsection “governs circumstances that constitute an appearance of partiality, even though actual partiality has not been shown.” Chase Manhattan Bank v. Affiliated FM Ins. Co., 343 F.3d 120, 127 (2d Cir. 2003).

The judge must determine “whether an objective, disinterested observer, fully informed of the underlying facts, would entertain significant doubt that justice would be done absent recusal.” In re Basciano, 542 F.3d 950, 956 (2d Cir. 2008) (alterations and internal quotation marks omitted); see also Chase Manhattan Bank v. Affiliated FM Ins. Co., 343 F.3d at 127 (finding that disqualifying partiality is determined “based on what a reasonable person knowing all the facts would conclude”).

The reach of § 455(a) “is commonly limited to those circumstances in which the alleged partiality stem[s] from an extrajudicial source.” United States v. Carlton, 534 F.3d at 100 (alteration in original) (internal quotation marks omitted). In other words, opinions held by judges based upon what they learned in a given case involving the same defendant and the same set of facts are “not ordinarily a basis for recusal,” id., and “judicial rulings alone almost never constitute a valid basis for a bias or partiality motion.” Liteky v. United States, 510 U.S. 540, 555 (1994). Moreover, “opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.” Id. As the Second Circuit has observed:

[R]ecusal is not warranted where the only challenged conduct consists of judicial rulings, routine trial administration efforts, and ordinary admonishments to counsel and to witnesses, where the conduct occurs during judicial proceedings, and where the judge neither (1) relies upon knowledge acquired outside such proceedings nor (2) displays deep- seated and unequivocal antagonism that would render fair judgment impossible.

S.E.C. v Razmilovic, 738 F.3d 14, 29-30 (2d Cir. 2013) (alterations and internal quotation marks omitted); see also Canino v. Barclays Bank, PLC, No. 94 Civ. 6314(SAS), 1998 WL 7219, at *3 (S.D.N.Y. Jan. 7, 1998) (noting that § 455(a) “does not compel disqualification simply on unfounded innuendo concerning the possible partiality of the presiding judge”) (internal quotation marks omitted).

Whereas § 455(a) addresses the “appearance” of bias or prejudice, United States v. Wedd, 993 F.3d 104, 114 (2d Cir. 2021) (emphasis added) (quoting Liteky, 510 U.S. at 548), § 455(b) “addresses the problem of actual bias by mandating recusal in certain specific circumstances where partiality is presumed.” United States v. Bayless, 201 F.3d 116, 126 (2d Cir. 2000) (emphasis added). Section 455(b)(1) requires recusal “[w]here [the judge] 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). In enacting 28 U.S.C. §455(b)(1), Congress “entirely duplicated the grounds of recusal set forth in [28 U.S.C.] § 144 ([involving allegations of] “bias or prejudice”). Liteky v. United States, 510 U.S. at 548. The Second Circuit has further observed that because both 28 U.S.C. §§ 144 and 455(b)(1) address the same issue, the statutes are to be construed in pari materia. United States v. Pugliese, 805 F.2d 1117, 1125 (2d Cir. 1986).

Section 144 provides that a judge should recuse himself when a party has filed a “timely and sufficient affidavit” showing that the judge has “a personal bias or prejudice” against the party or in favor of an adverse party. The statute requires that another district court judge be assigned to hear the matter if the movant establishes both that the disqualification motion is “timely” and the party's affidavit is legally “sufficient.” 28 U.S.C. § 114. If it can be established that the affidavits submitted in support of a recusal motion are both “timely and sufficient,” then the Court “must accept them as true for the purpose of ruling upon their legal sufficiency, however unfounded they may be in fact.” United States v. IBM Corp., 475 F.Supp. at 1379 (citing Berger v. United States, 255 U.S. at 36).

Nevertheless, a recusal motion is a serious matter, “strik[ing] at the integrity of the judicial process.” In re IBM Corp., 618 F.2d at 927. Recusal motions should not be used as “strategic devices to judge shop.” Lamborn v. Dittmer, 726 F.Supp. 510, 515 (S.D.N.Y.1989); see Apple v. Jewish Hosp. and Medical Center, 829 F.2d 326, 334 (2d Cir.1987). The judge to whom a recusal motion is addressed is presumed to be impartial, United States v. IBM Corp., 475 F.Supp. at 1379; Wolfson v. Palmieri, 396 F.2d 121, 126 (2d Cir. 1968)(per curiam), and there is a substantial burden on the moving party to show that the judge is not impartial. Lamborn v. Dittmer, 726 F.Supp. at 514; United States v. IBM Corp., 475 F.Supp. at 1379. It is vital to the integrity of the system of justice that a judge not recuse himself on unsupported, irrational or highly tenuous speculation, Hinman v. Rogers, 831 F.2d 937, 939 (10th Cir. 1987), and he “is as much obliged not to recuse himself when it is not called for as he is obliged to when it is.” In re Drexel Burnham Lambert Inc., 861 F.2d 1307, 1312 (2d Cir. 1988).

Consequently where, as here, an individual submits affidavits and other material in support of a motion to recuse, such material are subject to certain procedural requirements, and “strictly scrutinized” for both timeliness and form. Lamborn v. Dittmer, 726 F.Supp. at 515; see In re IBM Corp., 618 F.2d at 932 (“While section 455 has no such [explicit timeliness] requirement, we have without explication previously assumed that timeliness was also requisite under the amended statute. We see no reason why there should not be a timeliness requirement here even without an explicit provision.” (citations omitted)); ...