USA v. Kohring

Filing 176

Order on Motion for Hearing, Order on Motion to Dismiss, Order on Motion to Strike

UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA

UNITED STATES OF AMERICA,

)
)
Plaintiff,
)
)
vs.
)
)
VICTOR H. KOHRING,
)
)
Defendant.
)
________________________________)

3:07-cr-00055-JWS
ORDER AND OPINION
[Re:

Motions at Docket Nos. 155,
167, and 173]

I. MOTIONS PRESENTED
At docket 155 defendant Victor H. Kohring moved to dismiss the indictment or
grant a new trial and recusal of the undersigned. At docket 162 the United States
opposed the motion, and at docket 166 Kohring replied.1/ At docket 167 Kohring moved
for an evidentiary hearing, which the United States opposed at docket 171. Kohring
replied at docket 172. At docket 173, the United States moved to strike the reply at
docket 172. Oral argument would not materially assist the court in deciding the motions
presented.

II. BACKGROUND
A brief chronological history of this case will assist the reader in understanding
the court’s disposition of the motions at issue.

1/

Although the court does not normally consider matters raised for the first time in a reply
brief, in this case, given its somewhat unusual nature and evidentiary basis, the Court has
considered the exhibits attached to the reply brief to the extent they relate to matters raised in
the motion.

May 1, 2007: The Grand Jury returned a four-count indictment charging Kohring
with: (1) Conspiracy to Commit Extortion and Attempted Extortion Under Color of
Official Right and Bribery (18 U.S.C. § 371); (2) Interference with Commerce by
Extortion Induced Under Color of Official Right (18 U.S.C. § 1951(a) and § 2);
(3) Attempted Interference with Commerce by Extortion Induced Under Color of Law (18
U.S.C. § 1951(a) and § 2); and (4) Bribery Concerning Programs Receiving Federal
Funds (18 U.S.C. § 666(a)(1)(B) and § 2).2/ The case was assigned to this court.
October 22, 2007: Trial by jury commenced.3/
November 1, 2007: The jury returned a verdict of guilty on Counts 1, 3, and 4,
and not guilty on Count 2.4/ The court set February 6, 2008, for the sentencing
hearing.5/
January 28, 2008: The sentencing hearing was continued to February 11, 2008.
February 1, 2008: Defendant filed the motion at docket 155 citing Federal Rule
of Criminal Procedure 33(a)(1), 28 U.S.C. § 455, and Canon 3 of the Code of Conduct
for United States Judges.
February 4, 2008: The motion at docket 155 included a request that it be
decided by another judge and, in an abundance of caution, the motion was referred to
Hon. H. Russel Holland for decision, and the February 11, 2008 sentencing date was
vacated.6/
February 6, 2008: Judge Holland held that the motion made under § 455, not §
144,“ is addressed to, and must be decided by, the very judge whose impartiality is
being questioned,” citing In re Bernard, 31 F.3d 842, 843 (9th Cir. 1994).7/
2/

Docket No. 2.

3/

Docket No. 110.

4/

Docket Nos. 141, 144, 145, 146, and 147.

5/

6/

Docket No. 140.
Docket No. 158.

7/

Docket No. 160. Although Bernard was an order entered by a single judge, not a
panel, and may not be controlling, Bernard cited United States v. Silba, 624 F.2d 864, 868 (9th

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III. CONTROLLING STATUTES
There are two statutory provisions which control the recusal of federal judges.
They are 28 U.S. § 144 and 28 U.S.C. § 455. Canon 3 of the Codes of Conduct for
United States Judges contains similar standards. All three are set out in this section.
28 U.S.C. § 144 provides:
Whenever a party to any proceeding in a district court 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, such judge shall proceed no further therein, but
another judge shall be assigned to hear such proceeding.
The affidavit shall state the facts and the reasons for the belief that bias or
prejudice exists, and shall be filed not less than ten days before the
beginning of the term at which the proceeding is to be heard, or good
cause shall be shown for failure to file it within such time. A party may file
only one such affidavit in any case. It shall be accompanied by a
certificate of counsel of record stating that it is made in good faith.
28 U.S.C. § 455 provides:
(a) Any justice, judge, or magistrate judge of the United States shall
disqualify himself in any proceeding in which his impartiality might
reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party,
or personal knowledge of disputed evidentiary facts concerning the
proceeding;
(2) Where in private practice he served as lawyer in the matter in
controversy, or a lawyer with whom he previously practiced law served
during such association as a lawyer concerning the matter, or the judge or
such lawyer has been a material witness concerning it;
(3) Where he has served in governmental employment and in such
capacity participated as counsel, adviser or material witness concerning
the proceeding or expressed an opinion concerning the merits of the
particular case in controversy;
(4) He knows that he, individually or as a fiduciary, or his spouse or
minor child residing in his household, has a financial interest in the subject

Cir. 1980), holding the same, and Silba is controlling precedent.

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matter in controversy or in a party to the proceeding, or any other interest
that could be substantially affected by the outcome of the proceeding;
(5) He or his spouse, or a person within the third degree of
relationship to either of them, or the spouse of such a person:
(I) Is a party to the proceeding, or an officer, director, or
trustee of a party;
(ii) Is acting as a lawyer in the proceeding;
(iii) Is known by the judge to have an interest that could be
substantially affected by the outcome of the proceeding;
(iv) Is to the judge’s knowledge likely to be a material
witness in the proceeding.
(c) A judge should inform himself about his personal and fiduciary financial
interests, and make a reasonable effort to inform himself about the
personal financial interests of his spouse and minor children residing in his
household.
(d) For the purposes of this section the following words or phrases shall
have the meaning indicated:
(1) “proceeding” includes pretrial, trial, appellate review, or other
stages of litigation;
(2) the degree of relationship is calculated according to the civil law
system;
(3) “fiduciary” includes such relationships as executor,
administrator, trustee, and guardian;
(4) “financial interest” means ownership of a legal or equitable
interest, however small, or a relationship as director, adviser, or other
active participant in the affairs of a party, except that:
(I) Ownership in a mutual or common investment fund that
holds securities is not a “financial interest” in such securities unless
the judge participates in the management of the fund;
(ii) An office in an educational, religious, charitable, fraternal,
or civic organization is not a “financial interest” in securities held by
the organization;
(iii) The proprietary interest of a policyholder in a mutual
insurance company, of a depositor in a mutual savings association,
or a similar proprietary interest, is a “financial interest” in the
organization only if the outcome of the proceeding could
substantially affect the value of the interest;
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(iv) Ownership of government securities is a “financial
interest” in the issuer only if the outcome of the proceeding could
substantially affect the value of the securities.
(e) No justice, judge, or magistrate judge shall accept from the parties to
the proceeding a waiver of any ground for disqualification enumerated in
subsection (b). Where the ground for disqualification arises only under
subsection (a), waiver may be accepted provided it is preceded by a full
disclosure on the record of the basis for disqualification.
(f) Notwithstanding the preceding provisions of this section, if any justice,
judge, magistrate judge, or bankruptcy judge to whom a matter has been
assigned would be disqualified, after substantial judicial time has been
devoted to the matter, because of the appearance or discovery, after the
matter was assigned to him or her, that he or she individually or as a
fiduciary, or his or her spouse or minor child residing in his or her
household, has a financial interest in a party (other than an interest that
could be substantially affected by the outcome), disqualification is not
required if the justice, judge, magistrate judge, bankruptcy judge, spouse
or minor child, as the case may be, divests himself or herself of the
interest that provides the grounds for the disqualification.
Kohring also relies on Canon 3 of the Codes of Conduct for United States
Judges, entitled “A Judge Should Perform the Duties of the Office Impartially and
Diligently.” That Canon provides in relevant part as follows:
C. Disqualification.
(1) A judge shall disqualify himself or herself in a proceeding in which the judge's
impartiality might reasonably be questioned, including but not limited to instances in
which:
(a) the judge has a personal bias or prejudice concerning a party, or
personal knowledge of disputed evidentiary facts concerning the proceeding;
(b) the judge served as lawyer in the matter in controversy, or a lawyer
with whom the judge previously practiced law served during such association as
a lawyer concerning the matter, or the judge or such lawyer has been a material
witness;
(c) the judge knows that the judge, individually or as a fiduciary, or the
judge's spouse or minor child residing in the judge's household, has a financial
interest in the subject matter in controversy or in a party to the proceeding, or any
other interest that could be affected substantially by the outcome of the
proceeding;
(d) the judge or the judge's spouse, or a person related to either within the
third degree of relationship, or the spouse of such a person:
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(I) is a party to the proceeding, or an officer, director, or trustee of a
party;
(ii) is acting as a lawyer in the proceeding;
(iii) is known by the judge to have an interest that could be
substantially affected by the outcome of the proceeding; or
(iv) is to the judge's knowledge likely to be a material witness in the
proceeding.
(e) the judge has served in governmental employment and in such
capacity participated as counsel, advisor, or material witness concerning the
proceeding or has expressed an opinion concerning the merits of the particular
case in controversy.
(2) A judge should keep informed about the judge’s personal and fiduciary
financial interests, and make a reasonable effort to keep informed about the personal
financial interests of the judge's spouse and minor children residing in the judge's
household.
(3) For the purposes of this section:
(a) the degree of relationship is calculated according to the civil law
system; the following relatives are within the third degree of relationship: parent,
child, grandparent, grandchild, great grandparent, great grandchild, sister,
brother, aunt, uncle, niece and nephew; the listed relatives include whole and
half blood relatives and most step relatives;
(b) "fiduciary" includes such relationships as executor, administrator,
trustee, and guardian;
(c) "financial interest" means ownership of a legal or equitable interest,
however small, or a relationship as director, advisor, or other active participant in
the affairs of a party, except that:
(I) ownership in a mutual or common investment fund that holds
securities is not a "financial interest" in such securities unless the judge
participates in the management of the fund;
(ii) an office in an educational, religious, charitable, fraternal, or
civic organization is not a "financial interest" in securities held by the
organization;
(iii) the proprietary interest of a policy holder in a mutual insurance
company, or a depositor in a mutual savings association, or a similar
proprietary interest, is a "financial interest" in the organization only if the
outcome of the proceeding could substantially affect the value of the
interest;

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(iv) ownership of government securities is a "financial interest" in
the issuer only if the outcome of the proceeding could substantially affect
the value of the securities.
(d) "proceeding" includes pretrial, trial, appellate review, or other stages of
litigation.
(4) Notwithstanding the preceding provisions of this Canon, if a judge to whom a
matter has been assigned would be disqualified, after substantial judicial time has been
devoted to the matter, because of the appearance or discovery, after the matter was
assigned to him or her, that he or she individually or as a fiduciary, or his or her spouse
or minor child residing in his or her household, has a financial interest in a party (other
than an interest that could be substantially affected by the outcome), disqualification is
not required if the judge, spouse or minor child, as the case may be, divests himself or
herself of the interest that provides the grounds for the disqualification.

IV. MOTIONS AT DOCKETS 167 AND 173
The motion for hearing at docket 167 is founded upon an erroneous assumption,
viz, that the motion at docket 155 is premised upon both 28 U.S.C. § 144 and § 455.
Judge Holland’s February 6, 2008 order held that the motion was made solely pursuant
to § 455. That order stands as the law of the case. Under the law-of-the-case doctrine,
a court is ordinarily precluded from reexamining an issue previously decided by the
same court, or a higher court, in the same case subject to three exceptions that may
arise when (1) the decision is clearly erroneous and its enforcement would work a
manifest injustice, (2) intervening controlling authority makes reconsideration
appropriate, or (3) substantially different evidence was adduced at a subsequent trial.8/
None of these exceptions applies here. The law-of-the-case doctrine applies with equal
force to interlocutory orders that are not immediately appealable.9/ Moreover, to the
extent that Kohring seeks to characterize the motion as one under § 144, it does not
comply with the requirement that it be supported by an affidavit.10/ Appended to the

8/

Old Person v. Brown, 312 F.3d 1036, 1039 (9th Cir. 2002).

9/

Pit River Home and Agr. Co-Op, Ass’n v. United States, 30 F.3d 1088, 1097 (9th Cir.

1994).
10/

See Liljeberg v. Heath Svs. Acquisition Corp., 486 U.S. 847, 871 (1988) (Rehnquist,
C.J., dissenting); Davis v. Fendler, 650 F.2d 1154, 1163 (9th Cir. 1981) (holding that the failure

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motion as Exhibit D is a document entitled “Affidavit of Victor H. Kohring.”11/ However,
that document was neither sworn before a notary public nor executed under penalty of
perjury in compliance with 28 U.S.C. § 1746. The motion at docket 155 is also
defective as a motion under § 144, because the motion is not accompanied by the
required certificate of counsel that it is made in good faith. Thus, the motion to recuse
at docket 155 must be considered pursuant to § 455 only.
There is no requirement that the court in deciding a motion under § 455 hold an
evidentiary hearing. Indeed, the “facts” that give rise to the level where the “impartiality
[of the judge] might be reasonably questioned,” are, for the most part, peculiarly within
the knowledge of the judge. In fact, in considering recusal under § 455, a judge is
expected to take into consideration those facts of which he or she has personal
knowledge that have a bearing on the issue.12/
In his motion, Kohring argues that no credence should be given to the unsworn
statements of the undersigned in the order referring the matter to Judge Holland and
that an evidentiary hearing is required “so that the defense can exercise its
constitutionally provided rights of confrontation and cross examination.” Defendant fails
to cite any authority for the novel theory that he has a constitutional right to confront and
cross-examine the judge on a § 455 motion. Defendant further asserts “it [is]
irresponsible on the part of Judge Sedwick to include unsworn statements in a judicial
order.” This statement is somewhat incongruous inasmuch as the motion filed by
Kohring is itself principally based upon unsworn statements in what counsel erroneously

to file an affidavit defeats a charge of bias under § 144); United States v. Sibla, 624 F.2d 864,
867 (9th Cir. 1980) (“Section 144 expressly conditions relief upon the filing of a timely and
legally sufficient affidavit.”); United States v. Azhocar, 581 F.2d 735, 738 (9th Cir. 1978) (holding
that failure to file an affidavit defeats a charge of bias under § 144).
11/

Docket No. 155-5. Hereinafter referred to as “Kohring Statement.”

12/

See, e.g., United States v. Balistrieri, 779 F.2d 1191, 1202 (7th Cir. 1985).

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refers to as an “affidavit.” In any event and more importantly, including unsworn
statements in recusal orders is a common practice followed by federal judges.13/
For the foregoing reasons, Kohring’s Motion for Evidentiary Hearing Regarding
New Trial and the Recusal of Judge Sedwick at docket 167 will be denied. The United
States’ Motion to Strike Defendant’s Reply Brief in Support of Motion for Evidentiary
Hearing at docket 173 will be denied as moot.

V. MOTION AT DOCKET 155
A. Request for New Trial
The motion at docket 155 includes a request for a new trial. The motion was filed
three months after the verdict was entered. Under Rule 33(b),14/ unless a request for
new trial is based upon newly discovered evidence, it must be brought within seven
days of the date the verdict is entered. In its opposition, the United States argued that
the motion is untimely. Because the motion at bar was filed far more than seven days
after the verdict was entered, unless it is based upon newly discovered evidence, it is
untimely and should be denied.15/

13/

See, e.g., M2 Software, Inc. v. M2 Communications, LLC, 463 F.3d 868, 869 (9th Cir.
2006) (Pregerson, J. specially concurring); In re Bernard, supra (Kozinski, J.).
14/

Rule 33, Federal Rules of Criminal Procedure:
(a) Defendant’s Motion. Upon the defendant’s motion, the court may vacate any
judgment and grant a new trial if the interest of justice so requires. If the case
was tried without a jury, the court may take additional testimony and enter a new
judgment.
(b) Time to File.
(1) Newly Discovered Evidence. Any motion for a new trial grounded on
newly discovered evidence must be filed within 3 years after the verdict or finding
of guilty. If an appeal is pending, the court may not grant a motion for a new trial
until the appellate court remands the case.
(2) Other Grounds. Any motion for a new trial grounded on any reason
other than newly discovered evidence must be filed within 7 days after the verdict
or finding of guilty.
15/

See Eberhart v. United States, 546 U.S. 12, 19 (2005) (per curiam) (holding that
Rule 33 is an inflexible claim-processing rule that assures relief to a party properly raising it).

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A motion for a new trial based on newly discovered evidence should be granted
where the following criteria are met: (1) the evidence must be newly discovered; (2) the
failure to discover the evidence sooner must not be the result of a lack of diligence on
the defendant’s part; (3) the evidence must be material to the issues at trial; (4) the
evidence must be neither cumulative nor merely impeaching; and (5) the evidence must
indicate that a new trial would probably result in acquittal.16/ Each one of the criteria is
to obtain a new trial.17/
The “newly discovered evidence” asserted by Kohring in this case consists of the
information which he contends demonstrates bias or lack of impartiality of the trial
judge. Assuming arguendo that the failure to discover the “evidence” sooner was not
the result of a lack of due diligence, the “evidence” clearly fails the third and fifth prongs:
it is patently immaterial to the issues at trial and would not probably result in acquittal. It
follows that the request for a new trial included in the motion at docket 155 will be
denied.
B. Recusal of Trial Judge
In the motion at docket 155, Kohring seeks the court’s recusal based on what he
styles the “appearance of fairness doctrine.”18/ The court reads this as encompassing
the provision in § 455(a) which requires recusal where a judge’s “impartiality might
reasonably be questioned.”19/ When a party has made a motion under § 455 and the
challenged judge is aware of legally sufficient grounds for disqualification, he or she
ordinarily must recuse.20/

16/

United States v. Kulczyk, 931 F.2d 542, 548 (9th Cir. 1991).

17/

See United States v. Jackson, 209 F.3d 1103, 1106 (9th Cir. 2000).

18/

Docket No. 155 at pp. 8-12.

19/

Kohring does not allege any facts or make any argument that would fall within the
actual conflict provisions of § 455(b)
20/

United States v. Jaramillo, 745 F.2d 1245, 1248 (9th Cir. 1984); United States v.
Sibla, supra.

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1. Timeliness
The United States asserts that the request is not timely. Section 455 does not
set out any specific time limit. However, the Ninth Circuit has held that there is a
timeliness requirement inherent in § 455.21/ Although the Ninth Circuit has not set a
“bright line” or per se rule for determining timeliness under § 455, it has held that the
motion must be made within a reasonable time after the grounds for seeking
disqualification are known.22/
Here, even assuming that the marriage between the undersigned and Deborah
Sedwick could not have been discovered with due diligence prior to the start of trial and
accepting Kohring’s statement that he did not make the connection between the
undersigned and Ms. Sedwick until 7 to 10 days after the trial ended, does not explain
the additional delay of more than two months in bringing the motion. In his reply brief in
response, Kohring responds on the timeliness issue, saying that research in voter
records and on the internet was needed, “for the defense does not take lightly the
prospect of challenging the presumed impartiality of a sitting federal judge.”23/ He also
indicates that the defense had to “confer with colleagues, friends, legal scholars and
even federal judges all of whom echoed that under the appearance of fairness doctrine
Judge Sedwick should have recused himself.”24/ These statements in the brief are not
only not evidence, but include assertions that are incredible–it is literally amazing to
contemplate the assertion that one or more federal judges actually did offer Mr. Browne
the gratuitous opinion that another federal judge should have recused himself in a
pending case in which Mr. Browne was appearing. In any event, there is no evidentiary
support for the need to delay the motion for two months. Kohring has failed to establish
that he filed the motion within a reasonable time after discovering the facts that he now

21/

United States v. Conforte, 624 F.2d 869, 880 (9th Cir. 1980) (“Timeliness cannot be
disregarded in all cases involving the delicate matter of disqualification under section 455 . . .”).
22/

Preston v. United States, 923 F.2d 731, 732-33 (9th Cir. 1991).

23/

Docket No. 166 at pp. 9-10.

24/

Id., at p. 10.

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asserts give rise to the appearance of a lack of impartiality. The motion is untimely.
However, even if one assumes the request to recuse is untimely, it lacks merit for the
reasons discussed below.
2. Recusal Standard
As has been noted by the Court of Appeals for the Ninth Circuit “The standard for
recusal is ‘whether a reasonable person with knowledge of all the facts would conclude
that the judge's impartiality might reasonably be questioned.’”25/ That appellate court
has further explained:26/
By its terms § 455(a) mandates disqualification in a proceeding in
which a judge’s “impartiality might reasonably be questioned.” Id. The
Supreme Court has advised us that our analysis under subsection (a)
requires an “evaluation on an objective basis, so that what matters is not
the reality of bias or prejudice but its appearance,” Liteky v. United States,
510 U.S. 540, 548, 114 S.Ct. 1147, 1153, 127 L.Ed.2d 474 (1994), and we
have independently recognized that what is required “is a reasonable
factual basis for doubting the judge’s impartiality.” United States v.
Conforte, 624 F.2d 869, 881 (9th Cir.) (quotation omitted), cert. denied,
449 U.S. 1012, 101 S.Ct. 568, 66 L.Ed.2d 470 (1980).
In deciding whether or not to recuse, there are certain basic principles that this
court must apply. As recently noted by the Ninth Circuit, the court begins with the
general proposition that, in the absence of a legitimate reason to recuse himself, a
judge should participate in cases assigned.27/ However, equally as clear is the
proposition that “§ 455(a) requires judicial recusal ‘if a reasonable person, knowing all

25/

Sewer Alert Committee v. Pierce County, 791 F.2d 796, 798 (9th Cir. 1986), quoting
United States v. Nelson, 718 F.2d 315, 321 (9th Cir. 1983); see also In re Grand Jury 95-1, 118
F.3d 1433, 1438 (10th Cir. 1997) (same); Union Planter’s Bank v. L & J Dev. Co., Inc., 115 F.3d
378, 383 (6th Cir. 1997) (same); United States v. Hernandez, 109 F.3d 1450, 1453 (9th Cir.
1997) (same).
26/

United States v. Rogers, 119 F.3d 1377, 1383 (9th Cir. 1997).

27/

United States v. Holland, __ F.3d __, 2008 WL 696903, *2 (9th Cir. March 17, 2008).

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the circumstances, would expect the judge to have actual knowledge of his interest or
bias in the case.’”28/
Section 455 claims are fact driven, thus the analysis of each claim must be
guided by an independent examination of the unique facts and circumstances of a
particular claim.29/ In making a determination under § 455 several factors come into
play.
First, “[t]he judge does not have to be subjectively biased or prejudiced, as long
as he appears to be so.”30/
Second, “[t]he reasonable third-party observer is not a partly informed man-inthe-street, but rather someone who understand[s] all the relevant facts and has
examined the record and law.”31/ “The reasonable person in this context means a wellinformed, thoughtful observer, as opposed to a hypersensitive or unduly suspicious
person.”32/
Third, the “extrajudicial source” doctrine applies to motions under § 455(a) as
well as those under § 455(b).33/ The Supreme Court, after referring to the extrajudicial
aspect as a factor rather than a doctrine, described its operation in the following
terms:34/
The facts of the present case do not require us to describe the
consequences of that factor in complete detail. It is enough for present

28/

Sao Paulo State of Federative Republic of Brazil v. American Tobacco Co., Inc., 535
U.S. 229, 232–33 (2002), quoting Liljeberg v. Heath Svs. Acquisition Corp., 486 U.S. 847, 861
(1988) (emphasis in the in the original).
29/

Clemens v. United States Dist. Court for Central Dist. of California, 428 F.3d 1175,
1178 (9th Cir. 2005).
30/

Liteky v. United States, 510 U.S. 540, 553 n.2 (1994) (emphasis in the original).

31/

United States v. Holland, 2008 WL 29690, * 4 (internal quotation marks and citations

omitted).
32/

Clemens, 428 F.3d at 1178 (internal quotation marks and citations omitted).

33/

Liteky v. United States, 510 U.S. at 554.

34/

Id., at 555.

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purposes to say the following: First, judicial rulings alone almost never
constitute a valid basis for a bias or partiality motion. See United States v.
Grinnell Corp., 384 U.S., at 583, 86 S.Ct., at 1710. In and of themselves
(i.e., apart from surrounding comments or accompanying opinion), they
cannot possibly show reliance upon an extrajudicial source; and can only
in the rarest circumstances evidence the degree of favoritism or
antagonism required (as discussed below) when no extrajudicial source is
involved. Almost invariably, they are proper grounds for appeal, not for
recusal. Second, 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. Thus, judicial remarks during the
course of a trial that are critical or disapproving of, or even hostile to,
counsel, the parties, or their cases, ordinarily do not support a bias or
partiality challenge. They may do so if they reveal an opinion that derives
from an extrajudicial source; and they will do so if they reveal such a high
degree of favoritism or antagonism as to make fair judgment impossible.
An example of the latter (and perhaps of the former as well) is the
statement that was alleged to have been made by the District Judge in
Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481 (1921), a
World War I espionage case against German-American defendants: “One
must have a very judicial mind, indeed, not [to be] prejudiced against the
German Americans” because their “hearts are reeking with disloyalty.” Id.,
at 28 (internal quotation marks omitted). Not establishing bias or partiality,
however, are expressions of impatience, dissatisfaction, annoyance, and
even anger, that are within the bounds of what imperfect men and women,
even after having been confirmed as federal judges, sometimes display.
A judge's ordinary efforts at courtroom administration—even a stern and
short-tempered judge's ordinary efforts at courtroom
administration—remain immune.
Finally, there must be a factual showing of a reasonable basis for questioning the
impartiality of a judge, or allegations of facts establishing other disqualifying
circumstances. Conclusory statements and counsel’s unsupported beliefs and
assumptions are of no effect.35/ “Frivolous and improperly based suggestions that a

35/

Maier v. Orr, 758 F.2d 1578, 1583 (9th Cir. 1985).

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judge recuse should be firmly declined.”36/ This court will apply these principles to the
pending motion to recuse.37/
a. Extrajudicial Factors
Kohring raises three extrajudicial factors that he claims require recusal, either
individually or collectively: (1) a “combative” or “contentious” relationship that existed
between Kohring and the undersigned’s spouse between 1997 and 1999, nearly a
decade ago; (2) the proximity of the undersigned’s residence to that of Bill Allen, a “star
witness” for the prosecution; and (3) the undersigned went to high school more than
forty years ago with Richard Smith, a “principal witness” for the prosecution.
Neither the fact that Mr. Allen lives in the same neighborhood as the undersigned
nor that Mr. Smith attended the same high school, standing alone, would give a
disinterested third-party the impression that a judge could not act impartially in a trial
where they were witnesses Kohring has cited no case that has held that mere
acquaintance or prior association with a party, let alone a witness, is sufficient cause for
recusal. Independent research by the court has not found any such case. Indeed, what
authority exists takes a contrary position. 38/ Finally, a fully-informed observer would
know that in the role of chief judge of the district, it was the undersigned judge who
authorized the monitoring of telephones used by Messrs. Allen and Smith which
ultimately led to their own guilty pleas.
The principal extrajudicial factor upon which Kohring relies is described in his
papers as the “combative” or “contentious” relationship between Kohring, then a state

36/

Id.

37/

The court notes that Kohring cites in support of his position the unpublished decision
in United States v. Wolff, __ Fed.Appx.___, 2008 WL 123568 (9th Cir. January 14, 2008). The
court finds that case inapposite. The motion to disqualify in Wolff was based on § 455(b)(4) (a
financial interest in the subject matter in controversy or in a party). Defendant’s analogy to Wolff
in this case appears to be based upon the erroneous factual statement that the legislation in
question actually eliminated Ms. Sedwick’s job and reduced the Sedwick household income by
at least $10,000 annually. As explained further ante, the bill had no such effect.
38/

Maier, 758 F.2d at 1583; Parrish v. Board of Comm’rs of Alabama State Bar, 524 F.2d
98, 103 (5th Cir. 1975).

-15-

legislator, and Ms. Sedwick, then an employee of the executive branch of state
government, nearly a decade ago. To succeed on this basis, Kohring must show two
things. First, during the time period in question, which is 1997 through 1999, there
actually was real animosity between Kohring and Ms. Sedwick. Second, that a
reasonable person would assume that the trial judge, as Ms. Sedwick’s husband, was
and for nearly ten years remained aware of that animosity to such an extent that he
might not be impartial.39/ In other words, Kohring must show that a thoughtful and
objective person knowing all the circumstances would be inclined to believe that the
“combative” or “contentious” relationship between Kohring and Ms. Sedwick nearly ten
years ago was sufficiently intense that her husband may reasonably be assumed to
bear a grudge against Kohring all these years later. For the reasons that follow, it is the
opinion of the court that no fully informed and thoughtful person would come to that
conclusion.
As stated in the order at Docket No. 153 referring the motion to Judge Holland:
I have reviewed defendant Kohring’s affidavit and represent that I
have no recollection of any conversation with my wife relating to the
actions defendant Kohring says he took or the responses he alleges she
made. I also represent that I have no recollection of them from other
sources. With respect to the legislation which defendant Kohring
characterizes as having eliminated my wife’s position, I have no
recollection of his involvement. I do recall that while my wife was
Commissioner of the Department of Commerce legislation was enacted
pursuant to which that department was combined with another
department, and my wife became the commissioner of the combined
department.
Of course, the trial judge’s actual lack of bias is not the issue. The question is, as just
noted previously, a fully informed, thoughtful person would reasonably question my
impartiality. To answer that question, one must examine the facts, stripped of

39/

The Court is not unmindful that a lack of knowledge of a disqualifying circumstance
does not necessarily eliminate the risk that his impartiality might be reasonably questioned by
other persons. See Lijeberg v. Health Svs. Acquisition Corp., 486 U.S. at 859 (“Scienter not an
element of a violation of § 455(a).”). All that is required is that a reasonable person, knowing all
the facts and circumstances, would expect the challenged judge to have that knowledge. Id. at
860–61.

-16-

hyperbole, unsupported assumptions, and conclusory opinions. Many of the underlying
facts are a matter of public record.
Kohring was a member of the Alaska House of Representatives and the House
Finance Committee during the period 1995 through 1999.40/ In that capacity, he was an
avid proponent of cutting state spending.41/ In furtherance of this goal, Kohring
successfully advocated a reduction in the budget of the Department of Commerce and
Economic Development (“DCED”) and divisions for which Ms. Sedwick bore executive
level management responsibility as a political appointee serving at the pleasure of the
governor, first as an Assistant Commissioner, and for most of her tenure as
Commissioner. Ms. Sedwick, as well as other executive level management officials in
the department opposed or, at least expressed disagreement, with the proposed budget
cuts.
During the 1998–99 time period, Kohring advocated the merger of the DCED with
the Department of Community and Regional Affairs (“DCRA”). Kohring, as a cosponsor, introduced and actively supported and promoted two bills designed to achieve
this end, HB 400 in the 20th Legislature and HB 40 in the 21st Legislature.42/
Ms. Sedwick, as well as other executive level management officials of both
departments, expressed disagreement with the proposed merger and questioned both
whether it would result in substantial savings and its impact on the operations of various
responsibilities of the two departments. HB 40 became law during the 1999 Legislative
session. The merger of the two departments eliminated some upper level, executive
management positions, including one commissioner. After HB 40 was passed by the
Legislature and signed by the Governor, Ms. Sedwick became the Commissioner of the
merged departments.

40/

Kohring’s service in the Legislature extended for approximately eight more years, but
there is no assertion of any conflict between Kohring and Ms. Sedwick after the end of the
Legislative session in the spring of 1999.
41/

E.g., Exhibits B, C, D, and E attached to defendant’s reply at Docket Nos. 166-3
through 166-6.
42/

Exhibits F, G, and H to defendant’s reply at Docket Nos. 166-7 through 166-9.

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As specific evidence of a perceived animus on the part of Ms. Sedwick, Kohring
offers selected historical excerpts, each of which is discussed briefly below.
1. In March 1997 Kohring’s budget subcommittee eliminated eight positions and
cut 25% of the travel budget, and eliminated the Division of Tourism by merging it with
the Division of Trade and Development, both divisions within the department which
Ms. Sedwick headed, and imposed significant additional responsibilities on Ms. Sedwick
without authorizing additional staff.43/ A March 16, 1997, “Analysis of House Finance
Subcommittee Proposed Cuts to the Division of Trade and Development” described the
effect of the cuts on certain functions of the Division using terms such as “severely
undermine,” “decimate,” “severely cripple,” and similar phrases.44/ While the language
used is forceful, it is directed at anticipated consequences of the legislation. It certainly
does not display animosity towards Kohring himself or toward any other member of the
Legislature.
2. An article in the Anchorage Daily News in which Ms. Sedwick simply
expressed an opinion that she did not think the merger was going to save money.45/ A
comment that reflects nothing more than a skeptical opinion of the results of such a
change. There is nothing in it which displays animus toward Kohring.
3. An article in the Juneau Empire in which Ms. Sedwick referred to the cost of a
similar proposal (merger of the two departments) made previously and the time it would
take to recoup the initial cost and further that it made more sense to look at programs
and determine whether they are worthwhile and cost-efficient.46/ There is nothing in this
article that implies that Ms. Sedwick harbored any animus towards Kohring.

43/

Kohring Statement, ¶¶ 4, 5, 7, 8, and 9.

44/

Kohring Statement, ¶ 10. A partial copy of the report is attached as Exhibit A to the
defendant’s reply at Docket No. 166-2. The copy furnished the Court does not reveal who
authored the report; however, for the purpose of ruling on the motion to recuse, the Court
assumes it was either authored by or approved by Ms. Sedwick.
45/

Kohring Statement ¶ 14; Exhibit G to defendant’s reply at Docket No. 166-8.

46/

Kohring Statement ¶ 13; Exhibit H to defendant’s reply at Docket No. 166-9.

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4. Correspondence from Kohring to Ms. Sedwick in which he responded that he
had some concerns over Ms. Sedwick’s comments in the Juneau Empire.47/ This letter
appears to (1) explain the fundamental difference between the then current bill (HB 400)
and the prior bill and (2) invite Ms. Sedwick’s input on HB 400. There is nothing in the
tone of this letter that indicates any animosity on the part of either Kohring or
Ms. Sedwick.
5. An article in the Juneau Empire in which, when asked if she would be willing
to manage the proposed merged departments, Ms. Sedwick responded “I don’t know
how I could do that job . . . don’t know how one person could do that job,” which Kohring
describes as opposition to HB 400.48/ Indeed, the article does indicate a negative
opinion of the legislation, specifically skepticism on Ms. Sedwick’s part as to whether
supervision of the merged departments was feasible. However, it says nothing about
Kohring and cannot be reasonably read to evidence personal animosity, as contrasted
with a different view of appropriate public policy.
6. A guest column in the Alaska Star in which Kohring opines that government
officials were fighting the HB 400 because they wished to retain their “cushy jobs.”49/
However, nowhere in that article does Ms. Sedwick’s name appear nor is there a
reference to the DCED Commissioner. The only persons the article refers to as
opposing the bill were the deputy commissioners of both affected departments.
Assuming that Ms. Sedwick was even aware of this article, for it to have any
significance in the abstract, much less in terms of the alleged animosity against Kohring,
one would have to assume that Ms. Sedwick truly viewed her position as “cushy” and,
as a political appointee serving at the pleasure of the governor, believed she had job
security.

47/

Kohring Statement, ¶ 15; Exhibit I to defendant’s reply at Docket No. 166-10.

48/

Kohring Statement, ¶ 17; Exhibit N to defendant’s reply at Docket No. 166-15. The
Court notes that it is reflected in the record that Ms. Sedwick made essentially the same
response to a similar question before the House Labor & Commerce Committee, Exhibit M to
Defendant’s reply at Docket No. 166-14, page 6.
49/

Kohring Statement, ¶ 20; Exhibit O to defendant’s reply at Docket No. 166-16.

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7. A press release issued by Kohring criticizing opponents of HB 400 in which he
was quoted as saying “. . . it doesn’t surprise me that those whose stand to lose their
jobs have come out of the woodwork in opposition.”50/ Again, this press release does
not refer to Ms. Sedwick by either name or title. Nor, for that matter, is there any
evidence that it was published by any news source or that Ms. Sedwick was aware of it.
8. An April 4, 1998 “Budget Alert” ostensibly issued by Ms. Sedwick in which the
proposed budget cuts were referred to as “devastating” and “draconian.”51/ While the
language may be somewhat hyperbolic, it certainly does not show any hostility or
animosity towards Kohring himself or any other member of the Legislature.
9. An April 8, 1998 press release by Kohring in which he named Ms. Sedwick
and also referred to “spending money like drunken sailors” and challenged her to “work
together with him, instead of shooting from the sidelines” “52/ This suffers from two
infirmities. First, there is no evidence that the release was ever published or that
Ms. Sedwick was ever privy to it. Second, from the surrounding text and its lack of
juxtaposition with respect to the reference to Ms. Sedwick, contrary to Kohring’s
characterization, no rational person would construe “spending like drunken sailors” as
directed toward Ms. Sedwick personally; rather, it is directed toward state spending
overall.53/ The lack of connection between Ms. Sedwick and the “drunken sailor” canard
is especially obvious when one considers that state spending is the product of
Legislative appropriations.
50/

Kohring Statement, ¶ 18; Exhibit P to defendant’s reply at Docket No. 166-17.
Interestingly, that same press release also contains the statement that it “would cut over one
million dollars in upper management positions.” “This represents primarily salaries and benefits
of the Department of Community and Regional Affairs Commissioner’s office.”
51/

Kohring Statement, ¶ 24; a copy of this Budget Alert is not appended as exhibit to
either the motion or the reply. However, for the purposes of ruling on the motion, the court
assumes that it was issued at the direction of Ms. Sedwick and contained the statements
ascribed to it by Kohring.
52/

Kohring Statement, ¶ 25; Exhibit R to defendant’s reply at Docket No. 166-19.

53/

Between the paragraph naming Ms. Sedwick and the paragraph containing the
“drunken sailor” reference is a paragraph that appears to refer to an overall decline in state
revenue requiring large budget cuts.

-20-

10. A report issued six months after the two departments were merged in which
it was stated that the merger resulted in an increased workload for the Division of
Administrative Services and that further cuts in revenue sharing programs are bound to
lead to significant cuts in local public service.54/ This report contains nothing attacking
Kohring, nor can it be reasonably construed as an expression of personal hostility
between Ms. Sedwick and Kohring.
11. That at a budget closeout in April of 1998, in response to a jocular statement
that he intended to eliminate all funding to DCED, Ms. Sedwick became visibly upset,
glared at the Kohring across the table, was red-faced, and appeared ready to leave.55/
Even assuming that Kohring’s observations were accurate, at most they support a
conclusion that Ms. Sedwick was briefly upset by the remark, and perhaps even angry
at the time. However, the fact that Ms. Sedwick did not walk out, but instead remained
to answer the questions posed by Kohring and other members of the subcommittee in
an even tone belies the accuracy of Kohring’s characterization recounted nearly ten
years after the event.56/ So, too, does the palpably jocular nature of Kohring’s comment
which is very evident when one hears it on the tape of the meeting. A glance of
displeasure and a flash of anger, even if they were actually present in April of 1998,
makes for a very slender reed on which to lean Kohring’s case for an enduring
animosity that a reasonable person would consider to be at work in 2007.
12. Kohring appended excerpts from the recording of an April 8, 1998 legislative
hearing that he contends are illustrative of the antagonistic exchanges between Kohring
and Ms. Sedwick.57/ Defendant also submitted the entire tape,58/ arguing that the

54/

Kohring Statement, ¶ 29; Exhibit T to defendant’s reply at Docket No. 166-21.

55/

Kohring Statement, ¶ 22-23.

56/

At Docket No. 164, Kohring moved the court to accept an audiocassette of the
meeting, and by order at Docket No. 165, the court accepted the video tape. Kohring supplied
the tape at Docket No. 170. The court has listened to the tape.
57/

58/

Exhibit F to Motion, Docket No. 155-7.
See n.56, supra.

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“recording more accurately captures the contentious relationship between the
Defendant and Judge Sedwick’s wife.”59/ The court having listened to the cassette tape
lodged with the court disagrees with Kohring that it illustrates a contentious relationship.
Ms. Sedwick at all times spoke in a level, normal voice and in a calm manner. She
disagreed with Kohring on the merits of several issues, but nothing in her remarks or the
tone of her voice could lead a reasonable observer to believe she displayed hostility or
antagonism towards any legislator present, including Kohring. Indeed, anyone who
listens to the tape in its entirety would be struck by the civility of the discourse among all
who participated–not just Kohring and Ms. Sedwick, but all of the other Legislators as
well.
Certain allegations made by Kohring are either inaccurate, misleading, or
conclusions without any evidentiary support. To begin with Kohring states: “In early
1998, as part of a restructuring plan, I proposed House Bill 400 which would have
downgraded Commissioner Sedwick’s department to a division and would have meant a
major pay cut for Ms. Sedwick from approximately $84,000 a year to approximately
$73,800 a year.”60/ This is pure conjecture. Both the bill in the 20th Legislature and the
bill in the 21st Legislature simply merged the two departments but did not specify that
DCED would become a division.61/ Elimination of one of the departments
unquestionably would have resulted in the elimination of a Commissioner and other
executive level management officials. However, while its effect may have resulted in
the demotion of Ms. Sedwick from Commissioner to the director of a division, there is no
evidence, direct or indirect, from which it may logically be inferred that it was directed at
Ms. Sedwick personally or that she considered that as being its purpose.

59/

Motion to File Cassette Tape. Docket No. 164.

60/

Kohring Statement, ¶ 12.

61/

Accessible online at http://www.legis.state.ak.us/PDF/20/Bills/HB0400B.PDF(HB 400);
http://www.legis.state.ak.us/PDF/21/Bills/HB0040F.PDF (HB 40).

-22-

Kohring also claims that HB 40 “eliminated Ms. Sedwick’s department including
her position as Commissioner of DCED.”62/ This statement, standing alone, is at best
incomplete and misleading. It is unquestionably correct that HB 40 eliminated DCED
and Ms. Sedwick’s position as Commissioner of that department was also necessarily
eliminated in the sense it was merged with another department; however, in fact,
Ms. Sedwick became the Commissioner of the merged departments.
With his reply memorandum, Kohring submitted the affidavits of three former
aides to Kohring: Fred James, Elizabeth Madsen, and Michael G. Krieber.63/ All three
affidavits follow a similar pattern and draw a similar conclusion—that it was evident to
the aide that a state of hostility and antagonism existed between Kohring and
Ms. Sedwick. Except to the extent that they describe Ms. Sedwick’s opposition to the
budget cuts, the statements contained in the three affidavits simply express conclusory
personal opinions not supported by any meaningful and specific facts. What few factual
statements they do contain are ambiguous or isolated. They would not convince a fully
informed, thoughtful observer that Ms. Sedwick actually harbored strong and lasting
personal animosity against Kohring.
It is true that Kohring and Ms. Sedwick held differing views on what constituted
good public policy with respect to certain aspects of the operation of state government.
It is also clear that some legislative aids may equate differences of political opinion with
feelings of personal animosity, but that merely reflects the mind-set of the legislative
aides. That some people hold such views does not mean that they have a significant
impact on the analysis here. It is, after all, quite possible to have a contrary view of
public policy without developing hatred toward those who hold a different view. Any
thoughtful person would recognize this to be both true and essential to the political
process. A person who was fully informed, meaning one who among other things had
listened to the entirety of the cassette tape submitted by Kohring, would conclude that

62/

Kohring Statement, ¶ 28.

63/

Exhibits U, V, and W to defendant’s reply at Docket Nos. 166-22, 166-23, and 166-24,
respectively.

-23-

Ms. Sedwick and all the Legislators involved in the discussion of the budget issues of
concern to Kohring and Ms. Sedwick have displayed a considerable ability to disagree
on the substance of issues without expressing or involving any personal likes or dislikes
toward one another.
Although Kohring was quoted in the February 5, 2008 edition of the Anchorage
Daily News as characterizing Ms. Sedwick as “my worst political rival and enemy,”64/
there is absolutely nothing in the record to support such remarkable hyperbole.
Ordinarily, rivals compete with one another. Kohring and Sedwick never did. He was
an elected member of the legislative branch. She was an appointed member of the
executive branch. There is no evidence that Ms. Sedwick ever published a single
derogatory or disparaging remark about Kohring, campaigned or helped someone else
campaign against him, campaigned for or helped someone else campaign for a rival
candidate, or advocated Kohring’s electoral defeat in any fashion. When everything is
considered, all that has been shown is that Kohring and Ms. Sedwick had differing
opinions of what was in the best interest of the state as reflected in a disagreement over
budgetary matters and the effect of the proposed merger of DCED and DCRA.
The court concludes that given all the circumstances, no fully-informed,
thoughtful person would see the situation for anything other than this: Ten years ago,
Kohring and Ms. Sedwick held different views of what was in the public interest with
respect to the budgeting for and operation of certain state departments. Objectively
viewed, there was no personal animosity, but rather a difference of political opinion.
Finally, even if one could somehow assume that Ms. Sedwick harbored some personal
antagonism or hostility during the 1997–99 period, there is no basis upon which an
informed and thoughtful person could possibly conclude that the ill-will was so pervasive
and deep-seated that it has lived on for nearly a decade.65/
64/

Accessible on line at http://www.adn.com/front/story/305180.html.

65/

Kohring argues in his reply brief that the fact Ms. Sedwick attended the final
arguments in the trial is indicative of a continued harboring of resentment. A far more
reasonable and thoughtful interpretation would be that the substantial publicity about the trial
simply piqued her curiosity. Among other things which a reasonable person would conclude
might have piqued that curiosity are the fact that the local newspaper had run stories describing

-24-

b. Other Factors Which Might Display Bias or Partiality
Aside from the extra-judicial factors discussed above, the evidence of bias or
partiality upon which Kohring relies arises from rulings made during the trial. As noted
above, the Supreme Court in Liteky held that judicial rulings alone almost never
constitute a valid basis for a bias or partiality motion. Only in the rarest circumstances
can a ruling establish the degree of favoritism or antagonism required. Rulings may
provide grounds for appeal, but they do not support recusal. Furthermore, under Liteky,
opinions formed and judicial remarks made during the course of a trial that are critical,
disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not
support a bias or partiality challenge unless they reveal such a high degree of favoritism
or antagonism as to make fair judgment impossible. The court will examine the
challenged rulings against that standard.
1. Vacation Comment. On October 1, 2007, counsel for defendant filed a notice
of non-availability between October 3 and October 10, 2007. The United States filed a
superceding indictment on October 3 and set arraignment on October 9.66/ Defendant’s
counsel complains that when he brought this to the attention of the trial judge, the
undersigned commented to the effect that counsel in Alaska do not take vacations the
week before trial. This is a classic example of the kind of comment that is not indicative
of bias: it is merely an expression of impatience, dissatisfaction, or annoyance.67/
2. Rescheduled Pretrial Conference. Kohring complains that the court advanced
the final pretrial conference without seeking input from or consulting with the lawyers.

defense counsel as an outstanding criminal defense lawyer from Seattle who claimed
successful defenses in difficult cases, the fact that the press reported the case was being
prosecuted by special government attorneys from Washington, D.C., the fact that the press had
played up the relationship between the prosecution of Kohring, and an investigation potentially
involving many persons well known in the community, among them someone so prominent as
United States Senator Ted Stevens.
66/

The record shows that the arraignment date was set by the magistrate judge, not the
United States Attorney.
67/

Liteky v. United States, 510 U.S. at 555.

-25-

How this decision, which affected both parties, could be indicative of bias against
Kohring or lack of impartiality is inexplicable.
3. Motion to Dismiss Indictment (Sen. Dyson as Government Agent). The court
denied Kohring’s motion to dismiss the indictment for prosecutorial misconduct as
untimely and on the merits without granting him the requested evidentiary hearing.68/
The court found no reason to hold an evidentiary hearing and, even at this stage,
Kohring has not provided anything which would support the conclusion that such a
hearing was necessary. This ruling exemplifies the kind of trial court action which may
be an appropriate subject for an appeal. It is not evidence of bias. Kohring also
complains about the order being “strongly worded” and “forceful” in characterizing the
motion as “untimely” and appearing not to have been made in “good faith.” This might
reflect dissatisfaction or annoyance with counsel’s performance. It is not indicative of
bias.69/
4. Denial of Motion for Change of Venue. Other than to refer to the fact that the
court denied this motion, Kohring advances no argument as to why it shows bias or
partiality. Moreover, this is, as the Supreme Court has noted, a ruling made on the
merits of a motion during the course of the proceedings which is not an indicator of bias
or partiality.70/
5. Denial of Motion to Suppress. In referring to this order, Kohring simply
describes it as being “quite unusual,” but makes no argument that it was the product of
bias or partiality. This, too, is a ruling on the merits of an issue made during the course
of the proceedings; it is not indicative of bias or partiality.71/
68/

Docket No. 108. The Court notes with some measure of displeasure that in the
motion at bar, it is now claimed that defense counsel had no knowledge that Sen. Dyson was
acting as a government agent until September 27, 2007. This claim is belied by the motion
itself, which indicates that counsel was alerted to the possible involvement of Sen. Dyson as
early as June and certainly by the exchange of e-mails between Sen. Dyson and counsel’s
office on August 6, 2007, copies of which were appended as an exhibit to the motion.
69/

Liteky v. United States, 510 U.S. at 555.

70/

Id.

71/

Id.

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6. Closed Hearing. The Government filed under seal a motion in limine to bar
Kohring from introducing or using certain evidence in cross-examination. Kohring
claims that the court erred in holding a closed hearing on the motion over his objections,
and did not provide adequate or proper justification for holding the closed hearing.
Kohring argues that as a result of that closed hearing an order limiting the scope of
defense counsel’s cross-examination of two government witnesses, Allen and Smith,
was issued. How the holding of a closed hearing over the objections of defense
counsel, even assuming the court erred in holding a closed hearing, is indicative of bias
is unexplained. Lacking from Kohring’s argument is any claim that the rulings that
emanated from the closed hearing were the product of or evidence of bias or a lack of
impartiality.
The court concludes that, whether taken individually or collectively, the rulings of
which Kohring complains do not meet the high standard set by the Supreme Court that
they “display a deep-seated favoritism or antagonism that would make fair judgment
impossible.”72/ Finally, even though the challenged rulings are made in a case where
the defendant has also pointed to alleged extra-judicial factors, the very weakness of
the extra-judicial factors argument dooms any attempt to turn ordinary rulings made in
the course of the trial process into evidence of bias or partiality.
c. Future Proceedings
Although not specifically raised by Kohring, the court addresses, sua sponte,
whether recusal from imposing sentence is necessary under § 455(a). The court
concludes that recusal is not appropriate. The briefing filed on behalf of Kohring
contains argument that includes comments which could reasonably be construed as
impugning the integrity of the trial judge. Were these comments made by Kohring
himself, they might lead a reasonable person to question the judge’s ability to remain
impartial. However, the comments in Mr. Browne’s arguments are attributable solely to
him, not to Kohring. Consequently, any ill feeling that might be thought to attach to the
comments would be directed at defense counsel, not Kohring. In similar circumstances,

72/

Id.

-27-

the Ninth Circuit has explained:73/ “Criticism from a party's attorney creates an even
remoter danger that a judge will disqualify himself because the federal recusal statutes,
in all but the most extreme circumstances, require a showing that the judge is (or
appears to be) biased or prejudiced against a party, not counsel.” This case does not
present such extreme circumstances. The court considers the defense motion practice
to be an attempt by defense counsel to explore every possible avenue in representing
his client. Perhaps Mr. Browne’s efforts might be thought overzealous, but the simple
fact is that trial practice is no place for people with thin skins, be they advocates or
judges. A thoughtful person fully informed about the robust rough and tumble of
litigation would not conclude that the assigned judge would be biased against Kohring,
even if it were reasonable to conclude that Mr. Browne stepped outside the boundaries
of proper conduct.
It is also appropriate to consider the consequences of too readily investing a
lawyer’s zealous advocacy in a recusal motion with the power to divest the assigned
judge of the opportunity to complete a judicial proceeding. Doing so here would
eliminate the ability for the sentencing judge to use the information and perspective
uniquely available to the judge who sat through the trial just when the time has come to
fashion an appropriate sentence that takes into account all the factors set out in 18
U.S.C. § 3553(a). It may be added that a practice endorsing a recusal request made in
circumstances such as those present here would effectively transfer a significant
measure of control over the district court docket and judicial assignment process to
counsel for one of the parties. The court sees no basis for recusal from the sentencing
proceeding.
C. Dismissal of Charges
In the motion at docket 155, Kohring also asks that the charges against him be
dismissed. His argument for dismissal rests on the premise that dismissal is required

73/

Standing Committee on Discipline of U.S. Dist. Court for the Central Dist. of California
v. Yagman, 55 F.3d 1430, 1444 (9th Cir. 1995); see also United States v. Burt, 765 F.2d 1364,
1368 (9th Cir. 1985) (“Personal bias or prejudice must be against the party, not the attorney for
the party.”).

-28-

because the trial judge should have recused and that the failure to recuse constituted
“structural error.”74/ There is no need to consider whether a failure to recuse is
“structural error, because the court has concluded that there was no need to recuse.
The request to dismiss the charges against Kohring will be denied.

VI. CONCLUSION AND ORDER FOR SENTENCING
For the reasons set out above:
1. Defendant Kohring’s motion at docket 155 is DENIED;
2. Defendant Kohring’s motion at docket 167 is DENIED;
3. Plaintiff United States’s Motion at docket 173 is DENIED as moot; and
4. The court will conduct a sentencing hearing on May 8, 2008, at 9:30 AM.
DATED at Anchorage, Alaska, this 14th day of April 2008.

/s/ JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE

74/

Docket No. 155 at pp. 13-14.

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