United States of America v. Vann

Filing 3

ORDER re 1 Affidavit in Support of Motion, filed by Keith Aaron Vann. Signed by Judge Hamilton on 11/30/2012. (pjhlc1, COURT STAFF) (Filed on 11/30/2012)

1
2
3

UNITED STATES DISTRICT COURT

4

NORTHERN DISTRICT OF CALIFORNIA

5
6

UNITED STATES OF AMERICA,
Plaintiff,

7
8
9

ORDER

KEITH-AARON: VANN,
Defendant.
_____________________________/

11
For the Northern District of California

United States District Court

10

v.

No. C 12-80273 MISC-PJH

12

Before the court is a miscellaneous matter filed by defendant Keith-Aaron: Vann

13

(“Vann”), in the form of an affidavit purporting to seek disqualification of the Hon. Saundra

14

Brown Armstrong from presiding over a case which is not identified. The court has

15

searched the clerk’s docket for this district, and finds only one case assigned to Judge

16

Armstrong, in which Vann is a party. That case is a criminal action, United States of

17

America v. Vann, CR-08-0244 SBA.

18

Two federal statutes govern recusal and disqualification – 28 U.S.C. § 144 and 28

19

U.S.C. § 455. Under 28 U.S.C. § 144 a judge shall be disqualified where he or she has a

20

“personal bias or prejudice either against [a party] or in favor of any adverse party[ .]”

21

United States v. Heffington, 952 F.2d 275, 278 (9th Cir. 1991). Similarly, 28 U.S.C. § 455

22

provides, in relevant part, that federal judges and magistrate judges must recuse

23

themselves “in any proceeding in which [their] impartiality might be reasonably

24

questioned[,]” including if they have “a personal bias or prejudice concerning a party.” 28

25

U.S.C. §§ 455(a), (b)(1); see Heffington, 952 F.2d at 278.

26

The substantive standard for recusal is the same under both § 144 and § 455 –

27

“whether a reasonable person with the knowledge of all the facts would conclude the

28

judge's impartiality might be questioned.” Taylor v. Regents of the Univ. of Calif., 993 F.2d

1

710, 712 (9th Cir. 1993) (quotations omitted); see also United States v. Hernandez, 109

2

F.3d 1450, 1453–54 (9th Cir. 1997). In addition, to the extent that a moving party seeks to

3

disqualify a judge based on events that occur during the course of litigation, the party must

4

demonstrate that the judge either (1) relied on knowledge acquired outside of the

5

proceedings or (2) “displayed deep-seated and unequivocal antagonism that would render

6

fair judgment impossible.” See Liteky v. United States, 510 U.S. 540, 556 (1994).

7

“[J]udicial rulings alone almost never constitute valid basis for a bias or partiality motion.”

8

Id. at 555; see also United States v. $292,888.04 in U.S. Currency, 54 F.3d 564, 566 (9th

9

Cir. 1995); Taylor, 933 F.2d at 712.
However, the procedural requirements of the two statutes are different. Under

11
For the Northern District of California

United States District Court

10

§ 144, the party moving for recusal must file a timely and legally sufficient affidavit stating

12

“the facts and the reasons for the belief that bias or prejudice exists [.]” 28 U.S.C. § 144;

13

United States v. Sibla, 624 F.2d 864, 867 (9th Cir. 1980). If the judge to whom a timely

14

motion is directed determines that the accompanying affidavit specifically alleges facts

15

stating grounds for recusal under § 144, the legal sufficiency of the affidavit has been

16

established and the motion must be referred to another judge for a determination. Id. at

17

867.

18

Conclusory allegations are insufficient to support a request for recusal on grounds of

19

bias or prejudice. United States v. $292,888.04 in U.S. Currency, 54 F.3d 564, 566 (9th

20

Cir. 1995). To be sufficient, an affidavit must state facts which if true fairly support the

21

allegation that bias or prejudice stemming from (1) an extrajudicial source (2) may prevent

22

a fair decision on the merits. The focus is not only on the source of the facts and their

23

distorting effect on a decision on the merits, but also on (3) the substantiality of the support

24

given by these facts to the allegation of bias. United States v. Azhocar, 581 F.2d 735, 739-

25

40 (9th Cir. 1978).

26

Here, notwithstanding that Vann has labeled the filing an “affidavit,” there are no

27

facts alleged supporting disqualification. Indeed, there are no facts alleged at all.

28

Moreover, affidavits must be signed under penalty of perjury, but this one is not. See 28
2

1

U.S.C. § 1746; Tumlinson Group, Inc. v. Johannessen, 2010 WL 5287520 at *3 (E.D. Cal.

2

Dec.17, 2010). Vann’s failure to submit an affidavit is therefore sufficient justification to

3

deny his motion for recusal under § 144. Azhocar, 581 F.2d at 738.

4

Section 455 sets forth no procedural requirements. That section is directed to the

5

judge, rather than the parties, and is self-enforcing on the part of the judge. Sibla, 624 F.2d

6

at 867-68. Moreover, section 455 includes no provision for referral of the question of

7

recusal to another judge; if the judge sitting on a case is aware of grounds for recusal

8

under § 455, that judge has a duty to recuse himself or herself. Id. at 868. In other words,

9

when a judge sitting on a case is aware of grounds for recusal under § 455, that judge has

11
For the Northern District of California

United States District Court

10

a duty to recuse himself or herself. Id.
Nevertheless, regardless of which section a party is proceeding under, the motion

12

logically must be directed to the judge that plaintiff seeks to have disqualified, and must be

13

filed in the case for which the party seeks the disqualification. For that reason, the court

14

finds that the motion must be DENIED, because it was not addressed to Judge Armstrong,

15

and was not filed by Vann in a case in which Judge Armstrong is the presiding judge. As a

16

further basis for denying the motion, the court finds that it is incomprehensible.

17
18

IT IS SO ORDERED.

19

Dated: November 30, 2012
______________________________
PHYLLIS J. HAMILTON
United States District Judge

20
21
22
23
24
25
26
27
28
3