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)

Download PDF
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

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?