Bane v. USA

Filing 6

ORDER: Petitioner Ben Bane's Motion to Recuse 2 is GRANTED. The Clerk of Court is directed to reassign this case pursuant to its normal procedures. Signed by Judge Virginia M. Hernandez Covington on 10/21/2014. (KNC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
BEN BANE

v.

CASE NO. 8:14-cv-2559-T-33MAP
8:09-cr-352-T-33MAP

UNITED STATES OF AMERICA
____________________________/
ORDER
This cause comes before the Court pursuant to Petitioner
Ben Bane’s Motion to Recuse (Doc. # 2), filed on October 8,
2014. Bane requests that the undersigned recuse herself from
this action before any determination is made on his Petition
to Vacate, Set Aside, or Correct Sentence pursuant to 28
U.S.C. § 2255. (Id. at 4, 9, 17).
The

undersigned

recuses

herself

from

this

matter;

however, not for the reasons set forth in Bane’s Motion. A
family member of the undersigned has become employed at the
Carlton Fields law firm. While recusal is not mandatory, the
undersigned has routinely automatically recused herself from
Carlton Fields’ cases since her family member became employed
there. Although an attorney from Carlton Fields has not
appeared in this action, the undersigned notes that Bane’s
Petition to Vacate, Set Aside, or Correct Sentence pursuant

to

28

U.S.C.

§

2255

raises

several

claims,

including

allegations that his trial counsel – Edward J. Page, Esq. –
provided

ineffective

assistance

of

counsel

during

the

pendency of Bane’s underlying criminal action. Mr. Page is
employed by Carlton Fields. Therefore, the undersigned finds
recusal appropriate in accordance with her standard practice.
Discussion
After a six-week trial, on December 15, 2010, a jury
convicted Bane of (1) conspiring to commit health care fraud
and making false claims and statements to the United States,
(2) scheming to defraud a health care benefit program, and
(3) filing false claims for reimbursement from the United
States. (CR Doc. # 261). The Eleventh Circuit affirmed Bane’s
conviction,
regarding

except

with

restitution.

respect

(See

CR

to

the

Doc.

#

Court’s

554).

This

Order
Court

resentenced Bane on November 26, 2013. (CR Doc. ## 577, 578).
Prior
undersigned
learned

to

Bane’s

advised

concerning

employment

with

Mr.

trial,
all
a

on

her

counsel
family

Page’s

of

own

initiative,

information

member’s

employer.

the

she

had

application

for

Not

only

did

the

undersigned make this disclosure to counsel in this case, but
she made a similar disclosure in several other cases she had
become aware of involving similar circumstances.

2

At

the

time

of

the

disclosure,

the

undersigned

acknowledged that such a disclosure was not required by the
Code of Conduct for United States Judges. See e.g., United
States ex rel. Weinberger v. Equifax, Inc., 557 F.2d 456,
463-64 (5th Cir. 1977). Nonetheless, the undersigned found
such a disclosure to be appropriate in order to avoid even
the slightest appearance of impropriety in favor of Bane and
Mr. Page and against his co-Defendants and the Government.
The undersigned emphasized to the parties that such
circumstances would have no impact on her ability to conduct
a fair and impartial trial. Even so, the undersigned provided
all

parties

motion

adequate

demonstrating

opportunity
that,

given

to

file

the

an

appropriate

disclosure,

it

was

necessary for the undersigned to recuse herself from this
matter. No such request was forthcoming.
A period of time later, before Bane’s trial was to begin,
Mr. Page moved for the undersigned to recuse herself. After
considering

the

circumstances

surrounding

the

action,

particularly since no offer of employment had been extended
by Mr. Page’s employer, neither the undersigned nor her family
member had a potential interest, financial or otherwise, in
Mr. Page’s employer, which would have warranted recusal. The
request was accordingly denied.

3

While 28 U.S.C. § 455(a) provides that, “[a] judge of
the United States shall disqualify himself in any proceeding
in which his impartiality might reasonably be questioned,” “a
charge of the appearance of partiality must be supported by
the facts.” 28. U.S.C. § 455; Drake v. Birmingham Bd. of
Educ., 476 F. Supp. 2d 1341, 1345 (N.D. Ala. 2007). Thus,
“judges should not recuse themselves solely because a party
claims an appearance of partiality.” In re Aguinda, 241 F.3d
194, 201 (2d Cir. 2001)(emphasis in original); see Sensley v.
Albritton, 385 F.3d 591, 598 (5th Cir. 2004)(“Courts should
take special care in reviewing recusal claims so as to prevent
parties from abus[ing] § 455 for a dilatory and litigious
purpose based on little or no substantiated basis.” (internal
quotation omitted)).
While the undersigned recognizes that it was Mr. Page’s
responsibility to effectively advocate on Bane’s behalf, it
was the undersigned’s responsibility to make the difficult
decisions that ensure that justice is served. This included
declining to recuse herself late in the proceedings from a
complicated, lengthy trial when recusal was unwarranted, so
that further delay of the trial would not have occurred. To
that end, however, the undersigned notes that if recusal had
been warranted, she would have recused herself from Bane’s

4

underlying criminal action, even if the request had come as
late as the morning of trial.
Bane’s present Motion to Recuse contains information and
statements that are not accurate and conclusions that are not
correct,

particularly

with

respect

to

the

undersigned.

Because the undersigned is recusing herself, the undersigned
declines to address each of Bane’s allegations. Rather, the
undersigned will simply note that throughout the pendency of
Bane’s underlying criminal action, she conducted herself
above and beyond what was required of her by the Code of
Conduct for United States Judges, and presided over the action
with the utmost integrity and respect for the legal system.
Given

that

the

undersigned’s

family

member

is

now

employed at the Carlton Fields law firm, the undersigned
determines that it is proper to recuse herself from this
matter at this time. As a result, Bane’s Motion is granted.
Accordingly, it is hereby
ORDERED, ADJUDGED, and DECREED:
(1)

Petitioner Ben Bane’s Motion to Recuse (Doc. # 2) is
GRANTED.

(2)

The Clerk of Court is directed to reassign this case
pursuant to its normal procedures.

5

DONE and ORDERED in Chambers in Tampa, Florida, this
21st day of October, 2014.

Copies: All Counsel and Parties of Record

6