WEINSTEIN v. UNITED STATES

Filing 53

OPINION filed. Signed by Judge Anne E. Thompson on 6/27/2018. (mmh)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
TRENTON VICINAGE
______________________________
ELIYAHU WEINSTEIN,
Petitioner,
v.
UNITED STATES,

Respondent.
_______________________________
ELIYAHU WEINSTEIN,
Petitioner,
v.
UNITED STATES,

Respondent.
_______________________________

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: CIV. ACTION NO. 18-0894(AET)
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: CIV. ACTION NO. 18-5575(AET)
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OPINION
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THOMPSON, U.S. District Judge
I. INTRODUCTION
This matter comes before the Court on Petitioner Eliyahu Weinstein’s motion to recuse all
the district judges in the District of New Jersey under 28 U.S.C. § 455(a). (ECF No. 36).

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Respondent United States opposes the motion. (ECF No. 48). After careful consideration of the
parties’ arguments in their papers and at oral argument, the Court denies the motion.
II. BACKGROUND
Petitioner has filed two motions under 28 U.S.C. § 2255, which this Court has
consolidated, challenging two judgments entered by retired United States District Judge Joel A.
Pisano: United States v. Weinstein, No. 11-cr-701 (D.N.J. Mar. 12, 2014) and United States v.
Weinstein, No. 14-cr-219 (D.N.J. Dec. 16, 2014). In a consolidated opinion, the Third Circuit
affirmed the convictions and sentences: an aggregate of 24 years incarceration and more than
$225 million in restitution. United States v. Weinstein, 658 F. App’x 57 (3d Cir. 2016). The
consolidated § 2255 motions allege ineffective assistance of trial and appellate counsel and, most
relevant to the instant motion, judicial misconduct by Judge Pisano. Specifically, Petitioner
alleges Judge Pisano involved himself in plea negotiations in violation of Federal Rule of
Criminal Procedure 11 and demonstrated bias towards Petitioner.
On May 1, 2018, Petitioner filed the instant motion to recuse the entire District of New
Jersey. The Court consulted with the parties and set a briefing schedule for the recusal motion
and stayed the briefing on the merits of the § 2255 motions. (ECF Nos. 46 & 47). The Court
conducted oral argument on June 12, 2018. (ECF No. 50). The matter is now ripe for disposition.
III. STANDARD OF REVIEW
“[A] federal judge must self-disqualify from ‘any proceeding in which [her or] his
impartiality might reasonably be questioned.’” United States v. Kennedy, 682 F.3d 244, 258 (3d
Cir. 2012) (quoting 28 U.S.C. § 455(a)) (second alteration in original). “The test for recusal
under § 455(a) is whether a reasonable person, with knowledge of all the facts, would conclude

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that the judge’s impartiality might reasonably be questioned.” In re Kensington Int’l Ltd., 368
F.3d 289, 301 (3d Cir. 2004). “An objective inquiry, this test is not concerned with the question
whether a judge actually harbors bias against a party.” Kennedy, 682 F.3d at 258. “Because
§ 455(a) aims not only to protect both the rights of the individual litigants, but also to promote
the public’s confidence in the judiciary, our analysis focuses on upholding the appearance of
justice in our courts.” Id. “[T]he hypothetical reasonable person under § 455(a) must be someone
outside the judicial system . . . .” In re Kensington, 368 F.3d at 303 (quoting United States v.
DeTemple, 162 F.3d 279, 287 (4th Cir. 1998)). “A recusal motion must be based on ‘objective
facts,’ not mere ‘possibilities’ and ‘unsubstantiated allegations.’” United States v. Jacobs, 311 F.
App’x 535, 537 (3d Cir. 2008) (quoting United States v. Martorano, 866 F.2d 62, 68 (3d Cir.
1989)). See also In re Allied-Signal Inc., 891 F.2d 967, 970 (1st Cir. 1989) (“We also said that,
when considering disqualification, the district court is not to use the standard of ‘Caesar’s wife,’
the standard of mere suspicion.”).
IV. ANALYSIS
Petitioner argues recusal of the entire District of New Jersey bench is required because
his § 2255 motions “involve well-documented allegations about serious misconduct by Judge
Pisano, which necessarily bear on his credibility and reputation . . . . Under the circumstances, a
reasonable person might question the impartiality of the District Judges in New Jersey, who will
be obliged to sit in judgment concerning their former judicial colleague.” (ECF No. 36-1 at 10).
Petitioner further argues that “a reasonable person might question if Mr. Weinstein could receive
a fair hearing from an impartial tribunal if a District Judge in New Jersey decides the extent of
permitted discovery, resolves factual disputes following an evidentiary hearing, and rules

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whether to grant or deny any post-conviction relief” given the high-profile nature of the attorneys
involved, including Petitioner’s former trial counsel Robert Cleary, a former U.S. Attorney for
the District of New Jersey. (Id. at 11).
Petitioner has not met the standard for this Court’s recusal under § 455(a), let alone the
entire District of New Jersey. Judge Pisano began his service in the District of New Jersey as a
magistrate judge in the Newark Vicinage. He spent time in all three vicinages upon his elevation
to a district judgeship in 2000, his most recent location being in the Trenton Vicinage. He retired
from the bench more than three years ago on February 16, 2015. This Court and Judge Pisano,
although serving in the same vicinage, were not close and had no discussions of each other’s
cases. The degree of professional interaction and friendship present in the cases cited by
Petitioner, see, e.g., United States v. Gordon, 354 F. Supp. 2d 524 (D. Del. 2005), were not
present between the Court and retired Judge Pisano. A reasonable, outside observer in possession
of all of these facts would not question this Court’s ability to impartially consider and decide the
merits of the § 2255 petitions. Accordingly, the Court sees no reason to recuse herself or every
judge in the District of New Jersey.
V. CONCLUSION
For the reasons stated above, the motion is denied. An appropriate order follows.

DATED:

June 27, 2018
/s/ Anne E. Thompson
ANNE E. THOMPSON
UNITED STATES DISTRICT JUDGE

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