Opinion
No. 04 CR 699.
November 23, 2004.
John T. Theis, Law Office of John T. Theis, Chicago, IL, for Defendant.
John C. Kocoras, Chicago, IL, for Plaintiff.
MEMORANDUM OPINION AND ORDER
Gale Nettles is charged in a nine-count indictment with attempting to damage and destroy by means of an explosive a federal building and various other offenses under 18 U.S.C. §§ 844(f), (i), and 2339. The building referenced is the Everett M. Dirksen federal building in Chicago, Illinois, in which this court and the Court of Appeals for the Seventh Circuit sit. Mr. Nettles moves for recusal pursuant to 28 U.S.C. § 455 and for transfer pursuant to Fed.R.Civ.P. 21(a). He asks that neither I nor any judge in the Seventh Circuit, including the Court of Appeals, hear his case and that it be transferred to another circuit. Mr. Nettles does not argue that I have any personal bias, and indeed agrees that he has "no information that the Court has any actual bias or prejudice against him." (Defendant's Memorandum of Law at 2.) I deny both motions.
28 U.S.C. § 455 requires that a federal judge recuse herself "in any proceeding in which [her] impartiality might reasonably be questioned." 28 U.S.C. § 455(a). This statute serves not to protect defendants from actual bias on the part of a judge, but to promote public confidence in the impartiality of the judiciary. See Marino v. United States, No. 97-C-7159, 1999 WL 39008, at *6 (N.D. Ill. Jan. 15, 1999) (Williams, J.). The test for recusal under § 455(a) is "whether an objective, disinterested observer fully informed of the facts underlying the grounds on which recusal was sought would entertain a significant doubt that justice would be done in the case." Id. (citing, inter alia, Pepsico, Inc. v. McMillen, 764 F.2d 458, 460 (7th Cir. 1985)). The decision about impartiality "is to be made in light of the facts as they existed, and not as they were surmised . . .". Cheney v. U.S. District Court for the District of Columbia, ___ U.S. ___, 124 S.Ct. 1391, 1393 (2004). Judges have equal obligations to recuse themselves when appropriate and to refuse to do so when recusal is inappropriate. United States v. Greenspan, 26 F.3d 1001, 1005 (10th Cir. 1994).
Evaluation of the circumstances under § 455(a) is highly fact-specific, and analogy to other cases serves only as guidance in that evaluation. Nichols v. Alley, 71 F.3d 347, 351 (10th Cir. 1995) (citing United States v. Jordan, 49 F.3d 152, 157 (5th Cir. 1995)). Mr. Nettles argues that the decision in favor of recusal in Nichols, which related to the bombing of the Alfred P. Murrah Federal Building in Oklahoma City, illustrates the propriety of recusal (and transfer) in this case. The facts of this case, however, differ significantly from the case in Nichols. In that case, the federal judge assigned to the case had been directly impacted by the bombing. In the words of the Tenth Circuit:
Judge Alley's courtroom and chambers were one block away from the epicenter of a massive explosion that literally rocked downtown Oklahoma City, heavily damaged the Murrah building, killed 169 people, and injured many others. The blast crushed the courthouse's glass doors, shattered numerous windows, ripped plaster from ceilings, dislodged light fixtures, showered floors with glass, damaged Judge. Alley's courtroom and chambers, and injured a member of his staff, as well as other court personnel and their families.Nichols, 71 F.3d at 352. Here, no damage to property or person, or loss of life, occurred. If Mr. Nettles' plot was indeed as alleged, he intended harm to the Dirksen building and its occupants. Importantly for purposes of recusal, his alleged plot, unlike that in Oklahoma City, was never brought to fruition. Indeed, it could not have been, for the persons Mr. Nettles allegedly believed to be co-conspirators in the plot were undercover federal agents with no intention of ever performing the alleged destructive acts. Not only did no damage accrue to the persons and property of the Dirksen building, but there was never any real danger of such damage.
Even in cases in which there has reportedly been a threat against the trial judge, courts have held that recusal is not warranted where the judge did not believe he was in danger or his actions were not influenced by the alleged threat. E.g., United States v. Yu-Leung, 51 F. 3d 1116, 1119-20 (2d Cir. 1995); Rivera v. United States, 2001 WL 736778 (S.D.N.Y. 2001) (judge's name was on "hit list;" court noted recusal should occur only in the "extraordinary case"); Te-Te-Ma Truth Foundation — Family of URI, Inc. v. World Church of the Creator, 246 F. Supp. 2d 980 (N.D. Ill. 2003) (Judge Lefkow declined to recuse herself from civil case in which spokesperson for defendant had threatened her); Marino v. United States, 1999 WL 39008 (N.D. Ill. 1999). Where recusal has been required it has been because there was evidence that a judge's actual fear of harm has influenced or could influence his judicial decisions. See Greenspan, 26 F.3d at 1005. That situation does not exist here. The motion for recusal pursuant to 28 U.S.C. § 455(a) is denied.
In addition, no reason exists to transfer this case to a district outside the Seventh Circuit. Rule 21 of the Federal Rules of Criminal Procedure states that
the court must transfer the proceeding against [the] defendant to another district if the court is satisfied that so great a prejudice against the defendant exists in the transferring district that the defendant cannot obtain a fair and impartial trial there.
FED. R. CRIM. P. 21(a). Mr. Nettles argues that such overwhelming prejudice exists in this case. In addition to restating his concerns related to his motion for recusal, Mr. Nettles argues that his case has received a good deal of publicity in the Chicago media and that any potential jury pool would be tainted by fear that they, too, could have been victims had Mr. Nettles' alleged plot gone forward.
Here, too, Mr. Nettles points to the Oklahoma City case as illustrative of why transfer should be granted. The decision in that case, granting a transfer to the District Court of Colorado, is illustrative, if not in the direction Mr. Nettles argues. In United States v. McVeigh, 918 F. Supp. 1467 (W.D. Okla. 1996), the court granted the defendants' motion for transfer of venue. In doing so, the McVeigh court noted the enormous publicity the case had garnered, especially the ongoing, in-depth coverage by the Oklahoma media. Id. at 1471-1473. Not only had the media kept the story alive, the McVeigh court stated that the media had "demonized" the defendants, portraying them in such a way to "[evoke] such strong emotional responses or such a identification with those directly affected . . . that the jurors feel a personal stake in the outcome." Id. at 1473. No such pervasive and highly-emotional coverage exists in this case, as might be expected since the alleged plot was never fulfilled. The McVeigh court also noted the extreme sympathy evoked by the victims, many of them young children, in holding that "so great a prejudice" existed that defendants could not obtain a fair and impartial trial in Oklahoma. No such emotional toll is at play here, as the alleged plot was never carried out, thus creating no victims. The motion to transfer pursuant to Rule 21(a) is also denied.