United States v. Bayard

2010 DNH 022

• Court: District Court, D. New Hampshire
• Decided: February 10, 2010
• Docket: 09-CR-096-SM
• Status: Published

Opinion

United States v . Bayard 09-CR-096-SM 02/10/10 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

United States of America, Government

v. Criminal Case N o . 09-cr-96-1-SM Opinion N o . 2010 DNH 022 Serge E . Bayard, Defendant

O R D E R

Defendant, at this late date, moves to recuse the

undersigned from presiding over his criminal case. While there

is little left to d o , trial and sentencing having been completed,

judgment entered and post-trial motions mostly addressed, it is

still possible that further proceedings may occur, so the motion

is not moot.

Transcripts are not currently available, but the court

accepts defendant’s assertion that he was offered an opportunity,

before trial, to have a different judge assigned, which he

declined. That is generally this judge’s practice without regard

to whether recusal is required under applicable law, when likely

witnesses or people involved in relevant events are known to m e .

Defendant says that, in hindsight, he should have accepted the

court’s offer, and now moves for recusal on the merits. His proffered grounds are that among my “close friends and

acquaintances,” is ”one Arthur Perkins, attorney for the

complainants” [i.e., the victim Estate of Dorothy Shovan].

Presumably, defendant moves for recusal pursuant to 28

U.S.C. § 455(b)(1) and 455(a). Section 455(b)(1) is not

applicable as defendant has proffered no compelling evidence of

actual bias or prejudice. See Brokaw v . Mercer County, 235 F.3d

1000, 1025 (7th Cir. 2000). And, defendant’s motion does not

sufficiently allege any facts that would warrant recusal under

either Section 455(b)(1) or 455(a). As is generally the case in

small states, judges and lawyers are familiar with one another.

Mr. Perkins is a New Hampshire attorney roughly of the same

generation as the undersigned, and I have been acquainted with

him, on a friendly basis to be sure, for quite some time, but not

as a “close friend.” That i s , we do not routinely or regularly

socialize, have not visited each other’s homes, or gone out to

dinner, or traveled together, and have not worked together or

been partners. Our mutual familiarity is both friendly and

professional in a way that is hardly remarkable among New

Hampshire lawyers and judges, given the collegial legal community

that exists here.

No objectively reasonable person, fully informed of the

relevant facts, would have reason to doubt my impartiality in

2 this case; In Re Boston’s Children First, 244 F.3d 164 (1st Cir.

2001), certainly not based upon a typical familiarity with an

attorney who happened to testify as a witness before a jury, at

defendant’s insistence, about matters of little relevance to the

charges being tried. Defendant was offered an opportunity to

have a different judge preside, at his option, not because

recusal was either required or warranted under the circumstances

or under the appropriate legal standard, but simply as a courtesy

intended to afford defendant as high a comfort level as he

desired as he proceeded on what was plainly a self-destructive

course of self-representation in a case where the defense seemed

quite shaky. Defendant declined the offer, for reasons

satisfactory to him, and has not shown an adequate basis for

recusal now. Litigants cannot be permitted to engage in judge

shopping simply by resort to baseless allegations of bias or the

appearance of bias.

The motion (document n o . 76) is denied.

February 1 0 , 2010

cc: Donald A . Feith, Esq., AUSA Serge E . Bayard, pro se James W . Dennehy, Esq. U.S. Probation U.S. Marshal