United States v . Mitrano 08-CR-094-PB 02/04/09 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
United States of America, Government
v. Criminal Case N o . 08-cr-94-1 Opinion N o . 2009 DNH 014 Peter P. Mitrano, Defendant
O R D E R
This case was originally assigned to Judge Barbadoro. As
the current trial date approached it became clear that Judge
Barbadoro could not preside due to a special assignment requiring
him to preside over a complex criminal matter in the District of
Puerto Rico during the same trial period. To facilitate timely
resolution of this matter under those circumstances, this case
was reassigned to me for trial.
The defendant filed a motion to recuse, and to have the case
reassigned to Judge Barbadoro. A pretrial status conference was
held. Counsel for both parties advised that there were pending
legal issues that had been recently briefed and that each side
thought ought to be resolved prior to trial (e.g., the
availability and extent of a “Cheeks” defense; the extent to
which defendant can challenge the validity of the underlying
state support order, e t c . ) . Counsel for defendant has since advised the court that he will restyle pending motions in the
form of a motion to dismiss, within 30 days.
Motion to Recuse
Defendant’s recusal motion rests on grounds that the
undersigned judge dismissed an earlier civil suit filed by him
against a state marital master, and in so doing “also dismissed
defendant’s legal theories regarding the [state] family court’s
lack of subject matter jurisdiction by stating ‘plaintiff is a
trained attorney and presumably knows, or certainly should know,
that his claims are nonstarters.’” See Mitrano v . Martin, Case
N o . 01-cv-153-M. Defendant says “These same claims will also be
at issue in the instant prosecution . . . .”
In addition, defense counsel asserts that “ . . . it has come
to counsel’s attention that Hon. Judge McAuliffe also signed
Orders suspending the defendant from practicing [law] in this
Court.” . . . “suggest[ing] that the defendants legal arguments
regarding why he should not be suspended are “arcane’ and
‘meritless’,” and further stated that “[the] misconduct by
Mitrano that was established in the District of Columbia
disciplinary proceeding (theft) unquestionably warrants the
sanction of disbarment.” In re Peter Paul Mitrano, Docket N o .
07-adr-01-M.
2 Taking the assertions in reverse order, indeed theft by an
attorney under the circumstances found with respect to Mitrano
unquestionably warrants disbarment, and Mitrano has been properly
disbarred in a number of jurisdictions, including this one. That
serious misconduct, however, bears no relationship to the
criminal case at hand — the facts are unrelated, the applicable
law is unrelated, and the disposition is unrelated.
The same is true with respect to the assertion of recusable
bias. Counsel for defendant misconstrues, or distorts, the
disposition of Mitrano’s earlier civil case. As the order, fully
quoted, made clear:
Extensive analysis and discussion [of Mitrano’s federal claims] are not warranted. [Mitrano] is a trained attorney and presumably knows, or certainly should know, that his claims are nonstarters. Briefly, the New Hampshire Superior Court’s exercise of jurisdiction over his child custody case, whether legally correct or incorrect, and its order finding him in contempt of that court, whether legally correct or incorrect, are matters which he can fully litigate in the state courts — appeals lie in the New Hampshire Supreme Court and, if cognizable federal issues warrant i t , in the United States Supreme Court. Lower federal courts, however, do not sit in review of state court decisions, particularly when the state proceedings are ongoing, as is the case here. Mitrano v . Martin, 2002 DNH 0 3 0 , at 2-3 (emphasis added) (citations omitted).
S o , counsel misquoted, by not fully quoting, and thereby
misstates the court’s ruling — which specifically did not relate
3 to any issue of state court jurisdiction or any other issue
pending before the state court in Mitrano’s custody dispute, but
rather addressed only his federal claims and this court’s
jurisdiction, finding that there was no federal jurisdiction,
hence the dismissal. And, again, as a trained attorney,
defendant knew or certainly should have known, that his federal
claims were nonstarters, for all the reasons given in the
dismissal order; his current counsel should know as much.
A party may invoke a statutory right to recusal of a federal
trial judge under certain circumstances. The applicable statute
provides:
Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.
28 U.S.C. § 144. Moreover, “[t]o require disqualification, the
alleged bias or prejudice must be both ‘(1) personal, i.e.,
directed against a party, and (2) extrajudicial.’” United States
v . Kelley, 712 F.2d 8 8 4 , 889 (1st Cir. 1983) (quoting United
States v . Carignan, 600 F.2d 7 6 2 , 763 (9th Cir. 1979)); see also
In re United States, 441 F.3d 4 4 , 67 (1st Cir. 2006). Regarding
the requirement that a judge’s alleged bias be extrajudicial,
4 “[f]acts learned by a judge while acting in his judicial capacity
cannot serve as a basis for disqualification on account of
personal bias.” Kelley, 712 F.2d at 889 (citations omitted).
As noted, the affidavit of a party seeking recusal must be
“timely and sufficient.” Mitrano has not filed an affidavit.
S o , initially, Mitrano’s motion is defective under 28 U.S.C.
§ 144 for want of an affidavit.
Recusal on grounds of partiality is also addressed in 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). The indicia of bias Mitrano posits
consists entirely of judicial rulings made in a previous case and
a disbarment proceeding over which I presided. His motion
asserts no extrajudicial source for any knowledge he claims I
have concerning the pending matter, or any of the prior matters
in which he was involved. His motion does not sufficiently
allege any facts that would counsel, much less require, recusal
under either Section 455(b)(1) or 455(a). Kelley, 712 F.2d at
889. See Nichols v . Alley, 71 F.3d 3 4 7 , 351 (10th Cir. 1995)
(surveying cases). That i s , all Mitrano asserts is “(2) the mere
fact that a judge has previously expressed an opinion on a point
5 of law . . . (3) prior rulings in . . . another proceeding,
solely because they were adverse; [and] (4) mere familiarity with
the defendant . . . .” Id. Such matters are not ordinarily
sufficient to warrant § 455(a) recusal. A reasonable person,
knowing all the relevant facts, would not harbor doubts about the
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United States v . Mitrano 08-CR-094-PB 02/04/09 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
United States of America, Government
v. Criminal Case N o . 08-cr-94-1 Opinion N o . 2009 DNH 014 Peter P. Mitrano, Defendant
O R D E R
This case was originally assigned to Judge Barbadoro. As
the current trial date approached it became clear that Judge
Barbadoro could not preside due to a special assignment requiring
him to preside over a complex criminal matter in the District of
Puerto Rico during the same trial period. To facilitate timely
resolution of this matter under those circumstances, this case
was reassigned to me for trial.
The defendant filed a motion to recuse, and to have the case
reassigned to Judge Barbadoro. A pretrial status conference was
held. Counsel for both parties advised that there were pending
legal issues that had been recently briefed and that each side
thought ought to be resolved prior to trial (e.g., the
availability and extent of a “Cheeks” defense; the extent to
which defendant can challenge the validity of the underlying
state support order, e t c . ) . Counsel for defendant has since advised the court that he will restyle pending motions in the
form of a motion to dismiss, within 30 days.
Motion to Recuse
Defendant’s recusal motion rests on grounds that the
undersigned judge dismissed an earlier civil suit filed by him
against a state marital master, and in so doing “also dismissed
defendant’s legal theories regarding the [state] family court’s
lack of subject matter jurisdiction by stating ‘plaintiff is a
trained attorney and presumably knows, or certainly should know,
that his claims are nonstarters.’” See Mitrano v . Martin, Case
N o . 01-cv-153-M. Defendant says “These same claims will also be
at issue in the instant prosecution . . . .”
In addition, defense counsel asserts that “ . . . it has come
to counsel’s attention that Hon. Judge McAuliffe also signed
Orders suspending the defendant from practicing [law] in this
Court.” . . . “suggest[ing] that the defendants legal arguments
regarding why he should not be suspended are “arcane’ and
‘meritless’,” and further stated that “[the] misconduct by
Mitrano that was established in the District of Columbia
disciplinary proceeding (theft) unquestionably warrants the
sanction of disbarment.” In re Peter Paul Mitrano, Docket N o .
07-adr-01-M.
2 Taking the assertions in reverse order, indeed theft by an
attorney under the circumstances found with respect to Mitrano
unquestionably warrants disbarment, and Mitrano has been properly
disbarred in a number of jurisdictions, including this one. That
serious misconduct, however, bears no relationship to the
criminal case at hand — the facts are unrelated, the applicable
law is unrelated, and the disposition is unrelated.
The same is true with respect to the assertion of recusable
bias. Counsel for defendant misconstrues, or distorts, the
disposition of Mitrano’s earlier civil case. As the order, fully
quoted, made clear:
Extensive analysis and discussion [of Mitrano’s federal claims] are not warranted. [Mitrano] is a trained attorney and presumably knows, or certainly should know, that his claims are nonstarters. Briefly, the New Hampshire Superior Court’s exercise of jurisdiction over his child custody case, whether legally correct or incorrect, and its order finding him in contempt of that court, whether legally correct or incorrect, are matters which he can fully litigate in the state courts — appeals lie in the New Hampshire Supreme Court and, if cognizable federal issues warrant i t , in the United States Supreme Court. Lower federal courts, however, do not sit in review of state court decisions, particularly when the state proceedings are ongoing, as is the case here. Mitrano v . Martin, 2002 DNH 0 3 0 , at 2-3 (emphasis added) (citations omitted).
S o , counsel misquoted, by not fully quoting, and thereby
misstates the court’s ruling — which specifically did not relate
3 to any issue of state court jurisdiction or any other issue
pending before the state court in Mitrano’s custody dispute, but
rather addressed only his federal claims and this court’s
jurisdiction, finding that there was no federal jurisdiction,
hence the dismissal. And, again, as a trained attorney,
defendant knew or certainly should have known, that his federal
claims were nonstarters, for all the reasons given in the
dismissal order; his current counsel should know as much.
A party may invoke a statutory right to recusal of a federal
trial judge under certain circumstances. The applicable statute
provides:
Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.
28 U.S.C. § 144. Moreover, “[t]o require disqualification, the
alleged bias or prejudice must be both ‘(1) personal, i.e.,
directed against a party, and (2) extrajudicial.’” United States
v . Kelley, 712 F.2d 8 8 4 , 889 (1st Cir. 1983) (quoting United
States v . Carignan, 600 F.2d 7 6 2 , 763 (9th Cir. 1979)); see also
In re United States, 441 F.3d 4 4 , 67 (1st Cir. 2006). Regarding
the requirement that a judge’s alleged bias be extrajudicial,
4 “[f]acts learned by a judge while acting in his judicial capacity
cannot serve as a basis for disqualification on account of
personal bias.” Kelley, 712 F.2d at 889 (citations omitted).
As noted, the affidavit of a party seeking recusal must be
“timely and sufficient.” Mitrano has not filed an affidavit.
S o , initially, Mitrano’s motion is defective under 28 U.S.C.
§ 144 for want of an affidavit.
Recusal on grounds of partiality is also addressed in 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). The indicia of bias Mitrano posits
consists entirely of judicial rulings made in a previous case and
a disbarment proceeding over which I presided. His motion
asserts no extrajudicial source for any knowledge he claims I
have concerning the pending matter, or any of the prior matters
in which he was involved. His motion does not sufficiently
allege any facts that would counsel, much less require, recusal
under either Section 455(b)(1) or 455(a). Kelley, 712 F.2d at
889. See Nichols v . Alley, 71 F.3d 3 4 7 , 351 (10th Cir. 1995)
(surveying cases). That i s , all Mitrano asserts is “(2) the mere
fact that a judge has previously expressed an opinion on a point
5 of law . . . (3) prior rulings in . . . another proceeding,
solely because they were adverse; [and] (4) mere familiarity with
the defendant . . . .” Id. Such matters are not ordinarily
sufficient to warrant § 455(a) recusal. A reasonable person,
knowing all the relevant facts, would not harbor doubts about the
undersigned judge’s impartiality based upon such claims.
As one scholarly publication on the subject of recusal has
observed:
In some cases, the judge’s familiarity with aspects of a case comes from having presided over related cases. Here, too, absent unusual circumstances, recusal is unnecessary. The case of Town of Norfolk v . United States Army Corps of Engineers, [968 F.2d 1438 (1st Cir. 1992)] is illustrative. A district judge had overseen compliance with a city plan to clean up the Boston Harbor. In a subsequent case about locating a landfill pursuant to the Clean Water Act, a party moved for the judge’s recusal and the judge refused. The First Circuit upheld the refusal, noting that “a judge is sometimes required to act against the backdrop of official positions he took in other related cases. A judge cannot be replaced every time a case presents an issue with which the judge’s prior official decisions and positions may have a connection.”
Recusal: Analysis of Case Law Under 28 U.S.C. §§ 455 & 1 4 4 ,
Federal Judicial Center (2002), p . 26 (quoting Town of Norfolk,
968 F.2d at 1462). Here, of course, there is no relatedness
among the cases. There was no issue decided, or fact found, in
6 the prior federal cases that will be presented in Mitrano’s
federal prosecution.
A decision on a recusal motion requires the judge to balance
several factors and “must reflect not only the need to secure
public confidence through proceedings that appear impartial, but
also the need to prevent parties from too easily obtaining the
disqualification of a judge, thereby potentially manipulating the
system for strategic reasons, perhaps to obtain a judge more to
their liking.” In re U.S., 441 F.3d at 67 (quoting In re Allied-
Signal, Inc., 891 F.2d 9 6 7 , 970 (1st Cir. 1989) (emphasis in
original)). While it is always tempting for a judge to simply
recuse from cases, such as this, involving difficult parties who
have been unsuccessful in past cases before the same judge,
nevertheless, a judge is as duty bound to sit when recusal is not
appropriate as to recuse when it is appropriate. See Laird v .
Tatum, 409 U.S. 8 2 4 , 837 (1972) (citations omitted). Recusal is
simply not appropriate here.
Because Mitrano’s motion for recusal (document n o . 54) is
legally insufficient in that it does not assert any facts or
circumstances that could cause a reasonable person, fully
informed of the actual facts, to question the assigned judge’s
impartiality, it is denied.
7 Continuance
Defense counsel filed a number of motions in December
raising issues that are, on their face at least, somewhat
complex. Those motions just became ripe and are pending. Both
sides agree that those matters should be resolved in advance of
trial. And, defense counsel will be filing a more focused motion
to dismiss within 30 days. The case is not ready for trial.
Accordingly, it will be continued.
The court finds that the ends of justice served by granting
a continuance outweigh the best interest of the public and the
defendant in a speedy trial, 18 U.S.C. § 3161(h)(8)(B)(iv), in
that failure to grant a continuance would unreasonably deny
defendant the reasonable time necessary for effective preparation
taking into account the exercise of due diligence under the
circumstances.
Because trial is continued to permit resolution of the
issues raised in the pending motions, there is no need for the
reassignment to facilitate an early disposition. Accordingly,
the Clerk will vacate the reassignment order and restore this
case to Judge Barbadoro’s docket.
8 Conclusion
The motion to recuse (document n o . 54) is DENIED. The trial
is continued. Defense counsel will file a focused motion to
dismiss within 30 days of the date of this order supported by a
memorandum of law. The government shall respond within the time
prescribed by applicable rules of procedure.
SO ORDERED.
Steven J. __McAuliffe Chief Judge
February 4, 2009
cc: Helen W. Fitzgibbon, Esq., AUSA Jeffrey S. Levin, Esq. U.S. Probation U.S. Marshal