IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA :

: Cr. No. xx-157 (NHJ)

v. :

:

xxxxxxxxxxxxxxxxxxxxx, :

:

Defendant. :

MOTION FOR RECUSAL

Defendant xxxxxxxxxxxx, through counsel, respectfully moves the court, pursuant to 18 U.S.C. §§ 144⁽¹⁾ and 455, to recuse herself from the trial of this case. As grounds, Mr. xxxxx shows the court:

Facts

Introduction

xxxxxx xxxxx was a defendant in United States v. xxxxxx xxxxx, et al., Cr. No. 96-319, which was tried before this court in March, 1997. In that case, Mr. xxxxx, his brother, Louis xxxxx, and Marcellus xxxxx were accused of conspiring to kill and killing Leroy xxxxx, a government witness against James xxxxx, the brother of xxxxxx and Louis xxxxx. During the trial of that case, this court demonstrated bias and animosity towards Mr. xxxxx's counsel, and therefore, indirectly towards Mr. xxxxx. Below are examples of the court's treatment of counsel. As a consequence of that treatment, Mr. xxxxx contends that the court should recuse herself from presiding over the trial of the instant case.

1. During the testimony of government witness Sandra Wilkinson, the Assistant United States Attorney in Maryland who was prosecuting James xxxxx in the case in which xxxxx was scheduled to testify, the judge contradicted defense counsel⁽²⁾ in the presence of the jury. Ms. Wilkerson had earlier testified that her office, the Office of the United States Attorney for the District of Maryland, had a practice of not relying upon the testimony of cooperating witnesses with lengthy records unless that testimony was corroborated. Tr. 3-42.⁽³⁾ When defense counsel attempted to question Ms. Wilkinson about that practice, the court interrupted:

COUNSEL: Now, you said that it is the practice of the

U. S. Attorney's Office --

COURT: You said your office, didn't you?

WITNESS: My office, yes.

COUNSEL: Your U. S. Attorney's Office not to rely

upon the testimony of people with lengthy records.

GOVERNMENT COUNSEL: Objection.

COURT: I'm afraid she didn't say that. I didn't hear

her say that. Tr. 3-46, 47.

In fact, it became clear from the following questions and answers that the witness had said exactly that:

COUNSEL: Did you testify earlier today, in response

to one of Mr. Birdsong's questions, that you do

not -- it is the practice of the U. S. Attorney's

office for which you work not to base -- rely

upon and base charges upon the testimony of

somebody with a long criminal record without

corroboration?

WITNESS: No, I don't believe I said that.

COUNSEL: Okay. Do you want to explain what you

said with respect to that?

WITNESS: What I said was that when we get a

cooperator who is helping us with an

investigation, before we would bring charges,

we would attempt to corroborate that in the

best way we can and make a decision about

whether or not we should go forward with the

cooperator's testimony and, hopefully, the

corroboration.

COUNSEL: Okay. And you never said anything

about the person having a long criminal record?

WITNESS: Well, yeah, I meant a cooperating

witness who has a criminal record. Yes,

that's usually what happens.

COUNSEL: Okay. So you would attempt to

corroborate before going forward.

WITNESS: Usually we try to do that, yes.

Tr. 3-47, 48.

2. The court then accused counsel again of asking a question that was contrary to the evidence:

COUNSEL: . . . The question is, when you have situations

where you're trying to corroborate somebody with a

lengthy criminal record and the only thing that you

have to corroborate is somebody with equally as long

a criminal record, with the same motives to fabricate

testimony, that presents a problem, doesn't it?

GOVERNMENT COUNSEL: Objection.

COURT: Well, you are asking a question that is outside

of the evidence, contrary to her direct testimony.

So I have to sustain that. Tr. 3-48.

The question posed by counsel was not "contrary to her direct testimony," as the court stated, but was fair follow-up to the series of questions and answers about the practice of the witness' office.

3. When counsel attempted to cross-examine Ms. Wilkinson about a representation the government had made to James xxxxx's attorney about xxxxx, the court accused him of being

repetitive:

COUNSEL: [The letter to James xxxxx's attorney]

does say, "Law enforcement believes, in fact, that

Mr. xxxxx's urine test was not accurate and that

halfway house officials intentionally violated him

for safety reasons." Do you see that, too?

WITNESS: That's right. That's what they told me,

yes. And I relied on it and put it in the letter.

COUNSEL: Okay. So it was your understanding that

as of July, 1995, July 2nd, 1995, there were safety

concerns because there were people out there who

believed Mr. xxxxx to be a snitch?

GOVERNMENT COUNSEL: Objection.

COURT: Objection is sustained. You're just repetitive.

Tr. 3-53, 54.

The question was not repetitive. Rather, the question was an effort on the part of counsel to clarify the witness' responses, both as to the date that the safety concern arose and the basis for the concern, that xxxxx was "a snitch."

4. When defense counsel attempted to show through Ms. Wilkinson that James xxxxx's defense had in fact been disadvantaged by xxxxx's unavailability as a witness at the trial in Maryland, the court sua sponte interrupted counsel: "Totally irrelevant about what went on in Greenbelt. . . . That last question is just totally irrelevant." Tr. 3-56, 57. The government had elicited in its direct examination of the witness that the trial of James xxxxx had been seriously compromised by the unavailability of xxxxx's testimony, and counsel's questions were directly related to that testimony. Tr. 3-27, 28; 3-32 through 3-35.

5. The court accused defense counsel of being argumentative, when he pressed Ms. Wilkinson to answer a question which was entirely appropriate and to which the government interposed no objection:

COUNSEL: And you learned that Mr. xxxxx is being

considered for a $100,000 reward for Brinks Security

as a result of his information in another matter.

WITNESS: I was told that, yes.

COUNSEL: And because you were told that, you relied

upon it, you adopted it, you put it in the letter,

you signed it, and this was information that you

had adopted. Correct?

WITNESS: Yes, I put it in my letter, yes.

COUNSEL: Well, this is information that you adopted

and relied on so as to sign it --

GOVERNMENT COUNSEL: Objection.

COUNSEL: --and give it to the defense as a

representation of the United States Attorney's

Office for which you work.

COURT: Argumentative. She has answered the question.

Move on please. Tr. 3-59, 60.

Counsel's question, instead of being argumentative, as characterized by the court, was a legitimate effort to force the witness, whose answers were evasive, to admit that by including the information about the reward in her letter to James xxxxx's counsel, she had adopted that information as true.

6. During the direct testimony of government witness Steven Jacoby, James xxxxx's attorney, government counsel asked him a question, and in order to answer the question, Jacoby read from a document which was used to refresh his recollection. Defense counsel objected that the witness should testify from his recollection, if it was refreshed, and not from the document. When it became clear that the witness could not do so, counsel moved to strike the answer which the witness had read from the document. The court responded, "Would you please just be seated. Your objection is overruled." Tr. 3-117. In admonishing counsel to be seated, the court conveyed to the jury that counsel's objection was without merit, even though it was clear that the witness was testifying from the refreshing document rather than from his own memory.

7. With that same witness, government counsel posed a question that clearly called for speculation:

GOVERNMENT COUNSEL: In representing clients, if you

were provided something such as a transcript --

The court responded to a timely objection by defense counsel by chastizing counsel:

COURT: Let me hear the question. You may be able

to know what's coming out of his mouth, but I'm not.

Tr. 3-128.

8. During counsel's cross-examination of Mr. Jacoby, the court interrupted, without government objection, and dressed counsel down in front of the jury, simply for directing the witness' attention to a specific paragraph of the letter to him from the U. S. Attorney's office, in evidence as a government exhibit, so that he could pose a question about the contents of the letter:

COUNSEL: . . . You knew from your review of that

letter that since July 2 of 1995, the government

had concerns for Mr. Leroy xxxxx's safety because

the word was out that he was an informant with the

government?

WITNESS: Page three.

COUNSEL: Page three?

WITNESS: Yes, sir.

COUNSEL: I will direct your attention to page four

at the second full paragraph. And you also realized

that --

COURT: Now wait one minute. What are you doing?

He answered your first question.

COUNSEL: Certainly.

COURT: So what are you doing now?

COUNSEL: Asking another one.

COURT: But why would you direct him to some

place in the letter if all you're going to do is

ask him a question?

Tr. 3-137.

The court's admonition suggested that it was improper for counsel to refer the witness to a document in evidence, even though the witness had already been questioned extensively by the government about the exhibit and its contents.

9. When counsel, at the court's direction, posed a question without reference to the government exhibit, the judge sua sponte chastized counsel again:

COUNSEL: You're aware that since November 1995

even the D. C. Board of Parole Review was concerned

for Mr. Leroy xxxxx's safety because of the

extensive cooperation that he had provided for

the government and the fact that he was known

to be an informant.

COURT: You have got a double question there.

That's the first problem with it. And the second

problem is it seems not to be directly within the

scope of the direct examination. So consider that

as well before you ask your next question.

Tr. 3-138.

Counsel's question was proper cross-examination relating to the witness' direct testimony that he had told xxxxxx xxxxx about Leroy xxxxx's cooperation with the government against James xxxxx. Tr. 3-109. The government was attempting to show that that information gave xxxxxx xxxxx a motive to conspire to kill Leroy xxxxx to prevent his testifying against his brother, James xxxxx. Counsel's question attempted to elicit from the witness that there were other persons with a similar motive.

10. On cross-examination of Mr. Jacoby, defense counsel asked about a pretrial proceeding in the Maryland case, in an effort to clarify whether the witness had given over any discovery materials during that proceeding, as Ms. Wilkinson had testified,⁽⁴⁾ or whether he had merely reviewed the materials in the meeting in his office about which he had testified on direct examination. The judge ruled that the questions were outside the scope of direct examination:

COUNSEL: Now, there is such a thing called a

suppression hearing that is part of criminal cases,

right?

COURT: Let me ask you, is that within the scope of

the direct examination? I think not. I don't remember

hearing any questions about a suppression hearing

in the direct examination. And you keep that in mind

as you ask questions. You're cross-examining on

direct, okay? Tr. 3-139, 140.

The questions were within the scope of the direct examination by the government, given the fact that on direct examination of Mr. Jacoby, the government inquired of him whether he had shared any discovery materials with xxxxxx xxxxx. Tr. 3-112, 120, 121.

11. When counsel attempted to clarify his question so that it was clear that he was referring to pretrial proceedings generically, and not just a hearing on a motion to suppress, the court again interrupted him:

COUNSEL: Were there any occasions during your

representation of James xxxxx when you were present

in the courtroom and handed any material, whether

it was a transcript, a tape, or that Government's

Exhibit 36 or a copy of it, to one of James

xxxxx's brothers in court? Did that ever happen?

WITNESS: Did I ever give them any documents? No,

not to my knowledge.

COUNSEL: And if there were any occasions whether in

suppression hearing --

COURT: Just one minute. There has been no testimony

on direct, to my knowledge, about a suppression hearing,

so did you hear any such testimony?

COUNSEL: About court proceedings in generally (sic), not in specificity.

COURT: Did you hear any testimony about a suppression hearing?

If you didn't, keep it out of your cross because it's

outside the scope, and you know that.

COUNSEL: Your Honor, I absolutely -- I do not know

that. I do not know that to be the case, Your

honor.

COURT: Approach the bench, and I will tell you

about it. Tr. 3-140, 141.

At the bench, the court ruled that because Jacoby had never mentioned anything about a suppression hearing, defense counsel was not permitted to inquire whether he had turned materials over at a pretrial court proceeding. The court utilized that restrictive interpretation of the scope of cross-examination frequently throughout the trial to restrict counsel's questioning.

12. Mr. Jacoby had testified at some length during his direct examination by government counsel about a meeting in his office where he had reviewed discovery materials with xxxxxx xxxxx and with James xxxxx's wife, Maxine xxxxx. On cross-examination, defense counsel attempted to question him about that meeting, but the court ruled that the questions were outside the scope of the direct examination:

COUNSEL: Now, you met with Mr. xxxxxx xxxxx on

March 26th -- sorry, March 20th, 1996.

WITNESS: Correct.

COUNSEL: And your meeting was actually with Maxine

xxxxx?

WITNESS: Correct.

COUNSEL: And it was your understanding that the

only reason that xxxxxx xxxxx was there was for

transportation purposes?

WITNESS: Correct.

GOVERNMENT COUNSEL: Objection.

COURT: Objection is sustained. That is outside the

scope of direct examination.

COUNSEL: Outside the scope?

COURT: Outside the scope of direct examination.

Tr. 138, 139.

13. On redirect examination of Mr. Jacoby, government counsel asked a question about the practice in Maryland regarding disclosure of discovery materials. There had been no questions to Mr. Jacoby on cross-examination about general practices in Maryland. When Mr. xxxxx's counsel objected that the question was beyond the scope of cross-examination, the judge overruled the objection, stating that ". . . it's certainly within the scope of your cross-examination, and that's what redirect relates to." Tr. 3-147.

14. Outside the presence of the jury, the court demeaned defense counsel when he was arguing, at the court's invitation, the issue of whether a tape-recorded conversation which the court had earlier determined to be admissible in evidence should be further redacted based upon the testimony of Steven Jacoby.

COURT: Let me just suggest this to you and

anyone who has to follow you. I have already

made a ruling on that. The question is, now

that we have heard from Mr. Jacoby, are there

any other parts of this tape that should

not be heard? That's the only issue.

COUNSEL: I understand.

COURT: Because I have already ruled that the

tape will be presented and the reasons why I

think it can be presented.

COUNSEL: Certainly.

COURT: So what I'm trying to find out from

each of you now is, based upon Mr. Jacoby's

testimony, is there anything else that you

think, other than that which I have suggested,

should be excluded?

COUNSEL: Yes, Your Honor. I'm trying to address

that.

COURT: Tell me what you think it is and then

address it.

COUNSEL: Okay.

COURT: It will make it a lot easier.

COUNSEL: There are three parts that should be in,

based on Mr. Jacoby's testimony. I will place it

that way, and everything is out by exclusion by

deduction.

COURT: Let me judge his testimony. You just tell

me how you feel, what you feel his testimony shows.

COUNSEL: That's what I'm trying to do, Your Honor.

COURT: Well, you're not doing it in a language

that would lead one to believe that, so just

tell me what you think. Tr. 3-193 through 195;

. . . .

COUNSEL: Are you suggesting that this witness

did not testify today that he also read parts

of the transcript to Maxine xxxxx? Are you

saying that?

COUNSEL: No. He was reading the transcript as the

tape was playing.

COURT: Can you answer the question yes or no.

COUNSEL: I'm not saying that, Your Honor.

COURT: I'm asking you yes-or-no question.

COUNSEL: No.

COURT: You're saying he did not say that?

COUNSEL: I'm saying no. I'm not saying he did

not say that.

COURT: Why don't you answer my question yes or no?

COUNSEL: The answer is no. No, I'm not saying that

he did not say that.

COURT: That's a double negative.

COUNSEL: What's the court's question?

COURT: I won't ask it again.

COUNSEL: I will make it clear for the record

what my position is.

COURT: Excuse me. I don't need to know your

position. I simply asked you a question. You

have answered it with a double negative.

Move on to the next point because I don't have

all day. Move on to the next point. Tr. 3-197, 198.

15. Kevin Eddings, a government witness, testified on direct examination that earlier in the day on March 26, 1996, the day xxxxx was shot, he had seen two men on Bundy playground, one of whom was known to him as "Head." He did not identify the second man. Tr. 6-95, 96; 103, 104. On cross-examination by Louis xxxxx's attorney, Eddings admitted that the second man on the playground resembled the shooter. Tr. 6-122, 123. Other government evidence was that the second man on the playground was a government witness, Kirk Thomas. When defense counsel was cross-examining Eddings, he attempted to show that Eddings had been reluctant to mention the second man on the playground because he had told police that that man resembled the shooter. The

court sua sponte interrupted counsel's cross-examination and made a disparaging remark to counsel:

COUNSEL: And as you told us on direct, when

Mr. Mueller asked you, you said that you

saw "Head" there.

WITNESS: Yes.

COUNSEL: The guy with the limp.

WITNESS: Yes.

COUNSEL: But that's not the only guy you

saw there, right?

WITNESS: It was not.

COUNSEL: You didn't tell us about that on direct.

WITNESS: I don't understand what you're saying.

COURT: I don't understand what you're saying either,

based on the evidence I have heard in here today.

I don't understand what you're saying. Tr. 6-134.

The court's comment implied that counsel was misrepresenting the evidence, when in fact the witness had not mentioned during his direct examination that he had told the police the man looked like the shooter.

16. At the conclusion of Eddings' testimony on redirect examination, defense counsel requested permission to re-cross examine the witness. The court declined the request, and refused to permit counsel to approach the bench to proffer the desired re-cross examination and explain its relevance. Tr. 6-152, 153.

17. During the defense case, when defense counsel tried to cross-examine Jacqueline xxxxx, a witness called by Louis xxxxx's lawyer, the government objected to a question as leading. Counsel explained that he was permitted to lead on cross-examination. The court, however, on its own motion, objected to counsel's question as irrelevant. The question was whether James xxxxx, the brother on whose behalf the defendants allegedly killed the government witness, had lived at the family home with Ms. xxxxx and her husband, xxxxxx xxxxx. Ms. xxxxx had testified on direct examination that she and xxxxxx xxxxx lived there. The question was clearly directed to the government's motive evidence. When counsel asked to approach the bench to proffer relevance, the court refused to permit him to do so.

COUNSEL: He hasn't lived there for as long as you've

lived there, right?

WITNESS: Yes.

GOVERNMENT COUNSEL: Objection. Leading.

COURT: I don't know that that's relevant.

COUNSEL: His objection was leading, Your Honor. I'm

on cross-examination.

COURT: But I said I don't think it's relevant.

COUNSEL: Oh. May I proffer the relevance to the court?

COURT: No. No. I heard the question. You may proceed.

Tr. 8-62, 63.

18. Counsel for Louis xxxxx called Christine xxxxx as a witness. Ms. xxxxx identified someone other than Louis xxxxx as the shooter of Leroy xxxxx. Tr. 8-109 through 8-111. She testified on direct examination that neither the police nor the FBI spoke with her about the shooting until January of 1997, when she was interviewed by an FBI agent. Tr. 8-111 through 8-113. When defense counsel tried to inquire into that interview on cross-examination, the court precluded him from doing so and the court refused to permit counsel to proffer the purpose for the questions:

COUNSEL: Now, you spoke to Susan Kossler [FBI agent]

when she came out--when you--when [she] came out and

spoke to you,you gave her a statement about what you saw?

WITNESS: Yes.

GOVERNMENT COUNSEL: Objection. Objection, Your Honor.

COURT: It really appears to be outside the scope

of the direct examination that Mr. Birdsong has

presented, and this is Mr. Birdsong's client's case.

COUNSEL: I understand, Your Honor. He mentioned this

statement to [FBI agent].

COURT: That may be true, but it's outside

the scope of all the detail you are trying

to go into.

COUNSEL: Could we go to sidebar briefly, please?

COURT: No, sir. I ruled. Tr. 8-117.

19. When counsel then tried to cross-examine the witness about the number of times she had met with the FBI, in order to show that she was pressured by the FBI to change her testimony exculpating Louis xxxxx, he was precluded from doing so and was not permitted to proffer a basis for the questioning:

COUNSEL: Ma'am, you met with Special Agent Kossler four

times at least?

WITNESS: That I can remember, yes.

COURT: That is outside the scope of the direct

examination, sir.

COUNSEL: Is there anything about his direct, Your Honor,

with respect to the meetings with counsel that I can

inquire of? Is there anything?

COURT: Let me just say this: If it's proper, yes.

That's the best I can say to you.

COUNSEL: I would like to proffer its relevance.

COURT: As I said, that's the best I could say

to you. If it's proper, yes. Tr. 8-117, 118.

20. On direct examination, Ms. xxxxx had testified that when she met with the FBI in January, 1997, she spoke with them about the kind of gun used in the shooting and was shown photographs of guns. Tr. 8-112, 113. When counsel attempted to cross-examine her about that testimony, the court ruled that it was outside the scope of direct examination:

COUNSEL: Now, ma'am, you were asked about the

type of gun that you saw used in this case,

right?

WITNESS: Yes.

COUNSEL: And you have indicated on previous occasions

the type of gun you saw was the type where you put a

clip on the bottom, right?

WITNESS: Yes.

COUNSEL: That's the type you saw used?

WITNESS: Yes.

GOVERNMENT COUNSEL: Objection. Leading.

COURT: That's outside the scope again.

COUNSEL: Your Honor, he inquired about the gun

and the gun book, Your Honor.

COURT: He inquired about whether she was asked to

look at a gun and she said she looked at a gun

book, but you asked her about whether she

testified about the gun. Tr. 8-119.

When the prosecutor, on cross-examination, asked about the kind of gun she had seen used in the shooting and defense counsel objected as beyond the scope, the court ruled that the question was within the scope of the direct examination of the witness. Tr. 8-127.

21. Defense counsel attempted to cross-examine Ms. xxxxx about the identity of the people she had testified were involved in the shooting of Leroy xxxxx:

COUNSEL: Now you said you saw three people, three

young men --

WITNESS: Yes.

COUNSEL: --commit this crime? And they were all

in their twenties?

WITNESS: Yes.

COUNSEL: And you recognized one of them to be

somebody you knew as "Skeeter," right?

GOVERNMENT COUNSEL: Objection. That is not her

testimony, Your Honor.

COURT: It has not been her testimony in this case.

I guess maybe I better have you approach the bench

with Mr. Spencer.

(At the bench)

COURT: . . . Look, I have told you this is Mr. Louis

xxxxx's case. His attorney has set the parameters

of cross-examination. If you want to call this woman

as your witness, you are welcome to do so. And you

may elicit anything that is proper and appropriate.

This is Louis xxxxx's case and you certainly have

a right to cross-examine any witness he brings up,

but you don't have the right to bring up additional

evidence.

COUNSEL: I understand, Your Honor. May I please

respond?

COURT: No, sir.

COUNSEL: Give me an opportunity to respond and

lay a foundation for what I'm doing. And Your

Honor, I know what the case is and what I'm

asking, and I know how it's within the scope

of what it's saying. I want to understand

the Court makes a contrary ruling and I

understand, but we must abide by that,

but I must at least be given an opportunity

to be heard like Mr. Mueller (government counsel)

says something we find objectionable.

COURT: I'm sorry you feel I have been treating

him differently than I'm treating you.

COUNSEL: I want an opportunity to make a record.

COURT: I'm talking. I find it quite sad to learn

you feel you are somehow treated differently

than Mr. Mueller is being treated. When I ruled,

I don't care to hear any comment on it. I called you

up to rule out of the presence of the jury, so I

don't intend to hear any comment. I have told you

what is going on, and that's final. Tr. 8-120, 121.

The court's comments were entirely unjustified, both because counsel's question was proper, in light of the direct examination, and because counsel's request to be permitted to show the relevance of the question was reasonable.

22. During the government's cross-examination of Ms. xxxxx, when defense counsel tried to object to a question by the prosecutor, and when the witness continued to respond, in spite of the objection, the court was rude to counsel in front of the jury: COURT: Excuse me, sir, I'm sure you must know

that I hear you.

COUNSEL: The witness was answering, and I wanted to cut her off.

COURT: Well, let me just say that that is my

responsibility, okay? Thank you. And you may be

seated.

COUNSEL: Thank you, Your Honor. Objection.

GOVERNMENT COUNSEL: I will put another question to the

witness.

COURT: Certainly. Tr. 8-121, 122.

23. During the testimony of one of the government's rebuttal witnesses, when counsel objected to the admission of a government exhibit, the court refused to permit him to state the grounds for that objection, saying, "I'll hear from you in a few minutes, all right? You may proceed (to the prosecutor)." Government counsel then asked the witness a question about the exhibit, and defense counsel objected:

GOVERNMENT COUNSEL: And when you showed her [the exhibit]

-- the photographs in [the exhibit], did she pick

any one out --

DEFENSE COUNSEL: Objection, Your Honor. Objection.

COURT: Sir, I haven't even heard the question.

And maybe if you hear it first before you make the

objection, we'll be in better shape. Okay?

Again, these remarks to counsel were unwarranted, when it was very clear from the question posed by the prosecutor that he was asking the witness about the contents of the exhibit at issue.

24. All of the foregoing conduct evidenced one-sided treatment of counsel by the court, and revealed the court's bias and animosity against counsel and against xxxxxx xxxxx.

Argument

In Liteky v. United States, 114 S.Ct. 1147, 1157 (1994), the Supreme Court recently defined the parameters of 18 U.S.C. § 455(a), holding that that statute, like 18 U.S.C. § 144, requires a showing that the bias or prejudice complained of, in order to warrant recusal, must stem from an extrajudicial source.⁽⁵⁾ When a party seeks recusal on the basis of a court's conduct in a prior judicial proceeding, the Court explained, there are two possible grounds for success: (1) the party can demonstrate that the judge whose recusal is sought relied, at the first proceeding, upon knowledge outside the proceedings; or (2) the party can demonstrate that during the first proceeding, the judge "displayed a deep-seated and unequivocal antagonism that would render fair judgment impossible." Id., at 1158. The Court also made it clear that under either § 144 or § 455, the test is an objective one: ". . . what matters is not the reality of bias or prejudice, but its appearance." See also, In re Barry, 946 F.2d 913, 914 (D.C. Cir. 1991) (the test is an objective one, "whether an informed observer would reasonably question the judge's impartiality."); Jenkins v. Sterlacci, 849 F.2d 627, 633-34 (D.C. Cir. 1988).

In United States v. Donato, 99 F.3d 426 (D.C. Cir. 1997), this circuit addressed conduct nearly identical to the conduct at issue here and concluded that ". . . the frequency, intensity, and one-sidedness of the court's hostility raise a serious question as to whether the trial court evidenced a sufficient bias that the defendant was unable to receive a fair trial." Id., at 437. In Donato, the court recognized that Liteky affords trial judges wide discretion to monitor the conduct of a trial, but determined that "there is a limit to how far a district court may go," and that "the hostility expressed in this case reached and crossed this threshold." Id., at 435. Because the court's comments occurred throughout a fairly brief trial, and because the judge "frequently berated, interrupted or otherwise spoke negatively to the defendant's attorney," the appellate court found the trial judge's conduct to be more egregious than in previous cases where conflict between the court and counsel had not jeopardized the fairness of the proceedings. Id.

By way of example, the trial judge in Donato, in the presence of the jury, accused the defense counsel of mischaracterizing testimony. The court referred to questions as "improper," and having "no relevance" at all. The court told counsel that "No one knows what you're talking about except you." Id., at 436. The court was sarcastic with counsel: "You know I've been here, don't you? . . . You've never missed me, have you?" Id. The court refused counsel the opportunity to be heard at the bench. Id., at 435, 437.

The treatment of defense counsel was noticeably different from the treatment accorded government counsel. Id., at 437.

In part because of this conduct toward counsel, Donato's conviction was reversed. In reversing, the appellate court ordered that if there was a re-trial, the case should be reassigned to another judge.

In the case at bar, the court engaged in conduct exactly like the conduct condemned in Donato. Here, in a trial lasting approximately eight days, the court repeatedly berated defense counsel, and repeatedly accused him of asking improper or irrelevant questions and exceeding the scope of direct examination. The court demeaned defense counsel in its comments during rulings. The court's attitude, gestures and facial expressions conveyed to the jury that the defense counsel was not competent and that he was deliberately acting inappropriately. The climate of hostility in the instant case was no different than the climate created in Donato.

The court's obvious bias against the defense counsel could only have prejudiced Mr. xxxxx's defense in the prior case presided over by this court. When bias against an attorney demonstrates bias against a party, recusal is required. Henderson v. Department ofo Public Safety and Corrections, 901 F.2d 1288, 1295 (5th Cir. 1990); In re Cooper, 821 F.2d 833, 839 (1st Cir. 1987); In re Beard, 811 F.2d 818, 830 (4th Cir. 1987). Inasmuch as the treatment of Mr. xxxxx's counsel was not based upon any conduct attributable to him, there is no other basis for the court's hostility toward him other than a bias against his client, the defendant.

Given the treatment of Mr. xxxxx's counsel in the case previously presided over by this court, the appearance of bias and hostility is present even if the court actually harbors no such animus. Therefore, recusal is warranted to effectuate the purposes of §§ 144 and 455, to avoid even the appearance of unfairness.

CONCLUSION

For these reasons, and any others that may appear at a hearing on this Motion, defendant xxxxx respectfully requests that his Motion to Recuse be granted and that this case be reassigned.

Respectfully submitted,

A.J. KRAMER

FEDERAL PUBLIC DEFENDER

________________________

Reita Pendry

Assistant Federal Defender

625 Indiana Avenue, N.W. #550

Washington, D. C. 20004

(202)208-7500

1. The Affidavit required by 18 U.S.C. § 144 is attached.

5. Even before the Court's ruling in Liteky, this circuit had interpreted § 455 as requiring an "extrajudicial source" for bias or prejudice. United States v. Barry, 938 F.2d 1327, 1340 (D.C. Cir. 1991).