Unpublished Disposition, 905 F.2d 1541 (9th Cir. 1990)

No. 89-10290.

United States Court of Appeals, Ninth Circuit.

Before TANG and BEEZER, Circuit Judges, and ALBERT LEE STEPHENS,^*  District Judge.

MEMORANDUM^** 

Lester Thomas Smith ("Smith") appeals his convictions on drug related offenses. We affirm.

DISCUSSION

Smith asserts that the district court abused its discretion when it denied his motion to withdraw his plea. Smith argues that prosecutor Niespolo's departure from office was a material fact that should have been disclosed prior to his guilty plea. Therefore, it is argued that this nondisclosure of Niespolo's departure is a fair and just reason for withdrawal of the plea.

We affirm the refusal to allow Smith to withdraw his plea for four reasons. First, because Niespolo had asked for a Special United States Attorney appointment, he could have appeared at Smith's hearing after his departure from the United States Attorney's office. After weighing the alternatives, Smith decided against Niespolo's appearance and this indicates that Smith did not view Niespolo's presence as critical. Second, Smith signed a plea agreement which stated that it alone contained all the terms of the agreement. If Smith believed Niespolo's presence was material, Smith should have included that in the agreement. Third, Smith acknowledged in open court that the district court could impose a greater sentence than the one the government recommended. This acknowledgment undercuts Smith's position because it indicates that Smith knew, no matter who the United States Attorney was, the district court retains the power to decide ultimately the sentence. Lastly, underlying Smith's claim is the assertion that Judge Patel would have acted more favorably had Niespolo appeared for the United States. No evidence in the record supports this assumption.

Smith contends the district court abused its discretion when it denied Smith's second motion to recuse filed under 28 U.S.C. §§ 144 and 455.

We affirm the district court's rejection of Smith's second motion to recuse. The Order to Show Cause was directed against Smith's attorney. Thus, Smith must show a "virulent" extrajudicial bias against his attorney. See United States v. Jacobs, 855 F.2d 652, 656 n. 2 (9th Cir. 1988). Smith does not make this showing. Smith's attorney became the subject of the Order to Show Cause because he signed a motion to recuse which Judge Vukasin, not Judge Patel, found wholly insufficient. This motion was based in part on a private investigator's affidavit which might have contained a patent falsehood. Thus, Judge Patel based her Order to Show Cause upon the filing of the meritless motion to recuse. Consequently, her order does not stem from any extrajudicial source. See United States v. Studley, 783 F.2d 934, 939 (9th Cir. 1986) ("The alleged prejudice must result from an extrajudicial source; a judge's prior adverse ruling is not sufficient cause for recusal.").

AFFIRMED.