Notice: Ninth Circuit Rule 36-3 Provides That Dispositions Other Than Opinions or Orders Designated for Publication Are Not Precedential and Should Not Be Cited Except when Relevant Under the Doctrines of Law of the Case, Res Judicata, or Collateral Estoppel, 959 F.2d 243 (9th Cir. 1990)

MEMORANDUM^** 

Ramdas P. Gupta appeals pro se the district court's judgment of forfeiture against his real property. He contends that the judgment should be vacated because the district court (1) erred by denying his motion for a continuance of trial to permit him to retain another attorney or prepare to proceed pro se and (2) was biased against him. We have jurisdiction under 28 U.S.C. § 1291. We reverse the judgment and remand for further proceedings before a different judge.

Gupta contends that Judge Hauk was biased against him because at trial the judge said, "He's a bad apple ..., Gupta. I have had trouble with him before as I remember," but in fact Gupta had never appeared before him.

We review for an abuse of discretion a judge's failure to sua sponte recuse himself pursuant to 28 U.S.C. § 455. United States v. Hernandez-Escarsega, 886 F.2d 1560, 1581 (9th Cir. 1989), cert. denied, 110 S. Ct. 3237 (1990). Recusal is appropriate if "a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned." Id. (quotation omitted). To warrant recusal, judicial bias must stem from an extrajudicial source. Pau v. Yosemite Park and Curry Co., 928 F.2d 880, 885 (9th Cir. 1991). "Further, the bias or prejudice must result in an opinion on the merits on some basis other than what the judge learned from his participation in the case." Hernandez-Escarsega, 886 F.2d at 1581 (quotation omitted).

Here, Lawrence A. Morse, Esq., a retained attorney, represented Gupta throughout the forfeiture proceedings. A bench trial was set for October 15, 1990. On October 1, 1990, the parties lodged a proposed pretrial conference order in which Gupta admitted facts establishing that the property was subject to forfeiture. On October 5, 1990, Gupta filed a document withdrawing his claim to the property. Both Morse and Gupta signed the document.

On October 12, 1990, the government filed notice that on October 11 it had received from Gupta a pro se letter dated October 4, 1990. In the letter Gupta stated that "due to mistrust" he had fired Morse and intended to hire another attorney, and he asked the government to disregard the withdrawal of claim.

At the bench trial on October 16, 1990, Morse stated that he was not prepared because he believed Gupta's claim was withdrawn. Judge Hauk ruled that Morse still represented Gupta and denied Gupta's motion for a continuance of trial to permit him to retain another attorney or to permit Gupta or Morse to prepare for trial. The judge also ruled that Gupta's claim was withdrawn and adopted the proposed pretrial order.

It was in the course of these rulings that Judge Hauk made the remark that Gupta was a "bad apple." Because, as Gupta's attorney indicated, Gupta had never previously appeared before the judge, the judge's opinion stemmed from an extrajudicial source. See Pau, 928 F.2d at 885. Moreover, regardless of the merits of the rulings on the withdrawal of claim and other matters, the timing of Judge Hauk's remark indicates that he based the rulings on his negative opinion of Gupta. See Hernandez-Garcia, 886 F.2d at 1581. Accordingly, Judge Hauk abused his discretion by failing to recuse himself. See id. We therefore reverse the judgment and remand this case for further proceedings before a different judge.

REVERSED.