US v. Lee Farkas, No. 15-7888 (4th Cir. 2016)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-7888 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LEE BENTLEY FARKAS, Defendant - Appellant. No. 16-6386 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LEE BENTLEY FARKAS, Defendant - Appellant. Appeals from the United States District Court for the Eastern District of Virginia, at Alexandria. Leonie M. Brinkema, District Judge. (1:10-cr-00200-LMB-1) Submitted: September 29, 2016 Decided: October 4, 2016 Before MOTZ and WYNN, Circuit Judges, and DAVIS, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Clifford J. Barnard, Boulder, Colorado, for Appellant. Dana J. Boente, United States Attorney, Karen Ledbetter Taylor, Assistant United States Attorney, Jonathan D. Scharf, Special Assistant United States Attorney, Alexandria, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: In these challenges consolidated the district appeals, court’s Lee orders Bentley denying his Farkas motions seeking recusal under 28 U.S.C. §§ 144 and 455(a) (2012) of the district judge who presided over his criminal prosecution and related proceedings. For the reasons that follow, we affirm. A presiding judge must recuse herself if any party “files a timely and sufficient affidavit that the judge . . . has a personal bias or prejudice either against him or in favor of any adverse party.” Int’l Bhd. of 28 U.S.C. § 144; see Sine v. Local No. 992 Teamsters, 882 F.2d 913, (describing a “sufficient” affidavit). 914 (4th Cir. 1989) In evaluating a § 144 motion, the challenged judge considers the legal sufficiency of the allegations in the affidavit but makes no finding as to the truth of those allegations. See Berger v. United States, 255 U.S. 22, 36 (1921); United States v. Vespe, 868 F.2d 1328, 1340 (3d Cir. 1989). conclusionary rumors.” 1976) However, nature are “[a]ssertions not enough, nor merely are of a opinions or United States v. Haldeman, 559 F.2d 31, 134 (D.C. Cir. (footnotes omitted). “[T]he facts averred must be sufficiently definite and particular to convince a reasonable person that bias exists . . . .” 1331, 1339 (7th Cir. 1993). 3 United States v. Sykes, 7 F.3d Under § 455(a), a federal judge is required to recuse herself “in any proceeding in which [her] impartiality might reasonably be questioned.” The appropriate inquiry is not whether the judge is in fact impartial, but whether, applying an objective standard, “the judge’s impartiality might be questioned by a reasonable, well-informed observer who assesses all the facts and circumstances.” 162 F.3d 279, omitted). proceeding 286 (4th Cir. a judge’s Neither nor “unsupported, United States v. DeTemple, 1998) (internal attenuated irrational quotation marks relationship or speculation” is sufficient to require recusal. highly to a tenuous United States v. Cherry, 330 F.3d 658, 665 (4th Cir. 2003) (internal quotation marks omitted); see In re Drexel Burnham Lambert Inc., 861 F.2d 1307, 1313 (2d Cir. 1988). Further, the judge evaluating a § 455 motion or related affidavit is not required to accept the allegations underlying the motion or affidavit as true. In re Beard, 811 F.2d 818, 827 (4th Cir. 1987). We have reversible thoroughly error in the reviewed the district record court’s and denial discern of no Farkas’ motions. Rather, our review indicates that Farkas’ claims of bias patently are of the district judge, based upon either actual or apparent bias. The affidavit insufficient supporting Farkas’ to § 144 4 warrant motion recusal was rife with speculation and unsupported conclusions and failed to allege sufficient nonconclusory facts to support his claim that the district judge harbored actual bias against him. contentions and materials underlying Farkas’ Further, the § 455(a) motion, alleging bias based on the district judge’s financial losses during the provide Farkas’ too nationwide tenuous conduct economic a to link downturn between warrant a from the 2006 judge’s reasonable, conclusion, we discern no abuse of 2008, losses and well-informed individual to question the judge’s impartiality. this to In reaching discretion in the court’s manner of addressing various declarations provided with Farkas’ § 455(a) motion. In short, while we do not purport to diminish the vital importance of an unbiased judiciary to the proper functioning of the judicial system, Farkas’ specific allegations border on the frivolous and fail to provide any legitimate basis for recusal. Because we conclude Farkas’ motions are insufficient as a matter of law to warrant recusal, we decline to address the parties’ additional arguments regarding the timeliness of Farkas’ motions and the application of the safe harbor provision under 28 U.S.C. § 455(d)(4)(i) (2012) to the facts presented. Accordingly, we affirm the district court’s orders. dispense with oral argument because 5 the facts and We legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 6
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