United States District Court, W.D. North Carolina, Charlotte Division
D. WHITNEY CHIEF UNITED STATES DISTRICT JUDGE
MATTER is before the Court upon Defendant Cynthia
Gilmore's Motion Requesting the Current Presiding Judge
to Recuse himself Due to Conflict of Interest (Doc. No.
1499). After reviewing the motion and supporting documents,
the Court DENIES the motion for the reasons stated herein.
conducting a pretrial status conference on May 1, 2018, the
undersigned disclosed to the parties his recusal in the case
of United States v. Cureton, 3:14-cr-00229-MOC-1. As
was explained to the parties in open court, this recusal
occurred following law enforcement's discovery of the
undersigned's picture in defendant Jamell Cureton's
Mecklenburg jail cell. On January 12, 2015, federal agents
raided Cureton's cell as part of a broader investigation
into the 2014 murders of Doug and Debbie London. Five months
before the Londons were killed, Cureton was charged with
attempted robbery of the Londons' mattress store. It is
believed the Londons were killed to prevent their testifying
against Cureton and his co-defendants. The 2015 raid of
Cureton's cell also uncovered photographs of retired
Superior Court Judge Richard Boner and Charlotte City
Attorney Bob Hagemann. Judge Boner, City Attorney Hagemann,
and the undersigned were all placed under a low level
protective watch following the raid. This event received
significant media coverage in Charlotte and the surrounding
areas, appearing in print, on television, and on the
internet. The undersigned concluded that because a
credible threat existed, and because this threat had been
highly publicized, there was an appearance of impartiality
and a reasonable basis to question the undersigned's
ability to remain impartial. In the interests of justice, the
undersigned determined that his recusal was warranted to
avoid questions of impartiality, or accusations of personal
bias, and to ensure a fair trial for the defendant. Here,
Defendant Gilmore contends that the undersigned's recusal
in Cureton somehow necessitates his recusal because
the Defendants in both the Cureton matter and the
case at bar are members of the United Blood Nation (UBN). The
Court addresses Defendant Gilmore's arguments below.
of a judge is governed by 28 U.S.C. § 455, which
provides in pertinent part:
justice, judge, or magistrate of the United States shall
disqualify himself in any proceeding in which his
impartiality might reasonably be questioned.
shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a
party, or personal knowledge of disputed evidentiary facts
concerning the proceeding;
(2) Where in private practice he served as lawyer in the
matter in controversy, or a lawyer with whom he previously
practiced law served during such association as a lawyer
concerning the matter, or the judge or such lawyer has been a
material witness concerning it....
In short, recusal is appropriate whenever there exists a
genuine question concerning a judge's impartiality or
personal bias. See Liteky v. United States, 510 U.S.
540, 552 (1994). This question of impartiality is subject to
an objective standard whereby recusal is required if an
objective observer would reasonably question the judge's
impartiality. Id. at 564. When no reasonable basis
exists for questioning a judge's impartiality, however,
it is improper for the presiding judge to recuse himself.
United States v. Glick, 946 F.2d 335, 336-37 (4th
Cir.1991). In evaluating whether a personal bias of prejudice
exists, "[m]ore frequently it is said that a claim of
`personal bias and prejudice' exists whenever the affiant
is able to state facts supporting his reasons for the alleged
bias and prejudice. Conclusory allegations charging the judge
with improper conduct do not constitute the required
`statement of facts' and therefore cannot justify
disqualification." Duplan Corp. v. Deering Milliken,
Inc., 400 F.Supp. 497, 514 (4th Cir 1975) (citations
bias and prejudice to be disqualifying must stem from an
extrajudicial source and result in an opinion on the merits
on some basis other than what the judge learned from his
participation in the case." Shaw v. Martin, 733
F.2d 304, 308 (4th Cir. 1984) (citing United States v.
Grinnell Corp., 384 U.S. 563, 583 (1966)).
"[O]pinions formed by the judge on the basis of facts
introduced or events occurring in the course of the current
proceedings, or of prior proceedings, do not constitute a
basis for a bias or partiality motion unless they display a
deep-seated favoritism or antagonism that would make fair
judgment impossible." Liteky v. U.S., 510 U.S.
540, 554 (1994).
a motion made pursuant to section 455 is subject to the sound
discretion of the judge.
re Virginia Elec. & Power Co., 539 F.2d 357, 369