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United States v. Baxton

United States District Court, W.D. North Carolina, Charlotte Division

June 1, 2018

UNITED STATES OF AMERICA,
v.
(5) JAMES BAXTON (19) CYNTHIA GILMORE, and (21) PEDRO GUTIERREZ

          ORDER

          FRANK D. WHITNEY CHIEF UNITED STATES DISTRICT JUDGE

         THIS 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.

         While 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.[1] 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.

         I. LEGAL STANDARD

         Disqualification of a judge is governed by 28 U.S.C. § 455, which provides in pertinent part:

         (a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

         (b) He 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 omitted).

         "Alleged 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).

         Ultimately, a motion made pursuant to section 455 is subject to the sound discretion of the judge.

         In re Virginia Elec. & Power Co., 539 F.2d 357, 369 (4th Cir.1976).

         II. ...


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