Free Order - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 JAMES D. PERINO, 13 Defendant. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Case 2:04-cr-01071-REJ Document 50 Filed 02/03/2006 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

UNITED STATES OF AMERICA, Plaintiff, vs.

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CR 04-1071-PHX-FJM ORDER

The defendant is charged with sending threatening communications to Judge Carroll, who sits in the Phoenix Division in this District, and judges of this District who sit in the Tucson Division. At the last hearing on this matter, the court sua sponte raised the question of whether any judge of this District should sit in this case. We invited the parties to brief the issue. We now have before us the defense motion re: recusal of district court judge (doc. 48), and the government's response (doc. 49). We first ask ourselves whether there is any actual bias or prejudice. This is necessary even though no affidavit has been filed under 28 U.S.C. § 144. We then ask whether our impartiality might reasonably be questioned within the meaning of 28 U.S.C. § 455 and Canon 3(C)(1), Code of Conduct for United States Judges.

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The first question, the one of actual bias or prejudice, is easy to answer. This court has had no communications with any of the alleged victims, nor has anyone communicated to this court in any extrajudicial way. There is no actual bias or prejudice in this case. The second inquiry, however, is more problematic. The question of whether one's impartiality can reasonably be drawn into question relates to the potential appearance of impropriety, rather than impropriety in fact. Although the question is close and not free of doubt, we believe that good faith doubt should be resolved in favor of recusal unless the rule of necessity requires the judge to hear the case. This court would not have raised the question sua sponte if it believed that a good faith issue did not exist. It is possible that the parties, the lawyers, and even the public would have good faith reservations about the ability of any judge to hear a case involving threats against his colleagues. And because out-ofdistrict judges are available, the rule of necessity does not compel us to hear this case. We therefore believe that a United States District Judge from a District other than the District of Arizona should be assigned to this case. Accordingly, this court recuses itself and remands this case to the clerk of the court for reassignment to a visiting judge from a District other than the District of Arizona. DATED this 2nd day of February, 2006.

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