Free Response to Motion - District Court of Arizona - Arizona

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JOSEPH S. VAN BOKKELEN United States Attorney Northern District of Indiana CLARENCE BUTLER, JR. Special Assistant United States Attorney Indiana State Bar No. 06193627 5400 Federal Plaza, Suite 1500 Hammond, Indiana 46320 Telephone: (219) 937-5500 [email protected]

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA United States of America, No. CR-04-1071-PHX-FJM Plaintiff, vs. James D. Perino, Defendant. GOVERNMENT'S RESPONSE TO DEFENSE MOTION RE RECUSAL OF DISTRICT COURT JUDGE

The Government hereby responds to the Defense Motion re Recusal of District Court

20 Judge in the above-captioned matter, addressing whether it is proper for a sitting District 21 Court judge in Phoenix to remain as the judicial officer on this case, when threats exist 22 23

against another sitting District Court judge in Phoenix, as well as the District Court bench

24 sitting in Tucson. In the matter before the Court, James Perino sent a threatening letter to 25 District Court Judge Carroll as well as the entire District Court bench in Tucson. Those 26 27 28
currently sits in Phoenix as does the assigned trial judge, the Honorable Frederick Martone. letters resulted in the instant prosecution for threatening federal officials. Judge Carroll

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First, in regards to the Defense's Memorandum presenting current authority for the need for federal judges to recuse themselves from a case, the Government concurs with the Defense's statement of the position of the authorities. Specifically, the

5 Government concurs with and underscores the Defense's position that the Court has the 6 discretion to request that the issue be decided by another judge, if the Court finds it 7 8
should recuse itself due to personal knowledge of the evidence at issue or if the

9 appearance of impropriety exists. See e.g, In re Grand Jury, 95-1, 118 F.3d 1433, 1438 10 (10th Cir. 1997) (holding that the critical question for recusal is whether the judge's 11 12 13
inappropriate "personal knowledge" of the case); U.S. v. Burger, 964 F.2d 1065, 1070 review of the case at hand, in the course of performing his judicial duties, may result in

14 (10th Cir. 1992) (finding that the court must assess whether a reasonable person, knowing 15 all the relevant facts, would harbor doubts about the judge's impartiality). 16 17
Second, the Government concurs with the Defense that there is no information or

18 evidence to support any actual bias or prejudice against Perino from the current assigned 19 trial judge. However, as the Defense correctly indicates, there is no way that the parties 20 21 22 24 25 26 27 the Defense's position, but the Government defers to the Court's decision. In particular, 28 2
trail judge, nor any other encounters with other judges at the Tucson branch of the District could be privy to the many personal encounters between Judge Carroll and the assigned

23 Court.
Consequently, the trial judge has full discretion to determine whether or not the Court should retain this case or assign a visiting judge. The Government is appreciable to

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1 the Government believes in the integrity of the Court to make an impartial decision 2 3 4 6 7 8

regarding whether there is actual bias or even the appearance of impropriety. If the Court wishes to retain the case, the Government is amenable. Conversely, if the Court wishes to

5 recuse itself, the Government appreciates and respects that decision.
In conclusion, after the Court reviews whether there is any actual prejudice about relevant issues to the case, and whether there would be any perception of impropriety, the

9 Government will defer, without contest, to the Court's decision. However, if the Court 10 should choose to reassign the case, the Government would suggest that logistically, the 11 12 13 14 15 16 17 18 19 20 21 22 who is a CM/ECF registrant: 23
Donna Lee Elm I hereby certify that on January 31st, 2006, I sent the attached document to the following CERTIFICATE OF SERVICE s/Clarence Butler, Jr. CLARENCE BUTLER, JR. Special Assistant United States Attorney Respectfully submitted this 31st day of January, 2006. JOSEPH S. VAN BOKKELEN United States Attorney Northern District of Indiana assignment of a sitting visiting judge would best serve judicial economy.

24 Federal Public Defender's Office 850 W. Adams Street, Suite 201 25 Phoenix, Arizona 85007 26 [email protected] 27 28 3

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