The opinion of the court was delivered by: Alicemarie H. Stotler U.S. District Judge
ORDER DENYING PETITIONER SANCHEZ'S MOTION TO DISQUALIFY JUDGE
This motion arises out of the criminal prosecution of petitioner Gabriel Bernardo Sanchez ("Sanchez" or "petitioner"), along with his long-time friend and business partner, Timothy Lyons ("Lyons"). Sanchez and Lyons were charged with 33 counts of mail fraud and 11 counts of money laundering, under 18 U.S.C. § 1341 and 18 U.S.C. § 1956(a)(1)(A)(i), based on their operation of a fraudulent charitable scam wherein donors were told contributions would go to specific charitable activities when in fact they did not.
On November 3, 2003, a jury convicted Sanchez and Lyons on all counts. The Court denied Sanchez's motion for acquittal under Rule 29 and his motion for new trial under Rule 33. On March 8, 2004, Sanchez and Lyons were each sentenced to 180 months in prison and three years of supervised release. They appealed.
On January 11, 2007, the U.S. Court of Appeals for the Ninth Circuit affirmed in large part, with a limited remand, pursuant to U.S. v. Ameline, 409 F.3d 1073, 1084-85 (9th Cir. 2005), to ascertain whether the sentence imposed would have been materially different had the district court known that the Sentencing Guidelines were advisory. U.S. v. Lyons, 472 F.3d 1055, 1070-71 (9th Cir. 2007).
On December 3, 2007, the district court re-sentenced Sanchez to the same sentence previously imposed. Sanchez appealed. On June 23, 2009, affirming in full and rejecting Sanchez's request to turn the limited Ameline remand into a de facto re-sentencing, the Ninth Circuit held that the district court properly refused to consider post-sentencing factors on limited remand. U.S. v. Sanchez, 569 F.3d 995, 998 (9th Cir. 2009). On August 28, 2009, Sanchez's motion for panel rehearing and rehearing en banc was denied. The mandate issued on September 8, 2009. On October 16, 2009, Sanchez filed a petition for certiorari, which the Supreme Court denied on December 4, 2009.
On December 1, 2010, Sanchez filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. On the same day, Sanchez filed the instant "Motion to Disqualify Judge David O. [Carter] from Hearing my Title 28 U.S.C. 2255 Motion for Extra-Judicial Bias and Pervasive Bias Pursuant to 28 U.S.C. § 455(a)-(b)(1)." (Doc. No. 2.) On December 3, 2010, pursuant to General Order 08-05, the motion was assigned to the undersigned for decision. (Doc. No. 3.)
As explained below, the Court finds the motion procedurally and substantively deficient.
Sanchez's motion is premised on various alleged errors made during trial, post-trial at the Rule 29 hearing, and at sentencing. Sanchez groups the errors into the following broad categories of substantive rulings: (1) rulings based on trial testimony regarding false statements made in charitable brochures and use of charitable funds; (2) rulings made at the Rule 29 hearing regarding the $150,000 left in charitable accounts, along with the court's pre-trial reading and post-trial reliance on certain newspaper articles*fn1 ; and, (3) rulings holding Sanchez liable for the full amount of loss, including losses incurred after Sanchez relinquished operational control of his charitable organizations.
Under 28 U.S.C. § 455(a), a judge "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." Under 28 U.S.C. § 144, if "the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, . . . [he] shall proceed no further . . . ." "Under both recusal statutes, the substantive standard is whether a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned." Pesnell v. Arsenault, 543 F.3d 1038, 1043 (9th Cir. 2008) (internal quotation marks and alteration omitted).
Motions under section 455 must be timely made. United States v Branco, 798 F.2d 1302, 1304-05 (9th Cir. 1986); United States v. Conforte, 624 F.2d 869, 879 (9th Cir. 1980), cert. denied, 449 U.S. 1012, 101 S. Ct. 568, 66 L. Ed. 2d 470 (1980); accord United States v. Brinkworth, 68 F.3d 633, 639 (2d Cir. 1995). "A disqualification motion filed after trial and judgment ...