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United States of America v. Barac Barajas-Bandt

February 24, 2011


The opinion of the court was delivered by: Honorable Barry Ted MoskowitzUnited States District Judge


Defendant is charged with violating 18 U.S.C. § 115(a)(1)(B) and 18 U.S.C. § 876(c) for threatening to kill Judge John Houston, District Court Judge in the Southern District of California.

In the course of proceedings, the issue of recusal under 28 U.S.C. § 455 has arisen in three contexts. First, Defendant sought recusal of the entire bench of the Southern District of California. That motion was denied in a March 29, 2010 minute order. Defendant now seeks reconsideration of this order. Second, the Court has addressed in open court the reasons why the undersigned's personal relationship with Judge Houston does not mandate recusal. Finally, Defendant has twice threatened the Court during court proceedings, and the parties have filed briefs addressing whether judicial recusal under § 455 is appropriate in light of these threats.

The Court now addresses all three possible bases for judicial recusal.


The Court engages in a two-part test to evaluate whether recusal is required under § 455. First, under U.S.C. § 455(a), a judge must recuse in proceedings "in which his impartiality might reasonably be questioned." The test for disqualification under § 455(a) is an objective one which asks "whether a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned." United States v. Hernandez, 109 F.3d 1450, 1453 (9th Cir. 1997) (quoting United States v. Studley, 783 F.2d 934, 939 (9th Cir. 1986)).

Second, the judge must apply the subjective standard articulated in § 455(b) todetermine whether he can be truly impartial when trying the case. United States v. Holland, 519 F.3d 909, 915 (9th Cir. 2008). "This test is highly personal in nature and requires each judge in such a situation to set aside emotion and thoughtfully examine his ability to impartially administer justice without respect to persons." Id. (quotations and citation omitted).


A. Recusal Of The Entire Bench

Defendant seeks recusal of all the district judges in the Southern District of California on the ground that the relationship between Judge Houston and other judges in this district creates an appearance of impartiality that necessitates district-wide recusal.

There are sixteen district court judges (including senior judges) in the Southern District of California, and all have chambers and courtrooms in the same building. Southern District judges meet most Mondays to discuss issues involving administration of the Court.

The Court is unaware of the extent to which judges in this district socialize. Some judges have lunch together, although the undersigned has not for many years. There are also some social functions related to the Court. For example, there are dinners for judges and their spouses when a judge takes senior status, and judges often dine together when traveling for district, Ninth Circuit, and other judicial conferences. Personally, outside of these court social functions, the undersigned has rarely socialized with other judges in thedistrict.

These facts do not present a situation where recusal is mandatory under § 455(a)(1). District-wide recusal is not warranted based on relationships between members of the bench and threatened judges, "except under highly exceptional circumstances." Clemens v. United States Dist. Court, 428 F.3d 1175, 1180 (9th Cir. 2005). In Clemens, the Ninth Circuit held that professional relationships amongst federal district court judges from the Central District of California do not require district-wide recusal in a prosecution for threats made against judges from that district. Id.

The only facts that could possibly distinguish the instant case from Clemens is that the Southern District of California is smaller than the Central District and all of its judges work in the same courthouse. However, it is doubtful that the size of the district, alone, constitutes a "highly exceptional circumstance[]" that would require district-wide disqualification. Id. Although the Ninth Circuit discussed the large size of the Central District in support for its finding that no reasonable observer could construe threats made to particular judges as threats against the district collectively, the size of the district had no bearing on the Clemens Court's holding that the professional relationships between judges and their colleagues who were victims of threats did not create an appearance of impartiality sufficient to mandate district-wide recusal. See id. Indeed, the defendant in Clemens was charged with making threats against three judges of the Central District (Judges Keller, Snyder, and Tevrizian), and one of his threatening letters mentions three others (Judges King, Marshall, and Wilson). Clemens v. United ...

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