United States District Court, E.D. California
ORDER ON MOTION TO DISQUALIFY (DOC. NO. 333)
23, 2017, a jury found Petitioner Keith Foster guilty of
conspiracy to distribute and possess marijuana and conspiracy
to distribute and possess heroin, both in violation of 21
U.S.C. §§ 841(a)(1) and 846. Foster's
conviction and sentence were affirmed by the Ninth Circuit on
direct appeal on June 20, 2019. See Doc. No. 327. On
December 16, 2019, Foster filed a motion to vacate his
conviction and sentence under 28 U.S.C. § 2255, a motion
for release pending adjudication of his § 2255 petition,
and a motion to disqualify the undersigned. See Doc.
Nos. 331, 332, and 333. This order addresses the motion to
disqualify. For the reasons that follow, Foster's motion
to disqualify will be denied.
argues that the undersigned is required to disqualify himself
pursuant to 28 U.S.C. §§ 455(a) and 455(b)(1).
Foster contends that the undersigned gained extensive
knowledge of disputed evidentiary issues by authorizing
wiretaps against him over a period of five months, between
November 2014 to March 2015. Foster contends that the
undersigned received briefings and theories from law
enforcement regarding Foster's alleged involvement in a
drug conspiracy. This extensive knowledge of disputed facts
and theories is improper and creates a high probability of
actual bias. As recognized by the binding case of United
States v. Zarowitz, 326 F.Supp. 90 (C.D. Cal. 1971), a
judge's participation in a wiretap requires
disqualification from further proceedings. Further, Foster
contends that the undersigned was biased against him because
of alleged misapplication of binding Ninth Circuit precedents
regarding intent and the sufficiency of the evidence
necessary to convict for drug conspiracies, including
precedent regarding buyer-seller conspiracies. Foster also
argues that the undersigned materially and constructively
amended the indictment against him, erroneously denied his
motion for acquittal, and erroneously denied motion for
release pending appeal, which further reflects improper bias.
judge is required to disqualify himself if his impartiality
might reasonably be questioned, or if he has a personal bias
or prejudice for or against a party.” Hasbrouck v.
Texaco, Inc., 842 F.2d 1034, 1045-46 (9th Cir. 1987)
(citing 28 U.S.C. §§ 455(a),
455(b)(1)). 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.” United States v.
Johnson, 610 F.3d 1138, 1147-48 (9th Cir. 2010);
Pesnell v. Arsenault, 543 F.3d 1038, 1043 (9th Cir.
2008). However, the bias must arise from an extra-judicial
source and cannot be based solely on information gained in
the course of the proceedings. See Pesnell, 543 F.3d
at 1043l; In re Beverly Hills Bancorp, 752 F.2d
1334, 1341 (9th Cir. 1984). “Judicial rulings alone
almost never constitute a valid basis for a bias or
partiality motion.” Liteky v. United States,
510 U.S. 540, 555 (1994); Johnson, 610 F.3d at 1147.
This is so “even when the number of such unfavorable
rulings is extraordinarily high on a statistical
basis.” In re Beverly Hills Bancorp, 752 F.3d
at 1341. “[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.
United States, 510 U.S. at 555; Johnson, 610
F.3d at 1147.
455(b) also requires a judge to disqualify himself if he has
“personal knowledge of disputed evidentiary facts
concerning the proceeding.” 28 U.S.C. § 455(b)(1);
see also United States v. Winston, 613 F.2d 221, 223
(9th Cir. 1980). This part of § 455(b)(1) only requires
recusal when the information or knowledge is derived from an
extra-judicial source. Duckworth v. Department of the
Navy, 974 F.2d 1140, 1142 (9th Cir. 1992);
Winston, 613 F.2d at 223. Knowledge of the facts of
a case that is obtained in the course of earlier
participation in the same case does not require recusal under
§ 455(b)(1). Duckworth, 974 F.2d at 1142;
Winston, 612 F.2d at 223.
has not shown that either § 455(a) or § 455(b)(1)
applies in this case so as to require the recusal of the
undersigned. See Konarski v. City of Tucson, 716
Fed.Appx. 609, 611 (9t h Cir. 2017) (“Because a judge
is presumed to be impartial, the [moving party] bears the
burdn of showing that the judge lacked impartiality.”)
(quoting Perry v. Schwarzenegger, 790 F.Supp.2d
1119, 1129 (N.D. Cal. 2011)).
the rulings that Foster identifies as “erroneous”
are not extra-judicial and they do not reflect a deep-seeded
antagonism towards Foster. See Liteky, 510 U.S. at
555; Johnson, 610 F.3d at 1147; In re Beverly
Hills Bancorp, 752 F.3d at 1341. In fact, Foster's
criticisms of several of the rulings are inconsistent with
the Ninth Circuit's decision on Foster's appeal. The
Ninth Circuit held that there was sufficient evidence to
support both conspiracy convictions and that Foster's
counsel was not deficient when he failed to request a
buyer-seller instruction. See Doc. No. 327. These
holdings by the Ninth Circuit, which are law of the case,
see Rocky Mt. Farmers Union v. Corey, 913 F.3d 940,
951 (9th Cir. 2019); United States v. Jingles, 702
F.3d 494, 498-500 (9th Cir. 2012); United States v.
Houser, 804 F.2d 565, 567 (9th Cir. 1986), foreclose any
arguments that the Court misapplied binding law regarding
drug conspiracy claims (including buyer-seller issues) or
that the Court erred by not granting an acquittal. Foster has
failed to show any error, let alone errors that reflect a
deep-seeded antagonism. Thus, for purposes of § 455(a)
and the first clause of § 455(b)(1), the Court concludes
that, because no reasonable person would reasonably question
the impartiality of the undersigned based on rulings made at
trial, recusal is not required.
for purposes of the second clause of § 455(b)(1) and
§ 455(a), Foster does not point to any specific disputed
factual issues that the undersigned obtained as a result of
approving wiretap applications. Nevertheless, the Court is
unaware of any information that it received during the
wiretap process that created any bias or impartiality against
Foster. Moreover, the wiretap process is not an
extra-judicial source of information. Knowledge of any facts
obtained during the wiretap process of Foster's phone
would be information obtained in the course of earlier
participation in the same case, and thus, would not be
grounds for recusal under § 455(b)(1). See
Duckworth, 974 F.2d at 1142; United States v.
Jones, 801 F.2d 304, 312 (8th Cir. 1986);
Winston, 612 F.2d at 223. Further, although the
Ninth Circuit has not specifically addressed whether a judge
who authorizes a wiretap must recuse himself, courts have
conclude that recusal is not required. See United
States v. Giordano, 442 F.3d 30, 48 (2d Cir. 2006);
United States v. Lewis, 139 Fed.Appx. 455, 458-59
(3d Cir. 2005); Camacho v. Autoridad de Telefonos de
Puerto Rico, 868 F.2d 482, 491 (1st Cir. 1989);
Jones, 801 F.2d at 312; United States v.
Murray, 2017 U.S. Dist. LEXIS 39471, *43-*44 (D. Vt.
Mar. 20, 2017); United States v. Gardner, 1010 U.S.
Dist. LEXIS 89941, *7-*8 (N.D. Cal. 2010); United States
v. De Castro-Font, 587 F.Supp.2d 353, 363 (D. P.R.
2008); United States v. Nicholson, 955 F.Supp. 582,
584-85 (E.D. Va. 1997); United States v. Garramone,
374 F.Supp. 256, 258 (E.D. Pa. 1974). Therefore, the Court
cannot conclude that the undersigned's authorization of
wiretaps/wiretap extensions require recusal under §
455(b)(1) or § 455(a).
IT IS HEREBY ORDERED that the motion to recuse or disqualify
under 28 U.S.C. § 455 is DENIED.