U.S. Commodity Futures Trading v. Gordo Driver , 585 F. App'x 366 ( 2014 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT OCT 7 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
COMMODITY FUTURES TRADING No. 12-56521
COMMISSION,
D.C. No. 8:09-cv-00578-ODW-RZ
Plaintiff - Appellee,
v. MEMORANDUM*
GORDON DRIVER,
Defendant - Appellant,
And
AXCESS AUTOMATION, LLC;
AXCESS FUND MANAGEMENT, LLC,
Defendants.
Appeal from the United States District Court
for the Central District of California
Otis D. Wright II, District Judge, Presiding
Submitted September 23, 2014**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: W. FLETCHER, RAWLINSON, and CHRISTEN, Circuit Judges.
Gordon Driver appeals pro se from the district court’s judgment in an action
filed by the Commodity Futures Trading Commission (“CFTC”) for violations of
the Commodity Exchange Act and related regulations arising out of an alleged
Ponzi scheme. We have jurisdiction under 28 U.S.C. § 1291. We review for plain
error a district court’s failure to recuse itself sua sponte pursuant to 28 U.S.C.
§ 455. United States v. Spangle, 626 F.3d 488, 495 (9th Cir. 2010). We affirm.
The district court did not commit plain error by failing to recuse itself sua
sponte from hearing Driver’s requests to release previously frozen assets and the
CFTC’s motion for summary judgment. See id. (setting forth plain error standard
of review when a party does not seek recusal before the trial court). The isolated
comments by the district court upon which Driver relies to support his arguments
do not establish the bias or partiality warranting recusal. See Liteky v. United
States, 510 U.S. 540, 555 (1994) (“[J]udicial remarks during the course of . . .
[proceedings] that are critical or disapproving of, or even hostile to, counsel, the
parties, or their cases, ordinarily do not support a bias or partiality challenge.”); see
also Clemens v. U.S. Dist. Court for Cent. Dist. of Cal., 428 F.3d 1175, 1178 (9th
Cir. 2005) (per curiam) (in analyzing § 455(a) motions, this court “employ[s] an
objective test: whether a reasonable person with knowledge of all the facts would
2 12-56521
conclude the judge’s impartiality might reasonably be questioned” (citation and
internal quotation marks omitted)). Moreover, “judicial rulings alone almost never
constitute a valid basis for a bias or partiality motion.” Liteky, 510 U.S. at 555.
To the extent that Driver seeks to challenge the underlying grant of summary
judgment, we do not consider these arguments because they were not distinctly
raised or argued in his opening brief. See Smith v. Marsh, 194 F.3d 1045, 1052
(9th Cir. 1999).
AFFIRMED.
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