United States v. Lee Farkas

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-7888
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LEE BENTLEY FARKAS,
Defendant - Appellant.
No. 16-6386
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LEE BENTLEY FARKAS,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema,
District Judge. (1:10-cr-00200-LMB-1)
Submitted: September 29, 2016 Decided: October 4, 2016
Before MOTZ and WYNN, Circuit Judges, and DAVIS, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Clifford J. Barnard, Boulder, Colorado, for Appellant. Dana J.
Boente, United States Attorney, Karen Ledbetter Taylor,
Assistant United States Attorney, Jonathan D. Scharf, Special
Assistant United States Attorney, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In these consolidated appeals, Lee Bentley Farkas
challenges the district court’s orders denying his motions
seeking recusal under 28 U.S.C. §§ 144 and 455(a) (2012) of the
district judge who presided over his criminal prosecution and
related proceedings. For the reasons that follow, we affirm.
A presiding judge must recuse herself if any party “files a
timely and sufficient affidavit that the judge . . . has a
personal bias or prejudice either against him or in favor of any
adverse party.” 28 U.S.C. § 144; see Sine v. Local No. 992
Int’l Bhd. of Teamsters, 882 F.2d 913, 914 (4th Cir. 1989)
(describing a “sufficient” affidavit). In evaluating a § 144
motion, the challenged judge considers the legal sufficiency of
the allegations in the affidavit but makes no finding as to the
truth of those allegations. See Berger v. United States, 255
U.S. 22, 36 (1921); United States v. Vespe, 868 F.2d 1328, 1340
(3d Cir. 1989). However, “[a]ssertions merely of a
conclusionary nature are not enough, nor are opinions or
rumors.” United States v. Haldeman, 559 F.2d 31, 134 (D.C. Cir.
1976) (footnotes omitted). “[T]he facts averred must be
sufficiently definite and particular to convince a reasonable
person that bias exists . . . .” United States v. Sykes, 7 F.3d
1331, 1339 (7th Cir. 1993).
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Under § 455(a), a federal judge is required to recuse
herself “in any proceeding in which [her] impartiality might
reasonably be questioned.” The appropriate inquiry is not
whether the judge is in fact impartial, but whether, applying an
objective standard, “the judge’s impartiality might be
questioned by a reasonable, well-informed observer who assesses
all the facts and circumstances.” United States v. DeTemple,
162 F.3d 279, 286 (4th Cir. 1998) (internal quotation marks
omitted). Neither a judge’s attenuated relationship to a
proceeding nor “unsupported, irrational or highly tenuous
speculation” is sufficient to require recusal. United States v.
Cherry, 330 F.3d 658, 665 (4th Cir. 2003) (internal quotation
marks omitted); see In re Drexel Burnham Lambert Inc., 861 F.2d
1307, 1313 (2d Cir. 1988). Further, the judge evaluating a
§ 455 motion or related affidavit is not required to accept the
allegations underlying the motion or affidavit as true. In re
Beard, 811 F.2d 818, 827 (4th Cir. 1987).
We have thoroughly reviewed the record and discern no
reversible error in the district court’s denial of Farkas’
motions. Rather, our review indicates that Farkas’ claims of
bias are patently insufficient to warrant recusal of the
district judge, based upon either actual or apparent bias. The
affidavit supporting Farkas’ § 144 motion was rife with
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speculation and unsupported conclusions and failed to allege
sufficient nonconclusory facts to support his claim that the
district judge harbored actual bias against him. Further, the
contentions and materials underlying Farkas’ § 455(a) motion,
alleging bias based on the district judge’s financial losses
during the nationwide economic downturn from 2006 to 2008,
provide too tenuous a link between the judge’s losses and
Farkas’ conduct to warrant a reasonable, well-informed
individual to question the judge’s impartiality. In reaching
this conclusion, we discern no abuse of discretion in the
court’s manner of addressing various declarations provided with
Farkas’ § 455(a) motion.
In short, while we do not purport to diminish the vital
importance of an unbiased judiciary to the proper functioning of
the judicial system, Farkas’ specific allegations border on the
frivolous and fail to provide any legitimate basis for recusal.
Because we conclude Farkas’ motions are insufficient as a matter
of law to warrant recusal, we decline to address the parties’
additional arguments regarding the timeliness of Farkas’ motions
and the application of the safe harbor provision under 28 U.S.C.
§ 455(d)(4)(i) (2012) to the facts presented.
Accordingly, we affirm the district court’s orders. We
dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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