Letters"). The 3 November 1987 Bertoli Letter purported to be a "formal complaint and request to reprimand and take such other action including impeachment. . . ." Id. at 1. In the 3 November 1987 Bertoli Letter, Bertoli again expressed dissatisfaction with this court's handling of the 1987 Cannistraro Indictment.
By opinion, dated 22 March 1990, the 2 November 1989 Recusal Motion was denied. See Eisenberg, 734 F. Supp. 1137. Bertoli moved for reconsideration on 2 April 1990; this motion was denied by opinion dated 12 April 1990. See United States v. Eisenberg, 734 F. Supp. 1168 (D.N.J. 1990). Bertoli subsequently petitioned the Third Circuit for a writ of mandamus ordering recusal. On 18 May 1990, the Circuit filed an order denying Bertoli's petition for mandamus without requiring a response from the Government.
On 24 July 1990, Cannistraro moved for recusal of the court (the "24 July 1990 Recusal Motion"). By letter, dated 26 July 1990, Bertoli joined in the 24 July 1990 Recusal Motion. By letter opinion, dated 16 August 1990, the 24 July 1990 Recusal Motion was denied. See United States v. Eisenberg, F. Supp. , No. 89-218, slip op. (D.N.J. 16 Aug. 1990). The Third Circuit dismissed Bertoli's subsequent appeal.
On 12 March 1991, Bertoli and Cannistraro again moved for the recusal of the court (the "12 March 1991 Recusal Motion"). The 12 March 1991 Recusal Motion was based on a purported "public opinion survey [which] was commissioned to ascertain what a citizen of New Jersey would feel concerning the court's impartiality knowing the background of this case." United States v. Eisenberg, 773 F. Supp. 662, 733 (D.N.J. 1991) (citing Brief of Cannistraro in Support of 12 March 1991 Recusal Motion at 14). By opinion, dated 26 July 1991, the 12 March 1991 Recusal Motion was denied. See Eisenberg, 773 F. Supp. at 734.
By letter, dated 17 December 1992, Bertoli requested, for a fourth time, the recusal of the court (the "17 December 1992 Recusal Motion"). The 17 December 1992 Recusal Motion was based on the court's 7 December 1992 letter to the parties, directing Defendants to enclose a cover letter when serving trial subpoenas duces tecum. At a pretrial hearing on 12 January 1993, the 17 December 1992 Recusal Motion was denied. Bertoli thereafter petitioned the Third Circuit for a writ of mandamus recusing the court. By order, dated 21 April 1993, the Third Circuit once again refused to grant Bertoli the requested writ of mandamus. On 27 May 1993, Bertoli petitioned the Supreme Court for certiorari on the recusal issue. On 4 October 1993, the Supreme Court denied certiorari. See Bertoli v. United States District Court for the District of New Jersey, 126 L. Ed. 2d 45, U.S. , 114 S. Ct. 77 (1993). As stated, the Sentencing Recusal Motion followed on 6 October 1993.
b. 28 U.S.C. § 455(a)
Section 455(a) of title 28 provides: "Any justice, judge or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." 28 U.S.C. § 455(a). Under section 455(a), a court must consider sua sponte whether disqualification is warranted; no onus is placed on the parties to submit affidavits in support of disqualification, or even to move for disqualification.
See United States v. Schreiber, 599 F.2d 534, 539 (3d Cir.), cert. denied, 444 U.S. 843, 62 L. Ed. 2d 56, 100 S. Ct. 86 (1979).
"In determining whether recusal is required under this provision, [the court] must apply an objective standard." Edelstein v. Wilentz, 812 F.2d 128, 131 (3d Cir. 1987). More specifically, "a judge must consider whether a reasonable person knowing all the circumstances would harbor doubts concerning the Judge's impartiality." Jones v. Pittsburgh National Corp., 899 F.2d 1350, 1356 (3d Cir. 1990); see Edelstein, 812 F.2d at 131; United States v. Dalfonso, 707 F.2d 757, 760 (3d Cir. 1983).
Recusal under section 455(a) "must rest on the kind of objective facts that a reasonable person would use to evaluate whether an appearance of impropriety had been created, not on 'possilities' and unsubstantiated allegations." United States v. Martorano, 866 F.2d 62, 68 (3d Cir. 1989), cert. denied, 493 U.S. 1077, 107 L. Ed. 2d 1034, 110 S. Ct. 1128 (1990). "Disagreement with a judge's determinations certainly cannot be equated with the showing required to so reflect on his [or her] impartiality as to dictate recusal." Jones, 899 F.2d at 1356.
Generally, "only extrajudicial bias requires disqualification" under section 455(a). United States v. Sciarra, 851 F.2d 621, 635 (3d Cir. 1988); see Liteky v. United States, U.S. , No. 92-6921, 1994 WL 64713 at *9 (7 Mar. 1994) (Bias not derived from extrajudicial source will "rarely" require recusal under section 455(a), and whether bias is extrajudicial is "often determinative" of recusal inquiry.); Johnson v. Trueblood, 629 F.2d 287, 291 (3d Cir. 1980), cert. denied, 450 U.S. 999, 68 L. Ed. 2d 200, 101 S. Ct. 1704 (1981). "'Extrajudicial bias' refers to a bias that is not derived from the evidence or conduct of the parties that the judge observes in the course of the proceedings."
Sciarra, 851 F.2d at 634 n.28; see United States v. Grinnell Corp., 384 U.S. 563, 583, 16 L. Ed. 2d 778, 86 S. Ct. 1698 (1966) ("The alleged bias and prejudice to be disqualifying must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case."); Johnson, 629 F.2d at 291.
Where a "trial judge's . . . comments [are] linked to his [or her] evaluation of the case based on the pleadings and other materials outlining the nature of the case," such comments will not constitute extrajudicial bias. Johnson, 629 F.2d at 291. "Also not subject to deprecatory characterization as 'bias' or 'prejudice' are opinions held by judges as a result of what they learned in earlier proceedings [with the same defendant]. It has long been regarded as normal and proper for a judge to sit in the same case upon its remand, and to sit in successive trials involving the same defendant." Liteky, U.S. at , 1994 WL 64713 at *7; see United States v. Sinclair, 424 F. Supp. 715, 718 (D.Del. 1976) ("It is equally clear that a claim of prejudice based on judicial knowledge gained from prior hearings or other cases is not sufficient grounds for disqualification of a judge whether it be from prior judicial exposure to the defendant or prior judicial rulings adverse to the defendant in same or similar cases.").
As a consequence of the "extrajudicial source factor," "judicial rulings alone almost never constitute valid basis for a bias or partiality motion (under section 455(a)]. In and of themselves . . ., they cannot possibly show reliance upon an extrajudicial source, and can only in the rarest circumstances evidence the degree of favoritism or antagonism required . . . when no extrajudicial source is involved." Liteky, U.S. at , 1994 WL 64713 at *9; see Johnson, 629 F.2d at 291 ("The judge's rulings at trial do not constitute grounds for recusal because they can be corrected by reversal on appeal.").
"Judicial remarks during the course of a trial 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." Liteky, U.S. at , 1994 WL 64713 at *9. The Supreme Court has explained that judicial remarks during the course of trial may require recusal:
if they reveal an opinion that derives from an extrajudicial source, and they will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible. . . . Not establishing bias or partiality, however, are expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women, even after having been confirmed as Federal judges, sometimes display. A judge's ordinary efforts at courtroom administration -- even a stern and short-tempered judge's ordinary efforts at courtroom administration -- remain immune.