United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
Aiken United States District Judge.
February 2016, defendant Robert Evans Mahler was indicted on
one count of being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1). He now moves for me
to recuse myself from presiding over this case, citing
statements I made at a November 20, 2017 status conference. I
orally denied the motion at a hearing on January 16, 2018.
This opinion explains more fully the reasons for that denial.
should recuse herself from any case where her
"impartiality might reasonably be questioned" or
where she "has a personal bias or prejudice concerning a
party, or personal knowledge of disputed evidentiary facts
concerning the proceeding." 28 U.S, C. § 455. In
general, "personal knowledge of disputed evidentiary
facts concerning the proceeding" does not concern
knowledge acquired through the usual course of court
proceedings. With respect to information a judge learns
through the usual pretrial process (e.g. suppression
motions, pretrial conferences, etc.), "opinions formed
by the judge ... 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.
540, 555 (1994). A defendant may move for recusal by filing a
"timely and sufficient affidavit" setting out facts
showing that the judge "has a personal bias or
prejudice" against him. Id. § 144. The
motion must be accompanied by an affidavit from counsel
stating that the motion is made in good faith.
to the November 20 status conference, defendant wrote me a
letter describing how he felt threatened by the Assistant
United States Attorney ("AUSA") assigned to his
case when, during a meeting with defendant and his attorney,
the AUSA mentioned, in the course of asserting that one of
the guns defendant allegedly possessed had touched the state
of Arkansas, that defendant's brother lived in Arkansas.
Defendant interpreted the remark about his brother as a
threat to his family.
addressed the letter on the record at the November 20 status
conference. In his affidavit supporting the motion for
recusal, defendant asserts that in the course of talking
about the letter, I stated that defendant "was
'going to prison' no matter how hard [he] tr[ies] to
fight for [his] rights as a citizen of the United
States." Mahler Aff. ¶ 3. Defendant did not have
access to the transcript of the status conference when he
made his affidavit. Defendant's attorney, Mr. Warren,
certified that he believed the affidavit was made in good
carefully reviewed the full transcript of the November 20
proceeding. The relevant portion of my remarks follows:
So you've got a prosecutor who is determined to have this
case move forward and he's been adamant about that all
the way through. I've given you some accommodations with
the idea that you can get some work done before you go to
prison. Because as we know, the prison resources are
dwindling. And healthcare issues are complicated when you
have significant surgeries recommended. But we've gone
past that now and we're going to move this case along.
So if you have any other issues - it's not a surprise
that you may not see eye-to-eye with the prosecutor, but as
far as I read in this letter, he's not doing anything a
prosecutor doesn't normally do in the course of their
So however you want to view [the prosecutor's] demeanor,
it's always difficult to be in the position you're
in, but he's pursuing this case he needs to in the normal
course. And you need to comply with your lawyers so that we
can move to a decision-making point in this particular case,
And you can either negotiate a resolution of this particular
case and resolve it or the motions will be heard and they
will move it along and/or we will have a jury or a judge
Tr. 9:8-22, 10:2-11, Nov. 20, 2017. I also stated, in
reference to the letter, that "I appreciate the
heads-up, I put everything on the table here, I expect all of
you to behave as professionals." Tr. 8:22-24, Nov. 20,
are no grounds for recusal. The "accommodations"
and "some work" remarks refer to defendant's
desire to complete a shoulder surgery before this case goes
to trial. In early 2017, defendant requested a continuance so
that he could travel to India to obtain that surgery at a
reasonable cost. See Def.'s Am. Mot. Continue
& Allow Foreign Travel for Med. Procedures (doc.
41) (requesting a continuance to accommodate the surgery).
The government objected, noting that there had already been
three continuances, that defendant had waited a full year
after indictment to request the surgery, and that permitting
defendant to travel internationally would increase the risk
of flight. See Gov't's Resp. Mot. Continue
Trial Date & Permit Foreign Travel (doc. 44). In spite of
those objections, I granted defendant's request and
authorized the trip. See Doc. 55 (March 23, 2017
court order directing the government to return
defendant's passport) & Doc. 59 (April 7, 2017 court
order striking the pretrial release condition that prevented
defendant from applying for a new passport or international
travel documents). In the end, defendant did not go to India
for the surgery; before his departure date, he fell and
injured his other shoulder, preventing him from traveling, I
then placed the case back on track toward a trial date.
spoke at the hearing, I was referencing defendant's
stated desire to complete an elective medical procedure
before trial. I used the phrase "before you go to
prison" because the charge against plaintiff carries an
up to ten-year prison sentence. See 18 U.S, C.
§ 924(a)(2). In hindsight, I could have been clearer and
stated that I made accommodations so the surgery could go
forward before any possible prison sentence
might begin. But even without that clarification, I
do not believe my impartiality can reasonably be questioned
on the basis of my statements at the November 20 status
conference. I have not prejudged the evidence in this case
and my statements did nothing to alter defendant's
presumption of innocence or the government's burden to
prove his guilt beyond a reasonable doubt.
Motion for Judge to Recuse Herself from Case ...