UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

VS.

BARBARA ANTONIE FISK,

Defendant.

)

)

)

) CRIMINAL ACTION NO.

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) 3:05-CR-185-G

)

)

)

MEMORANDUM OPINION AND ORDER

Before the court is the motion of the defendant Barbara Antonie Fisk (“Fisk”)

to recuse the undersigned on the basis of 28 U.S.C. § 455. For the reasons set forth

below, Fisk’s motion is denied.

I. BACKGROUND

On October 4, 2005, a superseding indictment was returned charging Fisk with

three counts of mail fraud relating to an insurance fraud scheme. Docket Sheet Entry

#35. She pled guilty on November 8, 2005, and the court scheduled her sentencing

for May 9, 2005. See February 28, 2006, Amended Scheduling Order for Sentencing

(setting sentencing for March 21, 2006); April 17, 2006, Order (resetting sentencing

for May 9, 2006). In the interim, however, Fisk contacted her insurance agent to file

 

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* Two statutes address disqualification of a judge: 28 U.S.C. § 144 and 28

U.S.C. § 455. Fisk seeks recusal only under § 455. Motion for Recusal at 1.

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a flood damage claim on a house she occupied. Government’s Response to

Defendant’s Motion for Recusal of Judge (“Response”) at 1. On March 22, 2006,

Fisk, through her civil attorney Frank P. Hernandez (“Hernandez”), proceeded with

her insurance claim, representing herself as the owner of the property. Id. Before

initiating this claim, however, both Fisk and Hernandez were in possession of a letter

from the attorney for U.S. Bank, N.A., stating that the bank was the present owner of

the property for which Fisk was claiming insurance funds. Id. at 2. Based on this

conduct, the government moved on April 13, 2006, to revoke Fisk’s pretrial release. 

Id. The following day, Fisk’s release was revoked after a hearing before United States

Magistrate Judge Paul D. Stickney. Id.

On April 27, 2006, Fisk filed the instant motion, asking the undersigned to

recuse himself from presiding over her sentencing. Docket Sheet; Defendant’s

Motion for Recusal of Judge and Memorandum in Support (“Motion for Recusal”). 

The government has responded and the court is now ready to rule.

II. ANALYSIS

A. Legal Standard

“Any justice, judge, or magistrate judge of the United States shall disqualify

himself in any proceeding in which his impartiality might reasonably be questioned.” 

28 U.S.C. § 455(a).*

 Therefore, whenever a judge’s partiality might reasonably be

 

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questioned, recusal is required. Andrade v. Chojnacki, 338 F.3d 448, 454 (5th Cir.

2003) (citing Liljeberg v. Health Services Acquisition Corporation, 486 U.S. 847, 860 n.8

(1988)), cert. denied, 541 U.S. 935 (2004). The necessity for recusal is evaluated

using a careful consideration of both the context of the judicial proceedings, Sao Paulo

State of the Federative Republic of Brazil v. American Tobacco Co., 535 U.S. 229, 232-33

(2002), and an objective standard -- that of a “well-informed, thoughtful and

objective observer, rather than the hypersensitive, cynical, and suspicious person.” 

Andrade, 338 F.3d at 455 (quoting United States v. Jordan, 49 F.3d 152, 156 (5th Cir.

1995)). Additionally, the Supreme Court has held that the “extrajudicial source”

doctrine is “a factor to consider in analyzing whether recusal is necessary [under

§ 455(a)]; however it is not determinative.” United States v. Mizell, 88 F.3d 288, 299

(5th Cir.) (citing Liteky v. United States, 510 U.S. 540, 554 (1994)), cert. denied, 519

U.S. 1046 (1996). This doctrine teaches that -- in contrast to events taking place

outside the context of litigation -- events occurring or opinions expressed in the

course of judicial proceedings rarely require recusal. Liteky, 510 U.S. at 544-45. The

Supreme Court went on to explain that opinions 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

would display a deep-seated favoritism or antagonism that would make fair judgment

 

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impossible. Id. at 555. “[E]xpressions of impatience, dissatisfaction, annoyance, and

even anger” are not sufficient to establish bias or impartiality. Id. at 555-56.

B. Fisk’s Argument

Fisk contends that the undersigned should be recused from imposing sentence

on Fisk because Hernandez will be a witness at her sentencing hearing and this calls

the court’s impartiality into question. Motion to Recuse at 1. Because of the

government’s accusations of Hernandez’s improper conduct involving Fisk’s flood

insurance claim and the long-standing friendship between Hernandez and Fisk, Fisk

argues that Hernandez’s testimony is necessary to her sentencing hearing. Id. at 2.

The alleged conflict arises because Hernandez has been suspended from

practicing before the undersigned since 1997. Motion to Recuse at 2; see also Caves

v. Lockridge, No. 3:97-CV-0118-G, October 7, 1997, order (dismissing case without

prejudice and suspending Hernandez from practicing before the undersigned pursuant

to Local Civil Rule 83.8(b)(2), (4)). Fisk therefore contends that the undersigned’s

“prior negative knowledge and association with Mr. Hernandez would raise a

question under 28 U.S.C. § 455(a)” because -- in deciding Fisk’s sentence -- the court

would be required to make a credibility determination of Hernandez. Motion to

Recuse at 2.

The court disagrees. The undersigned’s previous relationship with Hernandez

arose entirely from judicial proceedings, although in cases unrelated to Fisk’s. See

 

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generally Caves v. Lockridge, No. 3:97-CV-0118-G. The court’s suspension of

Hernandez“occurred in the course of judicial proceedings, and neither (1) relied upon

knowledge acquired outside such proceedings nor (2) displayed deep-seated and

unequivocal antagonism that would render fair judgment impossible.” Liteky, 510

U.S. at 556 (emphasis in original). Numerous courts have held that familiarity with

defendants and the facts of a case arising from earlier participation in judicial

proceedings is insufficient to disqualify a judge under § 455. In re Corrugated

Container Antitrust Litigation, 614 F.2d 958, 965 & n.17 (5th Cir.) (listing cases), cert.

denied, 449 U.S. 888 (1980). Here, the undersigned has previous experience with one

of Fisk’s witnesses, not Fisk herself. The connection to the defendant is so attenuated

that the “average person on the street,” Potashnick v. Port City Construction Company,

609 F.2d 1101, 1111 (5th Cir.), cert. denied, 449 U.S. 820 (1980), would not

conclude that Hernandez’s participation would cause the undersigned to be less than

impartial. See United States v. Salemme, 164 F. Supp. 2d 86, 104-05 (D. Mass. 1998)

(finding that judge’s familiarity with witnesses does not require recusal under

§ 455(a) because the “public understands that judges . . . will inevitably encounter

witnesses with whom they . . . have had positive or negative experiences, [but] judges

can and will ordinarily ignore those experiences and decide the matters before them

impartially”); but see United States v. Ferguson, 550 F. Supp. 1256, 1260 (S.D.N.Y.

1982) (judge’s close relationship with former law clerk for whom he had “high”

 

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esteem justified disqualification because the case required him to evaluate the

credibility of that clerk). 

Because Fisk has not sustained her burden of showing that the undersigned

should be recused, her motion is denied.

III. CONCLUSION

For the reasons stated above, Fisk’s motion is DENIED.

SO ORDERED.

May 4, 2006.

 

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