United States, 2001 WL 736778 (S.D.N.Y. 2001) (judge’s name was on
“nit list;”“ court noted recusal should occur only in the
“extraordinary case”); Te-Te-Ma Truth Foundation - Family of URI,
Inc. v. World Church of the Creator, 246 F. Supp. 2d 980 (N.D. Ill.
2003) (Judge Lefkow declined to recuse herself from civil case in
which spokesperson for defendant had threatened her); Marino v
United States, 1999 WL 39008 (N.D. Ill. 1999). Where recusal has
been required it has been because there was evidence that a judge’s
actual fear of harm has influenced or could influence his judicial
decisions. See Greenspan, 26 F.3d at 1005. That situation does
not exist here. The motion for recusal pursuant to 28 U.S.C. §
455(a) is denied.

In addition, no reason exists to transfer this case to a
district outside the Seventh Circuit. Rule 21 of the Federal Rules
of Criminal Procedure states that

the court must transfer the proceeding against {the] defendant

to another district if the court is satisfied that so great a

prejudice against the defendant exists in the transferring

district that the defendant cannot obtain a fair and impartial
trial there.
FED. R. CRIM. P. 21(a). Mr. Nettles argues that such overwhelming
prejudice exists in this case. In addition to restating his
concerns related to his motion for recusal, Mr. Nettles argues that

his case has received a good deal of publicity in the Chicago media

and that any potential jury pool would be tainted by fear that


however, differ significantly from the case in Nichols. In that
case, the federal judge assigned to the case had been directly
impacted by the bombing. In the words of the Tenth Circuit:
Judge Alley’s courtroom and chambers were one block away from
the epicenter of a massive explosion that literally rocked
downtown Oklahoma City, heavily damaged the Murrah building,
killed 169 people, and injured many others. The blast crushed
the courthouse’s glass doors, shattered numerous windows,
ripped plaster from ceilings, dislodged light fixtures,
showered floors with glass, damaged Judge Alley’s courtroom
and chambers, and injured a member of his staff, as well as
other court personnel and their families,
Nichols, 71 F.3d at 352. Here, no damage to property or person, or
loss of life, occurred. If Mr. Nettles’ plot was indeed as alleged,
he intended harm to the Dirksen building and its occupants.
Importantly for purposes of recusal, his alleged plot, unlike that
in Oklahoma City, was never brought to fruition. Indeed, it could
not have been, for the persons Mr. Nettles allegedly believed to be
co-conspirators in the plot were undercover federal agents with no
intention of ever performing the alleged destructive acts. Not
only did no damage accrue to the persons and property of the
Dirksen building, but there was never any real danger of such
damage.
Even in cases in which there has reportedly been a threat
against the trial judge, courts have held that recusal is not
warranted where the judge did not believe he was in danger or his

actions were not influenced by the alleged threat. E.g., United

States v. Yu-Leung, 51 F.3d 1116, 1119-20 (2d Cir. 1995); Rivera v.


they, too, could have been victims had Mr. Nettles’ alleged plot
gone forward.

Here, too, Mr. Nettles points to the Oklahoma City case as
illustrative of why transfer should be granted. The decision in
that case, granting a transfer to the District Court of Colorado,
is illustrative, if not in the direction Mr. Nettles argues. In
United States v. McVeigh, 918 F. Supp. 1467 (W.D. Okla. 1996), the
court granted the defendants’ motion for transfer of venue. In
doing so, the McVeigh court noted the enormous publicity the case
had garnered, especially the ongoing, in-depth coverage by the
Oklahoma media. Jd. at 1471-1473. Not only had the media kept the
story alive, the McVeigh court stated that the media had
“demonized” the defendants, portraying them in such a way to
“[evoke] such strong emotional responses or such a identification
with those directly affected ... that the jurors feel a personal
stake in the outcome.” Id. at 1473. No such pervasive and highly-
emotional coverage exists in this case, as might be expected since
the alleged plot was never fulfilled. The McVeigh court also noted
the extreme sympathy evoked by the victims, many of them young
children, in holding that “so great a prejudice” existed that
defendants could not obtain a fair and impartial trial in Oklahoma.
No such emotional toll is at play here, as the alleged plot was

never carried out, thus creating no victims. The motion to



Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge i Sitting Judge if Oth
or Magistrate Judge Elaine E. Bucklo thane Assigned Judge
CASE NUMBER 04 CR 699 - 1 DATE 11/23/2004
CASE USA vs. Nettles
TITLE
[In the following box (a) indicate the party filing the motion, .g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

MOTION: of the motion being presented.)
DOCKET ENTRY:
(1) Qa Filed motion of [ use listing in “Motion” box above.]

Notified counsel by telephone.
Docketing to mail notices.
Mail AO 450 form.

Copy to judge/magistrate judge.

courtroom
deputy’s
initials

MPJ

(2) o Brief in support of motion due
(3) Qa Answer brief to motion due___. Reply to answer briefdue___.
(4) Qo Ruling/Hearing on set for at
(5) im} Status hearing[held/continued to] [set for/re-set for] on___set for at
(6) Oo Pretrial conference[held/continued to] [set for/re-set for] on set for at.
(7) QO Trial{set for/re-set for] on at.
(8) Q [Bench/Jury trial] [Hearing] held/continuedto___—sat__—
(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) OLocal Rule 41.1 COFRCP41(a)(1) [1 FRCP41(a)(2).
ao) [Other docket entry] | Enter Memorandum Opinion and Order denying defendant’s motion to
transfer the case to another circuit and for recusal.
(il) ff [For further detail see order attached to the original minute order.]
No notices required, advised in open court, ,
No notices required, umber of notices
o | Notices maited by judge's staff.

Bil fy €2 sounpaz

Date/time received in.’
central Clerk’s Office

NOV.2 32

1723/2008

date mailed notice

MPI

mailing deputy initials



transfer pursuant to Rule 21(a) is also denied.

ENTER ORDER:

LE. Ble
Elaine E. Bucklo
United States District Judge

Dated: November 23, 2004



IN THE UNITED STATES DISTRICT COURT E>
FOR THE NORTHERN DISTRICT OF ILLINOIS y Gp.
EASTERN DIVISION Oy Ly Ae,
Oy,
op Gy
7)
UNITED STATES OF AMERICA, ) Ge
)
Plaintiff, )
}
vs. ) No. 04 CR 699
)
GALE NETTLES, )
)
Defendant. )

MEMORANDUM OPINION AND ORDER

Gale Nettles is charged in a nine-count indictment with
attempting to damage and destroy by means of an explosive a federal
building and various other offenses under 18 U.S.C. S$ 844(f), (i),
and 2339. The building referenced is the Everett M. Dirksen
federal building in Chicago, Illinois, in which this court and the
Court of Appeals for the Seventh Circuit sit. Mr. Nettles moves
for recusal pursuant to 28 U.S.C. § 455 and for transfer pursuant
to Fed. R. Civ. P. 21(a). He asks that neither I nor any judge in
the Seventh Circuit, including the Court of Appeals, hear his case
and that it be transferred to another circuit. Mr. Nettles does
not argue that I have any personal bias, and indeed agrees that he
has “no information that the Court has any actual bias or prejudice
against him.” (Defendant’s Memorandum of Law at 2.) I deny both
motions.

28 U.S.C. § 455 requires that a federal judge recuse herself

“in any proceeding in which [her] impartiality might reasonably be

AL



questioned.” 28 U.S.C. § 455(a). This statute serves not to
protect defendants from actual bias on the part of a judge, but to
promote public confidence in the impartiality of the judiciary.
See Marino v. United States, No. 97-C-7159, 1999 WL 39008, at *6
(N.D. Ill. Jan. 15, 1999) (Williams, J.). The test for recusal
under § 455(a) is “whether an objective, disinterested observer
fully informed of the facts underlying the grounds on which recusal
was sought would entertain a significant doubt that justice would
be done in the case.” Id. (citing, inter alia, Pepsico, Inc. v.
McMillen, 764 F.2d 458, 460 (7% Cir. 1985)). The decision about
impartiality “is to be made in light of the facts as they existed,
and not as they were surmised ...”%. Cheney v. U.S. District Court
for the District of Columbia, _U.S.__, 124 §.Ct. 1391, 1393
(2004). Judges have equal obligations to recuse themselves when
appropriate and to refuse to do so when recusal is inappropriate.
United States v. Greenspan, 26 F.3d 1001, 1005 (10° Cir. 1994).
Evaluation of the circumstances under § 455(a) is highly fact-
specific, and analogy to other cases serves only as guidance in
that evaluation. Nichols v. Alley, 71 F.3d 347, 351 (10° Cir.
1995) (citing United States v. Jordan, 49 F.3d 152, 157 (5% Cir.
1995)). Mr. Nettles argues that the decision in favor of recusal
in Nichols, which related to the bombing of the Alfred P. Murrah
Federal Building in Oklahoma City, illustrates the propriety of

recusal (and transfer) in this case. The facts of this case,