Pua

under § 455(b)(1) is whether a reasonable person would be convinced that the judge is biased.
Id. I find a reasonable person would not find bias in this case because I was not personally
involved in the investigation of the security guard case and that case is not connected to the
present charges against Mr. Robinson and other defendants. Furthermore, under § 455(a) Mr.
Robinson has not alleged sufficient facts to establish even an appearance of bias. Liteky v.

United States, 114 S.Ct. 1147, 1154 (1994).

Assuming Mr. Robinson filed an appropriate § 144 affidavit, there is no evidence of
actual personal bias even when accepting as true all his factual allegations and setting aside my
own personal knowledge and credibility determinations. Mr. Robinson's affidavit is filled with
opinions and conclusions that the 1986 investigation was targeted directly against him, was
retaliatory and was a result of personal animus. I do not have to accept these conclusions.
United States v. Bames, 909 F.2d 1059, 1072 (7th Cir. 1990). Mr. Robinson makes the
following factual allegations which I must accept as true: that I was the Director of the State
Police at the time of the security guard case investigation, I made the comments discussed above
in a press conference, and the investigation was under the supervision and direction of a
department whose head I was.

Based on these factual allegations, a reasonable person still could not find that Iam
biased against Mr. Robinson. The facts do not demonstrate that I conducted any personal
campaign aimed directly at Mr. Robinson, nor do the facts indicate any personal dislike or hatred
for any of the defendants on my part. Mr. Robinson has failed to show that I hold some personal
animus or malice towards him that I would not be able to entirely set aside in judging his case.

Therefore, his affidavit does not compel recusal even under § 144 when all its factual averments

19


3. Mr. Robinson's third and fourth allegations of bias are related and will be discussed
together. Mr, Robinson raises an issue of personal bias based on the nature of certain
investigations by the Illinois State Police while I was its director and statements I made at a 1986
press conference. The other defendants raise a similar argument, but Mr. Robinson raises the
matter in a broader way and I will consider the broader claims first.

On Thursday, June 19, 1986, I was Director of the Illinois State Police and Richard M.
Daley was the States Attommey of Cook County. We held a press conference to announce the
arrest of 18 persons on a charge of acting as unlicensed security officers. Some of them were
arrested as well for unlawful use of weapons for carrying firearms. At the press conference, it
was related that the investigation began when one individual (thought by police to be an El
Rukn) applied to the Illinois State Police for a state firearm owner's identification card.

The ensuing investigation, it was said, led to discovery of Security Maintenance Services,
Inc. ("SMS") which was operating as a security guard firm without benefit of the required state
license. The State Police represented themselves to SMS as a company interested in hirihg’"
security guards for a jewelry show. Both the company and the show were fictitious. Eighteen
persons showed up to provide security services. They were arrested.

According to newspaper coverage, States Attomey Daley said, "The idea of El Rukn gang
members wearing badges and uniforms and offering their services to protect lives and property
would be laughable if not for the risk every citizen takes, when coming in contact with these
various criminals."

According to newspaper coverage, I said, "street gangs have grown to rival organized.

crime in the scope of their operations, and in the savagery in which they control entire sections of

13



While the question is a close one, it is my judgment that the published views of the
Circuit Judges expressed on direct appeal from the conviction in these cases raise the real
possibility that my impartiality in continuing to preside over the post-conviction
proceeding might reasonably be questioned. While I have no doubt that I would be
impartial and I do not read any opinion on appeal or on mandamus to question my actual
impartiality, my continuing to preside after the Court of Appeals’ opinion on direct appeal
is not consistent with the perception of impartiality standard embodied in § 455(a).

The motion to recuse is granted.

ENTER:

Qn BG,
Jamek B. Zagel v
Unitgd States Diktrict Judge

DATE: _OCT 24 2002


are assumed to be true.

Conclusion

The defendants here were not the defendants in 1986. The defendants here were never
arrested by the State Police when I was its Director. I do not believe any defendant concedes
membership in the El Rukns and even if one did, it does not mean a judge in my position would
be biased on the question of whether they are guilty of the charge proffered against them here.

The fact that a judge has once accused John Doe of committing an offense as part of a
criminal investigation does not require recusal from the case of Richard Roe accused of a
different act even if Roe is Doe's relative, friend or associate.

. As before, I must search my conscience to determine whether I have a personal bias
against anyone accused of criminal association with the El Rukns or in favor of any persons who
investigate the El Rukns. J have done so and I do not. ,

The motions to recuse are denied,

Enter:

James B. Zagel
United States District Judge

Date:

20



to twelve years earlier. Thus, the court found that the remoteness of time and circumstances was
sufficient to rule out any inference that the judge had a personal stake in the outcome of the case
particularly because the judge was not involved in the investigations that led to it. Balistrieri,
779 F.2d at 1201 n.8.

The more narrow point, raised vaguely by Mr. Robinson and more explicitly by co-
defendants, relies on what is in fact true. I was Director of the Illinois State Police which
conducted an investigation of some El Rukns, which resulted in arrests and charges by the States
Attorney. I participated in announcing the charges and stated that "street gangs have grown to
rival organized crime in the scope of their operations, and in the savagery in which they control
entire sections of the city." These statements, it is said, make me biased against anyone alleged
to be part of the El Rukn organization and for any law enforcement agencies investigating or
prosecuting E] Rukns.

There is no doubt that a former police official or prosecuting attorney may be so
consumed by the passion of pursuit against a particular organization that as a judge, he or she
would possess an unacceptable bias against anyone accused or suspected of membership.
Frankly, a police official or prosecuting attorney so consumed by the passion of pursuit would be
the wrong person even to investigate or prosecute anyone accused or suspected of membership in
the group.

But it cannot be assumed or inferred from prior participation in an investigation of an
organization that bias exists against anyone accused of knowingly participating in the criminal
acts of the organization.

‘When a law enforcement professional, be he Attorney General, a prosecutor, or a

17



APPEARANCES:

For the Plaintiff:

HON. JAMES B. BURNS
United States Attorney, by

MR. BARRY RAND ELDEN
Assistant United States Attorney
(219 South Dearborn Street
Chicago, Mlinois 60604)

For the Defendant:

MR. NOAH ROBINSON, pro se
Court Reporter:

MS. MARY M. GALLAGHER
(219 South Dearborn Street
Room No. 1944

Chicago, Illinois 60604)

(312) 663-0049

ALSO PRESENT:

MR. ALLAN A. ACKERMAN

MR. ROBERT P. AULSTON



Balistrieri, 779 F.2d at 1199.

Section 144 is heavily weighted in favor of recusal and is not discretionary. The judge
may only pass on the timeliness and sufficiency of the affidavit. Id. at 1199. However, the party
seeking recusal bears some burden as the Statute is to be strictly construed since a judge is
presumed to be impartial. Id.

Section 455 is the comprehensive federal recusal statute. Section 455(a) requires a judge
to recuse himself in any proceeding in which the judge's impartiality might reasonably be
questioned, Section 455(b)(1) requires disqualification when the judge has a personal bias or
Prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the
proceeding. The remaining subsections of § 455(b) detail several specific circumstances in
which the judge must recuse himself.

Section 455(b)(1) duplicates the grounds of recusal set forth in § 144 with the phrase
“personal bias or prejudice,” but places the obligation to identify its existence upon the judge
himself. Liteky v. United States, 114 S.Ct. 1147, 1153 (1994). The courts have found the phrase
to have the same meaning in both statutes; however, the strict procedural requirements of § 144
do not apply to § 455(b)(1). Balistrieri, 779 F.2d at 1202. Section 455(b)(1) dispenses with the
requirement that the judge take all the factual averments of the affidavit as true. Balistrieri, 779
F.2d at 1202. Under § 455, "the judge is free to make credibility determinations, assign to the
evidence what he believes to be its proper weight, and to contradict the evidence with facts
drawn from his own personal knowledge.” Balistrieri, 779 F.2d at 1202. However, the standard
of proof is identical to that in § 144, “whether a reasonable person would be convinced that the

judge is biased." Id,



ENDNOTE

MEMORANDUM AND OPINION

Thave before me motions for recusal. I treat the motions as having been made under 28
USS.C. §§ 144 and 455(a) & (b)(1).

(A)

Section 144 requires a judge to recuse himself if a party files a timely, sufficient and
signed affidavit that the judge has "a personal bias or prejudice" against him and is accompanied
by a certificate of counsel of record that the affidavit is made in good faith. The law is clear that
in passing on the legal sufficiency of the affidavit, the judge must assume that the factual
averments it contains are true, even if he knows them to be false. United States v. Sykes, 7 F.3d
1331, 1339 (7th Cir. 1993); United States v. Balistrieri, 779 F.2d 1191, 1199 (7th Cir. 1985),
cert, denied, DiSalvo v. United States, 475 U.S. 1095 (1986). An affidavit is sufficient if it avers
facts that, if true, would convince a reasonable person that bias exists. Sykes, 7 F.3d at 1339;
Balistrieri, 779 F.2d at 1199, Courts are ordinarily wary of rules which require them to accept as
true that which they know is false, thus § 144 has been narrowly construed. Sykes, 7 F.3d at

1339; Balistrieri, 779 F.2d at 1199. While the judge must accept the facts alleged as true, the

judge need not accept conclusions, opinions or rumors. United States v. Barnes, 909 F.2d 1059,

1072 (7th Cir. 1990), quoting Balistrieri, 779 F.2d at 1199. Furthermore, the facts must be plead

with particularity and must be definite as to times, places, persons and circumstances. Barnes,

909 F.2D at 1072, citing Balistrieri, 779 F.2d at 1199. Furthermore, the factual averments must

show that the bias is personal rather than judicial and that it stems from an extrajudicial source.


policeman on the beat, takes action within the scope of his authority against a
person, based on a reasonable belief that the person might be violating the law,
and supported by whatever degree of probable cause the law may require in the
circumstances, such action by itself does not support an inference that the
professional harbors some personal bias or prejudice against the person. Law
enforcement professionals typically take action against a wide variety of persons
during their careers, motivated by nothing more than a desire to carry out the
duties of their offices. Even a series of actions against a person according to a
plan is not enough in itself to show bias or prejudice; such activity is perfectly

compatible with personally disinterested professional motivation.

Balistrieri, 779 F.2d at 1201.

Many judges who prosecuted organized crime cases hear organized crime cases. There is

no precedent for requiring the recusal of a judge in these circumstances. In fact, recusal under

similar circumstances has been found unwarranted. In Balistrieri, the Court of Appeals found no

obligation for the district court to recuse itself where the judge had, as the state's attorney general,
believed the defendant was head of a criminal organization, announced that belief and acted on it
on numerous occasions. Balistrieri, 779 F.2d 1191.

"The disqualification of a judge for actual bias or prejudice is a serious matter, and it
should be required only when the bias or prejudice is proved by compelling evidence."

Balistrieri, 779 F.2d at 1202. Mr. Robinson has not satisfied his burden. The standard of proof

18


record within the meaning of the statute. The lawyer may have filed a "limited" appearance form
for defendant Noah Robinson "for Writ of Habeas Corpus and Release on bail pending appeal
status." Indeed, the transcript cover page which Mr. Robinson filed with this court shows no

appearance of counsel for Mr. Robinson. The cover page reads:


>

Wing Order Form (06/97)
United States District Court, Northern District of Illinois
Name of Assigned Judge Sitting Judge If Oth
or Magistrate Judge James B. Zagel than assigned Judge
CASE NUMBER 02 C 7391 DATE 10/24/2002
CASE UNITED STATES vs. CHARLES GREEN
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.)
DOCKET ENTRY:
(1) Oo Filed motion of [ use listing in “Motion” box above.]
(2) aq Brief in support of motion due
(3) Oo Answer brief to motion due, . Reply to answer brief due
(4) im Ruling/Hearing on _ set for at
(5) oO 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) o Trial[set for/re-set for} on at
(8) Oo (Bench/Jury trial] [Hearing] held/continued to at
(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
COFRCP4(m) Cl Local Rule 41.1 OOFRCP41(a)(1) O FRCP41(a)(2).
ao [Other docket entry} Motion (4-1) to withdraw as judge for 28:2255 proceedings is
granted. Enter memorandum opinion and order.
dl) @ (For further detail see order attached to the original minute order.]
No notices required, advised in open court, Document
. Number
No notices required. umber of notices
Notices mailed by judge’s staff.
Notified counsel by telephone, CT 28 2002
ov | Docketing to mail notices.
Mail AO 450 form, wants feeatiar <ti Nina initials
Copy to judge/magistrate judge. - *
date mailed ge
courtroom >
Dw deputy’s
initials
Date/time received in
central Clerk's Office mailing deputy initials



Mr. Robinson further alleges that ill feelings exist between court and counsel because of
the end of counsel's marriage. Mr. Robinson makes inferences about the sentiments of various
persons toward counsel and inferences that those sentiments are to be imputed to the court. Even
if Mr. Robinson had filed an appropriate § 144 affidavit, these allegations are merely conclusions
and opinions, they are not facts, and thus under § 144 are not to be taken as true. Balistrieri, 779
F.2d at 1199. Furthermore, under § 455(b)(1), a judge is free to contradict the evidence with

facts drawn from his own personal knowledge, Balistrieri, 779 F.2d at 1202, and I find Mr.

Robinson's statement about hostile exchanges between counsel and others is, to the best of my
knowledge, untrue and, in fact, denied by Mr. Felix Mayes' counsel. A reasonable person would
not be convinced that I would be biased in this case due to the fact that counsel for Mayes was
once married to my sister-in-law, therefore, §§ 144 and 455 would not compel recusal under
these circumstances.

Of course, the fact remains that Mr. Felix Mayes' counsel is no longer the husband of my
sister-in-law and the law.does require me, and Mr. Robinson asks me, to search my conscietice to
determine whether, in fact, there is resentment, ill-feeling or low opinions which might affect my

ability to judge the merits of counsel's arguments on behalf of Felix Mayes and which might spill

over into the cases of other defendants. Smith v. Insurance Co. of North America, 213 F.Supp.
675, 700 (M.D. Tenn. 1962) Gudge accused of bias and prejudice must examine his conscience),
affd in part, rev'd in part on other grounds 334 F.2d 673 (6th Cir. 1964), cert. denied, 85 S.Ct.
895 (1965). Ihave searched my conscience and find no sentiment which would preclude or
indeed make difficult the judicious consideration of the professional acts of Felix Mayes'

counsel. He has appeared before me in other cases appropriately and so will appear in this one.

il


T find there is no counsel of record for Mr. Robinson. I leave to one side the question of

whether Mr. Aulston could appear as counsel in this case assuming he is the same Aulston

mentioned in the indictments.

©

Noah Robinson also seeks recusal under § 455 on four bases.

1.

2.

The relationship of counsel for another defendant (Felix Mayes) to myself.

The absence of random selection of myself as presiding judge.

The nature of investigations done by the Illinois State Police during the time I was
its Director.

The statements made by myself at a press conference in 1986.

1. The legal relationship of counsel for defendant Felix Mayes and myself no longer exists.

At one time counsel was married to my wife's sister. Under the Code of Conduct for United

States Judges and § 455, a judge must disqualify himself when "a person within the third degree

of relationship to him is acting as a lawyer in the proceeding.” The relationship between Mayes'

counsel and myself was equivalent to that of brother and would require disqualification and,

during the existence of that relationship, I did not sit in cases in which Mr. Felix Mayes' counsel

appeared. The marriage which formed the basis of this relationship has been legally dissolved

and, with it, the relationship. Disqualification is no longer required.

Indeed, I doubt that any defendant other than Felix Mayes has standing to object to my

presiding over this case because of the former relationship between his counsel and myself and

he has not sought recusal on this particular ground.

10



Section 455(a) is a catch-all recusal provision concerned with the appearance of bias, not
actual bias. Liteky, 114 S.Ct. at 1153. It is not intended to protect litigants from actual bias in
their judge but rather to promote public confidence in the impartiality of the judicial process.
Balistrieri, 779 F.2d at 1204, citing H.R. Rep. No. 93-1453, 93d Cong., 2d Sess. (1974),
reprinted in 1974 U.S. Code Cong, & Ad. News 6351, 6354-55. Under § 455(a) the rule 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." Pepsico, Inc. v. McMillen, 764 F.2d 458, 460 (7th Cir. 1985).

@)

Defendant Noah Robinson has filed a purported § 144 affidavit. The strict procedural

requirements of § 144 are designed to protect the integrity of the judicial system and prevent

abuse of the recusal procedure. In the Matter of Searches Conducted on March 5, 1980, 497

F.Supp. 1283, 1288 (E.D. Wis. 1980). I hold that he is not entitled to the presumption of the

ye

truth of its facts because he has not satisfied the requirement that the affidavit must be '"'
accompanied by a certificate of counsel of record stating the affidavit was made in good faith. 28
U.S.C. § 144. Failure to submit counsel's certificate of good faith alone is grounds for denying
his motion. United States v. York, No. 86 CR 315, 1988 WL 105342 *1 (N.D. Il. Sept. 20,
1988), citing Balistrieri, 779 F.2d at 1199; Martin-Trigona v. Shiff, 600 F.Supp. 1184, 1187
(D.C. 1984).

Mr. Robinson represents himself and he has no counsel of record. The affidavit was
originally accompanied only by Mr. Robinson's own certification. Later he filed a certificate by

Robert P. Aulston, a lawyer licensed to practice in Louisiana. This lawyer is not counsel of


trial, and the sentences which I imposed were identical to those imposed by a prior judge
whom no one sought to recuse,

Yet even this does not end the matter. Section 455(a) does not speak to actual lack
of impartiality. It mandates disqualification of a judge in any proceeding in which the
judge’s “impartiality might reasonably be questioned.” In my view, there was no ground
on which anyone could reasonably question my impartiality. But on April 3, 2000, the
three Circuit Judges expressed the view that I should have recused myself. And this view,
whether right or wrong, expressed in a published opinion, is a fact which enters into the
calculus of what might cause a reasonable questioning of impartiality. There is the fact
that three other Circuit Judges earlier concluded I should not recuse. But the April 3
opinion was expressed in a particularly forceful way, particularly in light of the fact that
two of the judges thought that expression of their views was warranted despite the fact
that they were not necessary to the decision of the case.

One of my colleagues thinks that I should disregard the dicta and that the majority
judges should not have written it. I disagree on both counts, Dicta cannot be disregarded
in the arena of public perception. And I would be loath to criticize an appellate judge for
expressing strongly held views in dicta. It is true that we are bound only by holdings but
we and other judges may be persuaded by dicta. What would be wrong, and is not present

here, is dicta that masquerades as a holding.



the city." Neither the Chicago Tribune nor the Chicago Defender mentioned the name of
Noah Robinson, and there is no evidence that his name was mentioned at either the press
conference or in a press release and certainly not in an accusing manner. Nor does Mr. Robinson
allege that I mentioned his name at the press conference. The Chicago Sun Times wrote about
the story and it reported that the building occupied by SMS was "owned by millionaire
businessman Noah Robinson." Mr. Robinson denied that the building was a headquarters for the
gangs’ illegal security company, and he praised the quality of the security work done by one of
the persons who was arrested.

Mr. Robinson has included the various State Police reports detailing the investigation.
These reports do not bear an indicia that they were sent to or examined by the Director of State
Police. It would be truly exceptional for reports to be examined by the Director in a case of this
sort and I did not examine them.

None of the defendants in this case was charged or arrested in the security guard case.
There are references in reports to a person (wrongly identified in earlier reports as Noah Jackson)
who I believe to be Noah Robinson. These references appear only in statements of SMS
individuals who cited Mr. Robinson's name as a source of reference who had retained SMS and
who offered to introduce an agent to Mr. Robinson. The agent accepted the offer, but the reports
contained no record of such a meeting and I am unaware if such a meeting ever occurred.

None of the actions of the officers in connection with the security guard case were
submitted to me for approval or discussed with me. An investigation of this type would
invariably be supervised by agents well below the level of the Director. The special agents

involved in these cases would be subordinate to and supervised by Master-Sergeants, Lieutenants

14


against any of the defendants in this case.

I would add that I do not recall any case and defendants (who would surely know) have
never cited any case in which, during my tenure as Director, the State Police ever arrested any of
these defendants on any charge. Moreover, although I rarely participated in decisions to
designate particular persons as appropriate targets of criminal investigation, I do recall that I
never discussed or approved the targeting of any of the defendants in this case. The geographic
focus of most alleged El Rukn activity, in this case (and other reported cases) would ordinarily
mean that other law enforcement agencies, rather than the State Police, would be primary
investigators. United States v. McAnderson, 914 F.2d 934, 939 (7th Cir. 1990) (placing El
Rukns headquarters at 3947 South Drexel in Chicago); People v. J.L. Houston, 541 N.E.2d 1191,
1195 (1989) (El Rukns known to be a Chicago street gang); O'Donnell v. Field Enterprises Inc.,
491 N.E.2d 1212, 1214 (1986)(same).

Furthermore, it is clear that the events related in the affidavit bear no relationship to the
current charges against Mr. Robinson, and thus a reasonable person could not be convinced that I

would be biased in this case. Balistrieri, 779 F.2d at 1200-01. The investigation that took place

under my tenure as Director of the State Police occurred nine years ago and led to the discovery
of an unlicensed security guard firm which had some ties to the El Rukns. The current charges
against Mr. Robinson and other defendants are for murder, conspiracy to murder, kidnapping and
intimidation in relation to their activities with the El Rukns. As already stated, none of the
defendants in this case were charged or arrested in the security guard case. The facts here are
similar to those in Balistrieri where the previous targets of enforcement activity related in the

affidavits were different than those targets charged in the indictment in question and occurred ten

16


on the merits of the case. The Court of Appeals found that neither ground required
recusal. In another case, the Court had held that my failure to recuse was not plain error.
United States v. Franklin, 197 F.3d 266 (7" Cir. 1999).

So why do I write this decision instead of summarily denying the motion to
recuse?

The reason is found in the latest opinion. The dissenting judge thought that the
tule barring review of a § 455(a) ruling save by mandamus was flawed and ought to be
abandoned. If it were abandoned, then the dissenter would have held that I should have
recused myself. His reasons why I should recuse came from his adoption of language in
the majority opinion. The majority offered what it plainly understood to be dicta when it
said:

“[W]e wish to emphasize our belief that compliance with [§ 455(a)] is

essential to the perceived legitimacy of the judicial process, expecially

when the defendants are vicious criminals facing long sentences and the

prosecution has been marred by irregularities. It would have been far, far

better for Judge Zagel to have recused himself in light of his earlier

involvement with the parallel proceeding against the E] Rukns and the fact

that two of the E] Rukns involved in that proceeding testified in the present

case. But the panel that considered the petition for mandamus ruled that

there was no violation of section 455(a), and while we disagree with the

tuling, the issue of its soundness is not before us.” 208 F.3d at 648.

have, over time, carefully considered this view held by three Circuit Judges.

After this re-examination, I adhere to my opinion that I should not have granted the

motion to recuse at trial for perceived partiality. And the defendants received an error-free


UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS on ~
EASTERN DIVISION Oc; ,
8 <0
United States of America,
Plaintiff,
02 C 7391
v. (No. 89 CR 908-16)
Judge James B. Zagel
Charles Green
Defendants.

MEMORANDUM OPINION AND ORDER

In 1995, I denied various motions to recuse in a criminal case charging several
defendants with a massive, long-running conspiracy. The history of the case can be found
in United States v. Boyd, 208 F.3d 638 (7" Cir. 2000) which affirmed the convictions and
sentences entered in the proceedings before me. There is more background to be found in
the affirmance of a grant of a new trial after previous verdicts of guilty and sentencings
by another judge. United States v. Boyd, 55 F.3d 239 (7" Cir. 1995)

In a lengthy opinion which I append to this order’, I denied the motions to recuse
and, prior to trial, the Court of Appeals declined to issue mandamus to overturn my
decision. In this Circuit, that ends the matter with respect to the disqualification under §
455(a) of the Judicial Code, The Court of Appeals which heard the direct appeal held
(over dissent) that it had no power to reconsider the matter. It did address two other
grounds of disqualification — personal knowledge of disputed facts of the case and (as a

government employee) prior participation in the proceedings or expression of an opinion



To the extent that Boyd, Cooksey, Craig, Knox, both Mayes, and all other defendants
who join in Robinson's motion propose these grounds for recusal, I deny their motions.

2. Mr. Robinson avers "the general public would never believe Zagel's "selection" to be a
random chance, a pure coincidence, and neither does defendant Noah Robinson, to be perfectly
honest. Just as an aside, Judge Zagel's office chambers adjoins, is very next door to, Judge
Aspen's chambers. Now, the latter might be a coincidence, but odds are astronomical that the
former would likewise be." (Emphasis in original.)

Mr. Robinson is asserting, I think, that this Court's random assignment procedures have
been subverted and this is a ground for recusal under § 455(a). Perhaps, in the first sentence, he
means only to say that he "thinks" so and that the general public would "think" so, but his second
sentence appears to contain an assertion of fact that the odds are astronomical against the chance
that random selection (coincidence) is the reason this case is before me. It is true that Judge
Aspen and I both had courtrooms on the 19th floor, however, that is all that is true about this
claim. Our chambers were not "very next door" unless one wishes to forget about Judge
Marovich. Furthermore, the Clerk of this Court has assured me that ordinary random selection
procedures were used. Thus, there is not even an appearance of impartiality. Balistrieri, 779
F.2d at 1204. Consequently, there is no ground for recusal here.

Even if this claim were made under § 144, where all factual averments must be taken as
true, Mr. Robinson's assertion of facts are merely illusory as no facts are stated with particularity
as required by § 144. Mr. Robinson only asserts opinions and conclusions that there is some
impropriety involved in the fact that this case is before me and thus again he fails to show bias or

prejudice. Balistrieri, 779 F.2d at 1199.

12


and a Zone Commander (usually a Captain). Above the Zone Commander is an Area
Commander (usually a Major). The Area Commander will report to a Deputy Superintendent or
to a Superintendent who in turn will report to the Assistant Director and thence to the Director.
As is characteristic of most large police agencies, personal involvement by the head of the
department in any given case is the rare exception and not the rule. Mr. Robinson seems to
recognize this because in order to make his claim of my personal involvement in the security
guard case, he asserts that various acts were taken under my “auspices.” This is true, at least at
some level of abstraction, but it is not the equivalent of personal involvement. And it is the
degree of my personal involvement in the security guard case that is important. Announcement
of the results of the investigation is not personal involvement. Furthermore, Mr. Robinson never
asserts any personal involvement by me in the investigations that led to the current charges. See
Balistrieri, 779 F.2d at 1201 n.8 (Judge's lack of involvement when he was Attorney General in
investigation that led to current charges rules out inference of personal stake in outcome of case);
Margoles v. Johns, 660 F.2d 291, 297 (7th Cir. 1981) ("even personal and direct involvement in
proceedings creating the grounds for animosity toward a party does not necessarily require

recusal."), cert. denied, 455 U.S. 909 (1982); United States vy. Masters, 88 CR 0500, 1988 WL

79612 *3 n.2 (N.D. lL. July 25, 1988) (No obligation for district court judge to recuse himself
where he had served as head of a large, departmentalized agency, and played no role in the
investigation at issue.)

Even more important is that no defendant in this case before me was charged or arrested
in the security guard case. Even if there had been extensive personal involvement by me in the

security guard case, the fact remains that no accusation of wrongdoing was ever levied by me

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