UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

United States of America,

Government

v. Criminal Case No. 08-cr-94-1

Opinion No. 2009 DNH 014

Peter P. Mitrano,

Defendant

O R D E R

This case was originally assigned to Judge Barbadoro. As

the current trial date approached it became clear that Judge

Barbadoro could not preside due to a special assignment requiring

him to preside over a complex criminal matter in the District of

Puerto Rico during the same trial period. To facilitate timely

resolution of this matter under those circumstances, this case

was reassigned to me for trial.

The defendant filed a motion to recuse, and to have the case

reassigned to Judge Barbadoro. A pretrial status conference was

held. Counsel for both parties advised that there were pending

legal issues that had been recently briefed and that each side

thought ought to be resolved prior to trial (e.g., the

availability and extent of a “Cheeks” defense; the extent to

which defendant can challenge the validity of the underlying

state support order, etc.). Counsel for defendant has since

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advised the court that he will restyle pending motions in the

form of a motion to dismiss, within 30 days.

Motion to Recuse

Defendant’s recusal motion rests on grounds that the

undersigned judge dismissed an earlier civil suit filed by him

against a state marital master, and in so doing “also dismissed

defendant’s legal theories regarding the [state] family court’s

lack of subject matter jurisdiction by stating ‘plaintiff is a

trained attorney and presumably knows, or certainly should know,

that his claims are nonstarters.’” See Mitrano v. Martin, Case

No. 01-cv-153-M. Defendant says “These same claims will also be

at issue in the instant prosecution . . . .”

In addition, defense counsel asserts that “. . . it has come

to counsel’s attention that Hon. Judge McAuliffe also signed

Orders suspending the defendant from practicing [law] in this

Court.” . . . “suggest[ing] that the defendants legal arguments

regarding why he should not be suspended are “arcane’ and

‘meritless’,” and further stated that “[the] misconduct by

Mitrano that was established in the District of Columbia

disciplinary proceeding (theft) unquestionably warrants the

sanction of disbarment.” In re Peter Paul Mitrano, Docket No.

07-adr-01-M.

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Taking the assertions in reverse order, indeed theft by an

attorney under the circumstances found with respect to Mitrano

unquestionably warrants disbarment, and Mitrano has been properly

disbarred in a number of jurisdictions, including this one. That

serious misconduct, however, bears no relationship to the

criminal case at hand — the facts are unrelated, the applicable

law is unrelated, and the disposition is unrelated.

The same is true with respect to the assertion of recusable

bias. Counsel for defendant misconstrues, or distorts, the

disposition of Mitrano’s earlier civil case. As the order, fully

quoted, made clear:

Extensive analysis and discussion [of Mitrano’s

federal claims] are not warranted. [Mitrano] is a

trained attorney and presumably knows, or certainly

should know, that his claims are nonstarters. Briefly,

the New Hampshire Superior Court’s exercise of

jurisdiction over his child custody case, whether

legally correct or incorrect, and its order finding him

in contempt of that court, whether legally correct or

incorrect, are matters which he can fully litigate in

the state courts — appeals lie in the New Hampshire

Supreme Court and, if cognizable federal issues warrant

it, in the United States Supreme Court. Lower federal

courts, however, do not sit in review of state court

decisions, particularly when the state proceedings are

ongoing, as is the case here. Mitrano v. Martin, 2002

DNH 030, at 2-3 (emphasis added) (citations omitted).

So, counsel misquoted, by not fully quoting, and thereby

misstates the court’s ruling — which specifically did not relate

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to any issue of state court jurisdiction or any other issue

pending before the state court in Mitrano’s custody dispute, but

rather addressed only his federal claims and this court’s

jurisdiction, finding that there was no federal jurisdiction,

hence the dismissal. And, again, as a trained attorney,

defendant knew or certainly should have known, that his federal

claims were nonstarters, for all the reasons given in the

dismissal order; his current counsel should know as much.

A party may invoke a statutory right to recusal of a federal

trial judge under certain circumstances. The applicable statute

provides:

Whenever a party to any proceeding in a district

court makes and files a timely and sufficient affidavit

that the judge before whom the matter is pending has a

personal bias or prejudice either against him or in

favor of any adverse party, such judge shall proceed no

further therein, but another judge shall be assigned to

hear such proceeding.

28 U.S.C. § 144. Moreover, “[t]o require disqualification, the

alleged bias or prejudice must be both ‘(1) personal, i.e.,

directed against a party, and (2) extrajudicial.’” United States

v. Kelley, 712 F.2d 884, 889 (1st Cir. 1983) (quoting United

States v. Carignan, 600 F.2d 762, 763 (9th Cir. 1979)); see also

In re United States, 441 F.3d 44, 67 (1st Cir. 2006). Regarding

the requirement that a judge’s alleged bias be extrajudicial,

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“[f]acts learned by a judge while acting in his judicial capacity

cannot serve as a basis for disqualification on account of

personal bias.” Kelley, 712 F.2d at 889 (citations omitted).

As noted, the affidavit of a party seeking recusal must be

“timely and sufficient.” Mitrano has not filed an affidavit. 

So, initially, Mitrano’s motion is defective under 28 U.S.C.

§ 144 for want of an affidavit.

Recusal on grounds of partiality is also addressed in 28

U.S.C. § 455(b)(1) and 455(a). Section 455(b)(1) is not

applicable as defendant has proffered no compelling evidence of

actual bias or prejudice. See Brokaw v. Mercer County, 235 F.3d

1000, 1025 (7th Cir. 2000). The indicia of bias Mitrano posits

consists entirely of judicial rulings made in a previous case and

a disbarment proceeding over which I presided. His motion

asserts no extrajudicial source for any knowledge he claims I

have concerning the pending matter, or any of the prior matters

in which he was involved. His motion does not sufficiently

allege any facts that would counsel, much less require, recusal

under either Section 455(b)(1) or 455(a). Kelley, 712 F.2d at

889. See Nichols v. Alley, 71 F.3d 347, 351 (10th Cir. 1995)

(surveying cases). That is, all Mitrano asserts is “(2) the mere

fact that a judge has previously expressed an opinion on a point

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of law . . . (3) prior rulings in . . . another proceeding,

solely because they were adverse; [and] (4) mere familiarity with

the defendant . . . .” Id. Such matters are not ordinarily

sufficient to warrant § 455(a) recusal. A reasonable person,

knowing all the relevant facts, would not harbor doubts about the

undersigned judge’s impartiality based upon such claims.

As one scholarly publication on the subject of recusal has

observed:

In some cases, the judge’s familiarity with aspects of

a case comes from having presided over related cases. 

Here, too, absent unusual circumstances, recusal is

unnecessary. The case of Town of Norfolk v. United

States Army Corps of Engineers, [968 F.2d 1438 (1st

Cir. 1992)] is illustrative. A district judge had

overseen compliance with a city plan to clean up the

Boston Harbor. In a subsequent case about locating a

landfill pursuant to the Clean Water Act, a party moved

for the judge’s recusal and the judge refused. The

First Circuit upheld the refusal, noting that “a judge

is sometimes required to act against the backdrop of

official positions he took in other related cases. A

judge cannot be replaced every time a case presents an

issue with which the judge’s prior official decisions

and positions may have a connection.”

Recusal: Analysis of Case Law Under 28 U.S.C. §§ 455 & 144,

Federal Judicial Center (2002), p. 26 (quoting Town of Norfolk,

968 F.2d at 1462). Here, of course, there is no relatedness

among the cases. There was no issue decided, or fact found, in

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the prior federal cases that will be presented in Mitrano’s

federal prosecution.

A decision on a recusal motion requires the judge to balance

several factors and “must reflect not only the need to secure

public confidence through proceedings that appear impartial, but

also the need to prevent parties from too easily obtaining the

disqualification of a judge, thereby potentially manipulating the

system for strategic reasons, perhaps to obtain a judge more to

their liking.” In re U.S., 441 F.3d at 67 (quoting In re AlliedSignal, Inc., 891 F.2d 967, 970 (1st Cir. 1989) (emphasis in

original)). While it is always tempting for a judge to simply

recuse from cases, such as this, involving difficult parties who

have been unsuccessful in past cases before the same judge,

nevertheless, a judge is as duty bound to sit when recusal is not

appropriate as to recuse when it is appropriate. See Laird v.

Tatum, 409 U.S. 824, 837 (1972) (citations omitted). Recusal is

simply not appropriate here.

Because Mitrano’s motion for recusal (document no. 54) is

legally insufficient in that it does not assert any facts or

circumstances that could cause a reasonable person, fully

informed of the actual facts, to question the assigned judge’s

impartiality, it is denied.

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Continuance

Defense counsel filed a number of motions in December

raising issues that are, on their face at least, somewhat

complex. Those motions just became ripe and are pending. Both

sides agree that those matters should be resolved in advance of

trial. And, defense counsel will be filing a more focused motion

to dismiss within 30 days. The case is not ready for trial. 

Accordingly, it will be continued.

The court finds that the ends of justice served by granting

a continuance outweigh the best interest of the public and the

defendant in a speedy trial, 18 U.S.C. § 3161(h)(8)(B)(iv), in

that failure to grant a continuance would unreasonably deny

defendant the reasonable time necessary for effective preparation

taking into account the exercise of due diligence under the

circumstances.

Because trial is continued to permit resolution of the

issues raised in the pending motions, there is no need for the

reassignment to facilitate an early disposition. Accordingly,

the Clerk will vacate the reassignment order and restore this

case to Judge Barbadoro’s docket.

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Conclusion

The motion to recuse (document no. 54) is DENIED. The trial

is continued. Defense counsel will file a focused motion to

dismiss within 30 days of the date of this order supported by a

memorandum of law. The government shall respond within the time

prescribed by applicable rules of procedure.

SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

February 4, 2009

cc: Helen W. Fitzgibbon, Esq., AUSA

Jeffrey S. Levin, Esq.

U.S. Probation

U.S. Marshal

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