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United States v. Walker

United States District Court, D. Colorado

December 9, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
3. GARY L. WALKER, Defendant.

          ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR RECONSIDERATION

          CHRISTINE M. ARGUELLO United States District Judge.

         This matter is before the Court on Colorado Springs Fellowship Church's[1](“CSFC”) Motion for Re-Consideration [sic] to the Hon. Christine Arguello, U.S. District Judge, to Recuse Herself from All Proceedings Going Forward and Re-Assign [sic] the Case (“Motion for Reconsideration”). (Doc. # 1148.) For the following reasons, the Motion is granted in part and denied in part. Specifically, the Motion is granted in that the Court will analyze the arguments in CSFC's Motion for Recusal (Doc. # 1145) and Motion for Reconsideration (Doc. # 1148) without focusing on the issue of mootness. However, CSFC's request for recusal is denied.

         The Court recently recounted the factual background of this case in its Order Unsealing, in Part, Hearing Transcripts. (Doc. # 1146.) The Court incorporates those facts in full and proceeds to a discussion of CSFC's Motion for Recusal.

         I. DISCUSSION

         CSFC asserts that recusal is warranted based on 28 U.S.C. §§ 144 & 455. The Court will address each alleged basis for recusal in turn.

         A. 28 U.S.C. § 144

         1. Legal Standard

         If a party believes that a judge is biased against him, he may file a “timely and sufficient affidavit [alleging] that the judge before whom the matter is pending has a personal bias . . . against him or in favor of any adverse party.” 28 U.S.C. § 144. If a timely and sufficient affidavit is filed, the allegedly biased “judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.” Id. “The affidavit [must] state the facts and the reasons for the belief that bias or prejudice exists . . . .” Id. An untimely affidavit requires proof of “good cause” to be considered. Id.

         When a party raises a motion pursuant to § 144, a judge is “not automatically disqualif[ied].” United States v. Bray, 546 F.2d 851, 857 (10th Cir. 1976). Rather, the judge is required to consider the sufficiency of the filing. See id. The judge's investigation of sufficiency entails evaluating both whether the allegations rise beyond conclusory and whether the affidavits are timely filed. See Hinman v. Rogers, 831 F.2d 937, 938-39 (10th Cir. 1987). “Disqualification under 28 U.S.C. § 144 places a substantial burden on the moving party to demonstrate that the judge is not impartial, not a burden on the judge to prove that [she] is impartial.” In re McCarthey, 368 F.3d 1266, 1269 (10th Cir. 2004).

         Further, although the Court must accept the facts alleged in the supporting affidavit under § 144 as true, the affidavit is construed strictly against the moving party. See Glass v. Pfeffer, 849 F.2d 1261, 1267 (10th Cir. 1988). Judicial rulings alone are almost always insufficient to establish bias, as are mere “speculation, beliefs, conclusions, innuendo, suspicion, opinion, and similar non-factual matters . . . .” Leatherwood v. Allbaugh, 861 F.3d 1034, 1050 (10th Cir. 2017) (citations omitted).

         2. Analysis

         In support of its Motion, CSFC submitted the affidavit of Rose Banks. (Doc. # 1145-1.) Ms. Banks' affidavit is insufficient for two reasons:

         (1) It is untimely; and

         (2) Ms. Banks' allegations are conclusory, and the statements Ms. Banks asserts demonstrate bias are merely the Court's recitation of the testimony presented by ...


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