govinfo:USCOURTS-okwd-5_21-cr-00028-0

IN THE UNITED STATES DISTRICT COURT FOR THE 
WESTERN DISTRICT OF OKLAHOMA 
UNITED STATES OF AMERICA, 
    
                          Plaintiff, 
 
-vs- 
 
JOHN MIGUEL SWAN, 
 
   Defendant. 
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) Case No. CR-21-28-F 
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ORDER 
 The court received two pro se  filings from the defe ndant on February 26, 
2025.  See doc. nos. 204 and 205.  The two filings appear to be substantially 
identical, albeit in different handwriting.  Both documents seek recusal of the 
undersigned under 28 U.S.C. § 455(a).  With these motions, as with all of the 
defendant’s other pro se filings, the court construes defendant’s pleadings liberally 
and holds them to a less stringent standard than formal pleadings drafted by lawyers.  
That said, the court cannot and does not assume the role of advocate for this pro se 
litigant.  Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).  Because doc. nos. 
204 and 205 are substantially identical, they will be referred to collectively as “the 
motion.” 
 Section 455(a) states that a judge of the United States “shall disqualify himself 
in any proceeding in which his impartiality might reas onably be questioned.”  The 
required approach to application of § 4 55 was recently and succinctly summarized 
in Vanhorn v. Salvation Army, No. 23-2009-DDC-ADM, 2025 WL 604973 (D. Kan. 
Feb. 24, 2025): 
The test for determining impartia lity is an objective one, based on a 
judge's “outward manifestations and reasonable inferences drawn 
therefrom.” Nichols v. Alley, 71 F.3d 347, 351 (10th Cir. 1995) 
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(citation omitted). “Ordinarily, when a judge's words or actions are 
motivated by events originating w ithin the context of judicial 
proceedings, they are insulated from charges of bias.” United States v. 
Nickl, 427 F.3d 1286, 1298 (10th Cir.  2005) (citing Liteky v. United 
States, 510 U.S. 540, 554–56 (1994)). “Recusal may be appropriate, 
however, when a judge's decisions, opinions, or remarks stem from an 
extrajudicial source—a source outside judicial proceedings.” Id. (citing 
Liteky, 510 U.S. at 554–55). And while judges “have a strong duty to 
recuse when appropriate,” they also owe “a strong duty to sit[.]” United 
States v. Wells, 873 F.3d 1241, 1251 (10th Cir. 2017). 
.  .  .  . 
“ ‘[A]dverse rulings cannot in themselves form the appropriate grounds 
for disqualification.’ ” Nickl, 427 F.3d at 1298 (quoting Green v. 
Branson, 108 F.3d 1296, 1305 (10th Cir. 1997)).  
Id. at *1. 
So far as can be discerned from a careful reading of the motion, the defendant 
makes essentially the following points in support of recusal (because doc. no. 205 is 
the more legible of the two filings now befo re the court, the c ourt refers to that 
version):  
 First, the defendant refers to a st atement made by the undersigned at the 
previous sentencing, in 2022, in which the undersigned suggested that the 
defendant has a strong tendency toward vulnerable victims.  That argument 
is bolstered by a contention that, in referring to the defendant’s tendency 
toward vulnerable victims, the court relied on inadmissible evidence.  This, 
according to the defendant, amounted to a display of bias and deep seated 
favoritism.  
 Second, defendant also argues that hi s constitutional rights were violated 
because he was not present during jury selection on May 8, 2024.  
 Third, defendant suggests that, by re ferring to the possibility that the 
defendant was “delusional” in a h earing on October 30, 2024, the court 
used abusive language that left defendant without any hope of having a fair 
proceeding.  
 Fourth, defendant also maintains that , in a hearing on February 20, 2025, 
the court violated defendant’s constitutional rights by not granting him the 
opportunity to review evidence in  possession of the government. He 
elaborates on this point by asser ting that his defense is severely 
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handicapped by being denied the nece ssary materials and guidance from 
standby counsel.  
 Fifth, defendant asserts that the unde rsigned demonstrated partiality by 
stating, in substance, during a Faretta colloquy on February 20, 2025, that 
the defendant’s decision to proceed pro se might be the worst mistake of 
his life. This, defendant states, am ounted to a display of impatience, 
disregard and animosity toward the defendant. 
Doc. no. 205, at 2 - 4. 
The foregoing summary of defendant’s contentions is itself sufficient, when 
measured by the authorities cited and quoted above, to demonstrate that the 
defendant has shown no basis for recusal.  The matters complained of by defendant 
all occurred within the context of judicial proceedings in this case.  Nothing in the 
papers now before the cour t suggests (and there could not  be any such suggestion) 
that any rulings or remarks by the und ersigned stemmed from an extrajudicial 
source.  The short of the matter is that defendant complains, in the papers now before 
the court, of adverse rulings or of findings made on the basis of the record properly 
before the court.  The remedy for errone ous adverse rulings lies in the Court of 
Appeals, or in some cases, by way of motion for reconsideration, and not in a motion 
for recusal under § 455(a).  That basis alone is sufficient to compel denial of the 
motion.  
Notwithstanding the fact that the moti on must, and will, be denied for the 
reasons already stated, the court will comm ent briefly on some of the defendant’s 
specific contentions.  
First, the statement made by the undersi gned in 2022, to the effect that the 
defendant has a tende ncy toward vulnerable victims,  was made on the basis of 
materials which were then appropriately before the court. Aside from that, defendant 
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will be free, at sentencing, to contest a ny suggestion that he has a tendency toward 
vulnerable victims.1  
Second, as the court has previously pointed out, it is simply not true that jury 
selection was held on May 8, 2024.  That proceeding was simply the court’s docket 
call for the May, 2024 docket.  No jury was selected on that day.  
Third, the court’s reference to th e possibility that the defendant was 
“delusional,” in the Octobe r 30, 2024 hearing, was pr ompted by the defendant’s 
contention that the May, 2024 jury was com posed of the same jurors who sat in 
judgment of defendant in a trial before Ju dge DeGiusti in 2010.  That comment, of 
course, is what precipitated the commitment of defendant for psychiatric evaluation.  
Fourth, as for defendant’s contention that his rights have been violated by lack 
of access to evidence in the possession of  the government, the defendant has made 
no semblance of a showing that any evid ence relevant to sentencing has been 
concealed from him or that he has been denied access to any such evidence.  
Fifth, it is true that, at the hearing on defendant’s motion to proceed pro se on 
February 20, 2025, the court did state, in substance, that the defendant’s decision to 
proceed pro se might be the worst mistake of his life.  The undersigned believed then 
and believes now that that was a correct assessment of the wis dom of defendant’s 
decision to proceed pro se rather than availing himsel f of the full range of abilities 
of the superbly qualified and competent lawyer appointed by the court.  A fair 
 
1 The parties are reminded that, in its February 21, 2025 order, the court advised the parties that 
the court “intends, if reasonably possible, to rule on the pending mo tions at the March 5 hearing.  
However, if, at the hearing, the court concludes that it is necessary for the government to respond 
in writing to any motion then pending, the court will set a due date for that response.  If the court 
does rule on all of the pending motions at the hearing, and if those rulings are such that the matter 
will, as a result of those ru lings, be ripe for sentencing, the court will, on that date, proceed 
directly with the sentencing and entry of judgment.  Otherwise, the court will make such orders 
with respect to sentencing and other scheduling matters as may be appropriate.”  Doc. no. 199, at 
2 (emphasis in original). 
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reading of the February 20, 2025 proceedings will demonstrate quite clearly that, in 
substance, the court was remonstrating w ith defendant to avail himself of the 
services of that lawyer.  The undersigne d believed, then, and believes now, that 
although the defendant is not without substantial experience in criminal proceedings, 
his likelihood of success on issues which might have some bearing on sentencing 
will be significantly greater if the defendan t has the benefit of his previous superb 
counsel. 
The motions for recusal, doc. nos. 204 and 205, are accordingly DENIED. 
Also before the court is a motion labele d “Motion to Set Dates for all Pro-Se 
Motions to be Heard,” doc. no. 206, filed on February 26, 2025.  Some of the motions 
referred to in doc. no. 206 have already been ruled upon.  All other matters listed in 
doc. no. 206 that may be ri pe and appropriate for consideration at the hearing on 
March 5, 2025 will be heard then.  To be clear, all motions encompassed by the order 
at doc. no. 199, as well as the Motion for Reconsideration at doc. no. 201, will be 
addressed at the March 5, 2025 hearing.  With that understanding, the motion at doc. 
no. 206 is DENIED as moot. 
Finally, to facilitate the defendant’s  understanding of the sequence of 
proceedings in this case, and to enable him to understand precisely what matters will 
be before the court on Ma rch 5, 2025, the clerk is DIRECTED to mail to the 
defendant a current copy of the docket sheet in this case. 
DATED this 28th day of February, 2025.  
 
 
 
 
 
 
 
 
 
21-0028p044.docx  
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