govinfo:USCOURTS-paed-2_01-cr-00457-1

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IN THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA : CRIMINAL NO.
 : 01-457-3
 :
v. : 
 : 
 : 
RICHARD POTTS : 
ORDER AND MEMORANDUM
AND NOW, this ____ day of _______, 2007, upon consideration of Defendant Richard
Potts’ pro se “Motion to Withdraw Voluntarily as Judge or to Recuse for Violations of 28 U.S.C.
§§ 144, 176, 177, 453, and 455” (Docket No. 580), it is hereby ORDERED that the aforesaid
motion is DENIED as untimely, lacking legal sufficiency, and legally frivolous, for the following
reasons.
1. Defendant’s Motion Pursuant to 28 U.S.C. § 144 Is Denied.
Defendant’s motion under 28 U.S.C. § 144, seeking the recusal of this judge for bias or
prejudice, is DENIED as untimely and because the allegations in Defendant’s “declaration” are
insufficient to establish bias or prejudice against Defendant. Recusal motions pursuant to
Section 144 “must be timely filed, contain a good faith certificate of counsel, and include an
affidavit stating material facts with particularity which, if true would lead a reasonable person to
the conclusion that the district judge harbored a special bias or prejudice” toward the moving
party. United States v. Rosenberg, 806 F.2d 1169, 1173 (3d Cir. 1986). 
Section 144 requires that the affidavit must be “filed not less than ten days before the

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beginning of the term at which the proceeding is to be heard.” 28 U.S.C. § 144. Such a motion
generally “must be filed at the first opportunity after discovery of the facts tending to prove
disqualification.” Sine v. Local No. 992 Int’l Bhd. of Teamsters, 882 F.2d 913, 915 (4th Cir.
1989). “A disqualification motion [pursuant to § 144] filed after trial and judgment is usually
considered untimely unless good cause can be shown for the delay, for otherwise a party alleging
bias would always await judgment in the hopes of a favorable decision.” Rosenberg, 806 F.2d at
1173 n.3. 
Defendant’s motion pursuant to Section 144 has been filed several years after the trial and
judgment, and therefore is untimely. The trial of Defendant concluded on March 28, 2003, when
he was convicted by a jury of conspiracy to distribute cocaine base and of murder in furtherance
of a continuing criminal enterprise and aiding and abetting. Upon remand from the Third Circuit
Court of Appeals, which affirmed Defendant’s conviction, he was re-sentenced on October 20,
2005. His appeal of the amended judgment is currently pending before the Third Circuit. 
The court rejects Defendant’s argument that he has good cause for not raising his claims
during trial because he received ineffective assistance of counsel. Even assuming arguendo that
Defendant’s counsel was ineffective, which cannot be construed as an expression of approval of
Defendant’s claims, Defendant does not show good cause why he waited over four years since
the close of trial to present his pro se claims now. Defendant does not present any new legal or
factual developments to justify his egregious delay, and his claims rely on events that occurred
during trial, to which he has always had access. Defendant not having shown good cause, the
court concludes that his motion is untimely.
Even if Defendant’s motion were timely, it lacks the substantive requirements of legal

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sufficiency. Although the factual allegations in a timely affidavit filed pursuant to Section 144
must be accepted as true, conclusory statements and opinions are not credited. United States v.
Vespe, 868 F.2d 1328, 1340 (3d Cir. 1989). In deciding such a motion, a court must only
examine the legal sufficiency of the facts and recusal is required “if they give fair support to the
charge of a bent of mind that may prevent or impede impartiality of judgment.” Id. (quotation
and citation omitted). “Only bias which is personal or extrajudicial in nature is disqualifying.” 
Id. (citation omitted). An extrajudicial source is one outside of the official proceedings, as
opposed to “facts which the judge learned from his participation in the case.” United States v.
Bertoli, 40 F.3d 1384, 1412 (3d Cir. 1994); Rosenberg, 806 F.2d at 1173. To justify recusal
where a party does not cite to extrajudicial sources, “the Judge’s opinions and remarks must
reveal a ‘deep-seated’ or ‘high degree’ of ‘favoritism or antagonism that would make fair
judgment impossible.’” United States v. Wecht, 484 F.3d 194, 213-214 (3d Cir. 2007) (quoting
Liteky v. United States, 510 U.S. 540, 555-56 (1994)). 
The basis for Defendant’s motion, as stated in his “declaration,” is the following: “I
strongly feel that Judge James T. Giles was bias [sic] towards me during my trial proceedings
because he constantly lead [sic] the prosecution in its direct examination of multiple witnesses,
he also interrupted my attorney Howard Pepper [sic] on different occasions throughout the cross-
examination of multiple witnesses.” The court does not credit Defendant’s opinions and
conclusory statements. See Vespe, 868 F.2d at 1340. The court further notes that the factual
allegations cited in support of the above claims do not reference extrajudicial sources and instead
attack the manner of the trial proceedings. (See Def.’s Mot. to Withdraw Voluntarily as Judge 8-
10.) The trial transcript excerpts provided by Defendant in support of his argument reveal only

 The trial record is silent as to Defendant’s religion. The Muslim religion was not1
mentioned and religion, in general, was not at issue in the trial.
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the court’s efforts toward clarifying questions asked and responses elicited in order to ensure the
integrity and efficiency of the judicial process. (See id.) The attorneys conducted the
examination of trial witnesses. The court’s questions were not “made with any purpose other
than determining what actually happened.” See Vespe, 868 F.2d at 1341. Further, a transcript
excerpt cited by Defendant relates to the conduct of “Blade,” who according to the evidence was
not this Defendant or any co-defendant on trial. (See Trial Tr. vol. 2, 62-63, Mar. 17, 2003.) 
Thus, Defendant’s allegations in no way demonstrate a “‘deep-seated’ or ‘high degree’ of
‘favoritism or antagonism that would make fair judgment impossible” and are not legally
sufficient. See Wecht, 484 F.3d at 213-214. 
Defendant, who is Muslim, also argues that this court is prejudiced against Muslims and
made statements associating Defendant with the war in Iraq in order to make him appear as if he
is a “terrorist.” (See Def.’s Mot. to Withdraw Voluntarily as Judge 11.) He states in his1
“declaration”: “I feel that Judge James T. Giles prejudiced me when he instructed the Jury during
trial on March 18, 2003 that the war against Iraq was in some way a form of evidence against me
simply because I am Muslim.” In alleged support of this assertion, Defendant refers to
instructions and admonitions given to the jury relative to the continuation of court proceedings
should anti-war demonstrations occur in the vicinity of the courthouse if war broke out in Iraq. 
(See Def.’s Mot. to Withdraw Voluntarily as Judge 10-11; Trial Tr. vol. 1, 200-01, Mar. 18,
2003.) The jury was told that such demonstrations would not disrupt trial proceedings. (Id.) 
These words in no way show any form of bias against Muslims in general or Defendant, in

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particular, nor do they draw any association between Defendant, Iraq, terrorism, or Muslims. 
The admonitions address pragmatic concerns that even peaceful demonstrations might
temporarily block traffic and access to the courthouse. The admonitions were meant to reassure
the jury that the trial would not be affected and to emphasize that the jurors must not be affected. 
No objection was made to this instruction because the instruction was necessitated by the
circumstances presented.
This court expressly admonished the jury to remain impartial and not to be affected by the
aforementioned events: “When you deliberate in this case, you are to exclude from deliberations
everything that is not evidence, including whatever might be happening in the world outside of
this case. . . . So focus upon your duty in this case. . . . Keep an open mind.” (Trial Tr. vol. 1,
200-01, Mar. 18, 2003.) Considering the various jury charges as a whole, Defendant’s right to a
fair trial was protected, not prejudiced. 
Because Defendant’s allegations do not lend any “support to the charge of a bent of mind
that may prevent or impede impartiality of judgment,” they are not legally sufficient and the
motion under Section 144 must be denied. See Vespe, 868 F.2d at 1340. 
2. Defendant’s Motion Pursuant to 28 U.S.C. § 455 Is Denied.
Defendant’s motion under 28 U.S.C. § 455, seeking the disqualification of this judge for
bias or prejudice, is DENIED. Defendant has presented naked claims of bias and prejudice. 
Sections 455(a) and (b)(1) are relevant to these claims and are applied. “The test for recusal
under § 455(a) is whether a reasonable person, with knowledge of all the facts, would conclude
that the judge’s impartiality might be reasonably questioned.” In re Kensington, 353 F.3d 211,

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220 (3d Cir. 2003). Section 455(b)(1) requires recusal where a judge “has a personal bias or
prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the
proceeding.” 28 U.S.C. § 455(b)(1). 
For the reasons discussed above, a reasonable person with knowledge of the facts would
not conclude that this court’s impartiality could be reasonably questioned. Also as discussed
above, the factual allegations do not reveal any “personal bias or prejudice concerning”
Defendant or “any personal knowledge of disputed evidentiary facts concerning the proceeding.” 
See 28 U.S.C. § 455(b)(1). The court’s inquiries during trial with the purpose of clarifying
questions and answers, and statements to the jury addressing practicalities relating to possible
anti-war demonstrations occur around the courthouse are not facts that would lead a reasonable
person to question the court’s impartiality.
3. Defendant’s Motion Pursuant to 28 U.S.C. §§ 176, 177, and 453 Is Denied.
Defendant’s motion under 28 U.S.C. §§ 176 (removal from office of a judge of the
United States Court of Federal Claims), 177 (disbarment of a removed judge of the United States
Court of Federal Claims), and 453 (oaths of justices and judges) is DENIED as legally frivolous.
 
 BY THE COURT:
 S/ James T. Giles 
 J.

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