United States v. Black (490 F. Supp. 2d 630, 2007)

Citations

490 F. Supp. 2d 630

Full opinion text

ORDER

DEVER, District Judge.

On February 15, 2007, defendant James Boyce Black (a/k/a “Jim Black”) (“Black” or “defendant”) pleaded guilty in this court to violating 18 U.S.C. § 666(a)(1)(B). Between 2000 and 2005, Black was the Speaker of the North Carolina House of Representatives. According to the government’s factual basis presented at Black’s arraignment, Black’s criminal conduct took place between 2000 and December 2005 and included accepting approximately $25,000 in cash and a $4,000 check from chiropractors, intending to be rewarded in connection with the business of state government. At defendant’s February 15, 2007, arraignment, the court notified the parties that defendant’s sentencing would take place during the May 14, 2007, term of court.

On May 3, 2007, defendant filed a motion to recuse pursuant to 28 U.S.C. §§ 455(a), 455(b)(1), and 455(b)(2). Black does not seek recusal under 28 U.S.C. § 144, and his motion does not allege that I am personally biased or prejudiced against him. See Def.’s Mot. to Recuse 3 n. I. Rather, the motion alleges that I should recuse myself because I may have “personal knowledge of disputed evidentia-ry facts concerning the proceeding” (28 U.S.C. § 455(b)(1)), and because I allegedly, while “in private practice ... served as a lawyer in the matter in controversy, or a lawyer with whom [I] previously practiced law served during such association as a lawyer concerning the matter.... ” 28 U.S.C. § 455(b)(2). Alternatively, the motion seeks my recusal under the “catchall” recusal provision in section 455(a) because my “impartiality might reasonably be questioned.” Id. § 455(a).

Essentially, the motion to recuse is based on a redistricting lawsuit that took place primarily in North Carolina state court between November 2001 and July 2003. At the time of that redistricting lawsuit, I was in private practice in Raleigh. In the litigation, Thomas Farr and I were lawyers who represented five Republican voters (“plaintiffs”). The plaintiffs challenged the constitutionality under the North Carolina Constitution of a November 2001 redistricting statute for North Carolina House and Senate legislative districts. In the lawsuit, plaintiffs sought injunctive relief to prevent the State of North Carolina from using the November 2001 redistricting statute. Plaintiffs sued the following ten .North Carolina officials in their official capacity: the Executive Director of the State Board of Elections, the five members of the State Board of Elections, the Speaker of the North Carolina House of Representatives, the President Pro Tempore of the North Carolina Senate, the Governor of North Carolina, and the Attorney General of North Carolina. See Stephenson v. Bartlett, 355 N.C. 354, 562 S.E.2d 377 (2002) (“Stephenson I”)- By definition, such official-capacity lawsuits seek relief only from the government (i.e., the State of North Carolina) and do not seek personal relief against any public official. In April 2002, the Supreme Court of North Carolina held that the November 2001 redistricting statute violated the North Carolina Constitution and enjoined its use. See id. In July 2003, the Supreme Court held that the May 2002 redistricting statute violated the North Carolina Constitution and affirmed the state trial court’s May 2002 remedy. See Stephenson v. Bartlett, 357 N.C. 301, 582 S.E.2d 247 (2003) (“Stephenson II”).

On February 9, 2004,1 left private practice and was appointed a United States Magistrate Judge. I served in that capacity from February 9, 2004, until May 3, 2005. On May 3, 2005, I was appointed a United States District Judge. I have served in that position since May 3, 2005.

On May 11, 2007, the United States responded in opposition to the defendant’s motion to recuse. On that same date, defendant filed a motion to supplement his motion to recuse.

As explained in Part II of this order, the court denies defendant’s motion to recuse under section 455(b)(1) and section 455(b)(2). I do not have “personal knowledge of disputed evidentiary facts concerning the proceeding.” 28 U.S.C. § 455(b)(1). Also, while in private practice, I never “served as a lawyer in the matter in controversy,” and neither did any lawyer with whom I previously practiced law. Id. § 455(b)(2). As explained in Part III of this order, the court denies defendant’s motion to recuse under section 455(a). Nothing that this court has said or done creates an appearance of bias. Nevertheless, as explained in Part IV of this order and on the court’s own motion, I do recuse in the public interest from further proceedings in Black’s case. Accordingly, the Clerk of Court is ordered to reassign this case for all further proceedings to another district judge in the Eastern District who accepts criminal cases. The reassignment shall be done through the Clerk’s standard, neutral, random assignment process.

To put defendant’s motion to recuse into context, the court describes the record at some length. Initially, the court discusses the August 2006 criminal action in this court concerning former North Carolina Representative Michael Decker (“Decker”). The court then discusses the February 2007 criminal actions in federal and state court concerning Black. As part of its analysis of Black’s arguments concerning recusal, the court will discuss the Stephenson redistricting litigation, section 455(b)(1), section 455(b)(2), and section 455(a).

On August 1, 2006, Decker appeared in this court and pleaded guilty, pursuant to a plea agreement, to conspiracy to commit extortion under color of official right, honest services mail fraud, and money laundering in violation of 18 U.S.C. § 371.

The criminal information to which Decker pleaded guilty on August 1, 2006, stated:

Beginning in or about mid-November of 2002 and continuing through in or about March of 2006, in the Eastern District of North Carolina and elsewhere, MICHAEL P. DECKER, SR. (“DECKER”), defendant herein, knowingly and unlawfully combined, conspired, agreed, and confederated with others, to commit offenses against the United States, specifically:

a. To affect commerce by extortion, that is, by the obtaining of property from another person, with the person’s consent, under color of official right, in violation of Title 18, United States Code, Section 1951;

b. To knowingly use, and cause others to use, the mail for the delivery and receipt of matters and things for the purpose of executing a devised scheme and artifice to defraud the State of North Carolina and its citizens of the right to DECKER’S honest services as a member of the North Carolina House of Representatives, in violation of Title 18, United States Code, Sections 1341 and 1346; and

c. To conduct financial transactions involving the proceeds of specified unlawful activity, to wit, extortion and mail fraud, knowing that the property involved in said transactions represented the proceeds of some form of unlawful activity, and knowing that the transactions were designed in whole or in part to conceal and disguise the nature, location, source, ownership, and control of the proceeds of specified unlawful activity, in violation of Title 18, United States Code, Section 1956(a)(l)(B)(i).

Overt Acts

In furtherance of the conspiracy and to effect the objects thereof, DECKER and other conspirator(s) did, in the Eastern District of North Carolina and elsewhere, commit numerous overt acts, some of which are detailed below.

1. After the results of the general election of November, 2002, left the North Carolina House of Representatives with 61 Republican members and 59 Democratic members, DECKER solicited and agreed to accept $50,000 and other things of value in return for switching from the Republican Party to the Democratic Party and supporting a particular candidate for Speaker of the House.

2. On January 24, 2003, DECKER changed his party registration from Republican to Democrat and publicly announced the switch.

3. On January 24, 2003, four checks totaling $2500 and made payable to DECKER’S campaign were sent by private commercial carrier from Raleigh, NC, to another location in North Carolina.

4. Later in 2003, DECKER accepted an envelope containing about $38,000 in checks, including the ones described in Overt Act No. 3, and $12,000 in cash in return for switching parties and supporting a particular candidate for Speaker of the House.

5. After his reelection bid failed in the Republican primary of July, 2004, DECKER agreed to keep his campaign account open in case there was a need to run some money through it. On or about February 10, 2005, DECKER received a $4000 check payable to his campaign, deposited it in his campaign account, promptly closed out the account, and converted the money to his personal use.

United States v. Decker, No. 5:06-CR-197-1-D, Crim. Inf. (E.D.N.C. Aug. 1, 2006).

At Decker’s arraignment on August 1, 2006, Assistant United States Attorney John Bruce provided the following proffer as to a factual basis for Decker’s plea:

If this ease proceeded to trial, the government would show by competent evidence the following: Mr. Decker was elected ten times as a Republican to the North Carolina House of Representatives for Forsyth County. The last time being 2002.

During this time in the House, he had never been a prolific fundraiser. After the results of the 2002 election were fully counted, the Republicans had gained a 61/59 advantage. There followed a period of uncertainty as to who would be the Speaker for the 2003/2004 session of the North Carolina General Assembly.

The Speaker of the House wields great power in operation of the House, including committee staff and office assignments, appointments to boards and commissions, determining the state of legislation, and the composition of the budget.

Mr. Decker was experiencing personal financial difficulties. In late 2002, Mr. Decker and another Republican House member met twice in Salisbury, North Carolina with a Democratic member of the House. At the second meeting, Mr. Decker spoke privately with the Democratic member of the House. At this time Mr. Decker offered to switch to the Democratic party and support a certain Democratic member of the House for Speaker in return for $50,000. The Democratic member agreed and proposed it be done with campaign checks. Mr. Decker agreed. Mr. Decker was also promised one full paid staff position would be assigned to him.

Pursuant to the agreement, on Friday, January 24, 2003, Mr. Decker went to the Forsyth County Board of Elections, changed his party representation from Republican to Democrat, and publicly announced that fact.

Meanwhile, checks to the Decker campaign fund were being gathered from persons who had never contributed to his campaign before. For example, on the very day that Mr. Decker announced his party switch, four checks totaling $2,500 from four individuals who had never before contributed to Decker’s campaigns, were sent by Fed Ex for Saturday delivery from Raleigh, North Carolina to another location in North Carolina.

The 2003 legislative session began on January 29, 2003, with the House evenly divided, because of Mr. Decker’s switch, between 60 Democrats and 60 Republicans. After an eight day stalemate, co-speakers were elected. Around this time, the person with whom Mr. Decker had struck this deal in Salisbury, gave Mr. Decker an envelope containing checks totaling approximately $38,000 together with $12,000 in cash.

Mr. Decker quickly converted some of the money to his personal use, including buying a car in Florida and traveling there to pick it up. '

.Mr. Decker also received the promised legislative staff position, which was filled by his son, and over the next several years, Mr. Decker received other things of value.

In 2004, Mr. Decker switched his registration back to Republican and ran for re-election. He was defeated in the Republican Primary on July 20, 2004. After his defeat, Mr. Decker was advised to leave his campaign account open in case there was a need “to run some money through it.” On or about February 10, 2005 he received a $4,000 check payable to his campaign. He deposited the check in his campaign account, closed the account, and converted money to his personal use.

Id., Arraignment (E.D.N.C. Aug. 1, 2006). On August 1, 2006, this court conducted an arraignment in accordance with Rule 11 of the Federal Rules of Criminal Procedure and accepted Decker’s guilty plea. Id. Initially, the court scheduled Decker’s sentencing for November 1, 2006. Id.

On October 17, 2006, the United States moved to continue Decker’s sentencing. On October 18, 2006, the court granted the motion to continue the sentencing until the February 5, 2007, term of court, but advised the parties that it would hold a hearing on November 1, 2006, concerning Decker’s Sixth Amendment rights. See id., Order (E.D.N.C. Oct. 18, 2006). On October 31, 2006, Decker filed an affidavit stating that Black had paid Decker’s lawyer $5,000 in June 2005. According to Decker’s affidavit, Black made this payment shortly after Decker received a federal grand jury subpoena in June 2005 concerning a criminal investigation in the Eastern District of North Carolina. During the November 1, 2006, hearing, Decker identified Black as his co-conspirator. At the end of the hearing, the court found that Decker understood his Sixth Amendment rights. The court also held that there was no conflict of interest in having Decker’s lawyer continue to represent Decker, even though Black (or his campaign) had paid Decker’s lawyer. See id., Minute Entry for Proceedings (E.D.N.C. Nov. 1, 2006).

On January 4, 2007, the United States filed a second motion to continue. On January 8, 2007, the court continued Decker’s sentencing hearing until the court’s April 23, 2007, term of court. See id., Order (E.D.N.C. Jan. 8, 2007).

On February 15, 2007, Black appeared in this court with his counsel Kenneth Bell. Black waived his right to prosecution by indictment and consented to proceeding by criminal information. This court conducted an arraignment in accordance with Rule 11 of the Federal Rules of Criminal Procedure and accepted Black’s guilty plea to a one-count criminal information that charged him with violating 18 U.S.C. § 666(a)(1)(B). See United States v. Black, No. 5:07-CR-42-1-D, Arraignment (E.D.N.C. Feb. 15, 2007). The information stated:

At all times material to this Information:

1. JAMES BOYCE BLACK, a/k/a Jim Black, was Speaker of the North Carolina House of Representatives. In said position, he wielded great influence over legislation and conducted state business on a regular basis.

2. During every one-year period covered by this Information, the government of the State of North Carolina received benefits in excess of $10,000 under Federal programs involving various forms of Federal assistance, including, but not limited to, Medicaid.

3. Individual chiropractors and members of the North Carolina Chiropractors Association had an interest in potential legislation before the North Carolina General Assembly, including, but not limited to: (1) “spinal safety” laws; (2) legislation affecting the amount of co-payments insurers could require patients to pay chiropractors; and (3) legislation requiring that insurers’ review of chiropractic treatment be performed by a licensed chiropractor. Such proposed legislation impacted Federal programs involving forms of Federal assistance, including, but not limited to, Medicaid.

CHARGE

Beginning in the year 2000 and continuing through 2005, JAMES BOYCE BLACK, a/k/a Jim Black, defendant herein, being an agent of a State government, and under the circumstance described in Paragraph 2 above, did corruptly, knowingly, and willfully solicit for his own benefit, and did accept and agree to accept, things of value, that is, money in the form of U.S. currency, from several persons, specifically, members of the chiropractic profession, intending to be rewarded in connection with business of said State government involving things of value of more than $5,000.

All in violation of Title 18, United States Code, Section 666(a)(1)(B).

Id., Crim. Inf. (E.D.N.C. Feb. 15, 2007).

As part of the process of taking Black’s plea of guilty, the United States filed in open court its proffer of the factual basis for the guilty plea. See id., Factual Basis (E.D.N.C. Feb. 15, 2007). According to the factual basis,

1. From 1999 to 2006, the defendant James Boyce Black a/k/a Jim Black served as Speaker of the North Carolina House of Representatives. In such position, he wielded great influence over legislation and other state business, such as the budget of the State of North Carolina. All state laws and appropriations of state funds must pass both houses of the North Carolina General Assembly (“the Legislature”), which consists of the Senate and the House of Representatives.

2. During every one-year period while Jim Black was Speaker, the State of North Carolina received millions of dollars in benefits under scores of Federal programs involving various forms of Federal assistance. Among such programs receiving such Federal assistance are many that impact health care services, including Medicaid.

3. Speaker Black raised money from many different individuals in interest groups who had an interest in matters before the legislature. Among these groups were individual chiropractors who were members of the North Carolina Chiropractic Association. These chiropractors had several legislative goals during the years that Jim Black served as Speaker, including, but not limited to:

a. “Spinal safety” laws: The chiropractors sought passage in the legislature of laws limiting who would be permitted to treat patients by manipulating their spine so that such acts could only be performed by licensed chiropractors and certain other health care professionals.

b. Patient co-payments: The chiropractors sought legislation prohibiting health insurers from requiring patients to pay higher co-payments for visit to chiropractors than for visits to physicians. During the 2005 legislative session, Speaker Black caused legislation to be drafted to accomplish this goal, and helped get it inserted into the House version of the Budget Bill (Senate Bill 622). The provision was ultimately passed into law. See North Carolina Session Laws, 2005-276, § 6.29, amending N.C. Gen.Stat. § 58-50-30(a3).

c. “Chiropractic Treatment Review”: The chiropractors sought legislation requiring that any evaluation of the appropriateness or effectiveness of chiropractic services be performed by licensed chiropractors with an active practice. Legislation was drafted to accomplish this and it was introduced during the 2006 legislative session as House Bill 2869. The legislation would have had broad application to any form of public or private health insurance wherein the medical necessity of treatment was reviewed. Speaker Black helped the bill advance, but then later decided not to bring it to a vote during that session, telling one of the chiropractors that he did not want to cause controversy.

4. Between 2000 and February of 2002, Speaker Black approached two chiropractors and informed them that cash payments would be more helpful than campaign contributions made by check. The two chiropractors agreed to provide Speaker Black with cash payments and ultimately recruited a third chiropractor to provide cash payments to Speaker Black.

5. During the period from February, 2002, through December, 2005, the three chiropractors planned fund-raisers for Speaker Black, met with Speaker Black to discuss legislation relevant to their practice, made in-kind payments for the benefit of Speaker Black which were not reported by Speaker Black to the North Carolina Board of Elections, and delivered cash payments totaling at least $25,000 to Speaker Black.

6. In February of 2002, the chiropractors met Speaker Black at a private dining club in Charlotte and delivered $8,000 in cash to speaker Black. In December of 2002, the chiropractors again met with Speaker Black at a private dining club in Charlotte and delivered approximately $10,000 in cash to Speaker Black. On or about February 14, 2004, approximately 15 members of the North Carolina Chiropractic Association held a fund-raiser for Speaker Black at a restaurant in Concord, North Carolina. During this event, two of the chiropractors met Speaker Black in a restroom for the purpose of secretly delivering cash payments totaling at least $4,000. At the same event, a third chiropractor provided Speaker Black with a check, in the amount of $4,000, made payable simply to “Jim Black.” Speaker Black deposited this check into his personal bank account.

7. On December 3, 2005, a fund-raiser for Speaker Black was held by a group of chiropractors at the Capital Grille in Charlotte, North Carolina. During the fund-raiser, a chiropractor met Speaker Black in a restroom in order to secretly deliver to Speaker Black a $3,000 cash payment. When a restaurant employee entered the restroom, the chiropractor and Speaker Black stepped just outside the restroom and completed the delivery. Upon receiving the $3,000 in cash, Speaker Black stated to the chiropractor, “This is just between me and you. Don’t you ever tell anybody about this.”

8. The three chiropractors who made cash payments to Speaker Black each received a Grand Jury subpoena requiring their appearance before a Federal Grand Jury in Raleigh, on August 16, 2006. On August 15, 2006, Speaker Black personally visited one of the chiropractors. Indicating that he aware of the subpoenas, Speaker Black suggested that the three chiropractors should tell the Grand Jury that the cash payments to Speaker Black consisted of “a little bit of money to help [Black] with expenses along the road while [Black] was out running around the country.”

9. Speaker Black did not deposit the aforementioned cash payments totaling at least $25,000 into the bank account of his campaign and did not report the payments to the North Carolina State Board of Elections as campaign contributions. In receiving these payments and converting them to his own use, Speaker Black intended to be rewarded in connection with the business of state government in which he participated, said state business involving millions of dollars.

Id. at 1-5.

Black entered his guilty plea pursuant to a written memorandum of plea agreement. See id., Mem. of Plea Agreement (E.D.N.C. Feb. 15, 2007). In the memorandum, Black agreed to a number of things. He also acknowledged that “the Court will take into account, but is not bound by, the applicable United States Sentencing Guidelines, that the sentence has not yet been determined by the Court, that any estimate of the sentence received from any source is not a promise, and that even if a sentence up to the statutory maximum is imposed, the Defendant may not withdraw the plea of guilty.” Id. ¶ 3c. The United States Attorney’s office agreed to a number of things in the memorandum, but did not promise “to move for a departure pursuant to U.S.S.G. § 5K1.1, 18 U.S.C. § 3553(e), or Fed.R.CrimJP. 35.” Id. ¶ 4d. The parties also agreed to certain positions as to certain sentencing factors under the advisory guidelines, but acknowledged those positions were “not binding on the Court....” Id. ¶ 5. During Black’s arraignment, the court advised him that sentencing would take place at the May 14, 2007, term of court. At the conclusion of Black’s arraignment, the court released him on a $10,000 unsecured bond. See id., Minute Entry for Proceedings (E.D.N.C. Feb. 15, 2007).

On February 20, 2007, Black appeared in Wake County Superior Court with his counsel Kenneth Bell and entered an Alford guilty plea to a two-count information filed by Wake County District Attorney Colon Willoughby. See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). First, Black pleaded guilty to offering a bribe and giving a bribe to Decker in the form of United States currency and checks. The information stated:

that on or between November 6, 2002, and February 19, 2003, in Wake County, the defendant named above unlawfully, willfully and feloniously did with corrupt intent offer and give a bribe in the form of United States currency and checks to Michael Decker, a Representative in the North Carolina House of Representative. At the time this money and these checks- were offered and given to Michael Decker by the defendant [Black], the defendant [Black] knew that Michael Decker was a Representative and it was intended that this money and these checks would influence his performance of an official duty, to wit: voting in the election for the Speaker of the House of Representatives. This official act lay within the scope of the official authority of Michael Decker and was connected with the discharge of his official and legal duties. This act was done in violation of N.C.G.S. § 14-218 and against the peace and dignity of the State.

State v. Black, No. 07CRS10444, Inf. ¶ 1 (Wake County Super. Ct. Feb. 20, 2007). Second, Black pleaded guilty to obstruction of justice. Specifically,

on or between February 14, 2002, and December 3, 2005, in Wake County, [Black] unlawfully, willfully and felo-niously did in secret and with malice obstruct public justice in his role as a candidate for the North Carolina House of Representatives by soliciting and collecting campaign contributions in the form of checks that had blank payee lines and cash. [Black] converted the cash and checks for his own use and faded to turn the contributions over to the treasurer of the Jim Black Campaign, causing her to file campaign finance disclosure reports to the State Board of Elections that were not complete, true, and correct in that the reports did not disclose these contributions and expenditures. This act was done in violation of the Common Law and against the peace and dignity of the State.

Id. ¶ 2.

At the plea hearing in Wake County Superior Court, Judge Donald W. Stephens explained Black’s rights under federal and state law. See id., Tr. 9-18 (Wake County Super. Ct. Feb. 20, 2007) (hereinafter “State Tr. —”). Additionally, Black executed a Transcript of Plea concerning his guilty plea. Among other things, Black wrote “Yes” in response to the question: “Do you understand that, upon your Alford guilty plea, you will be treated as being guilty whether or not you admit that you are in fact guilty?” Id., Tr. of Plea, ¶ 13(c)(2) (Wake County Super. Ct. Feb. 20, 2007). Black’s counsel Kenneth Bell and Wake County District Attorney Colon Willoughby also signed the Transcript of Plea. See id.

Before Judge Stephens accepted Black’s guilty plea, District Attorney Willoughby presented two witnesses: Kim Westbrook Strach and Randy Myers. Strach was Deputy Director in the Campaign Finance Division of the North Carolina Board of Elections (“Board of Elections”). See State Tr. 18. Strach testified that the Board of Elections’ investigation of Black’s campaign finances began in June 2004 after Bob Hall of Democracy North Carolina filed a complaint alleging “violations by contributors to the Committee to Elect Jim Black that were involved in the video poker industry.” Id. at 19. “From investigating that, [the Board of Elections began] looking at other political committees as well.” Id. The investigation examined contributions from optometrists and the North Carolina State Optometric Society Political Action Committee. Id. at 20-21. The investigation revealed that Decker received $12,000 in the form of blank-payee-line checks from Black, and that Black solicited and raised $46,350 on behalf of Decker in 2003. Id. at 24-26. Decker submitted a campaign finance report for the period January 1, 2005, through July 29, 2005. Id. at 27. In that reporting period, Decker was no longer a member of the North Carolina House of Representatives. Nevertheless, on February 10, 2005, Black’s campaign committee contributed $4,000 to Decker. Id. at 27-28.

Strach testified about the report filed by the Committee to Elect Jim Black concerning the first quarter of 2002. Id. at 28. The campaign did not report any cash contributions. Id. Black’s campaign bank account for that period also did not contain any cash deposits for that period. Id. Likewise, neither Black’s campaign report for the final quarter of 2002 nor his campaign bank account reflected any cash contributions for the year 2002. Id. at 29-30. The campaign report also did not mention the $12,000 in blank-payee-line checks that Black provided Decker. Id. at 30.

Strach testified about Black’s campaign report for mid-year 2003. Id. Black’s campaign did not report the receipt of any blank-payee-line checks for the first half of 2003. Id. at 31. The report did, however, reflect expenditures at the Red Roof Inn in Raleigh for January 22, 2003, February 6, 2003, and February 20, 2003. Id. The expenditures at the Red Roof Inn totaled $729.78. Id.

Strach testified that she had examined the disclosure report for the Committee to Elect Jim Black for the first quarter of 2004. Id. That report did not reflect any cash contributions. Id. at 32. Likewise, the campaign’s bank records for the first quarter of 2004 did not reflect any cash contributions. Id. Similarly, neither the year-end disclosure report for 2005 nor the campaign’s bank records reflected any cash deposits. Id. at 33. Also, Black’s campaign disclosure reports for 2002 through 2005 only disclosed one $250 cash deposit in early 2005. Id. Black’s campaign never reported receiving any cash contributions from Dr. Fletcher Keith, Dr. Steve Willen, or Dr. Thomas Brown. Id. at 34.

The second witness was Special Agent Randy Myers of the North Carolina State Bureau of Investigation (“SBI”). Id. at 36. Agent Myers testified that he was the SBI case agent for the investigation and that he had participated in a joint investigation with the FBI, IRS, and the Board of Elections. Id. at 37. The investigation focused on three groups of contributors to Black: optometrists, chiropractors, and video poker operators. Id. at 38. The investigation revealed that certain optometrists were writing blank-payee-line checks. Id. at 39. The checks were usually made out for hundreds of dollars. Id. The optometrists would write a series of 10 or 12 checks and pass them to Dr. Scott Edwards of the North Carolina State Optometric Society Political Action Committee. Id. Edwards, in turn, gave some of the checks to Black who gave them to Decker. Id. at 40. Black’s campaign reports did not disclose the blank-payee-line checks that Black provided to Decker. Id. at 41.

According to Agent Myers, in 2006, the Board of Elections held a public hearing concerning Black’s campaign finance operation. At that hearing, Black admitted to filling in Decker’s campaign name on $4,200 worth of those blank-payee-line checks. Id.

Agent Myers also testified about interviewing Decker. Id. at 42. According to Myers, Decker stated that after the November 2002 election, the North Carolina House had 61 Republicans and 59 Democrats. Id. Decker was a Republican. Id. Decker said that when he (Decker) learned that he would not receive a leadership position, Decker arranged to meet with Black. Id. at 42. Decker (along with Representative Wood) met with Black at a restaurant in Salisbury, North Carolina. Id. at 43. According to Decker, they discussed a co-speakership. Id. At the end of the meeting, Decker did not believe he or Representative Wood “was going to have a chance at a co-speakership with Representative Black.” Id.

According to Agent Myers, at the end of the meeting, Decker indicated to Black that he possibly could help Black be co-speaker. Id. Decker and Black then went to the restaurant bathroom together. In the bathroom, Decker told Black that he would change parties to Democratic and vote for Black as Speaker if Black gave him $50,000 cash, including $20,000 up front. Id. at 43-44. In response, Black asked whether instead of cash, he could give Decker campaign checks because they would be easier to explain away. Id. at 44. Decker responded that checks would be fine. Id. Decker also told Black that he wanted a job to be created with a $50,000 per year salary and that he (Decker) wanted control over who would fill that job. Id. at 44-45.

Agent Myers testified that Decker later met with Black in Black’s office at the General Assembly. Id. at 46-47. The meeting took place before the election for Speaker, which occurred on February 5, 2003. Id. at 47. In the meeting, Black gave Decker a manilla envelope with $12,000 in cash and a number of checks totaling a bit less than approximately $37,000. Id.

According to Agent Myers, Decker stated that Black later gave him another envelope with just checks. Id. at 48. Further, later in the spring of 2003, Black gave Decker $4,000 in checks. Id. As to the $4,000 in checks, Decker told Agent Myers that an administrative job had been created for him and that he (Decker) had appointed his son Michael Decker, Jr. to that job. Id. Later, Decker complained to Black that the job only paid $46,000. Id. Thereafter, Black gave Decker $4,000 in blank-payee-line checks. Id. Decker filled in his name and cashed those checks in May 2003. Id. at 49.

During Black’s arraignment in Wake County Superior Court, the State introduced (through Agent Myers) a copy of the transcript and plea of Decker to the one-count criminal information that took place in this court on August 1, 2006. Id. at 50.

Agent Myers then testified about interviewing Dr. Fletcher Keith, Dr. Steve Wil-len, and Dr. Tom Brown. See id. at 50-51. According to Agent Myers, Dr. Keith, Dr. Willen, and Dr. Brown are chiropractors in Charlotte. Dr. Keith told Agent Myers that Black solicited a campaign contribution from him in late 2001 or early 2002. Id. at 51, 53. According to Agent Myers, Dr. Keith stated that Black told him that cash would help him. Id. at 52.

Dr. Keith told Agent Myers about an incident on February 14, 2002. Id. at 53. Dr. Keith met with Black and gave him $4,000 in cash at the Capital Grille in Charlotte. Id. Dr. Keith had written a check to cash for $4,000 and provided Agent Myers a copy of that cancelled check. Id. at 53-54. Dr. Keith also told Agent Myers about meetings that he had with Black in December 2002, at the Tower Club in Charlotte, on February 14, 2004, in Concord, and at the Capital Grille in Charlotte. Id. at 55-56.

Additionally, Agent Myers described a meeting that Black had with Dr. Keith on August 15, 2006. On that date, Black called Dr. Keith and told him that his shoulder was bothering him and asked to see Dr. Keith. Id. at 57. Dr. Keith was scheduled to appear before a federal grand jury in the Eastern District of North Carolina on August 16, 2006. Id. Black arrived and met with Dr. Keith in his office. Id. at 58. Black told Dr. Keith that he (Black) was worried about the cash. Id. Black asked Dr. Keith if he could talk to those “boys” and ask them to say, when or if they were questioned about the cash, that they had given a little bit of money to Black to help him with expenses as he was running around the country. Id.

Agent Myers also testified about interviewing Dr. Willen. Id. at 58. Dr. Willen told Agent Myers that he was present during the initial conversation in late 2001 or early 2002 between Black and Dr. Keith. Id. He reiterated that Black said that cash would help him. Id. at 59.

Dr. Willen told Agent Myers that he gave $4,000 in cash to Black at a luncheon meeting on February 14, 2002. Id. Dr. Willen also told Agent Myers that he gave $4,000 in cash to Black on December 12, 2002. Id. at 60-61. Dr. Willen also told Agent Myers that he gave Black $4,000 in cash on February 14, 2004, in the bathroom of a restaurant in Concord, North Carolina. Id. at 61. Finally, Dr. Willen told Agent Myers that he gave Black $3,000 in cash on December 3, 2005, just outside the bathroom door at the Capital Grille. Id. On December 3, 2005, Black told Dr. Willen: “Don’t you tell anybody about this; this is just between you and me.” Id. at 62.

Dr. Willen told Agent Myers that in January 2003, Black asked Dr. Willen if he would contribute to Representative Decker and Representative Wood and if he would ask other chiropractors to do the same. Id. at 63. Dr. Willen wrote a $1,000 check to Decker and a $1,000 check to Wood and asked three others chiropractors to do the same. Id.

Agent Myers also described interviewing Dr. Brown. Id. at 64. Dr. Brown told Agent Myers that he gave $4,000 in cash to Black on February 12, 2002, $2,000 in cash to Black on December 12, 2002, and a $4,000 check made payable to “Jim Black” to Black on February 14, 2004. Id. at 65-66.

Dr. Brown also told Agent Myers about a conversation he had with Black regarding the $4,000 check. Id. at 66. Dr. Brown said that in December 2005, Dr. Keith called and said Black was in Dr. Keith’s office and wanted to talk to Dr. Brown. Id. at 67. Dr. Brown went to Dr. Keith’s office. Id. Black told Dr. Brown that he (Black) had deposited the $4,000 into one of his personal accounts. Id. Black asked Dr. Brown to state, if asked about the check, that Dr. Brown had written the check to Black to help with expenses. Id.

Agent Myers also testified about his interview of four Womble Carlyle lawyers who contributed checks to Representatives Decker and Wood in early 2003 after a request from Black (or his office) to do so. Id. at 67-68. Decker negotiated the checks made out to him. Wood did not. Id. at 68.

Agent Myers then recounted his interview of Representative Wood. Id. at 68-69. Wood stated that Black contacted him on February 4, 2003, and asked to meet him on the morning of February 5, 2003, at the Red Roof Inn in Raleigh. Id. at 69. Wood went to meet with Black on the morning of February 5, 2003, and was surprised to find Decker there. Id. According to Wood, Black made a last pitch to have Wood vote for Black so that Black could be Speaker and not have to share a co-speakership. Id. Wood declined. Id.

Finally, the State introduced an exhibit with a timeline from January 2002 to January 2006. The exhibit shows the amount and dates that Dr. Willen, Dr. Keith, and Dr. Brown gave money to Black. Id. at 70.

At the conclusion of Black’s arraignment, Judge Stephens stated:

Based upon the statements of counsel and the statements of the defendant in response to my questions asked, based upon the presentation of the evidence presented, although Michael Decker’s credibility may be subject to question, when you tie together his plea and his statements, his plea against his own interest, and his statements in light of all the circumstantial evidence surrounding these events, the circumstantial evidence is significant and very strong in support of his statements, and therefore the court finds there is a significant and strong and substantial factual basis for the entry of this plea on behalf of the State, its evidence.

The court finds that the defendant is satisfied with his lawyer — and I say “factual basis” I mean there is significant and substantial and strong factual evidence of actual guilt to the charges — the defendant is satisfied with his lawyer and his lawyer’s legal services. He is certainly competent to stand trial.

The court finds that the plea of guilty, although under North Carolina versus Alford, is one that the defendant has freely, voluntarily and understandingly made of his made of his own free will; it is his choice; is rational.

The court finds and accepts the plea as appropriate and orders it be recorded....

Pursuant to the plea arrangement, the court having accepted the plea, orders it be recorded, the agreement being that the matter would be continued until a date later set at the convenience of the parties in which the state will pray judgment and the court will enter such sentence as appropriate after the defendant has had a full opportunity to cooperate with the ongoing investigation consistent with the agreement that he has signed as embodied in the letter from the District Attorney, let judgment be continued until the matter is calendared for entry of judgment.

Id. at 84-85 (emphasis added). In accordance with the state-court plea agreement, Black’s state-court sentencing was “delayed for a reasonable period of time to permit the defendant to cooperate, and to allow the defendant to be sentenced in Federal Court prior to being sentenced in State Court.” Id., Tr. of Plea, Attach, at 2 (Letter from Wake County District Attorney (Feb. 16, 2007)).

As this court prepared for the April 27, 2007, sentencing hearing involving Decker, the court received a presentence report concerning Decker. On April 11, 2007, in accordance with Fourth Circuit precedent, the court issued an order to the parties giving notice that it was contemplating a possible upward departure under the sentencing guideline and/or a “variance” sentence. Decker, No. 5:06-CR-197-l-D, Order (E.D.N.C. Apr. 11, 2007); see Fed. R.Crim.P. 32(h); United States v. Davenport, 445 F.3d 366, 370 (4th Cir.2006); United States v. Moreland, 437 F.3d 424, 432-37 (4th Cir.2006). The court also established deadlines for the submission of memoranda or other material regarding sentencing. At the time that the court issued its order, the court had made no determination as to what Decker’s advisory guideline range would be, whether to depart, whether to vary, or what Decker’s sentence would be. There were no objections to the presentence report.

On April 27, 2007, the court held a sentencing hearing concerning Decker. See Decker, No. 5:06-CR-197-1-D, Tr. (E.D.N.C. Apr. 27, 2007). The court proceeded during the hearing in accordance with the process that the Fourth Circuit mandates. See, e.g., Davenport, 445 F.3d at 370; Moreland, 437 F.3d at 432-37. Initially, the court heard from counsel for the United States and defense counsel. After considering their arguments, the court determined a total offense level of 21 and a criminal history category of I. See Decker, No. 5:06-CR-197-1-D, Sentencing Order 7-12 (E.D.N.C. Apr. 27, 2007). This determination yielded an advisory guideline range of 37 to 46 months imprisonment. See id. at 12.

The court then considered whether an upward departure was appropriate. After listening to counsels’ arguments, the court found that an upward departure was appropriate under application note 7 to U.S.S.G. § 2C1.1, U.S.S.G. § 5K2.0, and/or U.S.S.G. § 5K2.7. See id. at 12-18. In accordance with Fourth Circuit precedent, the court then determined the extent of the departure. Id. Following that analysis and in light of the five-year statutory maximum under 18 U.S.C. § 371, the court found the advisory guideline range to be 60 months. Id.

In accordance with Fourth Circuit precedent, the court then considered the government’s motion under U.S.S.G. § 5K1.1 for a downward departure based on Decker’s substantial assistance. After receiving evidence, the court granted the government’s motion. See id. at 19-20.

At that point, in accordance with Fourth Circuit precedent, the court heard from Decker’s counsel, heard from Decker, and heard from government counsel. The court credited Decker’s statements as to his criminal conduct in the conspiracy and his sincere remorse. After fully considering the matter, the court sentenced Decker to 48 months and imposed a $50,000 fine. See id. at 20-24. The court filed an order in open court concerning Decker’s sentencing. See id.

Nothing that the court said or did in connection with any part of Decker’s case was based on information from any extrajudicial source. See, e.g., Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994); 28 U.S.C. § 455(b).

On April 30, 2007, the court published its calendar for the May 14, 2007, term of court. On that calender, Black was notified that his sentencing hearing would take place on May 18, 2007. On May 1, 2007, in accordance with Fourth Circuit precedent, the court issued ah order giving notice to the parties that it was contemplating a possible upward departure under the sentencing guidelines and/or a “variance” sentence. Black, No. 5:07-CR-42-1-D, Order (E.D.N.C. May 1, 2007); see Fed. R.Crim.P. 32(h); Davenport, 445 F.3d at 370; Moreland, 437 F.3d at 432-37. The court also established deadlines for the submission of memoranda or other material concerning the sentencing. Black, No. 5:07-CR-42-1-D, Order (E.D.N.C. May 1, 2007). At the time that the court issued its order, the court had made no determination as to what Black’s advisory guideline range would be, how the court would resolve objections to the presentence report, whether to depart, whether to vary, or what Black’s sentence would be.

Nothing that the court said or did in connection with any part of Black’s case was based on information from any extrajudicial source. See, e.g., Liteky, 510 U.S. at 555, 114 S.Ct. 1147; 28 U.S.C. § 455(b).

On May 3, 2007, Black filed a motion to recuse based on 28 U.S.C. §§ 455(a), 455(b)(1), and 455(b)(2). On May 4, 2007, the court cancelled the sentencing hearing scheduled for May 18, 2007, and suspended the deadlines for submitting anything concerning Black’s sentencing. See Black, No. 5:07-CR-42-1-D, Order (E.D.N.C. May 4, 2007). The court also advised the parties of its heavy criminal docket during May and that the court would resolve the motion to recuse in due course. Id. Lastly, the court advised the United States that if it wished to file a response to defendant’s motion to recuse, any response was due on May 11, 2007. Id. On May 11, 2007, the United States filed a response in opposition to the motion to recuse. On May 11, 2007, the defendant filed a motion to supplement his motion to recuse.

II.

Section 455 contains various grounds for a, federal judge’s recusal and is divided into two parts. See 28 U.S.C. § 455. Section 455(b) addresses specific scenarios where recusal is required. See id. § 455(b). Subsection (b)(1) requires recu-sal “[wjhere [a judge] has ... personal knowledge of disputed evidentiary facts concerning the proceeding.” Id. § 455(b)(1). Subsection (b)(2) requires recusal “[w]here in private practice [a judge] served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter....” Id. § 455(b)(2); see Liteky, 510 U.S. at 547-48, 114 S.Ct. 1147. In contrast to section 455(b), section 455(a) is a “catchall” recusal provision, which states: “any [federal judge] shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a); see Liteky, 510 U.S. at 548, 114 S.Ct. 1147. Initially, the court analyzes defendant’s arguments under section 455(b), and then analyzes his arguments under section 455(a). See Schurz Commc’ns, Inc. v. FCC, 982 F.2d 1057, 1061 (7th Cir.1992).

Before addressing the merits, the court examines whether defendant’s motion is timely. In his motion to recuse, Black asserts that “[s]hortly before filing this motion, counsel for Black learned that Judge Dever, while in private practice, represented some of Black’s most outspoken political opponents, prominent Republican members of the North Carolina General Assembly and the North Carolina Republican Party Chairman, in redistricting litigation impacted by the allegations in Black’s and Decker’s case.” Def.’s Mot. to Recuse at 10; see also id. at 13.

In response, the United States notes that Black’s motion to recuse came just six days after Decker’s sentencing and two days after the court entered an order notifying the parties that it was contemplating a possible upward departure or variance sentence. See U.S. Resp. at 3. The United States then argues that a “hypothetical reasonable person” that is a well-informed observer who assesses “all the facts and circumstances” pursuant to United States v. DeTemple, 162 F.3d 279, 286 (4th Cir.1998), would likely conclude “that these developments have motivated the defendant’s motion to recuse and not the supposedly recently acquired knowledge of Judge Dever’s participation in redistricting litigation while in private practice.” U.S. Resp. at 3.

“Timeliness is an essential element of a recusal motion.” United States v. Owens, 902 F.2d 1154, 1155 (4th Cir.1990). To be timely, a recusal motion must be made at the “first opportunity after discovery of the facts tending to prove disqualification.” Sine v. Local No. 992 Int’l Brotherhood of Teamsters, 882 F.2d 913, 915-16 (4th Cir.1989) (analyzing 28 U.S.C. § 144); see Satterfield v. Edenton-Chowan Bd. of Ed., 530 F.2d 567, 574 (4th Cir.1975). The timeliness requirement “serves to deter not only delay, but also ‘wait and see’ tactics.” United States v. Taggart, 1993 WL 10876, at *3 (4th Cir. Jan.21, 1993) (per curiam) (unpublished).

The Fourth Circuit has found section 455 motions untimely when criminal defendants challenged the judges’ impartiality after unfavorable sentencing decisions on grounds essentially known to them before the decisions. See Owens, 902 F.2d at 1155-57; Taggart, 1993 WL 10876, at *1-3. Black and his counsel have known since February 15, 2007, that I was assigned as the district judge to handle this criminal action. Black was arraigned on that date and released. For the next 76 days, Black and his counsel did not seek recusal. Only after Decker was sentenced on April 27, 2007, and only after this court issued its order of May 1, 2007, did Black (through counsel) file his motion to recuse. Further, the motion to recuse is based, inter alia, on two published 2002 and 2003 North Carolina Supreme Court decisions, briefs publicly filed in redistricting litigation where I served as counsel, and my publicly available Senate Judiciary Committee questionnaire. As the Seventh Circuit observed in connection with a motion to recuse a district judge for her prior work as an Assistant U.S. Attorney, “[f|ar from being a secret, [all of these things are] a matter of public record.” United States v. Ruzzano, 247 F.3d 688, 694 (7th Cir.2001).

It appears that Black was content “to test the waters” for 76 days, but viewed “the waters” as “uncomfortably hot” after Decker’s sentencing on April 27, 2007, and after receiving this court’s order of May 1, 2007. See Owens, 902 F.2d at 1155. Nonetheless, Black has not participated in substantial trial or pre-trial proceedings. Rather, he appeared and pleaded guilty on February 15, 2007. Further, the motion was not made after a trial or after entry of judgment in his case. Even though there does not appear to be good cause for Black’s delay in filing the motion, this court will not base its decision on timeliness. See Schurz Comm’ns, Inc., 982 F.2d at 1061. Thus, the court turns to the merits of Black’s recusal motion.

Citing section 455(b)(2), Black argues that I must recuse because the November 2001 Stephenson redistricting lawsuit and his February 2007 criminal prosecution for accepting money from chiropractors in violation of 18 U.S.C. § 666(a)(1)(B) are the same “matter in controversy.” Def.’s Mot. to Recuse 20. He asserts that both the Stephenson redistricting litigation and his federal criminal case raise the “same fundamental question,” namely: “whether Democratic legislators (including Black) used improper means to manipulate election results to maintain a Democratic majority and secure Black’s position as Speaker of the House.” Id.

In order to assess Black’s argument, the court initially describes the Stephenson redistricting litigation. The Stephenson litigation began in November 2001 when five registered Republican voters (including then-Representative Art Pope, then-Representative Leo Daughtry, then-Senator Patrick Ballantine, and then-Chairman of the North Carolina Republican Party Bill Cobey) filed a civil lawsuit naming the Executive Director of the State Board of Elections, the five members of the State Board of Elections, the Speaker of the House, the President Pro Tempore of the Senate, the Governor, and the Attorney General. See Stephenson I, 355 N.C. at 354, 562 S.E.2d at 377. My former law partner Thomas Farr and I represented the plaintiffs. The lawsuit named these ten defendants only in their official capacity. Of course, when a state officer is named as a defendant in his official capacity, the party suing is not seeking relief “against [the defendant] personally, but against the Government.” Cheney v. U.S. Dist. Court for the Dist. of Columbia, 541 U.S. 913, 917, 124 S.Ct. 1391, 158 L.Ed.2d 225 (2004) (Scalia, J.); In re Mason, 916 F.2d 384, 387 (7th Cir.1990) (“Any doubts about the judge’s impartiality are especially weak because the complaint names [defendants] in their official rather than personal capacities.”). In official-capacity actions, “federal [and North Carolina] law provides for automatic substitution of the new officer when the originally named officer has been replaced.” Cheney, 541 U.S. at 917, 124 S.Ct. 1391 (emphasis omitted) (citing Fed. R.Civ.P. 25(d)(1); Fed. R.App. P. 43(c)(2); S.Ct. R. 35.3); see N.C. R. Civ. P. 25(f); N.C. R.App. P. 38(c).

The plaintiffs’ Stephenson lawsuit challenged the November 2001 redistricting statute concerning state House and Senate legislative districts and sought an injunction to prevent its enforcement. Plaintiffs argued that the November 2001 redistricting statute violated a “harmonized” interpretation of the whole county provisions in Article II, Sections 3(3) and 5(3) of the North Carolina Constitution. See Stephenson I, 355 N.C. at 358, 562 S.E.2d at 381. In February 2002, the state trial court held that the November 2001 redistricting statute was unconstitutional under a harmonized interpretation of the North Carolina Constitution. Id. at 358-59, 562 S.E.2d at 382. The state trial court’s interpretation of the whole county provision harmonized the North Carolina Constitution with federal law, including the Voting Rights Act and the U.S. Constitution’s one-person, one-vote requirement. Id. at 359, 562 S.E.2d at 382. On April 30, 2002, the Supreme Court of North Carolina held that the November 2001 redistricting statute was unconstitutional under the North Carolina Constitution and enjoined its use. The Supreme Court remanded the ease to the state trial court for remedial proceedings. Id. at 375-85, 562 S.E.2d at 392-98.

After remand, the General Assembly enacted another redistricting statute (“May 2002 redistricting statute”). In May 2002, the trial court reviewed the May 2002 redistricting statute, held that it did not comply with Stephenson I, and enjoined its use. See Stephenson II, 357 N.C. at 303-04, 582 S.E.2d at 249. Using its remedial equitable powers, the state trial court then developed interim House and Senate redistricting plans and ordered that, after pre-clearance, these interim plans (“trial court’s 2002 interim plans”) be used in the 2002 elections. Id. at 304, 582 S.E.2d at 249. The November 2002 House and Senate elections were conducted using the state trial court’s 2002 interim plans. Id., 582 S.E.2d at 249.

In approximately late March or early April 2003, Thomas Farr left my old law firm and joined another law firm in Raleigh. At the time, the State’s 2002 appeal in Stephenson II was pending in the Supreme Court of North Carolina. Thomas Farr had been lead counsel in Stephenson and retained that role after leaving my old firm. On July 16, 2003, the Supreme Court of North Carolina affirmed the state trial court’s May 2002 determination that the May 2002 redistricting statute violated the North Carolina Constitution and affirmed the trial court’s remedy. See id. at 313, 582 S.E.2d at 254.

Nowhere — except in the case caption in Stephenson I and Stephenson II — does the Supreme Court’s 2002 or 2003 decision mention Black. Moreover, nowhere in the case was there ever any allegation, evidence, or issue of criminal wrongdoing by anyone. Rather, the litigation is the type of civil, official-capacity redistricting litigation that takes place in numerous states following the decennial census. The focus of such litigation (including in Stephenson) is whether a given redistricting statute (i.e., a statute creating the boundaries of legislative districts) meets the governing legal criteria. If the statute meets the legal criteria, then the court upholds it. If the statute does not, then the statute is invalidated. The focus in such litigation is not on the official-capacity defendants and was not on any of them in Stephenson I or Stephenson II.

I left my old law firm and was appointed to the federal bench on February 9, 2004. As stated in my questionnaire submitted to the United States Senate Judiciary Committee as part of my nomination to be a United States District Judge, Stephenson was among the ten most significant cases that I personally handled while in private practice. See Def.’s Mot. to Supplement Mot. to Recuse, Ex. A, part III, p. 112. In describing the Stephenson litigation in the questionnaire, however, I did not mention any of the official-capacity defendants by name, including Black. See id., pp. 110-14. The focus of the Stephenson litigation concerned whether the redistricting statute complied with the North Carolina Constitution. See id.

In support of his argument under section 455(b)(2), Black cites In re Rodgers, 537 F.2d 1196 (4th Cir.1976) (per curiam). See Def.’s Mot. to Recuse 20. Rodgers involved six defendants, including a former Maryland governor. Rodgers, 537 F.2d at 1197. The indictment alleged that the defendants used unlawful means to secure the passage of a bill in the Maryland legislature concerning horse-racing tracks. Id. at 1197-98. After the bill passed, some of the defendants acquired an interest in Marlboro race track. The indictment alleged that getting the bill passed and acquiring the Marlboro race track were part of a corrupt scheme. See United States v. Mandel, 591 F.2d 1347, 1353-54 (4th Cir.1979), aff'd, 602 F.2d 653 (4th Cir.1979) (en banc) (per curiam). The defendants pleaded not guilty and were going to trial. Rodgers, 537 F.2d at 1197.

Before trial, defendants sought recusal of the trial judge under section 455(b)(2) because when the judge was in private practice, his law partner represented Pim-lico race track, which was lobbying to get the same bill passed. The judge’s former partner also prepared an offer for Pimlico race track to buy Marlboro race track. Id. After the bill passed, the owners of Marlboro rejected the Pimlico offer, and Marlboro was sold to a group which included some of the defendants. At trial, the defendants planned to argue as a defense that their conduct concerning the bill at issue in the indictment was no more culpable than that of Pimlico. Id. at 1198. The defendants intended to call the judge’s former law partner and his client as witnesses at the trial. Id. The testimony of both witnesses would be intended to show “that the conduct for which [defendants] have been indicted was no more culpable than the conduct of the client represented by the judge’s former law partner.” Id.

The Fourth Circuit held that “the actual case before the court consists of more than the charges brought by the government. It also includes the defense asserted by the accused. Here, this defense, in part at least, will consist of evidence of matters in which the judge’s former partner served as lawyer.” Id. Because of this anticipated defense to the charge, the Fourth Circuit held that the “former partner’s representation of [the race track] with respect to the [bill at issue in the indictment and the sale of the race track at issue in the indictment] and his preliminary work for the attempted purchase of [the race track] before the judge withdrew from the firm is a matter in controversy within the meaning of 28 U.S.C. § 455(b)(2).” Id. at 1198 (footnote omitted). Accordingly, the Fourth Circuit ordered recusal.

Black concedes th