Full opinion text
OPINION LECHNER, District Judge. Defendant Richard O. Bertoli (“Bertoli”) filed this motion pursuant to 28 U.S.C. § 455(a) (“section 455(a)”) and Rule 32 of the Federal Rules of Criminal Procedure (“Rule 32”) for recusal because he asserts there may be a question of my impartiality as a result of comments he previously made about me and because I may have received data about Bertoli while presiding over a prior case, United States v. Cannistraro, Crim. No. 87-193 (the “First Cannistraro Indictment”), involving co-defendant Richard S. Cannistraro (“Cannistraro”). Succinctly stated, Bertoli reacted to the sentence imposed in the First Cannistraro Indictment, a matter in which he was neither a party nor in any way involved, by forwarding to me a letter which a reasonable person would describe as unprovoked and nasty. Bertoli contends he mailed a letter of similar content to an Associate Justice of the Supreme Court with copies to other prominent people and several bar associations. Cannistraro also filed' a motion for my recusal pursuant to section 455(a). Cannistraro contends I may have become aware of certain data concerning the instant indictment (the “Superceding Indictment”), at the plea, detention and/or sentencing hearings during the First Cannistraro Indictment. Oral argument was held on 29 January 1990. For the reasons which follow, these motions are denied. Procedural History Although the Superceding Indictment concerns three defendants and only six counts, the threshold procedural motions and supporting filings to date fill almost three feet of shelf space. Briefly stated, the following is an overview of what has transpired and what brings the court to these motions concerning recusal. On 2 November 1989 counsel for Bertoli filed a motion for my recusal (the “Bertoli Recusal Motion”). The Government filed its opposition to the Bertoli Recusal Motion on 17 November 1989. On 22 November 1989 Bertoli filed a Reply Brief in support of the recusal motion (the “Bertoli Reply Brief”). Tracing the path of Bertoli, on 27 November 1989 Cannistraro filed, pro se, a motion, dated 24 November 1989, for my recusal (the “Cannistraro Recusal Motion”). The Government filed its opposition to the Cannistraro Recusal Motion on 5 December 1989. On 11 December 1989 Cannistraro submitted additional support for his recusal motion. On 14 December 1989 Bertoli filed a motion for discovery to obtain information in connection with his motion for recusal (the “Bertoli Recusal Discovery Motion”). The listing of categories of documents and data sought in the Bertoli Recusal Discovery Motion is extensive and is keyed to the Exhibits attached to the Goverment Opposition to Bertoli. However, in large part these Exhibits are either letters, affidavits or complaints drafted and filed by Bertoli himself. Again in trace of Bertoli, Cannistraro filed on 18 December 1989 a motion, dated 14 December 1989, for disclosure of information concerning his motion for recusal (the “Cannistraro Recusal Discovery Motion”). While the listing of the categories of requested documents is extensive, the documents, if they exist, are largely unrelated to the Cannistraro Recusal Motion. As well, on 18 December 1989, Cannistraro submitted his reply brief to the Government opposition to his motion for recusal. As noted, the Bertoli and Cannistraro Recusal Discovery Motions were denied in their entirety on 11 January 1990 by Letter-Opinion and Order of that date (the “11 January 1990 Letter-Opinion”). The next day counsel for Bertoli filed yet another motion on short notice for an order striking all Exhibits from the Government’s Opposition to Bertoli and for me to recuse myself on the Bertoli Recusal Motion and reassign the motion to another judge. In support of these two motions Bertoli submitted the affidavit of Sachs, dated 12 January 1990 (the “12 January 1990 Sachs Aff.”) and voluminous other documents. On 22 January 1990 the Government submitted a succinct letter in opposition to these motions. During the course of the above-described motion practice, the Government filed on 6 November 1989 a motion in this case for leave to take foreign depositions and for the issuance of a request for foreign judicial assistance for discovery in the Caymen Islands together with supporting documentation (the “Government’s Caymen Islands Discovery Motion”). On 14 November 1989 Sachs, counsel for Bertoli, suggested a delay of the decision on the Government’s Caymen Islands Discovery Motion until after the Bertoli Recusal Motion was decided. 14 November 1989 Letter from Sachs (the “14 November 1989 Sachs Letter”). On 17 November 1989 Bertoli, through Sachs, filed his opposition to the Government’s Caymen Islands Discovery Motion. On 22 November 1989 the Government filed its Reply. As described above, Bertoli then filed a series of additional motions which delayed argument on the Bertoli Recusal Motion. While all of this was pending and after Sachs requested a delay of the decision concerning the Government’s Caymen Island Discovery Motion, Bertoli applied for and obtained, on an ex parte basis from the Grand Court of the Caymen Islands, an injunction prohibiting the Government from applying to the courts of the Caymen Islands for the discovery described in the Government’s Caymen Island Discovery Motion. This ex parte injunction was applied for on 11 December 1989 and obtained on 4 January 1990. Sachs delivered a copy of these papers to the Government on 9 January 1990. Sachs, however, did not deliver a copy of these papers to the court when he delivered them to the Office of the United States Attorney. I was unaware of the application for or issuance of this injunction until I received a copy of the documentation from Assistant United States Attorney John M. Fietkiewicz via letter, dated 11 January 1990 (the “Fietkiewicz Letter”), advising me an order had been obtained on behalf of Bertoli, Eisenberg and Cannistraro, on an ex parte basis, restraining Attorney General Thorn-burg, United States Attorney Alito, Assistant United States Attorney Warren and Special Assistant United States Attorney Rosenfield “from making any application to the Grand Court of the Caymen Islands under the Evidence (Proceedings and other Jurisdictions) Order 1978, which denies the plaintiffs the right to challenge the application or any proceedings thereon in the Grand Court of the Caymen Islands.” Fietkiewicz Letter. Shortly thereafter, I received a letter, dated 11 January 1990, from Sachs (the “11 January 1990 Sachs Letter”) in response to the Fietkiewicz Letter. Sachs stated: I wanted the Court to understand that the reason that I had not provided the Court with a copy of that injunction was simply because the Court had indicated that it was not going to deal with any other matters until it had ruled on the pending recusal Motion. I do not want it to appear to the Court that we were in any way seeking to hide from the Court the action which we felt was essential to take in the Caymen Islands. To the contrary, we simply felt it inappropriate to file any further papers with Your Honor pending ruling on the motion for recusal. However, inasmuch as the Government has seen fit to informally provide Your Honor with the papers, I believe it is imperative to document the file by making them formally part of the record and I am therefore, this day, filing them with the Clerk’s Office. 11 January 1990 Sachs Letter. The comments in the above-quoted portion of the 11 January 1990 Sachs Letter are, to say the least, surprising. The concept of delaying decision on the Government Caymen Islands motion originated with Sachs. See 14 November 1989 Sachs Letter. With regard to Sachs’ comments about “seeking to hide from the court the action which we felt was essential to take in the Caymen Islands,” it is difficult to understand any other intent for his actions. This is especially so in light of the Government’s Caymen Island Discovery Motion which was filed more than a month prior to the ex parte application by Sachs and to which Sachs not only filed opposition on behalf of Bertoli but, as mentioned, requested a delay in handling until the recusal motion had been decided. It is likewise difficult to understand the meaning of the last sentence quoted from the 11 January 1990 Sachs Letter which stated that the “Government has seen fit to informally provide Your Honor with the papers” which Sachs filed and obtained on an ex parte basis. Because Sachs had decided not to provide the court with a copy of these papers, which appear to have some relevance to the Government’s Caymen Islands Discovery Motion, it is difficult to understand how or when I would have been apprised of this turn of events but for the Government forwarding a copy to me. The ex parte application and order are at best curious from a professional point of view. Indeed, the bona fides of the conduct of counsel in filing the Bertoli Recusal Motion, which are raised in the first instance by counsel to Bertoli in the 2 November 1989 Sachs Affidavit ¶ 5, in the Bertoli Reply Brief at 6, and again at oral argument on 29 January 1990 (see Transcript of Oral Argument on 29 January 1990 (the “29 Jan.1990 Tr. at —”) at 11), are curious as well. As if the volume of Bertoli’s submissions were not enough, his counsel submitted, just one business day before oral argument on the Bertoli motions, yet more paper. This time Bertoli submitted what his counsel contends were attachments to Bertoli’s letter to Justice Thurgood Marshall, dated 3 November 1987 (the “Marshall Letter”). The Marshall Letter is annexed as an Exhibit to the 2 November 1989 Sachs Affidavit, Exhibit B to the Bertoli Amended Brief and is mentioned within Exhibit A to the 12 January 1990 Sachs Affidavit. Why this additional paper — to which there are no less than three previous references in Bertoli submissions — is relevant or necessary is not explained. An interesting fact which bears note is the absence of an affidavit or certification from either Bertoli or Cannistraro. The absence of such affidavit or certification is notable not only concerning their contention of impartiality but as well concerning even basic facts — such as the Marshall Letter, and the other conduct of Bertoli which is now’ before the court. There is nothing to establish the Marshall Letter and attachments, if any, were in fact posted, as alleged. Nor is there a denial of other conduct on the part of Bertoli, as has been unquestionably established by the Government. On 25 January 1990 Michael B. Pollack (“Pollack”), counsel for Cannistraro, filed a motion (the “Pollack Motion”) on short notice which is duplicative of prior Cannistraro motions in that it requested an evidentiary hearing with regard to the recusal motion and for a reassignment of the Cannistraro Recusal Motion to another judge. This is the first appearance by Pollack on behalf of Cannistraro. Pollack argued the Cannistraro motions. The Pollack Motion makes certain allegations and characterizations which will be addressed later in this opinion. Facts as to Bertoli On 29 September 1989 a grand jury returned the Superceding Indictment, which contains six counts, against Bertoli and co-defendants Cannistraro and Leo M. Eisenberg (“Eisenberg”). The Superceding Indictment charges the defendants with racketeering, conspiracy and obstruction of justice. The Superceding Indictment was unsealed on 5 October 1989. As previously noted, Bertoli thereafter wrote a letter to me requesting my recusal “without formal motion by [his] attorney.” Bertoli Recusal Letter. This was followed by the Bertoli Recusal Motion. The Bertoli Amended Brief in support of his motion contends that my “impartiality might reasonably be questioned as a result of the formal complaints previously registered by Mr. Bertoli.” Bertoli Amended Brief at 3. The 3 November 1989 Bertoli Letter Brief contends I presided over the First Cannistraro Indictment in which Bertoli contends (i) I read a presentence report concerning Cannistraro and (ii) I “heard non-evidentiary representations about the alleged criminal responsibility of other defendants,” id. at 3, presumably including Bertoli. The purported basis for recusal arises from Bertoli’s reaction to the sentencing of Cannistraro on the First Cannistraro Indictment. In May of 1987 Cannistraro was indicted on charges of security fraud and obstruction of justice. It is contended Bertoli “assiduously followed the criminal proceedings against Cannistraro” in the First Cannistraro Indictment. Bertoli Amended Brief at 1. In that indictment Cannistraro pleaded guilty to all counts without a plea agreement and was sentenced on 2 November 1987 to eight years imprisonment (his total exposure was fifty years). Bertoli contends he attended the Cannistraro sentencing. Apparently, Bertoli thought “the sentence was incredibly harsh.” 29 Jan. 1990 Tr. at 27. In addition, Bertoli claims he reviewed transcripts of the Cannistraro detention hearings held on 21 and 24 September 1987. Bertoli Amended Brief at 1. On 2 November 1987 Bertoli wrote to chambers and expressed his displeasure with handing the First Cannistraro Indictment and called for my resignation. Bertoli Amended Brief, Exhibit A. The letter contained a warning that if I did not resign within thirty days, Bertoli would “refer this matter to the Judiciary Committee and bar association for action.” Id. In the Marshall Letter, dated 3 November 1987, Bertoli referred to me in unflattering terms, requested a "eview of the sentencing of Cannistraro on the First Cannistraro Indictment and demanded that I receive a reprimand and be impeached. Bertoli Amended Brief, Exhibit B. It is contended a copy of the Marshall Letter was forwarded to the Ethics Committees for the American Bar Association, the New Jersey Bar Association, Senator Edward Kennedy and then Congressman Peter Rodino. Bertoli Amended Brief at 2. I did not respond to the communications from Bertoli. The Government submitted a transcript and the actual audio tape of a telephone conversation between Cannistraro and Bertoli (Government Opposition to Bertoli at 6 and Exhibit 1) which occurred in December 1987 during Cannistraro’s incarceration on the First Indictment. This conversation concerned, among other things, the Marshall Letter. The conversation, together with the Bertoli Recusal Letter and the Marshall Letter, is revealing. Bertoli and Cannistraro discussed the Marshall Letter in December 1987 and Bertoli expressed an interest in the effect of the letter on me: Bertoli: ... my letter complaint on Lechner is in the mail today. Cannistraro: Okay. Bertoli: Ahh ... the second the second paragraph I’ll use (u/i). The second paragraph says Mr. [sic] Lechner has displayed a lack of judicial temperament and truly needs psychiatric help and analysis. He should love me for that. Government Opposition to Bertoli at 6 and Exhibit A. The matter rested for two years without any further comment by Bertoli until he was named in the Superceding Indictment. A reasonable person could reasonably conclude the comments exchanged between Bertoli and Cannistraro to which reference is made above are part of a plan by Bertoli to attempt to ensure I would not preside over any future criminal matter in which he was involved. At least by the time of the First Cannistraro Indictment, it appears Bertoli was aware that he was a primary subject of a grand jury investigation which also concerned Eisenberg. It appears this is not the first occasion Bertoli, prior to being indicted, made unprovoked, exceptional allegations against federal judges with whom he had no prior dealing. From January 1976 through the Spring of 1977, a federal grand jury in New Jersey was investigating, among other matters, Bertoli’s role in the collapse of his New York City brokerage firm, Executive Securities Corp. (“Executive Securities”). Bertoli was aware of the then pending grand jury investigation of Executive Securities, his status as a target of the investigation and the probability he would be a criminal defendant. On 26 January 1976 Bertoli forwarded a letter to then United States Attorney Jonathan Goldstein. In this letter Bertoli referred to a grand jury conducting a criminal fraud investigation concerning Executive Securities as well as himself and advanced certain complaints and threatened legal action “against all individuals involved.” Government Opposition to Bertoli, Exhibit 3. Shortly thereafter, in or about the first week of February 1976, Bertoli filed a verified complaint against United States Attorney Goldstein and his office (the “Goldstein Lawsuit”). Government Opposition to Bertoli, Exhibit 7, Verified Complaint. Bertoli contended in the Goldstein Lawsuit that on or about 22 January 1976 United States Attorney Goldstein and his office developed a plan of harassment concerning Bertoli. Id., Verified Complaint at ¶ 5. He also referred to the then pending Securities and Exchange Commission (“SEC”) hearing concerning Executive Securities and referred to the SEC hearing as a “ ‘kangaroo court’ administrative hearing.” Bertoli also attacked the administrative law judge, the Honorable Ralph Tracy, to whom the matter had been assigned. Id., Verified Complaint at ¶¶ 8-16. Bertoli, in the Gold-stein Lawsuit, made specific reference to the SEC attorney handling the matter at the hearing. Bertoli quoted the SEC attorney as stating “that he was close to Judge Lacey, Judge Stern and U.S. Attorney Goldstein and that he [the SEC attorney] would use them to ‘get [Bertoli]’ if [he] did not stop making a fool out of [the SEC attorney] during the [SEC] administrative hearing.” Id., Verified Complaint at ¶ 8. In the Goldstein Lawsuit, Bertoli demanded that United States Attorney Gold-stein and his office be enjoined from violating Bertoli’s rights, that they be disqualified from taking part in the SEC investigation concerning him and Executive Securities and that the grand jury which was investigating both him and Executive Securities be discharged. On 17 February 1976, on the heels of the Goldstein Lawsuit, Bertoli filed yet another verified complaint, this time against the foreman of the grand jury and the grand jury investigating Executive Securities (the “Grand Jury Lawsuit”). Government Opposition to Bertoli, Exhibit 8, Verified Complaint. In the Grand Jury Lawsuit Bertoli made far ranging allegations concerning the SEC hearing with regard to Executive Securities and specifically alleged the SEC hearing was used as a cover-up to discredit him. Id., Verified Complaint at 11 29. Bertoli also complained about the United States Attorney and his office and stated that the “Foreman [of the grand jury] must insist upon the disqualification of any prosecutor where there is any appearance of bias, prejudice or personal interest which could violate the due process rights of plaintiff.” Id., Verified Complaint at ¶ 59. Bertoli demanded the issuance of an injunction against the foreman of the grand jury and the grand jury as a whole to prevent them from violating his rights and various federal laws, rules and regulations. Bertoli also demanded the disqualification of the foreman and the grand jury as a whole and the discharge of the grand jury with regard to the investigation of Executive Securities and Bertoli. On 23 April 1977 Bertoli wrote a letter to then United States Attorney General Griffin Bell, copying President Carter, other Government officials and the American and New Jersey Bar Associations. The letter “demand[ed] that United States District Court Judges Frederick Lacey and Lawrence [presumably Herbert] Stern be indicted.” (the “Lacey/Stern Letter”). Government Opposition to Bertoli, Exhibit 4. Bertoli advanced accusations against Judges Lacey and Stern which were unrelated to Bertoli in any way. Placed among the 26 January 1976 letter to United States Attorney Goldstein threatening legal action, the Goldstein Lawsuit, the Grand Jury Lawsuit and the Lacey/Stern Letter, Bertoli sought the recusal of a judge in the matter in which the SEC filed an administrative proceeding against him and another individual in connection with the demise of Executive Securities. The matter was assigned to Administrative Law Judge Ralph Tracy who presided over an evidentiary hearing. Bertoli demanded Judge Tracy disqualify himself asserting that the “[g]rounds for said disqualification are based upon the bias and prejudice of said Judge.” Government Opposition to Bertoli, Exhibit 5, Bertoli Affidavit, sworn to 7 April 1976, at ¶ 2. Bertoli stated: “In the event of your failure to respond with [sic] ten days, I will have no choice but to move in the United States District Court for your removal.” Government Opposition to Bertoli, Exhibit 5; 7 April 1976 Letter to Judge Tracy (the “Tracy Removal Demand”). Apparently the motion was filed because Judge Tracy ruled against Bertoli on certain matters; the motion was denied. Approximately two months after the Lacy/Stern Letter, Bertoli was indicted by a federal grand jury on seventy-seven counts relating to a securities fraud scheme. The indictment, however, was not assigned to either Judge Lacey or Judge Stern. The matter was assigned to another judge; Bertoli pled nolo contendere to all charges. Facts as to Cannistraro Although some facts with regard to Cannistraro have previously been set forth in this opinion, it is necessary to set forth not only facts bearing on the claims of Cannistraro in this matter, but, as well, with regard to Cannistraro in connection with the First Cannistraro Indictment. On 28 May 1987 Cannistraro was indicted in the First Cannistraro Indictment. This nine count indictment charged him with conspiracy to commit securities fraud, the creation and use of false nominee accounts in connection with the purchase and sale of securities, the creation and distribution of false misleading research reports, the interstate transportation of money obtained by fraud, mail fraud and obstruction of a grand jury investigation. At his arraignment on 12 June 1987, Cannistraro pleaded not guilty to all nine counts. However, on 21 September 1987, just before trial was scheduled to commence, Cannistraro entered a plea of guilty to all counts without benefit of a plea agreement with the Government. On the day of his guilty plea, Cannistraro testified under oath at a hearing held pursuant to Rule 11 of the Federal Rules of Criminal Procedure. In addition to responding to questions from the Government, Cannistraro made a voluntary statement at the Rule 11 hearing. After his plea of guilty was accepted, a detention hearing was held. As a result of the detention hearing, the conditions of bail for Cannistraro were modified and tightened. At a 2 November 1987 sentencing hearing, Cannistraro was sentenced to a total of eight years in prison followed by five years probation. He was fined $330,000 and ordered to pay restitution in the amount of $394,947.00. A trustee was appointed to disburse the money to the victims of his fraud. Cannistraro filed his Notice of Appeal concerning sentencing and other matters on 13 November 1987. On 6 April 1989 the Third Circuit rejected all of his challenges on appeal and affirmed with the exception of a technical challenge to the sentence which he contended was based upon statistics compiled by the Probation Department. The sentence was vacated and the matter remanded for resentencing. Cannistraro, 871 F.2d at 1217. Three weeks after the Circuit remanded the matter for resentencing and more than one and one-half years after the Rule 11 proceeding, the detention hearing and the sentencing, Cannistraro filed, on 24 April May 1989, a motion to withdraw his plea of guilty to each of the nine counts of the First Cannistraro Indictment. Cannistraro alleged ineffective assistance of counsel and argued there was an inadequate factual basis to accept his guilty plea. The attack on the plea continues up until this time and is running a parallel track with this, the Superceding Indictment. As explained earlier, Cannistraro filed his recusal motion in this case on 27 November 1989 and contended generally that I should recuse myself because of my involvement in the First Cannistraro Indictment. The first prong of the Pollock Motion contends I had ex parte communications with Barry Goldsmith (“Goldsmith”), Assistant Chief Litigation Counsel for the SEC during the pendency of the First Cannistraro Indictment. The Pollack Motion also contends I have personal knowledge of disputed evidentiary facts in connection with the recusal motion. The Pollack Motion attempts to bootstrap the second prong by indicating I shall be a necessary witness for the recusal motion because of communications with Goldsmith. The communications with Goldsmith concerned exclusively the appointment of a trustee in connection with the restitution assessed against Cannistraro at sentencing in the First Cannistraro Indictment. The letter to which Cannistraro refers and upon which he bases his allegations of so-called ex parte communications, is a letter, dated II February 1988, from Goldsmith (the “Goldsmith Letter”). The Goldsmith Letter does not make reference to anything concerning Cannistraro other than the appointment of the trustee for the restitution. There is a stark contrast between the Cannistraro Recusal Motion and Cannistraro Brief and the Pollack Motion. For example, the Cannistraro Brief states: Judge Lechner MAY have had numerous ex parte communications DURING THE POST-CONVICTION PROCESS of the [First Cannistraro Indictment] with SEC lawyers and investigators who are plaintiffs in a pending civil action against [Cannistraro] on the same charges as the instant case. Cannistraro Brief at 4, ¶ 4 (emphasis added). The Pollack Motion requests an order: 1. Setting a date for an evidentiary hearing on defendant Cannistraro’s recusal motion and the allegation in connection with that motion that ex parte communications occurred between the Honorable Alfred J. Lechner and Barry Goldsmith, Esq., Ass’t Chief Litigation Counsel, S.E.C. DURING THE PENDENCY of United States v. Cannistraro, Criminal No. 87-193; and 2. Disqualifying Judge Lechner under 28 U.S.C. [§§] 455(a) and 455(b)(1) from deciding defendant Cannistraro’s Motion for Recusal because Judge Lechner has PERSONAL KNOWLEDGE of a disputed evidentiary fact relevant to the proceeding and WILL be a witness at the foregoing evidentiary hearing. Pollack Motion at 1-2 (emphasis added). The reference by the Pollack Motion to ex parte communications with the Assistant Chief Litigation Counsel of the SEC during the “pendency” of the First Cannistraro Indictment is, at best, a curious reference. Cannistraro was sentenced on the First Cannistraro Indictment on 2 November 1987. Cannistraro filed his Notice of Appeal of the Judgment and Commitment Order on 13 November 1987; it was docketed on 7 December 1987. Accordingly, it appears that jurisdiction with regard to Cannistraro was then vested in the Court of Appeals. The First Cannistraro Indictment was then no longer pending in the district court. The Goldsmith Letter was dated 11 February 1988 and dealt exclusively with the appointment of a trustee concerning the restitution ordered from Cannistraro in connection with the First Cannistraro Indictment. Succinctly stated, there was neither an ex parte communication nor action taken by me during the “pendency” of the First Cannistraro Indictment, as stated in the Pollack Motion. With regard to the second prong of the Pollack Motion, the assertion that I have “personal knowledge of a disputed evidentiary fact relevant to the proceeding” (Pollack Motion at 2, ¶ 2), there is simply nothing to justify such a contention. There is no “disputed evidentiary fact related to this proceeding.” The only basis for the assertion by Cannistraro that I “may have had numerous ex parte communications during the post-conviction process of [the First Cannistraro Indictment]”, Cannistraro Brief at 4, ¶ 4 (emphasis added), is the Goldsmith Letter. The extent of my discussion with Goldsmith was whether the Trustee to be appointed would be a New Jersey attorney or a New York attorney. The Cannistraro Recusal Discovery Motion which included a request for a hearing was previously denied. The unsupported Pollack Motion, which is nothing more than a restatement of the Cannistraro Recusal Motion, albeit with a questionable overtone, is also denied. The Cannistraro Recusal Motion also suggests I should recuse myself because of my exposure to certain data at the Rule 11 hearing, detention hearing and sentencing hearing in connection with the First Cannistraro Indictment. Discussion The two grounds upon which Bertoli, and apparently Cannistraro, base their motions for recusal are distinct and are analyzed separately. Rule 32 The claim that I reviewed a presentence report in another case two years ago warrants recusal is based on Federal Rule of criminal Procedure 32(c)(1) which states, in pertinent part: The [presentence] report shall not be submitted to the court or its contents disclosed to anyone unless the defendant has pleaded • guilty ..., except that a judge may, with the written consent of the defendant, inspect a presentence report at any time. Id. The Supreme Court has commented on this rule and stated: [T]he rule must not be taken lightly. Presentence reports are documents which the rule does not make available to the defendant as a matter of right. There are no formal limitations on their contents, and they may rest on hearsay and contain information bearing no relation whatever to the crime with which the defendant is charged. To permit the ex parte introduction of this sort of material to the judge who will pronounce the defendant’s guilt or innocence or who will preside over a jury trial would seriously contravene the rule’s purpose of preventing possible prejudice from premature submission of the presentence report. No trial judge, therefore, should examine the report while the jury is deliberating since he may be called upon to give further instructions or answer inquiries from the jury, in which event there would be the possibility of prejudice which Rule 32 intended to avoid. Although the judge may have that information at his disposal in order to give a defendant a sentence suited to his particular character and potential for rehabilitation, there is no reason for him to see the document until the occasion to sentence arises, and under the rule he must not do so. Gregg v. United States, 394 U.S. 489, 492, 89 S.Ct. 1134, 1136, 22 L.Ed.2d 442 (1969). The Gregg court had before it a situation where a presentence report about a defendant may have been viewed by the trial judge before the trial was completed. The case sub judice presents the different factual setting of a presentence report concerning Cannistraro and his First Indictment two years before the present matter. Rule 32(c)(1) does not require recusal when a judge has reviewed a defendant’s presentence report in another proceeding. See United States v. Clark, 605 F.2d 939, 941 (5th Cir.1979) (reading a presentence report after guilty plea later withdrawn not basis for recusal when presiding over jury trial). See also United States v. Lyon, 588 F.2d 581, 583 (8th Cir.1978), cert. denied, 441 U.S. 910, 99 S.Ct. 2005, 60 L.Ed.2d 381 (1979); United States v. Montecalvo, 545 F.2d 684, 685 (9th Cir.1976), cert. denied, 431 U.S. 918, 97 S.Ct. 2184, 53 L.Ed.2d 229 (1977); United States v. Bourque, 541 F.2d 290, 296 (1st Cir.1976). The Clark court held that a review of a presentence report by a trial judge was not basis for disqualification “where the report had properly come to his attention during the performance of his judicial duties.” 605 F.2d at 941. The Third Circuit reviewing a trial judge who had read a presentence report before trying a defendant a second time noted that application of “the Gregg doctrine ... is not explicitly mandated.” United States v. Small, 472 F.2d 818, 821 (3d Cir.1972). Small suggests a presentencing review of the presentence report by a trial judge very well might be warranted in some circumstances: Important to an application of the Gregg principles in any of these situations would be the Supreme Court’s guideline in Fallen v. United States, 378 U.S. 139, 142, 84 S.Ct. 1689, 1691, 12 L.Ed.2d 760 (1964), that: the Rules are not, and were not intended to be, a rigid code to have an inflexible meaning irrespective of the circumstances. Rule 2 begins with the admonition that “[tjhese rules are intended to provide for the just determination of every criminal proceeding. They shall be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay.” In Gregg, the Court stated that “there is no reason” for a judge to see a presentence report until sentencing occurs. Gregg v. United States, 394 U.S. at 492, 89 S.Ct. 1134 [, at 1136]. As the present case, and the other examples above, demonstrate, however, circumstances often may arise when the judge views a defendant’s presentence report for legitimate purposes before trying him or presiding over his trial. Id. at 821-22 (emphasis added). The Small court referred to a balancing test. It thus becomes necessary to balance Rule 32’s objective of preventing even the possibility of prejudice with the administrative convenience, simplicity of procedure and prevention of delay implicit in having a single judge preside over a defendant’s court appearances. Id. at 822. Since Small, courts have had opportunity to consider these questions. A thorough analysis of these issues was presented in United States v. Frezzo, 563 F.Supp. 592 (E.D.Pa.1983), aff'd mem., 734 F.2d 8 (3d Cir.), cert. denied, 469 U.S. 979, 105 S.Ct. 380, 83 L.Ed.2d 315 (1984). In that case the defendant moved to have the judge recuse himself from presiding over a criminal jury trial for conspiracy and receiving stolen property because he had read a presentence report following defendant’s conviction for violation of the Federal Water Pollution Act. Id. at 593. Defendant also contended the judge’s exposure to information about him presented by the Government in a hearing to reduce sentence created an appearance of bias. Id. The Frezzo court stated that the recusal motion was based on Gregg principles, not on Section 455(a). Frezzo’s review of the case law on this issue, some of which has already been cited, merits repeating. The Court’s decision not to recuse itself in the present case is supported by the holdings, and the reasoning, of virtually every case which has considered the question of recusal in similar circumstances. At least two courts have stated flatly that information contained in presentence reports properly brought to a judge’s attention during the performance of his duties is not a basis for disqualifying the judge. United States v. Clark, 605 F.2d 939, 940-41 (5th Cir.1979); United States v. Montecalvo, 545 F.2d 684, 685 (9th Cir.1976), cert. denied, 431 U.S. 918, 97 S.Ct. 2184, 53 L.Ed.2d 229 (1977). As the Court in Clark stated, quoting Smith v. United States, 360 F.2d 590, 592 (5th Cir.1966), the suggestion that disqualification is proper because a judge has viewed a presentence report is “highly untenable in light of the decisions that a trial judge, who is familiar with the defendant’s background by reason of having tried him in previous cases, is not thereby disqualified to try the same defendant in subsequent cases.” 605 F.2d at 941. Courts have also explicitly held that where a judge is faced with a trial of a defendant whose presentence report he has read in a prior case refusal to recuse is proper____ A number of eases have also considered further proceedings in the same trial after a presentence report has been reviewed, without violation of Fed.R.Crim.P. 32, and have concluded that recusal was not required____ Finally, several cases, while not specifically discussing the problem of presentence reports, have held that prior judicial exposure to a defendant does not constitute grounds for recusal. Id. at 595-96 (citations omitted). While noting that it “may be more than Small requires” the Frezzo court applied the balancing test. Id. at 594. The test weighs the “possibility of prejudice with the administrative convenience, simplicity of procedure and prevention of delay implicit in having a single judge preside over a defendant’s court appearances.” Small, 472 F.2d at 822. There is no possibility of prejudice in the case sub judice. Bertoli was not a defendant in the First Cannistraro Indictment. Neither Bertoli nor Cannistraro has indicated action or comment to even suggest prejudice to one or the other of them. Bertoli contends: “Your Honor reached the conclusion that ‘Liquidation Control and Toxic Waste were used ... to defraud, to manipulate, to swindle. There is no way around it.’ (Sentencing Hearing, United States v. Cannistraro, 11/2/87 p. 48). Your Honor could only have reached that conclusion based on the presentence report, since Mr. Cannistraro’s conviction was based on a plea of guilty.” Bertoli Short Amendment at 2. The Government points out that the same conclusions were ascertainable from Cannistraro’s admissions. These observations do not prejudice Bertoli; nothing is said about him or his conduct. Only Cannistraro and his dealings with the corporations are mentioned. Even if there were some slight prejudice as a residue from the First Cannistraro Indictment, courts have held that the determination of guilt by a jury mitigates the possibility of such prejudice. Frezzo, 563 F.Supp. at 595; United States v. Ferretti, 508 F.Supp. 913, 916 (E.D.Pa.1981). Against this minimal chance of any prejudice to Bertoli or Cannistraro is the substantial burden such a recusal would place on the court in this instance and in the future. As the Frezzo court noted: [Administrative burdens- are raised by the transfer itself, burdens which would be substantial for the court system as a whole if recusal were held to be justified on the basis of the allegations the defendant has made here. Severe burdens would be placed on the judicial system if a judge had to withdraw from a case whenever he or she had presided over proceedings in the same or a related case that provided nonevidentiary information about a defendant____ The reasoning supporting recusal in the present case could extend to require recusal where a judge heard evidence later suppressed, or presided over bail or probation revocation hearings. Such reassignment would impose unnecessary burdens, and could also, since recusal is often at the defendant’s request, subvert the purpose of this Court’s system of random assignment of judges to cases. 563 F.Supp. at 595 (citations omitted). Given that neither a showing of prejudice nor even the appearance of prejudice has been made concerning Bertoli or Cannistraro, Rule 32(c)(1) does not require recusal. Section 455(a) The First Cannistraro Indictment Section 455(a) states “[a]ny justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a) (emphasis added). To ensure the impartiality of the judiciary section 455(a) and its companion section 455(b) are strict and do not require a motion by the parties to take effect. A judge must determine, sua sponte, whether any of the grounds for disqualification enumerated in that provision are present in a case. If any ground specified in section 455(b) is present, he must disqualify himself immediately. If such specific grounds are not present, but if, for any reason, “his impartiality might reasonably be questioned[,]” he must either disqualify himself or seek a waiver after “full disclosure on the record.” ... All this must be done, if necessary, on his own motion. As the Seventh Circuit has noted, section 455 “impose[s] no duty on the parties to seek disqualification nor [does it] contain any time limits within disqualification must be sought.” United States v. Schreiber, 599 F.2d 534, 539 (3d Cir.) (citations omitted), cert. denied, 444 U.S. 843, 100 S.Ct. 86, 62 L.Ed.2d 56 (1979). The test when considering a recusal motion is whether a reasonable person aware of all the circumstances would have doubts concerning the impartiality of the particular judge. Martorano, 866 F.2d at 67; Dalfonso, 707 F.2d at 760. The existence of actual prejudice is not required. United States v. Sciarra, 851 F.2d 621, 635 (3d Cir. 1988). However, the basis for recusal must arise from the incidents or activities outside of the judges’ trial role; the Third Circuit has described this as extrajudicial bias. “Extrajudicial bias” refers to a bias that is not derived from the evidence or conduct of the parties that the judge observes in the course of the proceedings. Johnson v. Trueblood, 629 F.2d 287, 291 (3d Cir. 1980) (citations omitted), cert. denied, 450 U.S. 999, 101 S.Ct. 1704, 68 L.Ed.2d 200 (1981). In United States v. Sinclair, 424 F.Supp. 715 (D.Del.1976), the judge denied a motion pursuant to Section 144 to disqualify himself based upon the allegations of defendant that the judge had a personal prejudice against him and bias in favor of the United States because the judge previously sentenced him, because the judge scheduled the trial promptly within the Speedy Trial Act and because of pretrial publicity against the defendant. The trial court noted that: Personal bias is defined as an attitude arising from extrajudicial sources that results “in an opinion on the merits on some basis other than what the judge learned from his participation in the case,” ... or results in an “attitude toward [the] petitioner that is significantly different from and more particularized than the normal, general feelings of society at large against convicted wrongdoers.” ... On the other hand, it is equally clear that a claim of bias or prejudice based on judicial knowledge gained from prior hearings or other cases is not sufficient grounds for disqualification of a judge whether it be from prior judicial exposure to the defendant or prior judicial rulings adverse to the defendant in the same or different cases. Id. at 718 (citations omitted). As the Sinclair court observed: “ ‘the bare allegation that other inflammatory information had come to the judge’s attention is far too general to be the basis for disqualification.’ ” Id. at 719 (quoting United States v. Roca-Alvarez, 451 F.2d 843, 848 (5th Cir.1971), reversed on reh’g on other grounds, 474 F.2d 1274 (5th Cir. 1973)). In the matter entitled In re Martin-Trigona, 573 F.Supp. 1237 (D.Conn.1983), a motion for disqualification which was brought pursuant to 28 U.S.C. §§ 144 and 455 was denied. It appears that the defendant, Martin-Trigona, is an individual known for extensive and vexatious litigation in the federal courts. As found by the district judge, he demonstrated a pattern of demonstrating admiration or respect initially for the judge to whom his cases were assigned, but that admiration or respect dissipated with the first unfavorable ruling. Thereafter, Martin-Trigona would file suit against the judge, the judge’s family, his attorneys and anyone else within range. 573 F.Supp. at 1240. In In re Martin-Tri gona, after initially praising the district judge, Martin-Trigona sought his recusal because of adverse rulings. The judge considered the motion under both section 144 and section 455. He noted: “Construing the motion to recuse as a motion filed pursuant to 28 U.S.C. § 455, the court finds that in the totality of the circumstances, and in the exercise of the court’s discretion under that statute, recusal is not appropriate in this instance.” Id. at 1242. The judge noted: [I]t is clear that a judge is not disqualified under 28 U.S.C. § 455 (or under 28 U.S.C. § 144 for that matter) merely because a litigant sues or threatens to sue him____ Neither is a litigant’s intemperate and scurrilous attack on a presiding judge a valid ground for recusal. ... There is an obligation on the part of a judge to decline to recuse himself for a “relatively trivial reason.” ... “It is a judge’s duty to refuse to sit when he is disqualified but it is equally his duty to sit where there is no valid reason for recusa[1].” [] The right to an impartial judge cannot be advanced so broadly as to permit the parties to engage in “judge-shopping” under the guise of a motion to recuse, ... or to permit a litigant to disqualify without reasonable grounds a succession of judges for the apparent purpose of impeding the administration of justice. 28 U.S.C. § 455 as amended establishes an objective standard for recusal, known as the “appearance of justice” rule. ... The appropriate test for disqualification under § 455(a) is whether a reasonable person with knowledge of all the facts would be led to the conclusion that the judge’s impartiality might reasonably be questioned. 573 F.Supp. at 1243 (footnote and citations omitted; emphasis in original). The allegations in this case, however, are simply too tenuous and incredible to create even the appearance of impropriety with regard to either Bertoli or Cannistraro. A reasonable person — the average person on the street with knowledge of all the facts and circumstances — would not question my ability to sit impartially on this case. Id. at 1237. Bertoli argues that viewing the presentence report and hearing allegations of criminal conduct by Bertoli during the First Cannistraro Indictment requires recusal under 455(a). As previously noted, even in cases where the same defendant’s presentenee report had been viewed by a judge, recusal on grounds of prejudice was not required. Clark, 605 F.2d at 941; Frezzo, 563 F.Supp. at 594-95. This applies a fortiori concerning the Bertoli Recusal Motion; the presentence report dealt with Cannistraro’s First Indictment. Bertoli also seeks my recusal because I heard allegations by Cannistraro’s attorney linking Bertoli to illegal activities. 3 November 1989 Bertoli Letter Brief at 1. The Transcript of Proceedings in United States v. Cannistraro, 2 November 1987 (“Nov. 87 Tr. at -”) reveals that Cannistraro’s attorney asserted that the U.S. Attorney’s office had “chased” Bertoli for years. Id. at 17, 19. At the sentencing hearing, Cannistraro’s attorney attempted to put the Governments’ motives in doubt and to cast the blame for his client’s actions elsewhere. Cannistraro’s attorney, David O’Connor, Esq., stated that the Government was attempting to reach Bertoli through Cannistraro. Id. at 17. O’Connor made no outrageous or derogatory statements about Bertoli. He never stated Bertoli was guilty of anything. In fact, he described Bertoli as “charming” and “very pleasant.” Id. at 19. Even if O’Connor or the Government made derogatory statements about Bertoli, there would not be grounds for recusal. Section 455(a) motions “must rest on the kind of objective facts that a reasonable person would use to evaluate whether an appearance of impropriety had been created, not on ‘possibilities’ and unsubstantiated allegations.” Martorano, 866 F.2d at 68. In United States v. Cowden, 545 F.2d 257 (1st Cir.1976), cert. denied, 430 U.S. 909, 97 S.Ct. 1181, 51 L.Ed.2d 585 (1977), the trial judge had denied a recusal motion based on the fact he had presided over the jury trials of four others indicted with the defendant. Cowden argued the judge might “appear to have prejudged the issues presented in his case.” Id. at 265. The First Circuit rejected this claim. Insofar as the judge’s presiding over the prior trials of Cowden’s codefendants may have resulted in his learning about facts damaging to Cowden, the situation is not much different from when a presiding judge learns about evidence, later excluded, damaging to a defendant at a voir dire or bench conference in the same proceeding. While judges attempt to shield themselves from needless exposure to matters outside the record, they are necessarily exposed to them in the course of ruling on the admission of evidence; and the judicial system could not function if judges could deal but once in their lifetime with a given defendant, or had to withdraw from a case whenever they had presided in a related or companion case or in a separate trial in the same case. Id. at 265-66. In Cowden the trial judge had presided over multiple jury trials, not a plea and sentencing hearing. The statements by the First Circuit apply with greater force in this case. Anything said about Bertoli or Cannistraro and heard in the course of sentencing cannot be considered “extrajudicial” in the sense that I learned or had knowledge of it from sources outside my judicial duties. Sciarra, 851 F.2d at 634-35 n. 8. I made no reference to Bertoli at any time during the proceedings in the First Cannistraro Indictment. There is nothing to suggest I may have formed an unfavorable impression or any impression regarding Bertoli. All of my comments focussed on Cannistraro. Nov. 87 Tr. at 46-50. No mention is made of Bertoli or indeed any associates of Cannistraro. Considering the mild form of any allegations about Bertoli, the two year lapse of time between the sentencing in the First Cannistraro Indictment, the allegation and this case, the nature and aim of an attorney’s comments during sentencing and the fact that I did not even acknowledge those arguments which attempted to shift blame to the Government or Bertoli, it would be unreasonable to impute partiality or its appearance to hearing such comments. Bertoli’s Allegations Bertoli has made a number of disparaging statements all in connection with the First Cannistraro Indictment and the sentencing of Cannistraro. The statements include the following: Your actions as a Judge in that matter [the First Cannistraro Indictment] is [sic] an absolute disgrace to the robes you wear. The opposition to your nomination as a Judge was well founded in that your Judicial Temperament and unfair mannerism requires you in fairness to resign from the bench. Bertoli Amended Brief, Exhibit A. This letter is a formal complaint and request to reprimand and take such other action including impeachment of Alfred J. Lechner, Jr., who is a disgrace to the Federal court and all members of the Judiciary____ Mr. Lechner has displayed a lack of judicial temperament and truly needs psychiatric help and analysis. Bertoli Amended Brief, Exhibit B. It is apparent to me that he has been used as a willing tool of the administration to wreck [sic] havoc upon anyone who attempts to criticize the poor administration of the “Super Fund.” Id. I have never responded to the allegations of Bertoli. The Bertoli Recusal Motion represents the first instance in which Bertoli’s accusations were formally raised in any forum. Indeed, those statements were not the subject of any comment by anyone before this opinion. The Third Circuit has indicated that criticism directed toward a judge does not automatically provide grounds for recusal. In Martorano a judge had been attacked in the press for favoring an attorney and Martorano claimed that as a client of the attorney he had been given a harsher sentence so that the judge could refute the charges. He also alleged that because of allegations made by a codefendant, the judge harbored a prejudice against him. The Martorano court noted that “[b]y training and inclination, judges meet media criticism of their actions with robust insensitivity.” 866 F.2d at 69. The Third Circuit rejected the notion that mere allegations, even in the press or by a close associate of defendant would affect a judge’s impartiality. The Circuit quoted the district court with approval stating: only “speculation” would lead a reasonable person to conclude, absent any evidence, that [the trial judge] had reimposed the same sentence not for the factors that underlay his original choice, but to rehabilitate the damage allegedly done to his reputation by the newspaper stories. ... Again, since the test for recusal is a reasonable person one, a movant must supply some objective facts that support his position, not mere speculation. Id. at 68 (emphasis added). Bertoli has not come forward with objective facts to support his position. He has made accusations but demonstrated no word or action by me to indicate the threat or appearance of partiality. It is significant that the Bertoli Recusal Motion is filed pursuant to 28 U.S.C. § 455(a). The motion for recusal or disqualification was not filed pursuant to 28 U.S.C. § 144. Section 144 states: 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 the adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding. The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may only file one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith. Id. As noted above, section 144 requires not only an affidavit of the party but, as well, a “certificate of counsel of record stating that it [the application as a whole] is made in good faith.” Id. In the case of In re Union Leader Corp., 292 F.2d 381 (1st Cir.), cert. denied, 368 U.S. 927, 82 S.Ct. 361, 7 L.Ed.2d 190 (1961), the First Circuit found that an application for the recusal of the judge “scarcely merits a lower standard” than that imposed under Fed.R.Civ.P. 11. Id. at 385. Although the Bertoli Recusal Motion is made under section 455, not section 144, counsel for Bertoli submitted a certificate of good faith. The 2 November 1989 Sachs Affidavit gratuitously put in issue the good faith of the Bertoli Recusal Motion. Less than three weeks later, the Bertoli Reply Brief was filed. Significantly, this Reply Brief states: “Defendant Bertoli’s recusal motion is not based on a claim that Judge Lechner is in fact biased against him.” Bertoli Reply Brief at 2. All of the conduct which forms the basis for this application originates with Bertoli. Bertoli neither alleges nor implies any conduct on my part to form the basis for the section 455 application. In light of the conduct of Bertoli, the selection of section 455, the exclusion of section 144 as the basis for his recusal motion and the statement of his counsel that there is no prejudice in fact, my impartiality cannot “reasonably” be questioned. Clearly, Bertoli does not believe I harbor any prejudice against him or bias in favor of the Government. In light of this and of the generally accepted principle that the defendant has a right to be tried before an unbiased judge, the issue presented is whether public confidence in the courts may require recusal. Accordingly, it is the public perception which must be addressed. If this claim is sufficiently meritorious, corrective action should be taken immediately, as requested by Bertoli and his counsel. As mentioned, a section 144 application requires a certificate of counsel that the application is made in good faith. As noted in In re Union Leader Corp.: "If a certificate is to serve the purpose of shielding a court which cannot test the truth of the claimed facts, it should at least carry the assertion that counsel believes the facts alleged to be accurate and correct.” 292 F.2d at 385, No such safeguard is offered pursuant to section 455. The apparent reason for the lack of such a safeguard in section 455 is that pursuant to section 144 the filing of such an affidavit automatically triggers other proceedings. Pursuant to section 455, however, the judge against whom the application is filed must make appropriate findings based upon the submissions. In making those findings, it is obvious that such a judge must inquire into the basis for the application and must exercise appropriate discretion. In re Union Leader Corp. concerned a writ of mandamus to order a judge to revoke his actions striking an affidavit of bias and prejudice and to order him to disqualify himself from conducting further proceedings. The stricken affidavit was based upon an alleged attack on the judge by a newspaper involved in a private antitrust action and the judge’s reactions to that publication. Apparently editorials were published during the prior decade about the judge and his conduct in unrelated matters. The judge was confronted with a situation where a reporter for the petitioner seeking the mandamus telephoned the judge at his home to write a follow-up story. The judge informed the reporter that the petitioner’s article was libelous but refused to give any further follow-up. The reporter was not content and followed the judge to his chambers hoping to be more productive. When confronting the judge with regard to any further comment, the judge responded that the petitioner’s actions were contemptible. The reporter printed that comment. Shortly thereafter, the petitioner had its reporter prepare an affidavit and account of the conversations with the judge which the petitioner retained “in case a contingency arose.” The First Circuit found that the reference to retaining the affidavit in case a contingency arose “obviously, ... meant if it should later conclude to file an affidavit of prejudice” this documentation would be necessary. Id. at 387. The First Circuit found that the action of the judge in striking the affidavit was correct and it did not issue a mandamus. Some of its comments with regard to the matter are instructive. It noted that “neutrality in the absolute sense cannot be expected. 'Personal bias or prejudice’ calls only for practical objectives. For example, prior judicial views will not disqualify.” Id. at 388 (citation omitted). The Circuit also observed: [A] judge is not prevented from sitting because he comes into every case with a background of general personal experience and beliefs. ... There must be something unique. Nor will a judge’s ordinary and natural reactions to the conduct of, or evidence developed about, a party in a case before him create a disqualification____ In sum, a judge must be presumed to be qualified, and there must be substantial burden upon the affiant to show grounds for believing the contrary. Id. at 388-389 (citations omitted). The Circuit noted that in a theoretical sense there were two levels to the claim of bias that were presented by the petitioner. The first was the fact that the judge was attacked and the second was the judge’s response to the attacks. It did not find the first prong, the attack, sufficient. “A judge lives in an atmosphere of strife, in which, by nature and experience, he is expected to be a man of ‘fortitude.’ ” Id. at 389 (citation omitted). The Circuit noted that a judge must “continually rule against one party or another. No judge can be so sanguine when asked to believe that he is never the object of disapproval and criticism directed to something more personal than his abstract judicial actions. If such disapproval is brought openly to his attention, he does not automatically change from benign to biased.” Id. With regard to the first prong, the attack, the Circuit noted: “We have found no case which suggests that an affidavit must be ruled to be sufficient simply because it might be natural for a judge to have resented something said about him.” Id. The Circuit next turned to the reaction of the judge to the attack. It noted that the petitioner complained that the judge expressed the opinion the petitioner was