Decision and Order — United States v. Brittany L. Herbert and Brandie S. Williams (W.D.N.Y., Dkt. 112)

Summary

A Decision and Order, Document 112 in No. 1:22-cr-00141-WMS-JJM, in the U.S. District Court for the Western District of New York, filed June 13, 2024, in United States v. Brittany L. Herbert and Brandie S. Williams. The Court denies all relief requested in Defendant Brittany L. Herbert's "Affidavit of Disqualification for Appearance of Bias" and "Affidavit of Want of Authority." It states that Herbert seeks recusal or disqualification under 28 U.S.C. § 455 and that the motion is also considered under 28 U.S.C. § 144, and it finds that the allegations concern the Court's official function and rest on its rulings in the case. The order is dated June 13, 2024 and shows the signature s/William M. Skretny, United States District Judge.

Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Full text

      Case 1:22-cr-00141-WMS-JJM Document 112 Filed 06/13/24 Page 1 of 6


UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA,

       v.                                                                DECISION AND ORDER
                                                                            22-CR-141S (1)
BRITTANY L. HERBERT and
BRANDIE S. WILLIAMS,

                               Defendants.

       Before this Court are Defendant Brittany L. Herbert’s “Affidavit of Disqualification

for Appearance of Bias” and “Affidavit of Want of Authority.” (Docket Nos. 107, 108.)

All requests for relief in each document are denied.

       Defendant Herbert seeks this Court’s recusal or disqualification under 28 U.S.C. §

455. 1 Given her pro se status, this Court also considers the motion under 28 U.S.C. §

144. The motion is premised on non-specific, conclusory allegations consistent with the

sovereign-citizen sentiments that Defendant Herbert has previously espoused.                      She

alleges, for example, that disqualification is required because this Court is without “Official

Bond” to serve as a judge, lacks proper jurisdiction, and has deprived her of due process,

liberty, access to the courts, and her constitutional rights. None of these contentions

warrant relief.

       Recusal motions are committed to the discretion of the judge whose recusal is

sought, who himself is “as much obliged not to recuse himself when it is not called for as

he is obliged to when it is.” In re Certain Underwriter, 294 F.3d 297, 302 (2d Cir. 2002);

see also In re Drexel Burnham Lambert, Inc, 861 F.2d 1307, 1312 (2d Cir. 1988) (citing



1 In the caption of the document, Defendant Herbert also purports to bring her motion under “Rule 2.11”
and 26 U.S.C. § 6903. “Rule 2.11” is nowhere mentioned or identified in the motion, so any relief based
on this provision is denied. Twenty-six U.S.C. § 6903 is part of the tax code that concerns fiduciary
relationships. Since that provision is wholly irrelevant here, any relief based thereon is denied.
                                                  1
     Case 1:22-cr-00141-WMS-JJM Document 112 Filed 06/13/24 Page 2 of 6


Apple v. Jewish Hosp. & Med. Ctr., 829 F.2d 326, 333 (2d Cir. 1987)). “In deciding

whether to recuse himself, the trial judge must carefully weigh the policy of promoting

public confidence in the judiciary against the possibility that those questioning his

impartiality might be seeking to avoid the adverse consequences of his presiding over

their case.” Drexel, 861 F.2d at 1312. Litigants, after all, are “entitled to an unbiased

judge; not to a judge of their choosing.” Id.

       Recusal motions based on actual bias or prejudice fall under two statutes: 28

U.S.C. §§ 144 and 455 (b)(1). Section 144 requires recusal when a party demonstrates

that the judge has “a personal bias or prejudice” against that party or in favor of an

adverse party. The moving party must demonstrate bias or prejudice through the filing

of a “timely and sufficient affidavit.” 28 U.S.C. § 144. “The affidavit must be ‘sufficient,’

to provide ‘fair support’ for the charge of partiality.”   Apple, 829 F.2d at 333 (citing

Wolfson v. Palmieri, 396 F.2d 121, 124 (2d Cir. 1968) (per curiam)); see also Hoatson v.

New York Archdiocese, No. 05 CIV. 10467 (PAC), 2006 WL 3500633, at *2 (S.D.N.Y.

Dec. 1, 2006) (“Affidavits in support of the motions pursuant to §§ 144 and 455 (b)(1)

require a factual demonstration of bias, not simply the appearance of impropriety.”). If

the affidavit sets forth a legally sufficient basis for recusal, another judge must be

assigned to resolve the motion. See 28 U.S.C. § 144. But no such forbearance is

required where the supporting affidavit is insufficient on its face. See Role v. Eureka

Lodge No. 434, 402 F.3d 314, 318 (2d Cir. 2005) (per curiam). Whether the affidavit is

legally sufficient is determined within the court’s discretion. See Apple, 829 F.2d at 333.

       Section 455 (b)(1) similarly requires recusal “[w]here [the judge] has a personal

bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts

concerning the proceeding.” Because §§ 144 and 455 (b)(1) are in pari materia, they
                                       2
     Case 1:22-cr-00141-WMS-JJM Document 112 Filed 06/13/24 Page 3 of 6


are construed together in the same manner. See United States v. Pugliese, 805 F.2d

1117, 1125 (2d Cir. 1986).

       Recusal motions based on the broader ground of the appearance of partiality fall

under 28 U.S.C. § 455 (a), which provides that “[a]ny justice, judge, or magistrate judge

of the United States shall disqualify himself in any proceeding in which his impartiality

might reasonably be questioned.” An objective test applies: the judge must determine

“whether an objective, disinterested observer, fully informed of the underlying facts, would

entertain significant doubt that justice would be done absent recusal.” In Re Basciano,

542 F.3d 950, 956 (2d Cir. 2008) (alterations and internal quotation marks omitted); see

also Chase Manhattan Bank v. Affiliated FM Ins. Co., 343 F.3d 120, 127 (2d Cir. 2003)

(finding that whether partiality exists is determined “based on what a reasonable person

knowing all the facts would conclude”). But § 455 (a) “does not compel disqualification

‘simply on unfounded innuendo concerning the possible partiality of the presiding judge.’”

Cannino v. Barclays Bank, No. 94-Civ-6314, 1998 WL 7219, at *3 (S.D.N.Y. Jan. 7, 1998)

(citation omitted).

       In assessing these grounds for recusal, the United States Supreme Court has

found that “judicial rulings alone almost never constitute a valid basis for bias or partiality

motions.” Liteky v. United States, 510 U.S. 540, 555, 114 S. Ct. 1147, 127 L. Ed. 2d 474

(1994). Moreover, “opinions formed by the judge on the basis of facts introduced or

events occurring in the course of the current proceedings, or of prior proceedings, do not

constitute a basis for a bias or partiality motion unless they display a deep-seated

favoritism or antagonism that would make fair judgment impossible.”                Id.   Thus,

“[r]ecusal is not warranted where the only challenged conduct consists of judicial rulings,

routine trial administration efforts, and ordinary admonishments to counsel and to
                                           3
     Case 1:22-cr-00141-WMS-JJM Document 112 Filed 06/13/24 Page 4 of 6


witnesses, where the conduct occurs during judicial proceedings, and where the judge

neither (1) relies upon knowledge acquired outside such proceedings nor (2) displays

deep-seated and unequivocal antagonism that would render fair judgment impossible.”

S.E.C. v Razmilovic, 738 F.3d 14, 29-30 (2d Cir. 2013).

       Defendant Herbert’s motion fails under these standards. First, her affidavit does

not raise a colorable actual bias or prejudice claim under 28 U.S.C. §§ 144 or 455 (b)(1).

Each of the allegations concern this Court’s official function. None allege a personal bias

or prejudice.

       Second, setting aside the lack of specificity, Defendant Herbert’s official-function

allegations are insufficient to require recusal. These allegations—that this Court acted

without proper bond or jurisdiction, violated its oath of office, denied due process and

constitutional rights, deprived liberty and access to the courts, and failed to comply with

legal process—are based entirely on this Court’s rulings in this case, which does not give

rise to recusal.   See Liteky, 510 U.S. at 555 (“judicial rulings alone almost never

constitute a valid basis for bias or partiality motions”); Razmilovic, 738 F.3d at 29-30

(noting that recusal is not warranted where the challenged conduct pertains to judicial

rulings and case administration).

       Finally, the only factual allegation asserts that this Court should be disqualified

because “RESPONDENT REQUESTED OATH OF OFFICE & DELAGATION OF

AUTHORITY OF JUDGE WILLIAM M. SKRETNY, AND HE REFUSED TO PROVIDE IT

TO RESPONDENT, WHICH IS REQUIRED BY LAW.” See Docket No. 107, ¶ 23. This

appears to relate to a previously stricken, irrelevant document asserting civil

counterclaims and referencing a purported delegation of authority to this Court from the

Secretary of the Treasury. See Docket No. 95 (“Notice of Liability/Mandatory Judicial
                                       4
     Case 1:22-cr-00141-WMS-JJM Document 112 Filed 06/13/24 Page 5 of 6


Notice of Trustee Acknowledgement of Appoint and Description of Equitable Interest”),

Docket No. 97 (striking document as entirely irrelevant). Consequently, this allegation

provides no cause for recusal.

       Accordingly, because Defendant Herbert’s “Affidavit of Disqualification for

Appearance of Bias” is meritless, all requests for relief contained therein are denied.

       Defendant Herbert’s “Affidavit of Want of Authority” asserts a frivolous claim that

the prosecutors in this action lack authority to represent the United States. It further

perpetuates nonsensical civil proceedings of Defendant Herbert’s own concoction relating

to IRS forms, securities transactions, and extensions of credit.       To the extent this

document requests any cognizable relief, it is denied.

       This Court reiterates to Defendant Herbert that the sovereign-citizen type theories

and ideology that she continues to rely on are frivolous, irrational, unintelligible, and

ungrounded in American law.        See Tyson v. Clifford, No. 18-CV-1600, 2018 WL

6727538, at *3 (D. Conn. Dec. 21, 2018) (collecting cases). Once again, this Court

strongly encourages Defendant Herbert to turn her focus to meaningful case assessment

and trial preparation.


       IT HEREBY IS ORDERED, that any and all relief requested in Defendant Herbert’s

“Affidavit of Disqualification for Appearance of Bias” (Docket No. 107) is DENIED.

       FURTHER, that any and all relief requested in Defendant Herbert’s “Affidavit of

Want of Authority” (Docket No. 108) is DENIED.




                                             5
     Case 1:22-cr-00141-WMS-JJM Document 112 Filed 06/13/24 Page 6 of 6


         FURTHER, that the Clerk of Court is directed to send a copy of this Decision and

Order to Defendant Herbert at her address of record.

         SO ORDERED.

Dated:         June 13, 2024
               Buffalo, New York

                                                             s/William M. Skretny
                                                            WILLIAM M. SKRETNY
                                                           United States District Judge




                                             6


File and source

File

112.pdf

Size

153,542 bytes

SHA-256

07787aa8dafcf94615027c332be5fc69213d7f3cc20df3dd684e914956dec2d1

Our copy

112.pdf

Original

No public link identified.