USA v. GIAMBRO

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
UNITED STATES OF AMERICA
v.
DARIO GIAMBRO,
Defendant.
)
)
)
)
)
)
)
)
)
)
Docket no. 2:22-cr-00044-GZS
ORDER ON MOTION FOR RECUSAL
Before the Court is Defendant Dario Giambro’s Motion for Recusal (ECF No. 128).
Having considered the Motion and related filings (ECF Nos. 129, 131-32), the Court DENIES the
Motion for the reasons stated herein.
I. PROCEDURAL BACKGROUND
A. The 2007 Case1
On May 15, 2007, Defendant Dario Giambro was arrested on an indictment charging him
with possession of an unregistered firearm in violation of 26 U.S.C. §§ 5861(d), 5841, 5845(a),
5845(e), and 5871. (See generally ECF Nos. 1 & 37.) Following initial concerns about Giambro’s
competency, U.S. Magistrate Judge Cohen found him competent to stand trial. (See generally ECF
Nos. 16, 18, 22, 23, 28.) On June 26, Judge Cohen held a detention hearing and ordered that
Giambro be released pending trial on conditions that included a $250,000 appearance bond, to be
“secured by deed(s) of trust acceptable to the U.S. Attorney.” (ECF No. 36, PageID # 26; see ECF
No. 35.) Because Giambro did not satisfy the conditions for his pretrial release, however, he
remained detained pending trial.
1 All docket entry citations in this subsection refer to District of Maine Docket No. 2:07-cr-00041-GZS.
Case 2:22-cr-00044-LEW Document 134 Filed 07/11/23 Page 1 of 21 PageID #:
<pageID>

2
In September 2007, following a one-day jury trial conducted by this Court, Giambro was
convicted. (See ECF No. 77, PageID # 316; Jury Verdict (ECF No. 82), PageID # 318.) The
following month, the Court ordered that he be released on specified conditions while awaiting
sentencing, including a $250,000 cash bond. (See ECF No. 103, PageID # 338.) By that point,
Giambro had been detained for approximately five months. After Giambro satisfied the requisite
conditions, he was released to home detention pending his sentencing. (See generally ECF Nos.
105-08, 113, 147.)
In connection with Giambro’s sentencing, the U.S. Probation Office (“Probation”) prepared
a Revised Presentence Investigation Report (the “PSR”) in which it noted, inter alia, that Giambro
had provided conflicting and materially false information regarding his prior addresses and the
whereabouts of his driver’s license and passport. (See generally PSR, ¶s 8-10.) Probation opined that
this conduct, which occurred while Probation was attempting to confirm Giambro’s identity during
its presentence investigation, warranted an obstruction-of-justice enhancement. (See id., ¶ 10.)
At the December 28 sentencing hearing, this Judge considered Giambro’s objection to the
proposed obstruction enhancement and inquired about certain discrepancies between what
Giambro had told Probation and what Probation had subsequently determined to be true. For
example, this Judge noted that, despite Giambro’s representation that a bank account he appeared
to own was in fact held in trust under his son’s name, Probation subsequently determined that the
bank account was a savings account in Giambro’s name. (See 12/28/07 Sentencing Tr. (ECF No.
148), PageID #s 759-60.) To rationalize this discrepancy, Giambro’s then-counsel offered the
explanation that there had been no formal trust document and that, although the account was
apparently in Giambro’s name, it held money intended for his son. (See id.) This Judge also noted
that, despite Giambro’s representation that he held a separate checking account with a negative
Case 2:22-cr-00044-LEW Document 134 Filed 07/11/23 Page 2 of 21 PageID #:
<pageID>

3
$250 balance, he had recently paid a $50,000 settlement that was not reflected as a withdrawal on
that account. (See id., PageID #s 762-63, 776.) After hearing from both parties, this Judge
ultimately determined that the obstruction-of-justice enhancement was warranted for the reasons
stated in the PSR. (See id., PageID # 764.)
Before imposing sentence, this Judge noted that Giambro had “been less than candid with
the Court, and in many ways on a different charge [he would] be facing some increase in [his]
sentence because of the manner that [he had] treat[ed] the Court.” (Id., PageID # 781.) However,
after calculating an applicable guideline range of 33 to 41 months, this Judge concluded that a
time-served sentence, along with a three-year period of supervised release, was the appropriate,
variant sentence. (See id. at 780-81.) Addressing Giambro directly, this Judge further explained
this sentence and its implications as follows:
Let me indicate something to you. If you are possessing any firearms, and that
means if they’re in your house where you live, if you are in the presence of people
possessing firearms, you will be arrested, because you can never again for the rest
of your life be in the presence of firearms where you are possessing them,
constructively or actually. I want you to understand that because you have a feeling
that rules may not always apply to you if you think the Government is intruding in
your affairs . . . .
I want you to understand that during the next three years probation will be carefully
monitoring what’s going on in your home and otherwise. And don’t think you’re
going to put one over on anyone. Because if you get arrested again on a felony
charge of possessing firearms, you may well appear before me. And, Mr. Giambro,
you’re not going to be a very happy person when that happens, considering the
break I’m giving you today.
I want you to be aware that the break I’m giving you today is a substantial reduction
from the advisory guidelines. And I’m doing this not because you’re a swell person
and not because I feel you’ve been straight with the Court, but simply because I
believe that the punishment you’ve received is fully adequate and any additional
punishment would be more than adequate. And our system of justice doesn’t permit
that. And that's why I’m doing it and not because of anything with regard to your
behavior in court or your behavior with regard to the probation office in terms of
your truthfulness.
Case 2:22-cr-00044-LEW Document 134 Filed 07/11/23 Page 3 of 21 PageID #:
<pageID>

4
(Id., PageID #s 781-83.) In addition to his already served five months of incarceration, Giambro
was fined $50,000, which he timely paid. (See 1/08/2008 Judgment (ECF No. 121), PageID #
364; 1/16/08 Satisfaction of Judgment (ECF No. 123), PageID # 367.) Giambro immediately
began his three-year term of supervised release on December 28, 2007.2 (See ECF No. 115.)
B. The 2022 Case3
In January 2022, law enforcement discovered and, after securing a warrant, seized numerous
firearms from Giambro’s home in Hebron, Maine.4 Three months later, a federal grand jury charged
Giambro with one count of being a felon in possession of a firearm, in violation of 18 U.S.C. §§
922(g)(1) and 924(a), based on his possession of sixteen firearms on or about January 26, 2022.
(See ECF No. 3, PageID #s 2-3.) In May, he was arrested, and the Government moved for his
detention pending trial, noting that “the case involves a felony involving a firearm” and that the
Government would “invoke the rebuttable presumption against the defendant under 18 U.S.C. §
3142(e).” (ECF No. 10, PageID # 13.) On May 18, Giambro appeared before U.S. Magistrate Judge
Wolf for his arraignment, represented by a provisionally appointed attorney. (See ECF No. 13.) Judge
Wolf ordered him “temporarily detained without bail, pursuant to 18 U.S.C. § 3142(f).” (ECF No. 15,
PageID # 17.)
On May 24, Judge Wolf presided over a detention hearing for Giambro. At the outset of
that hearing, Giambro’s then-counsel indicated that Giambro opposed the Government’s motion
for detention and would “rebut the presumption and show that. . . there [were] conditions that can
2 During this three-year term of supervised release, Probation filed one petition to revoke Giambro’s supervised release
based on his failure to comply with the home search condition. See ECF No. 133, PageID #s 733-35. Giambro
admitted this violation, and the Court imposed a time-served sentence of nine days of incarceration, followed by two
years of supervised release. See ECF No. 144, PageID #s 743-44.
3 All docket entry citations in this subsection refer to the instant case, District of Maine Docket No. 2:22-cr-00044-GZS.
4 The underlying facts of this seizure are set forth in this Court’s Order on Giambro’s Motion to Suppress (ECF No. 120).
Case 2:22-cr-00044-LEW Document 134 Filed 07/11/23 Page 4 of 21 PageID #:
<pageID>

5
assure the Court that Mr. Giambro [would] come to court as indicated and [would] not pose any
type of danger to the community.” (See 5/24/22 Det. Hearing Tr. (ECF No. 74), PageID # 212.)
After hearing from counsel and reviewing the evidence presented, Judge Wolf ordered that
Giambro be detained pending trial. In explaining her decision on the record, Judge Wolf noted
that “this is a presumption case” but that the presumption had been “rebutted with evidence” such
as Giambro’s age and infirmity. (See id., PageID # 221.) She proceeded to explain, however, that
other factors – such as Giambro’s resources, his ownership of property in both the United States
and Canada, his inability to locate and relinquish his passport, his past conduct, and the
Government’s evidence regarding numerous firearms found at his home – weighed in favor of
detention. (See id., PageID #s 221-24.) While she ultimately determined that Giambro could not
be released on the record presented, Judge Wolf did “implore [Giambro and his counsel] . . . to
explore other possibilities” and suggested that release could be feasible with “an extraordinarily
detailed release plan.” (See id. at 225.) In a written detention order docketed the following day,
Judge Wolf noted that Giambro was eligible for detention under 18 U.S.C. § 3142(f)(1)(E) and
further explained her consideration of the 18 U.S.C. § 3142(g) factors. (See 5/25/22 Det. Order
(ECF No. 21), PageID #s 25-28.) At both the hearing and in her written order, Judge Wolf found
that the Government had demonstrated by clear and convincing evidence that no set of conditions
could reasonably assure the community’s safety. (See 5/24/22 Det. Hearing Tr., PageID # 225;
5/25/22 Det. Order, PageID # 25.)5
5 Unlike the transcript of the May 24, 2022 detention hearing, Judge’s Wolf’s written detention order does not indicate
that she applied any presumption of detention. Compare 5/24/22 Det. Hearing Tr., PageID # 221 with 5/25/22 Det.
Order, PageID #s 25-28. While the written order has been available on the public docket since May 25, 2022, the
transcript of the detention hearing was docketed on January 13, 2022, in connection with the Court’s consideration of
Giambro’s Motion to Reopen the Detention Hearing and for Pretrial Release on Conditions (ECF No. 61).
Case 2:22-cr-00044-LEW Document 134 Filed 07/11/23 Page 5 of 21 PageID #:
<pageID>

6
On May 31, the Government filed an unopposed motion requesting that this Court order
Giambro to submit to a psychiatric examination, citing concerns about his mental state. (See ECF
No. 23, PageID # 37.) The Court promptly granted this motion. (See ECF No. 24.) In the four
months that followed, the Court convened a total of three conferences (see ECF Nos. 31, 39, 47),
held two hearings (see ECF Nos. 35 & 39), and resolved five motions (ECF Nos. 29, 33, 40, 42,
51). In resolving these motions, the Court: appointed Giambro a new attorney, William Maselli
(see ECF Nos 36 & 37); found no reasonable basis to believe Giambro was mentally incompetent
and therefore did not require him to undergo a psychiatric evaluation supervised by the Bureau of
Prisons or submit to the associated medical testing (see ECF Nos. 41, 50); and, at Giambro’s
request, extended the deadline for motions and continued trial to January 2023 (see ECF No. 54,
PageID #s 94-95).
In December, Attorney Maselli withdrew from the case, and Giambro’s presently retained
counsel, Edward MacColl, entered his appearance. (See ECF Nos. 59, 60, 62.) Shortly thereafter,
Attorney MacColl moved to reopen the detention hearing, which the Court granted. (See ECF
Nos. 61 & 63.) He also filed a Motion to Suppress all evidence obtained from Giambro’s home in
January 2022. (See generally ECF No. 65.)
At the reopened detention hearing on January 10, 2023, this Judge acknowledged that
Government counsel and Attorney MacColl had reached an agreement on conditions for
Giambro’s pretrial release, including a $1,000,000 cash bond. (See 1/10/23 Det. Hearing Tr. (ECF
No. 82), PageID # 299-300.) In light of the entire record, which notably included evidence that
Giambro’s son had moved in state court for a conservatorship over Giambro’s assets,6 this Judge
expressed concern that Giambro intended to post bail with money from a bank account that,
6 See Def. Ex. B (ECF No. 61-2). This Petition for Conservatorship included a “Bank of America account” with an
estimated value of $2,000,000 to $3,000,000. See id., PageID # 133.
Case 2:22-cr-00044-LEW Document 134 Filed 07/11/23 Page 6 of 21 PageID #:
<pageID>

7
according to the Pretrial Services Report, was earmarked in trust for the benefit of Giambro’s son.
(See id., PageID #s 299-300; Pretrial Services Report, PageID # 20.) In response, Attorney MacColl
indicated that, although Giambro did not have access to the account at the time of his prior detention
hearing, a new account opened in March provided him with access to the money. (See 1/10/23 Det.
Hearing Tr., PageID #s 300, 304-05.) Attorney MacColl also shared his understanding that the
funds were “not in a formal trust arrangement” and that, although the funds were earmarked for
Giambro’s son, “he is allowed to use them for his own purposes.” (Id., PageID #s 301-02.) This
Judge then noted that the Court has “had problems with what [his] client’s been telling probation
going back to 2007 because . . . when he says one thing we find out another.” (Id., PageID # 303.)
After Attorney MacColl indicated that he was “relaying what [his] client told [him],” this Judge
noted: “I really need to know more than what your client is telling you because his credibility isn’t
at the highest level.” (Id., PageID # 304.)
Beyond the issues with the source of Giambro’s bail, this Judge also expressed his concern
that there was insufficient evidence to overcome the Magistrate Judge’s finding related to
community safety. Specifically, this Judge wondered how, if he released Giambro pending trial,
Giambro could be prevented from regaining access to a firearm. (See id., PageID #s 309-11, 314,
317-18.) To help illustrate the basis for such concern, this Judge reminded the parties of his
statement to Giambro at the 2007 sentencing hearing that Giambro would be arrested if he possessed
any firearms, as he could “never again for the rest of [his] life be in the presence of firearms where
[he was] possessing them, constructively or actually.” (Id., PageID # 310.) This Judge also
reiterated his warning to Giambro that Probation would monitor him for the next three years and
that he would not “be a very happy person” if he later appeared before the same Judge for “a felony
charge of possessing firearms.” (Id., PageID # 311.) Given that Giambro had again “surrounded
Case 2:22-cr-00044-LEW Document 134 Filed 07/11/23 Page 7 of 21 PageID #:
<pageID>

8
himself with guns the same way he did previously” despite these warnings, the Judge expressed
doubt that Giambro could abide by pretrial release conditions. (Id., PageID #s 317-18; see id.,
PageID # 311.)7 The Government acknowledged this concern and stated: “frankly that quote is
going to be Government Exhibit 1 at any trial because we have to prove under Rehaif he knew he
was prohibited.” (Id., PageID # 311.) Additionally, there was an issue with the parties’ proposed
search conditions. Although the Government had suggested a pretrial condition of release allowing
Probation to search Giambro’s residence, Probation indicated that such a condition was not
permitted because it ran afoul of the Fourth Amendment.8 (See id., PageID #s 309-12.)
At the end of the hearing, this Judge indicated that it required additional evidence regarding
the source of Giambro’s proposed $1,000,000 bail and a set of conditions that it considered a
necessary part of any release plan. (See id., PageID # 320, 323-24.) This Judge therefore declined
to disturb the standing detention order and continued the reopened detention hearing. (See id.,
PageID # 324.)
The Court reconvened the detention hearing two weeks later on January 26. (See ECF No.
84.) After considering Giambro’s proposed order containing a new set of pretrial release
7 During this discussion, Attorney MacColl noted that, although Giambro initially refused to allow Probation to
conduct searches of his home when he was on his first term of supervised release, he completed his second term of
supervised release without incurring any violations. See 1/10/23 Det. Hearing Tr., PageID #s 316-17. This Judge
responded:
[T]he . . . bigger problem in my mind isn’t whether he was on supervised release and obeyed the
rules. It’s clear that when he finished supervised release he didn’t care what I told him [at the 2007
sentencing hearing] whatsoever, didn’t mean a thing to him. He surrounded himself with guns the
same way he did previously. Now that’s a far more serious failure to obey than -- than telling the
probation officer I’m not going to let you in the house.
Here is a man that was told at his earlier sentencing you can’t have any guns, period, at all, and lo
and behold in 2022 he has got 800 of them. Now what does that tell you about someone who can
obey rules?
(Id., PageID #s 317-18.)
8 Attorney MacColl denied that “there [was] any constitutional prohibition against a defendant proposing” and
agreeing to a pretrial search condition. 1/10/23 Det. Hearing Tr., PageID #s 315-16.
Case 2:22-cr-00044-LEW Document 134 Filed 07/11/23 Page 8 of 21 PageID #:
<pageID>

9
conditions (ECF No. 75-4), to which the Government had assented, and records indicating that
Giambro was the owner of the disputed funds (ECF Nos. 75-1 – 75-3), this Judge ordered that
Giambro be released once he posted a $ 1,000,000 cash bond and complied with all other specified
conditions for his release. (See ECF No. 84; No. 85, PageID # 329.) Giambro was released the
following day, having satisfied those conditions and posted the requisite bond. (See ECF No. 86,
PageID # 330.)
In February, while his Motion to Suppress was under advisement, Giambro filed a Motion
to Dismiss the Indictment on the basis that the felon-in-possession statute, 18 U.S.C. § 922(g)(1),
“is unconstitutionally broad in defining prohibited persons and as applied to him in violation of
the Second Amendment.” (ECF No. 100, PageID # 382.) The Court entered an order denying the
Motion to Suppress on April 27 (ECF No. 120) and an order denying the Motion to Dismiss on
May 30 (ECF No. 126). On June 20, following the Court’s resolution of these pretrial motions,
the Clerk’s Office published a criminal trial list indicating that the instant case was among those
scheduled for trial in Portland in August. (See ECF No. 127.) Three days later, Giambro filed the
instant Motion for Recusal.
II. THE MOTION
In his pending Motion for Recusal, Defendant “requests that the Judge recuse himself and
vacate his orders on [D]efendant’s motion to dismiss and motion to suppress.” (Def. Mot. (ECF
No. 128), PageID # 671.) He cites the following as evidence of an “appearance of partiality or
impropriety” by this Judge:
(1) This Judge’s statements at the 2007 sentencing hearing, which included a description
of Giambro as “less than candid” and a warning to Giambro that he would not “be a
Case 2:22-cr-00044-LEW Document 134 Filed 07/11/23 Page 9 of 21 PageID #:
<pageID>

10
very happy person” if he were “again arrested on a felony charge of possessing firearms
and . . . appear[ed] before” the Judge (12/28/07 Sentencing Tr., PageID # 782);
(2) This Judge’s statements at the January 10 reopened detention hearing in the instant
case, which included a reference to the 2007 warning and a suggestion that Defendant’s
failure to heed such warning was “a far more serious failure to obey than” refusing to
allow Probation to search his home during supervised release (1/10/23 Det. Hearing
Tr., PageID #s 317-18);
(3) This Judge’s decision at the January 10 hearing to not immediately release Defendant
on conditions jointly proposed by counsel and to instead continue the hearing with a
request for further information;
(4) This Judge’s refusal to sign a consent order requiring Defendant’s bank to release his
account funds so that he could post bail and refusal to release Defendant so that he
could visit the bank in-person and withdraw the funds himself; and
(5) The Government’s indication that it may introduce, as evidence at trial, a transcript of
the 2007 sentencing hearing, including statements made by this Judge as reflected in
that transcript.
(See Def. Mot., PageID #s 661-67; see also Def. Reply (ECF No. 132), PageID #s 782-83.)
Defendant also takes issue with the fact that this Judge “did not acknowledge” that the “Magistrate
Judge had mistakenly applied a presumption against [his] release,” which “surely” would have
been apparent from this Judge’s review of the transcript of the detention hearing. (Def. Mot.,
PageID # 664.)
In support of his Motion for Recusal, Defendant filed a sworn Declaration outlining many
of the same circumstances addressed in his Motion and further elucidating how he has personally
Case 2:22-cr-00044-LEW Document 134 Filed 07/11/23 Page 10 of 21 PageID #:
<pageID>

11
perceived this Judge’s statements and rulings. (See, e.g., Def. Decl. (ECF No. 128-1), PageID #
673, ¶ 2 (“I respectfully ask that Judge Singal recuse himself from this case, because, among other
reasons I believe he has a fixed opinion of me and the case and that his opinion affects his ability
to treat me fairly and because the government has stated that it plans to introduce Judge Singal’s
words against me as evidence at trial.”); id., PageID # 674, ¶s 5 (“I have felt that Judge Singal has
not treated me fairly, and that the does not want to do so.”), 7 (“Judge Singal seemed predisposed
to not releasing me.”); id., PageID # 675, ¶s 12 (“It felt like he was not being fair with me . . . .”),
13 (“I am concerned he was making good on his promise that I would not ‘be happy.’”).)
III. DISCUSSION
Defendant’s Motion invokes both 28 U.S.C. §§ 144 and 455, two separate statutory bases
under which a district court judge must recuse himself from a proceeding.
28 U.S.C. § 144 requires a judge to recuse himself from a proceeding when a party in that
proceeding “files a timely and sufficient affidavit that the judge . . . has a personal bias or prejudice
either against him or in favor of any adverse party.” The affidavit must state the facts and the
reasons for the belief that bias or prejudice exists, and it must “be accompanied by a certificate of
counsel of record stating that it is made in good faith.” Id. “[T]he district judge [must] accept the
affidavit as true even though it may contain averments that are false and may be known to be so to
the judge.” In re Martinez-Catala, 129 F.3d 213, 218 (1st Cir. 1997). However, when a party
alleges a bias or prejudice pursuant to section 144, “a trial judge is not required immediately to
recuse himself.” United States v. Kelley, 712 F.2d 884, 889 (1st Cir. 1983). “Although the trial
judge may not pass on the truth of the matters asserted, the trial judge must pass upon the legal
sufficiency of the affidavit.” Id. (citations omitted).
Case 2:22-cr-00044-LEW Document 134 Filed 07/11/23 Page 11 of 21 PageID #:
<pageID>

12
28 U.S.C. § 455 provides, in relevant part, that a judge must disqualify himself from a
proceeding when: “his impartiality might reasonably be questioned,” § 455(a); “he has a personal
bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts
concerning the proceeding,” § 455(b)(1); or he “[i]s to [his] knowledge likely to be a material
witness in the proceeding,” § 455(b)(5)(iv). “The test to determine whether a judge should be
disqualified for alleged partiality [under § 455(a)] . . . ‘is whether the charge of lack of impartiality
is grounded on facts that would create a reasonable doubt concerning the judge’s impartiality, not
in the mind of the judge himself or even necessarily in the mind of the litigant filing the motion
under 28 U.S.C. § 455, but rather in the mind of the reasonable man.’” Kelley, 712 F.2d at 890
(citation omitted).
“Since sections 144 and 455 of 28 U.S.C. use similar language, and are intended to govern
the same area of conduct, they have been construed in pari materia, and the test of the legal
sufficiency of a motion for disqualification is the same under both statutes.” Id. at 889. Under
both sections, “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.” Liteky v. United States, 510 U.S. 540, 555 (1994); see Kelley, 712
F.2d at 889 (“Facts learned by a judge while acting in his judicial capacity cannot serve as a basis
for disqualification on account of personal bias.”).9 Another “essential element” under both
section 144 and 455 is timeliness. United States v. Owens, 902 F.2d 1154, 1155 (4th Cir. 1990);
see 28 U.S.C. § 144 (requiring a “timely” affidavit); United States v. Barrett, 111 F.3d 947, 951
9 The Supreme Court has characterized this principle, commonly known as the “extrajudicial source” doctrine, as “a
significant (and often determinative) ‘extrajudicial source’ factor” to be considered, among other factors, when
reviewing a motion for recusal. Liteky, 510 U.S. at 554-55.
Case 2:22-cr-00044-LEW Document 134 Filed 07/11/23 Page 12 of 21 PageID #:
<pageID>

13
(D.C. Cir. 1997) (“[W]hile section 455(a) contains no express timeliness provision, most circuits
considering the matter have concluded that a litigant must raise the disqualification issue within a
reasonable time after the grounds for it are known.”); see also In re United Shoe Machinery Corp.,
276 F.2d 77, 79 (1st Cir. 1960) (“The requirement of timeliness [in filing recusal motions] is of
fundamental importance.”). Accordingly, “[c]laims of judicial partiality must be raised at the
earliest moment that a litigant becomes cognizant of the purported bias.” Rodriguez-Hernandez
v. Miranda-Velez, 132 F.3d 848, 857 (1st Cir. 1998).10
“The decision to grant or deny a motion for disqualification is committed largely to the
discretion of the trial court.” United States v. Giorgi, 840 F.2d 1022, 1034 (1st Cir. 1988). Such
discretion is to be exercised “with the understanding that, ‘if the question of whether § 455 [or §
144] requires disqualification is a close one, the balance tips in favor of recusal.’” In re Boston's
Children First, 244 F.3d 164, 167 (1st Cir. 2001), as amended on denial of reh’g and reh’g en banc
(Mar. 2, 2001). However, a judge “has a duty not to recuse himself or herself if there is no
objective basis for recusal.” In re United States, 441 F.3d 44, 67 (1st Cir. 2006); see Brody v.
President & Fellows of Harvard Coll., 664 F.2d 10, 12 (1st Cir. 1981) (“There is as much obligation
upon a judge not to recuse himself when there is no occasion as there is for him to do so when
there is.” (citation omitted)).
10 According to section 144, a party moving for recusal thereunder must file the requisite affidavit “not less than ten
days before the beginning of the term at which the proceeding is to be heard, or good cause [must] be shown for failure
to file it within such time.” Id. However, “[t]he 10–day rule has been an anachronism since 1963, when Congress
abolished formal terms of court for United States district courts.” Liteky, 510 U.S. at 560 (Kennedy, J., concurring).
Accordingly, it “no longer is applied literally.” Morisseau v. DLA Piper, 532 F. Supp. 2d 595, 624 (S.D.N.Y. 2008);
see 13D CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 3551 (3d ed. 2023).
Rather, as explained above, courts now require that motions for recusal be filed “at the earliest moment that a litigant
becomes cognizant of the purported bias.” Rodriguez-Hernandez, 132 F.3d at 857.
Case 2:22-cr-00044-LEW Document 134 Filed 07/11/23 Page 13 of 21 PageID #:
<pageID>

14
A. Defendant’s Motion Fails on Timeliness Grounds
At the outset, the Court finds that Defendant’s Motion is untimely, as Defendant “already
knew all the essential facts on which he based his recusal motion” by the end of January 2023 but
“chose to wait to seek [the Judge’s] recusal until after” his Motion to Suppress and Motion to
Dismiss were denied in April and May, respectively. Owens, 902 F.2d at 1156. Notably, he filed
the instant Motion in late June, three days after the Clerk’s Office published the criminal trial list
indicating that his case was among those scheduled for trial in August. Defendant’s only
explanation as to why he filed the instant Motion at such time (over five months after the alleged
disqualification bases arose) is that he and “his counsel decided to file the motion only after
obtaining and thoroughly reviewing all relevant transcripts and carefully evaluating the evidence.”
(Def. Reply, PageID # 785.) Put simply, “[t]his is manifestly too late.” Id.; see In re United Shoe,
276 F.2d at 79 (“[A] party knowing of a ground for requesting disqualification[] can not be
permitted to wait and decide whether he likes the treatment that he receives.”); Phillips v. Amoco
Oil Co., 799 F.2d 1464, 1472 (11th Cir. 1986) (“Counsel, knowing the facts claimed to support a
§ 455(a) recusal for appearance of partiality may not lie in wait, raising the recusal issue only after
learning of the court’s ruling on the merits.”); United States v. Greenspan, 26 F.3d 1001, 1006
(10th Cir. 1994) (“[S]ection 455 . . . is not intended to be used as a forum shopping statute.”); see,
e.g., In re Cargill, Inc., 66 F.3d 1256, 1263 (1st Cir. 1995) (recognizing “red flag” where litigant
“deferred any recusal initiative” until the court’s “ruling on the motion to dismiss” proved to be
“greatly disappointing”); United States v. Betts-Gaston, 860 F.3d 525, 538 (7th Cir. 2017)
(concluding that recusal motion was untimely because it was filed four months after alleged bases
for disqualification arose); Kelley, 712 F.2d at 887 (finding recusal motion was untimely because
it was filed more than three months after alleged disqualification bases arose). Additionally,
Case 2:22-cr-00044-LEW Document 134 Filed 07/11/23 Page 14 of 21 PageID #:
<pageID>

15
Defendant has not shown good cause for his delay in seeking recusal. While “litigants are naturally
reluctant to make such motions” (Def. Reply, PageID # 785), so too are courts naturally reluctant
to grant a belated request for recusal on the eve of trial.11
B. Defendant’s Motion Fails on the Merits
Although Defendant’s untimeliness is sufficient reason to deny his Motion, see Kelley, 712
F.2d at 888, the Court nevertheless addresses the merits of his Motion. On the merits, his Motion
fails on several grounds.
First, Defendant has not alleged that this Judge acquired any facts outside of his judicial
capacity that might have resulted in any bias or prejudice toward Defendant. Rather, the grounds
he advances “consist of judicial rulings, routine trial administration efforts, and ordinary
admonishments (whether or not legally supportable) to counsel and to witnesses.” Liteky, 510
U.S. at 556. “All occurred in the course of judicial proceedings, and neither (1) relied upon
knowledge acquired outside such proceedings nor (2) displayed deep-seated and unequivocal
antagonism that would render fair judgment impossible.” Id. Additionally, while Defendant may
take issue with certain of this Judge’s statements, “judicial remarks . . . that are critical or
disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a
bias or partiality challenge.” Id. Defendant has offered no bases to suggest that this Judge’s
comments are even close to exceeding the standard.
Second, this Judge’s “ordinary and natural reactions to” Defendant’s conduct do not create
a basis for disqualification. In re Union Leader Corp., 292 F.2d 381, 388-89 (1st Cir. 1961). As
such, this Judge’s statements regarding Defendant’s credibility – which were based on his own
11 Additionally, Defendant’s Motion failed to include the requisite certificate of counsel stating that his Declaration
(ECF No. 128-1) was made in good faith. See 28 U.S.C. § 144. However, following the Government’s Opposition,
which noted this deficiency, Defendant filed the certificate. (See generally ECF No. 131.)
Case 2:22-cr-00044-LEW Document 134 Filed 07/11/23 Page 15 of 21 PageID #:
<pageID>

16
documented misrepresentations – do not create a basis for disqualification. See Liteky, 510 U.S. at
551 (citation omitted) (“Impartiality is not gullibility.”); see also Kelley, 712 F.2d at 890 (“[E]ven
when a judge has made a negative determination regarding a party’s credibility in a prior
proceeding, the judge is not required to recuse himself from presiding at a subsequent proceeding
involving the same party.”). Nor is recusal implicated by this Judge’s warning to Defendant at his
2007 sentencing. According to Defendant, he “understood [this Judge’s] statement that he would
not ‘be a very happy person’ if he were again to appear before the Judge as a threat.” (Def. Mot.,
PageID # 662; see Def. Decl., PageID # 673, ¶ 4.) He further asserts that, “[w]hen, fifteen years
later, [he] was charged with possessing firearms, the Judge appeared to presume the charge to be
true and to deem it a personal affront to his authority.” (Def. Mot., PageID # 662.) His support for
this assertion is that, at the January 10 detention hearing, this Judge reiterated the statements made
to Defendant at the 2007 hearing. (See id.) Notably, this reiteration occurred during the Court’s
colloquy with Government counsel as part of an effort to better understand the Government’s
position on ensuring community safety and the likelihood that Giambro would follow conditions
related to firearms. (See 1/10/23 Det. Hearing Tr., PageID # 311.) Critically, “[t]he test to
determine whether a judge should be disqualified for alleged partiality . . . ‘is whether the charge
of lack of impartiality is grounded on facts that would create a reasonable doubt concerning the
judge’s impartiality, not in the mind . . . of the litigant filing the motion under 28 U.S.C. § 455, but
rather in the mind of the reasonable man.’” Kelley, 712 F.2d at 890 (emphasis added). In context,
this Judge’s statements do not create a reasonable doubt concerning his impartiality.12
12 The Court also notes that Magistrate Judge Wolf similarly invoked the same portions of the 2007 sentencing
transcript in reaching her decision regarding detention in May 2022. See 5/24/22 Det. Hearing Tr., PageID # 223;
Det. Order, PageID # 27. Additionally, if Defendant perceived this Judge’s December 2007 statement as a threat, he
was obliged to raise any request for recusal when this case was initially assigned to this Judge. See Rodriguez-
Hernandez, 132 F.3d at 857.
Case 2:22-cr-00044-LEW Document 134 Filed 07/11/23 Page 16 of 21 PageID #:
<pageID>

17
Moreover, Defendant offers no factual basis for his belief that this Judge “presume[d] the
charge to be true and [] deem[ed] it a personal affront to his authority” (Def. Mot., PageID # 662).
Rather, he draws on this Judge’s well-founded concerns regarding his ability to be fully truthful
with the Court and abide by its instruction as evidence that the Judge has “prejudged” him and is
“personally aggrieved by” him. (See, e.g., Def. Reply, PageID #s 782-83.) Given the record of
Defendant’s conduct before the Court, a reasonable person would not conclude that this Judge’s
statements to Defendant demonstrated any prejudgment or feeling of personal aggrievement by
this Judge. See In re Union Leader, 292 F.2d at 388-89; see also Liteky, 510 U.S. at 551 (“[N]ot
subject to deprecatory characterization as ‘bias’ or ‘prejudice’ are opinions held by judges as a
result of what they learned in earlier proceedings. It has long been regarded as normal and proper
for a judge to sit in . . . successive trials involving the same defendant.”).
Third, recusal is not implicated by Defendant’s assertion that this Judge “did not
acknowledge” at the January 10 reopened detention hearing that the “Magistrate Judge had
mistakenly applied a presumption against [D]efendant’s release” (Def. Mot., PageID # 664).13
Defendant suggests that this “Judge would surely have realized” the alleged error upon reading the
transcript of the prior detention hearing, a copy of which “neither [D]efendant nor his lawyer” had
at the time. (Id.; see Def. Decl., PageID # 674, ¶ 6; Def. Reply, PageID # 784.) Notably, however,
Defendant’s own counsel was the first person to suggest at the initial detention hearing that such
a presumption applied. (See 5/24/22 Det. Hearing Tr., PageID # 212.) Additionally, the detention
order that entered followed the hearing did not note any presumption. Instead, the Magistrate
Judge set forth multiple bases supporting her conclusion that no set of then-available conditions
13 Under 18 U.S.C. § 3142(f), individuals charged with certain offenses face a rebuttable presumption “that no
condition or combination of conditions will reasonably assure the appearance of the person as required and the safety
of the community.” Defendant’s charged offense does not fall within those category of offenses to which the
presumption applies.
Case 2:22-cr-00044-LEW Document 134 Filed 07/11/23 Page 17 of 21 PageID #:
<pageID>

18
could reasonably have assured the community’s safety or Defendant’s appearance. (See 5/25/22
Det. Order, PageID #s 25-28.) Because the detention order reflects the official post-hearing ruling,
the Court readily concludes that the references made at the hearing regarding the application or
rebuttal of any presumption were harmless.14 Separately, nothing barred Defendant or his present
counsel from obtaining a copy of the May 24 detention hearing transcript prior to seeking to reopen
the detention hearing and identifying any error they perceived. Their failure to do so does not bear
on this Judge’s impartiality.
According to Defendant, it was also telling that this Judge, at the January 10 hearing, chose
not to release him with a condition that would, per the parties’ agreement, allow Probation to
search his home for any firearms (provided there was reasonable articulable suspicion). (See Def.
Mot., PageID # 665; see also 1/10/23 Det. Hearing Tr., PageID # 309.) Defendant fails to
acknowledge, however, that Probation unequivocally indicated that it could not impose such a
condition, citing Fourth Amendment concerns arising from warrantless searches of defendants on
pretrial release. (See 1/10/23 Det. Hearing Tr., PageID #s 309-10.) Defendant also faults this
Judge for requiring, before allowing pretrial release, additional information regarding the
ownership of the funds from which Defendant intended to post bail. (See Def. Mot., PageID #
666.) In light of Defendant’s historical misrepresentations to the Court and Probation, conflicting
information regarding the ownership of the funds, and Attorney MacColl’s representation that he
was simply “relaying what [his] client told [him]” about the funds,15 this Judge had a duty to further
examine the source of Defendant’s bail funds and to ensure that the proposed release conditions
14 The Court also notes that, while it is unclear that a presumption was applied in error, “the principle that a judge’s
rulings and statements in the course of proceedings before him or her rarely provide a basis for recusal . . . applies
even to misjudgments.” In re United States, 441 F.3d at 67; see In re Boston’s, 244 F.3d at 168.
15 See 1/10/23 Det. Hearing Tr., PageID #s 300-04.
Case 2:22-cr-00044-LEW Document 134 Filed 07/11/23 Page 18 of 21 PageID #:
<pageID>

19
were not only mutually acceptable but also enforceable. The Court readily concludes that these
circumstances would not create a reasonable doubt concerning this Judge’s impartiality in the mind
of a reasonable man. See Kelley, 712 F.2d at 890.
Finally, Defendant’s concern that the Government intends to introduce at trial this Judge’s
statements at his 2007 sentencing, regarding his prohibition of firearm possession, do not warrant
recusal under section 455(b)(1) or 455(b)(5)(iv). The Government represents that it “may seek to
introduce a transcript of [Defendant]’s 2007 sentencing hearing to establish the knowledge-of-
status element required under Rehaif v. United States, 139 S. Ct. 2191 (2019),”16 which would
necessarily include this Judge’s statements to Defendant about his restriction on possessing
firearms. (See Gov. Opp. (ECF No. 129), PageID # 773.) Defendant maintains that, “[e]ven if the
Judge refuses to comment on his prior statements, his very role as the judicial officer presiding at
defendant’s trial may unfairly sway the jury.” (Def. Mot., PageID # 668.) In support of this
assertion, he invokes section 455(b), which requires a judge to recuse himself when he has
“personal knowledge of disputed evidentiary facts concerning the proceeding” or he “[i]s to [his]
knowledge likely to be a material witness.” 28 U.S.C. §§ 455(b)(1) & 455(b)(5)(iv). While the
Government has indicated that it “may seek” to introduce this Judge’s statements, it has offered
no indication that it would also seek to call this Judge as a witness. Additionally, there are a
number of statements elsewhere in the 2007 sentencing transcript, made by Defendant’s own
counsel at the time, that the Government could seek to introduce in lieu of this Judge’s statements.
(See, e.g., 12/28/07 Sentencing Tr., PageID # 777 (“I’m the first to say that I want Mr. Giambro
to know that he can’t have a firearm or access to a firearm because that would be an offense and
16 In Rehaif, the Supreme Court held that, to convict a defendant under 18 U.S.C. § 922(g) for possession of a firearm
as a felon, “the Government [] must show that the defendant knew he possessed a firearm and also that he knew he
had the relevant status [i.e. was a felon] when he possessed it.” 139 S. Ct. at 2194.
Case 2:22-cr-00044-LEW Document 134 Filed 07/11/23 Page 19 of 21 PageID #:
<pageID>

20
that would be a very, very bad thing to do.”); id., PageID # 779 (“Mr. Giambro as a convicted
felon can obviously not have access to the firearms. That is a given; that would be an offense.”).)17
Thus, the Court concurs with the Government that these concerns “may be appropriately addressed
by stipulations, redactions, and/or limiting instructions to the jury.” (See Gov. Opp., PageID #
774 n.8.)18 For these reasons, “to the judge’s knowledge,” he is not “likely to be a material
witness” a trial. See 28 U.S.C. § 455(b)(5)(iv).19 To the extent that the Government seeks to admit
transcripts that include prior statements by this Judge, Defendant is certainly free to present any
and all objections to the admission of those statements.
In sum, the Court concludes that the facts alleged in Defendant’s Motion and Declaration,
which the Court has accepted as true, would not “prompt a reasonable question in the mind of a
well-informed person about the judge’s capacity for impartiality in the course of the trial and its
preliminaries.” In re Bulger, 710 F.3d 42, 46 (1st Cir. 2013).20 This Judge is mindful that “the
impartiality of a judge is essential to the judicial process, and recusal is necessary when the
impartiality ‘might reasonably be questioned.’” United States v. Cain, 2020 WL 200644, at *2
(D. Me. Jan. 13, 2020) (quoting In re United States, 441 F.3d at 67). However, because “there is
17 Additionally, at the sentencing hearing, this Judge inquired as to whether Defendant had “received a copy of the
written presentence investigation report as revised,” and Defendant indicated that he had. 12/28/27 Sentencing Tr.,
PageID # 754. Defendant also responded affirmatively when asked whether he had “discussed it thoroughly with” his
counsel and understood its contents. Id. The first page of the PSR detailed the felony offense of which he was
convicted and the potential penalties for such offense, which were ten years of incarceration, a $250,000 fine, and
three years of supervised release.
18 Moreover, this Judge’s statements appear on the transcript as made by “the Court,” rather than this particular Judge.
Thus, it is possible that a jury reviewing a redacted version of the 2007 sentencing transcript would not necessarily be
informed that statements attributed to “the Court” were made by this Judge.
19 It is also worth noting that “[a]ttempts to disqualify judges by indicating that the judge will be called as a witness
are not favored . . . .” United States v. Edwards, 39 F. Supp. 2d 692, 706 (M.D. La. 1999).
20 While reaching this conclusion, the Court nonetheless notes that these filings contain a number of unfounded
conclusory assertions and personal sentiments. Such “claim[s] and [their] implications cannot themselves alone
suffice to require [this] [J]udge’s recusal.” In re Bulger, 710 F.3d at 46-47; see In re United States, 158 F.3d at 35
(“A party cannot cast sinister aspersions, fail to provide a factual basis for those aspersions, and then claim that the
judge must disqualify [him]self because the aspersions, ex proprio vigore, create a cloud on [his] impartiality.”).
Case 2:22-cr-00044-LEW Document 134 Filed 07/11/23 Page 20 of 21 PageID #:
<pageID>

21
no objective basis for recusal” here, this Judge “has a duty not to recuse himself.” In re United
States, 441 F.3d at 67.21
IV. CONCLUSION
For the foregoing reasons, Defendant’s Motion for Recusal (ECF No. 128) is hereby
DENIED.
SO ORDERED.
/s/ George Z. Singal
United States District Judge
Dated this 11th day of July, 2023.
21 To the extent Defendant’s Motion is motivated by this Court’s denial of his motion to suppress and motion to
dismiss, these judicial rulings “are proper grounds for appeal, not for recusal.” Liteky, 510 U.S. at 555; see In re
United States, 441 F.3d at 65 (“[C]ourts will reject what appear to be strategic motions to recuse a judge whose rulings
have gone against the party.”). Moreover, this Judge based those decisions on his assessment of the record and the
applicable law. As such, contrary to Defendant’s assertions, these rulings could not “reasonably be viewed as
reflecting a determination to make good on” this Judge’s “promise” that Defendant “would not ‘be a very happy
person’ should he appear before the Judge on a gun possession charge.” Def. Mot., PageID # 665. While Defendant
evidently disagrees with this Judge’s decisions, “the mere fact of an adverse ruling” in insufficient to establish bias,
prejudice, or impartiality. U.S. v. Giorgi, 840 F.2d 1022, 1035 (1st Cir. 1988); see In re United States, 441 F.3d at 67
(“[A] judge’s rulings and statements in the course of proceedings before him or her rarely provide a basis for recusal.”);
see also Smith v. Danyo, 585 F.2d 83, 86 (3d Cir. 1978) (“The judicial process can hardly tolerate the practice of a
litigant with knowledge of circumstances suggesting possible bias or prejudice holding back, while calling upon the
court for hopefully favorable rulings, and then seeking recusal when they are not forthcoming.”).
Case 2:22-cr-00044-LEW Document 134 Filed 07/11/23 Page 21 of 21 PageID #:
<pageID>