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For the fourth time, Eastern District Judge Nicholas G. Garaufis has rejected a motion for recusal filed by former Bonanno family acting boss Vincent Basciano. The decision marks perhaps the first citation of the recent U.S. Supreme Court opinion Caperton v. A.T. Massey Coal Co., 129 S.Ct. 2252, which was raised by Mr. Basciano in his motion. ( NYLJ, June 9). Judge Garaufis said he failed to see the relevance of Caperton, since that case says a judge must disqualify himself when a person with a stake in a matter had a “significant and disproportionate” influence in placing a specific judge on the case by raising or spending funds in an election campaign. Mr. Basciano is awaiting trial before Judge Garaufis on charges of ordering the murder of Bonnano soldier Randolph Pizzolo. He is already serving a life sentence in federal prison for racketeering and murder. If convicted in the present case, Mr. Basciano faces the death penalty. Mr. Basciano has repeatedly sought Judge Garaufis’ recusal. In May 2006, he asked the judge to disqualify himself after a fellow inmate revealed that the judge’s name was on a “hit list” prepared by Mr. Basciano. Mr. Basciano claims the list was prepared as part of a Santeria ritual, not a murder plot. The judge denied that motion, calling it a “thinly disguised effort to manipulate the judicial process.” Mr. Basciano twice renewed the request for recusal, and the judge twice denied the requests. In a June 16 letter, Mr. Basciano again asked the judge to recuse himself, citing as a new basis, Caperton, which had been handed down by the U.S. Supreme Court eight days earlier. Mr. Basciano argued that Caperton—which held that due process required a West Virginia judge to recuse himself from a $50 million tort action after the defendant coal company’s CEO spent $3 million to help get him elected—imposed a new “objective standard test,” which asks whether “the probability of actual bias on the part of the judge [is] too high to be constitutionally tolerable.” Judge Garaufis rejected the motion from the bench last Friday, then issued a written decision yesterday to memorialize his rationale. “ Caperton involved a Due Process violation based on an elected state court judge’s failure to recuse himself after receiving $3 million in campaign contributions from a party appearing before him,” Judge Garaufis wrote in United States v. Basciano, 05-cr-060. “What that has to do with the current case is anyone’s guess.” The Eastern District court decision will be published Monday. The judge set forth several reasons for denying the motion, including that his previous decisions not to recuse himself were in fact based on objective standards. In the first denial, the judge stated, he relied on the objective standard required under 28 U.S.C. §455(a), that a judge must “disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Judge Garaufis also rejected the idea that Caperton created a new standard for recusal motions. “What was new in Caperton was not the objective standard, but the application of that standard to the area of judicial elections—something utterly irrelevant to an appointed federal judge with life tenure,” Judge Garaufis wrote. He also noted that the U.S. Supreme Court denied Mr. Basciano’s certiorari petition on the recusal issue during the same term it handed down Caperton. “Had the Court believed its decision affected the §455(a) standard,” the judge wrote, “it could easily have said so.” According to a Westlaw search, the Caperton decision has yet to be cited in a published case. George R. Goltzer, who represented Mr. Basciano, declined to comment. Assistant U.S. Attorneys Nicole M. Argentieri and John David Buretta represented the U.S. Attorney’s Office for the Eastern District. A spokesman declined to comment. @

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