IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
EASTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,

No. 08-CR-1313-LRR

vs.
MARTIN DE LA ROSA-LOERA,

ORDER

Defendant.
____________________
I. INTRODUCTION
The matter before the court is Defendant Martin De La Rosa-Loera’s “Motion for
Recusal Pursuant to 28 U.S.C. § 455(a)” (“Motion”) (docket no. 30).
II. RELEVANT PRIOR PROCEEDINGS
On July 17, 2008, a grand jury charged Defendant in a one-count Indictment
(docket no. 2).

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Count 1 of the Indictment charges Defendant with Aiding and Abetting

the Possession and Receipt of a False or Fraudulent Resident Alien Card, in violation of
18 U.S.C. §§ 1546(a) and 2. Specifically, Count 1 of the Indictment charges that, in about
April and May of 2008, in the Northern District of Iowa, Defendant
did aid and abet P.H. in knowingly possessing, obtaining[,]
accepting and receiving a document prescribed by statute or
regulation for entry into or as evidence of authorized stay or
employment in the United States, that is, a resident alien card,
knowing that the document had been falsely made or procured
by fraud.

1

On July 3, 2008, the government filed a Criminal Complaint, in which it alleged
Defendant “encourag[ed] aliens to reside in the United States in violation of law, and
aid[ed] and abett[ed] the possession and use of fraudulent identification documents,” in
violation of 18 U.S.C. §§ 1324(a), 1546(a) and 2. See United States v. De La Rosa-Loera,
No. 08-MJ-276-JSS (docket no. 1). The Indictment superseded the Criminal Complaint.

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 Indictment at 1.
On August 13, 2008, Defendant filed the Motion. On August 26, 2008, the
government filed a Resistance (docket no. 41). On August 28, 2008, Defendant filed a
Reply (docket no. 50).
On August 26, 2008, while the Motion was pending, the government filed a onecount Information (docket no. 42) against Defendant. Count 1 of the Information charges
Defendant with Aiding and Abetting the Harboring of Aliens, in violation of 8 U.S.C.
§ 1324(a)(1)(A)(iii), 1324(a)(1)(A)(v)(II) and 1324(a)(1)(B)(ii). Specifically, Count 1 of
the Information charges that, in about April and May of 2008, Defendant “did aid and abet
others in harboring aliens at his place of employment in Postville, Iowa, knowing that such
aliens had come to, entered and remained in the United States in violation of law.”
Information at 1.
On August 27, 2008, Defendant appeared for a hearing (“Hearing”) before United
States Magistrate Judge Jon S. Scoles. Defendant waived his right to prosecution by
indictment and pled guilty to Count 1 of the Information. Defendant pled guilty pursuant
to a Plea Agreement (“Plea Agreement”) (docket no. 47-2). In exchange for Defendant’s
plea of guilty to Count 1 of the Information, the government agreed to move to dismiss
Count 1 of the Indictment at the time of sentencing.

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During the Hearing, Defendant withdrew the Motion in part. Defendant “waive[d],
orally on the record at the beginning of the plea hearing, any recusal argument for the
purposes of [Magistrate Judge Scoles] taking his guilty plea and [the undersigned] . . .
accepting his guilty plea.” Rule 11 Letter (docket no. 39), at 1; Hearing Minutes (docket
no. 47-1), at 1.
2

Although the government did not explicitly promise to move to dismiss Count 1,
such promise is inherent in the Plea Agreement. See, e.g., Response (docket no. 37), at
1 (agreeing Defendant’s guilty plea to Count 1 of the Information mooted Defendant’s
change-of-venue motion for Count 1 of the Indictment).
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 On the same date, Magistrate Judge Scoles issued a written ruling, in which he
recommended that the undersigned accept Defendant’s guilty plea. On September 11,
2008, the undersigned accepted Defendant’s guilty plea.
Neither party requested oral argument on the Motion.

The court finds oral

argument is not necessary. The Motion is fully submitted and ready for decision.
III. LEGAL STANDARD
The sole issue in the Motion is whether the undersigned must recuse herself,
pursuant to 28 U.S.C. § 455(a). In relevant part, § 455(a) states:
Any . . . judge . . . of the United States shall disqualify
[her]self in any proceeding in which [her] impartiality might
reasonably be questioned.
28 U.S.C. § 455(a). In other words, “[a] judge must recuse if ‘[her] impartiality might
reasonably be questioned’ because of bias or prejudice.” United States v. Burnette, 518
F.3d 942, 945 (8th Cir. 2008) (quoting 28 U.S.C. § 455)), petition for cert. filed, ___
U.S.L.W. ___ (U.S. Jun. 4, 2008) (No. 07-11317).
“Section 455(a) provides an objective standard of reasonableness.” United States
v. Martinez, 446 F.3d 878, 883 (8th Cir. 2006). “The issue is ‘whether the judge’s
impartiality might reasonably be questioned by the average person on the street who knows
all the relevant facts of a case.’” Id. (quoting Moran v. Clarke, 296 F.3d 638, 648 (8th
Cir. 2002) (en banc)). “Because a judge is presumed to be impartial, a party seeking
recusal bears the substantial burden of proving otherwise.” Id. (citing United States v.
Denton, 434 F.3d 1104, 1111 (8th Cir. 2006)).
IV. ANALYSIS
Defendant presents two primary reasons for recusal. First, Defendant claims the
undersigned had “extensive involvement” in approximately 300 criminal cases in
Waterloo, Iowa (“the Waterloo cases”) and must recuse. Memorandum in Support of
Motion (“Def.’s Memo.”) (docket no. 31-1), at 2.

Second, Defendant claims that the

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 undersigned made two statements to a newspaper reporter about the Waterloo cases that
require recusal. The court considers these two reasons, in turn.
A. Involvement in the Waterloo Cases
Defendant asserts that, in May of 2008, he was employed as a supervisor at
AgriProcessors, Inc. (“AgriProcessors”), a meat-packing plant in Postville, Iowa.
Defendant claims the Indictment (and presumably the Information) “arises out of the May
12, 2008 mass arrests and subsequent prosecution of more than 300 AgriProcessors
employees whose plea agreements were approved by this Court and required their
cooperation with the government.” Id. at 1. Defendant concludes his case and the
Waterloo cases are “inextricably intertwined,” id. at 16 (citation and internal quotation
marks omitted), and asserts, “[i]n a matter of such public concern, a judge who had no
involvement with the prior proceedings should preside over this case,” id. at 2.

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In support of the Motion, Defendant submitted twenty-four exhibits, including: (1)
articles from national and local newspapers; (2) press releases from interest groups, the
government, and Mr. Robert Phelps, the Clerk of Court for the Northern District of Iowa
(“Clerk of Court”); (3) letters from a public interest group to the undersigned and from
a local attorney to a Congresswoman; (4) criminal docket sheets; and (5) an interpreter’s
“personal account” of his involvement in the Waterloo cases. According to Defendant,
the exhibits collectively prove the undersigned’s “extensive involvement and apparent
cooperation with the government in developing a process [in the Waterloo cases] which,
by all appearances, was designed to produce conveyor[-]belt justice . . . .” Id. at 20.

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The undersigned only considers whether she should recuse herself. The
undersigned expresses no view as to whether Magistrate Judge Scoles must recuse himself.
See, e.g., Clay v. Brown, Hopkins & Stambaugh, 892 F. Supp. 11, 13 (D.D.C. 1995)
(holding that a magistrate judge should be permitted to decide in the first instance whether
he was required to recuse), aff’d sub nom. Clay v. Hopkins, 1996 WL 678528, *1 (D.C.
Cir. Oct. 24, 1996) (per curiam).
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 The court holds that the undersigned’s involvement in the Waterloo cases does not
require recusal from Defendant’s case. 28 U.S.C. § 455(a). At the outset, it is important
to point out that Defendant does not assert that the average person on the street might
reasonably question the undersigned’s impartiality because of events that have occurred
during the pendency of his case or because of alleged actions toward Defendant.
Defendant is a United States citizen and was not arrested or prosecuted in the Waterloo
cases. The undersigned learned very little about Defendant and his situation from the
Waterloo cases and has not formed any opinions about his sentence.
Defendant’s case may be related to the Waterloo cases, but he has not shown that
his case and the Waterloo cases are “inextricably intertwined.” The undersigned routinely
presides over defendants in related cases.

Even if the court were to assume that

Defendant’s case were somehow “inextricably intertwined” with the Waterloo cases, it is
settled that “opinions formed by the judge on the basis of facts introduced or events
occurring in the course 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);

Burnette, 518 F.3d at 945 (same). Defendant has not demonstrated that the undersigned
has displayed a deep-seated favoritism or antagonism that would make fair judgment in his
case impossible.
In any event, an average person on the street who knows all the facts about the
undersigned’s involvement in the Waterloo cases would not reasonably question the
undersigned’s impartiality in presiding over Defendant’s case. Defendant repeatedly
confuses logistical cooperation with collusion or involvement in the executive function of
pursuing prosecution.

Further, it is necessary to separate fact from fiction when

considering a § 455(a) motion. “‘[A] judge considering whether to disqualify [herself]
must ignore rumors, innuendoes, and erroneous information published as fact . . . .’”

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 United States v. Greenough, 782 F.2d 1556, 1558 (11th Cir. 1986) (per curiam) (quoting
In re United States, 666 F.2d 690, 695 (1st Cir. 1981)). Put simply, one should not
believe everything that is written in newspapers, press releases, letters or accept as true
the misinformed speculation of those who lack personal knowledge of all the facts. See
United States v. Bayless, 201 F.3d 116, 129 (2d Cir. 2000) (“This circuit has expressly
urged caution in allowing media accounts to become the focus of a recusal inquiry: ‘[W]e
cannot adopt a per se rule holding that when someone claims to see smoke, we must find
that there is a fire. That which is seen is sometimes merely a smokescreen. Judicial
inquiry may not therefore be defined by what appears in the press.’”) (quoting In re Drexel
Burnham Lambert Inc., 861 F.2d 1307, 1309 (2d. Cir. 1988)).
The truth is that the undersigned limited her actions in the Waterloo cases to her
role as Chief Judge of the Northern District of Iowa, that is, performed duties in her
official capacity. The undersigned did not decide whether to criminally charge the
defendants in the Waterloo cases or pre-approve the parties’ binding plea agreements. The
undersigned was not present when the government and defense counsel negotiated such
agreements. See Fed. R. Crim. P. 11(c)(1) (“The court must not participate in these
discussions.”). The undersigned did not know the terms of the plea agreements until after
they were negotiated.
The involvement of the undersigned, as well as the other judges in the Waterloo
cases, was no different than other multiple-defendant cases. Judges routinely approve
search warrants, decide where and when hearings will be held, conduct initial appearances,
preside over arraignments and examine plea agreements—after they are fully
negotiated—to determine if they are reasonable.
As Defendant concedes, “logistical cooperation from the [c]ourt is to be expected
in multi-defendant cases.” Def.’s Memo. at 6. Here, in light of the great volume of
warrants, logistical cooperation was necessary to ensure that the defendants in the

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 Waterloo cases were afforded all their rights under the Constitution and the laws of the
United States. Court personnel helped to ensure that each defendant would have access
to an attorney and an interpreter. Court personnel appointed the same assistant federal
public defenders and CJA-panel attorneys as are appointed in other criminal cases
involving indigents.
Consistent with past efforts, attorneys and interpreters were provided checklists and
pattern proceedings transcripts before the Waterloo court proceedings began.

A

reasonable, disinterested observer knowing all the facts would understand that these
checklists and pattern proceedings transcripts were not a sinister effort on the part of the
federal judges involved to “script” the Waterloo proceedings, as Defendant and others
have alleged.

See United States v. Lauersen, 348 F.3d 329, 334 (2d Cir. 2003)

(expressing the recusal standard under § 455(a) as whether “‘an objective, disinterested
observer fully informed of the underlying facts [would] entertain significant doubt that
justice would be done absent recusal’” (quoting In re Aguinda, 241 F.3d 194, 201 (2d Cir.
2001)). The checklists and pattern proceedings transcripts were designed for the benefit
of all participants in the Waterloo cases to ensure that all laws were followed and all
pertinent topics covered. Checklists are routinely made available to all counsel in other
criminal cases and have been posted on the court’s website. They merely give life to the
requirements that must be met under Federal Rule of Criminal Procedure 11. The pattern
proceedings transcripts were deviated from, revised and improved throughout the Waterloo
cases. They were revised continually in an attempt to find language that could be
interpreted more easily and that would make concepts as clear as possible to non-English
speaking persons.
The undersigned consulted and acted with other judges. The Honorable James B.
Loken, Chief Judge of the Eighth Circuit Court of Appeals, gave permission for federal
district court judges from North Dakota, Nebraska and Minnesota to sit in the Northern

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 District of Iowa and assist with the Waterloo cases. Because the government only executed
approximately half of the warrants that Judge Scoles issued, only the Honorable Ralph R.
Erickson, United States District Court Judge for the District of North Dakota, sat by
designation in the Waterloo cases. All of the non-senior judges in the Northern District
of Iowa presided in the Waterloo cases, including the Honorable Mark W. Bennett, United
States District Court Judge for the Northern District of Iowa, the Honorable Paul A. Zoss,
Chief Magistrate Judge for the Northern District of Iowa, and Magistrate Judge Scoles.
The temporary relocation of judges and other court personnel to other parts of the
Northern District of Iowa was consistent with the court’s past practice. For example, in
April of 1996, the Honorable Michael J. Melloy, then-United States District Court Judge
for the Northern District of Iowa, and the Honorable John A. Jarvey, then-United States
Magistrate Judge for the Northern District of Iowa, presided over dozens of criminal
immigration cases at the National Guard Armory in Charles City, Iowa.
In the verbiage of the Administrative Office of the United States Courts, the
temporary relocation of judges and other court personnel was a Continuity of Operations
(“COOP”) exercise. A COOP provides court personnel with needed training in the event
that courthouse operations must relocate due to a natural or manmade disaster. In the
present case, the COOP proved to be timely: one month later, the Great Flood of 2008
destroyed much of the Cedar Rapids courthouse. Judges and court personnel were forced
to evacuate. To this date, the court remains in an emergency temporary courthouse, and
the experiences of the judges and other court personnel in the Waterloo cases proved to be
an invaluable training exercise.

4

4

On May 12, 2008, the Clerk of Court issued a press release announcing the
temporary relocation of judges and court personnel to Waterloo. The purpose of the press
release was to inform the public of the relocation and that “[i]t is not anticipated that [such
relocation] will substantially affect court operations in Cedar Rapids and Sioux City.”
(continued...)
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 There was nothing unusual about the undersigned’s or other judges’ decisions to
hold proceedings outside of regular business hours. A reasonable observer knowing all
the facts would know that it is not uncommon for the judges of the Northern District of
Iowa to hold court outside of normal business hours. Indeed, the undersigned sometimes
holds “night court.” That is, the undersigned presides over two trials in a single day—one
in the morning and early afternoon and the other in the late afternoon and evening. The
judges of the Northern District of Iowa have even held court on federal holidays and on
Saturdays.
The undersigned did not directly or indirectly pressure the defendants in the
Waterloo cases to plead guilty.

Indeed, the undersigned did not expect all of the

5

defendants to plead guilty and, assuming that trials would be held, cleared much of her
calendar for the summer months. The defense attorneys appointed in the Waterloo cases,
some of the best and brightest attorneys who practice in the Northern District of Iowa,
never objected to the nature of their representations or the manner in which the
proceedings were held.
The undersigned stresses that she did not possess the authority to simply decline to
4

(...continued)
Def.’s Ex. D (docket no. 31-7), at 2. Defendant criticizes the Clerk of Court’s additional
statement in the press release that such relocation was “in response to the anticipated arrest
and prosecution of numerous illegal aliens in the Department of Homeland Security law
enforcement initiative in northern Iowa.” Id. Contrary to Defendant’s argument in the
Motion, a reasonable observer knowing all the facts would not construe the Clerk of
Court’s use of the phrase “anticipated arrest and prosecution of numerous illegal aliens”
as evidence that the undersigned and other judges in the Waterloo cases had predetermined
that all of the defendants in the Waterloo cases were guilty. In any event, a reasonable
observer knowing all the facts would not construe the Clerk of Court’s press release as
“display[ing] a deep-seated favoritism or antagonism that would make fair judgment
impossible” in Defendant’s case. Liteky, 510 U.S. at 555.
5

Not all of the defendants in the Waterloo proceedings immediately pled guilty.
Further, the judges did not immediately accept all guilty pleas.
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 become involved in the Waterloo cases. The government—not the undersigned—decides
whom to prosecute. The undersigned may not simply decline to preside over unpopular
criminal prosecutions or criminal prosecutions that may cause legislators and other persons
to question the wisdom of this nation’s immigration laws and policies. The undersigned
took a solemn oath to “faithfully and impartially discharge and perform all the duties
incumbent . . . . under the Constitution and laws of the United States.” 28 U.S.C. § 453.
Fractious policy debates about how the existing laws should be enforced or amended must
be left for the Legislative and Executive Branches to resolve.
B. Attributed Statements
Likewise, the two statements attributed to the undersigned in a national newspaper
do not require recusal. 28 U.S.C. § 455(a). A reporter who was present in Waterloo
attributed the following two responses to the undersigned: (1) the prosecutors “have tried
to be fair in their charging” and (2) the immigration lawyers did “not understand the
federal criminal process as it relates to immigration charges.” See Def.’s Ex. A (docket
no. 31-4), at 5-6.
Again, at the outset, it is important to point out that Defendant does not assert that
the average person on the street might reasonably question the undersigned’s impartiality
because of events that have occurred during the pendency of his case or because of alleged
actions directed at Defendant. Contrary to Defendant’s argument, these two attributed
comments are not “inextricably intertwined” with Defendant’s case. Defendant’s case was
not pending or impending, and the interview did not concern him. Rather, the focus of the
interview was to explain the court procedures in the Waterloo cases to the public. See
Code of Conduct for United States Judges, Canon 3A(6) (forbidding judges from
commenting on the merits of pending and impending cases but permitting “the explanation
of court procedures”). The attributed comments do not “display a deep-seated favoritism
or antagonism” toward Defendant “that would make fair judgment impossible.” Liteky,

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 510 U.S. at 555.
In any event, the average person on the street who knows all the relevant facts
would not reasonably question the undersigned’s impartiality toward Defendant based upon
the two statements attributed to the undersigned. Context is important. A newspaper
reporter approached the undersigned in Waterloo and asked if the undersigned would
explain the Waterloo court proceedings to the public. (Apparently, the court proceedings
were unusual insofar as the Executive Branch usually brings administrative charges—not
criminal charges—after large immigration raids.) At some point in the interview, the
reporter asked the undersigned to comment on the criticisms certain immigration lawyers
had voiced about the fairness of criminal as opposed to administrative proceedings.
The undersigned did not seek out the newspaper reporter, did not display an unusual
interest in the outcomes of the Waterloo cases and did not comment on the merits of
Defendant’s case. The court merely answered the reporter’s questions about the federal
criminal process. The two statements attributed to the undersigned were isolated and a far
cry from the actions and statements of judges in the cases that Defendant cites in support
of the Motion. Cf. United States v. Microsoft Corp., 253 F.3d 34, 107-18 (D.C. Cir.
2001); United States v. Cooley, 1 F.3d 985, 990-96 (10th Cir. 1993), In re Boston’s
Children First, 244 F.3d 164, 164-71 (1st Cir. 2001); In re IBM Corp., 45 F.3d 641, 64246 (2d Cir. 1995).
C. Conclusion
Considering Defendant’s two reasons for recusal separately or cumulatively,
recusal from Defendant’s case is not required. 28 U.S.C. § 455(a). Accordingly, the
court shall sentence Defendant. See, e.g., Walker v. Bishop, 408 F.2d 1378, 1382 (8th
Cir. 1969) (“There is as much obligation on the part of the judge not to recuse [herself]
when there is no occasion for doing so as there is to recuse [herself] when such an
occasion exists.” (Citations omitted.)); In re Nat’l Union Fire Ins. Co., 839 F.2d 1226,

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 1229 (7th Cir. 1988) (“Judges have an obligation to litigants and their colleagues not to
remove themselves needlessly, because a change of umpire in mid-contest may require a
great deal of work to be redone . . . and facilitate judge-shopping.” (Citation omitted.))
(cited with approval in Sw. Bell Tel. Co. v. FCC, 153 F.3d 520, 523 (8th Cir. 1998)
(Hansen, J., in chambers).

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V. DISPOSITION
The Motion (docket no. 30) is DENIED.
IT IS SO ORDERED.
DATED this 29th day of September, 2008.

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It is important to note that Defendant only asserts that the undersigned should not
sentence him. Section 455(a) “‘does not provide a vehicle for parties to shop among
judges.’” United States v. Urben-Potratz, 470 F.3d 740, 745 (8th Cir. 2006) (quoting
Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist. No. 1, 839 F.2d 1296, 1302
(8th Cir. 1988)); see id. at 745-46 (discussing judge-shopping in the Northern District of
Iowa). The dangers of judge-shopping are heightened after Gall v. United States, 128 S.
Ct. 586 (2007), because “[t]he reality is that a defendant’s ultimate sentence now depends
substantially on the personal sentencing philosophy of his or her sentencing judge.”
United States v. Shy, 538 F.3d 933, 939 (8th Cir. 2008) (Colloton, J., concurring).
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