Gizella Loses Her Appeal Against Disbarred Attorney Edward Fagan

WEISSHAUS v. FAGAN

GIZELLA WEISSHAUS, Plaintiff-Counterclaim-Defendant-Appellant,

v.

EDWARD D. FAGAN, Defendant-Counter-Claimant-Appellee,

STATE OF NEW YORK, OFFICE OF COURT ADMINISTRATION OF THE UNIFIED COURT SYSTEM, JUDITH N. STEIN, in her official and individual capacity, THOMAS J. CAHILL, in his official and individual capacity, HAL R. LIEBERMAN, in his official and individual capacity, JOHN DOES, 1-20, JANE DOES, 1-20, ALAN W. FRIEDBERG, in his official and individual capacity, MEL URBACH, SAUL E. FEDER, Defendants-Appellees.

No. 10-3199-cv.

United States Court of Appeals, Second Circuit.

January 19, 2012.

Gizella Weisshaus, pro se, Brooklyn, NY., for Appellant.

Barbara D. Underwood, Solicitor General; Michael S. Belohavek, Senior Counsel to the Solicitor General; and Laura R. Johnson, Assistant Solicitor General, on behalf of Eric T. Schneiderman, Attorney General of the State of New York, for the State of New York, the New York State Office of Court Administration of the Unified Court System, Judith N. Stein, Thomas J. Cahill, Hal R. Lieberman, and Alan W. Friedberg, for Appellees.

Thomas A. Leghorn, Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York, NY, for Saul E. Feder.

Jonathan R. Harwood, Traub Lieberman Straus & Shrewsberry LLP, Hawthorne, NY, for Mel Urbach.

Edward D. Fagan, pro se, Springfield, NJ.

Present: ROBERT A. KATZMANN, GERARD E. LYNCH, Circuit Judges, LEWIS A. KAPLAN, District Judge.^*

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SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Appellant Gizella Weisshaus, proceeding pro se, appeals from the district court's judgment dismissing her action against her former (and now disbarred) attorney, Edward D. Fagan, as well as several other defendants, in which she principally accused Fagan of various wrongdoing during the course of their attorney-client relationship, and asserted civil rights claims against all defendants relating to the alleged "whitewashing" of ethics complaints she had filed against Fagan with a state disciplinary authority. We assume the parties' familiarity with the underlying facts, procedural history of the case, and issues on appeal.

I. Recusal Decision

Weisshaus first challenges the district court's denial of her recusal motion. "Recusal motions are committed to the sound discretion of the district court, and [we] will reverse a decision denying such a motion only for abuse of discretion." LoCascio v. United States, 473 F.3d 493, 495 (2d Cir. 2007) (per curiam). The timeliness of a recusal motion is a "serious threshold question," and it is "well-settled that a party must raise its claim of a district court's disqualification at the earliest possible moment after obtaining knowledge of facts demonstrating the basis for such a claim." Apple v. Jewish Hosp. & Med. Ctr., 829 F.2d 326, 333 (2d Cir. 1987). In considering the question of timeliness, "[a] number of factors must be examined, including whether: (1) the movant has participated in a substantial manner in trial or pre-trial proceedings; (2) granting the motion would represent a waste of judicial resources; (3) the motion was made after the entry of judgment; and (4) the movant can demonstrate good cause for delay." Id. at 334 (internal citations omitted).

In this case, Weisshaus's recusal motion was untimely for the reasons articulated by the district court in its thorough and well-reasoned decision. See Weisshaus v. New York, No. 08 Civ. 4053(DLC), 2009 WL 4823932 (S.D.N.Y. Dec. 15, 2009). Briefly stated, Weisshaus waited almost nineteen months after filing her complaint to file the recusal motion, at which point the district court had already expended substantial judicial resources overseeing and adjudicating Weisshaus's claims. Moreover, Weisshaus's contention that she had good cause to delay until the other defendants were dismissed from the action is entirely unfounded, as Weisshaus herself concedes that Fagan is "the primary defendant" in this matter and that all facts concerning the district judge's involvement in prior actions involving Fagan and Weisshaus were already known. Although there was no dispositive ruling as to Fagan at the time Weisshaus brought her recusal motion, the district court aptly noted that the motion came on the heels of its direction that Weisshaus submit to a deposition, thus strongly suggesting that the motion was a mere fall-back position in response to an adverse ruling. See In re Int'l Bus. Machs. Corp., 45 F.3d 641, 643 (2d Cir. 1995) ("[A] prompt application avoids the risk that a party is holding back a recusal application as a fall-back position in the event of adverse rulings on pending matters."). The district court, therefore, acted well within its discretion in finding Weisshaus's recusal motion untimely.

Even if the motion had been timely, however, it was wholly without merit for the reasons explained by the district court. Indeed, Weisshaus appears to have abandoned almost all of the arguments she asserted below, contending on appeal only that the district court could not impartially consider Weisshaus's claim that Fagan breached his fiduciary duty by failing to appeal a ruling issued by the district court in an earlier case. This argument is entirely unavailing. Whether Fagan breached his fiduciary by allegedly ignoring his client's request to file an appeal, see Pl.'s Br. 11, is an issue divorced from the merits of the underlying case. Moreover, recusal pursuant to 28 U.S.C. § 455(a) is generally limited to those circumstances in which the alleged partiality "stems from an extrajudicial source." United States v. Carlton, 534 F.3d 97, 100 (2d Cir. 2008) (internal quotation marks and brackets omitted). Accordingly, "judicial rulings alone almost never constitute a valid basis for a bias or partiality motion," and "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). Because Weisshaus does not and cannot argue that the district court's opinion displayed even a hint of partiality, let alone a "deep-seated favoritism or antagonism," her challenge to the district court's denial of her recusal motion must be dismissed.

FRANK LOCASCIO, Petitioner-Appellant, v. UNITED STATES OF AMERICA, Respondent-Appellee. Docket No. 05-6761-pr UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 473 F.3d 493; 2007 U.S. App. LEXIS 387 December 5, 2006, Argued  January 9, 2007, Decided SUBSEQUENT HISTORY: As Amended February 13, 2007; As Amended March 1, 2007.  US Supreme Court certiorari denied by LoCascio v. United States, 552 U.S. 1010, 128 S. Ct. 554, 169 L. Ed. 2d 374, 2007 U.S. LEXIS 12093 (2007) Post-conviction proceeding at, Motion denied by United States v. LoCascio, 2011 U.S. Dist. LEXIS 94618 (E.D.N.Y., Aug. 24, 2011) PRIOR HISTORY:  [**1]  Appeal from a judgment of the United States District Court for the Southern District of New York (I. Leo Glasser, Judge), denying petitioner's amended motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2255. Because the District Court acted within its permissible discretion in denying petitioner's recusal motion, and because it properly determined that the alleged death threat to petitioner's counsel was not the cause of any lapse in representation, we affirm the denial of post-conviction relief.  LoCascio v. United States, 462 F. Supp. 2d 333, 2005 U.S. Dist. LEXIS 29562 (E.D.N.Y., 2005) DISPOSITION: AFFIRMED. CASE SUMMARY PROCEDURAL POSTURE: Petitioner prisoner appealed from a judgment of the United States District Court for the Southern District of New York denying petitioner's amended motion to vacate, set aside or correct his sentence under 28 U.S.C.S. § 2255. OVERVIEW: Petitioner's amended motion raised an ineffective assistance of counsel claim, based on allegations that petitioner's attorney at his criminal trial altered his defense strategy after receiving a death threat from defendant's co-defendant. The court previously remanded the case for an evidentiary hearing so that the district court could ascertain the existence of the alleged conflict created by the death threat and any resultant lapse in representation. On remand, petitioner's motion to recuse the district court judge under 28 U.S.C.S. § 455 was denied. The court held that the district court acted within its discretion in denying petitioner's motion, as the judge's rulings did not raise a deep-seated and unequivocal antagonism toward petitioner that would render fair judgment impossible. Additionally, the district court judge did not improperly decide the recusal motion himself, and there was a protracted and unexplained delay in contesting a remark made by the judge until after the judge had denied petitioner 28 U.S.C.S. § 2255 petition. The district court also properly determined that the alleged death threat to petitioner's counsel did not cause a lapse in representation. OUTCOME: The court affirmed the denial of post-conviction relief. CORE TERMS: recusal, criminal trial, partiality, amend, bias, death threat, evidentiary hearing, disqualification, interviewer, antagonism, aff'g, cross-examination, new trial, ineffective assistance of counsel, counsel's performance, defense strategy, conflict of interest, reasonable person, quotation marks omitted, disassociate, intimidated, deep-seated, disqualify, favoritism, dismissive, pre-trial, contempt, feelings, recuse, murder LexisNexis® Headnotes Hide Headnotes Criminal Law & Procedure > Pretrial Motions & Procedures > Disqualification & Recusal Criminal Law & Procedure > Trials > Judicial Discretion Criminal Law & Procedure > Appeals > Standards of Review > Abuse of Discretion > General Overview HN1 Recusal motions are committed to the sound discretion of a district court, and a circuit court of appeals will reverse a decision denying such a motion only for abuse of discretion. Judicial rulings alone almost never constitute a valid basis for a bias or partiality motion. Furthermore, 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. Criminal Law & Procedure > Pretrial Motions & Procedures > Disqualification & Recusal HN2 Under the objective partiality standard of 28 U.S.C.S. § 455(a), a court must determine the existence of the appearance of impropriety not by considering what a straw poll of the only partly informed man-in-the-street would show, but by examining the record facts and the law, and then deciding whether a reasonable person knowing and understanding all the relevant facts would recuse the judge. Criminal Law & Procedure > Pretrial Motions & Procedures > Disqualification & Recusal HN3 Recusal motions are to be made at the earliest possible moment after obtaining knowledge of facts demonstrating the basis for such a claim. Criminal Law & Procedure > Pretrial Motions & Procedures > Disqualification & Recusal HN4 In determining the untimeliness of a recusal motion, some relevant factors include whether: (1) the movant has participated in a substantial manner in trial or pre-trial proceedings; (2) granting the motion would represent a waste of judicial resources; (3) the motion was made after the entry of judgment; and (4) the movant can demonstrate good cause for delay. Criminal Law & Procedure > Pretrial Motions & Procedures > Disqualification & Recusal HN5 A judge has an affirmative duty to inquire into the legal sufficiency of such an affidavit and not to disqualify himself unnecessarily, particularly where the request for disqualification was not made at the threshold of the litigation and the judge has acquired a valuable background of experience. To be legally sufficient, an affidavit "must give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment. COUNSEL: HERALD PRICE FAHRINGER, Fahringer & Dubno-Herald Price Fahringer PLLC (Erica T. Dubno, on the brief), New York, NY, for Petitioner. BARBARA UNDERWOOD, Assistant United States Attorney (Thomas Firestone, Assistant United States Attorney, of counsel; Roslynn R. Mauskopf, United States Attorney for the Eastern District of New York, on the brief), New York, NY, for Respondent.  JUDGES: Before: CARDAMONE and STRAUB, Circuit Judges, and KOELTL, District Judge. * * The Honorable John G. Koeltl, United States District Judge for the Southern District of New York, sitting by designation. OPINION  [*494]  Per Curiam: Petitioner-Appellant [**2]  Frank LoCascio appeals from the judgment of the United States District Court for the Southern District of New York (I. Leo Glasser, Judge), denying his amended motion to vacate, set aside or correct his life sentence pursuant to 28 U.S.C. § 2255. The amended motion raised an ineffective assistance of counsel claim, based on allegations that LoCascio's attorney at the criminal trial, Anthony Cardinale, altered his defense strategy after receiving a death threat from LoCascio's co-defendant, John Gotti. We previously remanded the case for an evidentiary hearing so that the District Court could ascertain "the existence of both the alleged conflict created by the death threat and any resultant lapse in representation reflected by the alleged change in Cardinale's conduct of LoCascio's defense." LoCascio v. United States, 395 F.3d 51, 57 (2d Cir. 2005). In accordance with our instructions, the District Court conducted an evidentiary hearing, at which Cardinale was the sole witness. Based on Cardinale's testimony, and applying the legal standards set forth in our remand order, the District Court  [*495]  denied LoCascio's § 2255motion. After careful [**3]  review of the record and due consideration of Petitioner's arguments, we affirm on the basis of the District Court's finding that any failure to individuate LoCascio was the result of the joint defense strategy between LoCascio and Gotti, not Gotti's alleged death threat against Cardinale. LoCascio v. United States, No. 00 CV 6015(ILG), 462 F. Supp. 2d 333, 338-339 (E.D.N.Y. 2005); see LoCascio, 395 F.3d at 58. Because the District Court's finding of no causation is sufficient to sustain the judgment, we find it unnecessary to determine whether the questions Cardinale testified he might have asked Sammy Gravano, a goverment witness, constituted a "'plausible alternative defense not taken up by counsel.'" LoCascio, 395 F.3d at 56 (quoting United States v. Moree, 220 F.3d 65, 69 (2d Cir. 2000)). 1 - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - - 1 After concluding that LoCascio had failed to demonstrate a basis for relief based on the alleged actual conflict of interest, in accordance with the remand from this Court, the District Court stated that "[o]bedience to the teachings of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), drives me as well to the conclusion that this motion must be denied." LoCascio, 462 F. Supp. 2d at 341 (emphasis added). The Strickland test for ineffectiveness of counsel requires a showing that counsel's performance was objectively unreasonable and prejudiced the client, that is, that there is a reasonable probability that but for counsel's professional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694. However, prejudice is presumed where a defendant shows an actual conflict that adversely affected his counsel's performance. Id. at 692; LoCascio, 396 F.3d at 56. The Strickland standard of prejudice therefore did not apply in this case, but it was referred to only after Judge Glasser had already determined that no relief was warranted under the proper standard applicable to an alleged actual conflict of interest. Therefore, the reference to the alternative holding under Strickland does not require a remand. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -  [**4]  Following remand, just three days before the evidentiary hearing was scheduled to begin, LoCascio filed a motion to recuse or disqualify Judge Glasser pursuant to 28 U.S.C. §§ 144 and 455. The supporting affidavits, filed by LoCascio and his habeas counsel, pointed to the following as evidence of Judge Glasser's alleged personal bias and prejudice: (1) the fact that Judge Glasser held Cardinale in summary contempt during the criminal trial; (2) Judge Glasser's repeated denial of LoCascio's pre-trial, trial, and post-conviction motions, and in particular, his denial of LoCascio's motion to amend the § 2255 petition on the ground that the ineffective assistance of counsel claim was "meritless"; and (3) Judge Glasser's comment to an interviewer that he was not intimidated during the criminal trial. Judge Glasser denied the motion, which LoCascio now challenges on appeal. HN1Recusal motions are committed to the sound discretion of the district court, and this Court will reverse a decision denying such a motion only for abuse of discretion. United States v. Arena, 180 F.3d 380, 398 (2d Cir. 1999), cert. denied, 531 U.S. 811, 121 S. Ct. 33, 148 L. Ed. 2d 13 (2000). [**5]  We have reviewed the record in light of LoCascio's allegations, and we find his arguments to be wholly without merit. As Judge Glasser explained in his thorough opinion, "judicial rulings alone almost never constitute a valid basis for a bias or partiality motion."LoCascio v. United States, 372 F. Supp. 2d 304, 315 (E.D.N.Y. 2005); see also Liteky v. United States, 510 U.S. 540, 555, 114 S. Ct. 1147, 127 L. Ed. 2d 474 (1994). Furthermore, "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."  [*496]  Liteky, 510 U.S. at 555. Judge Glasser's decision to hold Cardinale in contempt in 1992 (which Judge Glasser subsequently vacated), and his rulings on LoCascio's numerous motions over the past fourteen years, see LoCascio, 372 F. Supp. 2d at 306 n.2, do not raise even a suspicion of a "deep-seated and unequivocal antagonism that would render fair judgment impossible," Liteky, 510 U.S. at 556. [**6]  2 - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - - 2 See, e.g., United States v. LoCascio, 6 F.3d 924 (2d Cir. 1993) (affirming judgment of conviction against challenges to the District Court's impanelment of an anonymous sequestered jury, disqualification of defense attorneys, admission of expert testimony on crime families, giving of certain jury instructions on murder and murder conspiracy, refusal to sever LoCascio's trial, and denial of motion for new trial); United States v. Gotti, 166 F.3d 1202 (Table), 1998 WL 870230, at *1 (2d Cir. Dec. 8, 1998) (unpublished disposition) (affirming the District Court's denial of a subsequent motion for new trial and stating, "Judge Glasser carefully considered, and ultimately rejected, each of these contentions . . . . Although LoCascio attempts to recast some of these arguments before this court, we are not persuaded that we should disturb any of Judge Glasser's carefully reasoned holdings on this appeal"), aff'g 171 F.R.D. 19 (E.D.N.Y. 1997). - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - LoCascio contends [**7]  that Judge Glasser's comment to an interviewer following the criminal trial manifests his "dismissive attitude about the threat of bombs planted in his chambers[, which] would certainly lead any objective observer to question his ability to disassociate his own personal feelings from those that frightened Anthony Cardinale." LoCascio's argument is based on the following exchange: [Interviewer:] Did . . . you feel intimidated during the trial?  Judge Glasser: No. We see nothing in Judge Glasser's one-word response that might indicate a "dismissive attitude" about bomb threats, or raise any doubt in the mind of a reasonable person as to his ability to decide the present case fairly. See United States v. Bayless, 201 F.3d 116, 126-27 (2d Cir. 2000) (stating that HN2under the objective partiality standard of 28 U.S.C. § 455(a), the Court must determine "the existence of the appearance of impropriety . . . not by considering what a straw poll of the only partly informed man-in-the-street would show[,] but by examining the record facts and the law, and then deciding whether a reasonable person knowing and understanding [**8]  all the relevant facts would recuse the judge" (second alteration in original; internal quotation marks omitted)), cert. denied, 529 U.S. 1061, 120 S. Ct. 1571, 146 L. Ed. 2d 474 (2000). If anything, Judge Glasser's remark confirms his capacity to disassociate his own personal feelings and focus solely on the merits of the case before him. In his brief to this Court, LoCascio cites another remark as constituting grounds for recusal, specifically, Judge Glasser's comment during a January 2003 scheduling hearing that he may institute disbarment proceedings against Cardinale. LoCascio did not raise this argument in his recusal motion to the District Court. Although we are not required to consider issues raised for the first time on appeal, we do so here to dispel any insinuation of bias or partiality on the part of Judge Glasser. See Greene v. United States, 13 F.3d 577, 586 (2d Cir. 1994) (stating that a panel may, in its discretion, consider an issue raised for the first time on appeal "if the elements of the claim were fully set forth and there is no need for additional fact finding"). First, we find that the comment, read in context, 3 cannot reasonably  [*497]  be [**9]  construed as exhibiting personal animosity towards Cardinale or LoCascio (neither of whom was present), or displaying hostility towards LoCascio's claim. Rather, Judge Glasser was simply noting some issues that might require further consideration, for purposes of setting a briefing schedule on LoCascio's motion. In any event, because the comment revealed neither "an opinion that derives from an extrajudicial source" nor "such a high degree of favoritism or antagonism as to make fair judgment impossible," it did not warrant disqualification. Liteky, 510 U.S. at 555; see id.at 556. - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - - 3 We excerpt the relevant portion of the transcript below: THE COURT: . . . It's a very discrete issue raised by this motion, the issue, permission or what you want to call it to amend the pleading and to conduct some hearing in open court. That's what it's about. I don't know why it should take 90 days to respond to a motion to amend the complaint whether I grant it. I granted [the government's] request for 90 days but when I got [the] letter [from Mr. White, petitioner's counsel], I was compelled to ask myself does the government need 90 days? You don't have to review the entire transcript of this trial to respond to this motion. MR. BOURTIN [Assistant U.S. Attorney]: Not the entire transcript, but certainly some significant portions of it. THE COURT: That would be something that you may want to do should a hearing be held, should Mr. White's motion for a hearing be granted. You may want an opportunity to examine the transcript about the cross-examination by Mr. Cardinale for purposes of ascertaining whether there's any merit to the motion and for the purpose of preparing cross-examination. Reading the testimony doesn't take three months to review. There's also a rather interesting issue, I think, Mr. LoCascio is represented by two lawyers at trial, the second one being a very experienced and able lawyer, John Mitchell which may have some bearing upon Mr. LoCascio's - Mr. Cardinale - well, I suppose he's well aware of the fact should he testify to what it is he says he's testifying, there may be some proceeding which would be instituted by me to have him disbarred at the very least but I don't think we need three months to do that. MR. BOURTIN: We'll respond by whatever date your Honor deems appropriate. THE COURT: You have the transcripts. You have the record of that trial. It would seem to me 45 days is more than enough, give you an opportunity to read that cross-examination. . . . - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -  [**10]  Second, although LoCascio now contends that Judge Glasser's "threat" against Cardinale is indisputable proof of the lingering "friction between these two formidable forces," the record shows that LoCascio did not seek Judge Glasser's recusal at any reasonable time following the January 2003 hearing. As we have made clear, HN3"recusal motions are to be made 'at the earliest possible moment after obtaining knowledge of facts demonstrating the basis for such a claim.'" Gil Enters., Inc. v. Delvy, 79 F.3d 241, 247 (2d Cir. 1996) (quoting Apple v. Jewish Hosp. & Med. Ctr., 829 F.2d 326, 333 (2d Cir. 1987)). There are at least two reasons for this rule: "First, a prompt application affords the district judge an opportunity to assess the merits of the application before taking any further steps that may be inappropriate for the judge to take. Second, a prompt application avoids the risk that a party is holding back a recusal application as a fall-back position in the event of adverse rulings on pending matters." Id. (quoting In re IBM Corp., 45 F.3d 641, 643 (2d Cir. 1995)). Here, LoCascio made no mention of the above [**11]  remark until after the District Court had denied his motion to amend and after it had denied his § 2255 petition. This protracted and unexplained delay provides yet another reason for rejecting this new ground for relief. See id.; United States v. Daley, 564 F.2d 645, 651 (2d Cir. 1977), cert. denied, 435 U.S. 933, 98 S. Ct. 1508, 55 L. Ed. 2d 530 (1978); see also Apple, 829 F.2d at 334 (holding that HN4in determining  [*498]  the untimeliness of a recusal motion, some relevant factors include "whether: (1) the movant has participated in a substantial manner in trial or pre-trial proceedings; (2) granting the motion would represent a waste of judicial resources; (3) the motion was made after the entry of judgment; and (4) the movant can demonstrate good cause for delay" (citations omitted)). In his final argument, LoCascio asserts that Judge Glasser should have referred the recusal motion to a different judge instead of deciding it himself. However, as LoCascio acknowledges in his brief, the mere filing of an affidavit of prejudice does not require referral. See Apple, 829 F.3d at 333. "On the contrary, we have held that HN5a judge [**12]  has an affirmative duty to inquire into the legal sufficiency of such an affidavit and not to disqualify himself unnecessarily, particularly 'where the request for disqualification was not made at the threshold of the litigation and the judge has acquired a valuable background of experience.'" Nat'l Auto Brokers Corp. v. Gen. Motors Corp., 572 F.2d 953, 958 (2d Cir. 1978) (quoting Rosen v. Sugarman, 357 F.2d 794, 797-98 (2d Cir. 1966)), cert. denied, 439 U.S. 1072, 99 S. Ct. 844, 59 L. Ed. 2d 38 (1979). To be legally sufficient, an affidavit "must give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment." Wolfson v. Palmieri, 396 F.2d 121, 124 (2d Cir. 1968) (internal quotation marks omitted). For the reasons discussed above, we find that nothing in LoCascio's affidavit even approached this standard. Accordingly, we conclude that Judge Glasser properly discharged his duty in declining to refer the recusal motion to another judge. For the foregoing reasons, the judgment of the District Court is AFFIRMED.