FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 08-10147
v. D.C. No.
KURT F. JOHNSON, 3:05-cr-00611-WHA
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 08-10258
Plaintiff-Appellee, D.C. No.
v. 3:05-cr-00611-
DALE SCOTT HEINEMAN, WHA-1
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Northern District of California
William H. Alsup, United States District Judge, Presiding
Argued and Submitted
May 10, 2010—San Francisco, California
Filed July 6, 2010
Before: Barry G. Silverman, Raymond C. Fisher and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Silverman
9565
UNITED STATES v. JOHNSON 9569
COUNSEL
Maitrey A. Badami, Badami & Leonida, San Francisco, Cali-
fornia; and Kari E. Hong, Law Offices of Kari E. Hong, Oak-
land, California, for the defendants-appellants.
Laurie Kloster Gray (argued), Joseph P. Russoniello, Barbara
J. Valliere, Brigid S. Martin, and C. David Hall, U.S. Attor-
ney’s Office for the Northern District of California, San Fran-
cisco, California, for the Government-appellee.
OPINION
SILVERMAN, Circuit Judge:
Defendants Kurt F. Johnson and Dale Scott Heineman were
indicted for conspiracy and multiple counts of mail fraud
related to their illegitimate debt-elimination business. They
were adamant in their desire to represent themselves and
assert an absurd legal theory wrapped up in Uniform Com-
mercial Code gibberish. Both defendants were examined by a
psychiatrist and found to have no diagnosable mental disor-
der. Thereafter, the district court conducted Faretta1 hearings
spanning several days in which the defendants were exten-
sively advised of their right to counsel and the disadvantages
1
Faretta v. California, 422 U.S. 806 (1975) (establishing that a defen-
dant has the constitutional right to represent himself when he voluntarily
and intelligently elects to do so).
9570 UNITED STATES v. JOHNSON
of self-representation. The judge practically begged them to
accept counsel but they refused. The district court found that
the defendants were competent to represent themselves and
that such was their constitutional right. Defendants now con-
tend that Indiana v. Edwards, 554 U.S. 164 (2008), decided
by the Supreme Court after their trial concluded, required the
district court to terminate their self-representation because of
what they describe as their “nonsensical” legal “antics” after
the trial began. They say they may have been competent to
stand trial but not to represent themselves.
The record clearly shows that the defendants are fools, but
that is not the same as being incompetent. Under both Faretta
and Edwards, they had the right to represent themselves and
go down in flames if they wished, a right the district court
was required to respect. There was no legal or medical basis
to foist a lawyer on them against their will. We also hold
today that there was no basis for the recusal of the district
judge nor error in any of the jury instructions.
I. Background
In 2004-2005, Kurt F. Johnson and Dale Scott Heineman
started a debt-elimination program. The premise of their pro-
gram was that banks had an unfair advantage over borrowers;
the program purportedly provided a mechanism for borrowers
to eliminate their mortgage debt. The program was entitled
the “Dorean Process” and consisted of several steps. Home-
owners first transferred their interest in their properties to a
trust, naming the defendants as trustees. The defendants then
sent demand notices to the lenders questioning the validity of
their lending practices. When banks failed to respond or
“prove” that their lending practices were valid, the defendants
recorded bogus documents with county clerks’ offices osten-
sibly establishing that the homes were no longer subject to a
mortgage. The homeowners then refinanced with a different
bank using their supposedly unencumbered homes as collat-
eral. In addition to up front fees, Heineman and Johnson also
UNITED STATES v. JOHNSON 9571
took as a fee a significant portion of the proceeds of the new
loans the homeowners thus obtained. By their own admission,
the defendants made over three million dollars in this scheme.
Because the homeowners stopped making their mortgage
payments, the initial lenders started sending notices of default
and eventually foreclosure notices. In response, Johnson and
Heineman sued the banks that were initiating foreclosures.
Johnson and Heineman filed fifteen such lawsuits against dif-
ferent banks/lenders, all in the Northern District of California.
Judge Alsup dismissed the defendants’ first case under Rule
8 of the Federal Rules of Civil Procedure. See Frances Kenny
Family Trust v. World Sav. Bank FSB, No. C 04-03724, 2005
WL 106792, at *3 (N.D. Cal. Jan. 19, 2005). Judge Alsup also
entered an order for Johnson and Heineman’s lawyer to show
cause why he should not be sanctioned for filing multiple friv-
olous cases. The lawyer filed a response and also filed a
motion to withdraw as counsel and a declaration under seal in
support of his motion. He explained in his sealed declaration
that some of Johnson’s and Heineman’s statements to custom-
ers were false. He expressed concern that he had been
employed in an effort to supply credibility to the possibly ille-
gitimate Dorean Process. Judge Alsup sanctioned the attorney
and referred the matter to the United States Attorney’s Office.
Johnson and Heineman were indicted on September 22,
2005, and the case was assigned to Judge Alsup because it
related to the defendants’ prior civil case. The defendants
filed a “Writ of Mandamus and Prohibition” in which they
moved to recuse Judge Alsup. The motion was referred to
Judge Susan Illston. Judge Illston found that the rulings made
by Judge Alsup during the prior civil proceedings regarding
the defendants’ debt elimination scheme were, in effect, all in
a day’s work, nothing out of the ordinary, contained nothing
uncalled for, and did not evince a design to hurt the defen-
dants. She also found that Judge Alsup’s referral of the matter
to the U.S. Attorney’s Office only demonstrated his belief that
the law may have been broken, not that he harbored a deep-
9572 UNITED STATES v. JOHNSON
seated and unequivocal antagonism that would render fair
judgment impossible. The recusal motion was thus denied.
Judge Alsup then held a series of Faretta hearings in which
he patiently and thoroughly addressed the issue of self-
representation with the defendants. At the first hearing, Judge
Alsup addressed Defendant Johnson first:
THE COURT: Now, Mr. Johnson, you’re entitled to
a lawyer and if you can’t afford one we will appoint
one at no expense to you. Do you understand that?
JOHNSON: I understand your offer, yes.
THE COURT: And . . . do you want a lawyer?
JOHNSON: Absolutely not.
Judge Alsup then explained the significance of the right to
counsel:
You’re entitled to a lawyer here to help you get
through this and to help you identify all the issues
and to make the best arguments possible on your
behalf, that’s important. . . . And it’s a right you have
under the Constitution. You don’t want to give that
up without thinking very hard about it. . . .
My job is to try my best get you a fair trial and a fair
procedure and right off the bat we need to get you
a lawyer and you need — you should have a lawyer.
You do have a right to represent yourself if you
really want to, but [a part] of my job is to help you
understand why you should not do that and you
should have a lawyer, but if at the end of all that you
insist on it you can represent yourself if you want[ ]
to.
UNITED STATES v. JOHNSON 9573
The defendants requested a continuance to allow them to
research whether they should accept outside representation
and the court granted the continuance.
At the defendants’ next hearing the court had an assistant
federal public defender present to demonstrate to the defen-
dants that they could in fact have counsel appointed for them.
The court explained the advantages of having a lawyer and
the disadvantages of not having one:
If you don’t have a lawyer then you have to conduct
the case yourself. By that, I mean, you have to make
your motions, do legal research, respond to motions
made by the Government and to come in and argue
them. And it’s conceivable someone who’s not a
lawyer can do an okay job at that, but it’s very
unlikely because it helps to have the experience of
being a lawyer. . . .
So you must abide by the same rules of the Court as
the lawyers do. And if you make mistakes, I can’t
give you special privileges or benefits, and the judge
can’t help you. The Government is represented by a
trained, skilled prosecutor experienced in criminal
law in the court procedures and . . . the procedures
you face in this case.
Judge Alsup again asked the defendants if they wanted a law-
yer:
THE COURT: Now, do you want to give up your
right to have a lawyer represent you in this case?
HEINEMAN: Sir, I’m not looking to be represented
by anybody.
The court then asked Heineman if he would like to consult
with the assistant public defender regarding representation:
9574 UNITED STATES v. JOHNSON
THE COURT: Before you make it clear to me you
understand in making that decision — do you want
to talk to Mr. Cohen back there from the public
defender’s office?
HEINEMAN: I don’t have anything to say to him at
this time.
The court then addressed Johnson who requested another con-
tinuance so that he could look into whether he would have
access to a law library prior to deciding whether he wanted
counsel appointed. The court granted the request and contin-
ued the hearing.
Because the defendants were considering representing
themselves and because they had made some strange com-
ments in court, the district judge ordered that the defendants
undergo mental examinations. James R. Missett, M.D., Ph.D.,
evaluated the defendants separately at the Federal Corrections
Institute in Dublin, California. Both defendants were less than
cooperative during their evaluations, but Dr. Missett engaged
them for approximately one hour each and filed written
reports in which he opined that neither defendant was suffer-
ing from any mental disorder. The court held a competency
hearing at which Dr. Missett testified in person. The court
found the defendants competent to represent themselves based
on Dr. Missett’s reports and testimony and based on the
court’s own observations.
The court held one final Faretta hearing, advising the
defendants once again of the implications of proceeding with-
out an attorney:
THE COURT: I want to now turn to the two paths
that you can go down here. One path is you have a
lawyer at no expense to you. We will appoint a law-
yer. Each of you will have a separate lawyer, a law-
yer who will be yours; not representing the Public
UNITED STATES v. JOHNSON 9575
Defender or whatever it would be, representing you
and your interest in the case. That would be effective
immediately and going all the way through the end
of trial. That’s one road we can go down.
Another road we can go down is you say, No, I don’t
want a lawyer and that you want to appear in court
and conduct your own defense. You have the right
under the Constitution to do that, but I need to make
sure that you — before you exercise that right, that
you understand you have the right to the lawyer and,
also, what some of the advantages and disadvantages
are for each of these courses. . . .
That lawyer would help conduct the investigation.
That lawyer would review the discovery that’s been
provided to you, but, also, would follow up on leads.
That lawyer would make possible motions to compel
further information from the government. The law-
yer would have an investigator working with him to
go out and ask questions, dig up evidence, try to
poke holes in the government’s case, and do investi-
gations into some of the witnesses the government
may want to bring at trial so that the cross-
examinations by the lawyer would be the best possi-
ble examinations. . . .
All right. I want to give you another opportunity. I
am suggesting very strongly to you that you both
should have a lawyer to make out the case here in
court in your defense and to poke holes in the gov-
ernment’s [case] and to make motions and so forth.
. . . It can only help you and it can’t hurt you and I
suggest that you should do that. Will you let me
appoint a lawyer?
JOHNSON: Like I say, your Honor, if you want to
9576 UNITED STATES v. JOHNSON
appoint one for the defendant, you are more than
welcome to.2 I do not want one.
THE COURT: Mr. Heineman?
HEINEMAN: That is correct, I do not want one.
Appoint one [sic] the defendant.
Despite the defendants’ refusal to accept appointed counsel,
the district judge did appoint advisory counsel to assist the
defendants solely on issues of procedure and courtroom proto-
col.
On the first day of trial, the court yet again asked the defen-
dants to consider appointment of counsel despite the addi-
tional delay that would result; again, both defendants refused.
After a month-long jury trial, the defendants were convicted
of one count each of conspiracy and thirty-four counts each
of mail fraud, in violation of 18 U.S.C. § 1341.
II. Self-Representation
Johnson and Heineman argue that the district court should
not have permitted them to represent themselves. First, they
argue under Faretta v. California, 422 U.S. 806, 834 n.46
(1975), and Illinois v. Allen, 397 U.S. 337, 343 (1970), that
their self-representation should have been terminated because
their own courtroom behavior rendered their trial unfair. Sec-
ond, they argue that under Indiana v. Edwards, 554 U.S. 164,
128 S. Ct. 2379 (2008), regardless of whether their behavior
required termination under Faretta, they were in fact not com-
petent to continue representing themselves. As evidence in
2
One of the defendants’ recurring themes in their colloquies with the
court was their peculiar theory that they were “sentient human beings” dis-
tinct from the abstract titles “Defendants KURT F. JOHNSON and DALE
SCOTT HEINEMAN” as they were referred to in the indictment and court
documents.
UNITED STATES v. JOHNSON 9577
support of these two similar, but distinct, claims that the dis-
trict court should have forced counsel upon them, they cite
their reluctance to provide the court with their names or dates
of birth, their campaign of filing meaningless and nonsensical
documents, their insistence on wearing their prison garb in
front of the jury, and their off-the-wall comments such as
Johnson’s statement in his opening that he wanted the jury to
“enter a guilty plea for us,” which he subsequently apologized
for, explaining that he “was trying to make a very quick rem-
edy to this procedurally.” We have jurisdiction pursuant to 28
U.S.C. § 1291.
[1] A defendant’s right to self-representation is clearly
established. Faretta, 422 U.S. at 821. But before electing to
represent himself a defendant must be advised of his right to
counsel and the dangers and disadvantages of self-
representation. Id. at 835. Further, a defendant’s waiver of the
right to counsel must be knowing and voluntary. Id. If a
defendant persists in his choice to represent himself, that
choice must be honored even if it is to his own detriment. Id.
at 834. Here, there is no question but that the court more than
adequately ensured that Faretta was satisfied. It is hard to
imagine what else the court could or should have said to have
explained the hazards of self-representation.
[2] Nonetheless, the right to self-representation is not abso-
lute; the constitutional guarantee to a fair trial permits “the
trial judge [to] terminate self-representation by a defendant
who deliberately engages in serious and obstructionist mis-
conduct.” Id. at 834 n.46 (citing Allen, 397 U.S. at 343). It is
an open question what standard of review this court should
apply to a district court’s decision to permit an obstreperous
defendant to represent himself under Faretta when there is a
risk the trial will violate due process, but we need not decide
the applicable standard here because these defendants’ claims
fail under any of the possible standards of review. It is clear
that Johnson and Heineman did not engage in such serious
obstructionist conduct that the fairness of their trial was jeop-
9578 UNITED STATES v. JOHNSON
ardized, requiring the district court to terminate their self-
representation. Defendants argue that termination of self-
representation is required when defendants engage in serious
misconduct, are unwilling to abide by courtroom protocol, or
are extremely disruptive and defiant. But the behavior of the
defendants during the trial in this case, while occasionally
wacky, was not disruptive or defiant. The defendants filed
numerous nonsensical pleadings, were uncooperative at times,
and chose to wear their prison garb during trial, but they did
not exhibit a blatant disregard for courtroom rules or protocol
and did not make it impossible for the court to administer fair
proceedings. In fact, they made opening statements, closing
arguments, cross-examined witnesses, argued jury instruc-
tions, and testified on their own behalf. They did not disrupt
the proceedings or have to be gagged, shackled, or removed
from the courtroom. See United States v. Mack, 362 F.3d 597,
600-03 (9th Cir. 2004) (holding self-representation should
have been terminated where defendant’s behavior led to the
trial court’s exclusion of the defendant from the courtroom
and the denial of the defendant’s right to call witnesses and
conduct closing argument). The defendants’ courtroom
behavior, although eccentric at times, would not have justi-
fied, let alone required, the involuntary deprivation of their
constitutional right to represent themselves.
[3] Defendants next argue that they were not competent to
represent themselves, Faretta notwithstanding, under the
Supreme Court’s decision in Indiana v. Edwards, 554 U.S.
164, 128 S. Ct. 2379 (2008). Until recently, if a defendant was
determined to be competent to stand trial he was also deemed
competent to represent himself. Godinez v. Moran, 509 U.S.
389, 399 (1993). The Supreme Court clarified in Edwards,
however, that a trial court may insist on representation for a
defendant who is competent to stand trial but who is suffering
from severe mental illness to the point where he is not compe-
tent to perform the more arduous task of representing himself.
Edwards, 554 U.S. at ___, 128 S. Ct. at 2388. The Court con-
cluded that the constitutional guarantee of a fair trial permits
UNITED STATES v. JOHNSON 9579
a district court to override a Faretta request for defendants
whose mental disorder prevented them from presenting any
meaningful defense. Id.
As an initial matter, we have not yet articulated the applica-
ble standard of review to be applied to Edwards challenges.
See United States v. Thompson, 587 F.3d 1165, 1171 & n.2
(9th Cir. 2009) (assuming abuse of discretion); United States
v. Ferguson, 560 F.3d 1060, 1070 n.6 (9th Cir. 2009).
Because Edwards holds that the Constitution “permits” inter-
fering with a Faretta request for “gray area” defendants, it
suggests an abuse of discretion standard. See United States v.
Berry, 565 F.3d 385, 391 (7th Cir. 2009); United States v.
DeShazer, 554 F.3d 1281, 1290 (10th Cir. 2009). However,
that does not directly affect the question raised by the defen-
dant here, which is when, if ever, the Constitution requires a
court to impose counsel on a “gray area” defendant despite a
voluntary and knowing waiver. Given the nature of the dis-
tinction between that which is constitutionally required and
that which is merely constitutionally permitted, see Edwards,
554 U.S. at ___, 128 S. Ct at 2385 (noting relevance of that
distinction), the standard of review to be applied to Edwards
challenges in which a Faretta request was granted may
require different analysis than provided by Edwards itself, in
which the Faretta request was denied. We have no need to
reach these difficult questions here, however, because the
defendants in this case fail to get through the door to making
an Edwards claim at all, because they were clearly fully com-
petent, albeit foolish, to represent themselves. We review the
district court’s factual finding that the defendants were com-
petent to represent themselves for clear error. See United
States v. Friedman, 366 F.3d 975, 980 (9th Cir. 2004); see
also Edwards, 554 U.S. at ___, 128 S. Ct. at 2387 (“[T]he
trial judge, particularly one such as the trial judge in this case,
who presided over one of [the defendant’s] competency hear-
ings and his two trials, will often prove best able to make
more fine-tuned mental capacity decisions, tailored to the
9580 UNITED STATES v. JOHNSON
individualized circumstances of a particular defendant.”);
DeShazer, 554 F.3d at 1286.
We recently applied Edwards in United States v. Ferguson,
560 F.3d at 1069, and United States v. Thompson, 587 F.3d
at 1171-73. In Ferguson, the district court acquiesced in a
defendant’s request for self-representation despite his bizarre
courtroom behavior because the court felt it could not force
representation upon Ferguson under the law. After the trial,
but while the appeal was still pending, the Supreme Court
decided Edwards. On appeal, we remanded to the district
court to allow it to decide whether the opinion in Edwards
would have affected its decision to allow Ferguson to repre-
sent himself. Ferguson, 560 F.3d at 1070.
In concluding that remand was appropriate we relied on the
fact that the psychiatric reports regarding Ferguson focused
on whether he was competent to assist counsel at trial, not
whether he was competent to represent himself. Id. at 1068.
We also focused on Ferguson’s failure to do anything at his
trial: he conducted no voir dire, gave no opening, gave no
closing, conducted no cross-examination, and called no wit-
nesses. Id. at 1069. We noted that this absence of a defense
seriously jeopardized the fairness of his trial or at least the
appearance of fairness. Id. We found most important the
implication in the record that the district court might have
forced counsel upon Ferguson had the district court had the
benefit of the decision in Edwards. Id.
Subsequently, in Thompson, we determined that no remand
was necessary under Edwards where a defendant’s self-
reported mental problems and vacillations regarding self-
representation appeared manufactured as a tactic to delay
trial. Thompson, 587 F.3d at 1173. On the morning of trial,
after multiple continuances and a competency hearing,
Thompson advised the court that he wished to represent him-
self and would need additional time to prepare for trial. Id. at
1168. The court conducted a Faretta hearing and strongly
UNITED STATES v. JOHNSON 9581
urged Thompson to reconsider self-representation but finally
relented and granted Thompson’s request to represent himself.
Id. at 1168-70.
In Thompson, we contrasted the factual circumstances there
with those in Ferguson. Thompson, 587 F.3d at 1172-73. Spe-
cifically, we relied on evidence in the record indicating that
the district court properly evaluated Thompson’s ability to
represent himself rather than merely his competence to stand
trial. Id. We also noted the difference between Ferguson’s
total lack of activity at trial and Thompson’s lengthy collo-
quies with the court in which he seemed “acutely aware of
what was occurring.” Id. at 1173. We held that the district
court did not abuse its discretion in concluding that Thomp-
son was competent to represent himself. Id.
[4] In this case, the district court did not err in concluding
that Johnson and Heineman were competent to represent
themselves. The district court had the defendants psychiatri-
cally evaluated and held a competency hearing in which it
properly considered both their competence to represent them-
selves as well as their competence to stand trial. The doctor
who evaluated the defendants concluded that there was no
evidence that either was suffering from any mental disorder.
And the district court found that “both defendants are able to
comprehend information as it is received by them in a normal
manner without any mental defect whatsoever; that they are
able to express themselves coherently and appropriately,
sometimes even with great articulation.” Most importantly,
the district court concluded, “[t]hey are able to assist in their
own defense . . . if they had counsel. Or if they don’t have
counsel, to assist themselves in conducting the defense.” The
district court, even without the benefit of Edwards, pre-
sciently contemplated whether the defendants had the mental
capacity to represent themselves, not just the competence to
stand trial, and it found that they did.
[5] The record amply supports the district judge’s determi-
nation. The defendants gave opening statements, testified,
9582 UNITED STATES v. JOHNSON
examined and cross-examined witnesses, challenged jury
instructions, and delivered closing arguments of significant
length. The district court was in the best position to observe
the defendants’ behavior and to make the determination that
the defendants had the mental capacity to represent them-
selves. Edwards, 554 U.S. at ___, 128 S. Ct. at 2387; Fergu-
son, 560 F.3d at 1070. The concerns present in Ferguson over
the defendant’s total failure to present any defense are not
implicated by the record in this case. Nor is there any evi-
dence of any mental illness whatsoever on the part of either
defendant in this case, unlike the defendant in Edwards. See
Edwards, 554 U.S. at ___, 128 S. Ct. at 2382-83 (discussing
the defendant’s schizophrenia).
[6] In sum, the district judge conducted three Faretta hear-
ings spanning several days in which he repeatedly and thor-
oughly advised the defendants of their right to counsel, the
pitfalls of self-representation, and their right to change their
minds. The defendants unequivocally demonstrated their
understanding of the situation and their adamant desire to rep-
resent themselves, as was their right. They were examined by
a psychiatrist and found to be fine. In the absence of any men-
tal illness or uncontrollable behavior, they had the right to
present their unorthodox defenses and argue their theories to
the bitter end.
III. Recusal
[7] We review the denial of a recusal motion for an abuse
of discretion. Pesnell v. Arsenault, 543 F.3d 1038, 1043 (9th
Cir. 2008). Johnson and Heineman argue that Judge Alsup
should have been recused because he presided over their prior
civil case and they say he received extrajudicial information
that biased him against them. Title 28 U.S.C. § 455(a) pro-
vides “[a]ny . . . judge . . . of the United States shall disqualify
himself in any proceeding in which his impartiality might rea-
sonably be questioned.” Section 455(b)(1) further provides
that the judge shall disqualify himself “[w]here he has a per-
UNITED STATES v. JOHNSON 9583
sonal bias or prejudice concerning a party, or personal knowl-
edge of disputed evidentiary facts concerning the
proceeding.” 28 U.S.C. § 455(b)(1).
[8] The Supreme Court analyzed the evolution of these
sections and the scope of their application in Liteky v. United
States, 510 U.S. 540, 543-56 (1994). Liteky addressed both
courtroom bias and the extrajudicial source doctrine, the situ-
ation in which a judge is allegedly biased based on informa-
tion acquired outside of judicial proceedings. Id. at 554-55.
The Court held that judicial rulings or information acquired
by the court in its judicial capacity will rarely support recusal.
Id. at 555. The Court explained that if information is acquired
during court proceedings, only exceptionally inflammatory
information will provide grounds for recusal based on bias or
prejudice:
[O]pinions 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 impossi-
ble.
Id. The Court also held that extrajudicial sources are neither
necessary nor sufficient alone to warrant recusal on bias or
prejudice grounds. Id. at 554.
We have described the extrajudicial source factor as involv-
ing “something other than rulings, opinions formed or state-
ments made by the judge during the course of trial.” United
States v. Holland, 519 F.3d 909, 914 (9th Cir. 2008). We have
provided an objective test for determining whether recusal is
required: “whether a reasonable person with knowledge of all
the facts would conclude that the judge’s impartiality might
reasonably be questioned.” Clemens v. U.S. Dist. Court for
the Cent. Dist. of Cal., 428 F.3d 1175, 1178 (9th Cir. 2005).
9584 UNITED STATES v. JOHNSON
We have also noted several factors that are ordinarily insuffi-
cient to require recusal including the following:
[T]he mere fact that a judge has previously
expressed . . . a dedication to upholding the law or
a determination to impose severe punishment within
the limits of the law upon those found guilty of a
particular offense; [ ] prior rulings in the proceeding,
or another proceeding, solely because they were
adverse; [ ] mere familiarity with the defendant(s), or
the type of charge, or kind of defense presented.
Id. at 1178-79.
[9] Judge Illston did not abuse her discretion in denying
the defendants’ motion to recuse Judge Alsup. Judge Alsup’s
dismissal of the defendants’ prior civil case, his order of sanc-
tions against their attorney, his award of costs and fees to the
civil defendants, and his referral of the matter to the U.S.
Attorney’s Office were judicial actions that will not serve as
bases for recusal absent unusual circumstances not present
here. Liteky, 510 U.S. at 555. Adverse findings do not equate
to bias. Nothing Judge Alsup did was outside of his official
duties or even shown to be erroneous in any way. Further, the
defendants’ civil attorney’s declaration filed under seal in
their civil case did not constitute an extrajudicial source
potentially prejudicing Judge Alsup; it was an event occurring
in the course of prior proceedings. Id. It was not an abuse of
discretion for Judge Ilston to conclude that Judge Alsup’s
prior rulings did not display a “deep-seated favoritism or
antagonism that would make fair judgment impossible,” id.,
or suggest that “his impartiality might reasonably be ques-
tioned,” 28 U.S.C. § 455(a).
IV. Jury Instructions
When a defendant has objected to a jury instruction at trial,
we review for an abuse of discretion. United States v. Harri-
UNITED STATES v. JOHNSON 9585
son, 585 F.3d 1155, 1160 (9th Cir. 2009). In formulating jury
instructions, the trial court is afforded “substantial latitude so
long as its instructions fairly and adequately cover the issues
presented.” United States v. Hicks, 217 F.3d 1038, 1045 (9th
Cir. 2000) (internal quotation marks omitted). Johnson and
Heineman argue that Jury Instructions Eighteen and Nineteen
constituted findings of fact that were forced upon the jury and
consequently reduced the government’s burden of proof. Jury
Instruction Eighteen defined terms such as “note,” “deed of
trust,” “family trust,” and “mortgage.” It also explained the
legal obligations of lenders and borrowers when a loan is
made. Jury Instruction Nineteen stated that nothing in the
Uniform Commercial Code or other banking or accounting
laws would alter the legal principles contained in the other
instructions.
[10] The court’s instructions were not findings of fact, as
the defendants now claim. The instructions were simply cor-
rect statements of the law and did not invade the province of
the jury or reduce the government’s burden of proof. See
Hicks, 217 F.3d at 1045-46.
V. Conclusion
For the foregoing reasons, the defendants’ convictions are
AFFIRMED.