Opinion
89 Cr. 945 (SWK)
June 20, 2001
MEMORANDUM OPINION and ORDER
Petitioner pro se George Rivera ("Rivera") moves to recuse the Court and modify his sentence. For the reasons set forth below, Rivera's motion is denied.
BACKGROUND
On or about June 7, 1990, a federal grand jury in the Southern District of New York issued a fourteen count indictment against ten individuals including Rivera. The indictment charged Rivera with various drug-related crimes, unlawful use of a firearm, and attempted tax evasion.
Trial commenced on September 18, 1990. On November 16, 1990, the jury returned a partial verdict of guilty with respect to Count One (conspiracy to distribute heroin, pursuant to 21 U.S.C. § 846) and Count Fourteen (attempted tax evasion, pursuant to 26 U.S.C. § 7201). The jury was unable to reach a verdict on the remaining counts against Rivera, and the Court declared a mistrial on those counts.
The Presentence Investigation Report ("PSI") prepared by the Probation Office computed a total offense level under the United States Sentencing Guidelines (the "Sentencing Guidelines") of 44 The report, applying U.S.S.G. § 2D1.1 calculated a base offense level of 36, and applied a two level increase for the multiple firearms used in the commission of the offense, pursuant to U.S.S.G. § 2D1.1 (b)(1). See PSI at ¶¶ 92-94. The Probation Office also recommended sentence adjustments from Chapter Three of the Sentencing Guidelines, adding a four-level increase for a leadership role in the heroin distribution organization, pursuant to U.S.S.G. § 3B1.1(a), and a two-level increase for threatening witnesses, the Court, and the prosecutors pursuant to U.S.S.G. § 3C1.1. See id. at ¶¶ 95, 97.
Rivera's sentence was calculated under the pre-November 1,1989 Sentencing Guidelines.
On or about April 24, 1991, the Court adopted the recommendations of the Probation Office and sentenced Rivera to life imprisonment. In addition, Rivera was sentenced to a five year term of supervised release, a $25,000 fine, and a mandatory special assessment.
DISCUSSION
Currently before the Court is Rivera's motion to modify his sentence pursuant to 18 U.S.C. § 3582 (c)(2), and his motion to recuse the Court from his case. Because Rivera's recusal motion challenges the Court's ability to fairly resolve his motion, recusal will be addressed first.
I. Motion for Recusal
Rivera moves for recusal arguing that the Court's judgment will be affected by the existence of a "Hit List, list[ing] the names of cooperating witnesses in the investigation of the Defendant's criminal case, the Honorable Shirley Wohl Kram and the Assistant United States Attorney." Motion for Recusal at 1.
The so-called "Hit List" was recovered by law enforcement personnel several months after Rivera's arrest, when another individual was found to be in possession of a photocopy of the first page of Rivera's indictment. See PSI at ¶¶ 85-86. Next to the names of every defendant in the Indictment, except for Rivera, was an "X", which meant that these people should "quiet their mouths." Id. The handwritten names of Judge Shirley Wohl Kram and Government Prosecutors Henry DePippo and Pat Fitzgerald were also on the piece of paper, with a notation to "also work on." Id. No further information was contained on the piece of paper.
Under 28 U.S.C. § 455 (a), "[a]ny justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." 28 U.S.C. § 455 (a). In particular, a judge must disqualify herself when she has "a personal bias or prejudice concerning a party." 28 U.S.C. § 455 (b)(1). In determining whether recusal is warranted, the test of impartiality is "what a reasonable person, knowing and understanding all the facts and circumstances, would believe." In re Drexel Burnham Lambert, Inc., 861 F.2d 1307, 1309 (2d Cir. 1988). It is well-settled, however, that a judge has "an affirmative duty . . . not to disqualify himself unnecessarily." National Auto Brokers Corp. v. General Motors Corp., 572 F.2d 953, 958 (2d Cir. 1978)
While a defendant's alleged death threat against a judge may, in extraordinary cases, sufficiently raise the specter of partiality to warrant the judge's recusal, see e.q. United States v. Yu-Leung, 51 F.3d 1116, 1119-20 (2d Cir. 1995), recusal is not required simply because the trial judge became aware of a defendant's alleged death threats. See id. (holding that alleged death threats did not warrant recusal); United States of America v. Yousef, No. 93 Cr. 180, 1999 WL 714103 (S.D.N.Y. Sept. 13, 1999) (same) ; Marino v. United States, No. 97 Civ. 7159, 1999 WL 39008, at *6 (N.D.Ill. January 15, 1999) (same). Instead, the court must consider the "unique circumstances" of the particular case. See United States v. Greenspan, 26 F.3d 1001, 1006 (10th Cir. 1994) (holding that under "unique circumstances" of case, defendant's conspiracy to murder judge warranted recusal).
An examination of the "unique circumstances" of this case reveals that recusal is not warranted. The threat in this case — a notation on a piece of paper to "also work on" — — was so vague that it was not taken seriously and therefore did not cause the Court to stray from its normal procedures. Cf. United States v. Greenspan, 26 F.3d at 1007 (holding that the trial judge should have recused himself because "[t]he judge obviously took the [death] threat [made by the defendant] very seriously, and chose to accelerate court procedures in order to reduce the risk to him and his family as he perceived it.") Moreover, after twelve years of litigation, Rivera's cites only one instance — a ruling in his Section 2255 petition — which he believes constitutes an example of the Court's bias. See Motion for Recusal at 2-3.
Rivera also relies upon Section 455(b)(1) which provides that a judge should recuse herself when she has "personal knowledge of disputed evidentiary facts concerning the proceeding" and argues that the Court was "informed [of the threat] by DEA Agents in her personal being and not in her Judicial being." Motion for Recusal at 5. A judge's knowledge of a threat, however, does not constitute "personal knowledge" of disputed facts within the meaning of § 455(b)(1).
Accordingly, because Rivera has not presented any grounds upon which the Court's impartiality could reasonably be questioned, his motion for recusal is denied.
II. Motion for Modification of Sentence
Rivera moves to modify his sentence pursuant to 18 U.S.C. § 3582 (c)(2) because of an intervening change in the Sentencing Guidelines. Specifically, Rivera argues that Amendment 591 to the Sentencing Guidelines requires his sentence to be reduced. See Def Memo at 7. The Government concedes that a retroactive reduction in sentence due to Amendment 591 is authorized where applicable pursuant to the Policy Statement in U.S.S.G. § 1B1.10(c). See Letter from AUSA Helen Cantwell to the Honorable Shirley Wohl Kram dated June 1, 2001 at 4.
Under the law in effect at the time Rivera was sentenced, the trial court was given broad discretion to consider the actual conduct of the defendant in determining the guideline applicable to a Chapter Two offense. See U.S.S.G. §§ 1Bl.1 1B1.2 (1990); Anderson v. United States, 2001 WL 180140, at * 1 (N.D.Tex. Feb. 16, 2001). Amendment 591 to the Sentencing Guidelines sought to "emphasize that the sentencing court must apply the offense guideline referenced in the Statutory Index for the statute of conviction" unless the case falls within a narrow exception. See U.S. Sentencing Manual app. C at 32 (Supp. 2000).
When sentencing under the Guidelines, a district court determines the base offense level for each count under the applicable offense guideline in Chapter 2, and then adjusts that level for various factors listed in Chapter 3. See U.S.S.G. § 1B1.1 (a), (b), (c).
Rivera argues that the enhancement for his leadership role in the heroin conspiracy and the increase for obstruction of justice is not permissible because "Amendment 591 clearly disallows a sentencing court to use such conduct to enhance the charged conspiracy tax evasion offenses." Def. Memo at 7-8. Rivera's enhancements, however, involve sentencing adjustments contained in Chapter Three of the Sentencing Guidelines which were not modified by Amendment 591. Moreover, during Rivera's sentencing, the Court applied the correct offense guideline and, as a result, fully complied with Amendment 591. Accordingly, Rivera's motion to modify his sentence under Amendment 591 is denied.
CONCLUSION
For the reasons set forth above, Rivera's motion for recusal and modification of his sentence is denied.SO ORDERED.