Opinion
1:23-CR-00027 EAW
2023-07-13
UNITED STATES of America, v. Deshema CLARK, Defendant.
Maeve Eileen Huggins, Government Attorney, Joseph M. Tripi, United States Attorney's Office, Buffalo, NY, for United States of America. Peter Matthew Kooshoian, Rosenthal, Siegel & Muenkel LLP, Buffalo, NY, for Defendant.
Maeve Eileen Huggins, Government Attorney, Joseph M. Tripi, United States Attorney's Office, Buffalo, NY, for United States of America. Peter Matthew Kooshoian, Rosenthal, Siegel & Muenkel LLP, Buffalo, NY, for Defendant.
DECISION AND ORDER
ELIZABETH A. WOLFORD, Chief Judge
I. INTRODUCTION
Pending before the Court is a motion filed pursuant to 28 U.S.C. § 455(a) by defendant Deshema Clark ("Defendant") seeking to recuse the undersigned from handling the above-captioned matter because of comments made during two status conferences conducted in the related case of United States v. Cobb et al., Case No. 1:19-CR-00155 (the "2019 Action" or "Case No. 1:19-CR-00155"), where Defendant pleaded guilty to a superseding information charging possession of marijuana. For the reasons discussed below, recusal is compelled by neither the facts nor the law. To hold otherwise would inappropriately allow Defendant to pick and choose the judge who will preside over this matter. As a result, the motion is denied.
II. FACTUAL AND PROCEDURAL BACKGROUND
Defendant was initially charged in the 2019 Action by way of a second superseding indictment returned on August 26, 2020, with a narcotics conspiracy in violation of 21 U.S.C. § 846, maintaining a drug-involved premises in violation of 21 U.S.C. § 856(a)(1) and 18 U.S.C. § 2, and possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(D) and 18 U.S.C. § 2. (Case No. 1:19-CR-00155, Dkt. 106). The underlying facts surrounding the charges in the second superseding indictment included a triple homicide committed on September 15, 2019, wherein the bodies of one of the victims (Dhamyl Roman-Audiffred) was chopped up and burned and the bodies of the other two victims (Miguel Anthony Valentin-Colon and Nicole Marie Merced-Plaud) were burned. N.V.C., the three-year old child of the latter two victims, witnessed his parents' murders and destruction of their bodies. N.V.C.'s ordeal is described in further detail in United States v. Wilson, No. 1:19-CR-00155 EAW, 642 F. Supp. 3d 380 (W.D.N.Y. Nov. 22, 2022).
Defendant was not alleged to have been involved in the murders, but her boyfriend and alleged narcotics co-conspirator, Deandre Wilson ("Wilson"), was so charged. After a jury trial commencing on September 21, 2022, and continuing through November 3, 2022, Wilson was found guilty of all but two of the counts with which he was charged, including the counts involving the murders. (Case No. 1:19-CR-00155, Dkt. 556; Dkt. 557). Wilson was sentenced by the undersigned on March 23, 2023, to three consecutive life sentences plus 30 years in prison. (Case No. 1:19-CR-00155, Dkt. 638; Dkt. 645).
As part of Wilson's trial, the undersigned issued a sequestration order pursuant to Fed. R. Evid. 615. Defendant was identified as a witness on the government's witness list (Case No. 1:19-CR-00155, Dkt. 469 at 12), and thus was subject to the sequestration order. According to the government's witness list, Defendant travelled with Wilson on the evening of the murders to a Meek Mill concert at Darien Lake. (Id.). During the trial, there was also discussion by Wilson's counsel about calling Defendant as a witness. (See Case No. 1:19-CR-00155, Dkt. 688 at 5-6).
During the trial testimony of co-defendant and cooperating witness Jariel Cobb, it was brought to the Court's attention by the government that Defendant was present in the courtroom. (Id. at 2). The Court informed Defendant that she could not be present in the courtroom pursuant to the Court's sequestration order, and asked her to leave the courtroom. (Id. at 2-3). Initially Wilson's counsel had no objection. (Id. at 3). However, after a break, Wilson's counsel voiced an objection on behalf of his client, explaining that his client felt it was unfair for the government's case agent to be present in the courtroom when Defendant could not similarly be present. (Id. at 3-4). In other words, at least according to Wilson's logic, Defendant was aligned with his side of the case just as the case agent was aligned with the government. After both sides agreed that it was unlikely that Defendant would be called as a witness, the Court ruled that Defendant was excepted from the sequestration order. (Id. at 5-7). Since she had already left the courtroom before the break, Wilson's counsel indicated that he would ask Wilson's mother to contact Defendant to advise her that she could be present. (Id. at 7-8).
Prior to Wilson's trial, Defendant entered into a plea agreement with the government wherein she pleaded guilty to a one-count superseding information charging a misdemeanor crime of possession of marijuana in violation of 21 U.S.C. § 844(a). (Case No. 1:19-CR-00155, Dkt. 397; Dkt. 400). Sentencing was originally scheduled to go forward on October 20, 2022. (Case No. 1:19-CR-00155, Dkt. 421). However, days prior to that sentencing date, Defendant filed a motion to adjourn the sentencing because of President Biden's announcement that he intended to pardon anyone convicted of a simple marijuana possession charge. (Case No. 1:19-CR-00155, Dkt. 530); see Michael D. Shear and Zolan Kanno-Youngs, Biden Pardons Thousands Convicted of Marijuana Possession Under Federal Law, The New York Times, October 6, 2022, https://www.nytimes.com/2022/10/06/us/politics/biden-marijuana-pardon.html.
The Court adjourned the sentencing to November 30, 2022 (Case No. 1:19-CR-00155, Dkt. 532), but before that date Defendant filed a motion to dismiss (Case No. 1:19-CR-00155, Dkt. 571). As a result, the Court converted the November 30, 2022 sentencing to a status conference. (Case No. 1:19-CR-00155, Dkt. 572).
At the November 30 appearance, the government indicated that it did not yet know its position with respect to the impact of President Biden's pardon on Defendant's case and asked for more time. (Dkt. 15 at 3). The Court raised the question of whether, if the sentencing was to go forward, it should consider information learned during the course of presiding over Wilson's trial supporting a conclusion that Defendant was aware of Wilson's involvement in the murders after-the-fact and at the time she met with law enforcement on October 9, 2019. (Id. at 3-4). The Court also brought to Defendant's counsel's attention that Defendant attended the trial purportedly to support Wilson. (Id. at 4).
The transcript of the November 30, 2022 appearance is also filed in the 2019 Action at Docket No. 614.
On October 9, 2019, a search warrant was executed at Defendant's home at 164 Parkridge Avenue in Buffalo, New York. Defendant moved to suppress statements that she made to law enforcement and evidence seized from her cell phone on that date (Case No. 1:19-CR-00155, Dkt. 189-1 at 10-11), which was ultimately denied by the Court after an evidentiary hearing, see United States v. Clark, 600 F. Supp. 3d 251 (W.D.N.Y. 2022). At the evidentiary hearing conducted on August 3, 2021, FBI Special Agent Christopher Dailey testified about his encounter with Defendant at her home on October 9, 2019. (See Case No. 1:19-CR-00155, Dkt. 317 at 46-54). Agent Dailey testified that when he explained to Defendant that the reason for the search was related to the triple homicide, she "became really distraught" and "appeared really sad and distraught," and Agent Dailey had to give her "a few minutes to calm down" because "it was a lot to process." (Id. at 51). Thus, the impression left from at least that portion of the hearing testimony was that Defendant was learning for the first time on October 9, 2019, about Wilson's potential involvement in the triple homicide. By contrast, the evidence introduced at Wilson's trial, including text messages, cell phone records, and Google and cell tower location data analysis conducted by FBI Special Agent John Orlando, supported the conclusion that Defendant was aware of Wilson's involvement prior to being interviewed on October 9, 2019.
A further status conference was scheduled for December 13, 2022, but prior to that date Defendant withdrew her motion to dismiss. (Case No. 1:19-CR-00155, Dkt. 573; Dkt. 575). At the conference on December 13, 2022, the government indicated it was considering pursuing additional charges and still attempting to resolve its position with respect to Defendant's misdemeanor marijuana conviction and President Biden's pardon. (See Dkt. 16). The Court again reiterated that if the sentencing was to go forward, it needed to resolve whether it should consider at sentencing the trial evidence supporting a conclusion that Defendant was aware of Wilson's involvement in the murders. (Id.).
The transcript of the December 13, 2022 appearance is also filed in the 2019 Action at Docket No. 613.
After that appearance, the government filed a motion to dismiss without prejudice the superseding information pursuant to Fed. R. Crim. P. 48(a) (Case No. 1:19-CR-00155, Dkt. 597), but it then filed a motion to withdraw that motion (Case No. 1:19-CR-00155, Dkt. 665) based on Defendant's rejection of the pardon from President Biden (Case No. 1:19-CR-00155, Dkt. 665-1). The Court granted the government's motion to withdraw (Case No. 1:19-CR-00155, Dkt. 667) and a further status conference was conducted on April 18, 2023 (Case No. 1:19-CR-00155, Dkt. 668), but no new sentencing date was set because of the subsequent charges filed against Defendant.
Specifically, on January 20, 2023, Defendant was charged in the above-captioned matter by criminal complaint with violating 18 U.S.C. §§ 4 and 1001(a)(2). (Dkt. 1). Much of the information set forth in the criminal complaint consists of the text messages, cell phone records, and Google and cell tower location data analysis conducted by FBI Special Agent Orlando that was introduced during Wilson's trial. (See id. at ¶¶ 9-40). On March 2, 2023, an indictment was returned charging Defendant with misprision of a felony in violation of 18 U.S.C. § 4 and false statements to an agency of the United States in violation of 18 U.S.C. § 1001(a)(2). (Dkt. 1). Defendant was arraigned before the undersigned on March 2, 2023, at which time her counsel orally moved for recusal. (Dkt. 11). The oral motion was denied; a scheduling order for written filings was set; and Defendant filed her recusal motion on May 2, 2023. (Dkt. 13). The government filed a response on May 22, 2023. (Dkt. 14). Oral argument was held on June 13, 2023, at which time the Court indicated that it was denying the motion but a written Decision and Order would follow. (Dkt. 17).
Because the case against Defendant was first filed as a sealed complaint, which was then followed by a sealed indictment, both the criminal complaint and the unsealed indictment are assigned Docket No. 1.
III. DISCUSSION
Defendant does not move to recuse the undersigned from handling the 2019 Action, wherein the comments that serve as the basis for the recusal motion were made. Rather, Defendant moves to recuse the undersigned from handling the above-captioned matter, based on comments concerning Defendant's sentencing in the 2019 Action. Defendant bases her motion to disqualify on 28 U.S.C. § 455(a) which provides that a judge shall disqualify herself "in any proceeding in which h[er] impartiality might reasonably be questioned." (See Dkt. 13 at 1). The question presented on a § 455(a) recusal motion is "whether a reasonable person, knowing all the facts, would conclude that the trial judge's impartiality could reasonably be questioned." United States v. Wedd, 993 F.3d 104, 114 (2d Cir. 2021).
Defendant argues that the undersigned's comments at the status conferences on November 30 and December 13, 2022, mean that "the Court has already concluded that Ms. Clark is guilty of Misprision of a Felony and/or Obstruction of Justice which is sufficient for recusal to avoid the appearance of partiality." (Dkt. 13 at ¶ 13). Defendant also argues that her appearance at Wilson's trial could be considered an "extrajudicial source" of information, thus necessitating recusal. (Id. at ¶ 15). Moreover, Defendant argues that the undersigned's comments may have encouraged filing of the new charges, thus justifying recusal. (Id. at ¶ 16). Defendant also cites to the initial assignment of this matter to another district judge, and then reassignment to the undersigned, in support of her motion. (Id. at ¶ 18). As discussed in further detail below, Defendant's arguments miss the mark both factually and legally.
The Court initially addresses the multiple inaccurate factual contentions advanced by Defendant in support of the recusal motion. First, under no reasonable view of the facts could Defendant's appearance at Wilson's trial, and instruction to leave the courtroom, be considered "extrajudicial." The trial transcript reflects the complete exchange with counsel and Defendant which occurred during the course of Wilson's trial. (See Case No. 1:19-CR-00155, Dkt. 688). At oral argument on June 13, 2023, when asked how the exchange following Defendant's appearance at Wilson's trial could constitute an extrajudicial proceeding in light of the fact that there was a clear record of the proceeding, defense counsel conceded that "I don't know that it would," and that in his papers he had argued that it "could" be considered extrajudicial. Plainly the exchange during Wilson's trial was not information that the undersigned learned "from a source outside judicial proceedings," Liteky v. United States, 510 U.S. 540, 554, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994), and it is nowhere similar to the facts in Franklin v. McCaughtry, 398 F.3d 955 (7th Cir. 2005), relied upon by Defendant (see Dkt. 13 at ¶ 15), where the trial judge "took the highly unusual step of filing a memorandum with the state court of appeals" in an unrelated case where he referenced the defendant's case "as an example of the terrible things that happen when indigent prisoners are released on bail pending their appeals," in addition to speaking with the media about the defendant's case, id. at 957, 961 ("We note as well that, for purposes of the rule in Liteky . . . the Taylor memorandum and Judge Schroeder's contacts with the newspaper were extrajudicial activities vis-à-vis Franklin's own case.").
Second, the undersigned never remotely suggested, let alone encouraged the government to file new charges against Defendant. There is no basis in the record to imply otherwise. Rather, the Court asked the parties whether it should consider the facts learned during Wilson's trial in connection with Defendant's sentencing in the 2019 Action—an issue that still remains unresolved. It was the government that, at the status conference on December 13, 2022, stated that new charges may be filed against Defendant (see Dkt. 16 at 3), which occurred just over a month later. Moreover, as the government explained at the oral argument on the recusal motion, during the Wilson trial the lead prosecutor communicated to his supervisors that additional charges should be pursued against Defendant because of the trial evidence—long before any comments made by the undersigned. (See Dkt. 14 at 8 n.2). The facts in this case are not at all analogous to Ligon v. City of New York, 736 F.3d 118, 124 (2d Cir. 2013), vacated in part, 743 F.3d 362 (2d Cir. 2014), relied upon by Defendant (see Dkt. 13 at ¶ 16), where the district judge, in addition to making statements to the media, "described a certain claim that differed from the one at issue in the case before her, urged a party to file a new lawsuit to assert the claim, suggested that such a claim could be viable and would likely entitle the plaintiffs to [the relief] . . . they sought, and advised the party to designate it as a related case so that the case would be assigned to her." Id. at 125-26.
Third, the suggestion that the Clerk's office was somehow in cahoots with the government to nefariously manipulate the judicial assignment system (see Dkt. 13 at ¶ 17) is without any basis in fact. At the time the initial charges were filed in the 2019 Action, the undersigned (whose duty station is in Rochester) received direct assignments of Buffalo criminal cases because of a judicial vacancy in Buffalo. That vacancy was filled in late 2019, at which point the undersigned ceased accepting direct assignments of Buffalo criminal cases except where the new case was related to a previously-assigned case. As the government explained at oral argument on the pending motion, as well as previously, it neglected to complete the related case form when initially requesting that the Clerk's office assign a judge to the newly-returned indictment against Defendant, but that error was quickly corrected and the above-captioned matter was properly assigned to the undersigned as related to the 2019 Action.
Fourth, the argument that the undersigned has commented on Defendant's guilt or innocence in the above-captioned matter, is factually wrong and legally misplaced. The comments at the status conferences on November 30 and December 13, 2022, were prior to misprision of a felony and false statements charges being filed against Defendant—so the undersigned could not have been commenting on Defendant's guilt or innocence with respect to charges that were not even pending. Furthermore, the undersigned's comments were, in sum, that the evidence presented during Wilson's trial supported a conclusion—indeed, strongly supported a conclusion—that Defendant was well aware of Wilson's involvement in the murders after the murders occurred but before she was interviewed by law enforcement on October 9, 2019. Thus, the undersigned indicated that if sentencing went forward for Defendant's marijuana possession misdemeanor conviction, a threshold issue to resolve would be whether it would be appropriate to consider the evidence from Wilson's trial at sentencing. By contrast, the charges contained in the above-captioned matter require proof by the government beyond a reasonable doubt of many different elements—including, for example, for count one that Defendant had "full knowledge" of Wilson committing and completing the alleged federal felonies identified in the indictment (i.e., not simply the state law crime of murder), see Mendez v. Barr, 960 F.3d 80, 84 (2d Cir. 2020) (identifying elements of misprision of a felony). The undersigned's comments that evidence introduced at Wilson's trial supported the conclusion that Defendant was "aware of Mr. Wilson's involvement in the murders after the fact" (Dkt. 15 at 3-4) does not constitute an opinion that the government will be able to establish proof beyond a reasonable doubt as to each of the elements for the two charges in the indictment returned in the above-captioned action. And importantly, even if the comments did rise to the level of expressing such an opinion, courts have long recognized that although a trial judge may form opinions about a defendant's likely guilt based on presiding over a co-defendant's trial, "opinions formed by the judge on the basis of facts introduced or events occurring in the course of [the co-defendant's trial] . . . do not constitute a basis for a bias or partiality motion." McMahon v. Hodges, 382 F.3d 284, 290 (2d Cir. 2004); see Wedd, 993 F.3d at 116 ("[J]udges are frequently, and quite properly, required to make assessments of a defendant's culpability before a jury has returned a verdict.").
Having addressed the fundamental factual errors underpinning Defendant's motion, the Court now turns to the applicable legal standards. When faced with a recusal motion, a court must ensure that the judge assigned to the case is free of bias or prejudice, and similarly the court must be sure not to recuse herself " 'on unsupported, irrational, or highly tenuous speculation' lest 'the price of maintaining . . . the appearance of justice . . . be the power of litigants or third parties to exercise a veto over the assignment of judges.' " United States v. Helmsley, 760 F. Supp. 338, 342 (S.D.N.Y. 1991) (quoting United States v. Greenough, 782 F.2d 1556, 1558 (11th Cir. 1986)), aff'd, 963 F.2d 1522 (2d Cir. 1992). "The pertinence of these considerations is heightened when a disqualification motion is made in a litigation that is not new, but has advanced considerably before the judge in question." Id.; see In re Drexel Burnham Lambert Inc., 861 F.2d 1307, 1312 (2d Cir. 1988) ("In deciding whether to recuse himself, the trial judge must carefully weigh the policy of promoting public confidence in the judiciary against the possibility that those questioning his impartiality might be seeking to avoid the adverse consequences of his presiding over their case.").
Almost 30 years ago, the United States Supreme Court explained that judicial rulings, routine trial administration efforts, and ordinary admonishments (whether or not legally supportable) to counsel and to witnesses, cannot serve as the basis for a recusal motion if the judicial conduct occurred during the course of judicial proceedings and "neither (1) relied upon knowledge acquired outside such proceedings nor (2) displayed deep-seated and unequivocal antagonism that would render fair judgment impossible." Liteky, 510 U.S. at 556, 114 S.Ct. 1147. As explained by the Supreme Court:
The judge who presides at a trial may, upon completion of the evidence, be exceedingly ill disposed towards the defendant, who has been shown to be a thoroughly reprehensible person. But the judge is not thereby recusable for bias or prejudice, since his knowledge and the opinion it produced were properly and necessarily acquired in the course of the proceedings, and are indeed sometimes (as in a bench trial) necessary to completion of the judge's task. As Judge Jerome Frank pithily put it: "Impartiality is not gullibility. Disinterestedness does not mean child-like innocence. If the judge did not form judgments of the actors in those court-house dramas called trials, he could never render decisions." Also not subject to deprecatory characterization as "bias" or "prejudice" are opinions held by judges as a result of what they learned in earlier proceedings. It has long been regarded as normal and proper for a judge to sit in the same case upon its remand, and to sit in successive trials involving the same defendant.Id. at 550-51, 114 S.Ct. 1147 (quoting In re J.P. Linahan, Inc., 138 F.2d 650, 654 (2d Cir. 1943)).
Defendant's core argument is that because the undersigned has expressed an opinion about Defendant's knowledge of Wilson's role in the murders based upon an assessment of the strength of the evidence introduced at Wilson's trial, there is an appearance of impartiality requiring recusal. If that was true, a judge would invariably have to recuse herself when opinions were reached based on the handling of a case. But that is not the law. United States v. Carlton, 534 F.3d 97, 100 (2d Cir. 2008) (" '[O]pinions held by judges as a result of what they learned in earlier proceedings' in a particular case are not ordinarily a basis for recusal."). And the analysis is no different because Defendant is now charged in a new indictment. See id. ("The same rationale applies to proceedings in a different case involving the same defendant and the same set of facts.").
Indeed, trial judges regularly preside over retrials and resentencings upon remand by an appellate court. United States v. Singh, 877 F.3d 107, 122 (2d Cir. 2017) ("Remanding a case to a different judge is a serious request rarely made and rarely granted. We will grant a request for reassignment on remand only in unusual circumstances." (internal quotations and citations omitted)); see, e.g., Wedd, 993 F.3d at 117 (recusal not required under § 455(a) where trial judge presided over three trials of defendant—the first two ending in mistrials—and expressed opinion concerning defendant's relative culpability when sentencing co-defendant). Similarly, judges regularly preside over criminal matters after expressing opinions about the strength of the evidence as part of a detention hearing, preliminary hearing, or other similar proceeding. See, e.g., id. at 116 ("[J]udges often must consider the strength of the evidence against a defendant when considering questions of detention or release."); Carlton, 534 F.3d at 100 ("Having heard evidence and made a determination of defendant's guilt in a revocation hearing, a judge may properly preside over the subsequent criminal trial for the same offense."); United States v. Alvarado, 134 F. App'x 461, 463 (2d Cir. 2005) (trial judge not required to recuse himself based on findings made as to defendant's credibility as a cooperating witness at trial of other defendant "[b]ecause the district judge made these findings during a judicial proceeding and defendant has failed to demonstrate that the judge evinced an antagonism toward him that would make a fair sentencing impossible . . . ."). Indeed, at oral argument when the Court posed the question of whether she would be required to recuse herself if she had presided over Defendant's preliminary hearing and concluded that the government met its burden with respect to the criminal complaint, defense counsel agreed that recusal would not be required under those circumstances.
Any opinions formed by the undersigned arose from presiding over this matter since its inception in 2019, and the facts here do not even remotely rise to the level of the rare occurrence where the undersigned has a predisposition based on the handling of this matter that "is so extreme as to display clear inability to render fair judgment." Liteky, 510 U.S. at 551, 114 S.Ct. 1147; see Carlton, 534 F.3d at 100 ("[A] judge's comments during a proceeding that are 'critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge.' The judge's opinions or comments must demonstrate 'such a high degree of favoritism or antagonism as to make fair judgment impossible.' " (quoting Liteky, 510 U.S. at 555, 114 S.Ct. 1147)); see also Helmsley, 760 F. Supp. at 341 ("Litigants ought not have to face a judge where there is a reasonable question of impartiality, but they are not entitled to judges of their own choice." (quoting H.R. Rep. No. 93-1453, 93d Cong., 2d Sess., reprinted in 1974 U.S. Code Cong. & Admin. News 6351, 6355)).
Accordingly, recusal is not warranted. To hold otherwise would allow Defendant to "exercise a veto," id. at 342, over the assignment of the undersigned to her case. The law does not allow such a result.
IV. CONCLUSION
For the foregoing reasons, Defendant's motion to recuse (Dkt. 13) is denied.
SO ORDERED.