Opinion
Criminal Case No. 12-cr-000136-PAB
07-30-2012
UNITED STATES OF AMERICA, Plaintiff, v. 1. JOSE CRUZ RODRIGUEZ, Defendant.
Judge Philip A. Brimmer
ORDER OF RECUSAL
In preparing for the motions hearing scheduled for July 30, 2012, I reviewed exhibits attached to the government's pleadings indicating that one of the case agents obtained a search warrant of the defendant's residence and business on September 4, 2007, which was signed by Magistrate Judge Michael Hegarty. At the July 30, 2012 hearing, Assistant United States Attorney Robert Anderson indicated that, to his knowledge, AUSA Linda McMahan assisted the case agent in obtaining that warrant.
In September 2007, I was the Chief of the Special Prosecutions Section of the United States Attorney's Office for the District of Colorado. Ms. McMahan was an AUSA assigned to the Special Prosecutions Section.
Section 455(b)(3) of Title 28 of the United States Code requires disqualification where the judge has "served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy." Canon 3(C)(1) of the Code of Conduct for United States Judges contains a similar admonition.
Although I have no recollection of any facts involving the defendant that I learned about while I was in the United States Attorney's Office, because Ms. McMahan assisted the special agent in obtaining a search warrant involved in this case, she did know about this particular investigation. Given that I was Ms. McMahan's supervisor in September 2007, I find that I was an "adviser" within the meaning of § 455(b)(3) and must therefore recuse myself from this case. It is therefore
ORDERED that the judge's file be returned to the clerk's office for the case to be reassigned by random draw.
BY THE COURT:
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PHILIP A. BRIMMER
United States District Judge