St. Croix v. Roebuk, Criminal No. 2002/0171 (D. V.I. 7/15/2003), Criminal No. 2002/0171

CourtUnited States District Courts. 3th Circuit. District of the Virgin Islands
Writing for the CourtStanley S. Brotman
Docket NumberCriminal No. 2002/0171
Decision Date15 July 2003

Isabel Munoz, Esq., Special Attorney to the Attorney General, United States Attorney's Office.

Hato Rey, P. R., Special Attorney for Chief Judge Raymond Finch, Judge Thomas Moore, Judge Geoffrey Barnard, and Judge Jeffery Resnick with respect to the within Motion.

Ernest Batenga, Esq., Assistant United States Attorney, United States Attorney's Office, Attorney for United States of America.

Lee J. Rohn, Esq., Law Offices of Lee J. Rohn, Jeffery Moorhead, Esq., Attorneys for Defendant Harold Roebuck.


STANLEY S. BROTMAN, DISTRICT J. (sitting by designation)

This matter comes before the Court on the Government's motion to quash subpoenas to compel the testimony of four federal court judges at an evidentiary hearing to recuse Judge Moore from presiding over this criminal case. The Government also seeks a protective order to prevent the service of further subpoenas seeking similar information. It is Defendant's contention that the judges' testimony is necessary to create a factual record in support of his Motion to Recuse. Because the inquiry into the mental process of a judge is prohibited, even if the inquiry is factually directed, the Government's motion will be granted.

A. Factual Background

The charges in this case, Criminal No. 2002/0171, stem from an incident on September 27, 2002, when Defendant Harold Roebuck ("Defendant Roebuck") allegedly assaulted Deputy United States Marshal Linda I. Valerino with a pipe while she was engaged in the performance of her official duties. While the criminal case arises out of this alleged attack, to understand the basis for Defendant's argument that the subpoenas in question are necessary to support Judge Moore's disqualification, it is necessary to provide a short history of the underlying events leading up to Defendant's Motion to Recuse.

1. The St. Croix Source Letter to the Editor

In August 2002,1 Attorney Lee Rohn, wrote a letter to the editor of the St. Croix Source, an on-line newspaper,2 expressing her view that Judge Thomas Moore should not be reappointed to his position as District Court Judge in the Virgin Islands.3 (Def.'s Ex. D.) The letter, which was not the first clash between Judge Moore and counsel,4 was highly critical of Judge Moore's judicial performance and described alleged incidents of inappropriate behavior while on the bench.5 (Id.) The letter concluded that Judge Moore lacked "the judicial temperament needed for the position" of District Court judge. (Id.) During the same time frame that the letter was published, Attorney Rohn represents she was also actively engaged in discussions with leaders of the Republican National Committee, members of President George W. Bush's admistration, and members of the Senate Judiciary Committee voicing her opposition to Judge Moore's reappointment. (June 3, 2002 Tr. at 6: 19-20.)

2. Judge Moore's Recusals in Attorney Rohn's Cases

Beginning on September 9, 2002, and continuing through October, Judge Moore sua sponte recused himself from all cases pending before him where Attorney Rohn or her firm was counsel of record. These one-line Orders give no reason for Judge Moore's recusal. Attorney Rohn speculates that the recusals were a direct result of Judge Moore reading the August 2002 letter to the editor and being angry at her for its contents. (Def.'s Mot. for Judicial Recusal at 3). Specifically, Attorney Rohn alleges "Judge Moore made numerous statements to multiple person[s] as to his anger and negative reaction to the letter" and that "it was widely known within the community that Judge Moore became visibly upset with Attorney Rohn and had lost all objectivity with regard to the cases in which she was the attorney of record." (Def.'s Mot. for Judicial Recusal at 3; see also May 21, 2003 Tr. at 21:7-14 .) Additionally, she claims Judge Moore was aware of her involvement "in the politics which prevented his reappointment." (Def.'s Mot. for Judicial Recusal at 3; May 21. 2003 Tr. 40:19-21.)

3. Judge Moore's Subsequent Determination to Hear Attorney Rohn's Cases.

Shortly after Judge Moore had recused himself from all of Attorney Rohns cases, he withdrew his recusal in some cases, including the matters of Selkridge v. United of Omaha Life Insurance Company, V.I. Civil Action Nos. 2001-143 and 2002-73, without giving a reason for this decision. (See Selkridge v. United of Omaha Life Ins. Co., 237 F. Supp. 2d 600 (D.V.I. Dec. 20, 2002) (Moore, J.)). The Selkridge matters were subsequently dismissed by Judge Moore and are currently before the Third Circuit Court of Appeals. (Def.'s Reply in Support of Mot. for Judicial Recusal at 5-6.)

Additionally, sometime after his recusals in Attorney Rohn's federal cases, Judge Moore sat on the appellate court panel which heard appeals from Attorney Rohn's Territorial Court cases,6 despite her requests to disqualify himself.7 According to Attorney Rohn, in the appellate matter of Joseph v. Cosanco, Judge Moore publically acknowledged that he read Attorney Rohn's letter and stated that he recused himself from her cases because he was angry with her. (May 21, 2003 Tr. at 46:15-19.) According to Attorney Rohn,

[t]he gist of what he said from the bench was that he admitted that he had been very angry with me when I wrote the letter. That as a result of his anger he had recused himself from all of my clients' cases. That he now believed that he was not as angry and so he believed he could hear the cases, and that my attempts to continue to recuse himself were, "Just Lee Rohn being Lee Rohn."

(May 21, 2003 Tr. at 22:23-25, 23:1-5.)

Attorney Rohn, however, cannot present a certified transcript of Judge Moore's statement, even though the proceedings were tape-recorded. Attorney Rohn represents to the Court that the Joseph v. Consanco tape contains a background noise which has made it impossible for court personnel or local companies to transcribe it. (May 21, 2003 Tr. at 22:14-22, 47:6-18.)

B. Procedural History

On December 17, 2002, Roebuck was indicted in a three count complaint stemming from the September 27th alleged altercation. (Def.'s Ex. A.) Specifically, Roebuck was charged with (1) assaulting a Deputy United States Marshal with a dangerous weapon in violation of 18 U.S.C. § 111; (2) attempted murder of a Deputy United States Marshal in violation of 18 U.S.C. § 115; and (3) interference with the official duties of a Deputy United States Marshal in violation of 18 U.S.C. § 115. (Id.)

The case was originally assigned to Chief Judge Raymond Finch, who on January 17, 2003, recused himself (Docket Entry No. 11; Def.'s Ex. B), and transferred the case to Judge Thomas Moore. (Docket Entry No. 12.) On February 10, 2003, Defendant Roebuck filed a Motion for Recusal of Judge Thomas J. Moore pursuant to 28 U.S.C. § 445(a). (Docket Entry No.17; Def.'s Ex. C.) According to the Motion, "Judge Moore has not only displayed a deep-seated antagonism against Attorney Rohn, he has acknowledged the same." (Def.'s Mot. for Judicial Recusal at 2.) Accordingly, Defendant argues, due to the history of animosity between Judge Moore and Attorney Rohn, "no reasonable person could believe that he would be able to maintain impartiality with regard to this criminal case where Mr. Roebuck's liberty is at stake." (Def.'s Mot. for Judicial Recusal at 4).

On March 10, 2003, all pending motions, including the Motion for Judicial Recusal, were scheduled for a hearing before Judge Moore on April 4, 2003. (Def.'s Ex. D). On March 14, in preparation for the evidentiary hearing on the recusal motion, Defendant Roebuck filed the requisite Notice of Intent to Present Judicial Testimony at the April 4th hearing. (Docket Entry No. 25; Pl.'s Ex A1.) Defendant Roebuck then issued subpoenas to be served on every federal judge in the Territory to testify at the hearing or to produce certain records:8 the Honorable Raymond L. Finch, Chief Judge of the Virgin Islands, the Honorable Thomas K. Moore, District Court of the Virgin Islands Finch, the Honorable Geoffrey W. Barnard, Magistrate Judge, District Court of the Virgin Islands (Division of St. Thomas and St. John), and the Honorable Jeffery L. Resnick, Magistrate Judge, District Court of the Virgin Islands (Division of St. Croix). (Docket Entry Nos. 33-36 ; Pl.'s Ex B and B1;Def.'s Ex. E.) Defendant also served subpoenas on the law clerks of these Judges. Additionally, Attorney Rohn wrote to the Honorable Edward R. Becker, Chief Judge of the Third Circuit Court of Appeals, requesting he be deposed by telephone "to establish a factual record as to [Judge Moore's] statements as to articles I [Attorney Rohn] have written in the paper and the necessity of his recusing himself from all of my cases" which she intended to present at the April 4th recusal hearing. (Def.'s Ex. G.)

On March 19, the Government filed an Opposition to Defendant's Motion for Judicial Recusal and a Motion to Disqualify Attorney Lee Rohn as Counsel. (Docket Entry No. 26; Def.'s Ex. I). Additionally, a Motion and Memorandum for a Protective Order and to Quash Subpoenas was filed on March 24. (Docket entry No. 27; Def.'s Ex. J.) In response, Defendant requested the Motion for Protective Order and to Quash Subpoenas be reassigned to a judge who had not been subpoenaed as a witness (Def.'s Ex. L) and that all proceedings be stayed until the case could be reassigned. (Def.'s Ex. M.) On March 31, 2003, Judge Moore sua sponte quashed the subpoenas served on the law clerks as being unreasonable and unduly oppressive. (Docket Entry Nos. 42, 47, 48; May 21, 2003 Tr. at 7:13-17.) On April 2, 2003, Judge Moore granted Defendant's motion to stay. (Docket Entry No. 49.)

On May 5, 2003, this matter was assigned to...

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