U.S. v. Bobo, CR 04-C-0200-W.
| Decision Date | 30 August 2004 |
| Docket Number | No. CR 04-C-0200-W.,CR 04-C-0200-W. |
| Citation | 395 F.Supp.2d 1116 |
| Parties | UNITED STATES of America, Plaintiff, v. Phillip Kelley BOBO, Don Eugene Siegelman, and Paul Michael Hamrick, Defendants. |
| Court | U.S. District Court — Northern District of Alabama |
William N. Clark, Redden Mills & Clark, Glennon F. Threatt, Jr., Miller Hamilton Snider & Odom LLC, Russell Jackson Drake, Whatley Drake LLC, Birmingham, AL, Charles Hardin, Ryan Degraffenried, III, Watson Degraffenried Hardin & Tyra LLP, Tuscaloosa, AL, Robert D. Segall, Copeland Franco Screws & Gill, Joseph C. Espy, III, Suzanne D. Edwards, Benjamin J. Espy, Melton Espy & Williams PC Ronald W. Wise, Montgomery, AL, for Defendants.
Alice H. Martin, US Attorney, Miles M. Hart, Us Attorney's Office, Birmingham, AL, John Gibbs, Melissa Kay Atwood, Office of the Attorney General, Montgomery, AL, US Marshal, United States Marshal's Office, Us Probation, United States Probation Office, Birmingham, AL, for Plaintiff.
Gilbert E. Johnston, Jr., James P. Pewitt, Keri B. Adams, Johnston Barton Proctor & Powell LLP, Birmingham, AL, for Movant.
On the eve of the scheduled date for an evidentiary hearing on Defendant Phillip Bobo's Motion to Dismiss the Indictment, United States Attorney Alice Martin ("USA") moved to disqualify this judge and, in effect, every other federal judge in the State of Alabama. Because the motion is based solely on innuendos, false and misleading newspaper articles, unfounded suspicions and distorted facts, is due to be denied.
This Opinion is divided into four sections. First, the facts will be set out. The second section will treat the media coverage of the disqualification issue. In the third section, the applicable legal principles will be articulated. The final section will apply the legal principles to the facts.
1. I have no ties to Defendant Don Eugene Siegelman ("Siegelman"). "I incorporate herein by reference the Judicial Notice of Adjudicative Facts filed on July 16, 2004." (Doc. 68, Judicial Notice)(See "Attachment A" to this Opinion.) The USA, through her Assistant United States Attorney ("AUSA") Matt Hart has conceded these facts. (Doc. 170, Tr. of Mot. to Disqualify of 08/17/04 at p. 4.)
2. My daughter, A. Michelle Clemon, is not my dependent and does not reside in my household.
3. Before the indictment was handed down in this case, my daughter was an associate at the law firm of Maynard, Cooper & Gale ("Maynard Cooper"). She has and had no financial interest in the firm whatsoever.
4. During her employment at Maynard Cooper, the Attorney General of the State of Alabama appointed her supervisor, David Smith, as a Deputy Attorney General to represent the State of Alabama and several of its agencies in Crum v. State of Alabama, 198 F.3d 1305 (11th Cir.1999), an employment discrimination case filed in 1994.1
5. My daughter's salary and bonuses at Maynard Cooper were not affected in any way by her work in the Crum litigation.
6. Although Siegelman was a nominal party to the Crum case, Maynard Cooper did not represent him.
7. For purposes of the USA's alleged extra-judicial bias towards federal investigative agents, I incorporate herein by reference Footnote 1 of my Memorandum Opinion on attorney disqualification. (See "Attachment B" to this Opinion.)
8. I did not say to Los Angeles IRS Agent Cochran in 1995, or to anyone else at any time, that I have no confidence in federal investigative agents.2
9. I did not make the statements concerning federal prosecutors and law enforcement officials attributed to me in the FBI Form 302 interview notes of Joseph Rembert.
10. I do not remember which federal investigative agent served on me a subpoena for my church's records in 1995 or 1996. Whoever he/she was, I hold no personal animus towards him/her, as I fully appreciate the fact that the agent was merely performing his/her duties. AUSA Hart concedes that the USA has no evidence to the contrary. (Doc. 170, Tr. Of Mot. to Disqualify of 08/17/04 at p. 30.)
11. Since the Los Angeles grand jury investigation was concluded eight years ago, without objection, I have met socially, ex parte, and on the record with federal prosecutors, FBI agents, and other law enforcement officials. I rely on them for crucial functions including, without limitation, the ex parte issuance and extension of wiretap orders. To the extent that such agents have testified as witnesses in adversary proceedings where I was the factfinder, I have assessed their credibility in precisely the same way as I have assessed the credibility of other witnesses. To my knowledge, none of them have complained of any hostility or bias on my part against them based on their status as federal law enforcement officials.3
11. Contrary to AUSA Hart's allegation,4 I have never been a member of the Jefferson County Citizens Coalition.
12. In the hearing on the USA's Motion to Disqualify Siegelman's counsel, I did not display such deep seated antagonism against federal prosecutors, and specifically Department of Justice Attorney ("DOJ") Staci Ludwig, that a fair judgment would be impossible.5
13. I have had no direct or indirect financial connections to William ("Bill") Baxley in any way since our attorney-client relationship ended eight years ago. (See AUSA Hart's concession, Doc. 170, Tr. of Mot. to Disqualify at p. 42.)
14. Sixteen years ago, a friend and I jointly acquired an interest in a real estate partnership. In 1989, a year later, I assigned my interest in the partnership to my friend. After the assignment, my friend sold his interest in the real estate partnership to the father of one of Bill Baxley's law partners. My friend subsequently paid me for my assignment. It is my understanding that the father of Bill Baxley's law partner ultimately recouped the full amount of his investment. In any event, my direct and indirect interests in the real estate partnership came to an end fourteen years ago.
15. Most of the facts in the preceding paragraph are reflected in Northern Alabama grand jury records filed under seal with the Court in this case on August 25, 2004. (Doc.174, Mot. for Reconsideration, Addendum.)6
16. Since 1996, I have presided over several cases in which Bill Baxley and Joel Dillard represented a party. The most highly publicized of these was United States v. Bowman, No. CR-03-C-0056-E, 2003 WL 23272667 (N.D.Ala. Sept.12, 2003). As in all other prior cases, with full knowledge of everything contained in the sealed grand jury records, the USA never suggested that I was in any way disqualified from hearing the Bowman case.
17. According to AUSA Hart, Bill Baxley represents an alleged "key co-conspirator," Amy Herring, who will be called to testify in this case. Amy Herring is a cooperating witness for the USA, and Bill Baxley is facilitating that cooperation. (Doc. 170, Tr. of Mot. to Disqualify of 08/17/04 at p. 43.) Bill Baxley is not expected to enter an appearance in this case. (Id. at p. 63.)
18. Six other judges of this Court, including senior judges, are presumptively qualified to hear this case in the event of my disqualification.
This case will be tried in the Tuscaloosa Division of the Northern District of Alabama. The Tuscaloosa News is the primary daily newspaper in Tuscaloosa, Alabama.8 That newspaper has covered this case in at least ten articles since I was assigned to the case. Most of the statements in these articles concerning me have been factually correct. The Tuscaloosa News has issued a single editorial related to the issue of my disqualification. In the editorial, the Tuscaloosa News notes my daughter's former employment and the fact that as a judge, I have "crossed swords with Siegelman" but it concludes that none of these facts may warrant recusal. Judicial Roulette Isn't Working, Tuscaloosa News, July 15, 2004. However, the editorial questions the wisdom of the Court's use of a "computerized random selection" system to assign this "politically charged case." Id.
The Birmingham News is the only newspaper which, in articles largely written by its reporter Brett J. Blackledge,9 has editorialized several times that I should disqualify myself from this proceeding — long before the USA filed this instant motion. Several of the most substantive allegations made in Mr. Blackledge's articles are simply untrue.
He has written that my daughter was a partner at the Maynard Cooper law firm. He has written of my "longstanding ties" to Defendant Don Siegelman. In a front-page article entitled "Judge, U.S. Have Often Squared Off," after relating my alleged mistreatment of DOJ Attorney Ludwig, Mr. Blackledge wrote that:
This was not the first clash Clemon has had with the government. The government launched a criminal investigation against him. The government sent his sister to prison. The government filed a lien against him for not paying taxes....
At least twice Clemon has been forced off cases when he refused to step down because of potential conflicts. One case involved a federal desegregation suit in which Clemon as a civil rights lawyer had once represented some of the parties and had ties to one of the lawyer. Another case was one against the Alabama Revenue Department, which previously had gone after Clemon for not paying state taxes.
Brett J. Blackledge, Judge, U.S. Have Often Squared Off, Birmingham News, August 1, 2004, at A1.10 One of Blackledge's articles indicated that the law firm of Whatley Drake, which I recently disqualified from representing Siegelman in this proceeding, also previously represented me in the California grand jury investigation,11 when in fact the firm did not exist eight years ago.
The ...
To continue reading
Request your trial