U.S. v. Muyet

• Decision Date: 20 February 1998
• Docket Number: No. S3 95 Cr. 941 (PKL).,S3 95 Cr. 941 (PKL).
• Citation: 994 F.Supp. 501
• Parties: UNITED STATES of America, v. Jose MUYET, a/k/a "Raze," et al., Defendants.
• Court: U.S. District Court — Southern District of New York

Page 501

994 F.Supp. 501

UNITED STATES of America, v. Jose MUYET, a/k/a "Raze," et al., Defendants.

No. S3 95 Cr. 941 (PKL).

United States District Court, S.D. New York.

February 20, 1998.

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Mary Jo White, U.S. Atty., for the Southern District of New York, New York City (Thomas M. Finnegan, Jay Holtmeier, of counsel), for U.S.

Valerie S. Amsterdam, New York City, for Antonio Feliciano.

Brafman Gilbert & Ross, P.C., New York City (Charles A. Ross, of counsel), for Pedro Narvaez.

OPINION AND ORDER

LEISURE, District Judge.

Defendants Pedro Narvaez ("Narvaez") and Antonio Feliciano ("Feliciano") were convicted with their codefendants on April 10, 1997, following a five-month jury trial, of various offenses arising out of their participation in the "Nasty Boys" criminal enterprise, as more particularly described below. Narvaez and Feliciano move the Court pursuant to the Federal Rules of Criminal Procedure, Rules 29, 33, and 34, seeking dismissal of the charges against them based on insufficiency of evidence, a new trial based on claims of Governmental misconduct and ineffective assistance of counsel, and an arrested judgment based on lack of Federal jurisdiction and that the charges were more properly brought in state court. Additionally, Narvaez has moved to have the Court recuse itself from hearing and deciding all post-trial motions, pursuant to Title 28, United States Code ("U.S.C."), section 455(a), based on claims that the Court can no longer make a fair and just determination with respect to these defendants. For the reasons stated below, the motions are denied.

BACKGROUND

According to the evidence adduced at trial, Jose Muyet, a/k/a "Raze," along with his brother John Muyet, a/k/a "Buddha," operated a drug gang known as the Nasty Boys in the Bronx, New York, for a period of several years. The gang operated from an apartment building known as the Airborne building, and sold both heroin and crack. The Nasty Boys resorted to violence quickly and often to maintain order, stifle competition, and protect their business. Narvaez, a/k/a "Basic", was a member of the Nasty Boys and participated in many of the gang's activities. Feliciano, a/k/a "Tony", a/k/a "Guess", a/k/a "Guest", was not a member of the gang, in the sense that he did not sell drugs. Feliciano, Jamie Rodriguez, a/k/a "Jay", and Steven Camacho, a/k/a "Camachito", a/k/a "Spank", a/k/a "Spanky", were hired killers who accepted contracts to kill from the Nasty Boys. The Muyets referred to them as the "freelancers."

The jury convicted Narvaez of violating the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(c) (Count One of the Indictment),¹ conspiracy to violate RICO, 18 U.S.C. § 1962(d) (Count Two), committing violent crimes in aid of racketeering, 18 U.S.C. § 1959 (Counts Seven to Twelve, Seventeen to Twenty, Twenty-eight, and Twenty-nine), narcotics conspiracy, 21 U.S.C. § 846 (Count Thirty), and illegal use and carrying of a firearm, 18 U.S.C. § 924(c) (Counts Thirty-three, Thirty-four, Thirty-seven, Forty-one, and Forty-two). The jury convicted defendant Feliciano of the RICO charges (Counts One and Two),² committing violent crimes in aid of racketeering (Counts Twenty-one, Twenty-three, and Twenty-five to Twenty-seven), and illegal use and carrying of a firearm (Counts Thirty-eight and Forty).

DISCUSSION

I. RECUSAL

Defendant Narvaez moves for the Court to recuse itself from the consideration of all post-trial motions submitted by the defendants. 28 U.S.C. § 455(a) provides that "[a]ny justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." In his brief, Narvaez claims that "the Court's patience was strained on many occasions," and that "the record contains statements by the Court which give rise to a concern on the part of Mr. Narvaez and his codefendants that they will not receive a fair and impartial hearing" on these motions. Narvaez also alleges that the Court repeatedly focused upon the behavior and conduct of the defendants. Specifically, Narvaez points to a statement by the Court that "[t]his is not the first time that the Court has had concern with the conduct of these defendants." Narvaez argues that these statements and events create a reasonable basis to question the Court's impartiality, and asks for the Court's recusal.

As the United States Court of Appeals for the Second Circuit explained, "the substantive standard for recusal is whether a reasonable person, knowing all the facts, would conclude that the court's impartiality might reasonably be questioned." Apple v. Jewish Hospital and Medical Center, 829 F.2d 326, 333 (2d Cir.1987); see also United States v. Pitera, 5 F.3d 624, 626 (2d Cir. 1993). In reviewing a recusal motion, therefore, a court must proceed by "examining the record facts and the law, and then deciding whether a reasonable person knowing and understanding all the relevant facts would recuse the judge." In re Drexel Burnham Lambert Inc., 861 F.2d 1307, 1313 (2d Cir. 1988).

The Second Circuit suggests broad latitude in a district judge's review of a recusal motion. As the Court observed, "The decision whether to grant or deny a recusal motion ... is a matter confided to the district court's discretion," Apple, 829 F.2d at 333, and the district court will be reversed only for abuse of that discretion. See United States v. Lovaglia, 954 F.2d 811, 815 (2d Cir.1992). Thus, the Drexel court provided a cogent analysis regarding the discretion afforded to district judges in recusal motions:

The judge presiding over a case is in the best position to appreciate the implications of those matters alleged in a recusal motion. 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. Litigants are entitled to an unbiased judge, not to a judge of their choosing.

861 F.2d at 1312.

The United States Supreme Court most recently addressed these considerations in the context of section 455(a) in Liteky v. United States, 510 U.S. 540, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994). In Liteky, the defendants in a criminal case claimed that the law required recusal of the assigned judge because the judge had displayed "impatience, disregard for the defense and animosity" toward the defendants in a prior trial before the same judge. Id., 510 U.S. at 542 (internal quotation marks omitted). In rejecting the defendants' claim the Court stated:

opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks during the course of a trial 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. They may do so if they reveal an opinion that derives from an extrajudicial source; and they will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible .... Not establishing bias or partiality, however, are expressions of impatience, annoyance, and even anger, that are within the bounds of what imperfect men and women, even after having been confirmed as federal judges, sometimes display. A judge's ordinary efforts at courtroom administration — even a stern and short-tempered judge's ordinary efforts at courtroom administration — remain immune.

Id. at 555-56 (emphasis in original).

In his motion asking for the Court to recuse itself, Narvaez claims that the Court's patience was strained on numerous occasions during the trial and that the Court made statements that call the Court's impartiality into question. As noted supra, the Second Circuit standard for recusal is that "a reasonable person, knowing all the facts, would conclude that the court's impartiality would reasonably be questioned." Apple, 829 F.2d at 333. Further, Liteky requires a court facing an impartiality challenge based on judicial remarks made during trial, and not based on any extrajudicial source, to recuse itself only if the statements at issue "reveal such a high degree of favoritism or antagonism as to make fair judgment impossible." 510 U.S. at 555. As neither Narvaez nor any other defendant claims that the Court maintained or revealed any opinions which derived from an extrajudicial source, the question is whether this Court has shown such a high degree of antagonism to the defendants as to make fair judgment impossible.

The Court's statements and conduct that give rise to the defendants' concern do not satisfy the standards for recusal set by the higher courts. While the Court indeed faced occasional times over the five-month trial period when its patience with the defendants (as well as with the Government) was tested, there is nothing in the record, or outside of the record, which can be said to show any "deep-seated favoritism or antagonism" toward these defendants. Id. Accordingly, a thorough review of the entire record of the trial demonstrates that there exists no basis upon which a reasonable person could question the impartiality of the Court. Therefore, the Court will not recuse itself from the consideration of defendants' post-trial motions. "A judge is as much obliged not to recuse himself when it is not called for as he is obliged to when it is." Drexel, 861 F.2d at 1312.

II. RULE 29 MOTIONS OF NARVAEZ AND FELICIANO

A. Legal Standard

When a defendant moves for judgment of acquittal under Rule 29 of the Federal Rules...