U.S. v. Roberts, CR-95-35-S.

• Decision Date: 29 November 1996
• Docket Number: No. CR-95-35-S.,CR-95-35-S.
• Citation: 947 F.Supp. 1544
• Parties: UNITED STATES of America, Plaintiff, v. Hollis Earl ROBERTS, Defendant.
• Court: U.S. District Court — Eastern District of Oklahoma

947 F.Supp. 1544

UNITED STATES of America, Plaintiff, v. Hollis Earl ROBERTS, Defendant.

No. CR-95-35-S.

United States District Court, E.D. Oklahoma.

November 29, 1996.

John W. Raley, Jr., U.S. Attorney, Linda A. Epperley, Sheldon Sperling, Asst. U.S. Attorneys, Muskogee, OK, for Plaintiff.

Burck Bailey, Oklahoma City, OK, Warren F. Bickford, IV, Oklahoma City, OK, Eddie Harper, McAlester, OK, for Bureau of Nat. Affairs.

ORDER DENYING THE GOVERNMENT'S MOTION FOR RECUSAL

SEAY, District Judge.

On September 16, 1996, the government filed its motion for recusal seeking to have the undersigned removed from this case with the case then being reassigned to another district court judge. This motion follows on the heels of a failed attempt at the circuit court level for a reassignment to another district court judge on remand from the government's appeal from several pretrial evidentiary rulings made by the court. On July 8, 1996, the Tenth Circuit Court of Appeals entered its order with respect to the pretrial evidentiary rulings, affirming in part and reversing in part, and remanding this case for proceedings consistent with its opinion. With respect to the reassignment issue, however, the Tenth Circuit declined to exercise its inherent authority to reassign this case to a different district court judge on remand. In making this determination, the Tenth Circuit stated the proper vehicle for seeking removal of a trial judge is by way of a motion for recusal before the district court in the first instance. Consequently, the government is now before the court seeking the recusal of the undersigned pursuant to 28 U.S.C. §§ 144 and 455(a). Having fully considered the government's motion, the court finds that it should be denied because it is not only procedurally defective as untimely, but substantively deficient and without merit.

I.

The government claims that throughout this case the court has demonstrated a personal bias or prejudice against it or, alternatively, the facts and circumstances of this case indicate the impartiality of the court might reasonably be questioned. In particular, the government relies on several out-of-court statements made or claimed to have been made by the court to United States Attorney John Raley and First Assistant United States Attorney Sheldon Sperling. The government also claims certain rulings made by the court reflect a hostility or prejudice against the government.

A summary of the significant events is as follows. On June 9, 1995, Roberts, the Chief of the Choctaw Nation of Oklahoma, was indicted by a grand jury for the Eastern District of Oklahoma on charges of abusive sexual contact, aggravated sexual abuse, and sexual abuse of tribal employees, all of which allegedly took place within Indian Country at the Choctaw Nation headquarters in Durant, Oklahoma. The indictment was returned by the 1994 grand jury whose service was extended in 1995 upon special request made by the United States Attorney's Office. Sometime prior to the grand jury's return of the indictment against Roberts, the United States Attorney, being well aware of a 20-year standing policy of the court not to require grand jurors to serve more than one calendar year, approached the court about extending the service of the 1994 grand jury into calendar year 1995, to allow completion of an investigation under the supervision of Assistant United States Attorney Joe Wilson. Raley advised the court that extending the duty of the 1994 grand jury would save time and expense by not requiring the United States Attorney's Office to repeat many hours of testimony to the 1995 grand jury which had already been heard by the 1994 grand jury. Specifically, Raley informed the court it would be desirable to bring the 1994 grand jury back for one or two meetings for a matter Raley said, "Joe has." Although the trial judge had never before in his sixteen year tenure found it necessary to extend grand jurors' service into a second calendar year, consideration was given on this occasion as a result of the United States Attorney's request concerning "Joe's" 1994 investigation. It was public knowledge, because of ongoing criminal prosecutions before the court, that Assistant United States Attorney Joe Wilson was involved in the investigation of a sheriff in one of the counties in the eastern district and that the 1994 grand jury had presumably spent time and effort working on the case Raley described as "Joe's case." Based on Raley's request and the implication that the 1994 grand jury would be continuing to investigate a special project involving "Joe's case," the court extended the 1994 grand jury and scheduled an additional session for June 6, 1995.

Immediately prior to the June 6 extended session of the grand jury there were newspaper articles and television reports stating the June 6 grand jury would indict Roberts, with speculation about how the indictment might affect the upcoming race for the office of Chief of the Choctaw Nation, which position Roberts then held and for which he was a candidate for re-election. Based on these public reports, the court became concerned about (1) the potential release of information to the media which should be made known only to the grand jury and (2) the apparent misrepresentation of a need for an extended grand jury. In this regard, the court was concerned about the fact that, if these reports were true, the United States Attorney's Office was planning to present Roberts' case to the overworked 1994 grand jury when the case could have been presented to the 1995 grand jury which had met less than two weeks earlier on May 24, 1995, and was scheduled to return less than two months later on July 26, 1995. The court saw no reason to burden the 1994 grand jury with matters the 1995 grand jury could handle.

Against this backdrop, the court thereafter requested a meeting with Raley in chambers on June 5, 1995. During that meeting, which was attended by Raley and Wilson, the court expressed its displeasure to Raley about the fact that it appeared the 1994 grand jury was to be presented with matters other than those involving "Joe's case" and about grand juror information being leaked to the media. The court also indicated to Raley that the indictment "would have the appearance" to the public of being politically motivated, that is, given the timing of the indictment in relation to the upcoming Choctaw tribal election, Roberts' trial could not be held prior to such election. Raley agreed it would have that appearance to the public, but denied any actual political motivation. The court believed it had been misled by the United States Attorney's Office concerning the matters to be presented during the June 6 session. Notwithstanding this belief, the court reluctantly agreed to allow the extended session to go forward because to do otherwise would require the presentation of "Joe's case" to the 1995 grand jury with considerable time and resources, both of the government and the 1995 grand jury, expended. As noted previously, the 1994 grand jury returned an indictment against Roberts on June 9, 1995. On June 23, 1995, in another in-chambers meeting with Raley, Assistant United States Attorney Bruce Green, United States District Judge Michael Burrage, and United States Magistrate Judge James Payne on an unrelated matter, the court, when asked by Raley if it was satisfied now that the indictment had been handed down, again expressed its sentiments regarding the timing of the Roberts indictment having the "appearance" of being politically motivated. Once again, Raley agreed with this assessment, but he again denied any actual political motivation.

Following indictment, Roberts filed various motions including a motion for disclosure of Rule 404(b) evidence. The court granted Roberts' motion for disclosure of Rule 404(b) evidence and ordered the government to provide notice of the general nature of any such evidence it intended to introduce at trial by July 24, 1995. The government responded by filing sealed notices of Rule 404(b) evidence which listed victims of Roberts' alleged sexually abusive behavior. On August 3, 1995, the court entered an order directing that these sealed notices, along with another document filed under seal by the government related to the medical condition of one of the victims named in the indictment, be unsealed with copies provided to counsel for Roberts. That same afternoon, the government filed a motion to stay the court's order unsealing the documents. The government claimed the information to be disclosed included "confidential medical communications, as well as the identity of persons, statements and events which are currently under on-going investigation, which investigation would be substantially jeopardized and compromised" if the order were executed. The court set the matter for hearing at 8:30 a.m. on August 4, 1995. Following the hearing, the court denied the government's motion to stay. The hearing transcript is part of the record in this case. During the course of this hearing, in an in-camera session, certain statements were made by the court to First Assistant Sheldon J. Sperling, designated lead counsel for the prosecution. In this regard, the government relies on the comments made by the court during a dialogue with Sperling about the court's observations of Sperling's prosecutorial tactics. The court commented that its long-term experience with Sperling reveals he "hides things" and tries "to keep it away from the defendant until it's just virtually too late." The court told Sperling these trial techniques and tactics are "reprehensible and unethical."

In support of its motion, the government submits an affidavit from Raley outlining the government's case for recusal. Raley sets forth his version of the events leading up to the calling of the extended session of the 1994 grand jury and he recaps the proceedings surrounding the court's rulings. For the...