U.S. v. Vazquez-Botet

• Decision Date: 21 July 2006
• Docket Number: Criminal No. 04-160 (JAF).
• Citation: 453 F.Supp.2d 362
• Parties: UNITED STATES of America, Plaintiff, v. Rene VAZQUEZ—BOTET and Marcos Morell—Corrada, Defendants.
• Court: U.S. District Court — District of Puerto Rico

453 F.Supp.2d 362

UNITED STATES of America, Plaintiff, v. Rene VAZQUEZ—BOTET and Marcos Morell—Corrada, Defendants.

Criminal No. 04-160 (JAF).

United States District Court, D. Puerto Rico.

July 21, 2006.

Mary K. Butler, U.S. Dept of Justice Public Integrity Section, Matthew C. Solomon, U.S. Department of Justice, Washington, DC, for Plaintiff.

Edgar R. Vega-Pabon, Vega Pabon, Rodriguez Encarnacion & Lopez Covas, San Juan, PR, Howard M. Srebnick, Black, Srebnick, Kornspan and Stumpf, Miami, FL, for Defendants.

OPINION AND ORDER

FUSTÉ, Chief Judge.

Before this court is Defendant Vazquez-Botet's motion requesting that the undersigned recuse himself from presiding over his upcoming criminal trial scheduled to start on September 25, 2006. Docket Document Nos. 255, 257. Defendant claims that because the undersigned's wife has provided legal representation to two individuals who the government may call to testify in Defendant's trial, she is "acting as a lawyer in [this] proceeding," requiring recusal under 28 U.S.C. § 455(b)(5)(ii) (1993 & Supp.2006). Defendant further avers that she has an "interest that could be substantially affected by the outcome of [this] proceeding," also requiring recusal under 28 U.S.C. § 455(b)(5)(iii) (1993 & Supp.2006). Defendant also proposes that the undersigned must disqualify himself under 28 U.S.C. § 455(b)(5)(iv)(1993 & Supp.2006) because his spouse is "likely to be a material witness in the proceeding." Finally, Defendant requests that the undersigned disqualify himself under 28 U.S.Q. § 455(a)(1993 & Supp.2006), which requires a judge to recuse himself "in any proceeding in which his impartiality might reasonably be questioned."

Whether a judge must recuse himself when his spouse has represented individuals who may be called to testify in a trial before him presents matters of statutory construction and policy considerations. We decide this matter conscious of two vitally-important principles: First, that courts must not only be, but seem to be, free of bias of prejudice, and second, that courts must avoid allowing recusal on demand to provide litigants with a veto against unwanted judges. In re Boston's Children First, 244 F.3d 164, 167 (1st Cir. 2001) (citations omitted).

I. Factual and Procedural' Synopsis

The undersigned judge's spouse is a practicing attorney in San Juan, Puerto Rico. On March 26, 1990, the undersigned entered a "Permanent Order of Disqualification" which instructed the Clerk of Court to disqualify him as a matter of course in all cases in which she appears as counsel of record. Docket Document No. 257.

Gregory Laracy, who has been identified as a subject of the United States' investigation of the Super Aqueduct Project, used the judge's spouse's services prior to the issuance of the above-captioned indictment Laracy has been informed that the government has no interest in prosecuting him, but that he may be called to testify at the Defendant's upcoming trial.

Another potential government witness, Jose M. Ventura, has also used the judge's spouse's services, beginning in connection with his March 4, 2003, sentencing hearing on charges unrelated to the instant indictment, Criminal No. 02-301(PG). If Ventura is called and permitted to testify, it would be as a Fed.R.Evid. 404(b) witness, concerning other alleged bad acts of the Defendant. Docket Document No. 259 ("[Ventura] will testify, pursuant to Federal Rule 404(b), to other, unrelated schemes Vazquez Botet engaged in.").

On April 8, 2004, the same day that the grand jury returned the indictment against Defendant and Marcos Morell-Corrada, this case was randomly assigned to Judge Juan Perez-Gimenez. Judge Perez-Gimenez later was recused, by First Circuit mandamus, because his "impartiality might reasonably be questioned" under 28 U.S.C. § 455(a), In re United States, 441 F.3d 44 (1st Cir.2006), and on May 16, 2006, the undersigned became the second judicial officer assigned at random to preside over the trial.

The reassignment of this case was scrupulously performed, following the strictures of this District's electronic case assignment system. The actual draw was delegated to only two senior personnel at the Clerk's office, the Chief Deputy Clerk and the Systems Administrator. All electronic steps generated by the process were recorded for examination by a higher court if the need would arise. Every single active judge and all eligible senior judges drawing criminal cases participated in the reassignment process. Furthermore, the undersigned, as Chief Judge of the District Court, consulted the particulars of the reassignment process with the Chief Judge of the Court of Appeals, Michael Boudin, whose advice was strictly followed.

During a May 25, 2006, Status Conference, counsel for Defendant tried to present the matter of the undersigned's recusal privately at the bench, out of public earshot. Counsel was instructed to file any recusal motion in writing, and was provided with time, until June 6, 2006, to expand upon his preliminary arguments with a supplemental memorandum of law. Docket Document Nos. 255, 257. Codefendant Morell-Corrada filed a motion on June 8, 2006, declining to join Defendant's recusal motion. Docket Document No. 258. The government filed a memorandum in opposition to the recusal motion on June 16, 2006. Docket Document No. 259.¹ Defendant replied to the government's opposition on June 26, 2006, and June 28, 2006. Docket Document Nos. 262, 264.

II. Analysis

A. Mandatory Disqualifications

1. Section 455(b)(5)(ii): "Acting as a Lawyer in the Proceeding."

Defendant contends that § 455(b)(5)(ii), which provides that a judge shall disqualify himself if his spouse "is acting as a lawyer in the proceeding," requires the undersigned to recuse himself in this case because his spouse has, in the past, provided legal representation to potential witnesses Laracy and Ventura. Relying on McCuin v. Texas Power & Light Co., 714 F:2d 1255 (5th Cir.1983), Defendant submits that under § 455(b)(5)(ii), it makes no difference whether an attorney represents a witness or a party in the proceeding. The government disagrees, stating that the fact that neither Ventura nor Laracy are parties in the pending criminal trial forecloses Defendant's § 455(b)(5)(ii) argument. The truth of the matter is that neither Ventura nor Laracy are parties to this proceeding if called, they will be witnesses. Section 455 itself draws a distinction between a "party" and a material witness. See Docket Document No. 259, Part I (the government's response, contrasting subsections (b)(5)(I) and (b)(5)(iv)).

In McCuin, although a judge's brother-in-law had long participated in discovery proceedings relating to employment-discrimination lawsuits before the judge, it was not until six years after the lawsuits had been filed that the corporate defendant finally added the judge's brother-in-law as its counsel of record and invoked § 455(b)(5)(ii) recusal. In deeming § 455(b)(5)(ii) recusal appropriate under the circumstances of that case, the Fifth Circuit stressed that it did not premise its decision on the mere fact that the judge's mother-in-law had been officially enrolled as counsel, but rather on the fact that the judge's brother-in-law had been participating in the cases. According to the Fifth Circuit, then, "one `acts as a lawyer' within the meaning of § 455(b)(5)(ii) when he actually participates in the case," regardless of whether or not he is enrolled as counsel-of-record. 714 F.2d at 1260.

We are unconvinced that we should extend McCuin, which quite properly prohibits a judge's relative from participating, on the record or not, in ongoing litigation before that judge, to stand for a far more sweeping proposition: That an attorney-spouse's past representation of a non-party witness means that the spouse is "acting as a lawyer in the proceeding." See also, In re Hatcher, 150 F.3d 631, 632 (7th Cir.1998) (recusal not warranted under § 455(b)(5)(ii), when judge's son had interned with the U.S. Attorney's office and assisted with the prosecution of petitioner's co-conspirator indicted on nearly identical charges as petitioner).

We are mindful that under 28 U.S.C. § 455(d)(1), a "proceeding" includes "pretrial, trial, appellate review, or other stages of litigation." However, with respect to the litigation encompassed by this indictment, the judge's spouse has not participated.

In the first place, her representation of Laracy—a non-party witness—pre-date's the instant indictment, as well as the reassignment of the matter to the undersigned. The judge's spouse, in her role as Laracy's attorney, has never appeared in this criminal case. The parties indicate that Laracy has testified before a Grand Jury. His attorney, who could not, by law, appear at that Grand Jury session, cannot be said to be an attorney of record in the resulting criminal case.

We note that no judge presides over a federal grand jury, which "is a constitutional fixture in its own right" and not an arm of the district court. In re United States, 441 F.3d at 57. Thus, the grand jury remains functionally and constitutionally "at arm's length" from the judicial branch. Id Given the limited role judges play in federal grand jury proceedings, and given the fact that the judge's spouse's representation of Laracy during the preindictment stages of this case precedes the undersigned's involvement in the current case by over two years, we do not think that her representation of Laracy falls under § 455(b)(5)(ii)'s meaning of "proceedings" and, therefore, does not warrant the undersigned's mandatory recusal under § 455(b)(5)(ii).

Defendant conjectures that if Laracy were to, for some reason, refuse to testify, and if he were to be charged with contempt, and if he were to contact the judge's spouse to represent him again, this scenario would present an irreconcilable conflict. Defendant's concern over this unlikely sequence of events is misplaced....