United States v. Green
Decision Date | 16 June 2021 |
Docket Number | (S5) 16 Cr. 281 (PGG) |
Parties | UNITED STATES OF AMERICA, v. BRANDON GREEN, Defendant. |
Court | U.S. District Court — Southern District of New York |
On March 27, 2019, a jury convicted Defendant Brandon Green of racketeering conspiracy, in violation of 18 U.S.C. § 1962(d) (Count One); narcotics conspiracy, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A) (Count Four); and using, carrying, and possessing firearms during and in relation to, and in furtherance of, the narcotics conspiracy charged in Count Four, in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count Five). (Verdict (Dkt. No. 570)) The jury's verdict was premised on Green's participation in the Blood Hound Brims, a Bloods gang engaged in large-scale narcotics trafficking and acts of violence.1 As discussed in a separate order, while sentencing is currently scheduled for June 17, 2021, sentencing will be adjourned to July 22, 2021, to permit the parties to address issues related to the Pre-Sentence Report's Sentencing Guidelines calculations.
Green has moved pro se for (1) recusal (Dkt. No. 955); (2) reconsideration of this Court's February 10, 2021 Order stating that Green's ineffective assistance of counsel claims will not be heard prior to sentencing (Dkt. No. 956); and (3) release on bail pending sentencing (Dkt. No. 931). For the reasons stated below, Green's motions will be denied.
In pro se submissions and at a November 17, 2020 conference, Green stated that he wished to pursue ineffective assistance of counsel claims against (1) his court-appointed lawyers at trial - Eric Breslin and Melissa Geller of Duane Morris LLP; and (2) Zoe Dolan, whom he retained as their replacement. These lawyers no longer represent Green in any capacity. 3
In a November 19, 2020 order, this Court granted Green's request to hear his ineffective assistance of counsel claims as part of a Rule 33 motion prior to sentencing, and instructed Green to complete the "Attorney-Client Privilege Waiver (Informed Consent)" form appended to the order and to "set forth all of his allegations concerning Breslin, Geller, and Dolan's advice and conduct in the form of an affidavit." (Nov. 19, 2020 Order (Dkt. No. 907) at 7-8)4 The Court's order required Green to return the executed waiver form and submit hisaffidavit by December 9, 2020. (Id. at 8) Green did not submit either the executed waiver form or the affidavit by December 9, 2020.
At a January 5, 2021 conference, Green asserted that he had not received either the Court's November 19, 2020 order directing him to submit the waiver form and affidavit, or the waiver form attached to the November 19, 2020 order. (Jan. 5, 2021 Conf. Tr. (Dkt. No. 929) at 5) After directing both defense counsel and the Government to take steps to ensure that Green had the waiver form, the Court warned Green that the submission of the waiver form and affidavit was a prerequisite to this Court hearing his ineffective assistance of counsel claims, and that if these documents were not submitted, the Court would proceed to sentencing. (Id. at 7-9) The Court extended the deadline for Green's submission of the executed waiver form and affidavit to February 9, 2021. Defense counsel "sent Mr. Green the Order, the waiver form and a self-addressed stamped envelope with a letter informing [Green] that [counsel] would file the signed waiver on the docket for him if he returned it to [counsel]." The Government sent these same materials to Green.5 (Jan. 26, 2021 Def. Ltr. (Dkt.No. 936))
On January 26, 2021, Green filed a pro se motion for bail pending sentencing. (Jan. 26, 2021 Def. Ltr. (Dkt. No. 931)) The Government opposes Green's bail application. (Dkt. No. 939)6
This Court did not receive an executed waiver form and affidavit from Green by February 9, 2021. Accordingly, in a February 10, 2021 Order, this Court ruled that it would not consider Green's ineffective assistance of counsel claims prior to sentencing, and vacated its November 19, 2020 Order to the extent that it provides otherwise. (Feb. 10, 2021 Order (Dkt. No. 950) at 4) The Court also set a sentencing date of June 8, 2021. (Id. at 5)7
On February 23, 2021, Green submitted pro se motions for recusal (Green Recusal Br. (Dkt. No. 955)) and for reconsideration of this Court's February 10, 2021 Order. (Green Reconsideration Br. (Dkt. No. 956)) The Government filed its opposition on March 18, 2021 (Mar. 18, 2021 Govt. Ltr. (Dkt. No. 969)), and Green filed a reply on March 25, 2021. (Green Recusal Reply (Dkt. No. 976))
Pursuant to 28 U.S.C. § 455, a judge "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned" or if "he has a personal bias or prejudice concerning a party." 28 U.S.C. § 455(a), (b)(1). The Second Circuit has stated that recusal under Section 455 "requires a showing that would cause 'an objective, disinterested observer fully informed of the underlying facts [to] entertain significant doubt that justice wouldbe done absent recusal.'" In re Aguinda, 241 F.3d 194, 201 (2d Cir. 2001) (quoting United States v. Lovaglia, 954 F.2d 811, 815 (2nd Cir. 1992)). However, "remote, contingent, indirect or speculative" allegations are insufficient to cast doubt on a judge's impartiality. Lovaglia, 954 F.2d at 815. Moreover, the Supreme Court has made clear that "judicial rulings alone almost never constitute a valid basis for a bias or partiality motion":
[O]pinions 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.
Liteky v. United States, 510 U.S. 540, 555 (1994) (emphasis in original).
"[W]here the standards governing disqualification have not been met, disqualification is not optional; rather, it is prohibited." In re Aguinda, 241 F.3d at 201 ( ).
Green contends that he is entitled to recusal because of (1) this Court's February 10, 2021 Order stating that his ineffective assistance of counsel claims would not be heard prior to sentencing; and (2) the Court's "conduct and behavior" towards Green. (Green Recusal Br. (Dkt. No. 955) at 30)
According to Green, the Court's February 10, 2021 Order stating that his ineffective assistance of counsel claims would not be heard before sentencing is "completelyarbitrary," and is "the result of the bias and prejudice harbored by the Judge against Mr. Green." (Id. at 32)
This Court warned Green - at the outset of his claims of ineffective assistance - that ineffective assistance claims are typically heard post-direct appeal, and that Green's sentencing would not be delayed indefinitely while Green pursued his ineffective assistance claims. (Nov. 17, 2020 Conf. Tr. (Dkt. No. 913) at 37-38, 45-46)
Given that the jury's verdict had been issued on March 27, 2019 (Verdict (Dkt. No. 570), and this Court's decision denying Green's post-trial motions had been issued on September 17, 2019 (Dkt. No. 743), this Court informed Green - both at a January 5, 2021 conference (Dkt. No. 929) and in a January 5, 2021 order (Dkt. No. 923) - that if he did not submit an executed attorney-client waiver form and an affidavit setting forth his claims of ineffective assistance by February 9, 2021, the Court's November 19, 2020 order allowing Green to proceed with his ineffective assistance claims prior to sentencing "will be vacated, and this Court will set a date for sentencing." (Id.) Green did not timely submit either the waiver form or his affidavit.8 Accordingly, in a February 10, 2021 order, this Court vacated its earlier orderpermitting Green to proceed with ineffective assistance claims prior to sentencing, and set a date for sentencing. (Dkt. No. 950)
Nothing about this sequence of events provides any basis for recusal. "[A] court's careful enforcement of its rulings does not reflect partiality," United States v. Wedd, 993 F.3d 104, 118 (2d Cir. 2021), and "judicial rulings alone almost never constitute a valid basis for a bias or partiality motion." Litkey, 510 U.S. at 555; see United States v. Colon, 961 F.2d 41, 44 (2d Cir. 1992) ().
Green also argues that recusal is warranted based on this Court's "conduct and behavior." (Green Recusal Br. (Dkt. No. 955) at 30) According to Green, his most recent court-appointed lawyer - Steven Witzel - told Green after a December 8, 2020 conference, "You know, [the Court] is not too fond of you." (Id. at 16, 30)9 Green also asserts that the Court was "angr[y]" and "hostil[e]" to Green during a January 5, 2021 telephone conference, and that the Court disconnected from the call while Green was speaking. (Id. at 18, 30, 32-33) And Green argues that the Court's alleged bias "has been pretty apparent from the [Court's] tone, demeanor,and . . . attempts to discourage Mr. Green['s] attempts to rectify the violations of his rights that occurred in this Case." (Id. at 30)
As an initial matter, this Court...
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