United States v. Nixon

• Decision Date: 15 September 2017
• Docket Number: Criminal Action No. 06–102 (JDB)
• Citation: 267 F.Supp.3d 140
• Parties: UNITED STATES of America v. Kevin NIXON, Anderson Straker, Zion Clarke, Ricardo De Four, Kevon Demerieux, Wayne Pierre, and Christopher Sealey, Defendants.
• Court: U.S. District Court — District of Columbia

267 F.Supp.3d 140

UNITED STATES of America

v.Kevin NIXON, Anderson Straker, Zion Clarke, Ricardo De Four, Kevon Demerieux, Wayne Pierre, and Christopher Sealey, Defendants.

Criminal Action No. 06–102 (JDB)

United States District Court, District of Columbia.

Signed September 15, 2017

James Stephen Sweeney, U.S. Attorney's Office, Jeanne Marie Hauch, U.S. Attorney's Office Economic Crimes Section, Washington, DC, for United States of America.

A.J. Kramer, Federal Public Defender for the District of Columbia, Gregory S. Smith, Law Offices of Gregory S. Smith, Jeffrey Brian O'Toole, Bonner Kiernan Trebach & Crociata, Jerry Ray Smith, Jr., Jerry Ray Smith, Jr., Attorney at Law, Manuel J. Retureta, Retureta & Wassem, P.L.L.C., Matthew J. Peed, Clinton Brook & Peed, Richard Alan Seligman, Law Offices of Richard Seligman, Jonathan Seth Zucker, Law Offices of Jonathan Zucker, Steven Roy Kiersh, Law Office of Steven R. Kiersh, John James Carney, Carney & Carney, John Patrick Pierce, Themis PLLC, Pleasant S. Brodnax, III, Law Office of Pleasant S. Brodnax, III, Washington, DC, Patrick M. Donahue, Wise & Donahue PLC, Annapolis, MD, Joanne Roney Hepworth, Law Office of Joanne Roney Hepworth, PawPaw, WV, William Lawrence Welch, III, Baltimore, MD, for Defendants.

Kevon Demerieux, Beaumont, TX, pro se.

Anderson Straker, White Deer, PA, pro se.

Kevin Nixon, Coleman, FL, pro se.

MEMORANDUM OPINION

JOHN D. BATES, United States District Judge

Defendants have moved for this Court to recuse itself from these habeas proceedings based on a telephone conversation between the Court and a former government prosecutor in the underlying criminal case. The call occurred in June 2016, long after the case (including appeals) had concluded. Defendants allege that recusal is required because the telephone conversation provided the Court with personal knowledge of disputed evidentiary issues, the Court expressed an opinion on a relevant matter, and an objective observer would reasonably question the Court's impartiality in these proceedings based on a statement the Court made during the call. The Court takes these allegations and its duty to determine whether recusal is required very seriously. For the reasons explained below, however, the Court concludes that recusal is not required based on the record as it currently stands. The Court recognizes that defendants could renew their request as the record further develops and additional facts are learned. But for now, defendants' motion will be denied without prejudice to later renewal.

I. BACKGROUND

A. Case Background

In April 2005, defendants and their coconspirators kidnapped Balram Maharaj, a naturalized U.S. citizen who was visiting his family in Trinidad and Tobago. Maharaj was held in a remote forest camp while defendants attempted to extort a ransom from his family. After six days in captivity, he slipped into a diabetic coma and died.

In an attempt to conceal the crime, defendants dismembered Maharaj, packed his remains into Styrofoam containers, and buried the containers in the woods. With assistance from the FBI, the Trinidadian police uncovered evidence of Maharaj's death.

All defendants were extradited to the U.S. and charged with conspiracy to commit hostage taking and hostage taking resulting in death, in violation of 18 U.S.C. §§ 2, 1203(a). Four entered into cooperation agreements with the government and pled guilty before this Court: Russell Joseph on July 26, 2006, Winston Gittens on February 27, 2007, Jason Percival on November 16, 2007, and Leon Nurse on April 15, 2009. The remaining seven (the defendants here)—Anderson Straker, Wayne Pierre, Zion Clarke, Ricardo De Four, Kevon Demerieux, Christopher Sealey, and Kevin Nixon—were tried by a jury before this Court from May 27, 2009 to July 31, 2009. All four cooperators testified at defendants' trial, and all of the defendants were found guilty on both counts.

On June 10, 2011, this Court sentenced defendants Straker, Pierre, Clarke, De Four, Demerieux, Sealey, and Nixon, to concurrent terms of life imprisonment on each count, as required by statute. On May 2, 2014, this Court sentenced cooperating defendants Gittens, Nurse, Joseph, and Percival to 120, 126, 132, and 156 months' imprisonment, respectively. The four cooperators received credit for time served back to 2006.

Defendants appealed and their convictions were affirmed by the D.C. Circuit on September 1, 2015. See United States v. Straker, 800 F.3d 570, 581 (D.C. Cir. 2015). In February 2016, the U.S. Supreme Court denied defendants' petition for a writ of certiorari. Straker v. United States, ––– U.S. ––––, 136 S.Ct. 1170, 194 L.Ed.2d 191 (2016). Thereafter, defendants began filing petitions to vacate their sentences pursuant to 28 U.S.C. § 2255.¹

Defendant Straker filed the first § 2255 petition in June 2016. See Mot. to Vacate (Straker) [ECF No. 889]. Shortly thereafter, defendant Pierre filed his § 2255 petition in September 2016. See Mot. to Vacate (Pierre) [ECF No. 904]. After these two petitions were filed, the government began disclosing information concerning certain actions taken by the lead prosecutor on the case, Bruce Hegyi. Hegyi represented the government throughout the investigation, trial, sentencing, and appeal in this case.²

B. Government's Disclosures

The disclosures revealed that the government was conducting an investigation into certain actions taken by Hegyi and reported that the investigation was in the "very early stages."³ Gov't's Notice, Sept. 7, 2016 at 3. The disclosures indicated that Hegyi was "concerned about the security of the cooperating witnesses for various reasons and took steps both before and after sentencing to attempt to ensure the[ir] safety." Id. at 2. The government specifically described additional actions that Hegyi took on behalf of defendant Gittens after he was sentenced in May 2014. In October or November 2014, after Gittens completed his sentence and was transferred to the custody of Immigration and Customs Enforcement (ICE), Hegyi put Gittens in touch with his former law firm to assist with Gittens' deportation hearing.⁴ Id. Hegyi visited Gittens while he was in ICE custody in Williamsburg, Virginia, and provided Gittens with books on soccer and morality that Hegyi purchased online. Ex. 1 to Defs.' Mot. for Recusal at 3, 5. Hegyi also made several deposits into Gittens' inmate account, totaling approximately $150, when Gittens was in ICE custody. Gov't's Supp. Notice, Jan. 24, 2017 [ECF No. 919–2] at 1. In July 2015, Hegyi testified on behalf of Gittens at an immigration hearing. Gov't's Notice, Sept. 7, 2016 at 2–3. As a result of that hearing, Gittens' deportation was deferred and he was released from ICE custody shortly thereafter. Id. at 3.

Following his release from ICE custody, Gittens called Hegyi from a bus station in Washington, D.C. According to Hegyi, he was concerned that Gittens had no resources, no permanent place to live, and no relatives he could turn to, so Hegyi invited Gittens to stay at his home for a weekend in order to develop a long-term plan for Gittens. Id. At the conclusion of that weekend, Hegyi invited Gittens to reside at his home indefinitely. Id. Hegyi notified the U.S. Probation Office of this arrangement and explained that he was the prosecutor in Gittens' case. Ex. 1 to Defs.' Mot. for Recusal at 4. Gittens apparently obtained permission from his probation officer to reside with Hegyi. Id.

Gittens lived with Hegyi (and Hegyi's wife) from approximately August 2015 to March 2017. Gov't's Opp'n [ECF No. 973] at 5 & n.3. During this time, Hegyi helped Gittens obtain a volunteer position, paid $465 for a work authorization card for Gittens, assisted Gittens with obtaining his birth certificate, and tried to help Gittens obtain a non-driving identification card. Gov't's Notice, Sept. 7, 2016 at 3. At some point after their sentencing, Hegyi requested one-time payments from the FBI for defendants Gittens and Nurse. Gov't's Supp. Notice, Jan. 24, 2017 at 1. Nurse and Gittens received $5,000 payments from the FBI in June and December 2015, respectively.⁵ Id.

In February and March of 2017, the government released to defense counsel two documents: a memorandum summarizing an August 12, 2016 interview of Hegyi by two attorneys from the D.C. U.S. Attorney's Office and the Criminal Division of the Justice Department; and an August 13, 2016 email from Hegyi clarifying certain details from that interview. See Exs. 1 and 2 to Defs.' Mot. for Recusal [ECF Nos. 964–1 & 964–2]. During that interview, Hegyi described in detail the actions that he took on behalf of Gittens. He also indicated that "there were no promises made to Gittens prior to his testimony or in connection with the trial" and that "[t]he circumstances that led to Gittens residing with Hegyi occurred after Gittens was sentenced." Ex. 1 to Defs.' Mot. for Recusal at 5.

C. Hegyi's Telephone Call with the Court

Hegyi also described a telephone call that he had with the Court on June 16, 2016, which is the basis for defendants' motion for recusal. Hegyi's account of that conversation, which the Court accepts as accurate at this point unless otherwise noted, is as follows. Hegyi contacted the Court to inquire whether the Court would be "agreeable to serve as a[n employment] reference for [Hegyi]."⁶ Ex. 2 to Defs.' Mot. for Recusal at 1. During the call, the Court asked Hegyi whether he was aware of defendant Straker's § 2255 petition, which had been filed earlier that day. Hegyi responded that he was aware of Straker's petition, but he had not read it. Id. The Court then asked Hegyi whether the D.C. U.S. Attorney's Office was aware of Straker's petition. Hegyi responded that he did not know, but he would forward a copy to the U.S. Attorney's Office. Id.

After that, Hegyi told the Court "about Gittens' current immigration status," including that Gittens was living with Hegyi, how Gittens was doing, and that Gittens had used the one-time source payment that ...