US v. Oluwafemi, 95-CR-0045 (JG).

• Decision Date: 12 May 1995
• Docket Number: No. 95-CR-0045 (JG).,95-CR-0045 (JG).
• Parties: UNITED STATES of America, v. Olusola OLUWAFEMI, Marvin Etheridge, Defendants.
• Court: U.S. District Court — Eastern District of New York

883 F. Supp. 885

UNITED STATES of America, v. Olusola OLUWAFEMI, Marvin Etheridge, Defendants.

No. 95-CR-0045 (JG).

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

May 12, 1995.

Zachary W. Carter, U.S. Atty., E.D.N.Y., Brooklyn, NY by Michele L. Adelman, Asst. U.S. Atty., for the U.S.

Thomas F. Liotti, Garden City, NY, for Olusola Oluwafemi.

Ephraim Savitt, New York City, for Marvin Etheridge.

MEMORANDUM AND ORDER

GLEESON, District Judge:

Defendant Olusola Oluwafemi was arrested on January 6, 1995 at John F. Kennedy International Airport. He was subsequently charged with participating in conspiracies to import and distribute heroin and with substantive counts of importation and distribution. The trial is scheduled to take place on May 30, 1995. Oluwafemi has moved under 28 U.S.C. § 455(a) to disqualify the Court. In the event that motion is denied, Oluwafemi seeks the disqualification of Ephraim Savitt, Esq., who represents Marvin Etheridge, Oluwafemi's codefendant. For the reasons set forth below, both motions are denied.

FACTS

A. The Motion to Disqualify the Court

On February 15, 1995, Oluwafemi moved to disqualify the Court on the ground that its impartiality may reasonably be questioned. The motion is grounded principally on the Court's participation as an Assistant United States Attorney ("AUSA") in the appeal in United States v. Gene Gotti and John Carneglia, No. 94-1249 (2d Cir. Dec. 6, 1994) (the "Gene Gotti appeal"). Gene Gotti and John Carneglia were represented in that appeal by Thomas F. Liotti, Esq., who is counsel to Oluwafemi in this case.¹

Gotti and Carneglia were convicted of narcotics trafficking in this district in 1989. During jury deliberations in that case, one of the anonymous jurors told Judge John R. Bartels that he had been approached outside his home by two men who told the juror that they knew the juror was on the Gotti trial. The juror reported that he was fearful as a result of this encounter. The juror was excused, the defendants were subsequently convicted, and the convictions were affirmed on appeal. United States v. Ruggiero, 928 F.2d 1289 (2d Cir.), cert. denied, 502 U.S. 938, 112 S.Ct. 372, 116 L.Ed.2d 324 (1991).

In March of 1994, nearly five years after the trial, Gene Gotti and John Carneglia filed a motion in the district court seeking the names and addresses of the anonymous jurors who found them guilty. This application was filed by Mr. Liotti, Oluwafemi's counsel in this case, who had had no prior involvement in the case against Gotti and Carneglia. Mr. Liotti's motion was based in substantial part on what he described as newly-discovered evidence. Specifically, he claimed that the excused juror had not been intimidated; rather, he had been bribed by the husband of Gene Gotti's niece. The government, represented by Assistant United States Attorney ("AUSA") David C. James, opposed the motion in the district court, both in a written memorandum and at oral argument.

In a decision reported at 850 F.Supp. 186, Judge Bartels refused to disclose the identities of the remaining jurors to Gotti and Carneglia, and Mr. Liotti filed what is referred to here as the Gene Gotti appeal. In addition to seeking review of the order, Mr. Liotti's appeal brief sought the disqualification of Judge Bartels on the ground that he could not be impartial.

On July 29, 1994, the government filed a brief in opposition to that appeal. The brief was written by AUSA James. I was an Assistant United States Attorney at the time, and in that capacity edited the brief for AUSA James. Both our names appeared on the brief as counsel for the government.

In the motion to disqualify in this case, Mr. Liotti characterizes the Court's participation in the Gotti appeal as a sinister exercise of power.² He also contends that the brief displayed such hostility toward him that the Court cannot preside over this case. Mr. Liotti cites several "disrespectful adjectives" in the government's brief that he says evidence "ire" and "contempt" toward him, (Aff. ¶ 11), including:

— contentions in the preliminary statement that the appellants' claims were "patently frivolous" and that their "attack on the district judge's impartiality is absurd;"

— an assertion that "defendants cannot begin to show that the district court abused its discretion in this case;"

— a statement that "the various threads of the defendants' rambling argument are sometimes difficult to differentiate;"

— a contention that Mr. Liotti's motion to disqualify Judge Bartels, which was raised for the first time on appeal, was based on allegations of bias that were "so patently defective and baseless as to be irresponsible;"

— the characterization of Mr. Liotti's allegation that Judge Bartels was biased against defendants of Italian heritage as "simply outrageous," and the product of "sheer fantasy" on the part of Liotti. (Aff. ¶ 9.)

Apart from these "disrespectful adjectives," Mr. Liotti cites aspects of the government's brief that, he argues, misrepresented his own arguments on appeal.³

As a further ground for recusal, Liotti claims that he "openly and vehemently" opposed the Court's nomination to the federal bench, and that the Court is aware of such an effort. (Aff. ¶ 16.) He further explains that a failure to make the present motion "would be a condonation of Judge Gleeson's former transgressions as a United States Attorney." (Id. ¶ 15.)

B. The Motion to Disqualify the Prosecutor and Codefendant's Counsel

On March 10, 1995, the Court conducted an arraignment on a superseding indictment that contained additional charges against Oluwafemi and added another defendant, Marvin Etheridge. Etheridge had been arrested on January 31, 1995, and on that date Chief Magistrate Judge A. Simon Chrein had appointed Ephraim Savitt, Esq., pursuant to the Criminal Justice Act ("CJA") to represent Etheridge. Mr. Savitt is a member of the CJA panel in this district, and January 31 was one of his approximately semi-annual duty days, on which he was "on call" to receive appointments. Coincidentally, Mr. Savitt, who served as an AUSA in this district until 1989, had been one of the prosecutors in the trial of Gene Gotti and John Carneglia.

On March 13, 1995, Mr. Liotti filed a Reply Memorandum and Supplemental Affirmation in support of his motion for disqualification. These papers, however, addressed that motion only in part. In that regard, they asserted that the Court had served as Assistant United States Attorney until December 31, 1994, and thus had "overlapped" with events relating to this case. (Reply Mem. at 3.)

The primary purpose of the "reply" and "supplemental" papers however, was to seek the disqualifications of Mr. Savitt as counsel for Etheridge and of AUSA Michele Adelman as counsel for the government. In the affirmation, Mr. Liotti asserted that the Court and the prosecutor had "hand-picked" Mr. Savitt to represent Oluwafemi, and that Mr. Savitt's role as a defense lawyer was "dubious at best." The factual basis for these assertions was as follows:

— On March 10, 1995, during an inspection of documents and property disclosed by the government, Mr. Liotti observed that Mr. Savitt "conferred privately" with AUSA Adelman, took few notes, and left before the inspection had concluded. This conduct, Mr. Liotti asserts, suggests "a `special relationship' which Savitt apparently wishes to use to either convert his client into becoming a cooperating witness or, (sic) an antagonist to the defendant, Oluwafemi." (Supp.Aff. ¶¶ 8, 9, 11.)

— During the discovery session, AUSA Adelman noted that some files included in the material disclosed to counsel might not be subject to a disclosure requirement until later in the case. AUSA Adelman took the files, consulted with her supervisor, and returned with the files, turning all of them over to defense counsel. Mr. Liotti asserts that Mr. Savitt failed to object to Ms. Adelman's taking the files from the room, and was "quick to come to her defense by suggesting no intentional wrongdoing on her part ..." (Id. ¶ 10.)

— After listing his memberships in defense bar organizations, Mr. Liotti stated: "I have never known Mr. Savitt to be involved in any of the seminars, meetings or issues for any of these organizations. Rather, it would seem that Mr. Savitt has been hand picked for this case by the Judge and prosecutor because of his well behaved, friendly demeanor toward them and his willingness to cooperate both for himself and his client. It appears that Mr. Savitt's role as a defense lawyer, especially in this case, is dubious at best." (Id. ¶ 13).

In seeking the disqualification of the prosecutor, Mr. Liotti accused Ms. Adelman, as already noted, of "hand-picking" Mr. Savitt as counsel for Etheridge and of having a "special relationship" with him. (Supp.Aff. ¶¶ 8, 9, 12.) An additional basis for the motion was the assertion that the Court and AUSA Adelman had been AUSAs at the same time. (Id. ¶ 3.)

C. The March 17, 1995 Hearing

The return date on the motion to disqualify the Court was originally March 17, 1995. On that date, Mr. Liotti began the proceedings by making an additional motion: to assign the disqualification motion to another judge. When that motion was denied, the Court, noting that neither Mr. Savitt nor his client, Etheridge, was present, inquired of Mr. Liotti whether he had served his papers seeking Savitt's disqualification on Savitt. The answer began as "No, I did not." It later became "They may have been served, I don't know." (Transcript of Proceedings dated March 17, 1995 at 6, 7.) The first of those answers was correct (see Savitt Letter at 2), and the matter was adjourned to permit Mr. Savitt an opportunity to be heard on the motion to disqualify him from the case.

D. The March 30, 1995 Reply Affirmation

Apparently in reply to Mr. Savitt's letter dated March 20, 1995, Mr. Liotti filed a Reply Affirmation on March 30, 1995. It made clear that he sought the disqualification of Mr....