USA v. Bayless

• Decision Date: 01 August 1998
• Docket Number: Docket No. 98-1580
• Parties: (2nd Cir. 2000) UNITED STATES OF AMERICA, Appellee, v. CAROL BAYLESS, Defendant-Appellant
• Court: U.S. Court of Appeals — Second Circuit

Page 116

201 F.3d 116 (2nd Cir. 2000)

UNITED STATES OF AMERICA, Appellee, v. CAROL BAYLESS, Defendant-Appellant.

Docket No. 98-1580

August Term, 1998

UNITED STATES COURT OF APPEALS SECOND CIRCUIT

Argued: June 25, 1999

Decided: Jan. 18, 2000

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

TRACY W. YOUNG, Madison, NJ (Joyce C. London, New York, NY, on the brief), for Defendant-Appellant.

IRA M. FEINBERG, Assistant United States Attorney, on behalf of Mary Jo White, United States Attorney for the Southern District of New York (Jay Holtmeier, Special Assistant United States Attorney, and Boyd M. Johnson III and Lewis J. Kiman, Assistant United States Attorneys, on the brief), for Appellee.

GERALD WALPIN and STEVEN M. EDWARDS, Federal Bar Council, New York, NY, submitted a brief (Barrie Goldstein and Russell L. Penzer, on the brief), for amicus curiae Federal Bar Council.

Before: CALABRESI and PARKER, Circuit Judges, and TRAGER, District Judge.^*

CALABRESI, Circuit Judge:

Appeal from a judgment of conviction by the United States District Court for the Southern District of New York (Robert P. Patterson, Jr., J.) finding defendant guilty of possession of cocaine and heroin with intent to distribute, in violation of 18 U.S.C. 2 (1994) and 21 U.S.C. 812, 841(a)(1) and 841(b)(1)(A) (1994), and of conspiracy to distribute cocaine and heroin and possess them with intent to distribute, in violation of 21 U.S.C. 846 (1994).

Affirmed.

In this appeal from a conviction of narcotics offenses, defendant-appellant Carol Bayless argues that the district judge (Harold Baer, Jr., J.) who presided over a pre-trial suppression hearing was obliged to recuse himself in the interest of the appearance of justice. Judge Baer's original decision to grant Bayless's motion to suppress drugs seized from her car was fiercely criticized by politicians and press alike, some of whom called for his impeachment. In the midst of the furor over his ruling, Judge Baer granted the government's motion for reconsideration of his decision, reopened the suppression hearing and heard significant new evidence, and then denied the motion to suppress. After the motion to suppress was denied, Bayless moved for Judge Baer's recusal.

We conclude that the most difficult issues potentially raised by this remarkable case need not be decided. Thus, we do not determine when, if ever, criticism of an unpopular decision becomes so severe as to constitute grounds for recusal of the judge who made that decision. Similarly, we do not establish the conditions under which a defendant who waits to move for a judge's disqualification until after that judge has ruled against her may totally waive her right to seek recusal. Finding, simply, that in the circumstances of this case, Judge Baer did not commit plain error in failing to recuse himself sua sponte, and further finding that Judge Baer did not err when, after hearing all the relevant evidence, he concluded that the drugs seized from Bayless's car were properly admissible against her, we affirm Bayless's conviction.

BACKGROUND

A. Bayless's Arrest and the Search of Her Car

The story begins on April 21, 1995, the day of Bayless's arrest. The parties agree that the arresting police officers, Officer Carroll and Sergeant Bentley, were patrolling the Washington Heights area of Manhattan in an unmarked police car when they observed Bayless, in a car with Michigan license plates, double-parked on 176th Street, near St. Nicholas Avenue. While Bayless was stopped, the officers saw four men load two heavy duffel bags into the trunk of her car. Almost immediately, the men stepped away from the car, and Bayless drove off alone. The officers followed Bayless for about two blocks, during which time she did not drive erratically or commit any traffic violations. They nevertheless pulled her over. After discovering that the car was a rental car and that Bayless was not an authorized driver, the officers asked her about the bags that had been placed in her trunk. When Bayless denied knowledge of the bags, they asked her for the keys, opened the trunk, and discovered that the bags contained a large quantity of cocaine, along with some heroin. (The exact amount of each was later determined to be thirty-four kilograms of cocaine and two kilograms of heroin.)

Bayless was arrested and taken to the 33rd Precinct, where the case was turned over to federal authorities. After being read her Miranda rights, Bayless was interviewed by federal agents and confessed to acting as a drug courier for her son, who sold drugs in the Detroit area. She then repeated her statement on videotape. On June 21, 1995, Bayless was indicted by a grand jury in the United States District Court for the Southern District of New York. She was charged with possession of cocaine and heroin with intent to distribute, in violation of 18 U.S.C. 2 (1994) and 21 U.S.C. 812, 841(a)(1) and 841(b)(1)(A) (1994), and with conspiracy to distribute cocaine and heroin and possess them with intent to distribute, in violation of 21 U.S.C. 846 (1994). Her case was assigned to Judge Baer.

B. The January 1996 Suppression Hearing

On October 3, 1995, Bayless moved to suppress the drugs seized from her car and her post-arrest statements on the ground that the police did not have reasonable suspicion to stop her car. In early January, 1996, Judge Baer held a suppression hearing, at which the government introduced the testimony of one of the arresting officers, Officer Carroll, and the court viewed the videotaped statement Bayless gave after her arrest.

At the hearing, Officer Carroll testified that on the morning of April 21, he and his partner, Sergeant Bentley, both members of the Street Crime Unit, were in plain clothes, patrolling Washington Heights in an unmarked police car. At about 5 a.m., the officers entered 176th Street, and observed a 1995 Chevrolet with Michigan license plates moving slowly along the street. The officers saw the car pull over to the north side of the street, near the intersection with St. Nicholas Avenue, and double park. At that time, Officer Carroll could not tell who was driving the car, but could tell that there was no passenger. As soon as the car stopped, four men came from between parked cars on the south side of the street. Walking in single file, they crossed the street and approached the Chevrolet. Just before the men reached the car, the driver leaned over to the passenger side of the car, and the trunk opened a few inches. The first of the four men opened the trunk all the way, the second man put a large duffel bag into the trunk, the third man put a second large duffel bag into the trunk, and the last man closed the trunk. There was no conversation or other interaction between the four men and the driver, and the entire transaction was concluded in seconds.

After the trunk was shut, the driver immediately drove away, stopping at a red light at the intersection. The officers followed the car, stopping opposite the four men, who were standing on the sidewalk on the north side of 176th Street. Officer Carroll testified that at least two of the men noticed him and his partner and spoke briefly to each other (he could not hear what they said) and that the four men then moved rapidly in different directions. Officer Carroll watched one of the men, who walked to the corner and then began to run north on St. Nicholas Avenue.

The officers followed the Chevrolet and, after about two blocks, placed a red flashing light on their dashboard and pulled the car over. After stopping the car, Officer Carroll ordered Bayless to turn the motor off, which she did, and asked her for her license, registration, and insurance. Bayless told Carroll that it was a rented car, and he asked for the rental agreement and her license, which she gave him. When he asked her to whom the car was rented, she said she did not know. The rental agreement was not in Bayless's name, and it did not authorize any other drivers. Officer Carroll asked Bayless who the men who had put bags in her trunk were, and she denied that anyone had put bags in her trunk. He then asked Bayless to get out of the car and, handcuffing her, arrested her for unauthorized operation of a motor vehicle. After the arrest, Sergeant Bentley unlocked the trunk, opened the duffel bags, and found the drugs. The officers then took Bayless to the 33rd Precinct.

Upon questioning by the court, Officer Carroll gave several reasons why he and his partner were suspicious of Bayless. First, Officer Carroll claimed that the area around 176th Street, and the Washington Heights/Inwood neighborhood in general, was "known as a hub . . . for the drug trade." Second, the "orchestrated" manner in which the four men loaded the trunk suggested to Carroll a rehearsed transaction, and he found it abnormal and suspicious that the four men had no conversation or interaction with the driver of the car. Third, the men dispersed upon spotting the officers, and one of them began to run. Fourth, the car had out-of-state license plates. Finally, Officer Carroll noted that he and his partner pulled Bayless over when they did because they wanted to prevent her from reaching the highway, which led to the George Washington Bridge and thence out of New York state.

At the hearing, the court also viewed Bayless's videotaped statement, which described the events surrounding her arrest in a somewhat different fashion. According to Bayless, she left Detroit on the afternoon of April 20 with five duffel bags full of cash (she estimated the total to be about $1 million), planning to purchase drugs in New York and to bring them back to Detroit. She was a passenger in the Chevrolet, which was driven by an associate, Terry, and they were accompanied by three other men driving a van (Robert, Chubb, and another man whose name she could not remember). When they reached 176th Street, where they were met as planned by the people selling...