Opinion
Criminal No. 00-3 (JBS).
May 3, 2002
Christopher J. Christie, United States Attorney, By: Kevin T. Smith, AUSA, Camden, New Jersey, Counsel for the United States of America.
Mr. Kevin Boone, #10196-050, Federal Detention Center Philadelphia, Philadelphia, Pennsylvania, Defendant, Pro se.
OPINION
Presently before this Court are two motions by defendant, Kevin Boone, to disqualify the undersigned under 28 U.S.C. §§ 455(a), 455(b)(1), 455(b)(5)(ii), and 144 [Docket Item 211-1] and also under 28 U.S.C. §§ 455(b)(5)(iii) and 455(c) [Docket Item 213-1]. Mr. Boone, although represented at the time by counsel, filed these motions pro se. On Wednesday April 17, 2002, this Court heard oral argument on these motions from Mr. Boone's then attorney, Tariq Karim El-Shabazz, Esquire, and the government. Mr. Boone himself was also afforded the opportunity to present argument to the Court in support of his motions. On April 17, 2002, Mr. Boone also asked the Court to discharge his attorney and to permit him to proceed pro se in the remainder of this case, which the Court granted after a hearing. For the reasons stated upon the record on April 17, 2002, and also for the reasons contained herein, Mr. Boone's motions will be denied.
As was addressed by the undersigned in a separate oral opinion on April 17, 2002, Mr. Boone under oath knowingly and voluntarily waived his right to counsel and is now representing himself pro se, with Robert Aaron Greenberg, Esquire acting as stand-by counsel for the purpose of answering Mr. Boone's questions. The two motions addressed in this Opinion were authored by Mr. Boone. Mr. El-Shabazz, at oral argument, represented that he had not seen these motions before Mr. Boone filed them, and that he had not filed an attorney certification in conjunction with Mr. Boone's motion for disqualification under 28 U.S.C. § 144. As of today, no such certification has been received or filed. However, as articulated by the undersigned upon the record and as addressed below, Mr. Boone's motions under Section 455, which has no attorney certification requirement, require the analysis of the same issues presented in his Section 144 motion. Although the Section 144 motion will be denied for lack of a certification of counsel that the motion was filed in good faith, the same issues will be addressed herein under Section 455.
Mr. El-Shabazz, who had been retained by Mr. Boone, was Mr. Boone's fourth attorney. His first was Assistant Federal Public Defender Lisa Evans, who was replaced by retained attorney Dennis Cogan, who was replaced by Assistant Federal Public Defender Lori Koch, who was replaced by retained counsel Tariq Karim El-Shabazz.
I. Related Facts:
The underlying facts of this criminal case, which resulted in Mr. Boone's conviction on one count (conspiracy to distribute and possess with intent to distribute a controlled substance in violation of 21 U.S.C. 841(a)(1)) on August 16, 2001, are well recorded in previous opinions and in transcripts, and need not be fully recounted herein. Only the facts related to Mr. Boone's motions to disqualify will be discussed.
A. April 8, 2002 Disqualification Motion
On April 8, 2002, Mr. Boone filed a "Motion for Disqualification of Justice, Judge, Or Magistrate Under 28 U.S.C. §§ 455(a), 455(b)(1), 455(b)(2), and 144 for Bias, Prejudice, and Acting Like a Lawyer in the Case," which is Docket Item 211-1. Mr. Boone alleges that the undersigned 1) is personally biased and prejudiced against him, 2) has personal knowledge of disputed evidentiary facts concerning these proceedings, and 3) acted as a government attorney during his criminal trial. Mr. Boone asserts that as a result of these alleged biases, his 5th and 6th Amendment rights were violated, and the undersigned should be disqualified from this case.
In his affidavit in support of his motion for disqualification, Mr. Boone references three complaints (hereinafter, the "external complaints") initiated by him against the undersigned: 1) Mr. Boone's Complaint of Judicial Misconduct, filed with the Third Circuit Court of Appeals on or about February 14, 2002, which was denied, and his petition for review of that denial filed before the Third Circuit Judicial Council on March 26, 2002, (see Boone, Appx. 1, 3); 2) a civil Racketeer Influenced Corrupt Organizations Act ("RICO") and civil rights suit recently filed by Mr. Boone in the United States District Court, Eastern District of Pennsylvania naming the undersigned among many defendants; and 3) Mr. Boone's complaint to the Judicial Qualifications Commission, filed June 18, 2001 (Boone, App. 8). These "external complaints," attached as exhibits to the current motions, allege that the undersigned somehow caused his conviction on Count Four by encouraging the jury to deliberate and attempt to reach unanimity, in accordance with their duty as jurors (App. 3 at 1-2), that the undersigned acted as a government attorney in the criminal case by allegedly instructing AUSA Slovin to admit evidence Mr. Boone claims he would not have otherwise introduced (id. at 2) and finally that the undersigned violated his right to a speedy trial by improperly signing exclusion of time orders (id. 2-5).
This complaint alleges in very broad and vague terms that the undersigned is prejudiced and violated Boone's Constitutional rights. No specifics are provided. The Judicial Qualifications Commission has no known jurisdiction over complaints against federal judges.
Also in his affidavit, Mr. Boone references his pro se attempt to obtain a writ of mandamus, filed on July 23, 2001, in which he alleged that the undersigned wrongfully refused to allow him to file pro se motions while he was represented by his then counsel, Tariq Karim El-Shabazz, Esquire. (Boone, App. 4.) Mr. Boone further alleges that the undersigned unlawfully ordered that his first motion for disqualification, and its supporting affidavit, received June 26, 2001, be removed from the clerk's file and returned to him. (Boone, Appx. 6-7.) Last, Mr. Boone cites several other motions that were stricken from the docket and returned to him, as a result of this Court's June 29, 2001 Order [Docket Item 93] directing that the clerk not file unauthorized pro se submissions of an individual represented by his retained counsel where those motions were unendorsed by defense counsel.
At the end of his affidavit, Boone asserts that "[his] attorney, Tariq Karim El-Shabazz, endorses this affidavit, and shall provide this court with a certificate of counsel indicating that the record that Mr. Boone has provided is accurate and that Mr. Boone ahs [sic] prepared this affidavit in good faith." (Boone Aff. at 4). As noted above, no certification has been received from Mr. El-Shabazz as of this date, two weeks after the hearing.
B. April 11, 2002 Disqualification Motion
On April 11, 2002, Mr. Boone filed a second motion to disqualify the undersigned, this time adding 28 U.S.C. §§ 455(5)(iii) and 455(c) as bases for such disqualification. This motion incorporates the earlier motion and alleges that Mr. Boone's civil suit, recently filed in the Eastern District of Pennsylvania, naming the undersigned and several dozen other court staff, judges, prosecutors, investigators and former defense counsel as defendants, creates an financial interest that further questions the impartiality of the undersigned. Mr. Boone was invited and allowed to present oral argument in support of his disqualification motion during the April 17, 2002 hearing on the record before this Court, which he did. Mr. Boone orally urged the undersigned to recuse himself in light of the pending litigation in the Eastern District of Pennsylvania and also in light of Mr. Boone's complaints to the Third Circuit and Judicial Qualifications Commission. Mr. Boone, however, provided no details about how his civil suit would compromise the undersigned's impartiality. Mr. Boone's basic premise seems to be that he has created an adversary relationship by filing a civil suit arising from this criminal case which must therefore create a bias or prejudice in me as a reaction to it. It does not. His civil suit contains baseless and legally frivolous allegations against the undersigned and I am not concerned about it at all.
In his affidavit in support of this second motion for disqualification, Mr. Boone includes all the allegations made in his "external complaints" and the April 8, 2002 Disqualification Motion. (Boone II Aff., ¶ 1.) The remainder of the second affidavit asserts that the undersigned, along with AUSA Smith and then defense attorney Dennis Cogan, Esquire, attempted to coerce Mr. Boone into pleading guilty and also that they knowingly, intentionally, and willfully violated his right to a speedy trial by signing a September 26, 2000 Order, excluding time under the Speedy Trial Act from September 18, 2000 to October 23, 2000. (Boone II Aff., ¶¶ 2-13.) Mr. Boone claims this Order was a false, back-dated, Speedy Trial Order. (Boone II Aff., ¶¶ 12-13.)
For the following reasons, Mr. Boone's motions will be denied, and the undersigned will remain presiding over this action.
II. DISCUSSION
This Court will now thoroughly address the occurrences that Mr. Boone alleges require the disqualification of the undersigned. Mr. Boone's affidavits and external complaints make the following four primary allegations: 1) That the undersigned improperly ordered the Clerk of Court to remove motions filed pro se by defendant while he was represented by counsel; 2) that the undersigned violated defendant's speedy trial rights by entering an allegedly "false" order excluding time under the Speedy Trial Act; 3) that the undersigned acted as a government attorney when he reminded the AUSA to move a document into evidence; and 4) that the undersigned forced the jury to convict defendant on one count before allowing them to leave. These allegations, discussed more fully below, fail to warrant the undersigned's disqualification under either 28 U.S.C. § 144 or 28 U.S.C. § 455.
A. Disqualification under 28 U.S.C. § 144
Mr. Boone moves for the disqualification of the undersigned pursuant to 28 U.S.C. § 144. Because the statute allows for the filing of only one 28 U.S.C. § 144 disqualification motion, only Mr. Boone's first such motion, filed on April 9, 2002, will be considered. See 28 U.S.C. § 144. First, this Section 144 motion is deficient and will be denied because no certificate of good faith by Mr. Boone's counsel of record, Mr. El-Shabazz, accompanied either motion. See United States v. Rosenberg, 806 F.2d 1169, 1173 (3d Cir. 1986) (holding that recusal motions pursuant to Section 144 must be timely and contain a good faith certificate of counsel); U.S. v. Clark, 398 F. Supp. 341, 362 (E.D. Pa. 1975), aff'd, 532 F.2d 748 (3d Cir. 1976) (holding that procedural defect of failing to file a certificate of counsel is sufficient to defeat a motion for disqualification in light of potential for abuse if standard were more lenient). On April 17, 2002, prior to his release as counsel for Mr. Boone, Mr. El-Shabazz represented to the Court that he had dictated a certification of counsel for filing with Mr. Boone's Section 144 motion. As of the date of this Opinion, no such certification of counsel has been filed with the Clerk of Court. Therefore, the Section 144 motion will be dismissed.
Bias or prejudice of judge
Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.
Second, even if this Court were to determine that Mr. Boone's affidavit, absent a required certificate of service from Mr. El-Shabazz, were adequate support for his Section 144 motion, it would still be properly denied because it is untimely. This motion, filed eight months after his conviction, would generally be considered untimely unless good cause was shown; to rule otherwise would allow the party alleging bias to await judgment in the hopes of obtaining a favorable decision before asserting bias. See Rosenberg, 806 F.2d at 1173, n. 3 (citing Crowder v. Conlan, 740 F.2d 447, 453-54 (6th Cir. 1984)). Mr. Boone has made no representation as to why his Section 144 motion was filed so late in the proceeding, literally on the eve of his sentencing hearing, where sentencing was scheduled for April 17, 2002, for alleged conduct predating Mr. Boone's conviction at trial in August, 2001.
Third, even if this Court were to deem the motion timely and proper without a certification of counsel, the motion and Mr. Boone's affidavit fail to state with particularity facts that, even accepting the allegations as true, would lead a reasonable person to the conclusion that the district judge harbored a special bias or prejudice toward Mr. Boone. The rule of Vespe, namely, "[w]hen a timely affidavit is filed under section 144, its factual allegations must be accepted as true," United States v. Vespe, 868 F.2d 1328, 1340 (3d Cir. 1989) (citing case), is inapplicable where no § 144 certification of counsel exists. It is not necessary for the district judge to credit mere conclusory statements and opinions, even under the Vespe rule. Id. (citing cases). When considering a motion pursuant to Section 144, the district court "passes solely on the legal sufficiency of the facts and must recuse itself if they `give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment.'" Vespe, 868 F.2d at 1340 (quotingUnited States v. Townsend, 478 F.2d 1072, 1073-74 (3d Cir. 1973)). In order to be disqualifying, the bias alleged must be personal or extrajudicial, not judicial, in nature. Vespe, 868 F.2d at 1340 (citing Johnson v. Trueblood, 629 F.2d 287, 290-91 (3d Cir. 1980); Mims v. Shapp, 541 F.2d 415, 417 (3d Cir. 1976)).
Mr. Boone's affidavit generally alleges that the undersigned was personally biased and prejudiced against him during the pretrial phase and trial. The affidavit specifically asserts that the undersigned's decisions to strike his pro se motions while he was represented by counsel, supported by previous orders directing him to refrain from filing motions without his counsel, and also the undersigned's alleged "leading" of AUSA Slovin during trial constitute bias and reveal that the undersigned acted as a government lawyer. In the attachments to his Section 144 motion, Mr. Boone also asserts that the Court improperly entered Speedy Trial Act orders, which denied Mr. Boone's right to a speedy trial. (See Boone Aff., ¶ 1-14; App. 3.) The records say no such thing. Disregarding Mr. Boone's vague and unsupported theories and opinions, all of which relate to my judicial function during the pretrial and trial, there is no fact alleged that would suggest to reasonable person that I harbored a personal, extrajudicial bias against Mr. Boone. At most the facts allege some vague judicial bias, in the sense of Mr. Boone's disagreement with judicial rulings and processes, which is not disqualifying. Nothing in Mr. Boone's affidavit suggests that this Court's actions were influenced by any personal, disqualifying bias against Boone.
Mr. Boone's Section 144 motion will therefore be denied. Where, as here, the affidavits in support of Section 144 recusal are insufficient to compel disqualification, a district judge has a duty to preside over the case. See United States v. Dansker, 537 F.2d 40, 54 (3d Cir. 1976); Vangarelli v. Whitco Corp., 808 F. Supp. 387 (D.N.J. 1992).
B. Disqualification Under 28 U.S.C. § 455
Mr. Boone next moves for disqualification under 455(a), 455(b)(1), and 455(b)(5)(ii), 455(b)(5)(iii), and 455(c), citing the exact same reasons as in his Section 144 motion. In two separate motions and affidavits filed three days apart, Mr. Boone alleges that the undersigned should be disqualified from this case this case because of personal bias. The government submitted opposition to these motions on April 11, 2002, noting that the record clearly reveals nothing but impartiality on the part of the Court. The government also notes that the allegations in Mr. Boone's civil action, pending in the Eastern District of Pennsylvania, and in his other external complaints, are largely fanciful and unsupported.
Disqualification of justice, judge, or magistrate
(a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
Section 455(b)(1) provides that a judge should also recuse himself: "Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding."
Section 455(b)(5)(ii) provides, in part, that a judge must recuse himself where he "[i]s acting as a lawyer in the proceeding."
Section 455(b)(5)(iii) provides, in part, that a judge must recuse himself where he "[i]s known . . . to have an interest that could be substantially affected by the outcome of the proceeding."
Section 455(c) provides that "[a] judge should inform himself about his personal and fiduciary financial interests, and make a reasonable effort to inform himself about the personal financial interests of his spouse and minor children residing in his household."
Although not expressly stated by Mr. Boone, his motion for disqualification under Sections 455(b)(5)(iii) and 455(c) could only relate to the pending civil case. Section 455 does not require automatic recusal where a criminal defendant has named the presiding judge as a defendant in a civil action. See 28 U.S.C. § 455; Turner v. American Bar Ass'n, 407 F. Supp. 451, 482-83. The statute requires recusal only when a judge's impartiality might reasonably be questioned. Id.
Section 455 requires recusal where the court's "impartiality might reasonably be questioned." 28 U.S.C. § 455(a) (emphasis added); Vespe, 868 F.2d at 1341. The applicable inquiry is an objective one — whether "`a reasonable [person] knowing all the circumstances would harbor doubts concerning the judge's impartiality.'" Vespe, 868 F.2d at 1341 (quoting United States v. DiPasquale, 864 F.2d 271, 279 (3d Cir. 1988)). When considering a motion for recusal under section 455, unlike one under 144, a district judge may scrutinize "the factual accuracy of affidavits submitted pursuant to 28 U.S.C. § 455."Vangarelli, 808 F. Supp. at 389 (quoting United States v. Sciarra, 851 F.2d 621, 625, n. 12 (3d Cir. 1988)).
A review of the transcripts in these proceedings as a whole fails to support Mr. Boone's allegations 1) that the undersigned is personally biased, 2) that the undersigned acted as a government attorney in this case, 3) that the undersigned has external knowledge of disputed facts in this case, or 4) that the undersigned has any other personal, extrajudicial, or financial bias against Mr. Boone. In fact, as the government suggests and as is discussed in greater detail below, the undersigned has taken great pains to ensure that Mr. Boone enjoys all the protections guaranteed to all criminal defendants by the Constitution. Additionally, the undersigned has granted Mr. Boone privileges of a degree of simultaneous representation by counsel and self-representation not required by the Constitution.
C. Analysis of Specific Allegations of Alleged Bias
Each of Mr. Boone's allegations arise out of distorted citations to and misrepresentations of the record. Although Mr. Boone is clearly displeased with some of the legal rulings in this case, and with his conviction by the jury on Count Four of the Third Superceding Indictment, his dissatisfaction is not grounds for recusal.
1. Mr. Boone's Pro Se Motions While Represented by Counsel
Mr. Boone alleges that this Court was somehow personally biased against him because the Court had the Clerk strike eight motions he filed pro se, while he was represented by counsel. (See Boone Aff., ¶¶ 9-10, 12-15, Appx. 7, 9-12.) Mr. Boone's unprecedented penchant for filing his own motions with the Clerk of Court while simultaneously represented by counsel caused the confusion that may be expected when a party refuses to follow the Court's rules of procedure. When the subject arose at a pretrial conference on December 11, 2000 (while Boone was represented by AFPD Lori Koch), I directed Mr. Boone not to file his own personal motions but to discuss his concerns with his attorney, who alone speaks for him. Mr. Boone promptly disregarded the rules and filed his own motions.
After hearing from the attorneys on "hybrid representation" the Court instructed that:
There can be only one set of motion papers. As long as Ms. Koch is in the case, it's her motions that I'm going to decide. But if in her discussions with Mr. Boone there's additional positions that Mr. Boone wants Ms. Koch to take, then those positions can also be submitted attached to the brief, as Ms. Koch says, by the same motion dates so we all have the motions and all the positions in one place. If there's oral argument, only Ms. Koch will be permitted to argue. And it will be up to Mr. Smith when he files opposition, to address the motions, the ones that Ms. Koch endorses and the ones attached, if there are any. . . . I think this is the fairest thing to all parties. And in a case that's almost a year old, it's time to move it to trial.
Tr. 12/11/00 10:24-11:13. Mr. Boone was present during this exchange and endorsed the position by saying, "it's not my desire to act as co-counsel or to imitate a lawyer or anything of that nature. I truly understand that. I'm not qualified to be a lawyer . . . I'm not qualified to be co-counsel. The only thing I want to do is participate in my own defense." Id. Tr. 12:17-23. That is exactly what this Court permitted Mr. Boone to do.
The motions filed in January, 2001 (see Boone Aff., ¶ 15; Appx. 12) were for discovery [Docket Items 42-1 and 43-1], to dismiss the indictment based on outrageous governmental misconduct [Docket Item 44-1], and for the exclusion of evidence based on various violations of state and federal law [Docket Item 48-1]. After being stricken by Court Orders as unauthorized pro se motions by a represented defendant (see Docket Items 45, 46, 47, 49), these motions were considered on the merits and either granted, denied or dismissed as moot. See Order of July 7, 2001 (granting in part 43-1 motion for discovery, dismissing as moot the remainder of the 43-1 motion and the 42-1 discovery motion); Order of July 19, 2001 (denying 44-1 motion to dismiss for outrageous governmental conduct); and Opinion and Order of July 16, 2001 (denying defendant's motion to suppress). In addition to deciding all motions filed on his behalf by Ms. Koch, as well as the authenticity and chain-of-custody application of previous counsel Dennis Cogan, this Court addressed each of hispro se motions, and Mr. Boone's assertions to the contrary are false.
On June 29, 2001, after Mr. Boone failed to heed the Court's instruction not to file pro se motions while he was represented by defense counsel, by that time attorney El-Shabazz, this Court Ordered that the Clerk refuse to file new additional unauthorized submissions by Mr. Boone. (See Docket Item 93.) Also on June 29, 2001, the Court by Court Order struck Mr. Boone's first pro se motion and accompanying affidavit to disqualify the undersigned pursuant to 28 U.S.C. § 455. (See Docket Items 90-92; Boone Aff., ¶¶ 9-10 Appx. 6-7.) On July 17, 2001, this motion was reinstated to the docket and addressed on the merits, and it was denied. (See Jul. 17, 2001 Order, Docket Item 117.)
Mr. Boone took a pro se appeal from the Court's denial of that recusal motion, which was denied on the merits in a short opinion of the United States Court of Appeals for the Third Circuit, In re: Kevin Boone, No. 01-2869, slip op. (3d Cir. Dec. 19, 2001) (per curiam).
On July 19, 2001, after a hearing in which Mr. Boone participated with Mr. El-Shabazz, this Court vacated its previous Order instructing the Clerk to return pro se motions to Mr. Boone, and Ordered that such documents should be filed, but not acted upon until Mr. Boone's attorney, then Mr. El-Shabazz, requested that the Court do so in Court. (See July 19, 2001 Order, Docket Item 122.) The Order also stated that Mr. Boone was not authorized to represent himself (because he never sought to waive representation of counsel until April 17, 2002) and that any motion submitted must be endorsed by counsel. (Id.) This was an effort to assure that Mr. El-Shabazz was cognizant of his client's submissions and endorsed them as counsel, as well as to enable Mr. Boone to make a record of his concerns. This invention by the Court enlarged the scope of any known precedent in permitting a represented defendant to supplement his own attorney's positions, including filing motions the attorney refused to file. A similar procedure had been put into place when Ms. Koch represented Mr. Boone, as described above.
It is highly ironic that Mr. Boone can assert that this Court's extreme leniency toward his personal motions demonstrates some type of bias against him. Frankly, the government would have much stronger grounds for complaint, because this Court imposed the formidable burden upon the prosecution of responding to the counseled and uncounseled motions, often at the same time, despite Mr. Boone's status as a represented defendant who had the full benefit of experienced and knowledgeable counsel.
As to the remaining motions allegedly struck, from June 8, 2001 and June 15, 2001 (see Boone Aff., ¶¶ 12-14, Appx. 9-11), those motions were dismissed by Orders dated June 15, 2001 [Docket Item 86], June 18, 2001 [Docket Item 85], and June 20, 2001 [Docket Item 89]. At the hearing on July 19, 2001, this Court again addressed defendant's filings of unauthorized submissions, and provided that any of Mr. Boone's previously stricken motions would be heard if Mr. El-Shabazz so requested, and this determination was confirmed in the Order of July 19, 2001. [Docket Item 122].
Mr. Boone makes no correlation between the his identification of the handling of these motions and any alleged bias on the part of the undersigned. Mr. Boone submits no evidence that he was prejudiced by the striking of these improper motions, especially when they were eventually restored, heard and decided when requested by counsel. Mr. Boone also fails to disclose that each and every one of the motions he alleged were stricken were eventually decided on the merits, or abandoned by counsel. At least one was granted in part. See Order of July 7, 2001 (granting in part 43-1 motion for discovery.)
Therefore, as to the striking of several pro se motions filed by Mr. Boone when he was represented by counsel, such action was clearly taken in order to ensure that no hybrid representation of the defendant occurred. Mr. Boone has not even presented an arguable basis for his notion that a criminal defendant may actpro se while simultaneously exercising his right to counsel. If Mr. Boone believes that he had some sort of right to hybrid representation (counsel plus self as "co-counsel"), then he is free to appeal the procedures that were followed. Mr. Boone's characterization that personal bias, rather than proper court procedure, was the undersigned's motive attempting to handle his improper pro se motions, is not even remotely supported by the record. Additionally, the Court notes that Mr. Boone's initial recusal motion, filed June 26, 2001 and stricken June 29, 2001, was reinstated, heard and decided on July 17, 2001, (see July 17, 2001 Order Reinstating and denying 91-1 Motion; Docket Item 117.)
The Court further notes that many of the pre-trial motions filed and decided in this case were written by Mr. Boone himself, and merely submitted by his attorney at the time, Mr. El-Shabazz. It appears that such an arrangement was exactly what Mr. Boone desired. The Court addressed several of these motions in oral and written opinions. See United States v. Boone, Opinion and Order filed July 16, 2001, [Docket Items 111 112] (denying motions to suppress). Additionally, in this Court's careful May 24, 2001 attempt to clarify the status of approximately 30 defense motions prior to the criminal trial so that each could be carefully considered and ruled upon, and so that the prosecution, defense counsel and defendant would be informed on the untangling of the many defense motions into an orderly list, the Court created a list of pending motions, which separated the motions into four categories, cross-referenced duplicative motions, and referred the parties to the appropriate brief that argued the motion. (See Clerk's Docket Entry 69-1.) This list was filed with the Clerk and distributed to counsel. Each of these motions authored by Boone up until that time was listed and was resolved prior to trial. This Court went to these extraordinary lengths for the sake of assuring that no issue was overlooked despite the chaos Mr. Boone had created by his disregard of the rules.
2. Speedy Trial Orders
With respect to Mr. Boone's allegation that the undersigned somehow manufactured Speedy Trial Orders, or in any way violated Mr. Boone's Speedy Trial Rights, there is simply no evidence in the record to support that allegation. It did not happen. Mr. Boone alleges that his trial was set to begin on September 18, 2002 and did not "because of bad faith and neglect of the government." (Boone Aff., filed Apr. 11, 2001, hereinafter "Boone Aff. 2," ¶ 5.) Mr. Boone goes on to allege that the undersigned intentionally encouraged the government to submit a false, backdated Order excluding time under the Speedy Trial Act, and then knowingly signed the "false" Order. (Boone Aff. 2, ¶¶ 8-13.) Mr. Boone additionally alleges that the undersigned, along with his then retained defense counsel Dennis Cogan, Esq. and AUSA Smith, attempted to coerce Mr. Boone into pleading guilty. (Boone Aff. 2, ¶ 6.) Here, Mr. Boone again distorts the actual record.
Mr. Boone cannot dispute that he was present on May 22, 2000 when his attorney, Mr. Cogan, relatively new to the case, requested and received an exclusion of time under the Speedy Trial Act and an Order was filed on May 24, 2000, excluding time from May 22, 2000 to September 18, 2000. [Docket Items 22 and 23.] The date for trial was adjourned until September 18, 2000, and the government was ordered to provide certain discovery, by Order of May 22, 2000. [Id. at 24.] Within that period, the United States filed a motion for admissibility of evidence under Rule 404(b), Fed.R.Evid., on August 25, 2000, which was made returnable on September 22, 2000. [Docket Item 25.] When Mr. Boone appeared on September 22, 2000, the parties anticipated that a plea of guilty would be entered, as reflected clearly on the transcript of September 22, 2000. This did not occur, and Mr. Cogan requested that further exclusion of time to address the government's Rule 404(b) motion and to review audibility of tapes, which was granted, as shown in the transcript of September 22, 2000 at p. 17-18. Mr. Boone was again present during that hearing, and he made no objection and the trial was adjourned until November 6, 2000, while time under the Speedy Trial Act was excluded from September 18, 2000 until October 23, 2000, and the government was directed to submit the Order. (Tr. 9/22/00 at 17-18.) Mr. Cogan agreed and Mr. Boone had no objection. (Id.) In fact, Mr. Boone said he wanted to consult further with his counsel and prepare for the motions and for trial, and that he would not be pleading guilty. (Id. Tr. 11:14-12:4 and 18:10-11.) The allegedly fraudulent Speedy Trial Order was filed on September 26, 2000, excluding precisely that time. A second Order filed September 26, 2000 also set the date of October 23, 2000 for argument on the outstanding pretrial motions. [Docket Item 28.] Meanwhile, the relationship between Mr. Boone and Mr. Cogan broke down, and Mr. Cogan moved to withdraw as counsel on October 16, 2000. [Docket Item 30.] The Federal Public Defender was substituted.
Due to the pending pretrial motions, the additional exclusion of time under the Speedy Trial Act, of which Mr. Boone now complains, was also automatically warranted until the motions would be decided, whether or not a specific Order was entered to exclude time. The period from August 25, 2000 (when the United States' Rule 404(b) motion was filed) was automatically tolled until the government's motion would be heard and decided, by operation of the statute itself. Thus, it was technically not even necessary to exclude additional time on September 22, 2000 when the Speedy Trial "clock" was stopped by the government's August 25th motion.
Several days later the Grand Jury's Superseding Indictment was filed on October 18, 2000, and Mr. Boone's arraignment was held on October 23, 2000, [Docket Item 32], and a new schedule was set. Attorney Cogan was terminated at the October 23, 2000 hearing, and AFPD Koch was substituted. [Docket Item 33.] That the period of September-October, 2000, may have been a period of turmoil for Mr. Boone and his attorney, Mr. Cogan, does not excuse Boone's utterly baseless accusations that this Court or anyone else manufactured some Speedy Trial exclusion.
Likewise, Mr. Boone's allegation that this Court coerced a guilty plea on September 22, 2000, is farfetched and indeed fatuous when one looks at the record. First, Mr. Boone did not ever enter a plea of guilty. Mr. Cogan and AUSA Smith requested that a Rule 11 hearing be convened because they believed there was a plea agreement. As in every case, this Court had no participation in any plea discussions. At the scheduled Rule 11 hearing on September 22, 2000, it became apparent that Mr. Boone did not wish to retract his plea of not guilty, and that he wished to straighten out differences he was having with his counsel, and to review pretrial discovery more thoroughly with counsel.
I understood and accepted that the plea anticipated by counsel would not go forward, and I explained to Mr. Boone: "You have a right to continue in your plea of not guilty and to have a trial in this case and those are very important rights, and I'm not in any sense trying to talk you out of those rights. I am trying to schedule your case appropriately. And if we need a trial, there will be a trial. If we need a guilty plea hearing, there will be a guilty plea hearing. But it's only your decision to make." (Tr. 9/22/00 at 9:21 to 10:3) (emphasis added). I concluded by setting new motion dates and a trial date and again assured Mr. Boone of his right to trial upon his existing not guilty plea, stating: "Your plea continues to be not guilty and that's perfectly within your rights. And if that should change in the future, then I'm sure counsel will let me know, but I'll assume that the case is going to trial." (Tr. 9/22/00 at 12:13-17) (emphasis added). The record does not show anything but the Court's acceptance of Mr. Boone's decision to go to trial.
I am a trial judge and have never had antipathy toward any party, civil or criminal, who desired to go to trial, as is their right, including Mr. Boone.
3. Acting As A Government Attorney
Mr. Boone's allegation that the undersigned acted as a government attorney in the criminal trial is unfounded and cannot be supported anywhere in the record. Mr. Boone has fabricated an allegation that I conferred with AUSA Smith at trial, while he was questioning a government witness, to the exclusion of Mr. El-Shabazz. "Mr. Boone avers that his attorney was not a part of the Ex Parte Communication between AUSA Smith and the Judge." (Boone Aff. at 2.) However, the portion of the record cited by defendant clearly indicates that "counsel approach[ed] the bench" and a "discussion [was] held off the record." (Jul. 30, 2001 Tr. 753:4-6.) Mr. Boone speculates that Mr. El-Shabazz was somehow excluded from this conversation and also that there was strategy coaching, rather than procedural guidance, occurring. Mr. Boone offers no proof in support of his theory. Also, it would be incredible and preposterous that Mr. El-Shabazz, an accomplished and outspoken advocate, would allow the undersigned to engage in ex parte coaching of an equally seasoned government attorney.
The incident cited by Mr. Boone reveals that no ex parte conversation occurred between the undersigned and the Assistant United States Attorney (who was Mr. Slovin at that point of the trial). Rather, the record clearly shows that the undersigned invited both counsel to the bench for a very brief discussion and merely reminded counsel for the government of a procedural issue, i.e., actually moving certain items which the witness had authenticated into evidence and which AUSA Slovin had spent considerable effort to qualify by laying the proper evidentiary foundation. (Jul. 30, 2001 Tr. 753:8-755:14.) The record also clearly established that "counsel approach[ed] the bench" during the alleged ex parte communication (id., Tr. 753:4-5) and that defense counsel had no objection to the crack and utensil evidence being admitted as evidence (id., Tr. 754:7-755:13). These were crack cocaine cooking utensils that the witness, Det. Julie Cash, had already authenticated and described in detail to the jury (Exs. G-143, 144, 145, 146, and 147.) Furthermore, when Mr. Slovin formally moved the items into evidence, there was no objection by defense counsel, Tr. 7/30/01 at 754:21 to 755:1, nor could there have been, since Mr. Slovin had met the foundational prerequisites.
No reasonable person, knowing all the circumstances in this case, could determine that this off the record discussion, at the Court's bench in front of the jury, with both Mr. El-Shabazz and Mr. Slovin, cast any shadow over the impartiality of the undersigned.
4. Jury Deliberations
Mr. Boone next attempts to insinuate that the undersigned's instructions to the jury to attempt to reach unanimity somehow resulted in his conviction on Count Four of the Third Superseding Indictment. In his complaint to the Judicial Council of the Third Circuit, Mr. Boone alleges that:
At 11:00 A.M. on August 16, 2001, the Jury sent out a note that stated that they were at an "impasse" and that no further deliberations would be fruitful. The note indicated that Boone had been acquitted on 4 counts and that the Jury could not come to a decision on the other 4 counts. Judge Jerome B. Simandle announced in open court that 4 counts were acquittals at 11:00 A.M. on August 16, 2001. However, at approximately 8:00 P.M. on August 16, 2001, and after 4 Allen charges, the Jury returned verdicts of 3 not guilty verdicts, 1 guilty verdict, and the Jury hung on the other four counts. The one guilty verdict was originally an acquittal and Judge Simandle announced it in open court at 11:00 A.M. See Trial Transcript of August 16, 2001, page 2376.
(Boone Aff., Appx. 3, at 1-2.) Mr. Boone is completely mistaken; the thoughts and conclusions of the jurors were not known until they were returned by the jury, announced in court, and filed with the Clerk.
The note to which Mr. Boone refers, presumably note 9, Docket Item # 161, reads, in relevant part, "we have agreement on 4 of the 8 counts. However, on the other 4 counts, we have one descenting [sic] vote from the same juror. We have been informed that this vote will not change no matter how much more discussion there is." Jury notes 10 and 11 also refer to the four hung counts. Note 10, in relevant part, reads "Our votes are 11 to 1 on four accounts [sic] we have agreed on four." (Jury Note 10, Aug. 16, 2001.) The jury never revealed which way its votes were leaning. Note 11, in relevant part, from one of the jurors, reads "I am unable to agree for 2 days on my morals and beliefs there was enough evidence to agree with the other jurors," and then, in the forewoman's handwriting, "We have been deadlocked on the 4 counts for just about 2 days. [The above] is the response from the juror who is unable to agree." (Jury Note 11, Aug. 16, 2001.)
After receiving note number 9, the undersigned determined that two and a half days was not an inordinately long time for deliberations in this type of case (see Aug. 16, 2001 Tr. 2339:21-2340:4), since there were eight counts and there had been about ten trial days, and repeated the normal jury instructions to the jurors regarding duty to deliberate (see id. Tr. 2344:12-2345:23). The undersigned then advised counsel that he wanted the jury to deliberate, but that they would not be pressured in any way to reach a verdict, and that no more strenuous deliberation charges would be given. (Id. Tr. 2340:20-25.) Notes 10 and 11 indicated that the jury was still deadlocked on 4 counts. In an attempt to clarify the jury's difficulties, the undersigned, after consulting carefully with both counsel on the record, wrote the following note to the jurors: "Please clarify your note (number 11). Is the Jury hopelessly deadlocked or do you agree to continue deliberations to see whether your impasse can be overcome? I await your response. . . . In either even you will be permitted to leave at 6:30 p.m. as requested." (Jury Note 12, Aug. 16, 2001; Docket Item 164.) The jury replied, "We reviewed the accounts [sic] again. Despite our attempts to come to a unanimous decision we are hopelessly deadlocked!" (Jury Note 13, Aug. 16, 2001; Docket Item 165) (emphasis in original.) Upon receipt of this note, the jury was returned to the courtroom. The three not guilty and one guilty verdicts were returned, and four counts recorded a hung jury.
At no time did the jury state nor did the undersigned announce that there were four acquittals and four hung counts. In fact, the undersigned made every attempt to proceed cautiously to ensure the integrity of the jury's deliberation process, encouraging counsel to do appropriate research and hearing argument on the topic. (See 2347:11-2413:18.) Additionally, although Mr. Boone or his counsel may have made assumptions about the conclusions of the jury prior to the announcement of the verdicts, no one except the jury was aware of the actual verdicts at the time the undersigned encouraged them to continue their deliberations. The jury's communication in note 9, of agreement on 4 of the 8 counts, continued until the time that it announced its verdicts in court.
No reasonable person, knowledgeable of all the circumstances in this case, could harbor a doubt about the undersigned's complete impartiality towards Mr. Boone. See United States v. Antar, 53 F.3d 568, 574 (3d Cir. 1995). Even if a judge may be occasionally short or intolerant of a defendant, which has not occurred here, recusal is not required unless the court "display[s] a deep-seated favoritism or antagonism that would make a fair judgment impossible." Liteky v. United States, 510 U.S. 540, 554, 114 S. Ct. 1147, 1157 (1994). My "favoritism" throughout this case has been toward giving Mr. Boone, and his four attorneys, a full opportunity to defend the case and to be heard in an orderly and fair process. This Court has been courteous to Mr. Boone, and respectful and mindful of his rights, despite his repeated attempts to distort the records or cast doubt on these proceedings by making repeated and unfounded allegations against every other participant including his own attorneys. All of Mr. Boone's motions have been thoughtfully considered and decided, in both written and oral opinions, and no personal or extrajudicial bias can be reasonably deduced from the events occurring during the course of Mr. Boone's trial and conviction.
5. Financial Interest
Lastly, Mr. Boone asserts that his filing of his pro se civil case naming me as a defendant, together with several dozen others who are connected in some manner with this case, creates a disqualifying financial interest under Section 455(b)(5)(iii). It is self-evident that the filing of a civil suit against a judge by a disgruntled litigant will not suffice to automatically create an adverse financial interest. Otherwise, a party could gain recusal of a judicial officer merely by filing a civil complaint in court seeking monetary damages stemming from judicial actions. Where all allegations against the judicial officer arise from the performance of judicial functions in court, as the civil case does, a rational judicial officer, acquainted with these circumstances, would see no adverse financial interest due to doctrines of judicial immunity. That the allegations pertaining to my handling of Mr. Boone's case are of the same baseless sort as he has launched in these recusal motions, discussed above, also would assure a reasonable observer that this Court has no adverse financial interest to Mr. Boone. This ground is not a basis for this Court's recusal.
III. CONCLUSION
For the reasons discussed herein, and because there is no reasonable basis in the record or affidavits to reasonably challenge the impartiality and require recusal or disqualification of the undersigned, I have a duty to preside over this case. See United States v. Dansker, 537 F.2d 40, 54 (3d Cir. 1976); Vangarelli v. Whitco Corp., 808 F. Supp. 387 (D.N.J. 1992). Mr. Boone's motions pursuant to 28 U.S.C. ¶¶ 144 and 455 will therefore be denied. The accompanying order is entered.
ORDER
This matter having come before the Court upon the motions of defendant, Kevin Boone; and the Court having considered the submissions of the parties; and the Court having heard the argument of the parties at a hearing on April 17, 2002; and for the reasons stated in the Opinion of today's date;
IT IS this ____ day of May 2002 hereby
ORDERED that defendant's motions to for disqualification of Justice, Judge, or magistrate [Docket Items 211-1 and 213-1] be, and hereby are, DENIED.