United States v. Clark

682 F.Supp.3d 299

UNITED STATES of America, v. Deshema CLARK, Defendant.

1:23-CR-00027 EAW

United States District Court, W.D. New York

Signed July 13, 2023

Maeve Eileen Huggins, Government Attorney, Joseph M. Tripi, United States Attorney's Office, Buffalo, NY, for United States of America.

Peter Matthew Kooshoian, Rosenthal, Siegel & Muenkel LLP, Buffalo, NY, for Defendant.

DECISION AND ORDER

ELIZABETH A. WOLFORD, Chief Judge

I. INTRODUCTION

Pending before the Court is a motion filed pursuant to 28 U.S.C. § 455(a) by defendant Deshema Clark ("Defendant") seeking to recuse the undersigned from handling the above-captioned matter because of comments made during two status conferences conducted in the related case of United States v. Cobb et al., Case No. 1:19-CR-00155 (the "2019 Action" or "Case No. 1:19-CR-00155"), where Defendant pleaded guilty to a superseding information charging possession of marijuana. For the reasons discussed below, recusal is compelled by neither the facts nor the law. To hold otherwise would inappropriately allow Defendant to pick and choose the judge who will preside over this matter. As a result, the motion is denied.

II. FACTUAL AND PROCEDURAL BACKGROUND

Defendant was initially charged in the 2019 Action by way of a second superseding indictment returned on August 26, 2020, with a narcotics conspiracy in violation of 21 U.S.C. § 846, maintaining a drug-involved premises in violation of 21 U.S.C. § 856(a)(1) and 18 U.S.C. § 2, and possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(D) and 18 U.S.C. § 2. (Case No. 1:19-CR-00155, Dkt. 106). The underlying facts surrounding the charges in the second superseding indictment included a triple homicide committed on September 15, 2019, wherein the bodies of one of the victims (Dhamyl Roman-Audiffred) was chopped up and burned and the bodies of the other two victims (Miguel Anthony Valentin-Colon and Nicole Marie Merced-Plaud) were burned. N.V.C., the three-year old child of the latter two victims, witnessed his parents' murders and destruction of their bodies. N.V.C.'s ordeal is described in further detail in United States v. Wilson, No. 1:19-CR-00155 EAW, 642 F. Supp. 3d 380 (W.D.N.Y. Nov. 22, 2022).

Defendant was not alleged to have been involved in the murders, but her boyfriend and alleged narcotics co-conspirator, Deandre Wilson ("Wilson"), was so charged. After a jury trial commencing on September 21, 2022, and continuing through November 3, 2022, Wilson was found guilty of all but two of the counts with which he was charged, including the counts involving the murders. (Case No. 1:19-CR-00155, Dkt. 556; Dkt. 557). Wilson was sentenced by the undersigned on March 23, 2023, to three consecutive life sentences plus 30 years in prison. (Case No. 1:19-CR-00155, Dkt. 638; Dkt. 645).

As part of Wilson's trial, the undersigned issued a sequestration order pursuant to Fed. R. Evid. 615. Defendant was identified as a witness on the government's witness list (Case No. 1:19-CR-00155, Dkt. 469 at 12), and thus was subject to the sequestration order. According to the government's witness list, Defendant travelled with Wilson on the evening of the murders to a Meek Mill concert at Darien Lake. (Id.). During the trial, there was also discussion by Wilson's counsel about calling Defendant as a witness. (See Case No. 1:19-CR-00155, Dkt. 688 at 5-6).

During the trial testimony of co-defendant and cooperating witness Jariel Cobb, it was brought to the Court's attention by the government that Defendant was present in the courtroom. (Id. at 2). The Court informed Defendant that she could not be present in the courtroom pursuant to the Court's sequestration order, and asked her to leave the courtroom. (Id. at 2-3). Initially Wilson's counsel had no objection. (Id. at 3). However, after a break, Wilson's counsel voiced an objection on behalf of his client, explaining that his client felt it was unfair for the government's case agent to be present in the courtroom when Defendant could not similarly be present. (Id. at 3-4). In other words, at least according to Wilson's logic, Defendant was aligned with his side of the case just as the case agent was aligned with the government. After both sides agreed that it was unlikely that Defendant would be called as a witness, the Court ruled that Defendant was excepted from the sequestration order. (Id. at 5-7). Since she had already left the courtroom before the break, Wilson's counsel indicated that he would ask Wilson's mother to contact Defendant to advise her that she could be present. (Id. at 7-8).

Prior to Wilson's trial, Defendant entered into a plea agreement with the government wherein she pleaded guilty to a one-count superseding information charging a misdemeanor crime of possession of marijuana in violation of 21 U.S.C. § 844(a). (Case No. 1:19-CR-00155, Dkt. 397; Dkt. 400). Sentencing was originally scheduled to go forward on October 20, 2022. (Case No. 1:19-CR-00155, Dkt. 421). However, days prior to that sentencing date, Defendant filed a motion to adjourn the sentencing because of President Biden's announcement that he intended to pardon anyone convicted of a simple marijuana possession charge. (Case No. 1:19-CR-00155, Dkt. 530); see Michael D. Shear and Zolan Kanno-Youngs, Biden Pardons Thousands Convicted of Marijuana Possession Under Federal Law, The New York Times, October 6, 2022, https://www.nytimes.com/2022/10/06/us/politics/biden-marijuana-pardon.html.

The Court adjourned the sentencing to November 30, 2022 (Case No. 1:19-CR-00155, Dkt. 532), but before that date Defendant filed a motion to dismiss (Case No. 1:19-CR-00155, Dkt. 571). As a result, the Court converted the November 30, 2022 sentencing to a status conference. (Case No. 1:19-CR-00155, Dkt. 572).

At the November 30 appearance, the government indicated that it did not yet know its position with respect to the impact of President Biden's pardon on Defendant's case and asked for more time. (Dkt. 15 at 3).¹ The Court raised the question of whether, if the sentencing was to go forward, it should consider information learned during the course of presiding over Wilson's trial supporting a conclusion that Defendant was aware of Wilson's involvement in the murders after-the-fact and at the time she met with law enforcement on October 9, 2019.² (Id. at 3-4). The Court also brought to Defendant's counsel's attention that Defendant attended the trial purportedly to support Wilson. (Id. at 4).

A further status conference was scheduled for December 13, 2022, but prior to that date Defendant withdrew her motion to dismiss. (Case No. 1:19-CR-00155, Dkt. 573; Dkt. 575). At the conference on December 13, 2022, the government indicated it was considering pursuing additional charges and still attempting to resolve its position with respect to Defendant's misdemeanor marijuana conviction and President Biden's pardon. (See Dkt. 16).³ The Court again reiterated that if the sentencing was to go forward, it needed to resolve whether it should consider at sentencing the trial evidence supporting a conclusion that Defendant was aware of Wilson's involvement in the murders. (Id.).

After that appearance, the government filed a motion to dismiss without prejudice the superseding information pursuant to Fed. R. Crim. P. 48(a) (Case No. 1:19-CR-00155, Dkt. 597), but it then filed a motion to withdraw that motion (Case No. 1:19-CR-00155, Dkt. 665) based on Defendant's rejection of the pardon from President Biden (Case No. 1:19-CR-00155, Dkt. 665-1). The Court granted the government's motion to withdraw (Case No. 1:19-CR-00155, Dkt. 667) and a further status conference was conducted on April 18, 2023 (Case No. 1:19-CR-00155, Dkt. 668), but no new sentencing date was set because of the subsequent charges filed against Defendant.

Specifically, on January 20, 2023, Defendant was charged in the above-captioned matter by criminal complaint with violating 18 U.S.C. §§ 4 and 1001(a)(2). (Dkt. 1). Much of the information set forth in the criminal complaint consists of the text messages, cell phone records, and Google and cell tower location data analysis conducted by FBI Special Agent Orlando that was introduced during Wilson's trial. (See id. at ¶¶ 9-40). On March 2, 2023, an indictment was returned charging Defendant with misprision of a felony in violation of 18 U.S.C. § 4 and false statements to an agency of the United States in violation of 18 U.S.C. § 1001(a)(2). (Dkt. 1).⁴ Defendant was arraigned before the undersigned on March 2, 2023, at which time her counsel orally moved for recusal. (Dkt. 11). The oral motion was denied; a scheduling order for written filings was set; and Defendant filed her recusal motion on May 2, 2023. (Dkt. 13). The government filed a response on May 22, 2023. (Dkt. 14). Oral argument was held on June 13, 2023, at which time the Court indicated that it was denying the motion but a written Decision and Order would follow. (Dkt. 17).

III. DISCUSSION

Defendant does not move to recuse the undersigned from handling the 2019 Action, wherein the comments that serve as the basis for the recusal motion were made. Rather, Defendant moves to recuse the undersigned from handling the above-captioned matter, based on comments concerning Defendant's sentencing in the 2019 Action. Defendant bases her motion to disqualify on 28 U.S.C. § 455(a) which provides that a judge shall disqualify herself "in any proceeding in which h[er] impartiality might reasonably be questioned." (See Dkt. 13 at 1). The question presented on a § 455(a) recusal motion is "whether a reasonable person, knowing all the facts, would conclude that the trial judge's impartiality could reasonably be questioned." United States v. Wedd, 993 F.3d 104, 114 (2d Cir. 2021).

Defendant argues that the undersigned's comments at the status conferences on November 30 and December 13, 2022, mean that "the Court has already concluded that Ms. Clark is guilty...