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UNITED STATES v. YAHYA AHMED

March 27, 1992

UNITED STATES OF AMERICA against YAHYA AHMED, Defendant.

Edelstein


The opinion of the court was delivered by: DAVID N. EDELSTEIN

OPINION & ORDER

EDELSTEIN, District Judge:

 Yahya Ahmed ("defendant" or "Ahmed") is charged, under Title 18, United States Code, section 3146, with failing to appear before the United States District Court for the District of Maryland, as required by the conditions of bail established in this District by Magistrate Judge Michael H. Dolinger. Defendant has moved for my recusal, or, in the alternative, for dismissal of the indictment because prosecution on the bail jumping charge violates defendant's rights under the Fifth Amendment's double jeopardy clause. If this Court denies these motions, defendant seeks a transfer of this action to the District of Maryland. For the reasons stated below, defendant's motions are denied in their entirety. *fn1"

 Background

 In November 1987, the Government charged defendant, in the District of Maryland, with possession with intent to distribute heroin and conspiracy to possess with intent to distribute heroin. Defendant was not arrested, however, until January 25, 1988, upon entering this country at Newark International Airport. He was then presented to Magistrate Judge Dolinger in the Southern District of New York pursuant to Rule 40, *fn2" at which time Judge Dolinger set bail at a $ 40,000 personal recognizance bond. As a further condition of bail, Judge Dolinger ordered defendant to appear in the District of Maryland on February 8, 1988, to face the narcotics charges pending against him in that District.

 Defendant failed to appear in the District of Maryland on February 8. As a result, a bench warrant for his arrest issued on February 10, 1988, and, on July 27, 1989, defendant was indicted in this District, pursuant to 18 U.S.C. § 3146, for violating the conditions of his bail set by Magistrate Judge Dolinger. Defendant was arrested on the February 10, 1988 bench warrant on March 30, 1991, upon entering this country at Newark International Airport. After being transferred to the District of Maryland, he stood trial on the narcotics charges from October 15, 1991 to October 24, 1991 before Honorable Norman M. Ramsey.

 During the trial in the District of Maryland (the "Maryland trial"), the Government introduced evidence of defendant's failure to appear in 1988 in order to prove his consciousness of guilt of the narcotics charges contained in the November 1987 indictment. The Government did not formally charge defendant for his failure to appear in the District of Maryland on February 8, 1988. In the Maryland trial, the Government identified defendant, described the proceedings before Magistrate Judge Dolinger in January 1988, and set forth the conditions of release established by Judge Dolinger. The parties stipulated that defendant failed to appear in the District of Maryland in 1988, 1989 and 1990, and that a warrant for defendant's arrest had issued in early 1988. On October 24, 1991, Judge Ramsey, pursuant to Rule 29, dismissed all charges against defendant. Judge Ramsey found that there was insufficient evidence to link defendant to the narcotics on the date specified in the indictment, and insufficient evidence to establish a narcotics conspiracy.

 After dismissal of the charges in the Maryland trial, defendant was removed to this District to face the charge of violating the conditions of his bail by failing to appear in the District of Maryland. Defendant has made several motions in this matter. Defendant seeks my recusal on the ground that I am biased against defendant's attorney, Samuel A. Abady. *fn3" In the alternative, defendant moves to dismiss the indictment on Fifth Amendment double jeopardy grounds, claiming that the introduction of evidence at the Maryland trial of defendant's failure to appear precludes this prosecution. If this Court denies these motions, defendant seeks a transfer of this case to the District of Maryland, pursuant to Rule 21(b). *fn4"

 Discussion

 A. Recusal

 Defendant has moved for my disqualification under Title 28, United States Code, sections 144, 455(a) and 455(b)(1), as well as under the American Bar Association's Code of Judicial Conduct and the Fifth Amendment. Specifically, defendant asserts that I developed such an antipathy towards Mr. Abady in an unrelated civil proceeding, Schoenberg v. Shapolsky Publishers, No. 91 Civ. 0208, 140 F.R.D. 282, 1991 U.S. Dist. LEXIS 17865 (S.D.N.Y. Dec. 10 1991), that I am incapable of impartially presiding at a trial of Mr. Abady's client.

 Defendant's primary basis for recusal is found in comments I made at a hearing connected with the Schoenberg case, held on October 15, 1991, that addressed whether to hold Mr. Abady in contempt for his conduct in the course of discovery in that action. At that hearing, I declared to Mr. Abady and his counsel that:

 If you had any professional intelligence . . . you would have gone back to your client and said I'm going to scrutinize every file you've got . . . . You haven't done that. That's how brazen you are. Adjourned. I don't want to hear from you or ever see you again. You are a disgrace to the profession. To come here with an argument such as you've reflected on the record. I don't think in all the years I've been here that I've ever chastised counsel as I have both of you today. Baldfaced, brazen and unprofessional. You've decided what to redact, you've decided what to submit. Where have you been? How did you ever get admitted to this court? Not even the character to say give us another opportunity to look at this. Maybe we can correct it. Maybe we're ill-advised. Maybe we don't understand. But the chutzpa, that's the term I can use that you will understand, is enormous . . . . You're a disgrace to this profession . . . . I have nothing more to hear from you. You've had your chance, you've had your argument, you've made your argument.

 (Transcript of October 15, 1991 hearing, at 28-29).

 My comments at the Schoenberg contempt hearing stemmed from events described in an opinion filed on December 10, 1991, in which I ultimately found Mr. Abady in contempt. See Schoenberg v. Shapolsky Publishers, No. 91 Civ. 0208, 140 F.R.D. 282, 1991 U.S. Dist. LEXIS 17865 (S.D.N.Y. Dec. 10, 1991). In the December 10 opinion, I set forth the basis for holding Mr. Abady in contempt and imposing sanctions:

 This Court issued an order compelling discovery on June 19, 1991. Mr. Abady obviously did not agree with this Court's decision, and rather than comply or seek a stay of discovery, he sought a writ of mandamus in the Second Circuit. Having no stay in place after the Court of Appeals denied the petition from the bench, Mr. Abady continued to ignore the June 19 order. Indeed, since March 13, 1991, [plaintiff's attorney] Mr. Malina had sought, without success or even a response from Mr. Abady, to induce Mr. Abady's compliance with plaintiff's discovery requests without having to resort to further litigation. While Mr. Abady attempts to blame defendants for the failure to provide discovery, it was Mr. Abady who sought a writ of mandamus rather than provide discovery. Mr. Abady also chose not to cooperate in any way with Mr. Malina throughout the discovery process. Even if defendants are at fault, Mr. Abady's conduct still merits sanctions and a finding that he is in contempt of this Court's order.

 Indeed, only upon learning of plaintiff's intention to seek sanctions and to hold them in contempt, did Mr. Abady feel obliged to produce any discovery. In a transparent attempt to avoid sanctions and contempt, he handed a sheaf of photocopied documents, in no apparent order, to Mr. Malina a few hours before a conference before this Court concerning plaintiff's contempt and sanctions motion. Although Mr. Abady seeks refuge in this production, it came months after this Court ordered discovery.

 Even this late document production, however, had glaring defects, including the absence of many requested documents relating to this case and the presentation of the document production, with documents given in no discernible order and without any written response to plaintiff's requests. In addition, this Court finds it likely that Mr. Abady hoped that delaying production and forcing plaintiff to compel discovery would raise the emotional and financial cost of prosecuting the action, which could either encourage a favorable settlement or induce plaintiff to discontinue the action. This Court will not countenance such brazen dilatory tactics.

 Schoenberg, slip op. at 13-15. *fn5"

 On November 26, 1991, at an initial conference in this matter, I had two exchanges with Mr. Abady that are relevant to defendant's recusal motion. First, as an illustration of my supposed bias against Mr. Abady, defendant points to a comment I made ...


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