that it bears no bias or prejudice against Mr. Abady or his client. See supra at pp. 11-14. Accordingly, recusal is not appropriate.
3. Recusal under the Fifth Amendment
This Opinion implicitly addresses defendant's Fifth Amendment claim in its discussion of the recusal statutes. A rejection of defendant's claims under sections 144 and 455 "a fortiori defeats [his] due process allegations." In re IBM Corp., 618 F.2d 923, 932 n.11 (2d Cir. 1980). The recusal statutes were designed to protect Fifth Amendment guarantees, and therefore, "it would be anomalous to hold that a claim under the statutes insufficient on its merits could nevertheless satisfy the constitutional standard." Id. (quoting In re Murchison, 349 U.S. 133, 136, 99 L. Ed. 942, 75 S. Ct. 623 (1955)). Because this Court has rejected defendant's claims under the recusal statutes, it also rejects his claim for recusal under the Fifth Amendment.
B. Permissibility of Prosecution under the Fifth Amendment
The double jeopardy clause of the Fifth Amendment provides that "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. The clause protects against a second prosecution for the same offense after conviction or acquittal, and against multiple punishments for the same offense. See North Carolina v. Pearce, 395 U.S. 711, 717, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969).
Courts must engage in a two-step inquiry to determine the permissibility of a subsequent prosecution. See United States v. Calderone, 917 F.2d 717, 721 (2d Cir. 1990). Courts first apply the traditional test formulated in Blockburger v. United States, 284 U.S. 299, 304, 76 L. Ed. 306, 52 S. Ct. 180 (1932). If a subsequent prosecution is permissible under Blockburger, a court must still assess whether the Supreme Court's decision in Grady v. Corbin, 495 U.S. 508, 109 L. Ed. 2d 548, 110 S. Ct. 2084 ", (1990), prohibits a second prosecution.
This Court finds, and the parties do not appear to dispute, that prosecution of defendant in this case is permissible under Blockburger. In Blockburger, the Supreme Court held that separate prosecutions are prohibited where offenses have identical statutory elements or where one is a lesser included offense of the other. See Brown v. Ohio, 432 U.S. 161, 166, 53 L. Ed. 2d 187, 97 S. Ct. 2221 (1977). "Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or one, is whether each provision requires proof of a fact which the other does not." Blockburger v. United States, 284 U.S. 299, 304, 76 L. Ed. 306, 52 S. Ct. 180 (1932). The Blockburger test focuses on the elements of the crimes, and "if each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes." Iannelli v. United States, 420 U.S. 770, 785, 43 L. Ed. 2d 616, 95 S. Ct. 1284 n.17 (1975) (citation omitted).
Defendant was charged in the Maryland trial with various violations of the narcotics laws of the United States. In this case, defendant has been charged with failing to appear in the District of Maryland, in violation of the conditions of bail established by Magistrate Judge Dolinger. It is beyond reasonable dispute that the charges in the two indictments require proof of distinct facts. Accordingly, this prosecution is appropriate under Blockburger.
Defendant asserts, however, that Grady bars prosecution of defendant on the bail violation charge. Defendant asserts that because the Government, in the Maryland trial, introduced evidence surrounding defendant's failure to appear in the District of Maryland to support the narcotics charges, a separate prosecution for violating the conditions of bail is unconstitutional.
"Grady significantly altered the jurisprudential landscape of double jeopardy, supplementing the traditional inquiry required by Blockburger v. United States, 284 U.S. 299, 76 L. Ed. 306, 52 S. Ct. 180 (1932), and its progeny." United States v. Gambino, 920 F.2d 1108, 1112 (2d Cir. 1990), cert. denied, 116 L. Ed. 2d 31, 112 S. Ct. 54 (1991). In Grady, the Supreme Court held that "the Double Jeopardy Clause bars a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted." Id. at 510.
The Court was careful to distinguish between Grady's "same conduct" test and a "same evidence" standard, which the Grady Court did not adopt. The Court stated that the test in Grady was
not an 'actual evidence' or 'same evidence' test. The critical inquiry is what conduct the State will prove, not the evidence the State will use to prove that conduct. As we have held, the presentation of specific evidence in one trial does not forever prevent the government from introducing that same evidence in a subsequent proceeding.
Id. at 521-22. In explaining this standard, the Sixth Circuit stated that
The Supreme Court did not hold that no conduct shown by the evidence in the earlier trial may be used to sustain the charges in the later trial. What is forbidden is the establishment of essential elements of the offense charged in the later prosecution by evidence of the conduct for which the defendant was convicted in the earlier prosecution. It is not the same conduct, per se, that may not be used, but the particular unlawful conduct that was the basis of the first conviction.
United States v. Evans, 951 F.2d 729, 737 (6th Cir. 1991) (emphasis in original) (citation omitted); see, e.g., McIntyre v. Trickey, 938 F.2d 899, 905-06 (8th Cir. 1991).
With this in mind, it is apparent that prosecution of defendant for failing to appear in the District of Maryland is permissible under Grady. The conduct that the State attempted to prove in the Maryland trial, and the conduct for which defendant was prosecuted, involved narcotics violations. Accordingly, Grady might bar a subsequent prosecution that relied, for instance, on proof of conduct constituting violations of the narcotics laws. In the present case, however, defendant is charged with conduct -- violating a condition of bail -- that is wholly unrelated to the narcotics violations for which defendant was charged and prosecuted in the Maryland trial.
Indeed, the only connection between the Maryland trial and this case is that evidence that was introduced in the former proceeding to show consciousness of guilt may be used in this one to support a bail jumping charge. The Government's use of evidence in one proceeding, standing alone, does not preclude a subsequent proceeding in which that evidence will again be introduced. See Grady, 494 U.S. at 521-22. The crucial inquiry, and the protection offered by Grady, focuses on previously prosecuted conduct, not previously introduced evidence. Because defendant has not previously been prosecuted for the conduct with which he is currently charged, prosecution on the bail violation charge is permissible under the Fifth Amendment.
Defendant also claims that this prosecution is impermissible under the doctrine of collateral estoppel, which is a component of the Fifth Amendment's double jeopardy clause. See Dowling v. United States, 493 U.S. 342, 347, 107 L. Ed. 2d 708, 110 S. Ct. 668 (1990); Ashe v. Swenson, 397 U.S. 436, 25 L. Ed. 2d 469, 90 S. Ct. 1189 (1970); United States v. Friedberg, 766 F. Supp. 87, 90 (S.D.N.Y.), aff'd, 948 F.2d 1277 (2d Cir. 1991), cert. denied, 112 S. Ct. 1292, 117 L. Ed. 2d 515, 60 U.S.L.W. 3615 (U.S. 1992). The doctrine provides that "when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." Ashe, 397 U.S. at 443. Under this rule, a defendant seeking to invoke collateral estoppel must "demonstrate that the issue whose relitigation [defendant] seeks to foreclose was actually decided in the first proceeding." Dowling, 493 U.S. at 350.
Mr. Ahmed has not met this burden. Judge Ramsey granted defendant's Rule 29 motion in the Maryland trial based on insufficient evidence to link defendant to the narcotics on the date specified in the indictment, and insufficient evidence to show a narcotics conspiracy. There is no indication from Judge Ramsey's ruling that he "actually decided" that defendant had not violated bail conditions -- an issue that was not before the judge or jury in the Maryland trial. "As the record stands, there is nothing at all that persuasively indicates that the question of [bail jumping] was at issue and was determined in [defendant's] favor at the prior trial." Dowling, 495 U.S. at 352.
C. Transfer to the District of Maryland
Finally, defendant has moved to transfer this action to the District of Maryland under Rule 21(b), which provides for such a transfer "for the convenience of parties and witnesses, and in the interest of justice." Fed. R. Crim. P. 21(b). Among the factors to consider in assessing a Rule 21(b) motion are:
(a) location of the defendants; (b) location of the possible witnesses; (c) location of the events likely to be at issue; (d) location of relevant documents and records; (e) potential for disruption of defendants' businesses if transfer is denied; (f) expenses to be incurred by the parties if transfer is denied; (g) location of defense counsel; (h) relative accessibility of the place of trial; (i) docket conditions of each potential district; and (j) any other special circumstance that might bear on the desirability of transfer.
United States v. Maldonado-Rivera, 922 F.2d 934, 966 (2d Cir. 1990), cert. denied, 111 S. Ct. 2811, 115 L. Ed. 2d 236 (1991). No single factor is dispositive, but rather courts should "strike a balance and determine which of the factors are of greatest importance." United States v. Stephenson, 895 F.2d 867, 875 (2d Cir. 1990).
Transfer is not appropriate in this case. Defendant is a resident of New York, who currently is present in New York and who has retained New York based defense counsel. Moreover, most of the relevant witnesses and documents are in New York, because while defendant violated bail conditions by failing to appear in Maryland, the conditions of bail were established in this District. Furthermore, defendant concedes that several factors do not favor either district, such as expenses incurred upon denial of transfer and the court's accessibility. Similarly, the events supporting the current charge occurred both in this District and in Maryland. While defendant asserts that docket conditions in this District favor a transfer to the District of Maryland, this Court has no basis to assess docket conditions in the District of Maryland, and, in any event, defendant is assured of a speedy trial before this Court.
Finally, defendant asserts that his previous trial on narcotics violations in the Maryland trial, where the Government introduced evidence surrounding defendant's failure to appear, is a special circumstance that compels a transfer to the District of Maryland. Defendant's arguments rests on the assumption that Judge Ramsey would hear the case, and that his familiarity with the case would promote judicial economy. While attempting to foster judicial economy is a worthy endeavor, transferring this case will not result in saving any judicial resources. Even if Judge Ramsey heard this matter, the Government will present evidence surrounding the bail jumping charge to a jury, which must hear the Government's evidence in its entirety. In addition, this case is not at all complex, and familiarity with the events surrounding this matter is not necessary. Accordingly, defendant's motion to transfer this action to the District of Maryland is denied.
For the reasons stated above, defendant's motions are denied in their entirety.
DATED: March 27, 1992
New York, New York
David N. Edelstein