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UNITED STATES v. ESCOBAR

October 13, 1992

UNITED STATES OF AMERICA against PABLO ESCOBAR and DANDENY MUNOZ-MOSQUERA a/k/a "La Quica," a/k/a "Luis Fernando Hernandez-Hernandez," a/k/a "Esteban Restrepo Echavarria, Defendants.


The opinion of the court was delivered by: JACK B. WEINSTEIN

 Weinstein, J.:

 I. FACTS

 Prior Proceeding

 In September, 1991, the Drug Enforcement Administration received information from Colombian authorities that defendant, Dandeny Munoz-Mosquera, was coming to the United States to carry out a mission, possibly an assassination, on behalf of the Medellin Cocaine Cartel. Munoz was reputed to be a top hit-man for that organization. There were numerous outstanding arrest warrants in Colombia for serious crimes believed to have been committed by him, including homicide, armed robbery and escape from jail.

 Armed with a description of Munoz and his photograph, DEA approached Munoz. They asked him for his name. Munoz responded with a false name. A search revealed that he possessed a counterfeit Colombian identification card.

 Munoz was indicted for making false and fraudulent statements to federal authorities and for unlawful possession of a false identification document. He was tried before a jury in November, 1991, and convicted on both counts. In the Pre-Sentence Report, the Probation Department computed his criminal history as Category I, since Munoz had no known record of criminal convictions in the United States. Accordingly, they calculated the appropriate guideline sentencing range to be 0-6 months incarceration. In addition, the Probation Department found that there was no basis for an upward departure, since the government's allegations of Munoz's involvement in other serious crimes in Colombia was not supported by any evidence.

 The government moved for an upward departure. A Fatico hearing was held. Documents and testimony revealed that Munoz had been convicted of armed robbery, charged with murder, escape and weapons possession. Reliable sources identified Munoz as being heavily involved in organizing and carrying out the orders of drug kingpin and co-defendant Pablo Escobar, including multiple murders as well as bombings of police stations and aircraft.

 As noted in United States v. Concepcion, 795 F. Supp. 1267, 1992 U.S. Dist. LEXIS 9748 (E.D.N.Y. 1992), the Sentencing Guidelines have no application in such a case. The explicit statutory objectives of deterrence and public protection through incapacitation would not have been served had this defendant been sentenced to a few months of incarceration in accordance with the Guidelines. 18 U.S.C. § 3553. In light of his violent recidivist history in Colombia and his connection to major drug offenders, the heaviest sentence possible was imposed -- a cumulative period of six years in a high security prison. The sentence was designed to incapacitate and to send a message to drug smugglers not to send violent criminals to the United States. The Court of Appeals affirmed in a non-published opinion. Mosquera v. United States, 962 F.2d 4 (2d Cir. 1992).

 Even had the Guidelines been applicable, the court would have reached the same conclusion that a maximum sentence was necessary. In calculating a defendant's total criminal history, the Guidelines did not take into account sentences resulting from foreign convictions. § 4A1.2 (h). The court is, however, permitted to consider the defendant's past criminal conduct outside of the United States where the criminal history category "significantly under-represents the seriousness of the defendant's criminal history or the likelihood that the defendant will commit further crimes." § 4A1.3 See e.g., United States v. Kikumura, 918 F.2d 1084, 1114 (3d Cir. 1990) (upward departure proper where defendant's terrorist activities in Lebanon, not considered in his criminal history, under-represented the likelihood that he would commit terrorist crimes in the future). Accordingly, an upward departure would have been warranted.

 Present Proceeding

 Munoz, along with a co-defendant, was again indicted on August 13, 1992. The thirteen count indictment charges Munoz with conspiracy to import and distribute narcotics in connection with activities of the Medellin Cocaine Cartel and accuses him of involvement in drug-related murders including the bombing of Avianca Flight Number 203, in November, 1989, killing 110 passengers and crew. The plane was allegedly destroyed in order to kill suspected informants against the Cartel. If defendant is found guilty of these crimes, a court may impose the death penalty. 21 U.S.C. § 848(e)(1)(A) ("Drug Kingpin Act"). The United States Attorney has requested leave to seek the death penalty.

 Defendant made a motion to recuse based on the heavy sentence the assigned judge had imposed in Munoz's prior case. On its own motion, the court requested that counsel consider whether the case was initially properly assigned to this judge under the Guidelines for the Division of Business. Following that hint that a recusal motion was unfounded, defendant withdrew the motion to recuse. Based on the reasons outlined below, the defendant moved to substitute a judge other than the one assigned to the instant case.

 II. MOTION TO RECUSE

 Motions to recuse are not encouraged because they place a burden on other judges in the court and disrupt the smooth administration of justice under the Guidelines for the Division of Business. See generally Guidelines for the Division of Business, United States District Court, Eastern District of New York and The Limited Power of the Federal Courts of Appeals to Order a Case Reassigned to Another District Judge, 120 F.R.D. 267 (1988); Commentary by Peter Lushing and Lawrence J. Zweifach, id. at 291.

 Information received by a court during the course of the proceedings are not a proper basis for a motion to recuse. While a defendant in a proceeding has a statutory right to move for recusal based on the alleged bias or prejudice of a judge under 28 U.S.C. §§ 144, 455, the rule applies to what a judge learns from an extrajudicial source, not to information acquired in his judicial capacity. United States v. Bernstein, 533 F.2d 775, 785 (2d Cir. 1976) (recusal not appropriate where judge's characterization of conspiracy as "this terrible scheme" resulted from information he had gleaned during the course of the proceedings); See also United States v. Pugliese, 805 F.2d 1117, 1125 (2d Cir. 1986) (no recusal where judge who, in dismissing previous indictment, characterized foreign criminals as the "worst things," was later assigned to try and sentence defendants); United States v. Serrano, 607 F.2d 1145 (5th Cir. 1979), cert. denied, 445 U.S. 965, 64 L. Ed. 2d 241, 100 S. Ct. 1655 (1980) (judge's anti-Colombian remarks during prosecution of large-scale drug traffickers not grounds for recusal in subsequent trial of Colombian drug defendants); requiring recusal: Aetna Life Insur. Co. v. Lavoie, 475 U.S. 813, 89 L. Ed. 2d 823, 106 S. Ct. 1580 (1986) (pecuniary interest in the result); Berger v. United States, 255 U.S. 22, 65 L. Ed. 481, 41 S. Ct. 230 (1921) (racial bias towards ethnic group); United States v. Bakker, 925 F.2d 728 (4th Cir. 1991) (religious prejudice when group labeled "money-grubbing preachers").

 Defendant's motion to recuse was predicated upon the heavy sentence imposed upon him by this court after a Fatico hearing. Based on well-established principles, the motion to recuse was without merit.

 III. PEREMPTORY CHALLENGE OF JUDGE

 The concept of the peremptory challenge, as applied to jurors, is rooted in English common law. See generally Swain v. Alabama, 380 U.S. 202, 212-18, 13 L. Ed. 2d 759, 85 S. Ct. 824 (1965); Douglas L. Colbert, Challenging the Challenge: Thirteenth Amendment As A Prohibition Against the Racial Use of Peremptory Challenges, 76 Corn. L. Rev. 1, 9-12 (1990). Early in our history, Congress established that the defendant was entitled to peremptory challenges for crimes of treason or other felonies punishable by death. 1 Stat. 119 (1790). The importance of the peremptory challenge in excluding citizens who might be unfair from ...


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