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UNITED STATES v. LAMORTE

September 17, 1996

UNITED STATES OF AMERICA, against WILLIAM LAMORTE, Defendant.


The opinion of the court was delivered by: EDELSTEIN

 EDELSTEIN, District Judge :

 Before this Court are motions by defendant William LaMorte ("defendant" or "LaMorte") to reduce his sentence pursuant to Federal Rule of Criminal Procedure ("Rule") 35, and to recuse this Court from his case. Because this Court finds that both motions are meritless, both motions are denied.

 BACKGROUND

 Following a jury trial, defendant was convicted of one count of conspiring to import marijuana, in violation of 21 U.S.C. § 846, and one count of engaging in a continuing criminal enterprise, in violation of 21 U.S.C. § 848(a). The evidence introduced by the United States Attorney for the Southern District of New York ("the Government") at trial showed that defendant had organized the importation of nearly 120 tons of marijuana from foreign countries into the United States between 1970 and 1986. United States v. LaMorte, 950 F.2d 80, 81 (2d Cir. 1991). Several members of defendant's drug operation testified for the Government against defendant at trial, including defendant's deck hands, boat captains, distributors, suppliers, and his brother. Id.

 On March 18, 1991, this Court sentenced defendant to fifty years imprisonment without parole and fined defendant $ 49,200,000. Id. In a subsequent forfeiture proceeding, this Court ordered him to surrender an additional $ 25,000,000 in cash and property. Id. The Court of Appeals for the Second Circuit affirmed LaMorte's conviction on November 15, 1991, United States v. LaMorte, 950 F.2d 80 (2d Cir. 1991), and the Supreme Court denied LaMorte's Petition for Certiorari on May 18, 1992. LaMorte v. U.S., 504 U.S. 909, 118 L. Ed. 2d 544, 112 S. Ct. 1938 (1992). On September 11, 1992, defendant filed the instant Rule 35 motion for a reduction in the sentenced originally imposed upon him by this Court.

 In support of the instant motion, defendant claims to "bring to the Court's attention a number of significant facts which may not have been known to the Court at the time sentence was imposed." (Affirmation, United States v. LaMorte, S89 Cr. 742 ("Rule 35 Affirmation") at 18 (Sept. 11, 1991).) He asserts that he has an "exemplary prison record," id. at 8, and that his sentence has had a "devastating" effect on his family. Id. at 10. Defendant submits eleven exhibits consisting of letters from family and friends who support these claims, as well as defendant's plea for a reduction in sentence. Id., Exs. A-K. In addition, defendant argues that the sentence this Court imposed upon him exceeds the average sentenced imposed by courts for violations of 21 U.S.C. § 848. Id. at 14. Defendant concedes, however, that "it may be that because the original sentence was a modest or reasonable one, a reduction is uncalled for." Id. at 18.

 On June 18, 1996, defendant moved this Court for an order (1) recusing this Court from this case, and (2) for the Clerk of the Court of the Southern District of New York to assign this case to another District Court Judge for the purpose of deciding the pending Rule 35(b) motion. (Notice of Motion, United States v. William LaMorte, 89 Cr. 742 (June 18, 1996) ("Recusal Motion").) Defendant contends that this Court must recuse itself from deciding the underlying Rule 35(b) motion because he claims that this Court has waited "an unreasonably long time period" to render a decision of the motion. (Affidavit in Support of Motion, United States v. William LaMorte, 89 Cr. 742 ("Recusal Affidavit") at 3 (June 18, 1996).)

 On September 11, 1996, the Government submitted a letter in opposition to both defendant's Rule 35(b) motion and defendant's motion for recusal. (Letter from Assistant United States Attorney Geoffrey R. Kaiser to the Honorable David N. Edelstein, United States District Judge for the Southern District of New York (Sept. 11, 1996) ("Kaiser Letter").) The Government asserts that defendant's recusal motion is unsupported by relevant case law and should be denied. Id. at 2-3. The Government "does not take any position on the defendant's [Rule 35(b)] motion, and defers to this Court's judgment as to what if any, sentence reduction is appropriate in light of the documentation submitted by the defendant." Id. at 5.

 Currently before this Court is defendant's Rule 35(b) motion to reduce his sentence and his motion to recuse this Court from defendant's case. Because LaMorte's recusal motion challenges this Court's ability to resolve fairly defendant's Rule 35(b) motion, this Court will address defendant's recusal motion first. Before moving on to the substantive issues raised in defendant's motions, however, this Court notes that both of defendant's motions are deficient because they violate provisions of the rules that govern submissions to this Court.

 For example, this Court's Individual Rule 1(a) requires that a party's papers include "a statement of actual service dates that demonstrate compliance with the [Federal Rules of Civil Procedure regarding service]." Honorable David N. Edelstein Individual Rules, Procedures and Forms ("Individual Rule"), Rule 1(a) (2d Ed. Oct. 1992). This Court's Individual Rule 1(b) orders that "courtesy copies of all papers [with exceptions inapplicable in the instant case] should be delivered to chambers on the date of filing." Individual Rule 1(b). This Court received courtesy copies of neither the Rule 35(b) motion nor the recusal motion. Even more troubling, this Court's examination of the original papers that defendant filed with the Clerk of the Court of the Southern District of New York in support of each of his motions reveals no statement or documentation in either submission that demonstrates compliance with the applicable rules for service of these motions upon the Government.

 In addition, this Court's Individual Rule 4(a) states that "motions must comply strictly with the Fed. R. Civ. P. and the Local Rules, particularly Local Rule 3," and requires that "the notice of motion must specify the rule or statute on which it is based, or if it is not based on any specific rule of statute, then the notice must state that fact." Individual Rule 4(a). Local Rule 3(b) requires that a "moving party shall serve and file with the motion papers a memorandum setting forth the points and authorities relied upon support of the motion," and provides that "failure to comply may be deemed sufficient cause for the denial of the motion or the granting of the motion by default." United States District Court for the Southern and Eastern Districts of New York Joint Rules for General, Civil, Criminal, Admiralty and Magistrate Judge Proceedings, Rule 3(b) (1995).

 Defendant did not submit a memorandum of law to this Court in support of either the Rule 35(b) motion or the recusal motion. Instead, defendant's attorney submitted an "Affidavit In Support of Motion," with defendant's recusal motion, see (Recusal Affidavit), and an "Affirmation" with defendant's Rule 35(b) motion. See (Rule 35(b) Affirmation.) Moreover, as discussed below, defendant fails to cite to this Court any statute or relevant case law in support of his recusal motion. ...


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