United States District Court, S.D. New York
January 29, 2004.
UNITED STATES OF AMERICA, -against- RAMIRO RODRIGUEZ RAMIREZ, Defendant
The opinion of the court was delivered by: SHIRLEY KRAM, Senior District Judge
OPINION & ORDER
The defendant was charged in a criminal indictment in this District
with conspiring to distribute, and possessing with intent to distribute,
heroin and cocaine, in violation of 21 U.S.C. § 846, 812 and
841(a)(1) and 841(b)(1)(A). After a jury trial in November 2001, the
defendant was convicted. Complaint ("Compl.") ¶ 2.*fn1
While awaiting sentencing, Defendant Ramirez sent a document entitled
"Legal Notice" to the Assistant United States Attorney ("AUSA") who was
prosecuting the drug case against him. The "Legal Notice" informed the
AUSA that the defendant had a copyright interest in his name and that the
AUSA would be indebted to the defendant by $500,000 each time the AUSA
used the defendant's name. Compl. ¶ 3. In addition, the defendant
submitted a Motion "Nunc Pro Tunc,"
dated October 9, 2002, and an accompanying affidavit in which he stated:
"I would be amenable to forgiving all unauthorized use fees incurred via
my immediate and unconditional release." Id. ¶ 4.
During a court appearance on January 21, 2003, the defendant informed
the parties that he was registered as secured party under the Uniform
Commercial Code ("UCC"). At that court appearance, the defendant also
stated: "I would like to tell you that if you wish to continue with the
proceedings, I accept this case in the condition of value for the
totality of it." Id. ¶ 5. Shortly thereafter, on March
6, 2003, UCC financing statements were filed with the New York
Department of State in the name of the defendant. These statements
indicated that the defendant had a security interest or lien in all of
the assets, land, and personal property of the AUSA and the Judge
presiding over the defendant's case. Id. ¶ 6.
In a court appearance on April 7, 2003, the presiding Judge directed
the defendant to cease his activities regarding the liens. Despite the
Judge's admonition, Ramirez sent a letter to the AUSA purporting to
inform her that the defendant planned to sell all of the AUSA's assets
and property sometime in a private sale after April 16, 2003.
Id. ¶ 8.
On June 20, 2003, the defendant sent the AUSA another letter. The
letter, entitled "Administrative Notice and Demand for Identification and
Credentials Quo Warranto," directed the AUSA to provide the defendant
with the AUSA's credentials, including oath of office, officer affidavit,
employee affidavit, registration, and a surety bond. Id. ¶
9. The letter also stated: "Any further contact, instructions,
directions, documents transferred from you, to me, by means of postal
delivery or electronic means, leaves you open for prosecution, by the
proper authorities, for mail and/or wire fraud, until such time as you
have properly and fully identified yourself." Id.
Ramirez was arrested on August 7, 2003. On September 8, 2003 a grand
jury returned a one-count indictment charging the defendant with
obstruction of justice in violation of 18 U.S.C. § 1503.
I. Ramirez's Motion to Dismiss is Baseless
On December 5, 2003, Defendant Ramirez filed a motion to dismiss the
indictment on the ground that "the liens have no legal effect whatsoever
and could not have influenced or intimidated [the AUSA] in the
prosecution of Mr. Ramirez's narcotics case." Defendant's Memorandum
"Def. Memo") at 7. Although the motion acknowledges that the liens were
"surely a nuisance," and "could have a
negative effect on [the AUSA and Judge's] credit ratings" it
nevertheless claims that since the AUSA "has the full power of the United
States Attorney's Office representing her interests while Mr. Ramirez is
proceeding without the counsel of a civil attorney," the indictment
should be dismissed. Def. Memo at 8.
Try as it may, the Court simply cannot decipher any legal basis for
dismissal in the defendant's papers. First, with respect to the
defendant's contention that, "the liens have no legal effect whatsoever,"
even if that is true, the Section 1503 charge is still appropriate given
that § 1503 prohibits conduct that "endeavors to influence,
obstruct, or impede the due administration of justice."
18 U.S.C. § 1503 (emphasis added). Put simply, success is not an element of §
1503. See United States v. Baum, 32 F. Supp.2d 642,
648 (S.D.N.Y. 1999) ("Of course a defendant's actions need not be
successful to violate § 1503; it is enough that a defendant
`endeavors' to influence the due administration of justice.").
Second, if Ramirez's motion is an attempt to challenge the sufficiency
of the Government's evidence, such a challenge is also unavailing. An
indictment, valid on its face, may not be dismissed on the ground that it
is based on inadequate or insufficient evidence. United States v.
504 U.S. 36, 54 (1992). See also United
States v. Gambino, 809 F. Supp. 1061, 1079 (S.D.N.Y. 1992),
aff'd, 17 F.3d 572 (2d Cir. 1994) ("It is axiomatic that, in a
criminal case, a defendant may not challenge a facially valid indictment
prior to trial for insufficient evidence."). Because the defendant makes
no claim that the September 8, 2003 indictment is facially invalid
(indeed, the indictment is valid on its face), the motion to dismiss is
II. There is No Basis For Recusal
In the alternative, the defendant argues that the United States
Attorney's Office for the Southern District of New York should recuse
itself from prosecuting the defendant and the case should be transferred
to another District. Def. Memo at 8. The defendant, while conceding that
there has not been any actual impropriety (Def. Memo at: 10), contends
that there is "an air of impropriety" in the U.S. Attorney's Office for
the Southern District of New York representing the United States on
behalf of an AUSA's financial interests in a civil action while at the
same time prosecuting the defendant criminally. Def. Memo at 9.
At the outset, the Court notes the irony in the defendant's seeking
recusal as a remedy for a "conflict." he himself created. However,
casting such irony aside, there
is no basis in the law for such a request.*fn2
Disqualification is not required simply because a prosecutor in the
Office, or the Office itself, is the victim of harassing conduct.
See United States v. Heldt, 668 F.2d 1238, 1276 n.80
(D.C. Cir. 1981) (noting that "[t]he potential conflict of interest that
might result from a personal civil suit filed against an [AUSA] by a
defendant in a criminal case for acts undertaken by the AUSA in his
official capacity in the criminal matter would have to be very strong
before disqualification would be justified . . . [and] would require
proof, by clear and convincing evidence, of a prima
facie case of misconduct on the part of the AUSA."). Here, not
only is the potential for a conflict of interest weak, but in conceding
that there has been no actual impropriety, Ramirez has fatally undermined
his own argument for disqualification. Further, in this Circuit, it is
common practice for the U.S. Attorney's Office to file obstruction of
justice charges involving conduct that occurs during the course of cases
brought in this District. See United States v.
Grisanti, 116 F.3d 984 (2d Cir. 1987).*fn3
The extreme remedy of disqualification of an entire US Attorney's
Office requires, at minimum, some showing of bad faith, misconduct, or
actual prejudice on the part of the prosecutor. See
Heldt, 668 F.2d at 1276. No such demonstration exists here
in fact, the defendant has provided little more than generalized
allegations of an "air of impropriety" Such generalized allegations,
especially when juxtaposed with a concession that there has been no
actual impropriety, are wholly inadequate to disqualify an entire
For the reasons set forth above, the defendant's motion to dismiss the
indictment is denied. In addition, the defendant's request for an order
disqualifying the entire U.S. Attorney's Office for the Southern District
10: 30 a.m. on February 11, 2004 for a scheduled conference.