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U.S. v. RAMIREZ

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," Page 2 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. Page 3

  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 Page 4 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. Williams, Page 5 504 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 denied.

 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 Page 6 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 Page 7 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 Office*fn4

  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 of Page 8 10: 30 a.m. on February 11, 2004 for a scheduled conference.

  SO ORDERED.


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