The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
The matter is before the Court on Defendant's pro se motion "pursuant to Title 28 U.S.C. § 455(a) and 455(b)(1) requesting that the undersigned be disqualified from presiding over any further proceedings involving the defendant." (Defendant's Notice of Motion, filed June 13, 2008, Docket # 166.) Additionally, pending before the Court is Defendant's motion, pursuant to Federal Rule of Criminal Procedure 41(g), " for return of his personal property that was taken and confiscated off of his person during an unlawful arrest on April 18, 2005, consisting of $3,425.00 in cash." (Defendant's Notice of Motion, filed May 16, 2008, Docket # 164.) For the reasons stated below, both of the Defendant's applications are denied in all respects.
On April 14, 2005, a federal grand jury returned a three-count sealed indictment against the Defendant. Count One charged him with possession with intent to distribute 50 grams or more of cocaine base in violation of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(A). Count Two charged him with possession of more than five grams of cocaine base in violation of 21 U.S.C. § 844(a). Count Three charged him with possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1). In connection with the sealed indictment, an arrest warrant was issued on April 14, 2005.
On April 18, 2005, members of the Rochester Police Department stopped the defendant for a traffic violation, at which time he was arrested on the outstanding federal warrant. Subsequently, on April 18, 2005, the Court unsealed the indictment and arraigned the Defendant. At arraignment, the Government moved for detention.
On April 20, 2005, the Court held a detention hearing. After hearing proffers from both the Government and the Defendant, the Court denied the application to detain and set conditions for the Defendant's release, including the posting of bail in the amount of $100,000.
On September 8, 2005, based upon the Government's application, the Court reconsidered the issue of detention, and ordered the Defendant detained.*fn1 The reconsideration was based on new information that the Government brought to the Court's attention, specifically that the defendant had been convicted of two prior drug felony offenses.*fn2 Consequently, if convicted under Count One of the indictment, the Defendant would be subject to a mandatory term of life imprisonment pursuant to 21 U.S.C. § 841(b)(1)(A). In light of this, the Court found by a preponderance of evidence that Defendant was a flight risk and that no condition or combination of conditions would reasonably assure his appearance if he were to be released.
On September 24, 2005, a superceding indictment was filed against Defendant. The superceding indictment added a fourth count against the Defendant: felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and 924 (a)(2), with Counts One, Two, and Three remaining the same as in the original indictment.
On October 5, 2005, with respect to the superceding indictment, a jury found the Defendant guilty on Counts One, Two, and Four, but not guilty of Count Three. On February 12, 2006, the Court, based upon 21 U.S.C. § 841(b)(1)(A), sentenced the Defendant to life imprisonment.
By decision dated December 6, 2006, the Second Circuit dismissed the Defendant's appeal of the Court's order of detention. The Defendant's convictions on Counts One, Two, and Four of the superceding indictment are currently under appeal before the Second Circuit.
Upon arresting the Defendant on April 18, 2008, members of the Rochester Police Department seized $3,425.00 from his person. After reviewing the circumstances under which the money was acquired, the Drug Enforcement Administration ("DEA") determined that an adequate basis existed to support administrative forfeiture proceedings against this property and, in fact, decided to commence such proceedings. Accordingly, on May 11, 2005, pursuant to 19, U.S.C. § 1607(a) and 18 U.S.C. § 983(a), the DEA sent written notice of this seizure by certified mail, return receipt requested, to Terrance Sykes, 58 ...