United States District Court, W.D. New York
DECISION AND ORDER
ELIZABETH A. WORLFORD United States District Judge.
before the Court is a motion filed by counsel for defendant
Earl McCoy, Robert W. Wood, Esq., asking that the undersigned
recuse herself pursuant to 28 U.S.C. § 455(b)(1), on the
grounds of bias or prejudice against Defendants and/or their
counsel. (Dkt. 322). The Government has filed papers opposing
the recusal motion, and it also seeks to strike certain
paragraphs contained in Mr. Wood's supporting
affirmation. (Dkt. 336). Mr. Wood sent a letter to the Court
dated June 8, 2017, seeking oral argument on the motion and
requesting that he be able to respond orally to the
Government's motion to strike.
reasons set forth below, the recusal motion is denied. In
addition, the Court denies the Government's motion to
strike, and because oral argument is unnecessary to a
resolution of any of the pending motions, the request is
Matthew Nix and Earl McCoy ("Defendants") were
convicted after a five-week jury trial of all counts in a
12-count Third Superseding Indictment alleging violations of
the Hobbs Act, 18 U.S.C. § 1951(a), and related firearms
and narcotics charges, in connection with a spree of home
invasions in 2014. (Dkt. 165). After the return of the
verdict, and prior to sentencing, Defendants filed post-trial
motions pursuant to Fed. R. Crim. P. 29(c) and 33. (Dkt. 286;
Dkt. 289). In those post-trial motions, Defendants argue,
inter alia, that one of the jurors who served during
the trial-identified as "J.B." or "Juror No.
3"-had been convicted of prior felonies, and,
as a result, he was ineligible to serve on the jury pursuant
to 28 U.S.C. § 1865(b)(5), and his failure to disclose
this information during voir dire requires a new
trial because of juror bias.
Court has conducted two separate court appearances since
Defendants filed their post-verdict motions: an initial
appearance for oral argument on the post-verdict motions
occurred on May 15, 2017, at which time the Court indicated
that it would hold an evidentiary hearing on the issue of
Juror No. 3's alleged bias (Dkt. 310); and an appearance
on May 25, 2017, at which time Juror No. 3 appeared, was
appointed counsel, and a hearing date of June 12, 2017, was
scheduled. (Dkt. 313).
2, 2017, after the most recent court appearance, Mr. Wood
moved for the undersigned to recuse herself from any further
proceedings pursuant to 28 U.S.C. § 455(b)(1) "on
the ground that the presiding judge has a bias or prejudice
concerning a pOarty [sic]. . . ." (Dkt. 322 at 1).
Mr. Wood argues that the undersigned has "a hostility to
the defense, " and particularly, to counsel for
defendant Matthew Nix, Michael Jos. Witmer, Esq., which was
purportedly demonstrated at the court appearance on May 25,
2017, and, as a result, the undersigned must recuse herself
pursuant to 28 U.S.C. § 455(b)(1). (Dkt. 322-1 at
¶¶ 17-18). Mr. Wood contends that although the
undersigned "has appropriately admonished" Mr.
Witmer for his inappropriate post-verdict conduct, such as
contacting jurors without notice to the other parties,
"the court has never once thanked Mr. Witmer for
discovering the truth about juror 'J.B.'"
(Id. at ¶ 7). Mr. Wood complains that the
undersigned has held three court appearances since Defendants
filed their post-verdict motions and "has taken occasion
to verbally criticize Mr. Witmer for the same conduct which
was also addressed in the court's order of May 3, 2017,
" (id. at ¶ 8), arguing that this
continual criticism has "no relevance to the
proceedings, " (id. at ¶ 14). According to
Mr. Wood, this Court should be directing any annoyance toward
Juror No. 3 for his alleged deceptive or negligent conduct
rather than admonishing Mr. Witmer. (Id. at
Wood goes on to argue that on May 25, 2017, the undersigned
"went further, criticizing counsel for Mr. McCoy, who
had suggested that Mr. McCoy should not be punished for Mr.
Witmer's conduct." (Id. at ¶ 9). Mr.
Wood suggests that the undersigned possesses "a belief
that it would have been better if juror 'J.B.'s'
true criminal background had not been discovered and the
Court would never have learned of these misrepresentations
made by 'J.B., '" (id. at ¶ 10),
and that the undersigned has criticized counsel for bringing
the issue of Juror No. 3's prior criminal history to its
attention, (id. at ¶ 9).
crux of Mr. Wood's motion complains about the procedures
that this Court intends to employ at the evidentiary hearing
scheduled for June 12: the undersigned will ask questions of
the juror based, in part, on proposed questions from counsel.
Mr. Wood disagrees with this procedure, arguing:
Especially given the serious charges here, and the potential
sentences, it is essential that the hearing regarding
potential juror bias should be a fair, probing and searching
inquiry with cross examination permitted by all counsel as
was suggested by the Court in. [sic] [United States v.
Boney, 68 F.3d 497 (D.C. Cir. 1995)] Boney
II. It should also take place before a neutral
judge who bears no favoritism toward either side or in
particular, a hostility to the defense, which was
demonstrated at the May 25, 2017 proceedings.
(Id. at ¶ 18). In sum, the recusal motion
argues that the undersigned intends to severely limit the
scope of the evidentiary hearing concerning the alleged bias
of Juror No. 3 so as to essentially cause the result to be
a fait accompli because of the undersigned's
alleged predisposition against the defense.
WTTMER'S POST-VERDICT CONDUCT
so much of the recusal motion is based upon Mr. Wood's
apparent belief that this Court has excessively criticized
Mr. Winner's conduct, it is first necessary to address
that conduct and this Court's responses to it. Although
the Court recognizes that further discussion of the
Court's criticism of Mr. Witmer will likely draw even
more complaints from defense counsel, Mr. Wood bases his
motion in large part on that criticism, and the Court does
not see how it can address the recusal motion without first
delving into those issues.
discussed below, this Court has been and is troubled by Mr.
Witmer's conduct, including his misuse of the jury list
in this case and failure to return all copies of it when
directed, his improper use of the subpoena process under Fed.
R. Crim. P. 17, his alteration and public disclosure of a
sealed transcript, and his investigator's attempts
post-verdict to surreptitiously video record jurors at their
Wood's recusal motion references this Court's prior
decision filed on May 3, 2017. (Dkt. 301). That Decision and
Order dealt with the Government's motions to quash
various subpoenas served following return of the jury's
verdict by both Mr. Wood and Mr. Witmer with no prior Court
approval and with no court appearances or hearings scheduled.
(Id. at 1). The Court concluded that both defense
counsel had failed to comply with the procedural and
substantive requirements of Fed. R. Crim. P. 17(c), and
therefore, it granted the Government's motions to quash.
(Id. at 1-2). In addition to addressing the
substance of the motions to quash, the Court also addressed
its discovery that Mr. Witmer had violated the provisions of
Fed. R. Crim. P. 17(c)(3) on at least two separate occasions
during the course of the trial, when he-without Court
approval- served subpoenas seeking personal and confidential
victim information. (Id. at 7). The undersigned was
particularly troubled that counsel had been expressly
cautioned about the requirements of Rule 17(c)(3) at an
appearance on February 10, 2017, and yet on that same date
(and then two weeks later), Mr. Witmer, without leave of
Court, proceeded to issue subpoenas seeking information
protected by Rule 17(c)(3). (Id. at 7-8).
footnote in its discussion of Mr. Witmer's disregard of
the requirements of Rule 17(c)(3), the Court referenced Mr.
Witmer's employment of a private investigator
post-verdict to interview jurors at their homes without any
notice to the Court or opposing counsel, in violation of
clear Second Circuit precedent. (Id. at 8 n.4).
regard to the post-verdict juror interviews, on March 27,
2017, this Court learned through contact from a juror and the
Government (who was contacted separately by another juror)
about Mr. Witmer's retention of a private investigator to
conduct post-verdict juror interviews. The Court issued a
Text Order that day requiring that any such contact by any of
the parties cease immediately, and it scheduled an appearance
for March 29, 2017. (Dkt. 270).
March 29 appearance, among other issues, the Court addressed
the fact that Mr. Witmer had improperly retained the
"jury list" in violation of the District's Jury
Plan which provides that the jury list containing names and
personal information of prospective jurors may be provided to
the attorneys in a case set for trial, but the attorneys
"may not share the jury list or information therein
except as necessary for purposes of jury selection" and
following its use for jury selection, the jury list (and any
copies) must either be returned to the clerk or destroyed.
United States District Court, Western District of New York,
Jury Plan (Oct. 2016), available at
Witmer not only retained his copy of the list, but he
provided another copy to his investigator to conduct these
post-verdict interviews. At the March 29, 2017, appearance,
the Court directed Mr. Witmer to return all copies of the
jury list within his possession, custody and control, and
confirmed that requirement in a Text Order entered on that
same date. (See Dkt. 275). When Mr. Witmer failed to
comply with that direction (by returning only his copy of the
jury list, and not his investigator's), the Court issued
another Text Order on March 31, 2017, which, in part,
reiterated the requirement that Mr. Witmer return all jury
lists. (Dkt. 278). At the March 29, 2017, appearance, the
Court also addressed the purpose of Mr. Witmer's
post-verdict juror interviews, and the fact that he engaged
in this conduct without complying with clear Second Circuit
precedent. Mr. Witmer denied knowledge of this Second Circuit
precedent, although he did admit that he was familiar with
Fed.R.Evid. 606, and that the subject areas that he sought to
explore with the jurors included their discussions during
Defendants filed their post-verdict motions. (Dkt. 286; Dkt.
289). The Government filed its papers in opposition on April
25, 2017 (Dkt. 296), and Defendants filed papers in reply on
May 2, 2017 (Dkt. 299; Dkt. 300). In his publicly-filed reply
affirmation, Mr. Witmer quoted extensively from portions of a
sealed transcript and added his own editorialized comments
and language, so as to alter the official transcript. (Dkt.
referenced above, on May 3, 2017, the Court issued its
Decision and Order concerning the Government's motions to
quash post-verdict subpoenas served by both defense counsel
(Dkt. 301), and, on that same date, the Court issued an Order
requiring counsel for all parties to submit information to
the Court under oath concerning contact with and
investigation of the jurors and prospective jurors in this
case (Dkt. 302). That Order was prompted, in part, by the
parties' competing allegations against each other with
respect to their contact and investigation of the jurors in
this case, including the Government's allegation that
defense counsel potentially knew about Juror No. 3's
prior felony convictions in advance of the jury's
deliberations, but kept the information in
"reserve" to utilize in the event of convictions.
(Dkt. 296 at 10).
filed affidavits in response to the Court's Order (Dkt.
306; Dkt. 308; Dkt. 309), and an appearance concerning
Defendants' post-verdict motions was held on May 15,
2017. (Dkt. 310). At that appearance, this Court admonished
Mr. Witmer for publicly filing portions of a sealed
transcript and for attempting to alter the transcript. This
Court also questioned Mr. Witmer about his affidavit
concerning contact and investigation of the jurors. (Dkt.
309). By Mr. Witmer's own admissions at that appearance,
his affidavit contained typographical errors and mistakes.
affidavit indicated that the date of the background check
concerning Juror No. 3 was March 29, 2017-the same date of
the last court appearance in this case prompted by Mr.
Witmer's post-verdict contact with the jurors. Mr. Witmer
did not reference this background check at any point during
the appearance on March 29, 2017, including when the Court
questioned Mr. Witmer as to what had prompted him to attempt
contact with Juror No. 3. When questioned on May 15, 2017, as
to whether he was aware of Juror No. 3's alleged prior
felony convictions at the time of the March 29, 2017, court
appearance, Mr. Witmer was uncertain. The undersigned asked
Mr. Witmer why he had conducted a criminal background check
on Juror No. 3; he responded that it was "just a hunch,
" and stated that the background check of Juror No. 3
was the only one conducted.
questioned about the interview of another juror (identified
as D.F.) at the appearance on May 15, 2017, it was revealed
for the first time that there was a recording of Mr.
Winner's investigator's contacts or attempted
contacts with jurors. Specifically, the following exchange
occurred during the Court's questioning of Mr. Witmer
concerning his contact with D.F.:
THE COURT: [I]s there some kind of documentation that your
investigator created summarizing his interview?
MR. WITMER: Yes, your Honor.
THE COURT: And how long is that documentation?
MR. WITMER: It's an hour, I ...