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United States v. Nix

United States District Court, W.D. New York

June 9, 2017

UNITED STATES OF AMERICA,
v.
MATTHEW NIX and EARL McCOY, Defendants.

          DECISION AND ORDER

          ELIZABETH A. WORLFORD United States District Judge.

         Presently 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.

         For the 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 denied.

         BACKGROUND

         Defendants 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"[1]-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.

         The 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).

         On June 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]. . . ."[2] (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[3] 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 ¶17).

         Mr. 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).

         The 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.

         MR. WTTMER'S POST-VERDICT CONDUCT

         Because 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.

         As 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 homes.

         Mr. 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).

         In a 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).

         In 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).

         At the 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 www.nywd.uscourts. gov/sites/default/files/2016%20Jury%20Plan%20-%20FINAL-WebVersion.pdf.

         Mr. 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 deliberations.

         Thereafter, 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. 299).

         As 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).

         Counsel 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.

         The 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.

         When 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 ...

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