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United States v. Cleveland

United States District Court, D. New Mexico

August 17, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
KIRBY CLEVELAND, Defendant.

          John C. Anderson United States Attorney Jennifer M. Rozzoni Niki Tapia-Brito Novaline Wilson Letitia Carroll Simms Michael D. Murphy Assistant United States Attorneys United States Attorney's Office Albuquerque, New Mexico Attorneys for the Plaintiff

          Theresa M. Duncan Duncan Earnest L.L.C. Albuquerque, New Mexico and Donald Kochersberger Business Law Southwest, L.L.C. Albuquerque, New Mexico Attorneys for the Defendant

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on: (i) the Magistrate Judge's Proposed Findings and Recommended Disposition, filed January 26, 2018 (Doc. 38)(“First PFRD”); and (ii) the Second Report by the Magistrate Judge, filed February 2, 2018 (Doc. 45)(“Second PFRD”). The primary issue is whether both PFRDs, which discuss whether the Honorable Kenneth Gonzales, United States District Judge for the District of New Mexico, should recuse himself from this case, are moot. The Court concludes that both PFRDs are now moot, because Judge Gonzales no longer presides over this case. Accordingly, the Court does not adopt them.

         FACTUAL BACKGROUND

         The Court draws its facts from the Indictment, filed April 12, 2017 (Doc. 20)(“Indictment”). The Court recognizes that the Indictment largely represents Plaintiff United States of America's version of events and that Defendant Kirby Cleveland is presumed innocent. “On or about February 26, 2017, and continuing through March 11, 2017, in Bernalillo County, in the District of New Mexico, the defendant, Kirby Cleveland, did knowingly escape from Diersen Residential Reentry Center in Albuquerque.” Indictment at 2. On or about March 11, 2017, Cleveland killed John Doe, a Navajo Nation Division of Public Safety Patrol Officer, with a firearm. See Indictment at 1-3.

         Before becoming a United States District Judge, Judge Gonzales served as the United States Attorney for the District of New Mexico from 2010 to 2013. See “Kenneth John Gonzales, ” Wikipedia, https://en.wikipedia.org/wiki/KennethJohnGonzales (last viewed July 30, 2018). During his tenure as the United States Attorney, United States v. Cleveland, No. CR 12-2062 MCA, was litigated in the District of New Mexico. See United States v. Cleveland, No. CR. 12-2062 MCA, Indictment at 1, filed August 21, 2012 (Doc. 46). That case and this case both involve the same defendant, Cleveland.

         PROCEDURAL BACKGROUND

         Cleveland was indicted in this case on April 12, 2017. See Indictment at 1. The case was initially assigned to the Honorable M. Christina Armijo, then-Chief United States District Judge for the District of New Mexico. On January 11, 2018, the case was reassigned to Judge Gonzales.

         At a status conference held on January 25, 2018, Judge Gonzales stated that he had received a letter from the United States notifying him of Cleveland's first case. See Clerk's Minutes Before the Honorable Kenneth J. Gonzales at 1, filed January 25, 2018 (Doc. 36)(“Clerk's Minutes”). Judge Gonzales acknowledged that he was the United States Attorney during part of that case's pendency. See Clerk's Minutes at 1. After some discussion, Cleveland stated that he would not be opposed to a third party reviewing the United States' file in Cleveland's first case to examine for any recusal issues. See Clerk's Minutes at 3 (Duncan). Judge Gonzales said that he would ask a magistrate judge to review the file. See Clerk's Minutes at 3.

         Judge Gonzales referred the case to the Honorable Karen Molzen, Chief United States Magistrate Judge for the District of New Mexico, with instructions that Chief Magistrate Judge Molzen “conduct an in camera review of the Government's file in United States v. Cleveland, Cr. No. 12-2062 MCA and then prepare findings on [Judge Gonzales'] participation, if any, as United States Attorney in that case.” First PFRD at 1. See Order of Reference at 1, filed January 26, 2018 (Doc. 37). Chief Magistrate Judge Molzen found “no indication that Judge Gonzales actively participated in that case.” First PFRD at 2. Consequently, Chief Magistrate Judge Molzen concluded that Judge Gonzales was not required to recuse himself from this case. See First PFRD at 2.

         On February 1, 2018, the parties held another status conference, where Judge Gonzales determined that “a further in camera review by Judge Molzen on the recusal issue is necessary.” Order Resulting From Status Conference at 1, filed February 2, 2018 (Doc. 44)(“Status Conference Order”). Specifically, Judge Gonzales requested that Chief Magistrate Judge Molzen examine “additional materials discovered by the Government” in Cleveland's first case. Status Conference Order at 2. Chief Magistrate Judge Molzen reviewed those documents and concluded that “[n]one of the submitted e-mail documents reflect active participation by Judge Gonzales” in the first United States v. Cleveland case. Second PFRD at 1. Chief Magistrate Judge Molzen noted, however, that Judge Gonzales sent a congratulatory email to Assistant United States Attorney Novaline Wilson -- who prosecuted Cleveland's first case -- in response to a press release saying that Cleveland had pled guilty in that case. See Second PFRD at 2. Judge Gonzales' congratulatory email stated only “‘Nice job, Nova!'” Second PFRD at 2 (quoting Email from Kenneth Gonzales to Novaline Wilson at 1 (dated July 18, 2013), filed February 2, 2018 (Doc. 45-1)). Chief Magistrate Judge Molzen implied that this email might raise an “appearance of impartiality” question, but noted that, because an appearance of impartiality analysis under 28 U.S.C. § 455(a) “requires consideration of all relevant information and would extend beyond the documents that I have reviewed in camera, a further recommendation seems outside the scope of the order of referral.” Second PFRD at 2. Consequently, Chief Magistrate Judge Molzen did not make a recommendation. See Second PFRD at 2. On March 5, 2018, this case was reassigned to the Court.

         LAW REGARDING RECUSAL

         An important feature of the judicial system is that judges are fair and impartial arbiters of the disputes before them. 28 U.S.C. § 455(a) states: “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Certain listed circumstances also require a judge to recuse himself:

(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts ...

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