United States District Court, D. New Mexico
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
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
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.
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.
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,
(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.
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.
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.
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.
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.
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