The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
This court has been ordered to provide an explanation for its decision to deny the application for release pending appeal filed by Defendant, Denny R. Patridge. In order to comply with the order of the Seventh Circuit Court of Appeals, this court sets out the following procedural history of this case and the reasons for its ruling.
On June 2, 2004, Defendant was charged in a 20-page indictment with one count of filing a false tax return, two counts of tax evasion, two counts of wire fraud and two counts of money laundering. On July 1, 2004, Defendant appeared and was released on bond pending trial. On September 1, 2004, a 22-page superseding indictment (#18) was filed against Defendant, again charging him with one count of filing a false tax return, two counts of tax evasion, two counts of wire fraud and two counts of money laundering.
During the time between indictment and trial, which was more than one year, Defendant filed numerous lengthy motions attacking the sufficiency of the indictment and the superseding indictment. Some of the motions included personal attacks against the assistant United States Attorney responsible for prosecuting the case. This court carefully considered the arguments raised, and the Government's responses, and found Defendant's attacks completely without merit. In doing so, this court entered lengthy orders setting out its reasons for denying the motions (#17, #36, #51, #84).
On June 30, 2005, following a jury trial, Defendant was found guilty of two counts of tax evasion, two counts of wire fraud and two counts of money laundering. Defendant was found not guilty of one count of filing a false tax return. This court entered a judgment of conviction as to Counts 2-7 and scheduled a sentencing hearing on November 21, 2005.
On July 12, 2005, Defendant filed a "Motion for Order of Dismissal of Indictment in Counts 2, 3, 4, 5, 6, and 7 Pursuant to 26 U.S.C. § 7201 for Violating Constitution, and in the Alternative, Motion for Judgment of Acquittal, and in the Alternative, to set aside the Verdict as to Counts 2, 3, 4, 5, 6, and 7 for Insufficient Evidence, and in the Alternative, Motion for Order of New Trial, and Finally, for Order Dismissal of Indictment and Verdict Upon Rule of Lenity Grounds" (#154). In support of his Motion, Defendant filed a 48-page Memorandum (#155).
On July 22, 2005, this court entered an Order (#156) denying Defendant's Motion. This court first noted that the Memorandum filed by Defendant included lengthy, rambling arguments. Many of these arguments were the same as, or at least very similar to, arguments already raised by Defendant and rejected by this court in ruling on Defendant's numerous pre-trial motions to dismiss. This court further noted that Defendant spent many pages of the Memorandum discussing the question the jury had during its deliberations and this court's response to the question. This court noted that Defendant did not object when the court informed him of the answer it intended to give to the jury, which included definitions from Black's Law Dictionary, Seventh Edition. In addition, Defendant did not propose any alternate response. Therefore, to the extent that Defendant was arguing that this court erred in its response to the jury's question (which was difficult to discern from the rambling, stream-of-consciousness argument presented), that argument was clearly waived. As far as Defendant's remaining arguments, this court concluded: (1) that the Superseding Indictment in this case was sufficient and did not violate the Constitution; (2) the evidence presented at trial was clearly sufficient to support the jury's determination that Defendant is guilty of Counts 2, 3, 4, 5, 6, and 7 of the Superseding Indictment; (3) the jury was properly instructed in this case and there was no basis for a new trial; and (4) the "rule of lenity" had no application in this case.
The sentencing hearing originally set for November 21, 2005 was continued on numerous occasions and was eventually scheduled to commence on September 25, 2006, at 9:30 a.m. Defendant filed several motions related to the sentencing hearing and the underlying convictions on August 18, 2006, August 30, 2006, and September 5, 2006. One of the issues raised in Defendant's Memorandum in Support of Motion to Dismiss Superseding Indictment (#182) was that his Sixth Amendment right to confront and present witnesses in his own behalf was violated when various defense witnesses, including Brent Winters, invoked their Fifth Amendment rights and did not testify at Defendant's trial. As far as Brent Winters, Defendant attached a copy of an Informational Notice filed by the Government on August 17, 2006, in Case No. 06-CR-20023, United States v. Kenton W. Tylman, Brent A. Winters, and Debra J. Hills. Defendant contended that, based upon the Informational Notice, this court provided information which led to the investigation of Brent Winters. Defendant thus argued that it was "reasonable to conclude Defendant was denied the right to Mr. Winters' testimony solely because of this Court's complaint against Mr. Winters."
A hearing was held on Defendant's motions on September 6, 2006. Following the hearing, this court entered an Order (#190) which denied all of the motions. This court concluded that Defendant had not shown any basis for dismissing the indictment against him at such a late date, following conviction and just prior to sentencing. This court stated that any errors Defendant perceived in the way the trial was handled or any perceived insufficiency of evidence may be raised on appeal to the Seventh Circuit Court of Appeals. As far as Brent Winters' failure to testify in this case, this court stated that its recollection was that it allowed Mr. Winters to assert his Fifth Amendment privilege against self-incrimination. This court noted that the Seventh Circuit has stated that "[m]any cases hold that the sixth amendment does not entitle a defendant to testimony that the witness has a fifth amendment privilege not to give." Liegakos v. Cooke, 106 F.3d 1381, 1387 (7th Cir. 1997). Accordingly, when a potential witness indicates that he will likely invoke his privilege against self-incrimination, the district court should ensure that the witness cannot possibly incriminate himself. United States v. Mabrook, 301 F.3d 503, 506 (7th Cir. 2002). If a witness's testimony may make him vulnerable to prosecution, the trial court may allow him to invoke his privilege and refuse to testify. Mabrook, 301 F.3d at 506. In addition, a defendant is not allowed to call a witness for the purpose of having the witness assert his Fifth Amendment privilege. Mabrook, 301 F.3d at 507. Therefore, this court stated that it believed that its ruling regarding Mr. Winters was consistent with the applicable case law and perfectly proper.
This court also found that Defendant had not shown any legitimate basis for continuing the sentencing hearing in this case. Defendant had not shown that pending civil litigation had any bearing on the tax loss calculation that this court must determine at sentencing. This court stated that this was especially true since the tax court had ruled against Defendant. This court further stated that the underlying documents relied upon by the Probation Office in making its recommended tax loss calculations had been made available to Defendant. Following the entry of this court's Order, the sentencing hearing remained scheduled before this court on September 25, 2006, September 26, 2006, and, if necessary, the morning of September 27, 2006.
On September 19, 2006, less than one week prior to the scheduled sentencing hearing, Defendant filed a Motion for Recusal (#191), a Memorandum in Support (#192) and a Certificate of Counsel (#193). Defendant also filed a Motion for New Trial Regarding Issue of Recusal (#194) and a Memorandum in Support (#195). In his Motions, Defendant argued that, based upon the Government's Informational Notice filed in Case No. 06-CR-20023, and this court's recusal in that case, this court was required to recuse itself in Defendant's case based upon 28 U.S.C. § 144. Defendant attached his affidavit, dated September 19, 2006, which relied upon the information included in the Government's Informational Notice. Defendant stated in his affidavit that this court was both the reason Mr. Winters was being investigated as well as the reason he was not allowed to testify at Defendant's trial. Defendant stated, "I would have asked for recusal had I known Chief Judge Michael P. McCuskey sat in this capacity, which I believe demonstrates bias and prejudice against me and my witnesses." Defendant also argued that he is entitled to a new trial.
On September 19, 2006, this court entered a text order and directed the Government to respond to Defendant's Motions by September 21, 2006. On September 20, 2006, Defendant filed an Objection to Text Order (#196). In his Objection, Defendant argued that, because he had complied with 28 U.S.C. § 144, this court was required to recuse itself and take no further action in this case. On Saturday, September 23, 2006, Defendant filed a Notice of Filing Petition for Writ of Mandamus with the Seventh Circuit Court of Appeals (#201). Defendant attached a copy of the Petition he filed seeking an order from the Seventh Circuit ordering this court to proceed no further and assigning another district court judge to this case.
On September 25, 2006, this court entered an Opinion (#203). This court concluded that Defendant had not complied with 28 U.S.C. § 144 and also concluded that recusal was not required in this case. This court concluded that Defendant's Motion for Recusal, filed more than one month after the filing of the Informational Notice, and less than one week prior to the scheduled sentencing hearing, clearly was not filed at the "earliest moment" and was not timely. Moreover, this court also concluded that the affidavit was not sufficient, noting that Defendant's affidavit did not include any factual assertions which show that this court has any personal bias or prejudice against Defendant. This court concluded that Defendant's affidavit was not "even remotely sufficient evidence of the required deep-seated and unequivocal antagonism that would render fair ...