United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
VIRGINIA M. KENDALL, District Judge.
On May 27, 2011, a jury convicted defendant Marvin Chapman ("Chapman") of possessing with the intent to distribute a controlled substance, namely a quantity of mixtures and substances containing a detectable amount of heroin, in violation of 21 U.S.C. § 841(a)(1) ("Count I") and acquitted Chapman of possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A) ("Count II") and of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) ("Count III"). Chapman appealed his conviction primarily on the grounds that the Court should not have admitted certain 404(b) evidence against him. Oral arguments took place before the Seventh Circuit Court of Appeals on November 28, 2012. The opinion from the Seventh Circuit has not yet been issued.
Defense counsel moves now for release on bond pending the release of the opinion from the Seventh Circuit and for recusal. Defense Counsel argues that there is a high likelihood that the jury trial will be reversed based on his interpretation of the oral argument before the appellate court. Since the only conviction is the drug conviction and Chapman has been incarcerated now for nearly two years during the process of the appeal, Defense Counsel seeks to have him released for
"fundamental fairness" that Chapman should not have to "wait indefinitely" in custody for an opinion in "a straightforward case, " that he has already served the approximate amount of time he would receive for a marijuana offense (he was convicted of a heroin offense), and it is clear to Defense Counsel that the conviction will be reversed.
Defense counsel next moves for recusal alleging that this Court's impartiality might reasonably be questioned based both on the rulings made during Chapman's trial which included the admission of the 404(b) evidence against Chapman and that the Court emailed the Deputy Chief Marshal for the Northern District of Illinois during the course of the trial to inform the deputy that his wife, one of the AUSAs on the case, was about to begin her opening statement to the jury. For the following reasons, the Court denies Defense Counsel's motion for recusal based on the communication because no breach of ethics occurred nor could a reasonable observer find that the communication indicated any bias against Chapman or in favor of the Government. The Court, however, grants recusal on other grounds: now that defense counsel has challenged the ethical integrity of the Court and sought to disclose her personal emails to bolster his frivolous claim, this Court finds that an objective observer may reasonably question whether the Court can set aside the false accusations and rule objectively on the pending Motion for Release and therefore another judge should hear that motion and any other matters that may arise.
Defense counsel moves for recusal based on what he describes as "at minimum an appearance of bias or prejudice based on the facts of the case." This bias he claims includes the rulings made by the Court in favor of the Government on evidentiary issues and that the "Court appears to have been exchanging emails with the husband of the prosecutor" during the case.
First, the Court's evidentiary rulings during trial cannot form the basis for perceived bias. Each trial court judge reviews the facts and the law and makes numerous decisions each day on the basis of that review - some favor the defense and some favor the prosecution - a court ruling is challenged by appealing. Chapman has challenged the admissibility of the evidence and that decision is currently pending. Therefore, he has received the due process necessary to redress whatever harm he believes has occurred from the Court's ruling.
Second, the email string of six lines between the Deputy Chief of the United States Marshal and the Court do not represent improper communication and show no bias for the Government. The Court ruled on the 404(b) issue on May 16, 2011, nine days before the email communication occurred. Nine months after arguing the case before the Seventh Circuit, on September 3, 2013, the Criminal Appellate Division of the Department of Justice provided the email string that it had obtained from the Office of Inspector General during an investigation into a number of areas in the United States Marshal's office in the Northern District of Illinois to the Seventh Circuit and defense counsel.
During the summer of 2013, the Criminal Appellate Section was reviewing this Court's opinion in one aspect of the U.S. Marshal investigation which led to the dismissal of the indictment and most likely would have been in possession of the OIG investigative materials when making its decision on how to proceed with that appeal. In September 2013, the Section provided the six line communication to Defense Counsel and the Seventh Circuit. Defense counsel sought discovery before the Seventh Circuit of more than the six lines of text provided to him from the Appellate Section.
In response, the Appellate Section then extensively searched years of the DOJ email accounts of both the Deputy Chief Marshal and the AUSA it had obtained from the OIG investigation. After searching for all communications between the Deputy Marshal and the AUSA and the Court, the Appellate Section provided a summary of those communications to the Seventh Circuit Court of Appeals showing that no improper relationship existed then or now between the Court and the AUSA and the Deputy Chief Marshal. In its summary, the Appellate Section confirmed that there was nothing unusual or out of the ordinary about the emails between the Court, the AUSA (her former colleague) and the Deputy Marshal (her court security officer).
The Criminal Appellate Section noted that the professional and collegial relationship between colleagues was not improper. Citing to the Seventh Circuit, the Section noted:
In today's legal culture, friendships among judges and lawyers are common. They are more than common; they are desirable. A judge need not cut himself off from the rest of the legal community. Social as well as official communications among judges and lawyers may improve the quality of legal decisions. Social interactions also make service on the bench, quite isolated as a rule, more tolerable to judges. Many well-qualified people would hesitate to become judges if they knew that wearing the robe meant either discharging one's friends or risking disqualification in substantial numbers of cases. Many courts have held that a judge need not disqualify himself just because a friend - even a close friend-appears as a lawyer. E.g., In re United States, 666 F.2d 690 (1st Cir. 1981); Parrish v. Board of Commissioners, 524 F.2d 98 (5th Cir. 1975)(en banc).
United States v. Murphy,
768 F.2d 1518, 1537 (7th Cir. 1985). Disqualification is required only when there is some "unusual" aspect to the social relationship. Id. at 1538. The Appellate Section, having reviewed all of the email communication between the Court and the AUSA (four years) and the Deputy Chief Marshal (seven years) could find nothing unusual about the relationship and could not even describe it as close. Defense ...