United States of America v. Brooks
Filing
27
MEMORANDUM OF DECISION AND ORDER - It is hereby ORDERED, that pursuant to 28 U.S.C. §§ 455(a) and 455(e), the Defendant, through his counsel, waived his right to move for Judge Seyberts recusal based on the investigation into the unproven allegations that the Defendant made threats against Judge Seybert and others. So Ordered by Judge Arthur D. Spatt on 6/19/2014. (Coleman, Laurie)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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UNITED STATES OF AMERICA,
-againstDAVID H. BROOKS,
Defendant.
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APPEARANCES:
United States Attorney’s Office
Attorneys for the Government
610 Federal Plaza
Central Islip, NY 11722
By: Bonni Jessica Perlin, AUSA
Christopher Charles Caffarone, AUSA
Christopher Allen Ott, AUSA
James Halleron Knapp, AUSA
James M. Miskiewicz, AUSA
Kathleen Anne Nandan, AUSA
Laura D. Mantell, AUSA
Marshall L. Miller, AUSA
Mary M. Dickman, AUSA
Patrick Sean Sinclair, AUSA
Richard Thomas Lunger, Jr., AUSA
Alan M. Dershowitz, Esq.
Attorney for the Defendant
Harvard Law School
1575 Massachusetts Avenue
Cambridge, MA 02138
David M. Goldstein PC
Attorneys for the Defendant
286 N.E. 39th Street
Miami, FL 33137
By: David Michael Goldstein, Esq., Of Counsel
Winston & Strawn, LLP
Attorneys for the Defendant
200 Park Avenue
New York, NY 10166-4193
By: Gerald L. Shargel, Esq., Of Counsel
MEMORANDUM OF
DECISION AND ORDER
14-MC-209 (ADS)
Dershowitz, Eiger & Adelson, PC
Attorneys for the Defendant
220 Fifth Avenue, Suite 300
New York, NY 10001
By: Nathan Z. Dershowitz, Esq.
Victoria B. Eiger, Esq., Of Counsel
Newman Schwartz & Greenberg
Attorneys for the Defendant
950 Third Avenue
New York, NY 10022
By: Richard A. Greenberg, Esq., Of Counsel
SPATT, District Judge.
On February 25, 2014, United States District Judge Joanna Seybert referred to this Court the
issue of whether the Defendant David H. Brooks (the “Defendant”) in the underlying criminal case,
Case Number 06-CR-550 (E.D.N.Y.), waived his right to file a motion for recusal of Judge Seybert
pursuant to 28 U.S.C. §§ 144, 455(a) and 455(b)(1) and the Due Process Clause of the United States
Constitution. For the reasons that follow, the Court finds that the Defendant did waive his right to
move for recusal of Judge Seybert based on the investigation into allegations that the Defendant made
threats against her and others.
I. BACKGROUND
The Defendant was indicted in 2007 and charged with multiple counts of conspiracy; securities
fraud; mail and wire fraud; insider trading obstruction of justice and making material misstatements to
auditors. About three years later, on September 14, 2010, following a jury trial before Judge Seybert,
the Defendant was convicted on fourteen counts of the Superseding Indictment. On August 10, 2011,
the Defendant pled guilty to two counts of tax evasion and one count of conspiracy to defraud the
United States Internal Revenue Service.
The Defendant was not sentenced until August 2013, during a three day proceeding that
occurred between August 7, 2013 and August 15, 2013. Judge Seybert sentenced the Defendant to a
term of imprisonment of 204 months, to be followed by a term of supervised release of five years. The
Defendant was also ordered to pay restitution.
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Relevant here, prior to the Defendant’s sentence, on November 6, 2012, the Government and
the Federal Bureau of Investigations (the “FBI”) were notified about a potential threat allegedly made
by the Defendant against Judge Seybert and against current and former members of both the
prosecution team and the defense team. The Government and the FBI notified the United States
Marshals Service (the “Marshals”) about the possible threat and proceeded to investigate the
allegation. In addition, following protocol, the Marshals advised Judge Seybert of the potential threat.
However, at the time, the Defendant and his attorneys were not informed of the allegation.
On July 17, 2013, the Government notified some of the Defendant’s attorneys about the
allegation that the Defendant had possibly made a threat against Judge Seybert and others. The
Government also notified them about the Government and FBI’s investigation into that allegation,
which apparently spanned approximately eight-months and, of which, as indicated above, the
Defendant and his counsel were not made aware. Also on July 17, 2013, the Defendant’s brother,
Jeffrey Brooks, was allegedly approached by an FBI agent outside the Central Islip courthouse and
asked to participate in an interview regarding the investigation into the alleged threat made by the
Defendant. Further, one of the Defendant’s attorneys, Gerald Shargel, Esq. (“Shargel”), was also
purportedly notified on July 17, 2013, that he was one of the lawyers that had been allegedly
threatened by the Defendant.
On July 18, 2013, the Government filed a letter on the public docket that was addressed to the
Defendant’s attorneys and which stated the following:
The government hereby provides notice that between
approximately November 6, 2012 and July 2013, the United States
Marshals Service (the “Marshals”), Federal Bureau of Investigation
(“FBI”) and this Office investigated allegations that defendant David
Brooks discussed physically harming The Honorable Joanna Seybert,
current and former members of the prosecution team and current and
former members of the defense team.
Judge Seybert was made aware of the alleged threat against her
as part of the Marshals’ standard protocol when law enforcement is made
aware of potential threats. The government does not intend to offer any
evidence concerning the alleged threat in this matter.
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(Gov’t Exh. A.)
In response to the Government’s letter, also on July 18, 2013, the Defendant’s attorneys
submitted a letter directed to Judge Seybert. The letter noted that although the Government had orally
represented to members of the Defendant’s defense team that no credible evidence had been uncovered
in connection to the allegation that the Defendant made any potential threats, the Government had
failed to make any definitive statements in writing. In this regard, the Government apparently believed
that its statement in the July 18, 2013 letter that it “[did] not intend to offer any evidence concerning
the alleged threat in this matter” was sufficient. Accordingly, the Defendant’s counsel sought
clarification from the Court.
Judge Seybert immediately arranged a telephone conference call that same day, July 18, 2013,
to address the concerns raised in the letter submitted by the Defendant’s attorneys. Richard A.
Greenberg, Esq. (“Greenberg”); Tai Park, Esq. (“Park”); and Steven Y. Yurowitz, Esq. (“Yurowitz”),
participated in the telephone conference call on behalf of the Defendant. However, the Defendant was
not present and did not participate in the telephone conference, and his attorneys waived his
appearance for the purposes of the proceeding. The Court notes that at other stages of the criminal
case, the Defendant waived his appearance in writing, but did not do so for the July 18, 2013 telephone
conference.
During the telephone conference, the Government advised Judge Seybert that it would make a
supplemental filing on the public docket confirming that any allegation that the Defendant had made
potential threats was uncorroborated. Judge Seybert then asked Greenberg and Park the following
question: “[S]hould I be expecting any motion to recuse the Court?” (Gov’t Exh. C.) In reply,
Greenberg stated, “I certainly don’t believe so, your honor, now [that] the government has clarified it.
I don’t see why the Court should be affected by a baseless allegation.” (Gov’t Exh. C.) Following
Greenberg’s answer, Judge Seybert confirmed that “the Court has not been affected by the allegations
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that were made. So I put that on the record, and unless I hear to the contrary, I will continue
preparation on this case for sentence August the seventh [of 2013].” (Gov’t Exh. C.)
In addition, with respect to the unsubstantiated allegation that the Defendant had threatened his
attorney Shargel, Judge Seybert directed Greenberg and Park to “let me know as soon as you know
after speaking to [the Defendant] and Mr. Shargel, whether any motion will be forthcoming so that I
can appropriately respond to it.” (Gov’t Exh. C.)
According to records from the Metropolitan Detention Center (“MDC”), where the Defendant
was detained, the Defendant was visited on July 18, 2013 by Eyal Dror, Esq. (“Dror”), who is an
associate at Park’s law firm, and who was a member of the defense team. Further, the next day, July
19, 2013, Park visited the Defendant at the MDC. The Government speculates that when Dror and
Park visited the Defendant on July 18, 2013 and July 19, 2013, respectively, they advised the
Defendant of the investigation into the allegation that the Defendant had made potential threats and
discussed the possibility of filing a recusal motion, which the Defendant ultimately stated that he had
no intention of filing. However, the only evidence before the Court to support the Government’s
speculation as to what may have been communicated between the Defendant and his attorneys is
Greenberg’s letter to Judge Seybert, dated July 19, 2013, discussed in further detail below.
In any event, on the same day as the July 18, 2013 telephone conference, the Government filed
a letter addressed to Greenberg and Park to advise them that “to date, the government has not identified
corroboration of the[ ] allegations [that the defendant threatened physical harm against various people]
and does not credit them.” (Gov’t Exh. D.) The next day, on July 19, 2013, Greenberg, on behalf of
the Defendant, submitted a letter to Judge Seybert by email, stating the following:
Pursuant to the Court’s instruction during the telephonic
proceedings yesterday in the above-entitled matter, Tai Park, Esq., met
and consulted with [the Defendant] at some length today. On the basis
of Mr. Park’s report of his meeting with Mr. Brooks, I can now confirm
for the Court the assumption I made and announced yesterday during the
proceedings: Mr. Brooks has no intention of moving to recuse or
disqualify the Court on the basis of the government’s disclosure
yesterday of an unsubstantiated and uncorroborated allegation of a threat
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of physical injury the government says it “does not credit.” Thank you
for your consideration in this matter.
(Gov’t Exh. F.) However, inexplicably, this letter does not appear to have been filed on the public
docket.
According to the Defendant, he did not receive a copy of the transcript of the July 18, 2013
telephone conference until October of 2013. The Defendant also apparently did not receive a copy of
Greenberg’s July 19, 2013 letter until October of 2013. The Defendant claims that at the time, in July
of 2013, he was not fully informed about the recusal issue nor given full disclosure. In addition, to
date, neither the Defendant nor his attorneys have ever received the materials connected to the eightmonth investigation into the allegation that the Defendant made potential threats.
As stated above, the Defendant was sentenced in August of 2013. Two months later, in
October of 2013, the Defendant’s present counsel became aware of the potential recusal issue. They
claim to not have been made aware of the issue prior to October of 2013, despite the fact that both of
the Government’s July 18, 2013 letters pertaining to this issue appear on the docket. Nevertheless,
allegedly, the Defendant’s current attorneys did not receive notifications when these letters by the
Government were filed due to a technical glitch in the Electronic Case Filing System.
Eventually, the Defendant filed a motion to compel the Government to produce materials
related to the threat investigation, as well as a motion to recuse Judge Seybert. With respect to the
latter motion, on February 25, 2014, Judge Seybert signed a Referral Order, which referred to this
Court the following issue:
Brooks’ motion to recuse the Undersigned is hereby REFERRED to
District Judge Arthur D. Spatt for DECISION only with respect to the
issue of whether Brooks waived his rights to file a motion for recusal of
the Undersigned pursuant to 28 U.S.C. §§ 144, 455(a), 445(b)(1) and the
Due Process Clause of the United States Constitution. The Undersigned
will decide the remaining issues related to Brooks’ recusal motion in due
course.
United States v. Brooks, 14-MC-209 (ADS), Dkt. No. 1. So that this narrow issue is the only one
before this Court.
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II. DISCUSSION
A. Legal Standard
The law requires that “any justice, judge, or magistrate judge of the United States shall
disqualify himself in any proceeding which his impartiality might reasonably be questioned.” 28
U.S.C. § 455(a). In this regard, “a judge must recuse himself under 28 U.S.C. § 455(a)” if “‘a
reasonable person, knowing all of the facts, [would] conclude that the trial judge’s impartiality could
reasonably be questioned.’” United States v. Barreras, 494 F. App’x 115, 118 (2d Cir. 2012) (quoting
United States v. Bayless, 201 F.3d 116, 126 (2d Cir. 2000)) (brackets in original). Generally,
recusal motions are committed to the discretion of the judge who is being
asked to disqualify himself, who is enjoined to “weigh the policy of
promoting public confidence in the judiciary against the possibility that
those questioning his impartiality might be seeking to avoid the adverse
consequences of his presiding over their case. Litigants are entitled to an
unbiased judge, not to a judge of their choosing.”
United States v. Anson, 04-CR-6180 CJS, 2007 WL 119151, at *6 (W.D.N.Y. Jan. 10, 2007) (quoting
In re Drexel Burnham Lambert, Inc., 861 F.2d 1307, 1312 (2d Cir. 1988), cert. denied sub nom.
Milken v. S.E.C., 490 U.S. 1102, 109 S. Ct. 2458, 104 L. Ed. 2d 1012 (1989)).
When circumstances giving rise to grounds for disqualification under 28 U.S.C. § 455(a) are
present, a party’s “waiver may be accepted provided it is preceded by a full disclosure on the record of
the basis for disqualification.” 28 U.S.C. § 455(e). In addition, a recusal motion brought pursuant to
28 U.S.C. § 455(a) must be “timely” in that “one seeking disqualification must do so ‘at the earliest
possible moment after obtaining knowledge of facts demonstrating the basis for such a claim’ of
disqualification.” Anson, 2007 WL 119151, at *7 (quoting Gil Enters., Inc. v. Delvy, 79 F.3d 241, 247
(2d Cir. 1996). “Untimeliness,” defined by the Second Circuit as “a failure to seek recusal when it
should first have been sought, . . . can sometimes constitute the basis for finding an implied waiver.”
Bayless, 201 F.3d at 127.
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“It bears noting . . . that a defendant can waive certain rights through the actions of his
attorneys, even if the defendant himself was unaware of the circumstances and actions giving rise to
the waiver.” United States v. Daugerdas, 867 F. Supp. 2d 445, 476–77 (S.D.N.Y. 2012) (citing
Gonzalez v. United States, 553 U.S. 242, 248, 128 S. Ct. 1765, 170 L. Ed. 2d 616 (2008) (“As to many
decisions pertaining to the conduct of the trial, the defendant is deemed bound by the acts of his
lawyer-agent and is considered to have notice of all facts, notice of which can be charged upon the
attorney.”)). In this regard, “courts[ ] disfavor [ ] litigants who fail to act on information in their
possession only to claim later that such information resulted in a violation of their rights.” Id. at 477–
78 (collecting cases).
B. As to Whether the Defendant Waived His Rights to File a Motion for Recusal
The only issue before the Court is whether the Defendant waived his rights to file a motion for
recusal. In reviewing this issue, the Court is presented with a case where the Defendant’s attorneys
expressly represented both on the record and in a later filing with the Court that the Defendant would
not be pursuing a motion to disqualify Judge Seybert. Given these facts, the Court concludes that the
Defendant did in fact waive his right to file a motion for recusal based on the investigation into the
alleged threats made by the Defendant.
Many courts have upheld a waiver by an attorney of his client’s right to move for recusal. For
example, in the recent decision in United States v. Brunsman, 1:11-CR-014, 2014 WL 309001 (S.D.
Ohio Jan. 27, 2014), the court held that “[t]he asserted disqualification under 28 U.S.C. § 455(a) is
waivable after full disclosure of the facts and [the] [d]efendant’s position that such a waiver must be
made by the client and cannot be made by counsel is not supported by authority. And there is no
question that Defendant’s counsel . . . entered such a waiver on the record.” Id. at *1.
Similarly, in another recent case, United States v. Mix, CRIM. 12-171, 2014 WL 580758 (E.D.
La. Feb. 13, 2014), the Court upheld a criminal defendant’s § 455(e) waiver, which had been made by
his counsel. In Mix, the defendant was a former drilling engineer for BP, PLC (“BP”) who had been
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convicted of destroying electronic text messages that “allegedly concerned the flow rates estimated at
the time of a failed effort to contain the flow of oil from the Macondo well into the Gulf of Mexico as a
result of the Deepwater Horizon drilling rig explosion.” Id. at *1. The defendant brought a motion for
recusal upon learning the judge assigned to the case, United States District Judge Stanwood R. Duval
Jr., had joined a civil action against BP related to damage caused to his Grand Isle beach house
property by the oil spill.
However, prior to the defendant bringing his motion, Judge Duval had held a telephone
conference with the parties during which he informed them that (1) his beach house had allegedly
suffered damage due to the oil spill; (2) although he had not yet, he could make a claim with the BP
claim process; and (3) “he had neither a direct interest in the subject matter of this criminal proceeding,
nor did he believe that his impartiality with respect to the defendant might be reasonably questioned as
prohibited by 28 U.S.C. § 455(a).” Id. at *7. In response to this disclosure by Judge Duval, one of the
attorneys for the defendant advised that he did not believe any of the abovementioned facts required
Judge Duval’s recusal. Further, after being granted an additional week to further investigate the Judge
Duval’s disclosures, the defendant’s counsel submitted a letter on behalf of their client, which stated
“Mr. Mix hereby waives those potential grounds and has no objection to Judge Duval continuing to
preside over this matter.” Id. at *8.
Accordingly, in denying the defendant’s motion for recusal, the Mix court excplained:
Counsel for Mr. Mix stated unequivocally during the conference
that based on the facts disclosed by the Undersigned, none of those facts
involved the allegations in the indictment against Mr. Mix and counsel
indicated that he did not find any of the disclosures presented by the
Court to require a recusal. Then, counsel for Mr. Mix had one solid week
to research and analyze the disqualification issue. The Court reiterates
that the two law firms which fielded at least three lawyers who
represented Mr. Mix and participated in this conference had sufficient to
examine the record in the [civil oil-spill lawsuit against BP that Judge
Duval eventually joined]. Counsel for Mr. Mix are not an uneducated,
uninformed pro se plaintiffs; counsel knew or should have known that
the alleged “willful and reckless misdeeds” of BP would be implicated in
pursuing any claim that the Undersigned might make for damages to his
property in Grand Isle. Nonetheless, Joan McPhee [one of the
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defendant’s lawyers] sent a signed letter to the Clerk of Court for the
Eastern District of Louisiana that stated that based on the “possible
grounds for disqualification disclosed by the Court. Mr. Mix hereby
waives those potential grounds and has no objection to Judge Duval
continuing to preside over this matter.” These facts unequivocally
demonstrate that there was a full disclosure on the record of the basis for
disqualification and Joan McPhee on behalf of her client Kurt Mix
waived these alleged grounds for disqualification.
Id. at *10 (citation omitted).
The Court is persuaded by the reasoning found in the Brunsman and Mix decisions. Here, the
defendant was represented by a team of attorneys who received full disclosure as to the fact that the
defendant had been investigated for allegedly making threats against Judge Seybert and others and that
those claims had not been corroborated by any evidence. Although the Defendant now argues that he
and his attorneys never received full disclosure because the Government has not provided them with
further details about the investigation, the Court, having reviewed the record, is satisfied that the
information made available to the Defendant’s lawyers during the telephone conference was sufficient
to constitute full disclosure.
The letter filed by the Government prior to the telephone conference alerted counsel for the
Defendant that from November of 2012 to July of 2013, there had been an investigation conducted by
the Marshals, the FBI and the Government into allegations that the Defendant had threatened Judge
Seybert and others. At the telephone conference, the parties discussed this letter and that the
allegations were unsubstantiated. Moreover, on the record, Judge Seybert clearly advised that the “the
Court has not been affected by the allegations that were made.” (Gov’t Exh. C.) In this context, the
attorneys for the Defendant explicitly waived the Defendant’s right to move for recusal first on the
record and then in a letter filed with the Court. Indeed, the letter unequivocally stated that “Mr.
Brooks has no intention of moving to recuse or disqualify the Court on the basis of the government’s
disclosure yesterday of an unsubstantiated and uncorroborated allegation of a threat of physical injury
the government says it ‘does not credit.’” (Gov’t Exh. F.) Therefore, in the Court’s view, the
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Defendant’s counsel, on behalf of their client, waived the threat investigation as a potential grounds for
disqualification Judge Seybert in the underlying criminal matter.
The Court notes that “[m]ore than one court has recognized the sensible principle that ‘a
defendant cannot take his chances with a judge and then, if he thinks that the sentence is too severe,
secure a disqualification and a hearing before another judge.’” United States v. Barrett, 111 F.3d 947,
951 (D.C. Cir. 1997) (quoting United States v. Owens, 902 F.2d 1154, 1156 (4th Cir. 1990)) (internal
bracket omitted). This principle is particularly applicable here, where the Defendant, through his
attorneys, (1) was clearly made aware of a possible ground for disqualification of Judge Seybert;
(2) expressly waived his right to move for recusal on those grounds and decided to proceed with the
sentencing; and (3) three months after sentencing, asks the court revisit the same grounds that had been
expressly waived.
In conclusion, the Court finds that the Defendant waived his right to move for Judge Seybert’s
recusal based on the investigation into the allegations that the Defendant made threats against Judge
Seybert and others.
III. CONCLUSION
For the foregoing, it is hereby
ORDERED, that pursuant to 28 U.S.C. §§ 455(a) and 455(e), the Defendant, through his
counsel, waived his right to move for Judge Seybert’s recusal based on the investigation into the
unproven allegations that the Defendant made threats against Judge Seybert and others.
SO ORDERED.
Dated: Central Islip, New York
June 19, 2014
____/s/ Arthur D. Spatt_____
ARTHUR D. SPATT
United States District Judge
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