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United States v. Foley

United States District Court, D. Connecticut

January 13, 2020

AMBER FOLEY Defendant.



         Before the Court is Defendant Amber Foley's motion to disqualify the undersigned from presiding over this case pursuant to 28 U.S.C. § 455(a), Federal Rule Criminal Procedure 11(c)(1), the Sixth, and Fourteenth Amendments to the United States Constitution, as supplemented. [Dkt. 128, 136 (Mot. to Disqualify)]. The Government joined the motion. [Dkt. 137]. The Defendant also moved for a dismissal of charges, which the Government did not join. [Dkt. 137]. For reasons set forth below, the Court DENIES the Defendant's motion for disqualification and for the dismissal of charges.


         Ms. Foley stands before the Court charged by indictment with one count of distribution of child pornography in violation of 18 U.S.C. § 2252 A(a)(2) and one count of production of child pornography in violation of 18 U.S.C. § 2251(a). [Dkt. 74]. Ms. Foley was originally charged by complaint with the lesser offense of distribution of child pornography, at which time she stipulated to probable cause in a hearing before Magistrate Judge Donna F. Martinez. [Dkt. 12 (Pre-trial detention hearing and probable cause hearing, 01/19/2018 at 11:57-35-12:00:43)]. Later, the Government secured an indictment charging Ms. Foley with the additional offense of production of child pornography. [Dkt. 74]. The later more serious offense, production of child pornography, carries a higher mandatory minimum sentence and higher statutory maximum sentence than distribution of child pornography. [Id. at 11:07:02-11:07:53].[1] The sentence for each offense can be imposed consecutively. Ms. Foley pled not guilty to both charges before Magistrate Judge Robert A. Richardson. [Dkt. 85].

         The Government extended a plea offer, and after Ms. Foley rejected the offer, the Government moved the Court to order a Frye hearing. [Dkt. 99]. This Court granted the motion and referred the matter to Magistrate Judge Richardson. [Dkt. 101]. During the July 12, 2019 Frye hearing before Judge Richardson, Ms. Foley stated that she understood the Government's plea offer and the consequences of either accepting or rejecting the offer and the facts supporting it. [Frye hearing at 11:12:07-11:13:17, 11:20:00-11:20:38].

         At the Frye hearing, Ms. Foley's attorney, Mr. Bussert, correctly advised Mr. Foley that the Court could impose consecutive sentences, totaling 50 years' incarceration. [Id. at 11:15:00-11:15:40]. The Government stated that they would seek approval to re-offer the initial plea if Ms. Foley indicated that she would accept the initial offer to plead guilty to the lesser offense of distribution of child pornography by July 18, 2019. [Id. at 11:11:26-11:12:03].

         With the consent of defense counsel, the Government was permitted to briefly proffer the evidence that the Government would introduce at trial in its case in chief for Ms. Foley's consideration. [Id., 11:21:31-11:22:52]. That evidence included written statements purportedly made to law enforcement by Ms. Foley, images and text messages purportedly created by Ms. Foley, and cooperating witness testimony. Ibid. Ms. Foley did not decide whether to accept the Government's proposal at the Frye hearing. [Id. 11:24:40-11:25:28].

         About three months later, the parties informed the Court that they intended to proceed with trial. [10/01/2019, email from Bussert to Courtroom Deputy Shafer]. The Joint Trial Memorandum (the “JTM”) was filed on October 15, 2019. [Dkt. 111]. Included among the evidence the Government intended to offer were the statements, text messages and images to which the Government referred at the Frye hearing. There were no motions to suppress or in limine on the docket.

         Shortly after that, Magistrate Judge Robert M. Spector held bond compliance hearings on October 25, 2019 and October 28, 2019, respectively, to consider whether Ms. Foley was compliant with the conditions of pretrial release. [Dkt. 117]; [Dkt. 119-120]. The hearings arose because residents of the Virginia Wells Transitional House, where Ms. Foley was residing under supervision, filed a grievance, claiming that Ms. Foley threatened them. [Dkt. 115 (Gov. Resp. to Pet. for Action) at 7-8]; [Dkt. 116 (Def. Opp.) 3-4].[2] During the October 28, 2019 hearing, U.S. Senior Probation Officer Nicole Owens (“Officer Owens”) expressed concern about Ms. Foley's behavior, mental health, and mental health treatment while residing at the Virginia Wells Transitional House. [Bond violation hearing, 15:14:56-15:15:18:20, 15:29:20-15:31:28, 15:32:40-15:33:00]. Magistrate Judge Spector then ordered the U.S. Probation Office to intensify its supervision of Ms. Foley by checking in with the staff at the Virginia Wells Transitional House “twice each week to update Defendant's status and progress at the home” and compliance with the conditions of pretrial detention. [Dkt. 119]. The record expressly addressed concerns about the continuity of Ms. Foley's mental health treatment. [Dkt. 15:44:20-15:45:00, 15:47:00-15:49:06].

         After reviewing the docket, the JTM, and the record at the second bond revocation hearing, the Court became concerned about the possibility that Ms. Foley may not be competent to stand trial. Prior to the scheduled start of jury selection on November 19, 2019, the Court had not personally observed the Defendant, since pretrial matters were previously handled by three magistrate judges.

         Upon learning of Ms. Foley's pretrial adjustment issues the court had concerns about Ms. Foley's competency. Given the discontinuity, the Court sought guidance from supervising probation officer, Senior Probation Officer Owens, by telephone on November 4, 2019. Specifically, the Court asked (1) if Officer Owens had concerns about Ms. Foley's mental competency to stand trial based on her own observations, and (2) whether her clinicians expressed any concern about her competency. See [Ex. A. (10/30/2019 Diamond scheduling email to Owens)].[3]Officer Owens reported that she was not yet familiar with Ms. Foley because the officer assigned her case retired and the case was reassigned to Officer Owens recently. Officer Owens also reported she had not yet received Ms. Foley's mental health treatment records. Officer Owens was directed to gather additional information from Ms. Foley's clinicians, evaluate this information with respect to Ms. Foley's competency, and report her observations and assessment to the Court.

         Law Clerk, Attorney Matthew Diamond, followed up with Officer Owens by email on November 12, 2019. [Ex. A (11/12/2019, Diamond email to Owens)] Specifically, Mr. Diamond inquired about whether Officer Owens had the opportunity to obtain information from Ms. Foley's clinicians. Ibid. The Court understood that this information was previously requested by Officer Owens but delays resulting from personnel matters at the Virginia Wells Transitional House or at the mental health services organization impaired her ability to access it or consult the appropriate resource.

         In response to Mr. Diamond's email requesting a status update on Officer Owens's review, she sent a detailed email to Mr. Diamond addressing information about Ms. Foley's current mental health status which pertained to her competency. [Ex. A (11/13/2019, Owens email to Diamond)]. Supervisory U.S. Probation Officer Michael Rafferty (“Officer Rafferty”) also attended Officer Owens's meeting with Ms. Foley. Ibid. Officer Owens's email reflects that she inquired about whether Ms. Foley understood the severity of the pending charges and the potential outcome of trial, not her position on any plea offer. Ibid.

         One paragraph of the email discusses Ms. Foley's spontaneous unsolicited comments about the plea offers. Ibid. It also addresses discussion between Ms. Foley and Officers Owens and Rafferty about how a potentially adverse outcome would affect her familial relationships. Ibid. The email primarily discusses inconsistency in Ms. Foley's mental health treatment and Officer Owens's personal observations of Ms. Foley's behavior. Ibid. The email chain, which is attached as an exhibit to this opinion, was made available to defense counsel and the Government at the November 19, 2019 hearing.

         Officer Owens also called Mr. Diamond on November 15, 2019 at approximately 2:00 P.M. to confirm his receipt of her November 13th email and to inquire about whether the Court required any additional information or had any questions about Ms. Owens's report. During their call, Mr. Diamond confirmed that Officer Owens was not concerned about Ms. Foley's competency to stand trial. The Court directed Mr. Diamond to instruct Officer Owens to inform defense counsel of Ms. Foley's unsolicited comments about the plea offers. See [Ex. A, 11/18/2019, Diamond email to Owens].

         In response, Mr. Bussert alerted the Government to his call with Officer Owens. [Dkt. 128 at 8]. Mr. Bussert represents that Officer Michael Rafferty then called Mr. Bussert and stated that the purpose of the meeting with Ms. Foley was to discuss housing, community support and counseling services. Ibid. Mr. Bussert represents that he repeated what Officer Owens had relayed to him to Officer Rafferty. Ibid. Mr. Bussert represents that Officer Rafferty confirmed that defense counsel “seemed to have a solid idea of what we discussed.” Ibid. Mr. Bussert further represents that Officer Rafferty then “made clear that the Probation Office did not sua sponte initiate the plea-related discussion, ” to which Mr. Bussert stated that he “made it equally clear that [he] had no reason to believe that it did.” Ibid. Mr. Bussert then informed the Government of his call with Officer Rafferty. Ibid.

         On November 19, 2019, the Court granted a continuance until November 25, 2019, provided the parties with copies of Exhibit A, and explained why the Court's requested that Officer Owens assess Ms. Foley's competency. [Dkt. 130] After reviewing this information, Defendant requested that the Court proceed with ruling on the Motion to Disqualify. Id.

         Defendant seeks disqualification, claiming the Court's request that Probation speak with Ms. Foley reflects its assumption that Ms. Foley is guilty and because the Court violated Rule 11 of the Federal Rules of Criminal Procedure and reflects the Court's prejudgment of the case.

         Defendant argues that the Court directed Officer Owens to contact Ms. Foley for the purposes of “plea-related discussions, ” violating Fed. R. Crim. P. 11(c)(1)'s “bright line rule” against the Court's participation in plea negotiations and therefore warrants disqualification. [Dkt. 128 at 11-16]. Defendant's supplemental briefing expounds further on Fed. R. Crim. P. 11(c)(1) and claims that this issue irreparably damaged the attorney-client relationship, requiring dismissal of the charges. [Dkt. 136 at 14-16].

         Ms. Foley has not moved, or otherwise expressed a desire, for new counsel to be appointed.

         Legal Standards

         I. Standard for Disqualification

         Defendant moves for disqualification pursuant to 28 U.S.C. § 455(a), which states “[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” (emphasis added)

         “By its own terms, section 455 does not provide relief to a party seeking to cause a court to recuse itself from a case; rather, it acts as a self-governing directive for the district court.” United States v. Trudeau, No. 10-CR-234 (JCH), 2016 WL 591754, at *3 (D. Conn. Feb. 11, 2016). Section 455 itself is “wholly silent about procedure.” United States v. Int'l Bus. Machines Corp., 475 F.Supp. 1372, 1377 (S.D.N.Y. 1979), aff'd sub nom. In re Int'l Bus. Machines Corp., 618 F.2d 923 (2d Cir. 1980).

         The First Circuit stated generally that “[a]lthough a trial judge faced with a § 455(a) disqualification motion may, in her discretion, leave the motion to a different judge, no reported case or accepted principle of law compels her to do so….” In re United States, 158 F.3d 26, 34 (1st Cir. 1998) (citations omitted). Accord United States v. Heldt, 668 F.2d 1238, 1271 (D.C. Cir. 1981); see also Azam v. Brown, 714 Fed.Appx. 663, 665 (9th Cir. 2017) (“It was not error for a different district judge to adjudicate the disqualification motion because 28 U.S.C. § 455 does not preclude independent review by another district judge”). By comparison, the Seventh Circuit held that “Section 455 clearly contemplates that decisions with respect to disqualification should be made by the judge sitting in the case, and not by another judge.” Schurz Commc'ns, Inc. v. F.C.C., 982 F.2d 1057, 1059 (7th Cir. 1992).

         The decision whether to grant or deny a recusal motion is a matter confided to the district court's discretion. Apple v. Jewish Hosp. & Med. Ctr., 829 F.2d 326, 333 (2d Cir. 1987). District court judges within this District and the Second Circuit routinely rule upon motions for recusal under § 455(a), including in criminal matters. See Trudeau, No. 10-CR-234 (JCH), 2016 WL 591754, at *3 (D. Conn. Feb. 11, 2016); United States v. Baadhio, No. 3:08-CR-14 (VLB), 2011 WL 13195948, at *2 (D. Conn. Oct. 27, 2011); United States v. Jones, No. 3:99CR264(AHN), 2002 WL 32086511, at *3 (D. Conn. Aug. 16, 2002); United States v. Barth, No. CRIM. N-90-5 (AHN), 1996 WL 684396, at *1 (D. Conn. Oct. 10, 1996).

         The statutory standard requires that a judge recuse herself whenever her “impartiality might reasonably be question, ” 28 U.S.C. § 455(a), “is commonly limited to those circumstances in which the alleged partiality “stem[s] from an extrajudicial source.” United States v. Carlton, 534 F.3d 97, 100 (2d Cir. 2008) (citing Liteky v. United States, 510 U.S. 540, 544 (1994)). The reason being that an extrajudicial source could result “…in an opinion on the merits on some basis other than what the judge learned from his participation in the case.” United States v. Grinnell Corp., 384 U.S. 563, 583 (1966).

         The test employed to determine whether recusal is required is an objective one. See In re Basciano, 542 F.3d 950, 956 (2d Cir. 2008), cert. denied, 129 S.Ct. 1401 (2009). The existence of the appearance of impropriety is determined “not by considering what a straw poll of the only partly informed man-in-the-street would show[, ] but by examining the record facts and the law, and then deciding whether a reasonable person knowing and understanding all the relevant facts would recuse the judge.” In re Drexel Burnham Lambert Inc., 861 F.2d 1307, 1313 (2d Cir. 1988). “The sensitive question of whether ...

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