United States District Court, D. Connecticut
MEMORANDUM OF DECISION DENYING DEFENDANTS MOTION TO
DISQUALITY [DKT. 128]
VANESSA L. BRYANT UNITED STATES DISTRICT JUDGE
the Court is Defendant Amber Foley's motion to disqualify
the undersigned from presiding over this case pursuant to 28
U.S.C. Â§ 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.
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]. The sentence for each offense can be
imposed consecutively. Ms. Foley pled not guilty to both
charges before Magistrate Judge Robert A. Richardson. [Dkt.
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
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
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].
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.
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]. 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,
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.
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)].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.
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.
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
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.
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].
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.
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.
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.
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].
Foley has not moved, or otherwise expressed a desire, for new
counsel to be appointed.
Standard for Disqualification
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)
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).
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).
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).
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).
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 ...