Case: 13-50514 07/10/2014 ID: 9164818 DktEntry: 13-1 Page: 1 of 30 (1 of 538) IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellant, v. ANTUAN DUANE DUNLAP AKA “Rat Tone,” Defendant-Appellee. UNITED STATES OF AMERICA, Plaintiff-Appellant, v. JOSEPH CORNELL WHITFIELD, Defendant-Appellee. UNITED STATES OF AMERICA, Plaintiff-Appellant, v. CEDRIC MARQUET HUDSON AKA “T-Bone,” Defendant-Appellant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) C.A. Nos. 14-50129, 14-50297 D.C. No. CR 13-126-ODW-3 (Central Dist. Cal.) GOVERNMENT’S MOTION FOR REASSIGNMENT OF DISTRICT COURT JUDGE C.A. Nos. 14-50285, 14-50296 D.C. No. CR 13-126-ODW-2 (Central Dist. Cal.) C.A. No. 13-50514 D.C. No. CR 13-126-ODW-1 (Central Dist. Cal.) Case: 13-50514 07/10/2014 ID: 9164818 DktEntry: 13-1 Page: 2 of 30 Plaintiff-Appellant United States of America, by and through its counsel of record and with the authorization of the United States Solicitor General, hereby respectfully and reluctantly asks this Court to reassign this case in the district court from the Honorable Otis D. Wright, United States District Court Judge. As explained in the following Memorandum of Points and Authorities, the government does not request this extraordinary remedy lightly, and does so only because it believes that reassignment is the only manner in which fairness, and the perception of fairness, can be maintained in this matter. DATED: July 10, 2014 Respectfully submitted, ANDRÉ BIROTTE JR. United States Attorney ROBERT E. DUGDALE Assistant United States Attorney Chief, Criminal Division /s/ Jean-Claude André JEAN-CLAUDE ANDRÉ Assistant United States Attorney Chief, Criminal Appeals MARK R. YOHALEM Assistant United States Attorney Deputy Chief, Criminal Appeals Attorneys for Plaintiff-Appellant UNITED STATES OF AMERICA ii (2 of 538) Case: 13-50514 07/10/2014 ID: 9164818 DktEntry: 13-1 Page: 3 of 30 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION A federal judge may not preside over a case “in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). This Court will “remand to a different district judge if a party can show personal biases or unusual circumstances” that call into question the impartiality, or appearance of impartiality, of the judge. United States v. Kyle, 734 F.3d 956, 967 (9th Cir. 2013). Specifically, the Court asks: (1) “whether on remand the district judge can be expected to follow [this Court’s] dictates,” id., or instead “would reasonably be expected upon remand to have substantial difficulty in putting out of his or her mind previously-expressed views or findings,” United States v. Arnett, 628 F.2d 1162, 1165 (9th Cir. 1979); and (2) “whether reassignment is advisable to preserve the appearance of justice,” id., and “of impartiality,” such as when “the district judge . . . may be viewed as having assumed the role of advocate,” Boyde v. Brown, 421 F.3d 1154, 1155 (9th Cir. 2005). “[A] finding of either factor supports remand to a different district court judge,” United States v. Atondo-Santos, 385 F.3d 1199, 1201 (9th Cir. 2004), though the Court also considers “whether reassignment would entail waste,” Arnett, 628 F.2d at 1165. While these standards are broad, the government invokes them only in the rarest case and with the utmost reluctance. The government respectfully submits that reassignment to a different judge is required in this case to ensure impartiality and the appearance of (3 of 538) Case: 13-50514 07/10/2014 ID: 9164818 DktEntry: 13-1 Page: 4 of 30 impartiality. The case’s procedural history reveals that the district court has been unable to follow this Court’s dictates and unable to put out of its mind its prior rulings, and that it has assumed the role of an advocate and has made statements that create the appearance of partiality. Moreover, because there has been neither a trial nor significant evidentiary development, there would be little waste entailed in reassignment. Not reassigning this case, however, risks considerable waste, as has been demonstrated by this Court’s need to issue multiple emergency stays already. The government seeks reassignment in conjunction with its appeals of the district court’s release orders—rather than with its merits appeals of the dismissal orders—because there are ongoing proceedings in district court regarding defendant Cedric Marquet Hudson,1 and may be additional proceedings following this Court’s disposition of the bail appeals. Fairness and the appearance of impartiality require reassignment now. II. FACTS AND PROCEDURAL HISTORY A. The Defendants The defendants are hardened, recidivist felons with gang ties and a history of rape, gun- and drug-related crimes, robbery, and other violence. 1 Because of Hudson’s interest in the reassignment motion, the government has also filed it in his appeal. 2 (4 of 538) Case: 13-50514 07/10/2014 ID: 9164818 DktEntry: 13-1 Page: 5 of 30 Cedric Marquet Hudson is a rapist, a violent career criminal, a drug dealer, and a gang member. At age 13, Hudson—already a gang member— was caught with a concealed, loaded firearm. (HPSR ¶¶ 42, 75.2) A year later, he was found to have raped with force, burgled, and assaulted to commit rape. (Id. ¶ 43.) Prior to this, Hudson had been repeatedly arrested for sexually assaulting children, as well as for robbery, assault with a deadly weapon, and other offenses. (Id. ¶ 69.) In 2005, having left juvenile detention, Hudson was convicted of evading arrest and possessing marijuana while driving. (Id. ¶ 44.) A year later, he was convicted of a variety of gun crimes, including possessing a concealed weapon in connection with a street gang. (Id. ¶ 47.) In 2009, he was convicted of dealing crack. (Id. ¶ 51.) Having served his sentence, he was convicted of the same crime again in 2012. (Id. at ¶ 58.) He was also repeatedly arrested for drug and gun offenses. (Id. ¶ 70.) While on probation for his most recent crack dealing conviction and on parole for another offense, 2 “CR” refers to the Clerk’s Record in the district court; it is followed by the relevant docket entry. “GEX” refers to the government’s exhibits, filed with this motion; it is followed by the relevant page(s). “HPSR” refers to Hudson’s Presentence Investigation Report (“PSR”) and “WPSR” refers to Whitfield’s PSR, both filed under seal; they are followed by the relevant paragraph(s). “DPTSR” refers to a compendium of Dunlap’s Pretrial Services Reports, previously filed under seal; it is followed by the relevant consecutively numbered page(s). 3 (5 of 538) Case: 13-50514 07/10/2014 ID: 9164818 DktEntry: 13-1 Page: 6 of 30 he committed the instant offense. (Id. at ¶ 63.) Despite this history, the district court would describe Hudson as a “penny-ante crook.” (GEX 88.) Joseph Cornell Whitfield, like Hudson, is a sex criminal, a violent career criminal, a drug dealer, and a gang member. (WPSR ¶ 60.) In 2004, Whitfield raped a 15-year-old girl.3 (Id. ¶ 45.) Pursuant to a plea deal, Whitfield was convicted of “attempted” rape, and given only probation. (Id.) The district court would later dismiss this crime as “remote in time” and therefore not establishing “that he poses a danger to the community.” (GEX 480.) While serving the probationary sentence he received for that rape, Whitfield was convicted of being a felon in possession of a firearm. (WPSR ¶ 46.) He received a 32-month sentence. (Id.) Immediately upon release, in 2009, he was convicted of selling crack, and received a four-year sentence. (Id. ¶ 47.) On release, he was promptly convicted of obstruction of justice for, among other things, fleeing his parole officers when they came “to take [him] into custody for a violation of his parole.” (Id. ¶ 48.) He was also convicted of failing to register as a sex offender and making a false statement to a police 3 He “overpowered her,” stripped her, and “forced her legs above her head and above the defendant’s head onto his shoulder area.” (WPSR ¶ 45.) When his brother entered the room, Whitfield shooed him away, “then raped her by placing his penis inside of her vagina and forc[ing] sex.” (Id.) 4 (6 of 538) Case: 13-50514 07/10/2014 ID: 9164818 DktEntry: 13-1 Page: 7 of 30 officer. (Id. ¶ 52.) He committed the current offense while on parole. (Id. ¶ 50.) Nonetheless, according to the district court, Whitfield “do[es] not pose a risk to society” and “certainly” does not “pose a flight risk.” (GEX 480.) Like his co-conspirators, Antuan Duane Dunlap is a long-time criminal and gang member with a history of violent crimes. Because no PSR has yet been prepared for him, less is known about his criminal history. As a juvenile, he was convicted of tagging, grand theft, robbery, and brandishing a replica firearm. (DPTSR 7.) As an adult, he was convicted of contempt of court (twice), robbery, assault with a firearm, failure to appear, and presenting false identification to police officers. (Id. 8-9.) He also was arrested for robbery, being a felon in possession (repeatedly), reckless driving (repeatedly), presenting false identification, and buying drugs. (Id. 9-10.) He is “a member of a criminal street gang,” going by the moniker “Lilshooter.” (Id. 10.) Like the others, he committed this offense while on probation. (Id. 12.) B. The Conspiracy to Violently Rob a Cocaine Stash House This investigation began when Hudson contacted a paid ATF informant and asked whether he knew of any opportunities to commit a robbery. (GEX 6.) The informant, who knew Hudson to be a member of a violent street gang (GEX 7), arranged a series of meetings between Hudson, Hudson’s “wrecking crew” (Whitfield and Dunlap), and an undercover ATF agent posing as a drug 5 (7 of 538) Case: 13-50514 07/10/2014 ID: 9164818 DktEntry: 13-1 Page: 8 of 30 courier. The plan—actually a sting operation—was for Hudson and his crew to rob the stash house to which the “courier” delivered drugs. (Id.) At the first meeting, Hudson and Whitfield confirmed that they had previously engaged in stash-house robberies, as well as other robberies, and had moved large quantities of drugs in the past. (GEX 263-64, 270-72, 275-76, 281.) At the next meeting, they admitted to being on parole, but explained that Hudson’s parole officer was a fellow gang member and Whitfield’s was lazy, and neither would interfere. (GEX 329.) Hudson and Whitfield brought Dunlap to the third meeting, introducing him as “a real jack boy.” (GEX 141.) The “wrecking crew” explained that they would have weapons, would be “going in there with the big guns,” and would shoot people if they had to. (GEX 142-43, 146.) Whitfield boasted of a firearm that “will go through engine block, g[o] through bullet-proof vests and everything.” (GEX 146.) The “courier” again gave them a chance to withdraw, but—starting with Dunlap—the defendants reiterated their desire to carry out the stash-house robbery. (GEX 152.) When the “courier” explained that the stash-house guards were “not like no kind of push-over dudes,” Whitfield interrupted: “That’s why I’m willing to knock some shit down when I get in there.” (GEX 156.) Dunlap then bragged about some of his prior crimes, robbing a Western Union with a taser and a check-cashing store with two guns. (GEX 160-64.) 6 (8 of 538) Case: 13-50514 07/10/2014 ID: 9164818 DktEntry: 13-1 Page: 9 of 30 The day of the planned robbery, the defendants arrived at the meet-up with a loaded shotgun that Whitfield boasted could cut a man in half, a loaded handgun, over 100 rounds of ammunition, disguises, masks and gloves, and other robbery supplies. (GEX 31-35.) ATF agents arrested them. (GEX 33.) As it turned out, both Hudson and Whitfield were wearing electronicmonitoring ankle bracelets pursuant to their parole. (GEX 33-34.) C. Procedural History Following their arrest, the defendants submitted to pre-trial detention. (CR 8, 13, 21.) They were charged with conspiring to commit robbery and to possess drugs with intent to distribute, and with firearm offenses. (CR 24.) Hudson pleaded guilty pursuant to a plea agreement waiving his right to appeal or collaterally attack his conviction except on limited grounds (e.g., ineffective assistance of counsel) (CR 41). A career offender, Hudson faced a mandatory minimum sentence of five years on the gun count and a Guidelines range of 262 to 327 months. (HPSR ¶ ¶ 37-38.) In his sentencing position, he contended that he was a victim of “sentencing entrapment,” criticized stashhouse-robbery sting operations, and asked for a 62-month sentence. (CR 52.) Pursuant to the plea agreement (which also entailed dismissing an additional mandatory-minimum count), the government and the Probation Office recommended a 200-month sentence. (CR 57.) 7 (9 of 538) Case: 13-50514 07/10/2014 ID: 9164818 DktEntry: 13-1 Page: 10 of 30 (10 of 538) At the sentencing hearing, the court initially recognized the importance of following the Guidelines and the mandatory minimum. (GEX 89 (“[Y]es, tentatively, I was going to give a guidelines sentence and tack on the five years that Congress says I have to tack on.”).) It also initially recognized that Hudson was a dangerous recidivist felon whose threat to society could be addressed only by imprisonment. (Id.) Nevertheless, latching onto Hudson’s attacks on stash-house-robbery stings, the court described the offense as not “a real crime” but instead an “irresistible lure” that “bother[ed]” the court— particularly because the court was not “proud” to learn that it had previously imposed longer sentences in stash-house robberies than had some other judges. (GEX 79, 81.) The court described the sting as “unfair” and “ludicrous,” so tempting that Hudson—whom the court now characterized as a mere “pennyante crook”—“literally [could not] refuse it.” (GEX 81, 88.) Ultimately, the court declared that it “ha[d] a problem with us being in [the] business” of “dangl[ing] . . . a [financial] lifeline” in front of Hudson and then punishing him. (GEX 89.) Declaring that it would “seiz[e] [defense counsel’]s idea and then le[t] Pasadena do what it will,” the court imposed a sentence of 12 months on the drug conspiracy and the lowest legal sentence permitted on the gun charge (60 months). (GEX 90, 97.) Despite this lenience and his appeal waiver, Hudson filed a notice of appeal. (CR 70.) 8 Case: 13-50514 07/10/2014 ID: 9164818 DktEntry: 13-1 Page: 11 of 30 (11 of 538) After this Court’s rejected the claim that stash-house-sting operations were outrageous government conduct in United States v. Black, 733 F.3d 294 (9th Cir. 2013), Whitfield pleaded guilty pursuant to a written plea agreement. (CR 78, 79.) With Whitfield’s sentencing pending, Dunlap moved to dismiss the indictment, arguing that the sting was outrageous government conduct. (CR 92.) At the hearing on the motion, the district court immediately criticized the government’s investigation, suggesting—contrary to the record—that “the only reason that Mr. Dunlap is involved in this thing is because when . . . the undercover agent threw out his initial net, he only got a couple of fish, and this entire operation really wasn’t worth just an arrest of two guys, right? So we need to add to this crew, right?” (GEX 186.) Calling the offense a “wholly fictitious scheme” designed “to be large enough so that someone broke can’t say no,” the court declared that the government “ha[d] engineered a crime” by targeting people because “they’re just simply—I don’t know—poor, with distorted moral compasses, bad character, always looking for an easy buck.” (GEX 187-88.) The court charged the government with “throw[ing] in the gun and tack[ing] on another five years, so all for a crime that wasn’t committed, all for this fictitious thing, this raw meat that you dangled in front of someone 9 Case: 13-50514 07/10/2014 ID: 9164818 DktEntry: 13-1 Page: 12 of 30 (12 of 538) who could not resist.” (Id.) The court rhetorically asked whether, if the sting did not “violat[e] a universal sense of justice . . ., what would?” (Id.) The court claimed that the government’s basis for selecting targets was “just simply a matter of are you poor?” and that there was no indication that the defendants (lifelong criminals who had committed multiple prior robberies) had any “predisposition to home invasion robberies”; rather, they were simply “unemployed” and not “very bright.” (GEX 192.) In response to the government’s pointing out that, in fact, the defendants had boasted about carrying out robberies, the court replied that this was just “puffery” equivalent to if the defendants had claimed to have “ripped off Fort Knox.” (GEX 196.) Finally, echoing the dissent in Black, 733 F.3d at 315-16 (Noonan, J., dissenting), the district court stated that this Court had “basically turned its back on [United States v. Bonanno, 852 F.2d 434 (9th Cir. 1988)],” and it asked Dunlap to provide favorable authority. (GEX 215-16.) Defense counsel responded by urging the court to simply disregard the Black majority: “[I]t was only two judges of the Ninth Circuit and one judge didn’t agree. . . . [T]hat’s why I encourage you with respect to this matter to go with the dissent, follow that.” (GEX 216.) The Court agreed: “Oh, I go my own way,” adding: “This is why they have the phrase luck of the draw. It’s everything, isn’t it?” (Id.) The court then directed the parties to submit additional briefing. 10 Case: 13-50514 07/10/2014 ID: 9164818 DktEntry: 13-1 Page: 13 of 30 (13 of 538) After the parties did so, but without further hearing, the court dismissed the indictment as to Dunlap. As the defense counsel had urged, the court began by quoting the Black dissent: “‘Lead us not into temptation,’ Judge Noonan warned. United States v. Black, 733 F.3d 294, 313 (Noonan, J., dissenting). But into temptation the Government has gone, ensnaring chronically unemployed individuals from poverty-ridden areas in its fake drug stash-house robberies.” (GEX 384.) The order repeatedly cited the dissent, and ended by quoting it again, this time for the proposition that the government had become “‘the oppressor of its people.’” (GEX 401, 405, 407.) The order’s tone was extremely hostile, charging that the government had “stoop[ed] to the same level as the defendants it seeks to prosecute . . . solely to achieve a conviction for a made up crime.” (GEX 403.) Similarly harsh criticism ran throughout, including: - accusing the government of “creating crime” rather than “making the country any safer or reducing the actual flow of drugs” (GEX 404); - declaring that the government “manufactured this entire crime” to “prosecute Dunlap for a fake crime it cut from whole cloth” (GEX 396, 403); - claiming that the government engaged in a “fishing expedition” in which it “cast a wide net, trawling for crooks in seedy, poverty-ridden areas— all without an iota of suspicion” (GEX 394); - accusing the government of employing “economic coercion,” “essentially target[ing] people who are poor and have distorted moral 11 Case: 13-50514 07/10/2014 ID: 9164818 DktEntry: 13-1 Page: 14 of 30 (14 of 538) compasses,” “hitting individuals . . . where they are most vulnerable: their depressed economic circumstances,” and “set[ting] the drug amount at a level apparently it knows that no poverty-ridden individual could pass up” (GEX 397-99, 403); - accusing the government of “capriciously select[ing the] amount of drugs” to create a “proverbial Sword of Damocles” that would force the defendants to plead guilty to a “trumped-up conspiracy” (GEX 402); - charging that “[t]he Government comes close to imprisoning people solely because of their thoughts and economic circumstances rather than their criminal actions” and that as a consequence “the nation imprisons people solely because the Government dreams up a too-good-to-turndown robbery and then targets people it knows are eager to make an easy buck” (GEX 404-05); and - declaring that “the Constitution will not tolerate subjecting an individual to prosecution for an imaginary crime subject to a very real punishment— a punishment which rests entirely on ATF agents’ whims” (GEX 407). The court concluded that the government had become the “oppressor of its people” and that “[t]he time has come to remind the Executive Branch that the Constitution charges it with law enforcement—not crime creation.” (Id.) The court dismissed the indictment and ordered Dunlap released forthwith. The government asked the district court to stay Dunlap’s release (CR 114, 116), but the court refused because (1) “the split Black decision is by no means settled law in light of Judge Noonan’s strong dissent”; (2) the court would not “incarcerate Dunlap on the eventuality that the Ninth Circuit might at some unknown point reverse this Court’s decision”; (3) “[h]ad the Court understood that the Government was likely to prevail, it would have 12 Case: 13-50514 07/10/2014 ID: 9164818 DktEntry: 13-1 Page: 15 of 30 (15 of 538) accordingly denied the dismissal motion”; (4) Dunlap was not a flight risk because “the ATF can find him in the starting line-up of the Compton College basketball team where he has recently matriculated”; and (5) the court would “not sanction a ‘lock ‘em up’ approach to criminal justice” under which a defendant was detained simply because he “committed criminal conduct in the past.” (GEX 419-21.) As the government had explained to the district court (CR 137), the claim that Dunlap was a starting basketball player was a lie. (See infra p. 16.) While on release, Dunlap was arrested on other charges, including giving false identification to a police officer. (DPTSR 2.) Whitfield then moved to withdraw his guilty plea, with defense counsel claiming that she had been ineffective for not moving to dismiss the indictment. (CR 123.) The court rejected the motion, explaining that defense counsel could not possibly have foreseen that the court would dismiss the indictment, “particularly in light of the Black decision. What else were you expected to do but conclude that I would somehow uphold the Government’s conduct in this case because there were certain similarities between this case and Black and the Ninth Circuit has weighed in?” (GEX 425.) The court explained that “nine lawyers out of ten—maybe ten lawyers out of ten” would have concluded that the court would follow Black. (GEX 429.) Nevertheless, while it rejected Whitfield’s motion to withdraw on the grounds of ineffective 13 Case: 13-50514 07/10/2014 ID: 9164818 DktEntry: 13-1 Page: 16 of 30 (16 of 538) assistance (CR 136), the court sua sponte ordered the parties to brief whether Whitfield should reap “the benefit of the dismissal” as to Dunlap (GEX 433). After this Court stayed a different district court in a separate stash-houserobbery dismissal, United States v. Flores et al., No. 14-50227 (May 28, 2014), the government renewed its request that the district court stay Dunlap’s dismissal. (CR 152.) The court initially did so (CR 153), but when the government pointed out that staying Dunlap’s dismissal meant that there was no benefit for Whitfield to reap (CR 154), the court immediately vacated the stay (CR 157). Next, the court, again sua sponte, ordered Hudson—who had pleaded guilty, been sentenced, and filed a notice of appeal—to brief whether the court could grant him the same relief it had given Dunlap, and was contemplating giving Whitfield. (GEX 435.) The court proposed a § 2255 motion. (Id.) With no other recourse, the government asked this Court to stay Dunlap’s dismissal and order the district court to issue a bench warrant for his arrest. (C.A. No. 14-50129, Dkt. Entry 3.) The Court granted the stay and ordered the district court to issue a bench warrant and not release Dunlap again without complying with the Bail Reform Act. (GEX 444-45.) That same day, the district court held the Whitfield hearing. The court called the government “cold-blooded and heartless” for seeking the bench warrant as to Dunlap and asserted that issuing the warrant would be 14 Case: 13-50514 07/10/2014 ID: 9164818 DktEntry: 13-1 Page: 17 of 30 (17 of 538) “tantamount to . . . an Eighth Amendment violation.” (GEX 442.) The court acknowledged this Court’s stay order, but declared that it had no effect as to Whitfield either procedurally or substantively: the court refused to “revisit” its prior determination and simply “import[ed]” its stayed Dunlap dismissal into a new order dismissing as to Whitfield as well. (GEX 442, 452-53.) Unbeknownst to the government, Dunlap—advised by his counsel of this Court’s order regarding the bench warrant—went to the Whitfield hearing to surrender himself on that warrant. (C.A. No. 14-50129, Dkt. Entry 16 at 9.) But the district court did not issue the warrant. Instead, in an ex parte conversation with Dunlap, the court “asked him to self-surrender” 48 hours later. (Id.; GEX 459-60, 486; CR 165.) Dunlap, unsurprisingly, “agreed.” (Id.) Three days later, the court held a hearing as to whether Dunlap should be released on bond. Without having informed Whitfield’s counsel, Pretrial Services, or the government, the court ordered that Whitfield be present as well so that he too could be released. (Cf. GEX 436 (setting a hearing for Dunlap at 11:00 a.m.).) The hearing was postponed so that Whitfield’s counsel could be present. (GEX 455 (hearing beginning at 1:34 p.m.).) Because of the court’s sua sponte addition of Whitfield to the hearing: (1) the government was unable to file a written opposition to his release as it had with Dunlap (CR 169); (2) 15 Case: 13-50514 07/10/2014 ID: 9164818 DktEntry: 13-1 Page: 18 of 30 (18 of 538) there was no new Pretrial Services Report prepared for him; and (3) Pretrial Services had no opportunity to interview him or interview the aunt with whom he would supposedly live. (GEX 475.) Pretrial Services again recommended that the defendants be detained. (GEX 459.) At the hearing, the government began by pointing out that Dunlap had never matriculated at Compton Community College and had never played on the basketball team there, let alone started. (GEX 459; see also CR 169.) After further discussion on that point, the district court—which had based its prior release of Dunlap on the theory that “the ATF can find him in the starting lineup of the Compton College basketball team where he has recently matriculated” (CR 138)—cut off the government’s argument that Dunlap had lied about all of that: “I understand. I don’t even care.” (GEX 474.) The court also described the government as just “really upset that he’s not on somebody’s basketball team.” (GEX 472.) The government next noted that, under the Bail Reform Act, the defendants were presumed to be flight risks and dangerous given the charges against them and the 15-year mandatory minimum sentences they faced. (GEX 460.) The district court replied that it would give those presumptions little weight because “[t]he presumption assumes that he is looking at a lot of time, and because he’s looking at a lot of time, there’s a motivation for him to 16 Case: 13-50514 07/10/2014 ID: 9164818 DktEntry: 13-1 Page: 19 of 30 (19 of 538) flee. But I have it on pretty good terms and from a pretty good source [Dunlap] probably isn’t looking at a lot of time.” (GEX 465.) When the point came up again, the court implied that Dunlap might only be looking at probation. (GEX 473 (“If he thinks he’s going to get probation, there’s no motivation to flee.”).) The government argued that Dunlap and Hudson had serious criminal histories (GEX 463-64); the court’s reply was simply: “[T]hese two gentlemen do not pose a risk to society” (GEX 480). In its later written order, the court reasoned that Dunlap’s recorded admissions to prior robberies were “boastful statements” and that his “assault conviction occurred almost six years ago.” (GEX 486.) As for Whitfield, his “attempted-rape conviction is remote in time and does not establish that he poses a danger.” (Id.) The government also argued that they were flight risks. The court then described its ex parte conversation with Dunlap, and explained that Dunlap’s surrender proved he was not a flight risk: [W]hen we were here on a hearing for Mr. [Whitfield], when the Court saw, you know, for the first time the Ninth Circuit’s order which stated, among other things, that we were to issue a warrant for Mr. Dunlap’s arrest, Mr. Dunlap is sitting here. He doesn't have to be here. I don’t even know why he was here. But it doesn’t look like he’s on the run. And I asked Mr. Dunlap to self- 17 Case: 13-50514 07/10/2014 ID: 9164818 DktEntry: 13-1 Page: 20 of 30 (20 of 538) surrender [48 hours later], and looking at the jewelry around his wrists,[4] I say he has done that. I am not concerned. All right? (GEX 460.) The court explained that Dunlap “could have walked out that door and been gone,” and the court praised him for instead self-surrendering. (GEX 461.) In the court’s later written order, it reiterated that Dunlap’s surrendering “as agreed” in the ex parte conversation was grounds for finding him not to be a flight risk. (GEX 486.) The court deemed Whitfield—who had been convicted of fleeing from parole officers when they came to arrest him for a parole violation (WPSR ¶ 48)— not to be a flight risk since he would live with his aunt (GEX 486), a fact Pretrial Services had no chance to verify. Ultimately, the court ordered them released without bond on their own recognizance, albeit subject to electronic monitoring (which Hudson and Whitfield had both been on when they committed the instant offense) and a curfew. (GEX 477.) The government asked for “a brief stay of their release pending an appeal of the Court’s release orders so as to facilitate Ninth Circuit review.” (GEX 480.) Defense counsel raised no objection, but the court responded, “Do what you have to do. The answer’s no.” (Id.) 4 For courtroom safety, the defendants had been shackled and manacled. 18 Case: 13-50514 07/10/2014 ID: 9164818 DktEntry: 13-1 Page: 21 of 30 (21 of 538) The government rushed to seek emergency stays from this Court. (C.A. Nos. 14-50129+, Dkt. Entry 7.) Just before the defendants were released, this Court issued the stays. (GEX 488-89.) When the government moved to extend the stays through the completion of this Court’s review of the district court’s release orders, Dunlap opposed. (Dkt. Entry 16.) In doing so, he noted that “there exists some tension between the government and the District Court. To what effect this apparent conflict has had on the significant procedural history since that date is unclear.” (Id. at 2.) He also revealed more details of his ex parte conversation with the district court, explaining that he had attended the Whitfield hearing, on advice of counsel, to surrender himself pursuant to this Court’s order compelling the district court to issue a bench warrant. (Id. at 9.) “He fully expected to be arrested. Instead he was directed by the Court to self surrender” two days later.5 (Id.) Ultimately, this Court extended the emergency stays, which remain in effect. (GEX 491-95.) District court proceedings have not been stayed as to Hudson, and he has argued that the district court should release him pursuant to 28 U.S.C. § 2255 (CR 197), though he has still not filed a § 2255 motion. 5 Due to a typographical error, the filing suggests that the court ordered him to surrender that day; defense counsel confirmed that this was a typo: the ex parte conversation was on June 16, the agreed-upon surrender on June 18. 19 Case: 13-50514 III. 07/10/2014 ID: 9164818 DktEntry: 13-1 Page: 22 of 30 (22 of 538) ARGUMENT A. The Court’s Difficulty Following this Court’s Dictates and Difficulty Putting Out of Its Mind Previously-Expressed Views At this point, this Court need not speculate whether the district court might have difficulty following this Court’s dictates, Arnett, 628 F.2d at 1165, because the district court’s words and actions provide direct evidence. The court declared it would act how it wanted and “le[t] Pasadena do what it will” (GEX 90); agreed to Dunlap’s suggestion that it follow the Black dissent by stating “I go my own way” and said that the outcome would depend on “luck of the draw” (GEX 216); began and ended its dismissal order with the Black dissent (GEX 384, 407); and declared “that the split Black decision is by no means settled law in light of Judge Noonan’s strong dissent” (GEX 419). The court’s rejection of Black is only part of the picture. The district court has repeatedly failed to follow this Court’s direction in the case. When this Court stayed the dismissal as to Dunlap, the district court issued an identical dismissal as to Whitfield. (GEX 446.) When this Court ordered the district court to issue a warrant for Dunlap’s arrest and not to release him without complying with the Bail Reform Act, the district court complained that it was “cold-blooded and heartless” to bring Dunlap back in on a bench warrant and “tantamount to . . . an Eighth Amendment violation.” (GEX 442.) Instead of following the order and issuing the bench warrant, the district 20 Case: 13-50514 07/10/2014 ID: 9164818 DktEntry: 13-1 Page: 23 of 30 (23 of 538) court allowed Dunlap—who had come to surrender himself pursuant to this Court’s order—to go free again for an additional 48 hours and then selfsurrender “as agreed.” (GEX 460-61, 486; C.A. No. 14-50129, Dkt. Entry 16 at 9.) Upon Dunlap’s surrender, the court released him and Whitfield on their own recognizance without any bond, reasoning that they were not flight risks or dangers—despite the statutory presumptions and despite criminal histories that included violence and repeated disregard for parole, probation, and court orders. (CR 171-73.) The government requested “a brief stay of their release . . . so as to facilitate Ninth Circuit review.” (GEX 480.) The court refused (id.), requiring this Court to issue another emergency stay. In both word and act, the district court has made clear that it is unwilling or unable to follow this Court’s direction in this case. Presumably, that is because of the court’s strong moral view of the case: it has invoked everything from the Lord’s Prayer to the Federalist Papers to show that the government is an “oppressor” “stooping” to “create crime” so as to “ensnare” people “solely because of their thoughts and economic circumstances.” Here, it is not just that “[t]he tenor of [the court’s rulings], by itself, suggest[s] strongly that the average judge in [such a] position could not later preside over” other parts of the case, which alone could merit reassignment. See Hurles v. Ryan, 752 F.3d 768, *19 (9th Cir. 2014) (emphasis added). The district court’s actions also 21 Case: 13-50514 07/10/2014 ID: 9164818 DktEntry: 13-1 Page: 24 of 30 (24 of 538) indicate an inability to separate its erroneous (and twice-stayed) conclusion of outrageous government conduct from other legal issues. In particular, the court has repeatedly conflated the outrageous conduct issue with distinct stay and detention issues. First, it refused a stay on the grounds that the government had no chance of success on appeal because the court had already ruled against the government: “Had the Court understood that the Government was likely to prevail, it would have accordingly denied the dismissal motion.” (GEX 419.) Similarly, it refused to stay its original order releasing Dunlap without engaging in any Bail Reform Act analysis on the grounds that it would not endorse “a ‘lock ‘em up’ approach to criminal justice,” a reference to the court’s view of the investigation. (GEX 421.) Likewise, the government submits that the conclusion that Whitfield and Dunlap posed no flight risk or danger and required no bond for their release is explicable only as an effort to vindicate the court’s view that once the indictment was dismissed, further detention was forbidden by the Fourth or the Eighth Amendment. (GEX 421, 442.) There is reason to believe the court’s views of the investigation will similarly taint its sentencing analysis. First, the court expressly stated that it based Hudson’s sentence not on his conduct or his criminal history but instead “primarily [on] the conduct of the government.” (GEX 101.) Second, the 22 Case: 13-50514 07/10/2014 ID: 9164818 DktEntry: 13-1 Page: 25 of 30 (25 of 538) court made clear it intends to impose a lenient sentence on Dunlap— apparently below the 15-year mandatory minimum—without seeing a PSR or hearing the parties’ sentencing arguments. (GEX 465, 473.) Reassignment is warranted because the district court has had, and will continue to have, difficulty following this Court’s directives and cabining its prior erroneous rulings. B. Ensuring the Appearance of Impartiality Reassignment is warranted “to ensure not only the existence, but the appearance, of impartiality,” such as when “the district judge . . . may be viewed as having assumed the role of advocate.” Boyde, 421 F.3d at 1155. Here, as Dunlap himself has suggested (see supra p. 19), the district court’s tone and actions have created the appearance of hostility to the government. As set forth earlier, the court’s tone has not been one of impartiality. To be sure, a holding of “outrageous” conduct necessarily entails strong language—condemnation is built into the very standard. But even so, the court’s comments are extreme (see supra pp. 11-12): accusing the government of “lead[ing] us into temptation”; of “stoop[ing] to the same level as the defendants it seeks to prosecute” and “creating crime”; of targeting people simply for being poor or for having bad thoughts; and of being “cold-blooded and heartless.” Similar is the court’s refrain that the crimes of conviction were 23 Case: 13-50514 07/10/2014 ID: 9164818 DktEntry: 13-1 Page: 26 of 30 (26 of 538) “fake,” “trumped up,” “cut from whole cloth,” or “made up”—after all, it was Hudson who initiated contact, the defendants showed up with guns, one of which Whitfield boasted could cut a man in half. (See supra p. 7.) Similar, too, is the court’s repeated criticism of the investigation as a “trawling” expedition where bait was “dangled” “irresistibl[y]” before poor, ignorant defendants. It is not just that the substance of the court’s accusations is wrong: merely erring is not grounds for reassignment. It is that the tone creates the appearance of hostility toward a government “oppressor.” See Hurles, 752 F.3d at *19. And that tone is not limited to the court’s description of historical facts: it has been also dismissive to government counsel during hearings. For example, when the government pointed out that Dunlap had lied about his whereabouts (falsely claiming to be a starting basketball player on a community college varsity team when in fact he did not play for the team at all), the court responded, “I don’t even care.” (GEX 474.) When the government asked for a brief stay to seek relief from this Court, the court responded, “Do what you have to do. The answer’s no.” (GEX 480.) See United States v. Morales, 465 Fed. Appx. 734, 740 (9th Cir. 2012) (granting reassignment based on “the district court’s rejection of the government’s unopposed request to stay proceedings pending these interlocutory appeals, requiring this court to enter an emergency stay”). 24 Case: 13-50514 07/10/2014 ID: 9164818 DktEntry: 13-1 Page: 27 of 30 (27 of 538) The district court has also lost the appearance of impartiality by taking on the role of an advocate for the defendants. For example, it was the district court that proposed, sua sponte, that Whitfield should reap the benefits of Dunlap’s motion to dismiss even absent ineffective assistance in his guilty plea (GEX 433) and that Hudson should seek § 2255 relief (GEX 435). It was the district court that had Whitfield brought for a bond hearing, without notifying defense counsel, Pretrial Services, or the government. (See supra pp. 15-16.) Most significantly, rather than issuing a bench warrant for Dunlap (a dangerous recidivist felon) as ordered by this Court, the district court engaged in an ex parte conversation with him pursuant to which he remained free for another 48 hours before self-surrendering. (GEX 460-61, 486; C.A. No. 1450129, Dkt. Entry 16 at 9). Setting aside the fact that the ex parte nature of this communication may itself be grounds for reassignment, cf., e.g., United States v. Alverson, 666 F.2d 341, 348-50 (9th Cir. 1982) (ordering reassignment where the district court had an ex parte communication with the government’s case agent), the court then defended its decision to release Dunlap on his own recognizance without bond on the ground that he had self-surrendered “as agreed” after the 48 hours the court had let him remain free. (GEX 460, 486.) The district court’s failure to issue the bench warrant as ordered thus became a basis for releasing Dunlap again. Indeed, that release was made forthwith, 25 Case: 13-50514 07/10/2014 ID: 9164818 DktEntry: 13-1 Page: 28 of 30 (28 of 538) without granting the government’s requested stay, such that this Court had to issue another emergency stay in order to maintain meaningful appellate review. Finally, the district court has indicated that it has prejudged the sentencing phase of this case. Before releasing Dunlap and Whitfield, the court declared that “I have it on pretty good terms and from a pretty good source [Dunlap] probably isn’t looking at a lot of time,” and indeed might get “probation”; the court then assured Dunlap and Whitfield that “I am the one who will be sentencing you.” (GEX 465, 473, 480.) This, too, is grounds for reassignment. See Kyle, 734 F.3d at 967 (reassigning because “the original judge has already expressed his view of the appropriate sentence”); see also, e.g., Atondo-Santos, 385 F.3d at 1201; United States v. Working, 287 F.3d 801, 809-10 (9th Cir. 2002); United States v. Ferguson, 624 F.2d 81, 83-84 (9th Cir. 1980). Adverse rulings and dismissive, even harsh, language are not always grounds for reassignment. But here, the district court has gone beyond that. Maintaining the appearance of impartiality requires reassignment. C. Reassignment Entails Little Cost The first two reassignment factors are satisfied here and “either . . . supports remand to a different . . . judge.” Atondo-Santos, 385 F.3d at 1201. The third factor—“undue waste and duplication,” Arnett, 628 F.2d at 1165— also weighs in favor of reassignment. If the government prevails in its appeals, 26 Case: 13-50514 07/10/2014 ID: 9164818 DktEntry: 13-1 Page: 29 of 30 (29 of 538) the new judge will: (1) sentence Whitfield; (2) preside over Dunlap’s trial or guilty plea; and (3) sentence Dunlap. Because there has been no trial or significant evidentiary development, and because this Court will resolve the dismissal issue, it will not require much for a new judge to get up to speed. By contrast, there is significant risk of “undue waste” if the Court does not reassign this case. Already, as a result of the district court’s rulings, this Court has had to issue two emergency stays and will have to resolve four appeals: two bail appeals and two merits appeals. There is no reason to think that matters will stop there—there may be additional release orders requiring emergency stays; jurisdictionless § 2255 relief; adverse pretrial rulings requiring interlocutory appeals; and, given what the court has suggested about its sentencing intentions, illegal or unreasonable sentences. Moreover, beyond “waste,” the court could cause irreparable harm, for example by issuing a Rule 29 order after jeopardy has attached or by successfully releasing a defendant before this Court can issue an emergency stay. IV. CONCLUSION The government respectfully and reluctantly asks the Court to reassign this case, and to do so now in light of the active district court proceedings regarding Hudson and the possibility of additional detention proceedings regarding Whitfield and Dunlap following the government’s bail appeals. 27 Case: 13-50514 07/10/2014 ID: 9164818 DktEntry: 13-1 Page: 30 of 30 (30 of 538) 9th Circuit Case Number(s) 14-50129, 14-50297, 14-50285, 14-50296, 13-50514 NOTE: To secure your input, you should print the filled-in form to PDF (File > Print > PDF Printer/Creator). ********************************************************************************* CERTIFICATE OF SERVICE When All Case Participants are Registered for the Appellate CM/ECF System I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on (date) . 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