United States District Court, District of Columbia
D.BATES UNITED STATES DISTRICT JUDGE.
have moved for this Court to recuse itself from these habeas
proceedings based on a telephone conversation between the
Court and a former government prosecutor in the underlying
criminal case. The call occurred in June 2016, long after the
case (including appeals) had concluded. Defendants allege
that recusal is required because the telephone conversation
provided the Court with personal knowledge of disputed
evidentiary issues, the Court expressed an opinion on a
relevant matter, and an objective observer would reasonably
question the Court's impartiality in these proceedings
based on a statement the Court made during the call. The
Court takes these allegations and its duty to determine
whether recusal is required very seriously. For the reasons
explained below, however, the Court concludes that recusal is
not required based on the record as it currently stands. The
Court recognizes that defendants could renew their request as
the record further develops and additional facts are learned.
But for now, defendants' motion will be denied without
prejudice to later renewal.
April 2005, defendants and their coconspirators kidnapped
Balram Maharaj, a naturalized U.S. citizen who was visiting
his family in Trinidad and Tobago. Maharaj was held in a
remote forest camp while defendants attempted to extort a
ransom from his family. After six days in captivity, he
slipped into a diabetic coma and died. In an attempt to
conceal the crime, defendants dismembered Maharaj, packed his
remains into Styrofoam containers, and buried the containers
in the woods. With assistance from the FBI, the Trinidadian
police uncovered evidence of Maharaj's death.
defendants were extradited to the U.S. and charged with
conspiracy to commit hostage taking and hostage taking
resulting in death, in violation of 18 U.S.C. §§2,
1203(a). Four entered into cooperation agreements with the
government and pled guilty before this Court: Russell Joseph
on July 26, 2006, Winston Gittens on February 27, 2007, Jason
Percival on November 16, 2007, and Leon Nurse on April 15,
2009. The remaining seven (the defendants here)-Anderson
Straker, Wayne Pierre, Zion Clarke, Ricardo De Four, Kevon
Demerieux, Christopher Sealey, and Kevin Nixon-were tried by
a jury before this Court from May 27, 2009 to July 31, 2009.
All four cooperators testified at defendants' trial, and
all of the defendants were found guilty on both counts.
10, 2011, this Court sentenced defendants Straker, Pierre,
Clarke, De Four, Demerieux, Sealey, and Nixon, to concurrent
terms of life imprisonment on each count, as required by
statute. On May 2, 2014, this Court sentenced cooperating
defendants Gittens, Nurse, Joseph, and Percival to 120, 126,
132, and 156 months' imprisonment, respectively. The four
cooperators received credit for time served back to 2006.
appealed and their convictions were affirmed by the D.C.
Circuit on September 1, 2015. See United States v.
Straker, 800 F.3d 570, 581 (D.C. Cir. 2015). In February
2016, the U.S. Supreme Court denied defendants' petition
for a writ of certiorari. United States v. Straker,
136 S.Ct. 1170 (Feb. 29, 2016). Thereafter, defendants began
filing petitions to vacate then-sentences pursuant to 28
U.S.C. § 2255.
Straker filed the first § 2255 petition in June 2016.
See Mot, to Vacate (Straker) [ECF No. 889]. Shortly
thereafter, defendant Pierre filed his § 2255 petition
in September 2016. See Mot. to Vacate (Pierre) [ECF
No. 904]. After these two petitions were filed, the
government began disclosing information concerning certain
actions taken by the lead prosecutor on the case, Bruce
Hegyi. Hegyi represented the government throughout the
investigation, trial, sentencing, and appeal in this
disclosures revealed that the government was conducting an
investigation into certain actions taken by Hegyi and
reported that the investigation was in the "very early
stages." Gov't's Notice, Sept. 7, 2016 at
3. The disclosures indicated that Hegyi was "concerned
about the security of the cooperating witnesses for various
reasons and took steps both before and after sentencing to
attempt to ensure the[ir] safety." Id. at 2.
The government specifically described additional actions that
Hegyi took on behalf of defendant Gittens after he
was sentenced in May 2014. In October or November 2014, after
Gittens completed his sentence and was transferred to the
custody of Immigration and Customs Enforcement (ICE), Hegyi
put Gittens in touch with his former law firm to assist with
Gittens' deportation hearing. Id. Hegyi visited
Gittens while he was in ICE custody in Williamsburg,
Virginia, and provided Gittens with books on soccer and
morality that Hegyi purchased online. Ex. 1 to Defs.'
Mot. for Recusal at 3, 5. Hegyi also made several deposits
into Gittens' inmate account, totaling approximately
$150, when Gittens was in ICE custody. Gov't's Supp.
Notice, Jan. 24, 2017 [ECF No. 919-2] at 1. In July 2015,
Hegyi testified on behalf of Gittens at an immigration
hearing. Gov't's Notice, Sept. 7, 2016 at 2-3. As a
result of that hearing, Gittens' deportation was deferred
and he was released from ICE custody shortly thereafter.
Id. at 3.
his release from ICE custody, Gittens called Hegyi from a bus
station in Washington, D.C. According to Hegyi, he was
concerned that Gittens had no resources, no permanent place
to live, and no relatives he could turn to, so Hegyi invited
Gittens to stay at his home for a weekend in order to develop
a long-term plan for Gittens. Id. At the conclusion
of that weekend, Hegyi invited Gittens to reside at his home
indefinitely. Id. Hegyi notified the U.S. Probation
Office of this arrangement and explained that he was the
prosecutor in Gittens' case. Ex. 1 to Defs.' Mot. for
Recusal at4. Gittens apparently obtained permission from his
probation officer to reside with Hegyi. Id.
lived with Hegyi (and Hegyi's wife) from approximately
August 2015 to March 2017. Gov't's Opp'n [ECF No.
973] at 5 & n.3. During this time, Hegyi helped Gittens
obtain a volunteer position, paid $465 for a work
authorization card for Gittens, assisted Gittens with
obtaining his birth certificate, and tried to help Gittens
obtain a non-driving identification card. Gov't's
Notice, Sept. 7, 2016 at 3. At some point after their
sentencing, Hegyi requested one-time payments from the FBI
for defendants Gittens and Nurse. Gov't's Supp.
Notice, Jan. 24, 2017 at 1. Nurse and Gittens received $5,
000 payments from the FBI in June and December 2015,
February and March of 2017, the government released to
defense counsel two documents: a memorandum summarizing an
August 12, 2016 interview of Hegyi by two attorneys from the
D.C. U.S. Attorney's Office and the Criminal Division of
the Justice Department; and an August 13, 2016 email from
Hegyi clarifying certain details from that interview.
See Exs. 1 and 2 to Defs.' Mot. for Recusal [ECF
Nos. 964-1 & 964-2]. During that interview, Hegyi
described in detail the actions that he took on behalf of
Gittens. He also indicated that "there were no promises
made to Gittens prior to his testimony or in connection with
the trial" and that "[t]he circumstances that led
to Gittens residing with Hegyi occurred after Gittens was
sentenced." Ex. 1 to Defs.' Mot. for Recusal at 5.
Hegyi's Telephone Call with the Court
also described a telephone call that he had with the Court on
June 16, 2016, which is the basis for defendants' motion
for recusal. Hegyi's account of that conversation, which
the Court accepts as accurate at this point unless otherwise
noted, is as follows. Hegyi contacted the Court to inquire
whether the Court would be "agreeable to serve as a[n
employment] reference for [Hegyi]." Ex. 2 to
Defs.' Mot. for Recusal at 1. During the call, the Court
asked Hegyi whether he was aware of defendant Straker's
§ 2255 petition, which had been filed earlier that day.
Hegyi responded that he was aware of Straker's petition,
but he had not read it. Id. The Court then asked
Hegyi whether the D.C. U.S. Attorney's Office was aware
of Straker's petition. Hegyi responded that he did not
know, but he would forward a copy to the U.S. Attorney's
that, Hegyi told the Court "about Gittens' current
immigration status, " including that Gittens was living
with Hegyi, how Gittens was doing, and that Gittens had used
the one-time source payment that he received from the FBI to
pay his Court-imposed costs and to send money to his mother
in Trinidad. Id. Hegyi indicated that Gittens wanted
to come and thank the Court "for the second chance he
had been given." Id. According to Hegyi, the
Court "relayed that he would be happy to have Gittens
come before him, with the understanding that [the Court]
would step Gittens back if necessary." Ex. 1 to
Defs.' Mot. for Recusal at 5. Also according to Hegyi,
the Court "commended Hegyi for what he was doing for