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United States v. Cain

United States District Court, D. Maine

January 7, 2020




         I reject a defendant's motion to recuse because, having reviewed the defendant's reasons for my recusal, I find that they neither have record support nor present a sufficient basis to conclude that an objective, reasonable member of the public, fully informed of all the relevant facts, would fairly question my impartiality.

         I. BACKGROUND

         On August 9, 2016, a federal grand jury indicted Donald Cain on one count of stalking, an alleged violation of 18 U.S.C. § 2261A(2)(B), and two counts of transmitting threatening communications in interstate commerce, alleged violations of 18 U.S.C. § 875(c). Indictment (ECF No. 56). On January 9, 2018, Mr. Cain pleaded guilty to the stalking count, Min. Entry (ECF No. 153), and on July 20, 2018, the Court sentenced him to sixty months of incarceration, three years of supervised release, no fine, and a $100 special assessment. J. (ECF No. 197). On July 27, 2018, Mr. Cain appealed his sentence to the Court of Appeals for the First Circuit, and on July 1, 2019, the First Circuit affirmed the Court's sentence. Notice of Appeal (ECF No. 199); United States v. Cain, 779 Fed.Appx. 6, 11 (1st Cir. 2019).

         On September 30, 2019, Mr. Cain filed a motion to disqualify me as a judge from continuing to preside over his criminal case and specifically from ruling on a federal habeas corpus petition that he had filed in the United States District Court in Texas and that was being transferred to the District of Maine.[1] Mot. Pursuant to 28 USC § 455 to Disqualify USDJ John A. Woodcock and USMJ John Nivison in Above Case and Pending § USC 2255 Transferred from USDC Fort Worth, Texas (ECF No. 216) (Def.'s Sept. Mot.). On October 15, 2019, Mr. Cain filed a second motion, asking to remove me from the case and asking that “no strike” be applied against his § 2255 petition. Mot. to Remove Judge Woodcock from Case and Mot. that No Strike Be Applied re 2255 (ECF No. 223) (Def.'s Oct. Mot.). On November 22, 2019, the Government responded to both motions. Gov't's Resp. in Opp'n to Def.'s Mot. to Disqualify Judge Woodcock and Magistrate Judge Nivison (ECF No. 232) (Gov't's Opp'n Sept. Mot.); Gov't's Resp. in Opp'n to Def.'s Mot. to Remove Judge Woodcock from Case and Mot. that No Strike Be Applied re: § 2255 (ECF No. 233) (Gov't's Opp'n Oct. Mot.). On December 16, 2019, Mr. Cain filed a sixteen-page reply regarding his September motion. Resp. to Mot. to Disqualify Judge John A. Woodcock and Magistrate Judge John Nivison (ECF No. 234) (Def.'s Reply Sept. Mot.).

         On December 20, 2019, Mr. Cain filed an affidavit of Steven M. Blanchette of Oakland, Kennebec County, state of Maine. Aff. (ECF No. 235). In his affidavit, Mr. Blanchette states that “before the trial Mr. Cain[']s lawyer Hunter asked Judge Woodcock to court-appoint him at which the judge said ‘he was not going to waste tax payer dollars because Mr. Cain makes good money and he should have gotten more, take it as a lesson learned and suck it up.'” Id. at 1. Mr. Blanchette states that he believes that “Mr. Cain was coerced by his lawyer to take a plea being Mr. Cain wasn't paying him anymore money and Mr. Cain wanted to go to trial.” Id. He avers that Mr. Cain's lawyer “also stated that if he didn't take a plea the courts would hold Mr. Cain in lockup until the trial was finished.” Id. Finally, Mr. Blanchette adds that during the sentencing hearing, I “called Mr. Cain a terrorist and ignored the recommendation of the prosecutor and sentenced Mr. Cain to the full extent.” Id. at 1-2.


         A. Donald Cain's Motions

         1. Donald Cain's September 2019 Motion

         Mr. Cain's September motion briefly alleges that I violated Canons 2 and 3 of the Code of Conduct for United States Judges by failing to act in a manner that promoted public confidence in the integrity and impartiality of the judiciary and failing to perform the duties of my office fairly, impartially, and diligently. Def.'s Sept. Mot. at 1. To this motion, Mr. Cain attached a two-and-a-half-page letter dated September 26, 2019. Id., Attach. 1, To Steve Blanchette, Amber Cain, Kris Cain, and April Kumer (Def.'s Sept. Letter). In the letter, Mr. Cain states that he filed a judicial complaint against me with the First Circuit Court of Appeals. Def.'s Sept. Letter at 1. Next, he states that “[h]ad they not used my Counsel Hunter Tzovarras, to coerce me into a plea, I would not be here in prison.” Id. He claims that I should have “dismissed Hunter from case” when I chose not to court-appoint him. Id. Mr. Cain points out that I allowed Attorneys Weyrens and Silverstein to resign as counsel for non-payment. Id. Mr. Cain then relates his side of his relationship with the victim that led to the stalking indictment. Id. at 1-3. In this motion and attachment, his major complaint against me is that I should have dismissed Attorney Tzovarras as his defense counsel and failed to do so.

         2. Donald Cain's October 2019 Motion

         Mr. Cain slightly expands his allegations against me in his October motion. Def.'s Oct. Mot. The October motion itself asserts that the federal indictment must be dismissed because there was an accord and satisfaction filed by the alleged victim in this case in state court. Id. at 1. Mr. Cain writes: “This Court deemed Me, Donald Cain ‘delusional' when I informed the Court, Judge John A. Woodcock there was an Accord and Satisfaction, that mysteriously disappeared, but has resurfaced after the Void Judgment issued in this case.” Id.

         To this motion, Mr. Cain attached a copy of an order from United States District Judge John McBryde dated September 6, 2019, concluding that Mr. Cain's motion was in fact a motion under 28 U.S.C. § 2255, not a motion under 28 U.S.C. § 2241, and that, in light of Castro v. United States, 540 U.S. 375, 377 (2003), Judge McBryde intended to construe the motion as one under § 2255, that as a result the motion would be transferred to the United States District Court for the District of Maine, and that “so construing the document will cause it to be subject to § 2255's ‘second or successive' restrictions.” Id., Attach. 1, Order (Donald Cain v. United States, No. 4:19-cv-660-A (N.D. Tx. Sept. 6, 2019)). Judge McBryde gave Mr. Cain until September 24, 2019, to withdraw his filing. Id. at 2. Mr. Cain also attached copies of two docket entries in this case. Id., Attachs. 2-3.

         B. The Government's Responses

         1. The Government's Response to Donald Cain's September Motion

         In its response to Mr. Cain's September motion, the Government reviewed both the underlying facts and the applicable law of 28 U.S.C. § 455(a) and argued that neither the facts nor the law require recusal. Gov't's Opp'n Sept. Mot. at 1-13. The Government assessed the underlying facts and contended that the record did not support Mr. Cain's allegations. Id. at 1-6. The Government reviewed the applicable legal standards for recusal. Id. at 7-9. The Government questioned whether Mr. Cain's motion is timely. Id. at 9-10. Finally, applying the record facts to the proper legal standard, the Government maintained that I should deny the motion to recuse. Id. at 10-13.

         2. The Government's Response to Donald Cain's October Motion

         In its response to Mr. Cain's October motion, the Government did not address the recusal issue and dealt only with the question of whether his August 22, 2019, § 2255 motion should be considered a first § 2255 motion. Gov't's Opp'n Oct. Mot. At 1-7.

         C. Donald Cain's Reply

         In his December 16, 2019, sixteen-page reply, Mr. Cain became much more specific in terms of his allegations against me. He claimed the following:

(1) that I “never let [Mr. Cain's] counsel speak always yelling at him and telling him to sit down and shut up, stating that he could have been enjoying his family and evening instead of reading his meaning my attorney, Hunter Tzovarras's friv[o]lous motion[s];”
(2) that I made “racist[] comments either direct towards [Mr. Cain], or [his] family or [his] current girlfriend at the time;”
(3) that I made “threats that [Mr. Cain] was going to pay for hurting that ‘young lady', meaning [his ex-wife];”
(4) that I “denied to court appoint Hunter Tzovarras” and instead stated in court: “I am not going to use tax payer money to fund Mr. Cain's defense, you should have got more money up front and let this be a lesson learned, and suck it up;”
(5) that I “held ex parte meetings with [the victim] available to attend but not [Mr. Cain]” and although his lawyer was present on the telephone, the Assistant United States Attorney (AUSA), the victim, and I were together with each other in person;
(6) that I made up my mind on his sentence when I stated at the end of the revocation hearing that “it's just a matter of time when Mr. Cain starts serving his time May 25, 2018 or June 28, 2018;”
(7) that I imposed a sentence that violated the Eighth Amendment ban on cruel and unusual punishment;
(8) that I showed favoritism to the AUSA by complimenting her;
(9) that I was aware of plea negotiations between the AUSA and Attorney Tzovarras;
(10) that I violated the terms of the plea agreement;
(11) that I should recuse myself because he filed a judicial misconduct complaint against me with the First Circuit Court of Appeals; and
(12) that at the sentencing hearing, he “made it clear that [he] was in no condition to be sentenced that day, [he] was having tremendous chest pains, [he] was on medication that caused dizziness and lightheadedness” and that he “could not compose [him]self to even read [his] statement, to the court.”

See Def.'s Reply Sept. Mot. at 1-3, 9.


         A United States judge is required to recuse “in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a); United States v. Reynolds, 646 F.3d 63, 74 (1st Cir. 2011). The First Circuit has held that the standard for recusal under § 455(a) is “whether an objective, reasonable member of the public, fully informed of all the relevant facts, would fairly question the trial judge's impartiality.” In re United States, 441 F.3d 44, 56-57 (1st Cir. 2006) (internal quotation marks omitted).

         Recusal under 28 U.S.C. § 455(a)[2] is generally warranted only when the judge's alleged bias or prejudice can be traced to “a source outside the judicial proceeding at hand . . ..” Liteky v. United States, 510 U.S. 540, 545, 554-56 (1994); see also In re United States, 441 F.3d at 66-68. The Liteky Court noted that “judicial rulings alone almost never constitute a valid basis for a bias or partiality motion . . . . and can only in the rarest circumstances evidence the degree of favoritism or antagonism required [for recusal] . . . when no extrajudicial source is involved.” Liteky, 510 U.S. at 555. Though it is possible that a judge might develop and display such “deep-seated and unequivocal antagonism” toward a party that fair judgment would become “impossible” and recusal necessary, Liteky, 510 U.S. at 556, “a judge's rulings and statements in the course of proceedings before him or her rarely provide a basis for recusal under § 455(a).” In re United States, 441 F.3d at 67.

         Although the rule about judicial rulings not forming the basis for a recusal is strong, it is not absolute. The First Circuit adopted the view that, even if a judge's alleged bias comes from events at trial, “judicially acquired information can form the basis of a judge's disqualification . . ..” United States v. Chantal, 902 F.2d 1018, 1022 (1st Cir. 1990) (quoting Panzardi-Alvarez v. United States, 879 F.2d 975, 983-84 (1st Cir. 1989)). In the First Circuit, the standard for recusal is “whether the charge of lack of impartiality is grounded on facts that would create a reasonable doubt concerning the judge's impartiality, not in the mind of the judge himself or even necessarily in the mind of the litigant filing the motion under 28 U.S.C. § 455, but rather in the mind of the reasonable [person].” Id. at 1022 (quoting Panzardi-Alvarez, 879 F.2d at 983).

         At the same time, the First Circuit has observed that “the defendant's claim and its implications cannot themselves alone suffice to require the judge's recusal, lest the law confer a veto power on the assignment of his trial judge to any heckling defendant who merely levels a charge that implicates a judge's defensive or vicariously defensive reaction.” In re Bulger, 710 F.3d 42, 46-47 (1st Cir. 2013) (Souter, J.). Justice Souter went on to write for the First Circuit that “[t]he recusal standard must be more demanding because ‘the disqualification decision must reflect not only the need to secure public confidence through proceedings that appear impartial, but also the need to prevent parties from too easily obtaining the disqualification of a judge, thereby potentially manipulating the system for strategic reasons, perhaps to obtain a judge more to their liking.” Id. at 47 (quoting In re Allied-Signal, Inc., 891 F.2d 967, 970 (1st Cir. 1989)). Indeed, “[t]he trial judge has a duty not to recuse himself or herself if there is no objective basis for recusal.” In re United States, 441 F.3d at 67.


         A. Factual Inaccuracies

         Mr. Cain's motion is replete with factual inaccuracies. First, Mr. Cain places quotation marks around statements I supposedly made in court. Although the transcripts of all the proceedings are available on the docket, Mr. Cain fails to cite the transcripts. Instead, he fabricates quotations.[3] As a review of the actual transcripts reveals, I said almost none of the things that Mr. Cain quotes me as saying. See Tr. of Proceedings, Sentencing Proceedings (ECF No. 210) (Sentencing Tr.); see also Tr. of Proceedings, Hearing on Mot. to Revoke Bail and Detention Hearing (ECF No. 208) (Bail and Detention Hearing Tr.); Tr. of Proceedings, Rule 11 Proceedings (ECF No. 209) (Rule ...

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