UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

F!LELD

UCT § 13 2009
NANCY MAYER WHITT|NGTON. CLERK
UNITED STATES oF AMER1CA U-S-D‘STR'CTCOURT
v. Criminal Action No. 04-446 (TFH)

PEDRO ANTONIO MARIN, et aL,

Defendants.

MEMORANDUM OPINION
Pending before the Court is Juan Jose Martinez Vega’s Motion to Recuse [Docket No.
135], which was joined by Jorge Enrique Rodriguez Mendieta and Enninso Cuevas Cabrera

[Docket Nos. 136 & 137]. For the reasons set forth during the hearing that took place in open

court on September 15, 2009, and for those that follow, the motion will be denied.

BACKGROUND

The defendants’ Motion to Recuse seeks an order disqualifying this Court from further

proceedings in this case pursuant to 28 U.S.C. § 455(a). (Defs.’ Mot. to Recuse 1.) The motion

is premised on the following events that the defendants assert implicate the Court’s impartiality:

On April 24, 2009, Martinez Vega filed a Motion to Dismiss Case Due to
Prosecutorial Misconduct [Docket No. 102], which alleged that the
prosecutor deliberately misrepresented the relevance of l0,000 pages of
Spanish language documents that were provided to the defense as discovery.
In that Motion to Dismiss, Martinez Vega argued that either (l) the
prosecutor misrepresented the relevance of the documents "when he
described them as ‘discoverable’ and ‘material to the preparation of the
defense"’ during the August l2, 2008 hearing before Magistrate Judge
Facciola or (2) "when confronted with an order to translate all or most of the
documents, after having stubbornly refused to provide a meaningful index,
and facing extraordinary costs (estimate by the United States at $800,000),
Mr. Jackson simply lied about the relevance of the documents" during the
March 12, 2009 hearing before this Court or (3) the prosecutor personally

reviewed the documents "‘and was able to articulate a reason why some as
yet unexplained change in circumstances caused him to change his original
representations and coincidentally, decide that each and every page was no
longer relevant."’ (Defs.’ Mot. to Recuse 4-5 (quoting Martinez Vega’s Mot.
to Dismiss Case Due to Prosecutorial Misconduct 5-6).) Martinez Vega
further asserted that "‘[e]ither scenario involves a deliberate
misrepresentation to the Court, and in Defendant’s view warrant a dismissal
based upon prosecutorial misconduct."’ (Defs.’ Mot. to Recuse 5 (quoting
Martinez Vega’s Mot. to Dismiss Case Due to Prosecutorial Misconduct 5-
6).) Martinez Vega also asserted that an evidentiary hearing was necessary
to resolve this issue, which was reiterated in the defendant’s reply brief.
(Defs.’ Mot. to Recuse 7.)

II. During the pretrial motions hearing held on July 7, 2009, Martinez Vega’s
counsel requested an evidentiary hearing regarding the pending Motion to
Dismiss. (Defs.’ Mot. to Recuse 9.)

III. The Court never conducted the requested evidentiary hearing and, instead,
ruled on July 1 5, 2009, that the motion was denied because "the Court cannot
conclude that counsel for the United States ‘lied’ about the relevance of the
early discovery documents or engaged in a ‘deliberate misrepresentation to
the Court."’ (Order Denying Mot. to Dismiss, July, l5, 2009.)

According to the defendants, "the Court’s factual conclusion as to the absence of bad faith on the

part of the United States is unsupported by the record in this case and can only objectively be
explained by an extrajudicial bias in favor of the United States and/or its prosecutors in this
case." (Defs.’ Mot. to Recuse ll (emphasis in original).) The defendants am`ve at this
conclusion by arguing that:

The facts concerning the good or bad faith of the government in giving defendants
10,000 pages of "completely irrelevant" untranslated Spanish documents, after
initially telling the Court and defendants that the documents were being provided
pursuant to Federal Rule of Criminal Procedure 16, all depended upon the decision
making process of the prosecutors in the case. As such, they could not have been
known to the Court simply through the litigation in the case. Therefore, Defendant
contends that a reasonable person would conclude that a finding of no bad faith could
only be explained if the Court was conclusively presuming that the United States had
acted in [good] faith, despite the genuine issues raised by Defendant. This, Defendant
asserts, is an impermissible bias on the part of the Court.

__2__

(Mem. of P. & A, In Supp. of Def. Martinez Vega’s Mot. to Recuse 11 4.) The government
opposed the defendants’ motion on the grounds that it is frivolous and "is quite obviously a
recusal motion resting entirely on the Court’s rulings." (Govt’s Opp’n Br. 1 1.) None of the
defendants filed a reply brief.
LEGAL STANDARDS

The defendants moved for recusal pursuant to 28 U.S.C. § 455(a), which states that
"[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." The Supreme Court has
explained that "[t]he very purpose of § 455(a) is to promote confidence in the judiciary by
avoiding even the appearance of impropriety whenever possible." Lilieberg v. Health Services
Acguisition Co;p.,

486 U.S. 847

, 865 (1988) (Stevens, J.). Accordingly, the legal standard is an
objective one that inquires whether a "reasonable and informed observer would question the
judge’s impartiality." United States v. Microsoft Cor@,

253 F.3d 34

, 114 (D.C. Cir. 2001) (per
curiam). lt is well established, however, that "judicial rulings alone almost never constitute a
valid basis for a bias or partiality motion" and "opinions formed by a judge on the basis of facts
introduced or events occurring in the course of the current proceedings, or of prior proceedings,
do not constitute a basis for a bias or partiality motion unless they display a deep-seated
favoritism or antagonism that would make fair judgment impossible." Liteky v. United States,

510 U.S. 540

, 555 (1994) (Scalia, J.). Judicial rulings "[a]lmost invariably . . . are proper
grounds for appeal, not for recusal." §

"To be disqualifying, the court’s bias and prejudice ‘must stem from an extrajudicial

source and result in an opinion on the merits on some basis other than what the judge learned

__3-_

from his participation in the case."’ United States v. Ba;gg,

938 F.2d 1327

, 1340 (D.C. Cir. l991)

(Wald, J.) (quoting United States v. Grinnell Corp.,

384 U.S. 563

, 583 (1966)). "Although a

legal ruling may not itself serve as the basis for a motion to disqualify, a particular judicial ruling

‘can be evidence of an extrajudicial bias or prejudice."’ l;d. (internal citations omitted, emphasis

in original) (quoting United States v. Hedt,

668 F.2d 1238

, 1272 n.72 (D.C. Cir. 1981)). A judge

need not, however, "recuse himself because of ‘unsupported, irrational, or highly tenuous
speculation."’ United States v. DeTemple,

162 F.3d 279

, 287 (4th Cir. 1998) (Motz, J.) (quoting
ln re United States,

666 F.2d 690

, 694 (lst Cir. 1981)). As the Fourth Circuit observed:

To disqualify oneself in such circumstances would be to set "the price of maintaining

the purity of appearance" too high ~ it would allow litigants "to exercise a negative

veto over the assignment of judges."

ld_. (quoting In re United States, 666 F.2d at 693). Likewise, the First Circuit noted that:
[R]ecusal on demand would put too large a club in the hands of litigants and lawyers,
enabling them to veto the assignment of judges for no good reason. Thus,
compulsory recusal must require more than subjective fears, unsupported
accusations, or unfounded surmise.

ln re United States,

158 F.3d 26

, 30 (1stCir. 1998) (Selya, J.).

When considering a motion for recusal, "there is no support for the position that the facts
alleged in the papers submitted by a person relying on section 455 must in every case be accepted
as true, whether the papers be a verified memorandum or are in some other form." United States
bldg

668 F.2d 1238

, 1271 (D.C. Cir. 1981) (per curiam). "The very fact that section 455 is
addressed directly to the judge makes it evident that some evaluation by the court of the facts

giving rise to the motion is anticipated in most cases." Ld. Moreover, it is in the trial court’s

discretion whether to hold a hearing. ig at 1271-72. "The appropriate procedure . . . may

__4__

depend upon the nature of the allegations made." Ld. at 1272. The D.C. Circuit has noted,

however, that:

Allegations regarding actual extrajudicial conduct of involvements, for example, may
typically present a more compelling case for a hearing than a motion premised on
rulings or comment made during actual courtroom proceedings which are urged as
evidence of bias or prejudice stemming from an extrajudicial source.

l_d. Ultimately, "cases implicating section 455(a) are fact-specific, and thus sui generis.

Comparison, therefore, is an inexact construct." ln re United States, 158 F.3d at 31. As the First
Circuit explained:

At one end are situations in which the hypothesis of partiality is so compelling that
the judge has no real choice but to recuse herself. See, gg;, Fredonia Broad. Coro. v.
RCA Co;p.,

569 F.2d 251

 (5th Cir.1978) (involving a recusal motion based upon one
party's representation by the judge's fonner law clerk, who had served in that capacity
during a prior trial of the same action). At the other end are situations in which the
hypothesis of partiality is so tenuous that the judge has no real choice but to sit. §
Blizard v. Frechette,

601 F.2d 1217

 (lst Cir. l 979) (involving a recusal motion based
upon nothing more than a judge's criticism of a party and her case in an opinion).
Between these two polar extremes lies a zone in which the district judge's discretion
holds sway. §ee In re United States, 666 F.2d at 695. lf a case falls within this gray
area, a court of appeals ought not to interfere.

These categories operate on two levels: what is alleged and what is proven. _S§e
Blizard, 601 F.2d at 1221 ("A trial judge must hear cases unless some reasonable
factual basis to doubt the impartiality or fairness of the tribunal is shown by some
kind of probative evidence."); 9_§ Liljeberg, 486 U.S. at 865,

108 S. Ct. 2194

(admonishing that "it is critically important in a case of this kind to identify the facts
that might reasonably cause an objective observer to question [the judge's]
impartiality"). Consequently, there are situations in which the hypothesis of partiality
sounds compelling to a reasonable listener, but the supposed facts upon which the
hypothesis depends are, in the end, not proven. Without facts to substantiate a
hypothesis of partiality, a case may well slide from one pole of the continuum to the
other, or to some point in between.

__5_-

ANALYSIS
As mentioned above, the premise of the defendants’ claim of bias is that the Court failed
to hold an evidentiary hearing regarding Martinez Vega’s Motion to Dismiss Case Due to
Prosecutorial Misconduct and, as a result, must have presumed that the government acted in good

faith, In which case, so the defendants contend, the Court must be biased in favor of the

prosecution based on an unidentified extrajudicial source because "the Court’s factual conclusion
as to the absence of bad faith on the part of the United States is unsupported by the record . . . ."1
(Defs.’ Mot. to Recuse 11.) lt is the defendants’ hubris in this respect that reveals the flaw in
their logic. To reach this conclusion the Court must embrace the defendants’ view that their
interpretation of the factual record is the sine qua non.z The Court, however, has a judicial
obligation to carefully - and independently - assess the facts based on the record before it, and
might not arrive at the same conclusion the defendants reached, as was the case with respect to
Martinez Vega’s Motion to Dismiss.

So the record is clear, the Court’s decision to deny Martinez Vega’s Motion to Dismiss
was based solely on the legal proceedings in this case and facts the Court leamed therefrom. §§
United States v. Pollard,

959 F.2d 1011

, 1031 (D.C. Cir. 1992) (Silberrnan, J.) (noting that the
district judge "was, of course, intimately familiar with the record and knew as a matter of fact"

whether he had considered ex parte information). While considering the Motion to Dismiss, the

l The defendants proceed with this argument notwithstanding their concession that

their "questions about the way in which the United States has conducted the case do not compel a
finding that the United States acted in bad faith." (Defs.’ Mot. 13 (emphasis in original).)

2 The defendant states in his motion that he seeks recusal "only in regard to the

facts of the Motion to Dismiss." (Defs.’ Mot. 11 n.7 (emphasis in original).)

__6__

Court employed absolutely no extrajudicial knowledge about this case or the prosecutors
involved in it. To the contrary, the Court found the factual record sufficient to assess the
allegations of prosecutorial misconduct and an evidentiary hearing unnecessary under these
particular circumstances.

Because the defendants’ claim of judicial bias stems from the Court’s ruling on Martinez
Vega’s Motion to Dismiss, some elucidation of the Court’s decision denying that motion is
warranted to assess whether a reasonable and informed observer would question this Court’s
impartiality. From the outset, the Court repeatedly observed that this is a very complex case
involving an international narcotics conspiracy and an investigation that took place in Colombia,
where much, if not most, of the evidence was obtained. (&g, gg;, Order Granting Continuance,
Dec. 18, 2007 (granting an "ends of justice” continuance under the Speedy Trial Act).) These
proceedings have been complicated by the fact that, although the case involves a large number of
defendants, only a few defendants have been extradited to the United States and the extradition
process has been piecemeal with respect to when individual defendants appeared in the case. In
addition, as the indictment States, the defendants are alleged to have had varying roles and
relationships with respect to the Fuerzas Armadas Revolucionarias de Colombia - Ejército del
Pueblo, an alleged narco-terrorist organization referred to as the FARC. Given that the
government has implicated the FARC in this case, the scope of potential evidence that might be
relevant to the defense is fairly vast and covers a large geographical area of Colombia. lt also
was the Court’s understanding that the government’s evidence consisted of documents received
from Colombian law enforcement authorities via a Mutual Legal Assistance Treaty, which poses

its own complications, the foremost of which is that the documents are in Spanish.

__7__

In light of the foregoing complications, the Court recognized early in the case that the
discovery process would be ongoing, evolving, and could become protracted. Accordingly, after
holding several status conferences, during which it became clear that the govemment’s discovery
involved large volumes of documentary and electronic evidence that were in Spanish, would
need translation, and were not in a searchable format, the Court issued an order dated May 29,
2008, that referred the case to Magistrate Judge John M. Facciola for the purpose of facilitating
the parties’ reciprocal discovery obligations and to assist them to ensure that discovery proceeded
in a timely fashion. (Order Referring Case to Magistrate Judge, May 29, 2008.) Judge Facciola
subsequently held several status conferences and the Court reviewed the transcripts from each of
these conferences in their entirety.

Of particular note, during the first status conference on August 12, 2008, Judge Facciola
asked the prosecutor to explain the govemment’s discovery process. (Hr’g Tr. 3-15, Aug. 12,
2008.) The prosecutor’s explanation revealed that the government was turning over everything it
received from Colombia except certain documents that it deemed posed security issues or that it
otherwise concluded were not discoverable under Fed. R. Crim. P. 16:

[W]hat we’ve been doing is reviewing the documents with Spanish speaking law

enforcement agents, primarily DEA agents and some from the State Department, in

order to determine whether or not there are any documents that we’ve received that

are inappropriate for the discovery process, either because of security concerns or

because they simply aren’t discoverable under Rule 16.

We’re going through the process of extracting those documents and then essentially

turning over the hard copies of the Spanish documents as quickly as possible to the

defendants.

(Hr’ g Tr. 3-4, Aug. 12, 2008.) The government further explained to Judge Facciola that:

I think the majority of these documents we’re turning over as documents that we
believe could be relevant to the preparation of the defense, I think that’s the Rule 16

__g__

basis under which we’re primarily tuming them over, though some of them certainly
are relevant to our case in chief.

(Hr’g Tr. 5, Aug. 12, 2008 (emphasis added).) This is the first point of divergence between the
defendant’s interpretation of the facts and the Court’s interpretation of the facts. The defendant
takes the prosecutor’s statement to be an affirmation that all the documents the govemment was
disclosing were absolutely relevant and material to the preparation of the defense pursuant to
Fed. R. Crim. P. 16. The plain language, particularly when viewed in the context of
representations the government made during the course of this status conference and those that
followed, however, indicate to the Court some equivocation on the govemment’s part. ln
context, and in light of the Court’s own understanding of the proceedings in this case, it appears
to the Court that the prosecutor was simply stating that the government was making most of the
evidence received from Colombia available to the defendants given the possibility that the
documents @gl_it be material to the preparation of the defense. lndeed, during a discussion about
CD-ROM discs containing recorded telephone conversations, the govemment stated that "it’s
doubtful that the vast majority of those conversations would be offered into evidence [by the
government]," (Hr’ g Tr. 12, Aug. 12, 2008), "[b]ut to be frank . . . l think that it is quite p_ossij,
again, that mich of this information is relevant and material to the defense and some of it is
going to be used in our case in chief," (Hr’ g Tr. 13-14, Aug. 12, 2008 (emphasis added).) Here
again, the prosecutor is equivocal about whether the evidence absolutely is relevant and material
to the preparation of the defense and, instead, indicates that the govemment is taking the stance
of disclosing anything that the defense possibly might consider relevant.
Furthermore, the transcript from this hearing, as well as the others, is replete with

discussions about the complexities of the discovery in this case because of its volume and the

__9__

fact that it is coming from Colombia, covers a large geographical area in terms of the
indictment’s allegations, is in Spanish, in some cases it is in formats that pose technical
problems, and, as defense counsel concedes, in some respects it is of a poor quality. (§e_e, gg;,
Hr’g Tr. 4, 8-11, 16-18, 21-23, 25-29, Aug. 12, 2008; Hr’g Tr. 8-9, 17, 22-26, 36, 38-39, Dec. 9,
2008.) As a matter of fact, during the August 12, 2008, status conference, Martinez Vega’s and
Rodriguez Mendieta’s attorneys both indicated that they had already reviewed certain discovery
that they determined was not relevant to their clients, (Hr’g Tr. 20, 27, 29, Aug. 12, 2008), in
which case logic dictates that they were aware the government was disclosing more than Rule 16
requires. Rodriguez Mendieta’s attomey stated that she had no intention of reviewing the
discovery documents until the government produced an index because it would be
"irresponsible" to do so. (Hr’ g Tr. 22, Aug. 12, 2008.) If, however, defense counsel really was
operating under the misapprehension that all the discovery documents were material to the
preparation of the defense, it would be irresponsible n_o_t to review them, regardless of whether
they were in Spanish.3 Which leads the Court to infer that counsel understood that, at least with
respect to the individual defendants, they knew the discovery contained documents that were not
relevant to their cases. Martinez Vega’s attorney even pointed out that some audio discovery
appeared to have been turned over to the defense without any review at all by the government, in
which case a relevancy determination could not possibly have been made. (Hr’ g Tr. 29, Aug. 12,

2008 (stating "[s]o it would appear that at least these six disks of audio tapes were provided

3 As the Court noted in its July 15, 2009, order, defense counsel were advised early

in the case that the Court would authorize translators to assist them to review the documentary
discovery. (Order Regarding Pending Motions, July 15, 2009.)

__1()__

apparently by the Colombian govemment to the U.S. government, without anybody having
reviewed them").)

On November 18, 2008, the govemment notified defense counsel by letter that it planned
to translate only a small subset of the 10,000 documents originally disclosed, namely about 1,000
documents. This led to further court proceedings before Magistrate Judge Facciola to determine
whether the govemment should be ordered to translate all the documents. Significantly - and
further bolstering the Court’s conclusion that the govemment consistently indicated that it was
taking a liberal approach to discovery - during the next status conference on December 9, 2008,
the prosecutor expressly stated that:

Certainly, the information that we turned over, we believe, goes beyond our Rule 16
obligations. It’s eve@hing we could conceivably turn over for any pu;pose.

(Hr’ g Tr. 4, Dec. 9, 2008 (emphasis added).) After discussions about problems with the index
for the documentary discovery, the prosecutor also stated that "l think that to the extent that the

index makes clear where specific portions of the documents relate to each defendant, the process

of culling out what it is going to be relevant to each defendant is a much smaller task at this

point, than one might imagine." (Hr’ g Tr. 41, Dec. 9, 2008 (emphasis added).) Moreover,
Martinez Vega’s attorney anticipated that the government might conclude that some of the
discovery was irrelevant when he again raised the issue about the CD-ROM discs containing
audio recordings that appeared to have been disclosed to the defense without any government
review beforehand:

I just would remind the Court that we received about 25 discs of material that at least
have labels of some sort on them, something identifying, apparently either by dates
or by people, or nicknames, or something like that, none of which were familiar to
me or my client, but then there were an additional six discs that simply are labeled,
"Additional CTI Intercepts," and you open it up and it says, "New calls for review,"
and there’s one, two, three, four, five, six discs of those. They don’t appear to be
organized in any fashion, and I would ask of the Court - of Mr. Jackson, through the

__11__

Court, when he’s talking about saying, "The extent of the review of those CDs
varies," what exactly is the po sition, because the index that he provided us before did
not purport to cover those, and we would ask that an index be provided to cover that.

l mean, it may be that Mr. Jackson will get up and say, "You know, we just gave you
all that stuff, but" we don’t - "lt’ s not relevant, and we’re not going to use it, and it’s
not important," but it’s my position, the same with the 10,000 pages of documents,
that if they gave it to us, they have some obligation to tell us what it is that they’ re
giving us, particularly when they’re not in our native language.

(Hr’g Tr. 32-33, Dec. 9, 2008.)4

lt also is noteworthy that, nearly two months after that status conference, Judge Facciola

issued an order in which he stated:

The govemment has made a production of documents received from the govemment
of Colombia or otherwise in its possession to the defendants. We have ascertained
that any attempt to scan the documents into digital form and then search them using
optical character recognition would be fruitless; such an effort was made and failed
and no one can see any better way to do it. Thus, the only guide to the contents of the
documents is an index that has been prepared by DEA and other agents working on
the case who can read the documents in Spanish. While the index is in English, the
documents are in Spanish and the lawyers for the three defendants have differing
capabilities in translating Spanish into English. The hope has always been that the
index would enable the lawyers to quickly ascertain which of the documents are. in
the lang\_iage of Rule 16 of the Federal Rules of Criminal Procedure, "material to
preparing the defense." Unfortunately, the parties do not agree that the index that has
been provided is sufficient.

(Magistrate Judge Facciola’s Order Regarding Discovery, Jan. 28, 2009 (emphasis added).)

Judge Facciola further stated that "[i]t has been my hope and, lpresume, the hope of the parties,

that we could reduce the burden, which will be borne by the taxpayer, of translating these

discloses any evidence it should be required to provide an index of that evidence so the
defendants can determine the evidence’s relevance rather than relying on the government’s

assessment of it, which confirms that the parties might disagree about what is relevant. ln which

case it seems unsportsmanlike to penalize the prosecutor for giving the defendants the

opportunity to review the bulk of the government’s evidence to make their own determination

about whether there is anything they consider helpful to the defense notwithstanding the
government’s ultimate characterization of some or all of the material as irrelevant.

__jp_-_

Notably, Martinez Vega’s attorney appears to be arguing that, if the govemment

voluminous documents because the attorneys could consult an appropriately detailed index to
determine which documents likely contained information important to the case." lpd. (emphasis
added). As demonstrated, Judge Facciola’s order unmistakably states that the Court understood
that the purpose of the original indexing process was to provide a means for the defendants to
"quickly ascertain which of the documents are, in the language of Rule 16 . . . ‘material to
preparing the defense."’ Ld. This point would be superfluous if it was already understood that all
10,000 documents originally produced by the prosecutor were material to the preparation of the
defense. Clearly, at a minimum, the Court understood that the scope of the government’s
original production might contain documents that do not necessarily meet the standard for
disclosure pursuant to Fed. R. Crim. P. 16. Judge Facciola’s order goes on to state his strong
recommendation that the government translate all the documents, but limits the court order to
those documents that the govemment plans to use in its case in chief, that are material to the
defense, or that tend to exculpate the defendants. ig

About two weeks later, during the subsequent March 9, 2009, status conference to further
discuss whether the govemment should be required to translate all 10,000 documents, the
govemment stated:

l would point out that there is a balance between our ability to provide defense

counsel with all of the information that they could possibly look towards, in terms

of putting together a defense, and all of the piece [sic] of infonnation which could

conceivably constitute a Rule 16 disclosure, and time.

Here, we’re faced with the choice between either providing a very limited piece of

the universe of information that could be accessible to them, that could potentially

be useful to them, and working with that, or essentially being punished for giving

defense counsel a broader portion of the universe of documents that could be useful

to them.

There are literally millions of documents that we potentially could have gotten from

the Colombian government, that could’ve been useful to defense counsel, and what
we provided initially was a very small subset of the documents that we thought were

__13-_

either potentially material to the defense, or potentially Rule 16 discovery of things
that we would’ve used. We’ve now narrowed that universe, and l don’t think that the
fact that there was an initial production of 1 1,000 documents means that all of those
documents are necessarily material to the defense or constitute Brady.

(Hr’g Tr. 24, Mar. 9, 2009 (emphasis added).) During this same hearing the govemment agreed
to certify that there was no Brady evidence or documents required to be disclosed pursuant to
Fed. R. Crim. P. 16 in the remaining 9,000 or so documents that the govemment did not intend to
translate. l_d_. at 25. When defense counsel questioned whether the original 10,000 documents
were "useless," Judge Facciolalexplained:

[A]s l understand it, [the prosecutor] said there was a universe of over a million
[documents]. From those million, he came down to 10,000 that might be -
potentially fall within Rule 16, or be useful to you, or be introduced in evidence.

Now, from those 10,000:, he is now ready to certify that only the 1,000 that he’s given
you, and that is going td be translated, are the only ones that meet any obligation he
has to produce them, whether it flows from being material to the defense of the Rule
16 or a Brady obligation, or giving you the evidence that he intends to use at trial.
That’s what he just said.

lpd. at 26. Likewise, during a March 12, 2009, hearing before this Court, the prosecutor stated:

There is nothing really elxceptional about the fact that we initially turned over a group
of Spanish documents lthat appeared to be the 10,000 or so documents that we
initially thought were thle most relevant and that we would potentially be using based
on our - based on wh`j we received from the Colombian govemment, and that as
time has gone on and e have done the discovery index, we have reviewed that set
of documents more with Colombian authorities and with DEA here, we have been
able to winnow the univierse of documents that fit within the description of important
to the trial.

l think this is typical, fairly typical in these cases, or in any criminal case.
(Hr’g Tr. 36, Mar. 12, 2009.) "i`he prosecutor further stated that:

We think that we are trahslating all of the documents that we would either use at trial
at this point or that woiild be helpful to the defense, and we think that the index that
we created of those documents would assist the defendants in identifying any
additional portion that they thought was critical - critical to their defense and needed

to be translated in addition to the thousand pages that we are already translating.

_-14__

We endeavored, after we received Magistrate Judge Facciola’s order, to investigate

the possibility of translating this to assess how difficult it would be, and we spoke to

a contractor who could assemble a team of translators that could work on this proj ect,

and their cost estimate for translating the remainder of these documents was

approximately 8 81 5 ,000, and they estimated using these multiple translators it would

take them approximately 11 or 12 months to complete it.
(Hr’ g Tr. 8-9, Mar. 12, 2009 (elmphasis added).) The Court views these statements to be
consistent with how the process evolved, particularly the fact that the government made clear
early on that it was taking a liberal approach to discovery disclosure by providing the defendants
with a broad scope of the documents it received from Colombia.

Without belaboring thelpoint, and viewing the transcripts in context and in their totality,
along with the entire record in ihis case, with which this Court is intimately familiar, the Court

finds that the record factually s:hipports its conclusion that the govemment originally offered the
l

defendants access to the broadist swath of evidence the govemment received from Colombia

while engaging in a "culling" }irocess according to which it continued to refine the sphere of
documents that would be used in its case in chief, that potentially could be considered B&dy
material, and that in fact were inaterial to the preparation of the defense pursuant to Fed. Rule
Crim. P. 16. Moreover, the facit that the govemment was taking this approach was never a
mystery, as demonstrated by t ie transcripts of the status conferences before Judge Facciola,
Judge Facciola’s orders, and t e status conferences over which this Court presided. Even the
most perfunctory review of th status conference transcripts reveals the complex, dense, and,
admittedly, frustrating nature f the discovery process in this case involving volumes of evidence
from Colombia that are in Spa ish. At worst, though, a reasonable - and, importantly, informed
person - would characterize thi> discovery process as convoluted, disorganized and mismanaged

in many respects, but the recoril reveals no inconsistency between the prosecutors early

representations about the natu\ie of the 10,000 documents originally disclosed to the defense and

l
__15-_

its representations later in the case that would be sufficient to rise to the level of prosecutorial

misconduct for lying to the Corirt.$ Finally, no evidentiary hearing was warranted because the

the alleged prosecutorial misco

record was well established and contained the facts necessary for the Court to evaluate whether

nduct occurred, the defendants’ desire to delve into the

prosecutor’s thought process notwithstanding.

Obviously, the defendar
Regrettably, though, the defend
ultimately is revealed to be a p<
conclusions and judicial ruling
absolutely clear is not a legal b
486 U.S. at 865; Microsoft Cor
posture and decision to file this
defendants trivialize and under
judicial system and the guarant

so lightly, and certainly should

rts disagree with the Court’s analysis, which is their prerogative.
ants attempted to manufacture a judicial bias out of what
:destrian difference of opinion about the Court’s factual

on Martinez Vega’s Motion to Dismiss, which precedent makes

asis for disqualification. gap Liteky, 510 U.S. at 555; Liljeberg,

p_., 253 F.3d at 114; Ba;r_y, 938 F.2d at 1340. The defendants’

motion is regrettable because, by filing this frivolous motion, the

mine a principle that serves as an imperative to the viability of our

ee of justice. The impartiality of the Court should not be treated

not be treated as a mere tactical pawn to be gamed by litigants

who are simply unhappy that judicial rulings did not go their way. Particularly in a case such as

this in which another nation ha
citizen will be treated justly an

responsibility to carry out that

5 Martinez Vega’

prosecutor’s representations to

disclosed to the defense and la1

s entrusted one of its citizens to this Court with assurances that its

d fairly. Undoubtedly, this Court takes very seriously its

promise.

s Motion to Dismiss alleged misconduct based only on the
the Court and not on the volume of documents the govemment
ter characterized as irrelevant.

__16-_

In the final analysis, thd defendant’s motion to recuse is devoid of any basis in fact or law.
As stated previously, the Courtj had no extrajudicial source for its ruling and the defendants’ mere
disagreement with the Court’s interpretation of the facts is patently insufficient to meet the legal
standard for disqualification p rsuant to 28 U.S.C. § 455(a). The motion is frivolous and an ill-
conceived attempt to cast aspe sion on the integrity of the Court when there is no basis to do so.
The defendants waited, literall , until the eleventh hour to file this motion before an important
pre-trial hearing and, as a cons quence, witnesses the government flew in for the proceedings had
to be rescheduled and evidenti ry hearings were canceled. All in all, the motion served only to
further delay these important p oceedings, and did so unnecessarily and without any legal merit.
CONCLUSION
For the foregoing reasons, Juan Jose Martinez Vega’s Motion to Recuse will be denied.

An appropriate order will accompany this Memorandum Opinion.

/
October _}HOU z

Thomas F. Htgj]n
United States Di ` tJudge

__17__

United States v. Victoria