United States v. O'Brien

18 F. Supp. 3d 25, 2014 U.S. Dist. LEXIS 28852, 2014 WL 905613
District Court, D. Massachusetts·Decided March 6, 2014·No. Criminal No. 12-40026-FDS·Published·Cited by 6 cases

Opinion

MEMORANDUM AND ORDER ON DEFENDANTS’ RENEWED MOTION TO RECUSE

SAYLOR, District Judge.

This is a criminal prosecution arising out of an allegedly corrupt hiring scheme at the Massachusetts Office of the Commissioner of Probation between 2000 and [28]*282010. Defendants John J. O’Brien, Elizabeth V. Tavares, and William H. Burke, III, all former Probation officials, are charged with conspiracy to commit racketeering, racketeering, mail fraud, conspiracy to commit bribery, and bribery. Essentially, the government contends that defendants engaged in a scheme to defraud involving the process of hiring probation officers, in which individuals who were “sponsored” by state legislators would be hired in return for favorable appropriations and other legislation. The government does not argue that mere patronage hiring is a crime, but rather that defendants engaged in a rigged hiring process involving, among other things, the use of falsified documents and deliberate misrepresentations.

Defendants John J. O’Brien and William H. Burke, III, now joined by defendant Elizabeth V. Tavares, have filed a renewed motion that I recuse myself in this matter. The motion is, in part, a renewal of defendants’ prior motion, which I denied in a written memorandum and order dated February 6, 2014. Familiarity with that memorandum is presumed.

Defendants now contend that they intend to call one of my colleagues, United States District Judge Timothy S. Hillman, as a witness in this case. Defendants’ renewed motion comes on the eve of trial, and is based on a claim of alleged “newly-discovered” evidence: that Judge Hillman is not merely a colleague, but a friend.

For the following reasons, the motion will be granted.

I. Statement of Facts

1. Timothy S. Hillman is a United States District Judge for the District of Massachusetts.

2. Judge Hillman is assigned to the Central Division, and sits principally in Worcester. He has been' a District Judge since June 2012.

3. There are presently 13 judges in the District of Massachusetts, ten of whom are active and three of whom are senior. Judge Hillman and I are two of the ten active judges.

4. Prior to becoming a District Judge, Judge Hillman was a United States Magistrate Judge, also in the Central Division. He became a Magistrate Judge in February 2006.

5. Between February 2006 and June 2012, Judge Hillman and I served together in Worcester. Other than the Bankruptcy Judge, we were the only two judges in the courthouse.

6. In Worcester, our chambers were on the same floor, and we spoke with one another on a near-daily basis. We have worked together as colleagues for eight years. I consider Judge Hillman to be a friend.

7. Prior to becoming a Magistrate Judge, Judge Hillman was an Associate Justice of the Superior Court. Before that, he was a Justice of the state District Court. He served in the state judiciary from 1991 to 2006.

8. This case was indicted on March 22, 2012. It was initially assigned to me as the District Judge and Judge Hillman as the Magistrate Judge.

9. Then-Magistrate Judge Hillman presided over a number of early proceedings in this case; among other things, he appointed current counsel (that is, the Federal Defender’s Office) to represent defendant O’Brien.

10.At the time of the indictment, Judge Hillman had been nominated [29]*29to a seat on the United States District Court. He received his judicial commission on June 6, 2012. On June 18, the case was reassigned to Magistrate Judge Soro-kin.

11. I was reassigned from Worcester to Boston in July 2012.

12. Between August 23, 2012, and November 20, 2012, the government produced various items of written discovery to the defendants.

13. That written discovery indicated, among other things, that Judge Hillman, while a state court judge, either wrote recommendation letters to various individuals for appointment or promotion as probation officers, or permitted his name to be used as a reference for such persons on the standard court form. According to defendants, Judge Hillman did so 22 times.

14. The government also produced to defendants so-called “sponsor lists” of names of candidates for probation officer positions; Judge Hill-man’s name was on four such lists. There is no evidence that Judge Hillman created those lists, or was even aware they existed.

15. Defense counsel were aware, or reasonably should have been aware, no later than the end of 2012 that Judge Hillman was a possible witness.

16. Defense counsel were aware from the beginning of this case that Judge Hillman and I worked together in Worcester, and that there was only one district judge and one magistrate judge at that location.

17. On May 17, 2013, after consultation with the parties, I set this case for trial beginning on January 6, 2014.

18. On July 23, 2013, defendants jointly moved to continue the trial. I granted that motion.

19. On August 2, 2013, again after consultation with the parties, I set a new trial date of February 24, 2014.

20. Between January 9 and 15, 2014, I issued at least five rulings adverse to the defendants, including significant rulings that denied a motion to dismiss and a second motion to continue the trial.

21. On January 16, 2014, defendants O’Brien and Burke moved for my recusal on a variety of grounds. The principal basis of the motion was the alleged connection of my former law partner, Paul Ware, to this case.

22. Defendants’ initial recusal motion did not mention Judge Hillman, or my possible relationship with him, as a basis for recusal.

23. On January 22, 2014, defendants filed a third motion to continue the trial.

24. On January 24, 2014,1 held a hearing on defendants’ motion for recu-sal. In the course of that hearing, and as part of a comparison for purposes of illustration, I commented that Judge Hillman was a friend as well as a colleague.

25. On January 27, 2014, defendants informed me that they intended to call Judge Hillman as a witness, and that they might seek my recu-sal on that ground.

26. On January 29, 2014, I held an in camera conference (the transcript of which was later unsealed) to address defendants’ claim that they intended to call Judge Hillman as a witness.

[30]*3027. In the course of that conference, counsel for defendant Burke alleged that Judge Hillman had “referred a number of candidates to probation jobs, including his own daughter ... that’s a matter of record.” (Jan. 29 Tr. at 17). He later reiterated that Judge Hillman “called up, he referenced] qualified people, including his daughter, for jobs in the probation department.” (Id. at 20-21).

28. The statements concerning Judge Hillman’s daughter were false.

29. Later that day, counsel for defendant O’Brien filed a letter with the Court withdrawing the allegation as to Judge Hillman’s daughter. Counsel for defendant Burke, who had made the allegation, joined in the letter, although he did not write it.

30. On January 31, 2014, I set a briefing and hearing schedule on the newly raised recusal issue.

31.

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United States v. O'Brien, 18 F. Supp. 3d 25, 2014 U.S. Dist. LEXIS 28852, 2014 WL 905613 (D. Mass. 2014).

18 F. Supp. 3d 25 (United States v. O'Brien) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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