The opinion of the court was delivered by: J. Michael Seabright United States District Judge
ORDER DETERMINING THAT THE COURT SHOULD NOT BE RECUSED OR DISQUALIFIED
In this capital case, Defendant Naeem J. Williams ("Defendant") has filed a "Motion for the Court to Determine Whether It Should Be Recused as the Trial Judge." Doc. No. 1996. In the Motion, Defendant asks the court -- based on the record that was developed when the court disclosed two events, sua sponte, after this action was assigned to this court -- to make a formal determination as to whether it should recuse or disqualify itself under 28 U.S.C. § 455(a) and Federal Rule of Criminal Procedure 11(c)(1). After careful consideration and based on the following, the court concludes that recusal or disqualification is unwarranted. A reasonable person with knowledge of all the facts could not conclude that the court's impartiality would be questioned.
The parties are aware of the relevant facts, which the court reiterates here in detail so as to place this Order in context, and to assure the record is clear as to the extent and circumstances of the court's knowledge (or lack of knowledge) of prior plea discussions.*fn1
Immediately before being appointed as a United States District Judge (effective on May 17, 2005), the undersigned was an Assistant United States Attorney in the District of Hawaii until May of 2005. According to the First Superceding Indictment, the death at issue in this case occurred on or about July 16, 2005 -- about two months after the undersigned began serving as a District Judge. Doc. No. 136, First Superseding Indictment at 2. The original criminal Complaint in this action was filed on July 18, 2005 against co-Defendant Delilah Williams, followed by a criminal Complaint against Defendant on August 8, 2005. Doc. No. 1 (Mag. No. 05-0606 BMK), Doc. No. 1 (Mag. No. 05-0676 LEK).
With those dates in mind, soon after this case was reassigned to this court on March 1, 2013, Doc. No. 1966, the court made the following disclosures in open court on March 5, 2013 and again on April 2, 2013. The disclosures concern two events where plea matters were arguably mentioned: (1) a short exchange with Assistant United States Attorney Marshall Silverberg (who formerly was counsel for the government in this action), and (2) a conversation with United States Magistrate Judge Barry M. Kurren. Specifically, on March 5, 2013, the court disclosed the following to counsel and for the record, as reflected in the transcript of that hearing:
. . . I was formerly in the U.S. Attorney's Office before taking the bench. . . . [Until recently,] I had . . . thought I was never likely to touch the case because I thought I was in the office at the time, which would result in recusal. . . . But then I went back and looked at that point and saw it actually was shortly after I left that the case came into the system.
So with that background, several years ago, and the timing on this I cannot place [but it] was before the construction started because it was in the entrance to the courthouse. . . . [B]efore that construction there was an open . . . walkway up there.
And when Mr. Silverberg was still assigned to the case, I had seen him in that area one day. And my recollection isn't perfectly clear, but he said something to me about, whether it was an effort on his part, a desire on his part or actual discussions, I don't know, about an interest at least in having Mr. Williams enter a plea of guilty to the guilt phase but have a trial on the penalty phase. It was a comment sort of in passing when I was just talking to him and asking him how things were going and somehow that subject came up. I don't recall there was any other discussion I had with him and I don't recall whether the discussion went any deeper than that. You certainly are welcome to go ask him. He may have a better recollection than I do.
I don't believe, certainly, there were any disclosures about discussions with defense or anything of that sort going on. Just that it was either something that he was interested in pursuing or that the parties were interested in pursuing, I don't know or can't recall at least the exact nature of that conversation. . . . .
The only other thing I wanted to tell you is, at the time when I also believed I was recused from the case, I did know, because Judge Kurren told me, that he was as I recall writing a letter to DOJ seeking reconsideration, perhaps is what it was, of the decision on the death penalty. And as I recall, there was some issue about the defendant's health perhaps not being what it was at the time of the initial decision, something along those lines. I don't really recall more than that.
Doc. No. 1908, Tr. 5-6, Mar. 5, 2013.
[T]o be clear, in part for my own benefit I wanted to lay out, I thought I was going to be recused if it ever came about this kind of situation. So normally I would not have a conversation of that sort with an AUSA, but I felt that it was a case that I could never touch in reality and it didn't end up being that way.
Following those disclosures, Defendant's counsel interviewed Mr. Silverberg (with agreement from the government), and Mr. Silverberg provided the following recollection in an email to counsel:
I now recall passing by Judge Seabright in the courtyard and him greeting me by saying something like, "what's up?" or "how's it going?" or "how are you?" or words to that effect. To the best of my recollection, I responded something to the effect of "I am trying to get the Williams case to plead out." I don't recall saying that I wanted a guilty plea as to the charges and then only a penalty trial, although I could have. I simply don't recall. All I recall was that the Judge greeted me like people who pass each other usually do and I responded something about trying to get the Williams case resolved with a guilty plea and that's it. The Judge was walking one way and I was walking the other way and the entire exchange lasted about five seconds. As I recall, we never even came to a full stop. He was walking into the courthouse with his lunch and I had just left the Federal Building and I was on my way to buy lunch or conduct an errand. . . .
Finally, to the best of my recollection, the Judge did not respond to my comment in any way. He went his way and I went my way. He may have nodded goodbye or waved a little as people do when they are parting but, to the best of my recollection, he did not respond to my comment in any way. I continued on my way, preoccupied like before, and probably forgot about the exchange shortly thereafter.
Doc. No. 1975-1, Def.'s Mot. at 5 (quoting email from Mr. Silverberg).
On April 2, 2013, at a hearing requested by Defendant to discuss the court's knowledge of these issues, the court made the following additional comments in response to court filings or questions from counsel:
. . . . I did read the email response from Mr. Silverberg. And it seems like his recollection is even lesser than mine, if you will. His was even hazier as to the extent of the conversation. . . .
The one thing I thought in your motion, just to be clear, that wasn't exactly accurate, I don't know if what Mr. Silverberg, and I don't know if I don't know this because he didn't say it or I don't remember it, I just can't answer that. I don't know if he was talking from his perspective as to what he was hoping for or what the actual discussions were. I really don't have any clue as to that as I sit here right now. All I remember is a discussion about this concept in some way of a plea of guilty to the substantive offense of some sort. There was no detail as to what that ...