United States District Court, W.D. Louisiana, Shreveport Division
MAGISTRATE JUDGE, HORNSBY
MAURICE HICKS, UNITED STATES DISTRICT JUDGE
the Court is a Motion to Disqualify Presiding Judge (Record
Document 20) filed by Defendant Donald W. Malray
("Malray"). Malray filed the motion pursuant to 28
U.S.C. §§ 144 and 455(a) and seeks the
disqualification of the undersigned from this matter based on
the prior interactions between this Court and Malray and the
actions of the undersigned during and after the trial of
United States of America v. James Calvin Curry,
Criminal Action No. 02-50088. For the reasons set forth
below, Malray's Motion to Disqualify Presiding Judge is
April 27, 2017, the grand jury returned an Indictment
charging Malray with conspiracy to commit mail fraud and two
counts of mail fraud. See Record Document 1. The
matter was randomly assigned to the undersigned. Malray and
the Government have reached an agreement to resolve this
matter with a plea of guilty as to Count One of the
Indictment (Conspiracy to Commit Mail Fraud). By referral and
with Malray's consent, the matter was set for a change of
plea hearing before Magistrate Judge Mark Hornsby on August
17, 2017 at 2:30 p.m. See Record Document 19. Malray
filed the instant Motion to Disqualify on August 17, 2017.
See Record Document 20. The change of plea hearing
was upset pending resolution of Malray's request for
disqualification of the undersigned.
submits that disqualification is "appropriate and
necessary" for the following reasons:
1. A review of the interactions between Judge Hicks and Mr.
Malray during and after the Curry trial, including the
referral of Mr. Malray's trial testimony and conduct to
the United States Attorney's Office for prosecution, and
the contempt proceedings initiated by Judge Hicks against Mr.
Malray for this same conduct create a situation where Judge
Hicks' impartiality during the sentencing of Mr. Malray,
should the plea go forward, might reasonably be questioned.
2. The action of Judge Hicks in initiating what appears to be
the instructing of the United States Attorney to open a
criminal investigation of Mr. Malray in connection with his
testimony and conduct before the Court in the Curry trial are
indicative of a personal bias or prejudice against Malray
which could result in Mr. Malray receiving harsher punishment
should the plea go forward and he is sentenced by Judge
Document 20 at 1. The undersigned presided over Curry's
September 2003 criminal trial. See United States of
America v. James Calvin Curry, Criminal Action No. 02-
50088. Malray was called as a defense witness during the
trial. See id., Record Document 113. During the
course of that trial, this Court held two hearings involving
Malray. The first was held on September 24, 2003:
Based on an alleged violation of the rule of sequestration,
the Government moved to disqualify defense witness Donald
Malray from testifying. For the reasons orally assigned, the
Court found that a violation of the rule of sequestration had
occurred, but as the defendant nor his counsel was aware of
this violation, Malray would be permitted to testify.
Following Malray's testimony, the Court ordered him not
to leave the courthouse without further order of the Court.
At 5:00 p.m., the Court was advised that Mr. Malray had left
the courthouse. A bench warrant was issued for the arrest of
Donald Malray. (See Misc. No. 03-20).
Id., Record Document 112. Malray was arrested later
that same day and another hearing was held:
This matter came before the court pursuant to F.R.Cr.P.
42(B). Donald Malray appeared in the custody of the U.S.
Marshal pursuant to a warrant issued for his arrest for
failure to comply with an order of the court related to his
appearance as a witness in the trial of USA v.
Curry, 02-50088-01. Mr. Malray was advised that a
contempt hearing will be set, and that he had a right to a
lawyer being appointed to represent him if he could not
afford to retain counsel. Mr. Malray indicated that he waived
counsel. Defendant was released pending the contempt hearing.
United States of America v. Donald Malray,
Miscellaneous Action No. 03-00020, Record Document 1. Malray
was informed that his "previous testimony, under
oath" was also at issue and the matter had been referred
to the U.S. Attorney's Officer to conduct an
investigation. Record Document 20-8 at 4.
October 20, 2013, a show cause order was issued in the
miscellaneous matter directing Malray to "show cause, if
any he can, why he should not be held in contempt."
United States of America v. Donald Malray,
Miscellaneous Action No. 03-00020, Record Document 2. On
October 22, 2003, the grand jury returned an Indictment
charging Malray with two counts of making a false material
declaration during the Curry trial and the sequestration
hearing. See United States of America v. Donald Malray
and Vincent McDaniel, Criminal Action No. 03-50114,