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United States v. Malray

United States District Court, W.D. Louisiana, Shreveport Division

August 25, 2017

UNITED STATES OF AMERICA
v.
DONALD W.MALRAY

          MAGISTRATE JUDGE, HORNSBY

          MEMORANDUM RULING

          S. MAURICE HICKS, UNITED STATES DISTRICT JUDGE

         Before 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 DENIED.

         BACKGROUND

         On 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.

         Malray 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 Hicks.

         Record 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.

         On 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, ...


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