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Umana v. United States

United States District Court, W.D. North Carolina, Charlotte Division

March 27, 2018



          Robert J. Conrad, Jr. Judge

         THIS MATTER comes before the Court on Alejandro Ramirez Umaña's Motion to Recuse Trial Judge, filed on February 22, 2018. (Doc. No. 67). Umaña contends the undersigned's prior position as the United States Attorney for the Western District of North Carolina disqualifies him from adjudicating Umaña's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255.


         In 2006, the FBI's Safe Street's Gang Task Force opened an investigation of MS-13 activity in the Charlotte area. Trial Tr. Vol. II-B 220-221, United States v. Rosales Lopez, 3:08-cr-00134-RJC-4 (W.D. N.C. ), Doc. No. 1074. In addition to the FBI, the Safe Street's Task Force included the Charlotte Mecklenburg Police Department (“CMPD”), the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”), the Department of Homeland Security's Immigration and Customs Enforcement (“ICE”), and the Gastonia, North Carolina, Police Department. Id. at 220. “In September of 2006, . . . the United States Attorney's Office for the Western District of North Carolina first opened the file under which Umaña and a number of other individuals were eventually indicted.” (Gov.'s Resp. to Recusal Mot. 2, Doc. No. 74). The criminal investigation intensified in 2007, when MS-13 member Rony Lopez became a confidential informant for the Safe Streets Task Force. Trial Tr. Vol. II-B, Rosales Lopez, supra, at 221; see also North Carolina MS-13 Members Sentenced to Prison for Role in Racketeering Conspiracy, Dep't. of Justice Press Release, June 30, 2010 (“The long-term investigation was initiated by the FBI's North Carolina ‘Safe Streets' Gang Task Force when a witness came forward with information about the violent operations of a single MS-13 cell operating out of the Charlotte area.”), available at

         The investigation culminated in a 70-count indictment against Umaña and 25 co-conspirators on RICO-related and other charges. Third Superseding Indict., Rosales Lopez, supra, at Doc. No. 623. Umaña and his co-conspirators were tried separately in 2010, and Umaña was found guilty by a jury of nine counts and acquitted of one; the United States dismissed the remaining count against him. J., United States v. Umaña, 3:08-cr-00134-RJC-2 (W.D. N.C. ), Doc. No. 1168. The undersigned presided over Umaña's trial and sentencing, as well as those of his co-conspirators.

         On June 22, 2016, Umaña filed a § 2255 Motion to Vacate. (Doc. No. 22). He has now filed the instant Motion to Recuse alleging judicial bias arising from the undersigned's tenure as United States Attorney which, Umaña contends, overlapped with “a joint federal and state investigation . . . developing evidence supporting the Government's RICO prosecution in this case.” (Recusal Br. 1, Doc. No. 67-1). The Government has filed a Response. (Doc. No. 74).


         The Rules Governing Section 2255 Proceedings in the United States District Courts specify that the judge who presided over a petitioner's trial and imposed sentence shall likewise preside over the petitioner's § 2255 motion. § 2255 Rules, Rule 4(a). Under federal law, however, “[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might be reasonably questioned.” 28 U.S.C. § 455(a). Recusal is appropriate under § 455(a) only if “an objective, disinterested, lay observer fully informed of the facts underlying the grounds on which recusal was sought would entertain a significant doubt about the judge's impartiality.” United States v. Amedeo, 487 F.3d 823, 828 (11th Cir. 2007). Additionally, any judge “shall also disqualify himself under the following circumstances: (1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding; . . . (3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy . . . .” 28 U.S.C. § 455(b).

         Finally, “[d]ue process guarantees ‘an absence of actual bias' on the part of a judge.” Williams v. Pennsylvania, 136 S.Ct. 1899, 1905 (2016) (quoting In re Murchison, 349 U.S. 133, 136 (1955)). The inquiry is an objective one. “The Court asks not whether a judge harbors an actual, subjective bias, but instead whether, as an objective matter, ‘the average judge in his position is ‘likely' to be neutral, or whether there is an unconstitutional ‘potential for bias.'” Williams, 136 S.Ct. at 1905 (quoting Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 881 (2009)).


         A. Umaña's Motion to Recuse is Untimely

         “Timeliness is an essential element of a recusal motion.” United States v. Owens, 902 F.2d 1154, 1155 (4th Cir. 1990); see also Kolon Indus. Inc. v. E.I. DuPont de Nemours & Co., 748 F.3d 160, 168 (4th Cir. 2014) (holding that Owens's timely-filing requirement applies to recusal motions under 28 U.S.C. § 455(a) and (b) alike). Umaña was required to raise any basis for recusal “at the earliest moment after knowledge of the facts.” Owens, 902 F.2d at 1156 (quoting Satterfield v. Edenton-Chowan Bd. of Ed., 530 F.2d 567, 574-75 (4th Cir. 1975)).

         The undersigned served as the United States Attorney for the Western District of North Carolina from March 15, 2001, until June 1, 2004, which was a matter of public record when Umaña and his co-defendants were indicted in 2008. Umaña asserts that the joint federal and state investigation of the RICO conspiracy actually began in June 2003, not 2006. As evidence, he cites newspaper articles from 2003 and 2004, documents he received in pretrial discovery, and testimony from his own trial and that of his codefendants. (Recusal Br. 2-3 (citing Trial Tr. Vol. I 2-7, Umaña, supra, at Doc. No. 1340; Trial Tr. Vol. 1-B, Rosales Lopez, supra, at Doc. No. 1072)). In short, the facts upon which Umaña bases his recusal motion have been known or available to him since before his 2010 trial.

         In June 2015, the undersigned appointed post-conviction counsel to assist Umaña in the preparation of a § 2255 motion to vacate. Appt. of Counsel, Umaña, supra, at Doc. No. 1621. The instant civil action was opened on February 2, 2016 (Doc. No. 1), and Umaña filed his Motion to Vacate on June 22, 2016 (Doc. Nos. 22, 24 (sealed)). The undersigned has ruled on more than a dozen motions and approved a budget in this action. Nevertheless, Umaña did not file the instant Motion to Recuse until February 22, 2018. (Doc. No. 67). By any measure, the recusal motion is untimely. See e.g., Kolon ...

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