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United States v. Graves

United States District Court, E.D. Virginia, Richmond Division

July 22, 2019



          Robert E. Payne Senior United States District Judge.

         This matter is before the Court on the Defendant's MOTION TO DISQUALIFY JUDGE ROBERT E. PAYNE (the "Motion") (ECF No. 42), which, for the following reasons, will be denied.


         Walter Graves ("Graves") is charged in a one-count indictment with a bank robbery that occurred on May 13, 2015 in Petersburg, Virginia. ECF No. 3. The facts of the bank robbery are not at issue in the Motion and need not be addressed further.

         Instead, the Motion focuses on a hearing held on April 22, 2019 (the "April 22 hearing"), at which the Court heard argument on Graves' MOTION FOR NEW COUNSEL (ECF No. 27).[1] Before the April 22 hearing, in his response to Graves' MOTION FOR NEW COUNSEL (ECF No. 27), Gill represented that his communications with Graves had "grow[n] briefer and more clipped as time passes," and that Graves had informed Gill that he (Graves) desired new counsel. ECF No. 29. Gill believed that Graves' MOTION FOR NEW COUNSEL (ECF No. 27) should be granted because of the breakdown in communications between him and Graves.

         At the April 22 hearing, Graves made four arguments for why his attorney, Gill, should be replaced: (1) that Gill requested a "useless and baseless bond hearing";[2] (2) that Gill was "wonton [sic] and ineffective" for failing to call out allegedly perjured statements by the Assistant U.S. Attorney; (3) that Gill was "incompetent" for not recalling "important facts or dates pertaining to [his] case";[3] and (4) that Gill "admitted" on three occasions that Graves "needed a new lawyer, and that he, Gill was not putting forth his best defensive strategy.'[4] See ECF No. 31-1; Hr'g Tr. at 4-9 (ECF No. 40). Graves asked the Court for "another professional lawyer with morals that's going to defend my case in the utmost professional quality defensive strategy that I and all indigent defendants are entitled to by lawyer [sic]." Hr'g Tr. at 8.

         During the April 22 hearing, the Court heard largely from Graves and Gill. During the hearing and in assessing the arguments made by Graves, the Court commented, inter alia, that Graves "thinks he knows a lot about the law and doesn't, apparently, know much about it," Hr'g Tr. at 11; that Graves "has a contentious way about him," id.; that "he's going to treat whatever lawyer is appointed for him the same way," id.; that Graves "has to behave," id. at 13; that Graves' was "running his mouth" in criticizing Gill, id.; and that Graves' "attitude [is] animating [the] situation" requiring new counsel. Id. at 14.

         The Court concluded that the breakdown in communication between Gill and Graves was "entirely, completely attributable to Mr. Graves who is, as best I can recall, one of the most contentious, insulting defendants for whom the Court has appointed counsel," that he is "wrong about virtually everything he says," and that he was "thankless" towards Gill's representation. Hr'g Tr. at 21. However, after hearing the arguments, especially Gill's representation that the relationship was largely broken, the Court granted Graves' MOTION FOR NEW COUNSEL (ECF No. 27) by an ORDER (ECF No. 32) entered on April 23, 2019. See Hr'g Tr. at 21-23. The Court cautioned, however, that it had "every apprehension that the same bull-headed, contentious, arrogant, and mean-spirited conduct will be visited [by Graves] upon the other lawyer, and if it is, there will be no other lawyer because it is obvious to me that the entire fault here is Mr. Graves." Id. at 22. Thereafter, Mr. Theodore Bruns, Esquire ("Bruns"), was appointed as Graves' counsel on April 23, 2019 (Gill's representation was terminated that same day).

         Then, the Court received a handwritten letter dated April 24, 2019 (i.e. one day after the Court granted Graves' MOTION FOR NEW COUNSEL) from Graves in which he stated that "[u]pon further review, thought, and time, I Graves request and ask for the reinstatement of my former lawyer Paul Gill so that the case may proceed in a timely manner." ECF No. 33. Although Gill's representation had terminated at that point, the Court ORDERED that Gill file a response in which he was to explain whether he was willing to be reinstated as Graves' attorney. ECF No. 34. Gill responded, explaining that, when he (Gill) visited Graves to discuss Graves' April 24 letter (ECF No. 33), Graves "advised (paraphrasing somewhat) that whatever fleeting thoughts he had as represented by what was filed as ECF No. 33, he unequivocally did NOT want undersigned to represent him again, and he was mistaken to have sent the letter in." ECF No. 37 at 1. The Court denied Graves' request to reinstate Gill. ECF No. 38.

         To further confuse matters, on May 1, 2019, the Court received another letter from Graves, dated April 22, 2019[5] (i.e. the day the Court held the hearing on the MOTION FOR NEW COUNSEL), in which Graves moved "for the Removal of federal judge Payne from my upcoming trial," due to conduct at the April 22 hearing.[6] ECF No. 35. Because Bruns had recently been appointed as Graves' counsel, the Court denied Graves' request in ECF No. 35 (which had been made pro se), and ORDERED Bruns to review the transcript of the April 22 hearing and determine whether it was appropriate to re-file a Motion for Removal. ECF No. 38.

         After reviewing the April 22 transcript, Graves (through Bruns) filed the MOTION TO DISQUALIFY JUDGE ROBERT E. PAYNE (ECF No. 42). The Government responded in opposition. ECF No. 43. Graves did not file a reply brief.[7] The matter is now ripe.


         Although Graves' Motion cites to both 28 U.S.C. § 144 and 28 U.S.C. § 455 for judicial disqualification, he states that "[f]or the purpose of this motion, Mr. Graves relies upon the language of 28 U.S.C. 455(a)." ECF No. 42 at 2. Accordingly, the Court only considers this ground in deciding the Motion.[8]

         28 U.S.C. § 455(a) provides: "Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." The test for disqualification under this statute is an "objective" one, asking whether "a reasonable outside observer, aware of all the facts and circumstances of [the] case, would. . .question" the judge's impartiality. United States v. DeTemple, 162 F.3d 279, 287 (4th Cir. 1998). The statute certainly "does not require a judge to recuse himself because of 'unsupported, ...

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