Judge throws out recusal motion from Roger Khan

US District Judge, Dora L. Irizarry yesterday threw out Guyanese businessman Roger Khan’s motion to have her remove herself from presiding over his drug case stating that his arguments were without merit and adding that she has no reservation whatsoever that she can continue in a “fair and impartial manner.”

Khan, in a multiple-page motion filed by his lead attorney Robert Simels, had accused Justice Irizarry of showing partiality during a court hearing where she ordered one of his lawyers, Telesforo Del Valle, to recuse himself from the case and at another session where she granted a gag order restraining both the defence and the prosecution from discussing certain aspects of the case with the media.

The judge noted that in the first argument which involved lawyer, Del Valle, Khan alleged that prior to the lawyer’s appearance he had an ex parte conversation with her during which she allegedly advised him that “there was no problem in [his] entry into the case, that she would simply recuse herself based upon [his] entry into the case, and ask that the case be re-assigned.” Further, Khan had argued that the judge in issuing her order directing the lawyer to withdraw, brought her impartiality into question because she allegedly suggested that Simels had “improperly schemed to see the Court’s removal from the case by having Mr Del Valle appear as co-counsel,” and because she allegedly implied that he had not conferred with Del Valle on the recusal matter.

Without merit

“The court finds the defendant’s charge here without merit,” the judge said. Among other things the judge said that on the day of the order she expressly declined to pass judgement on defence counsel’s motives.

Khan also referred to certain statements made by the judge when she prohibited all counsel from speaking to the press during which she said that the “Defendant allegedly headed a powerful cocaine trafficking organisation” and was “charged with leading a major violent drug organisation out of Guyana.” Khan had said that because the indictment does not allege that the formal charges involved violence, such statements indicated that the judge had already pre-judged Khan and that she had gathered facts about him and the charges from extra-judicial sources such as its ‘Googleing’ of Khan’s name.

Once again the court found the arguments without merit. The judge said that her statements clearly reflect that they were merely allegations made by the government. “The indictment formally charges the defendant with being the principal administrator, organiser, and leader of a continuing enterprise that trafficked in over 150 kilograms of cocaine. Moreover, the Government has alleged that the defendant led a violent organisation,” the judge said. She said his argument that she may have garnered information about him from the internet is, “apart form being incorrect, mere speculation that cannot raise a reasonable challenge to the court’s impartiality.”

Judge Irizarry further stated that in his complaints about her visit to Simel’s internet website which he labelled as her improperly acting as “knight-errant”, Khan failed to mention that it was a Guyanese press member who through Simels’ statements at a press conference, alerted the court of potentially misleading advertising on the lawyer’s website related to the case and other cases. She said upon learning of the potential ethical violation, the court was obligated to follow up on the press member’s allegations according to Codes of Conduct for United States Judges Canon (“Codes”) 3B (3) which states “A judge should participate in establishing, maintaining, and enforcing high standards of conduct, and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved.” As a result, the judge said her visit to the website does not support Khan’s contention of bias.

The last argument put forward by Khan for the judge to remove herself was that when a hearing was held in connection with the Government’s rule 23:1 motion there was an exchange between the court and Simels regarding a digital video disc (DVD) allegedly containing a video of the press conference the lawyer had in Guyana. Simels had stated that the DVD showed that he was not accompanied by Khan’s bodyguards at the press conference, as was stated in one of the articles the US Government brought to the court’s attention and mentioned in the Government’s papers. However, the judge said the DVD was never submitted to the court.

“It is unclear whether and how the defendant proposes that this interchange reflects the court’s bias, as he does not address it in his discussion. The only reference the defendant makes to this incident in his discussion is a sole statement that ‘the court has also strongly suggested that Khan’s principal attorney, Mr Simels, regularly engages in underhanded tactics, gamesmanship and worse,'” the judge said. The judge asserted that the statement by Khan appears to be a reference to the fact that she commented, during the DVD interchange, “I don’t like gamesmanship.” “The court is not aware of any reason that this remark reflects bias, and the defendant’s papers offer no assistance in this regard. The court will not speculate on this point, and, thus, the defendant has raised no reasonable challenge to the court’s impartiality here,” the judge concluded.

The indictments charge Khan with conspiracy to import cocaine; leading a continuing criminal enterprise, conspiracy to import cocaine, conspiracy to distribute cocaine, importation of cocaine and distribution and possession of cocaine with intent to distribute it.

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