The Volokh Conspiracy
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New Trial in Case Where Judge Had Sexting Relationship With One of the Prosecutors
From Judge Marco Hernandez's Opinion in U.S. v. Hernandez-Zamora (D. Alaska), filed Sept. 27 but just unsealed yesterday:
On May 19, 2021, Defendant Rolando Hernandez-Zamora was indicted on one count of cyberstalking in violation of 18 U.S.C. §§ 2261A(2)(A), (B), and 2261(b)(6).
On June 1, 2021, the matter was assigned to United States District Court Judge Joshua Kindred.
On November 19, 2021, Defendant was charged in a superseding indictment with one count of cyberstalking in violation of a protective order violating 18 U.S.C. §§ 2261A(2)(A), (B), and 2261(b)(6).
In December 2021 Judge Kindred began texting frequently with a senior [Assistant U.S. Attorney] ("AUSA 1"), sending her "selfies," and telling her that he found her attractive. Judge Kindred also began asking AUSA 1 to send him nude photographs of herself. AUSA 1 agreed to share nude photographs of herself with Judge Kindred via the encrypted messaging app Signal, and "he agreed to delete everything." AUSA 1 then began sending Judge Kindred nude photographs. AUSA 1 also sent Judge Kindred text messages "describing how [she] would perform oral sex on him." Judge Kindred would "frequently" send AUSA 1 texts "detailing … his fantasies of performing oral sex and anilingus on [her]."
In late 2022, the Ninth Circuit began investigating Judge Kindred for various sexual-harassment-related offenses (which apparently go far beyond the details in this case). He and AUSA 1 denied any such offenses, and also any personal relationship with AUSA 1. Eventually, though, the truth came out, and Judge Kindred resigned; but just 9 days before Judge Kindred submitted his resignation on July 3, 2024,
On June 24, 2024, Defendant's case proceeded to trial…. On June 28, 2024, the jury found Defendant guilty of cyberstalking. On July 1, 2024, Judge Kindred held oral argument on Defendant's Motion for Acquittal and denied the motion.
After the recusal, much of the information related to the allegations against Judge Kindred came out. Defendant moved for dismissal of the charges, or at least for a new trial, based on Judge Kindred's relationship with AUSA 1, and Judge Hernandez (D. Or.)—appointed to take over the case—concluded that defendant should get a new trial, even though "AUSA 1 … did not make an appearance in Defendant's case and had a limited role in the matter":
Here, although AUSA 1 did not enter an appearance for the government in Defendant's case, she introduced herself to defense counsel on the second day of trial, was present in the courtroom throughout trial, spoke to the AUSAs assigned to the matter, and assisted the AUSAs with trial. AUSA 1 was involved in the matter to some extent and present while Judge Kindred was conducting the trial. AUSA 1's presence and assistance—combined with her interactions and relationship with Judge Kindred—are circumstances under which a reasonable person would reasonably question Judge Kindred's impartiality. In addition, the Court concludes that the average judge in Judge Kindred's position was not likely to be neutral. The Court therefore concludes that Judge Kindred was required to recuse himself from Defendant's trial, and his failure to do so violated 28 U.S.C. § 455(a) [the judicial recusal statute]….
[W]hen determining whether a judgment should be vacated and a new trial ordered "for a violation of § 455(a), it is appropriate to consider the risk of injustice to the parties in the particular case, the risk that the denial of relief will produce injustice in other cases, and the risk of undermining the public's confidence in the judicial process." In addition, courts must "continuously bear in mind that 'to perform [their] high function in the best way justice must satisfy the appearance of justice.'"
The government suggests that the failure of Judge Kindred to recuse himself is harmless error because there was no reasonable possibility that prejudice resulted from the violation. Defendant points out, however, that the Supreme Court has held that "there are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error," including the right to an impartial judge.
In addition, the facts here create "precisely the kind of appearance of impropriety that § 455(a) was intended to prevent. The violation is neither insubstantial nor excusable." … Moreover, the Court finds that, under these circumstances, the risk of undermining the public's confidence in the judicial process if a new trial is not ordered is high. In summary, under these unique and extreme circumstances, the Court concludes Judge Kindred was required to recuse himself and that a new trial is warranted.
But Judge Hernandez declined to dismiss the charges against defendant with prejudice:
"When considering an exercise of its supervisory powers, a district court has various options," including "[t]he most drastic remedy:" dismissal with prejudice, which "prevents the government from retrying the defendants at all." … [I]mproper dismissal of "an indictment with prejudice encroaches on the prosecutor's charging authority" …. Dismissal of an indictment with prejudice is a "drastic measure" that "necessarily implicates separation-of-powers principles…. Such dismissal exercised under the guise of supervisory power is impermissible absent a clear basis in fact and law for doing so." …
"Under its supervisory powers, a district court may dismiss an indictment with prejudice" only when there is "(1) flagrant misbehavior and (2) substantial prejudice." The "district court must approach the remedy with some caution and [] with a view toward balancing the interests involved and have concluded that there is 'no lesser remedial action' available to it." The phrase "no lesser remedial action is available" means that "any lesser sanction will put the defense at a greater disadvantage than it would have faced had the government" not engaged in the conduct at issue.
The Court has already determined that Defendant must be provided with a new trial. The Court also concludes that a new trial will not put the defense at a greater disadvantage than it would have faced had Judge Kindred recused himself. Therefore, the Court also concludes that Defendant has not established that there is "no lesser remedy available" than dismissal of this matter with prejudice.
Alexis Howell (Carlson Law Group, LLC) represents defendant.
