David Brooks
David Brooks (AP/Howard Schnapp)

A convicted military contractor who learned authorities were probing alleged threats he made against a judge waived his right to seek the judge’s recusal based on the threat of investigation, another judge has concluded.

David H. Brooks asked Eastern District Judge Joanna Seybert to remove herself from his case in December 2013, but Judge Arthur Spatt said Brooks had already waived his right to make such a motion when he and his defense team learned five months earlier of the investigation into the accusations the prosecution agreed were baseless.

Brooks’ attorneys “explicitly waived [his] right to move for recusal first on the record and then in a letter filed with the Court,” Spatt wrote Thursday in U.S. v. Brooks, 14-mc-209.

Seybert asked Spatt for his opinion on the waiver issue.The recusal motion is pending before Seybert.

In September 2010, a jury convicted Brooks, founder of body armor manufacturer DHB Industries, of conspiracy, mail and wire fraud, securities fraud and obstruction of justice.

In August 2013, Seybert, who presided over the trial, sentenced him to 17 years in prison and five years supervised release. Brooks is appealing both the conviction and sentence. Restitution proceedings are pending before Seybert.

Prior to sentencing, government authorities in November 2012 were notified of allegations that Brooks made threats against the judge, as well as members of the prosecution and defense teams.

Seybert was told of the allegations, but not the defense.

About eight months later, Eastern District prosecutors also informed the defense of the probe and submitted a letter to the court saying they did not “intend to offer any evidence concerning the alleged threat in this matter.”

When the defense complained about the letter’s “ambiguous” wording, Seybert convened a telephone conference the same day. Three attorneys were on the call for Brooks. They waived his appearance.

On the call, the prosecution said it would submit another filing to state the threat allegations were uncorroborated.

Seybert then asked the defense if she should be “expecting any motion to recuse the Court?”

“I certainly don’t believe so, your Honor, now [that] the government has clarified it. I don’t see why the court should be affected by a baseless allegation,” said Richard Greenberg of Newman & Greenberg.

Seybert responded that she was not “affected by the allegations that were made. So I put that on the record, and unless I hear to the contrary, I will continue preparation on this case for sentence.”

A day later, Greenberg submitted a letter saying that another member of Brooks’ defense team had subsequently met with Brooks.

Based on the attorney’s report, Greenberg said he could now confirm what he said the day before: “Mr. Brooks has no intention of moving to recuse or disqualify the Court on the basis of the government’s disclosure yesterday of an unsubstantiated and uncorroborated allegation of physical injury the government says it ‘does not credit.’”

Spatt noted that the letter “inexplicably” did not appear to be on the case’s public docket.

Brooks claims he did not get a copy of the telephone conference transcript and Greenberg’s letter until October—about two months after his sentence.

Moreover, Brooks said he was not fully informed about the recusal issue, nor did he and his attorneys ever get material from the government about its investigation.

Brooks pressed for more information about the probe, but the prosecution pushed back, calling the matter a “needless controversy” (NYLJ, Dec. 10, 2013).

When Brooks moved for recusal, he invoked the Due Process Clause of the Constitution, as well as federal statutes like 28 U.S.C. §455(a) which requires judges to recuse themselves when their impartiality “might reasonably be questioned.”

Seybert also had to recuse herself pursuant to the code of Conduct for federal judges, he argued.

Spatt said many courts permitted an attorney’s waiver of his client’s right to move for recusal.

For example, he pointed to a criminal case in Louisiana. There, the defendant, Kurt Mix, was a former British Petroleum engineer linked to the Deepwater Horizon oil spill and accused of obstruction of justice.

Mix asked Eastern District of Louisiana Judge Stanwood Duval Jr. to recuse himself after learning Duval had joined a civil action against BP.

But before Mix’s recusal motion was filed Duval told the parties that his beach house was damaged in the spill and he had the ability to submit a claim with the company, but had not yet done so.

Still, Duval said he could be impartial, and an attorney for Mix said he saw no recusal issues. After a week investigating Duval’s disclosures, Mix’s attorneys said they had objections to having Duval on the case.

When Mix later asked for recusal, Duval refused, saying there had been “full disclosure.”

Spatt said Brooks was represented by a team of attorneys who got “full disclosure” that Brooks was under investigation.

Though Brooks and his attorneys complained about not getting further investigation details, Spatt said he was “satisfied that the information made available to [Brooks'] lawyers during the telephone conference was sufficient to constitute full disclosure.”

Spatt pointed to case law refusing to let a defendant “take his chances with a judge and then, if he thinks that the sentence is too severe, secure a disqualification and a hearing before another judge.”

“This principle is particularly applicable here,” he said.

Brooks’ appellate attorney, Alan Dershowitz, said he planned to argue there was no waiver in his appeal of Brooks’ case.

Knowing Brooks, Dershowitz said he was “100 percent positive [Brooks] did not waive any of these issues. As long as I been in case, he has not waived a single issue. … The government deliberately kept me and others lawyers in the dark throughout the investigation.”

An Eastern District spokesman declined to comment on the ruling.

Assistant U.S. Attorneys Patrick Sean Sinclair and Christopher Caffrone appeared for the prosecution, arguing a waiver occurred.