      Case 7:19-cr-00522 Document 60 Filed on 05/15/19 in TXSD Page 1 of 7



                            UNITED STATES DISTRICT COURT
                             SOUTHERN DISTRICT OF TEXAS
                                  McALLEN DIVISION

 UNTED STATES OF AMERICA                         §
                                                 §
        v.                                       § CRIMINAL NO. 19-CR-522
                                                 §
 RICARDO QUINTANILLA, et al.                     §
                                                 §
        Defendants.                              §


                  GOVERNMENT’S OPPOSITION TO MOTION TO
               RECUSE UNITED STATES JUDGE MICHAELA ALVAREZ

       COMES NOW the United States of America, by and through the United States Attorney for

the Southern District of Texas and the Acting Chief of the Public Integrity Section of the Criminal

Division, and respectfully submits this Opposition to defendant Arturo C. Cuellar, Jr.’s Motion

to Recuse United States District Judge Michaela Alvarez [Dkt. 56], which is unopposed by the

other defendants. As is more fully discussed herein, the defendant argues that Judge Alvarez

must recuse herself because several years ago, she was involved in a routine and unremarkable

civil lawsuit with a company owned by the defendant. That lawsuit settled out of court without

incident. The defendant fails to identify any instances of animosity or bias by Judge Alvarez, and

does not allege any contact between Judge Alvarez and himself, either during or after the

litigation. The motion is baseless and should be denied.

                                               Facts

       The defendant describes an unremarkable situation and a routine civil settlement. In 2015,

an individual—Judge Alvarez—was involved in a traffic accident with a driver employed by a

corporation—J-III Trucking Co., Inc., owned by the defendant. Mot. at 2. Judge Alvarez sued the

corporation, and its registered agent was served with the lawsuit. Id. Judge Alvarez also made a
      Case 7:19-cr-00522 Document 60 Filed on 05/15/19 in TXSD Page 2 of 7



demand on the corporation’s insurer. Id. Less than one year later, Judge Alvarez, the corporation,

and the insurer settled the claim out of court for a mutually agreed upon sum and full and final

releases of all claims by all parties against each other. Id.

                                          Legal Standard

       The defendants rely upon 28 U.S.C. § 455(a), which provides that “[a]ny justice, judge, or

magistrate judge of the United States shall disqualify himself in any proceeding in which his

impartiality might reasonably be questioned.” Although Section 455(b) requires judges to recuse

themselves under the specific circumstances identified in that subsection, including “[w]here he

has a personal bias or prejudice concerning a party,” the defendants point to no such conflicts here.

       Recusals under Section 455 generally fall within two general categories: those based on

the judge’s conduct and those based on the judge’s relationship to the parties, the counsel, or the

matter. Section 455 does not prescribe a formal procedure by which a party must raise recusal.

Rather, it requires the movant to demonstrate generally that “a reasonable man, cognizant of the

relevant circumstances surrounding [the] judge’s failure to recuse, would harbor legitimate doubts

about that judge’s impartiality.” United States v. Bremers, 195 F.3d 221, 226 (5th Cir. 1999)

(citing United States v. Anderson, 160 F.3d 231, 233 (5th Cir. 1998)). Whether to recuse from a

case lies within the discretion of the court. Trevino v. Johnson, 168 F.3d 173, 178 (5th Cir. 1999).




                                                  2
      Case 7:19-cr-00522 Document 60 Filed on 05/15/19 in TXSD Page 3 of 7



                                             Argument

       The defendant alleges no specific conduct by the Court that mandates recusal. 1 Moreover,

the cases upon which he relies are inapposite. 2 Because no reasonable person would harbor

legitimate doubts about Judge Alvarez’s impartiality, the defendant’s motion should be denied.

       The defendant’s sole basis for doubting Judge Alvarez’s impartiality is that she sued Arturo

Cuellar, Jr.’s company after a traffic accident. But the mere fact that the judge and a party were

previously litigants does not alone create an appearance of impropriety mandating recusal. United

States v. Grismore, 564 F.2d 929, 933 (10th Cir. 1977) (“A judge is not disqualified merely

because a litigant sues or threatens to sue him.”); Jones v. City of Buffalo, 867 F. Supp. 1155, 1163

(W.D.N.Y. 1994) (“It is clear that a judge is not disqualified under 28 U.S.C. § 455 merely because

a litigant sues him.”); United States v. Blohm, 579 F. Supp. 495, 505 (S.D.N.Y. 1983) (“Several

courts have already rejected the proposition that such a suit against the presiding judge is sufficient

to require disqualification under § 455.”). In these instances, disqualification was not required

even after litigants accused judges of wrongdoing and ultimately sued them. It stands to reason

that a judge may be perceived as taking significant umbrage at such accusations, to say nothing of




1
        Should the defendant make such an argument, it should be dismissed out of hand. The
cases he cites that concern a judge’s conduct describe egregious and offensive behavior. See Offutt
v. United States, 348 U.S. 11 (1954) (directing the district court to assign a different trial judge on
remand due to the trial judge’s repeated antagonistic behavior toward the parties during trial);
United States v. Brown, 539 F.2d 467 (1976) (ordering a new trial before a different trial judge
where evidence surfaced after a criminal trial that the trial judge said, prior to the trial, that “he
was going to get that [racial slur].”).
2
        Two of the five cases cited by the defendant concern recusal because of a judge’s actions
(see p.2 n.1, supra); two deal with recusal because of a judge’s relationship to a litigant (see pp.
5-6, infra). The fifth and final case did not apply Section 455. See Rapp v. Van Dusen, 350 F.2d
806, 810-11 (1965) (“The conclusion we have reached makes it unnecessary to decide whether
Judge Van Dusen’s conduct falls within the prohibition of 28 U.S.C. § 455.”); Mot. at 4.


                                                  3
      Case 7:19-cr-00522 Document 60 Filed on 05/15/19 in TXSD Page 4 of 7



the lawsuits that resulted.   Even so, such judges may nonetheless continue to preside; the

appearance of impropriety does not necessarily follow.

       By comparison, the lawsuit between Judge Alvarez and the defendant’s corporation was

far less personal.   The defendant did not impugn Judge Alvarez’s integrity, challenge her

professional judgment, or publicly file a lawsuit accusing her of wrongdoing. Likewise, Judge

Alvarez did not make any allegations about the rodriguezdonna@example.org. He was not involved in the car

accident—and contrary to the defendant’s allegations, the lawsuit was not filed against him. The

defendant incorrectly alleges that “Judge Micaela Alvarez received but a fraction of the amount

sought in litigation against Arturo C. Cuellar, Jr. or $60,000.00” and that Judge Alvarez made “a

demand for $1,000,000.00 . . . from Arturo C. Cuellar, Jr.’s insurance carrier.” Mot at 4. These

statements are inaccurate. The lawsuit was filed against J-III Trucking Co., Inc., not the defendant

himself. rodriguezdonna@example.org. E, F. Moreover, the insurance carrier insured the corporation, not the

defendant personally. rodriguezdonna@example.org. D. A company and its owners are discrete legal entities. Indeed,

the very purpose of corporations is to create a legal separation between a business and its owners.

The defendant’s attenuated involvement occurred only through the corporation. That his business

employed a driver who was in a car accident with Judge Alvarez does not jeopardize her ability to

fairly preside over this matter, nor would it cause a reasonable person to doubt her integrity in

doing so.

       Furthermore, the defendants have not alleged any facts beyond the mere existence of the

lawsuit that that call the Court’s impartiality into question. They cannot do so, because there was

no personal connection between Judge Alvarez and the defendant during the civil litigation. 3 As



3
        The defendant’s suggestion that Judge Alvarez “may have” recused herself because of the
lawsuit in Gregorio Trevino, Jr. v. Hidalgo County, Texas, et al., Civil Action No. 7:15-CV-00435,
is pure speculation unsupported by the record. Mot at 4. The order transferring the case plainly
                                                 4
      Case 7:19-cr-00522 Document 60 Filed on 05/15/19 in TXSD Page 5 of 7



noted above, the defendant was served with the lawsuit in his capacity as resident agent of the

corporation, not in his personal capacity (see Mot, Ex. F). Judge Alvarez made no allegation of

involvement—much less wrongdoing—by Arturo Cuellar, Jr. In addition, the defendant does not

allege that the litigation was contentious or acrimonious. The only suggestion of potential

wrongdoing was an allegation that an employee of the corporation pressured a police officer to

change his report. That allegation has nothing to do with the defendant. And finally, the defendant

does not allege any direct contact between himself Judge Alvarez and Arturo Cuellar, Jr. during

the litigation.

        The Fifth Circuit instructs that because recusal claims are “fact driven,” looking to other

cases is of little benefit: “[T]he analysis of a particular section 455(a) claim must be guided, not

by comparison to similar situations addressed by prior jurisprudence, but rather by an independent

examination of the unique facts and circumstances of the particular rodriguezdonna@example.org.” Bremers, 195.

F.3d at 226 (citing United States v. Jordan, 49 F.3d 152, 157 (5th Cir. 1995)). This principle

notwithstanding, the defendant cites two cases in which recusal has been required based on the

relationship between the court and a party before it. Neither is apposite.

        In Health Services Acquisition Corp. v. Lileberg, 796 F.2d 796, 798-99 (1986), the Fifth

Circuit held that the trial judge should have recused himself. The appellate court found that the

trial judge knew or should have known that the university on whose board of trustees he sat was

in business negotiations with one of the litigants and that the litigation’s outcome would directly

affect that transaction. The Lileberg judge had an active stake in the university’s success.

Consequently, a reasonable observer may have questioned whether the court’s interest in the



states that the transfer is “for the sake of judicial economy.” Trevino, 7:15-CV-00435, Dkt. 10.
Notably, in that case, which was much closer in time to the lawsuit than this case, defendant Arturo
C. Cuellar, Jr. did not move for Judge Alvarez to recuse herself.
                                                 5
      Case 7:19-cr-00522 Document 60 Filed on 05/15/19 in TXSD Page 6 of 7



litigation colored its decisions. See id. at 800. By contrast, Judge Alvarez has no ongoing financial

interest in the defendant or his business: she released the corporation from any current or future

liability related to the 2015 accident over three years ago. To be sure, the criminal case against

the defendant cannot undermine the parties’ “full, final and complete settlement” or revive the

claims that Judge Alvarez has released. See Ex. 8 at 2. Lileberg’s reasoning does not apply here.

         The defendant also errantly relies upon Potashnick v. Port City Const. Co., 609 F.2d

1101, 1108-09 (5th Cir. 1980), another case involving a judge’s ongoing financial interest in the

case—this time, because the judge’s father was a partner at a law firm participating in the litigation.

In addition, the judge himself had been a partner at the firm, and at the time of the litigation, he

was being personally represented by the chief trial counsel of one of the parties. For these reasons,

the Fifth Circuit held that the judge should have disqualified himself. But again, Judge Alvarez’s

settlement is a far cry from the deep and ongoing familial, financial, and personal interests present

in Potashnick. To the contrary, Judge Alvarez’s interaction with the defendant’s corporation

appears to have been at arms’ length from start to finish. As discussed above, she never sued the

defendant personally, but instead made a demand against the corporation’s insurer.

       The defendants argue that Judge Alvarez should recuse herself simply because she is aware

that the defendant owns a company with which she resolved a lawsuit out of court. He does not

allege any action, either in the lawsuit or after, that even hints at bias or partiality against him.

Moreover, he cites no law that compels—or even advises—recusal on these facts.

       There is a “presumption of honesty and integrity in those serving as adjudicators.” United

States v. Jones, EP-09-CR-1567-FM, 2009 WL 10680037 (W.D. Tex. Nov. 16, 2009) (quoting

Withrow v. Larkin, 421 U.S. 35, 47 (1975)).           The defendant has failed to overcome this

presumption. His motion should be denied.



                                                  6
      Case 7:19-cr-00522 Document 60 Filed on 05/15/19 in TXSD Page 7 of 7



                                       CONCLUSION

        WHEREFORE, premises considered, the government prays that defendants’ Motion to

 Recuse United States District Judge Michaela Alvarez [Dkt. 56] be denied.

  Respectfully submitted,

  RYAN K. PATRICK                                  ANNALOU TIROL
  United States Attorney                           Acting Chief, Public Integrity Section

  /s/ Roberto Lopez, Jr.                           /s/ Peter M. Nothstein
  Roberto Lopez, Jr.                               Peter M. Nothstein
  Assistant United States Attorney                 Jessica C. Harvey
  State Bar No. 24074617                           Trial Attorneys
  1701 West Business 83, Suite 600                 Public Integrity Section, Criminal Division
  McAllen, Texas 78501                             Email: rodriguezdonna@example.org
  Phone: 418.534.0709                              Email: rodriguezdonna@example.org
  Fax: 418.534.0709                                418.534.0709
                                                   rodriguezdonna@example.org
                                                   rodriguezdonna@example.org


                               CERTIFICATE OF SERVICE

        I hereby certify that on this 15th day of May, 2019, I electronically filed the foregoing
document with the Clerk of the Court using the CM/ECF System, which will, in turn, send
notification of said filing to all counsel of record through the CM/ECF System.

                                            /s/ Peter M. Nothstein
                                            Peter M. Nothstein
                                            DOJ Trial Attorney




                                               7

{'dataset': 'courtlistener_docket_entry_documents'}