Judge Kendall J. Newman Disqualification Order Prosecutorial Misconduct-Fraud on the Court

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Home » Judges » All Judges » United States Magistrate Judge Kendall J. Newman (KJN)

United States Magistrate Judge Dennis L. Beck (DLB)

UNITED STATES MAGISTRATE JUDGE KENDALL J. NEWMAN (KJN)

United States Magistrate Judge Stanley A. Boone (SAB)

United States Magistrate Judge Edmund F. Brennan (EFB) Senior United States District Judge Garland E. Burrell, Jr. (GEB)

Robert T. Matsui United States Courthouse 501 I Street Sacramento, CA 95814

Courtroom 25, 8th floor Biography

United States Magistrate Judge Allison Claire (AC) United States Magistrate Judge Carolyn K. Delaney (CKD) Chief United States Magistrate Judge Dale A. Drozd (DAD) Chief United States District Judge Morrison C. England, Jr. (MCE) United States Magistrate Judge Gregory G. Hollows (GGH) JUDGE STAFF Senior United States District Judge Anthony W. Ishii (AWI) United States Magistrate Judge Craig M. Kellison (CMK)

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Procedures to be followed in Cases Assigned to Hon. Kendall J. Newman

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United States Magistrate Judge Kendall J. Newman (KJN) United States Magistrate Judge Kendall J. Newman (KJN)

United States Magistrate Judge Sheila K. Oberto (SKO) United States District Judge Lawrence J. O'Neill (LJO) United States Magistrate Judge Michael J. Seng (MJS) Senior United States District Judge William B. Shubb (WBS) United States Recalled Magistrate Judge Sandra M. Snyder (SMS)

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MOTION SCHEDULE Motion Type: Civil Day: Thursday* Time: 10:00 a.m.

Motion Type: Criminal Day: Wednesday Time: 09:00

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Case 2:09-cv-02445-KJM-EFB Document 603 Filed 10/15/14 Page 1 of 3

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA,

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No. 2:09-cv-02445-KJM-EFB

Plaintiff, v.

ORDER

SIERRA PACIFIC INDUSTRIES, et al.,

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Defendants.

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In July 2012, the parties to this action entered into a settlement agreement. See

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ECF Nos. 577-78, 592. Defendants agreed to pay $55 million to the United States over

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five years, and Sierra Pacific agreed to transfer 22,500 acres of land through ongoing

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negotiations. ECF No. 593-3. Thereafter, the Court closed the matter, but retained

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jurisdiction to enforce the terms of the compromise settlement. Order, ECF No. 592.

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On October 9, 2014, Defendant Sierra Pacific Industries (“Sierra Pacific�) together

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with the other named Defendants1 moved to set aside the judgment in this case for fraud

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The other named-defendants include Eunice Howell, individually and dba Howell's Forest Harvesting Company ("Howell's"); W.M. Beaty &Associates, Ina (`Beaty") and the following parties (hereinafter collectively "the Landowners"): Ann McKeever Hatch, as Trustee of the Hatch 1987 Revocable Trust; Richard L. Greene, as Trustee of the Hatch Irrevocable Trust; Brooks Walker, Jr., as Trustee of the Brooks Walker, Jr. Revocable Trust, and the Della Walker Van Loben Sels Trust for the Issue of Brooks Walker, Jr.; Brooks Walker, III, Individually and as Trustee of the Clayton Brooks Danielsen Trust, the Myles Walker Danielsen Trust, the Margaret Charlotte Burlock Trust, and the Benjamin Walker Burlock Trust; Leslie Walker, Individually, and as Trustee of the Brooks Thomas Walker Trust, the Susie Kate Walker Trust, and the Della Grace Walker Trust; Wellington Smith Henderson, Jr., as Trustee of the

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Case 2:09-cv-02445-KJM-EFB Document 603 Filed 10/15/14 Page 2 of 3

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on the Court under Federal Rule of Civil Procedure 60(d)(3) (the “Motion”). Mot., ECF

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No. 593. Defendants base their Motion on the grounds that the United States'

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prosecution of this action constituted a fraud upon the Court when the United States

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attorneys and the Moonlight Fire investigators and their counterparts in co-pending state

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actions, operating under a joint prosecution agreement with the United States, advanced

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a corrupt and tainted prosecution, violated Defendants' due process rights, and engaged

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in investigatory and prosecutorial misconduct.2 Id. Defendants allege that this

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misconduct was perpetrated by officers of the Court and ultimately tampered with the

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administration of justice, in a manner that wronged not only Defendants, but also the

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Court and the public. Id. According to Defendants, the government's misconduct

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compromised the judicial process and amounts to an unconscionable scheme designed

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to improperly influence the Court's decisions in this case.3 Id. In fact, Defendants state

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that they perceive the Court itself as a victim “as it has neither had the chance to fully

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assess the trust it naturally placed in certain federal prosecutors nor the ability to do so

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in the context of all that was eventually discovered about the thoroughly corrupt and

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financially driven Moonlight Fire investigation.” ECF No. 593-3. Defendants ask that the

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Court set aside the judgment and the Settlement Agreement and dismiss this action in

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Henderson Revocable Trust; Elena D. Henderson, Individually; Mark W. Henderson, as Trustee of the Mark W. Henderson Revocable Trust; John C. Walker, Individually, and as Trustee of the Della Walker Van Loben Sels Trust for the Issue of John C. Walker; James A. Henderson, Individually; Charles C. Henderson, as Trustee of the Charles C. and Kirsten Henderson Revocable Trust; Joan H. Henderson, Individually; Jennifer Walker, Individually, and as Trustee of the Emma Walker Silverman Trust, and the Max Walker Silverman Trust; Kirby Walker, Individually; and Lindsey Walker, a.k.a. Lindsey WalkerSilverman, Individually, and as Trustee of the Reilly Hudson Keenan Trust, and the Madison Flanders Keenan Trust.

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Specifically, Defendants allege, among other things, that the United States presented false evidence to the Defendants and the Court and/or concealed material evidence from the Defendants and the Court; advanced arguments to the Court premised on that false evidence, or for which material evidence had been withheld, and obtaining Court rulings based thereon; prepared key Moonlight Fire investigators for depositions, and allowed them to repeatedly give false testimony about the most important aspects of their investigation; and failed to disclose the facts and circumstances associated with the Moonlight Fire lead investigator's direct financial interest in the outcome of the investigation arising from an illegal bank account that has since been exposed and terminated. ECF No. 593.

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Defendants believe that the circumstances may warrant the appointment of special master.

ECF No. 593.

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Case 2:09-cv-02445-KJM-EFB Document 603 Filed 10/15/14 Page 3 of 3

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its entirety. ECF No. 593. Defendant’s Motion is currently set for hearing before Judge

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Kimberly J. Mueller on November 21, 2014.

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Based upon facts alleged in the Motion and accompanying Declarations and

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Exhibits, the impartiality of the District and Magistrate Judges in the Eastern District

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might reasonably be questioned. Therefore, on the Court’s own motion and pursuant to

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the Code of Conduct for United States Judge, Canons 2 and 3, in order to avoid the

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appearance of impropriety, and because a judge has a duty to disqualify him or herself if

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his or her impartiality could be reasonably questioned, whether or not such impartiality

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actually exists, the Court recuses itself from the above-captioned case. See 28 U.S.C. §

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455(a). Accordingly, all District and Magistrate Judges in the Eastern District of

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California are RECUSED from hearing case number 2:09-cv-02445 and all related

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matters. This matter is REFERRED to Alex Kozinski, Chief Judge of the United States

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Ninth Circuit Court of Appeals, for the assignment of a judge other than from the Eastern

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District of California to sit by designation and hear case number 2:09-cv-02445 and all

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related matters.

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IT IS SO ORDERED. Dated: October 14, 2014

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UNITED STATES MAGISTRATE JUDGE KENDALL J. NEWMAN (KJN)

Federal Judicial Service:

United States Magistrate Judge Edmund F. Brennan (EFB) Senior United States District Judge Garland E. Burrell, Jr. (GEB)

U.S. District Court, Eastern District of California United States Magistrate Judge, appointed February 2010

Education: Cornell University, B.S., 1980

United States Magistrate Judge Allison Claire (AC)

College of William and Mary, J.D., 1984

United States Magistrate Judge Carolyn K. Delaney (CKD)

Professional Career:

1984 - 1990 Chief United States Magistrate Judge Dale A. Drozd (DAD) Chief United States District Judge Morrison C. England, Jr. (MCE) United States Magistrate Judge Gregory G. Hollows (GGH) Senior United States District Judge Anthony W. Ishii (AWI) United States Magistrate Judge Craig M. Kellison (CMK) United States Magistrate Judge Barbara A. McAuliffe (BAM) United States District Judge John A. Mendez (JAM) United States District Judge Kimberly J. Mueller (KJM) United States Magistrate Judge Kendall J. Newman (KJN) United States Magistrate Judge Kendall J. Newman (KJN) United States District Judge Troy L. Nunley (TLN) United States Magistrate Judge Sheila K. Oberto (SKO) United States District Judge Lawrence J. O'Neill (LJO) United States Magistrate Judge Michael J. Seng (MJS) Senior United States District Judge William B. Shubb (WBS) United States Recalled Magistrate Judge Sandra M. Snyder (SMS)

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Home » Judges » All Judges » United States Magistrate Judge Kendall J. Newman (KJN) » United States Magistrate Judge Kendall J. Newman (KJN)

United States Magistrate Judge Dennis L. Beck (DLB) United States Magistrate Judge Stanley A. Boone (SAB)

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Gibson, Dunn & Crutcher, San Diego, CA 1990 - 1994 U.S. Attorney's Office, Southern District of California 1995 - 2010 U.S. Attorney's Office, Eastern District of California