IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

____________________________________
UNITED STATES OF AMERICA, )
)
Plaintiff, )
)
v. )
) CRIMINAL No.
MARTIN GOTTESFELD, ) 16-cr-10305-NMG
)
Defendant. )
____________________________________)

MOTION FOR THE RECUSAL OF THE HONORABLE JUDGE NATHANIEL M. GORTON

The defense respectfully moves The Honorable Judge Nathaniel M. Gorton to recuse

himself pursuant to 28 U.S.C. §455(a), which requires that any judge, justice, or magistrate judge

of The United States “shall disqualify himself [or herself] in any proceeding in which his [or her]

impartiality might reasonably be questioned.”

In support of this motion, the defense asserts that the following, both individually and

collectively, have created an objective appearance of bias on the part of The Honorable Judge

Nathaniel M. Gorton: The Honorable Judge Nathaniel M. Gorton refuses to “second guess” the

District Plan for the Prompt Disposition of Criminal Cases as required by Due Process when

presented with clearly overriding and conflicting statutory requirements as well as binding U.S.

Supreme Court precedent; The Honorable Judge Nathaniel M. Gorton has made contradictory

holdings in this case and in the 2015 case of United States v. Scott, 180 F.Supp.3d 88 (D. Mass.

2015) with no relevant intervening change in statute, binding precedent, or local rules to merit the

deviation; after the government failed to raise the issue of judicial estoppel in a timely manner and

without The Honorable Judge Nathaniel M. Gorton offering meaningful notice that he was

considering the issue, The Honorable Judge Nathaniel M. Gorton spontaneously held that the

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defense was judicially estopped; The Honorable Judge Nathaniel M. Gorton violated the 1st

Amendment to the benefit of the government by ordering an unconstitutional prior restraint placed

on the defendant's wife, who is not a party to this case, purporting to prohibit her from contacting

other non-parties, and in so doing The Honorable Judge Nathaniel M. Gorton also violated the

Due Process Clause of the 5th Amendment by failing to provide any opportunity to object to the

prior restraint before it was to be enforced, and The Honorable Judge Nathaniel M. Gorton also

enacted a corresponding prior restraint on the defendant, similarly violating Due Process by doing

so without holding hearings or otherwise providing any meaningful opportunity to voice

objections beforehand; The Honorable Judge Nathaniel M. Gorton has under-disclosed financial

and administrative relationships with The Home for Little Wanderers, which is a partner

organization with Boston Children's Hospital (one of the alleged, supposed, “victims” in this

case) and the nature of that partnership is relevant to this case, as it deals with both the diversion

of juvenile patients from inpatient psychiatric settings as well as the adoption services which The

Home for Little Wanderers purports to offer; despite a statutory requirement for promptness

under The Bail Reform Act and the diligent efforts of the defense, The Honorable Judge

Nathaniel M. Gorton took 54 days to hold a detention hearing and then a subsequent 6 days (for a

total of 60 days) to place a written order of detention on the record; and The Honorable Judge

Nathaniel M. Gorton allocated prior defense counsel only one third of the funding and one half of

the time which it had requested for an expert witness to prepare an essential suppression motion

and testimony.

1. The Honorable Judge Nathaniel M. Gorton’s refusal to provide Due Process regarding the
District Plan for the Prompt Disposition of Criminal Cases:

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 When The Honorable Judge Nathaniel M. Gorton was provided with statutory requirements

from 18 U.S.C. §3161(h)(7)(A) and binding U.S. Supreme Court precedents from Zedner v. United

States, 547 U.S. 489, 126 S.Ct. 1976, 164 L.Ed.2d 749 (2006) and Bloate v. United States, 559

U.S. 196, 130 S.Ct. 1345, 1358, 176 L.Ed.2d 54 (2010) which clearly overpower and conflict with

the District Plan for the Prompt Disposition of Criminal Cases (herein “the District Plan”), as

interpreted by the government and upheld by The Honorable Judge Nathaniel M. Gorton, The

Honorable Judge Nathaniel M. Gorton “decline[d] to second guess” the District Plan in his recent

ruling (see D.E. 209). To be sure, the Supreme Court's precedents in both the Zedner and Bloate

cases individually and collectively enforce a very strict and literal interpretation of 18 U.S.C.

§3161(h)(7)(A) with which the District Plan may conflict – at least under the government's

interpretation of the Plan as upheld by The Honorable Judge Nathaniel M. Gorton. However, The

Honorable Judge Nathaniel M. Gorton can no more refuse to apply statutory requirements and

binding U.S. Supreme Court precedents to override a District Plan and local rules than a lower

court could refuse to recognize the Supreme Court's decision in Obergefell v. Hodges and override

a local ordinance purporting to prohibit a gay couple from getting married. Such a refusal to

analyze and to follow the law and to even evaluate binding U.S. Supreme Court precedent and

explicit statutory requirements violates the defendant's 5th Amendment right to Due Process and in

this case gives rise to an objective appearance of bias under 28 U.S.C. §455(a). Accordingly, The

Honorable Judge Nathaniel M. Gorton must recuse himself.

2. The Honorable Judge Nathaniel M. Gorton’s refusal to provide Due Process regarding the
District Plan for the Prompt Disposition of Criminal Cases:

In the 2015 case of United States v. Scott, defendant Scott assented on the record to an ends

of justice continuance. The record does not make it clear if defendant Scott was only assenting to

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 an exclusion which would have comported to the statutory requirements of 18 U.S.C.

§3161(h)(7)(A) or whether he was merely assenting to a general exclusion of time without

findings on the record of the case under non-specific terms. The magistrate judge who was then

presiding instructed the government to file an assented-to motion for the exclusion of the period in

question, which it never did.

At a later date, when The Honorable Judge Nathaniel M. Gorton was then presiding, the

defendant filed a motion to dismiss pursuant to The Speedy Trial Act (herein “The Act”), citing the

period which he had previously assented to exclude as non-excludable time because the findings

statutorily required to exclude that time under 18 U.S.C. §3161(h)(7)(A) were never made on the

record of the case. The government cited the First Circuit decision of United States v. Pakala, 568

F.3d 47 (1st Cir. 2009) in which a defendant had been judicially estopped from including time

under The Act after that defendant had agreed to general exclusions of time with no specific

request that the exclusions be ordered under 18 U.S.C. §3161(h)(7)(A). The government then also

moved to judicially estop defendant Scott from seeking to include time in a Speedy Trial Act

calculation after he had previously assented to excluding that same time.

However, even though in that case The Honorable Judge Nathaniel M. Gorton considered

that the government had moved under the First Circuit decision of United States v. Pakala to

judicially estop the defendant and held that in that case the findings which would have been

statutorily required to exclude the period in question from The Act’s calculations under 18 U.S.C.

§3161(h)(7)(A) have also been adopted in the mind of the presiding magistrate judge, like as had

happened in Pakala, nonetheless The Honorable Judge Nathaniel M. Gorton rejected the

government's explicit argument for judicial estoppel under Pakala and held in broad, unconditional,

terms that “Judicial estoppel cannot, however, override a statutory requirement.” The Honorable

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Judge Nathaniel M. Gorton then included the time period in controversy as per the defendant's

motion and thus overruled the government's explicit request to judicially estop defendant Scott.

And again, The Honorable Judge Nathaniel M. Gorton's language in that case was broadly

drafted without qualifiers, “Judicial estoppel cannot, however, override a statutory requirement.”

In the current case, the defendant also allegedly assented to exclusions of time, although

The Honorable Judge Nathaniel M. Gorton has ruled that those alleged assents never occurred

before any court – and in this case the motions to which this defendant allegedly assented

specifically and explicitly asked for such exclusions to be made in compliance with 18 U.S.C.

§3161(h)(7)(A). But the statutorily required findings – for which this defendant allegedly asked –

were also never made on the record of this case as explicitly required by 18 U.S.C. §3161(h)(7)(A).

The defendant in this case then also later moved to dismiss for violation of The Act’s statutory

requirements.

The government never moved to judicially estop the defendant in this case, though it once

again cited Pakala. The reason for the government's silence on the matter in this case remains

uncertain, but the government was likely mindful of both The Honorable Judge Nathaniel M.

Gorton's prior, broad, and unconditional language is United States v. Scott that “Judicial estoppel

cannot, however, override a statutory requirement,” as well as of the government's own explicit

requests for continuances specifically “pursuant to” and “under 18 U.S.C. §3161(h)(7)(A)” to

which the government alleges that the defendant assented and which in turn specifically required

findings to be made on the record of the case wherein time is to be ruled excluded.

Similarly, The Honorable Judge Nathaniel M. Gorton never asked any questions about

judicial estoppel at oral argument in this case. Then, as he had in United States v. Scott, The

Honorable Judge Nathaniel M. Gorton found that the previous presiding judge in this case had also

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adopted the findings which would have been necessary to exclude time under 18 U.S.C.

§3161(h)(7)(A), if only in her head.

Yet, in direct contradiction to his holding in United States v. Scott, in this case The

Honorable Judge Nathaniel M. Gorton cited Pakala and spontaneously held that this defendant was

judicially estopped from doing what The Honorable Judge Nathaniel M. Gorton had ruled very

broadly that the defendant in United States v. Scott could not be judicially estopped from doing –

enforcing statutory requirements.

These very contradictory holdings which were made with no relevant intervening changes

in either statutory or case law nor in local rules violate the spirit, if not the letter, of Due Process

and equal protection while also giving rise to an objective appearance of bias under 28 U.S.C.

§455(a) and accordingly The Honorable Judge Nathaniel M. Gorton must now recuse himself.

3. The Honorable Judge Nathaniel M. Gorton's spontaneous finding of judicial estoppel after
the government hadn't raised the issue:

As mentioned above, The Honorable Judge Nathaniel M. Gorton's contradictory holdings in

United States v. Scott as compared to his holdings in this case give rise to an objective appearance

of bias under 28 U.S.C. §455(a) which in and of itself requires recusal. However, The Honorable

Judge Nathaniel M. Gorton’s spontaneous finding of judicial estoppel against the defendant in this

case after the government chose not to raise the issue also violated the defendant's right to Due

Process and gives rise to a separate objective appearance of bias under 28 U.S.C. §455(a) and

further requires recusal.

When the government chose not to raise judicial estoppel, there was no obligation nor

notice for the defendant to argue the issue.

Further, The Honorable Judge Nathaniel M. Gorton gave no notice to the defendant that he

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was considering judicial estoppel nor to argue the issue. The Honorable Judge Nathaniel M.

Gorton's subsequent spontaneous adoption of that position, which not only contradicts his own

previously sound logic when it came to a different defendant in United States v. Scott, but which

also hadn't been duly raised by the government or mentioned by The Honorable Judge Nathaniel

M. Gorton in this case, deprived the defendant in this case of his right to Due Process and would

even be considered as sneaky by many if not most objectively reasonable members of the public.

When The Honorable Judge Nathaniel M. Gorton violated Due Process to spontaneously

adopt a position for which the government itself had all but certainly deliberately chose not to

argue – and especially when The Honorable Judge Nathaniel M. Gorton contradicted his own past

ruling to do so – it gave rise to an objective appearance of bias under 28 U.S.C. §455(a) and The

Honorable Judge Nathaniel M. Gorton must now recuse himself.

In view of all of the above, it is respectfully requested that the indictment filed against Mr.

Gottesfeld be dismissed with prejudice. Any interest of the government in punishing and deterring

the defendant has been accomplished because the Defendant at this point has already served more

time than the typical nonviolent first-time offender.

4. Honorable Judge Nathaniel M. Gorton's unconstitutional prior restraints:

On many occasions The Honorable Judge Nathaniel M. Gorton has exceeded his authority

by enacting unconstitutional prior restraints in violation of the 1st Amendment rights of the

defendant and his associates for the freedom of speech, the freedom of the press, and the right to

petition the government for a redress of grievances. The Honorable Judge Nathaniel M. Gorton

also violated the Due Process rights of the defendant and his associates by issuing his orders

without prior notice or opportunity to bring objections.

Sometimes the associates of the defendant have been named while sometimes they were

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 not, leading to further Due Process issues.

The overarching theme common across all of the The Honorable Judge Nathaniel M.

Gorton's unlawful such orders, besides that they were enacted in violation of both the 1st

Amendment and the Due Process Clause of the 5th Amendment, is that they were invariably aimed

at protecting one party – the government – from Constitutionally-protected activities.

Further, while The Honorable Judge Nathaniel M. Gorton has limited authority to enact

prior restraints on the parties which are before him so long as he affords all individuals the Due

Process of Law, The Honorable Judge Nathaniel M. Gorton's lopsided order barring a non-party

from contacting other non-parties is clearly outside of his purview and the average objectively

reasonable member of the public, who cherishes both this nation’s 1st Amendment protections and

its system of Due Process, would be profoundly disturbed by The Honorable Judge Nathaniel M.

Gorton's attempts to curtail both.

These various attempts to stretch The Honorable Judge Nathaniel M. Gorton's authority

beyond its Constitutional breaking point, especially considering the one-sided nature of his orders

themselves (for example, one such order seeks to restrain the defendant's wife – a journalist –

from contacting a whole category of unnamed other non-parties whose identities she could hardly

be expected to know beforehand while there was no corresponding restraint placed on the other

non-parties, who happened to be associated with the government), gives rise to an objective

appearance of bias under 28 U.S.C. §455(a) and The Honorable Judge Nathaniel M. Gorton must

vacate his unconstitutional orders and recuse himself.

5. Honorable Judge Nathaniel M. Gorton's under-disclosed financial and administrative

relationship with The Home for Little Wanderers:

The Honorable Judge Nathaniel M. Gorton was on the Board of Advisors of The Home for

Little Wanderers. Also, The Honorable Judge Nathaniel M. Gorton listed The Home for Little

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Wanderers on his mandated 2012 financial disclosure document, and in the months directly

following the defendant's arrest, The Honorable Judge Nathaniel M. Gorton appears to have

publicly donated to The Home.

In turn, The Home for Little Wanderers is a longtime partner with Boston Children's

Hospital (one of the alleged, supposed, “victims” in this case) and the nature of that partnership is

relevant to this case. The Home announced in 2003 that Boston Children's Hospital had become a

partner organization in one of its efforts to divert juvenile patients – like Justina Pelletier – from

inpatient psychiatric settings – like the Bader 5 psych ward where Justina was held.

The Home for Little Wanderers also offers adoption services, and one of the most stirring

controversies in the Pelletier saga was when, under the advisement of BCH psychiatrist Colleen

Ryan, DCF moved to put Justina on a path towards adoption.

Moreover, 5 months before the defendant was arrested, Boston Children's donated some

$50,000 to The Home for Little Wanderers.

On top of all of the obvious appearances of impropriety implicated by the above, The

Honorable Judge Nathaniel M. Gorton should not continue to preside over a case where the

government is seeking hundreds of thousands of dollars of direct financial restitution to be paid to

one of the financial benefactors of an organization with which The Honorable Judge Nathaniel M.

Gorton has a decades-long financial and administrative relationship and to which both The

Honorable Judge Nathaniel M. Gorton and the principle alleged, supposed, “victim” in this case

both donated at a time roughly contemporary with the arrest of the defendant.

To do so gives rise to an objective appearance of bias under 28 U.S.C. §455(a) and The

Honorable Judge Nathaniel M. Gorton must recuse himself.

6. The Honorable Judge Nathaniel M. Gorton's 60 day bail delay:

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 Under The Bail Reform Act, the defendant had a right to a prompt finding regarding his

detention following his motion for release on April 20th, 2018. However, despite diligent efforts

by the defense, a detention hearing was not held for 54 days and a written detention order was not

filed until a total of some 60 days had elapsed after April 20th.

This delay was allowed to accrue after the defendant's detention had already been held

“under advisement” for 92 days by The Honorable U.S. Magistrate Judge Marianne B. Bowler.

The relevant definition of promptness under The Bail Reform Act is relative to the other

business before the presiding Court, i.e. matters which carry a requirement for promptness must

be handled before others which do not. A review of the schedule of The Honorable Judge

Nathaniel M. Gorton during the 60-day period in question reveals that there was ample

opportunity to hold an earlier detention hearing and that even if The Honorable Judge Nathaniel

M. Gorton had wished to wait until after all of the relevant issues which had been cited in the

defendant's motion for release had been fully briefed, i.e. only Speedy Trial and Suppression,

there was still ample opportunity for The Honorable Judge Nathaniel M. Gorton to convene an

earlier hearing, but he instead attended to other matters that carried neither a Constitutional nor

statutory requirement for promptness.

This deliberate delay in direct violation of the defendant's Due Process right to a prompt

detention finding under The Bail Reform Act while The Honorable Judge Nathaniel M. Gorton

attended to other matters of statutorily and Constitutionally lower priority gives rise to an

objective appearance of bias under 28 U.S.C. §455(a) and The Honorable Judge Nathaniel M.

Gorton must recuse himself.

7. The Honorable Judge Nathaniel M. Gorton's denial of adequate resources to defense

counsel:

When prior defense counsel filed a motion for time and funding to secure expert assistance

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for a critical and highly-technical suppression matter, The Honorable Judge Nathaniel M. Gorton

granted the defense only one third of the funding and one half of the time that had been requested

without engaging in any further dialogue with defense counsel to give defense counsel an

opportunity to explain the necessity of the request.

At a later date, prior defense counsel indicated that the amount allocated had been

sufficient. But now that obviously appears not to have been the case. Current counsel is left

without technical expertise to assist in the review of evidence and digital forensics on the eve of

trial and defense counsel's motion for a related continuance has been denied.

It should go without saying that the government is not so encumbered.

8. Summary

In summary, the above, both individually and jointly, all demonstrate objective appearances

of bias requiring the recusal of The Honorable Judge Nathaniel M. Gorton under 28 U.S.C.

§455(a). Indeed, the record of this case reflects that The Honorable Chief Judge Patti B. Saris and

The Honorable Judge F. Dennis Saylor IV both recused themselves from the matter at hand for far

less. The Honorable Judge Nathaniel M. Gorton should and must follow their good example and

recuse himself.

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