United States District Court, D. Maryland
L. HOLLANDER UNITED STATES DISTRICT JUDGE.
Kumar Jha, who is now self-represented, has filed a petition
to vacate his conviction and sentence, pursuant to 28 U.S.C.
§ 2255 (ECF 180), with exhibits. He has also filed a
motion seeking my disqualification and recusal (ECF 182,
“Recusal Motion”), supported by his “Good
Faith Affidavit” (ECF 182-1) and “pertinent
authorities.” See ECF 180-2. The Government
filed a response to the recusal motion (ECF 184,
“Response”), as well as a supplemental response.
See ECF 186. Jha replied. ECF 187
addition, Jha filed a “Motion For Supplemental
Discovery To Uncover Full Scope” of my alleged bias.
ECF 189 (“Discovery Motion”). The Government
responded at ECF 196 (“Discovery Response”), with
an exhibit. See ECF 196-1; see also ECF
195. Although Jha's § 2255 Motion is 45 pages, plus
exhibits, he has also filed a motion for leave to file an
additional memorandum to support his § 2255 petition.
See ECF 181. And, he has filed a motion for an
extension of time to submit an additional memorandum to
support his § 2255 petition. ECF 193.
addition, Jha has filed an “Objection to the
Adjudication of ECF 190 By Judge Hollander.” ECF 197
(“Objection). ECF 190 is captioned “Motion For
Release Or Home Confinement Pending Disposition Of The 2255
Motion.” In my Order of February 8, 2017 (ECF 194), in
which I denied ECF 190, I said: “The Court is unaware
of any authority that would permit the Court to grant the
Motion.” See ECF 194.
Memorandum addresses Jha's Recusal Motion (ECF 182); his
Discovery Motion (ECF 189); and the Objection (ECF 197). In
addition, the Order addresses Jha's submissions in ECF
181 and ECF 193.
hearing is needed to resolve the motions. Local Rule 105.6.
For the reasons stated below, I shall deny ECF 182, ECF 189,
and ECF 197. And, as set forth in the Order, I shall grant
ECF 181 and ECF 193.
former engineering professor, was initially indicted on
November 14, 2012, charged with wire fraud, mail fraud, and
falsification of records. ECF 1. In a Superseding Indictment
filed on August 21, 2013 (ECF 49), Jha was charged with wire
fraud, in violation of 18 U.S.C. § 1343; mail fraud, in
violation of 18 U.S.C. § 1341; falsification of records,
in violation of 18 U.S.C. § 1519; and federal program
fraud, under 18 U.S.C. § 666. In addition, the
Superseding Indictment contained a forfeiture count, pursuant
to 18 U.S.C. § 982(a)(2)(A).
pretrial motions were filed by defense counsel. These included
the following: ECF 12 (motion to suppress statements); ECF 19
(motion to dismiss indictment and motion to suppress
evidence; ECF 52 (motion to quash indictment); ECF 53 (motion
to suppress proffer statement and dismiss proffer agreement);
ECF 54 (motion to dismiss counts One and Eight); ECF 55
(motion to inspect transcripts of grand jury testimony); ECF
56 (motion to suppress statements and tangible evidence); ECF
57 (motion to strike Government's Rule 404(b) Notice);
ECF 58 (motion in limine); and ECF 65 (motion in limine).
hearings were held on February 14, 2014 (ECF 77; ECF 146);
February 19, 2014 (ECF 83; ECF 147); and February 24, 2014
(ECF 89; ECF 148), at which evidence was presented.
Thereafter, the Court denied the various defense motions, for
the reasons stated. See ECF 78; ECF 87; ECF 96;
see also ECF 146; ECF 147; ECF 148.
on March 18, 2014, the Court presided over a nine-day jury
trial. See ECF 100; ECF 101. At the trial, more than
200 exhibits were introduced and over 30 witnesses were
called to testify. On April 1, 2014, the jury returned a
verdict of guilty as to all counts. ECF 118; ECF 119.
was held on August 29, 2014. ECF 134. Numerous issues were
contested in presentencing submissions with regard to the
calculation of the advisory sentencing guideline range
applicable to Jha. See ECF 124; ECF 131 (Defense);
ECF 127 (Government). The Presentence Report (“PSR,
” ECF 123) reflected that Jha had an offense level of
27 and a criminal history category of I, with an advisory
sentencing guidelines range of 70 to 87 months of
sentencing, the Court spent considerable time addressing the
various issues, including loss calculation. Ultimately, I
agreed with the Government and the PSR that, as a result of
the actual loss and the intended loss, 14 levels were to be
added to the base offense level of 7, under U.S.S.G. §
2B1.1(b)(1)(H). See ECF 158 (Sentencing Transcript)
at 11-41. I also determined to award a two-level upward
adjustment under U.S.S.G. § 2B1.1(b)(10)(C), for use of
sophisticated means. See ECF 158 at 46-50. And, I
awarded another two-level upward adjustment for abuse of a
position of trust, under U.S.S.G. § 3B1.3. See
ECF 158 at 58-60. However, contrary to the PSR, and contrary
to the Government's position, I declined to award a
two-level upward adjustment for obstruction of justice under
U.S.S.G. § 3C1.1. Id. at 64-67.
I concluded that Jha had a final offense level of 25, and not
an offense level of 27, as urged by the Government. Based on
a final offense level of 25 and a criminal history category
of I, the advisory sentencing guidelines range called for a
period of incarceration of 57 to 71 months. The Government
sought a sentence of 65 months. See ECF 158 at
my characterization of the Government's recommendation as
“reasonable” (id.), and notwithstanding
the defendant's reprehensible conduct (id. at
88), I awarded a substantial downward variance to Jha.
Id. at 90-92. In particular, I sentenced him to
concurrent terms of 36 months' incarceration and ordered
restitution in the amount of $105, 726.31. That term of
incarceration was obviously well below the advisory
guidelines range and well below the 65-month
sentence that the Government requested.
sentencing, I set forth my rationale for a below-guidelines
sentence. Id. at 85-92. I recounted the serious and
prolonged nature of the crime. Yet, I also identified several
factors in mitigation to justify the substantial downward
variance. These included “a very heavy price”
that was “paid by the Defendant” (id. at
90), which included the profound adverse impact to Jha's
career as a professor, the damage to his reputation, his
contributions to science, and recognition that federal
prosecution itself is punishment. I described my sentence as
“really generous.” Id. at 92.
was entered on September 11, 2014. See ECF 137. In
the Statement of Reasons (ECF 183), I again explained my
variance, stating that Jha is “an immigrant, a scholar
and a professor [who] has helped many minority students . . .
to his credit.” Id. at 3. I also pointed out
that Jha's “career is ruined, ” noting that
he “had to resign in disgrace.” Id.
the defendant noted an appeal to the Fourth Circuit. ECF 135.
He raised several issues. See ECF 163. The United
States Court of Appeals for the Fourth Circuit affirmed the
defendant's convictions on June 4, 2015, in an
unpublished, per curiam opinion. Id. The mandate
issued on June 26, 2015. ECF 164.
September 1, 2015, Jha filed a petition for a writ of
certiorari to the United States Supreme Court. See
ECF 162-2. According to both Jha and the Government, on
September 16, 2015, the Solicitor General waived the
Government's right to file a response. See ECF
166 at 9; ECF 171 at 2. The Supreme Court denied Jha's
certiorari petition on October 13, 2015. ECF 166 at 9; ECF
171 at 2. On November 6, 2015, Jha filed a petition for
rehearing in the Supreme Court. See ECF 166-4. That
petition was denied on December 7, 2015. ECF 166 at 9; ECF
171 at 2.
February 25, 2016, Jha filed “Fed. R. Crim. P. 33
Motion To Vacate The Judgment of Conviction, Sentence And
Restitution, And Order A New Trial” (ECF 166,
“Rule 33 Motion”), along with numerous exhibits.
The Government responded at ECF 171 and Jha replied at ECF
172. By Memorandum and Order of June 13, 2016 (ECF 173; ECF
174), I denied the Rule 33 Motion. In ECF 174, I also denied
Jha's motion for reconsideration (ECF 170) of my Order
(ECF 168) granting the Government's request (ECF 167) for
an extension of time in which to respond to Jha's Rule 33
noted an appeal to the Fourth Circuit. ECF 175. In a per
curiam opinion issued December 5, 2016, the Fourth Circuit
affirmed. ECF 185. Thereafter, on January 24, 2017, the
Fourth Circuit denied Jha's petition for rehearing. ECF
191. The mandate issued on February 1, 2017. ECF 192.
filed his Recusal Motion (ECF 182) pursuant to 28 U.S.C.
§ 455(a) and 28 U.S.C. § 144. He maintains that
recusal is required based on “a clear and obvious
pattern of deep seated favoritism or antagonism” on my
part. ECF 182 at 2. In his view, the record
“conclusively shows” such bias. Id.;
see also ECF 182 at 6. Moreover, Jha argues that
because he has ...