SECOND REPORT BY THE MAGISTRATE JUDGE

KAREN B. MOLZEN, Chief Magistrate Judge.

The Honorable Kenneth Gonzales referred this matter to me with instructions that I conduct an in camera review of the Government's file in United States v. Cleveland, Cr. No. 12-2062 MCA and then prepare findings on his participation, if any, as United States Attorney in that case. Doc. 37. In my January 26, 2018 initial Report and Recommendation (Doc. 38), I concluded that Judge Gonzales is not required to recuse under 28 U.S.C. § 455(b)(3), because he had not actively participated in that case while serving as United States Attorney.

On February 1, 2018, I was again requested to conduct another in camera review — this time reviewing certain e-mail from the U.S. Attorney's Office server. None of the submitted e-mail documents reflect active participation by Judge Gonzales in that prosecution. Thus, again recusal does not appear mandatory pursuant to Section 455(b)(3).

Out of an abundance of caution, however, I believe that one e-mail should be disclosed in light of the Government's Response (Doc. 41) to Defendant Cleveland's recently filed Motion for Recusal pursuant to 28 U.S.C. § 455(a). Doc. 40. In its Response to that Motion, the Government states:

Doc. 41 at 7.

I am attaching to this Report a July 18, 2013 e-mail from then-United States Attorney Gonzales to AUSA Novaline Wilson in response to an e-mail distributing two U.S. Attorney's Office press releases from that same day. Press Release No. 1 related to the sentencing of Erick MacDonald on child sexual abuse charges arising out of the Navajo Nation that identified Ms. Wilson as the prosecutor in that case. Press Release No. 2 related to the guilty plea entered by Defendant Cleveland in Cr. No. 12-2062 MCA, and at its end identified the case as "being prosecuted by Assistant U.S. Attorneys Jacob Wishard and Novaline D. Wilson." The congratulatory e-mail sent by now-Judge Gonzales states only, "Nice job, Nova!"

No other e-mails seemed potentially relevant to the recusal inquiry. Because the Section 455(a) "appearance of impartiality" analysis requires consideration of all relevant information and would extend beyond the documents that I have reviewed in camera, a further recommendation seems outside the scope of the order of referral.

IT IS HEREBY ORDERED that the parties file any objections to this Second Report by the Magistrate Judge no later than the end of business on February 9, 2018.

Two releases:

TWO GREY HILLS, N.M., MAN SENTENCED TO THIRTY-SEVEN MONTHS IN FEDERAL PRISON FOR CHILD SEXUAL ABUSE CONVICTION

ALBUQUERQUE — Erick McDonald, 21, an enrolled member of the Navajo Nation who resides in Two Grey Hills, N.M., was sentenced yesterday afternoon to 37 months in federal prison followed by seven years of supervised release for his child sexual abuse conviction. McDonald also will be required to register as a sex offender.

McDonald pleaded guilty on March 4, 2013, to a two-count information charging him with abusive sexual contact with a six-year-old Indian child and a 12-year-old Indian child on Sept. 19, 2012. In entering his guilty plea, McDonald admitted that he intentionally touched the genitals and other body parts of the two victims. Court records reflect that McDonald's unlawful conduct occurred in a residence on the Navajo Indian Reservation.

This case was investigated by the Albuquerque and the Farmington offices of the FBI and the Shiprock office of the Navajo Nation Division of Public Safety, and was prosecuted by Assistant U.S. Attorney Novaline D. Wilson.

CASAMERO LAKE, N.M., MAN PLEADS GUILTY TO ASSAULTING A PERSON DURING A HOME INVASION

ALBUQUERQUE — Kirby Cleveland, 29, an enrolled member of the Navajo Nation who resides in Casamero Lake, N.M., pleaded guilty this morning to a federal assault charge. Under the terms of his plea agreement, Cleveland will be sentenced to two-years in prison followed by a term of supervised release to be determined by the court.

Cleveland was arrested in July 2012, based on a criminal complaint and subsequently indicted and charged with assault with a dangerous weapon, assault resulting in serious bodily injury, and aggravated burglary. According to the criminal complaint forcefully entered into a residence located on the Navajo Indian Reservation, armed with a baseball bat and assaulted a Navajo woman.

During this morning's proceedings, Cleveland pleaded guilty to assault resulting in serious bodily injury and admitted assaulting the victim on May 14, 2012, at her family's home. According to his plea agreement, Cleveland went to the victim's home looking for individuals who had threatened him earlier in the day.

Cleveland has been in federal custody since his arrest and remains detained pending his sentencing hearing, which has yet to be scheduled.

This case was investigated by the Crownpoint office of the Navajo Nation Division of Public Safety and is being prosecuted by Assistant U.S. Attorneys Jacob Wishard and Novaline D. Wilson.