U.S. v. Salemme

• Decision Date: 30 March 1998
• Docket Number: No. CR. 97-10009.,No. CR. 94-10287.,CR. 94-10287.,CR. 97-10009.
• Citation: 164 F.Supp.2d 86
• Parties: UNITED STATES of America v. Francis P. SALEMME, et al. United States of America v. John Martorano.
• Court: U.S. District Court — District of Massachusetts

164 F.Supp.2d 86

UNITED STATES of America v. Francis P. SALEMME, et al.

United States of America v. John Martorano.

No. CR. 94-10287.

No. CR. 97-10009.

United States District Court, D. Massachusetts.

March 30, 1998.

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COPYRIGHT MATERIAL OMITTED

MEMORANDUM AND ORDER

WOLF, District Judge.

Upon careful consideration of the presentations of the parties and independent analysis, I have decided that my recusal from further participation in this case is neither necessary nor appropriate. In view of the implications of this question for this case, the reasons for this decision are described in detail in the instant Memorandum and Order and in the Memorandum and Order issued on February 13, 1998.¹

I. Summary

In the February 13, 1998 Memorandum and Order, I informed the parties that I did not then believe that my recusal was required by 28 U.S.C. § 455(b), which mandates disqualification if, among other things, a judge: is actually biased or prejudiced against a party; has personal knowledge of an evidentiary fact which is disputed in the pending proceeding; as a government lawyer participated in, or expressed an opinion about the merits of, the particular case in controversy; or is likely to be a material witness in the proceeding. I also expressed the view that my recusal is not appropriate pursuant to 28 U.S.C. § 455(a), which requires disqualification if a reasonable person, fully informed of the relevant facts, would question my impartiality unless the parties waive this ground for recusal pursuant to 28 U.S.C. § 455(e). I explained that the views expressed remained preliminary and ordered the parties to respond to the analysis in the February 13, 1998 Memorandum and Order.²

The parties each requested and were allowed additional time to file their responses. In the process, the parties were reminded of the obligation of all litigants to submit affidavits if they wished to supplement the factual record. See February 18, 1998 Memorandum and Order; Rule 7.1(B)(1) of the Local Rules of the United States District Court for the District of Massachusetts.

After studying the parties' submissions, on March 23, 1998, I held a hearing to permit them to address further the issue of my continued participation in this case.

In their submissions, the parties agreed that my disqualification is not required by § 455(b). See Government's Submission Regarding Recusal (March 2, 1998) at 1, 3; Defendants' Memorandum of Law Regarding Recusal (March 16, 1998) at 2. In the instant case this means that: (1) neither the government nor the defendants assert that I am actually biased or prejudiced with regard to any party; (2) neither the government nor the defendants claim that I have personal knowledge of any disputed material fact; (3) neither the government nor the defendants contend that while in the United States Attorney's Office from November 1981 to April 1985, I ever participated in, or expressed an opinion about the merits of, this case, which was not indicted until 1994; and (4) neither the government nor the defendants suggest that I am likely to be called as a witness in this case.

At the hearing on March 23, 1998, the government reiterated that it does not question my actual ability to be impartial. See March 23, 1998 Transcript ("Tr.") at 48. Thus, it should be recognized that the parties and I agree that there is no impediment to my ability to give each of them — the government and the defendants — a fair trial and to decide the matters I must determine on the basis of the evidence presented in court, rather than as a result of any information I acquired before I became a judge in 1985.³

The parties disagree, however, on the § 455(a) question of whether a reasonable person, fully informed of the relevant facts, would mistakenly question my impartiality. The government in effect asserts that I should recuse myself because this error would be made. The defendants disagree. Moreover, the defendants are again willing to waive, pursuant to § 455(e), any claim that they arguably may have for my disqualification under § 455(a).

The government does not wish to waive this possible ground for recusal. Rather, the government contends that the new issue regarding recusal that I raised on January 21, 1998, and at least one other matter, provide a valid basis for it to withdraw the § 455(e) waiver that it provided on December 4, 1997 following what it admits was full disclosure of my relationship with some of the prospective witnesses in the now suspended proceedings. See March 23, 1998 Tr. at 14. This appears to be an unprecedented request. As explained in § III, infra, it is, in any event, not meritorious.

There are, however, two matters that have been raised since December 4, 1997 as to which there has been no valid § 455(e) waiver. These are the December 21, 1984 memorandum of my conversation, as Deputy United States Attorney, with Assistant Attorney General Stephen Trott and my October 15, 1984 memorandum concerning the prosecution of Vincent Piro. See February 13, 1998 Memorandum and Order, Exhibits A and B. I address these matters respectively in §§ VI and V, infra. In addition, I have considered further, in § IV, infra, the August 8, 1983 FBI 209 report of statements made about me by defendant Stephen Flemmi (the "Flemmi 209").

In analyzing the individual and cumulative effect of these matters I have applied the relevant legal principles, as they are described in the February 13, 1998 Memorandum and Order and amplified in this decision. See § II, infra. These principles include the following.

As the presiding judge, it is my duty to decide in the first instance whether a fully informed, reasonable person would question my impartiality because of the matters now at issue. In answering this question, I must keep in mind that a decision on disqualification must reflect not only the need to promote public confidence by assuring the appearance of impartiality, but also the need not to permit the reasonable perception that disappointed litigants can too easily prompt the disqualification of a fair judge in the hope of obtaining another judge more to their liking.

In deciding this matter, I recognize that no judge is indispensable. If I cannot properly continue to preside, some other judge will. I am obligated, however, to continue to preside unless some reasonable factual basis to doubt my impartiality or fairness is shown by some kind of probative evidence. "Were less required, a judge could abdicate in difficult cases at the mere sound of controversy or a litigant could avoid adverse decisions by alleging the slightest factual basis for bias." In re United States, 666 F.2d 690, 695 (1st Cir. 1981).

As indicated earlier, the parties agree that I can and will continue to preside fairly in this case. I have faith in the common sense of the people of this community. I find that properly informed,⁴ reasonable people would not question my impartiality. Thus, for the reasons described in the February 13, 1998 Memorandum and Order, as amplified in the instant Memorandum and Order, I will not recuse myself pursuant to § 455(a).

However, if an authorized representative of the government requests a stay and states that the government intends to file promptly with the Court of Appeals for the First Circuit a petition for a writ of mandamus to compel my recusal, I will stay this case to provide the Court of Appeals whatever time it needs to act on that petition.

II. The Legal Standards

28 U.S.C. § 455(a) states that a judge "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." "The case law fleshes out the bare-bone words of the statute." United States v. Voccola, 99 F.3d 37, 42 (1st Cir.1996). "The test in [the First Circuit] for determining whether a judge's impartiality might reasonably be questioned is long established." Id. It is:

"[w]hether the charge of lack of impartiality is grounded on facts that would create a reasonable doubt concerning the judge's impartiality, not in the mind of the judge himself or even necessarily in the mind of the litigant filing the motion under 28 U.S.C. § 455, but rather in the mind of the reasonable man."

Id. (quoting United States v. Cowden, 545 F.2d 257, 265 (1st Cir.1976), cert. denied, 430 U.S. 909, 97 S.Ct. 1181, 51 L.Ed.2d 585 (1977)) (emphasis added). Thus, the disqualification issue must be analyzed from the perspective of "`an objective, knowledgeable member of the public.'" El Fenix de Puerto Rico v. M/Y JOHANNY, 36 F.3d 136, 141 (1st Cir.1994) (quoting In re United States, 666 F.2d at 695).

It is the duty of the presiding judge, rather than another judge, to decide whether his disqualification is required by § 455(a). See In re Martinez-Catala, 129 F.3d 213, 220 (1st Cir.1997). As the Court of Appeals for the First Circuit has explained:

It might seem odd that recusal issues should be decided by the very judge whose recusal is in question. But there are other considerations at work, including a desire for expedition and a concern to discourage judge shopping.

Id.

In any event, as Supreme Court Justice Anthony Kennedy has written:

[Section] 455(a) is triggered by an attitude or state of mind so resistant to fair and dispassionate inquiry as to cause [there to be] reasonable grounds to question the neutral and objective character of a judge's rulings or findings. I think all would agree that a high threshold is required to satisfy this standard. Thus, under § 455(a), a judge should be disqualified only if it appears that he or she harbors an aversion, hostility or disposition of a kind that a fair-minded person could not set aside when judging the dispute.

Liteky v. United States, 510 U.S. 540, 557-58, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994) (Kennedy, J., concurring). See also United States v. Conforte, 624 F.2d 869, 881 (9th Cir.) (Kennedy, J.), cert. denied, 449 U.S. 1012, 101 S.Ct. 568, 66...