In re U.S.

Citation441 F.3d 44
Decision Date24 March 2006
Docket NumberNo. 06-1136.,06-1136.
PartiesIn re UNITED STATES of America, Petitioner.
CourtU.S. Court of Appeals — First Circuit

Howard Srebnick, with whom Black, Srebnick, Kornspan & Stumpf, P.A., Francisco Rebollo Casalduc, Edgar Vega-Pabon, G. Richard Strafer, and G. Richard Strafer, P.A., were on opposition to petition for a writ of mandamus, for respondents Rene Vazquez-Botet and Marcos Morell-Corrada.

Before LYNCH, LIPEZ, and HOWARD, Circuit Judges.

PER CURIAM.

The government petitions for mandamus in this criminal case, seeking, among other relief, an order that the district judge recuse himself on the ground that the judge's impartiality could reasonably be questioned. See 28 U.S.C. § 455(a).

On April 8, 2004, a grand jury returned a public indictment charging defendants (and respondents here) Rene Vazquez-Botet and Marcos Morell-Corrada with conspiracy, fraud, and extortion in connection with the bidding process surrounding construction of the "Superaqueduct" — a $305 million public works project in Puerto Rico. Defendants were former officials in the New Progressive Party (NPP): Vazquez-Botet served as campaign manager for former NPP Governor Rossello, while Morell was the Secretary General of the NPP.

Since August 2003, the grand jury proceedings, which took place before three successive grand juries, and the prosecution have been led by attorneys from the Department of Justice's Public Integrity Section, rather than by the local U.S. Attorney's Office, which had previously handled the matter. It was the third grand jury which delivered the April 8, 2004 indictment and the March 3, 2005 superseding indictment (which added one new count against Morell: that he had corruptly influenced the grand jurors and obstructed justice by providing false testimony to the grand jury, in violation of 18 U.S.C. § 1503(a)).1

The government's mandamus petition is based on a series of actions taken by the district court in response to allegations of government misconduct as to the grand jury. Defendants have pursued two theories. The first is that government agents violated grand jury secrecy by leaking to the media protected information from the second grand jury. The second is that government agents eavesdropped on confidential conversations by the second grand jury, and that this eavesdropping led the prosecution to engage in "grand jury shopping" when it chose to present the charges for indictment to a third grand jury. The district court (Pérez-Giménez, J.) has conducted an investigation of these allegations over a protracted period of time.

The government has reported to the district court that it has investigated all leaks of grand jury information and found no misconduct by government agents, that it did not engage in eavesdropping, and that its reasons for presenting the indictment to a third grand jury, which it says are not a proper subject for the court to question, were entirely legitimate.

The district court has been unpersuaded. The court has stayed indefinitely the trial date of September 26, 2005, over the government's protest, pending the completion of its ongoing investigation into possible government misconduct as to the second grand jury.

On October 3, 2005, the government asked the judge to remove himself from the case on the basis that his impartiality could reasonably be questioned. See 28 U.S.C. § 455(a). It also suggested that the judge was "actually biased against the government and in favor of the defendants." The government's theme was that the judge was "no longer acting as an impartial judicial officer, but instead [had] taken on the role of an inquisitor/prosecutor by conducting an on-going and secret investigation of the government," such that an objective observer informed of the facts would question his ability to be impartial. The government argued that the court had secretly begun its investigation based on vague and dubiously supported allegations of government misconduct, and had continued its "hunt for misconduct" even when the evidence consistently showed none.

On October 28, 2005, the defendants filed an opposition to the government's motions to recuse and to stop the investigation.

The district judge, in an order dated December 15, 2005, refused to recuse himself or to terminate his investigation; indeed, the judge ordered the government to file even further information going to the theories of wrongdoing alleged by the defense. We describe the order in detail in the next section.

On January 17, 2006, the United States filed in this court a petition for mandamus,2 seeking an order that the district judge recuse himself; that the case, on remand, be reassigned to a different judge and promptly set for trial; and that the present investigation directed toward it, in the absence of any new evidence, be terminated. This court expedited briefing3 and argument in this serious case. We now grant the petition for mandamus as to each item of relief sought.

I. Description of Orders Staying Trial and Denying Recusal

On December 15, 2005, the district court denied the United States' motion for recusal and for stay of the investigation, saying the motion was untimely and without merit. It said it was investigating "serious and troubling" allegations of government misconduct under its authority under Rule 6 of the Federal Rules of Criminal Procedure and its inherent supervisory authority. The court found that the defendants had made a prima facie showing of violations of Rule 6(d), Fed.R.Crim.P., on five grounds, and of Rule 6(e), Fed.R.Crim.P. This, it said, "trigger[ed] the Court's duty to investigate and demolish[ed] the government's contention that the Court's investigation constitutes a cognizable ground for recusal under 28 U.S.C. § 455(a)." The court ordered further investigation and disclosure from the government.4

That opinion and order also explained the court's earlier decision, on August 30, 2005, to delay the trial: while it then had no basis to contemplate dismissal of the indictment, "[i]n extreme cases where defendants can establish prejudice, even dismissal of the indictment may be appropriate." The court thus delayed trial, we infer from its stated reason, because it might conclude after further investigation that the purported misconduct was so egregious as to warrant dismissal of the indictment. The court noted that if the case went to trial and the petit jury found the defendants guilty, the petit jury verdict would render any grand jury rule violation harmless. See United States v. Mechanik, 475 U.S. 66, 72-73, 106 S.Ct. 938, 89 L.Ed.2d 50 (1986). From the court's reasoning, we infer that this was a result which could not be allowed to happen, because it would then take away the court's ability to dismiss the indictment.

II. Background

The mandamus proceedings must be evaluated against the history of the investigatory activity against the government by the district court.

A. Misconduct Theory Involving Leaks of Grand Jury Proceedings (Rule 6(e), Fed.R.Crim.P.)

The court had entirely legitimate concerns about leaks to the media about the second grand jury that sat in this matter. Federal Rule of Criminal Procedure 6(e)(2)(B) provides for grand jury secrecy:

Unless these rules provide otherwise, the following persons must not disclose a matter occurring before the grand jury:

(i) a grand juror;

(ii) an interpreter;

(iii) a court reporter;

(iv) an operator of a recording device;

(v) a person who transcribes recorded testimony;

(vi) an attorney for the government; or

(vii) a person to whom disclosure is made under Rule 6(e)(3)(A)(ii) or (iii).

Fed.R.Crim.P. 6(e)(2)(B).

It was the government which first raised the possibility that there were Rule 6(e) violations. On August 6, 2003, the U.S. Attorney's office voiced concerns to Judge Pérez-Giménez (in his then-capacity as Acting Chief Judge) about news accounts describing grand jury action in an unrelated public corruption case. The judge, on August 7, appropriately requested that U.S. Attorney García contact the FBI and direct a full investigation. García did so and reported to the court that the matter would be investigated and that the investigation would be expanded to include leaks in this case.

Nonetheless, various media accounts about this case appeared in Puerto Rico newspapers, apparently based on leaks from the second grand jury, as the district court noted in its December 15, 2005 opinion.

The newspaper El Nuevo Día published an article on December 8, 2003, based on "sources," purporting to describe the identity, content of testimony, and demeanor of witnesses subpoenaed to testify before the second grand jury. The article identified a "federal source" who stated that the "alleged scheme revolves around Vazquez Botet," who might be charged. On December 9, 2003, Vazquez-Botet asked prosecutor Mary K. Butler, a Trial Attorney in the DOJ's Public Integrity Section, to conduct an inquiry into whether "any one in the inner circle of the investigation" had been leaking grand jury information to the media. Butler referred the matter to the DOJ's Inspector General and the DOJ's Office of Professional Responsibility (OPR) in Washington. On March 25, 2004, OPR notified Vazquez-Botet that, after its review of the matter, no further investigation would be initiated.

On April 20, 2004, after the original indictment, an article in El Nuevo Día, citing "a source close to the Super Aqueduct investigation," again purported to describe the testimony and demeanor of witnesses before the second grand...

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