In re Vazquez-Botet

• Decision Date: 20 September 2006
• Docket Number: No. 06-2230.,06-2230.
• Parties: In re René VÁZQUEZ-BOTET, Petitioner.
• Court: U.S. Court of Appeals — First Circuit

464 F.3d 54

In re René VÁZQUEZ-BOTET, Petitioner.

No. 06-2230.

United States Court of Appeals, First Circuit.

Heard September 13, 2006.

Decided September 20, 2006.

Howard Srebnick, with whom Black, Srebnick, Kornspan & Stumpf, P.A., and Edgar Vega-Pabón were on petition for writ of mandamus, for petitioner.

Michael Férrara, Trial Attorney, Public Integrity Section, Criminal Division, U.S. Department of Justice, with whom Alice S. Fisher, Assistant Attorney General, Criminal Division, Edward C. Nucci, Acting Chief, and Mary K. Butler and Matthew C. Solomon, Trial Attorneys, Public Integrity Section, were on opposition to petition for writ of mandamus, for respondent.

Before TORRUELLA, SELYA and HOWARD, Circuit Judges.

PER CURIAM.

Petitioner René Vázquez-Botet, who is awaiting trial on charges of conspiracy, fraud, and extortion, seeks a writ of mandamus ordering the recusal of the presiding district court judge. Because the scheduled start of trial was imminent, this court expedited the hearing on this petition. We then issued a judgment on September 14, 2006 (the day after oral argument), denying the mandamus petition and indicating that an opinion would follow. This is that opinion. In it, we set forth our reasons for withholding relief from petitioner.¹

Background

This is the second recusal-based mandamus petition to emerge from the underlying criminal proceedings. Earlier this year, upon request of the government, this court ordered the replacement of the original judge in the case. See In re United States, 441 F.3d 44 (1st Cir.), petition for cert. filed, 75 U.S.L.W. 3065 (U.S. July 31, 2006) (No. 06-166). While dismissing accusations of actual bias, we there agreed that, because of the manner in which an investigation into alleged grand jury improprieties was being conducted, the judge's "impartiality might reasonably be questioned." 28 U.S.C. § 455(a). On remand, the case was randomly reassigned to Chief Judge Fusté on May 16, 2006, who has scheduled the start of trial for September 26, 2006. In a recent filing, the parties estimated that trial would take two to three weeks.

The instant petition relies on an entirely different set of allegations. They center on the fact that Chief Judge Fusté's wife, Rachel Brill, is a practicing attorney who has had some involvement with matters tangential to this criminal case. With cocounsel, she has represented Gregory Laracy—a subject of the investigation and an unindicted coconspirator. Laracy was an officer of one of the local contractors that allegedly made extortionate payments. In May 2003, after several earlier meetings with the government, Brill negotiated a proffer agreement providing Laracy with immunity for his testimony. Petitioner asserts that Laracy, while being represented by Brill, testified before one or more of the grand juries involved in the underlying investigation. The government describes him as a potential prosecution witness at trial. Brill's representation of Laracy mostly involved events occurring over three years ago, and she entered no appearance in any criminal or civil case in connection therewith. She states that she last billed Laracy in October 2003 and does not expect to do so in the future. There is, however, no formal indication that such representation has been terminated.

Brill also has represented José Ventura—another local contractor who was not involved in the crimes charged here but who pled guilty to a similar offense in 2002. The government originally contemplated calling Ventura as a "404(b) witness" to describe other bad acts allegedly committed by petitioner, see Fed.R.Evid. 404(b), but it has now announced that it will not do so. For present purposes, the circumstances surrounding Brill's representation of Ventura remain relevant primarily because of two documents that she drafted on his behalf. One publicly accused petitioner, through counsel, of trying to "intimidate" Ventura. The other privately charged that petitioner may have "once again" attempted to "extort money" from Ventura; it also advised that the prosecution would be notified of the possibility that petitioner had thereby violated his bail conditions.²

According to petitioner, these circumstances require Chief Judge Fusté's recusal under four separate provisions of 28 U.S.C.:

• § 455(a), because his impartiality "might reasonably be questioned";

• § 455(b)(4), because he or Brill has "a financial interest in the subject matter in controversy" or some "other interest that could be substantially affected by the outcome of the proceeding";³

• § 455(b)(5)(ii), because Brill "[i]s acting as a lawyer in the proceeding"; and

• § 455(b)(5)(iv), because Brill "[i]s to the judge's knowledge likely to be a material witness in the proceeding."

Rejecting petitioner's request for an evidentiary hearing before a different judge, Chief Judge Fusté issued a detailed opinion examining each provision separately and concluding that none of them warranted his recusal. Petitioner seeks to overturn this ruling by way of the instant mandamus petition.

Discussion

A district judge's refusal to recuse, although "[o]rdinarily" reviewable only on appeal from final judgment, In re Martinez-Catala, 129 F.3d 213, 217 (1st Cir. 1997), can sometimes present "an extraordinary situation suitable for the exercise of our mandamus jurisdiction," In re United States, 666 F.2d 690, 694 (1st Cir.1981); accord In re United States, 158 F.3d 26, 30 (1st Cir.1998). "[T]he standards for issuance of the writ are high": petitioner must make "a showing of both clear entitlement to the requested relief and irreparable harm without it, accompanied by a favorable balance of the equities." In re Cargill, Inc., 66 F.3d 1256, 1260 (1st Cir.1995). "[I]n recusal cases, mandamus is almost always withheld ... unless the petitioner demonstrates that it is clearly entitled to relief." In re Martinez-Catala, 129 F.3d at 218 (internal quotation marks omitted). But mandamus is a "discretionary writ," and "even where the merits clearly favor the petitioner, relief may be withheld for lack of irreparable injury or based on a balance of equities." Id. at 217. At bottom, "mandamus requires a case not merely close to the line but clearly over it." Id. at 221.⁴

This is not such a case. We stop short of reaching any definitive resolution of the recusal issue, preferring to leave that question open "for resolution on an end-of-case appeal," In re Cargill, Inc., 66 F.3d at 1261, should petitioner be found guilty and thereafter choose to pursue an appeal. For present purposes, it suffices to say that no "clear and indisputable" right to relief has been established—i.e., "that the issue is sufficiently clouded that petitioner's eventual entitlement to the requested redress—the district judge's recusal—is problematic." Id. at 1262 (footnote omitted). We explain briefly.

First: Mandamus relief is not warranted based on the allegation that, under § 455(b)(4), Chief Judge Fusté (or Brill, for that matter) has either a "financial interest" at stake or some other interest that could be substantially affected by the case's outcome. Petitioner makes much of the hourly fees paid to Brill by Laracy; indeed, his request for an evidentiary hearing below focused mostly on financial matters. Notably absent, however, is any explanation of how Brill's receipt of such fees could possibly be affected by the judge's rulings or the jury's verdict. More generally, petitioner has not argued that a lawyer/client relationship falls within § 455(d)(4)'s definition of "financial interest." And while he suggested below that Laracy would be eligible for restitution in the aftermath of this case, the government has since announced that no such relief will be sought on Laracy's behalf.

Petitioner also insists that Brill has an interest in his conviction because of its possible impact on future litigation. He contends that if he were to be convicted, if Laracy were then to file a damages action against him, and if Brill were retained to pursue that action, she could argue that petitioner is estopped from relitigating facts set forth in the indictment. The district court rejected this contention on the ground that the alleged interest was "too remote, speculative, and contingent" to be one that might be substantially affected by the case's outcome. In re Kansas Pub. Emp'ees Ret. Sys., 85 F.3d 1353, 1362 (8th Cir.1996). It is enough here to acknowledge the obvious: that this conclusion is not clearly misplaced. Cf. Sensley v. Albritton, 385 F.3d 591, 600 (5th Cir. 2004) (rejecting § 455(b)(4) argument constructed by "layering several speculative premises on top of one another to reach a speculative conclusion").

Second: The charge that Brill "[i]s acting as a lawyer in the proceeding" under § 455(b)(5)(ii) does not provide a basis for mandamus relief. Courts have held that, while an attorney need not be "enrolled as counsel" of record in order to fall within this provision, McCuin v. Texas Power & Light Co., 714 F.2d 1255, 1260 (5th Cir.1983), the attorney must at least "actually participate[ ] in the case," id.; accord S.J. Groves & Sons Co. v. Int'l Bhd. of Teamsters Local 627, 581 F.2d 1241, 1248 (7th Cir.1978). Here, there is no prospect of any future participation by Brill; in accordance with a standing order issued in 1990, Chief Judge Fusté has declared that she is foreclosed from appearing as an attorney "in any proceeding" before him. That standing order would, of course, prohibit her from representing Laracy in this case, even if she were inclined to do so.⁵

Petitioner emphasizes the fact that Brill negotiated the immunity agreement for Laracy. Yet those events occurred over ten months before this criminal case was initiated (the original indictment was returned on April 8, 2004). Even though the word "proceeding" is defined to include "pretrial, trial, appellate review, or other stages of litigation," 28 U.S.C. § 455(d)(1),...