In re U.S.
| Decision Date | 10 July 2009 |
| Docket Number | No. 09-2264.,09-2264. |
| Citation | 572 F.3d 301 |
| Parties | In re UNITED STATES of America, Petitioner. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Stephen M. Shapiro, Attorney, Mayer Brown LLP, Chicago, IL, for Respondent
Nancy Joseph, Federal Defender Services of Eastern Wisconsin, Incorporated, Milwaukee, WI, for Rashid A. Salahuddin.
Before RIPPLE, ROVNER and WOOD, Circuit Judges.
The United States ("the Government") has filed this petition for a writ of mandamus seeking the recusal of the respondent district judge currently presiding over a criminal action pending in the United States District Court for the Eastern District of Wisconsin. Because the Government has established that a reasonable, well-informed observer might question the impartiality of the district judge, we must grant the requested writ, disqualifying the judge from presiding over the proceeding and requiring that he vacate all orders entered since the filing of the recusal motion in the district court.
In January 2003, Rashid A. Salahuddin failed to return to a corrections facility while he was on work-release. Local authorities in Milwaukee, Wisconsin, obtained an escape warrant and searched for Mr. Salahuddin in the home of his estranged wife, where he may have been living at the time. During the course of the search, the officers discovered two guns in a bedroom closet, but they did not find Mr. Salahuddin. The next day, they returned, found Mr. Salahuddin and placed him under arrest. Before the officers were able to administer Miranda warnings, Mr. Salahuddin stated that there were two guns in the closet of the bedroom where the guns had been found the previous day.
Mr. Salahuddin was charged in state court with being a felon in possession of a firearm. Later that month, a state court commissioner dismissed the case for lack of probable cause on the ground that there was insufficient evidence connecting the guns to Mr. Salahuddin. The state appealed, arguing that Mr. Salahuddin's statement indicated an ability to possess the guns. The state court disagreed, however, and, in April 2003, affirmed the commissioner's dismissal of the case.
More than two years later, in June 2005, a federal grand jury indicted Mr. Salahuddin on one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The case was assigned to Judge Clevert. Shortly thereafter, the parties began plea negotiations. The assistant United States attorney prosecuting the case suggested in a letter to Mr. Salahuddin's attorney that Mr. Salahuddin would not qualify as an armed career criminal and therefore would not be subject to the fifteen-year mandatory minimum sentence. See 18 U.S.C. § 924(e)(1). According to the prosecutor's letter, Mr. Salahuddin's criminal history included juvenile convictions for resisting or obstructing an officer, receiving stolen property, possession of a controlled substance and three separate incidents of burglary. He also had adult convictions for armed robbery (for which he had been imprisoned for almost eight years), being a felon in possession of a firearm, carrying a concealed weapon, possession of marijuana and escape. The assistant United States attorney calculated Mr. Salahuddin's advisory guideline range as 46-57 months' imprisonment, but also advised Mr. Salahuddin that "the judge will ultimately decide the defendant's criminal history score." R.20, Att 1.1 Mr. Salahuddin elected to plead guilty. At the change of plea hearing, Mr. Salahuddin hesitated when the court explained that, by pleading guilty, he could no longer challenge the admissibility of the Government's evidence against him as the fruits of an unlawful search. Mr. Salahuddin decided at that time to plead not guilty. Judge Clevert set the matter for trial, but, only days later, Mr. Salahuddin again changed his mind and entered a guilty plea.
After the change of plea hearing, but shortly before the sentencing hearing, the Government altered its position and informed Mr. Salahuddin that it now believed he did qualify as an armed career criminal. Mr. Salahuddin then moved to withdraw his plea, which the Government opposed. Judge Clevert granted Mr. Salahuddin's motion to withdraw his plea and, in the same order, recused himself from further participation in the case.
The matter was reassigned to Chief Judge Randa. Although the deadline for filing pretrial motions had expired, Mr. Salahuddin moved in March 2006 for leave to file instanter two motions to suppress both the guns and statements he allegedly had made. The motions were referred to Magistrate Judge Goodstein who, reasoning that the delay in filing the suppression motions resulted from the dispute over the applicability of the armed career criminal statute, concluded that "in the interests of justice" the motions should be entertained. R.39 at 3. The Government sought review of that order in the district court. Chief Judge Randa concluded in May 2006 that Mr. Salahuddin had not met the "good cause" requirement of Federal Rule of Criminal Procedure 12(e) and, therefore, reversed the magistrate judge's decision.2
After a two-day trial in August 2006, Mr. Salahuddin was convicted of being a felon in possession of a firearm. See 18 U.S.C. § 922(g)(1). Mr. Salahuddin's post-trial motions for a judgment of acquittal and for a new trial were denied, and Chief Judge Randa sentenced him to 180 months' imprisonment; the sentence was the mandatory minimum for career criminals sentenced under 18 U.S.C. § 924(e) and also was below the advisory guidelines range.
Mr. Salahuddin appealed to this court. He argued that the district court should have entertained his motions to suppress. We agreed and held that it was "incongruous to permit a defendant to withdraw a guilty plea and go to trial while not permitting him to litigate the admissibility of significant evidence." United States v. Salahuddin, 509 F.3d 858, 862 (7th Cir.2007). We remanded the case with instructions to hear the suppression motions and, if they were found to be meritorious, to order a new trial.
On remand, the motions were referred to Magistrate Judge Goodstein, who recommended that the motions be denied in their entirety. Mr. Salahuddin objected to the magistrate judge's report and recommendation, and the Government filed a response. However, before the district court issued a ruling on the report and recommendation, Chief Judge Randa sua sponte recused himself under Circuit Rule 36.3 The case was reassigned to the respondent district judge (hereinafter "the Judge").
The Judge reviewed the report and recommendation, and he called a meeting in chambers on October 9, 2008, with then-United States Attorney Steven M. Biskupic and Federal Defender Daniel W. Stiller. Assistant United States Attorney Gordon P. Giampietro and Associate Federal Defender Nancy Joseph, who were the attorneys actually litigating the case, were not invited. No court reporter was present, and no meeting minutes are reflected on the district court's docket. The Judge began by telling Mr. Biskupic and Mr. Stiller that he would not hear discussion, comment or response from either of them. According to the parties' submissions, the Judge then recounted the procedural history of the case and reminded the office heads that, before the confusion surrounding application of the armed career criminal statute, both parties had preferred to resolve the case with a plea bargain. The Judge also suggested that his pending ruling on the motions to suppress would not satisfy either party and recommended that they consult with the assigned attorneys to explore the possibility of resolving the case without additional litigation.
The Government adds that, in discussing the procedural history of the case, the Judge suggested that there was "an awful lot of blame to be spread around for what he considered to be a total breakdown of justice." Pet. 4. The Government states that the Judge mentioned the length of time that had passed between Mr. Salahuddin's arrest by state authorities and the commencement of his federal prosecution and questioned why the case was accepted for federal prosecution at all, given that the qualifying conviction for armed career criminal status was an armed robbery Mr. Salahuddin had committed while a juvenile (he had been waived into adult court). The Government further recites that the Judge said the case should be resolved without further litigation and that he recommended that the parties agree to a guilty plea to a false-statement count (which carries a ten-year statutory maximum, as opposed to the fifteen-year statutory minimum under § 924(e)), recognizing that Mr. Salahuddin would have to waive the statute of limitations.4 The Government submits that the Judge suggested in the alternative that the case be sent back to state court. Finally, the Government suggests that, although the Judge recognized that he should not be involved in plea negotiations, he opined that this was an "extremely rare" case that needed to be addressed "at the top"; that he was disturbed that there were 100 docket entries in a one-count gun case;5 that if the case were to go forward there may be another appeal; that the case was "an embarrassment to the justice system;" and that he would recuse himself if requested. Pet. 5. Neither the Judge nor Mr. Salahuddin challenges the accuracy of the Government's recitation of these additional facts.
Eleven days later, on October 20, 2008, the Government moved for the Judge's recusal pursuant to 28 U.S.C. § 455(a). On January 5, 2009, the Government inquired as to the status of the case. Three days later, the Judge issued an order adopting in part the report and recommendation of the magistrate judge. He granted Mr. Salahuddin's motions to suppress statements, denied the motion to suppress the gun,...
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