Hatcher, Matter of

• Decision Date: 13 May 1998
• Docket Number: No. 98-2098,98-2098
• Citation: 1998 WL 411311,150 F.3d 631
• Parties: In the Matter of Jeffrey C. HATCHER, Sr., Petitioner.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 631

150 F.3d 631

In the Matter of Jeffrey C. HATCHER, Sr., Petitioner.

No. 98-2098.

United States Court of Appeals Seventh Circuit.

Submitted May 4, 1998.

Decided May 13, 1998. ^*.

Jeffery C. Hatcher (submitted), Chicago, IL, Petitioner Pro Se.

Jonathan D. King (submitted), Office of the United States Attorney, Criminal Division, Chicago, IL, for Respondent.

Before BAUER, RIPPLE, and DIANE P. WOOD, Circuit Judges.

DIANE P. WOOD, Circuit Judge.

The Gangster Disciples were one of the largest and most powerful of Chicago's street gangs. See generally United States v. Parks, 100 F.3d 1300 (7th Cir.1996); United States v. Irwin, 149 F.3d 565, (7th Cir.1998). On August 30, 1995, a Chicago federal grand jury returned indictments in three related cases, Nos. 95 CR 508, 95 CR 509, and 95 CR 510, charging 39 members of the Gangster Disciples with a variety of federal drug and conspiracy crimes. Petitioner, Jeffrey Hatcher, was named as a co-conspirator in two of the original indictments, Nos. 95 CR 508 and 95 CR 509, and as a defendant in the third, No. 95 CR 510. Gang leader Larry Hoover, who controlled the gang's drug trafficking business from his prison cell in downstate Illinois, was one of the defendants in No. 95 CR 508 (the Hoover indictment), and was named as a co-conspirator in the other two indictments. Hoover and his co-defendants' case went to trial in the spring of 1997 before Judge Harry D. Leinenweber of the U.S. District Court for the Northern District of Illinois. Hoover was convicted on May 9, 1997, and later received a mandatory life sentence. Most of Hatcher's codefendants in No. 95 CR 510 (the 1995 Hatcher indictment) were also tried and convicted in the spring of 1997, before Judge George W. Lindberg. Hatcher himself was not tried at that time. Instead (because he had skipped town), he was transferred before that trial to a new indictment, No. 96 CR 553 (this case, which we will refer to as the "second Hatcher indictment").

Trial in the present case was scheduled for May 1998. Prior to trial Hatcher, who had since been apprehended, moved under 28 U.S.C. § 455 to have presiding District Judge Charles Kocoras recuse himself. Hatcher pointed out that the district judge's son, while working as an intern in the U.S. Attorney's office as a third-year law student, had assisted in the Hoover trial. The judge's son, presumably acting under the authority of Northern District of Illinois General Rule 3.11 (which allows supervised third-year law students to act as attorneys), presented eight government witnesses to the jury. Notwithstanding that fact, Judge Kocoras denied Hatcher's § 455 motion, prompting Hatcher to petition this court for a writ of mandamus ordering the judge to recuse himself. On May 13, 1998, we granted Hatcher's petition and issued the requested writ.

Although Hatcher's pro se petition is not as clear as it might have been had it been prepared with the assistance of counsel, we understand him to be raising two distinct types of claims under § 455. The first arises under two subparts of § 455(b), which require a judge to disqualify herself when she has personal knowledge of disputed evidentiary facts ((b)(1)), or when a person within the third degree of relationship to the judge is acting as a lawyer in the proceeding ((b)(5)(ii)). Hatcher's second claim arises under the umbrella rule of § 455(a), which requires disqualification any time even an appearance of impropriety is present, or, as the statute puts it, the judge's "impartiality might reasonably be questioned." We agree with Judge Kocoras that the facts presented here did not require his recusal under either subsection of § 455(b). Notwithstanding our complete confidence in his integrity and impartiality, however, we conclude that the circumstances of this case required him to recuse himself under § 455(a) because of the significant risk of an appearance of impropriety.

I

A more extensive account of this case and the ones that preceded it is necessary to understand Hatcher's recusal motion, because our resolution of the motion turns on the degree to which the Hoover case and the present case overlap for purposes of § 455. On August 30, 1995, a grand jury in the Northern District of Illinois returned the three related indictments mentioned above, charging 39 leaders of the Gangster Disciples with various drug, conspiracy, and continuing criminal enterprise offenses:

Among other things, the indictments charged each of thirty-nine defendants with participating in a twenty-five year narcotics conspiracy in violation of 21 U.S.C. § 846, and charged about half of the defendants, including Hatcher, with operating a Continuing Criminal Enterprise in violation of 21 U.S.C. § 848. The indictments alleged that the defendants belonged to the Gangster Disciples street gang, which provided the structure and organization for the conspirators' sale and distribution of drugs.

... The indictment[s] alleged that the Gangster Disciples operated through a hierarchy, which included a Board of Directors, Chairman of the Board, Governors, Regents, Coordinators and Soldiers. At all times during the alleged conspiracy, Larry Hoover ("Hoover") was the so-called "Chairman of the Board," which meant that Hoover directed and controlled the activities of the gang. Hoover was able to continue directing the Gangster Disciples despite the fact that he had been incarcerated for murder since 1973. Hatcher was alleged to be on the gang's Board of Directors.

Parks, 100 F.3d at 1301-02. Of these 39 defendants, 27, including Hoover, were convicted after jury trials, and five pleaded guilty to at least one charge. Two are currently fugitives. The indictments against two were dismissed in order to allow separate capital murder trials; the indictment against another, currently in prison on unrelated charges, see United States v. Montgomery, 129 F.3d 120 (table), 1997 WL 632587 (7th Cir.1997), seems to have been dismissed outright; and one was found not guilty after a jury trial. Last, as we have already noted, Jeffrey Hatcher, originally covered by No. 95 CR 510, was reindicted in No. 96 CR 553. One defendant, Tirenzy Wilson, was transferred from case No. 95 CR 509 to No. 95 CR 508 before trial.

No rhyme or reason differentiates the three 1995 indictments. Each one names a certain number of defendants, and lists the remainder of the conspirators by name as unindicted co-conspirators; the unindicted people from each one show up as indicted defendants in one of the other two. The only apparent explanation for the division is administrative convenience. The first four counts in each indictment--the central counts--are reproduced almost verbatim in each of the three.

The conspiracy alleged in the three 1995 cases covered a time period from the early 1970s through the date of the indictments, while the second Hatcher indictment identified the period "[f]rom approximately the mid-1980s through the date of [the] indictment." We describe the second Hatcher indictment first, and then compare it to the Hoover indictment, the case in which Judge Kocoras's son participated. The second Hatcher indictment includes fifteen criminal counts, as well as forfeiture allegations; Hatcher is charged in Counts One through Five. Count One alleges a conspiracy involving Hatcher and others knowingly to possess with intent to distribute and to distribute various drugs in violation of 21 U.S.C. §§ 841(a)(1) and 846. Count Three alleges that Hatcher and others used and employed minors in the conspiracy alleged in Count One, in violation of § 861(a)(1). Count Four alleges the employment of minors "to assist in avoiding detection and apprehension" for the Count One conspiracy, in violation of § 861(a)(2). Count Two alleges that Hatcher and others engaged in a continuing criminal enterprise, under 21 U.S.C. § 848(a), based upon the crimes alleged in Counts One, Three, and Four in violation of 21 U.S.C. §§ 841, 843(b), 846, and 861(a)(1) and (2). Finally, in Count Five, Hatcher is alleged to have violated 18 U.S.C. § 922(g) by possessing a firearm--a Colt Official Police Special, serial number 712129--on or about October 15, 1994, despite having been previously convicted of a crime punishable by imprisonment for a term exceeding one year.

Count One is the center of this web. It accuses eight men of being members of the conspiracy, lists by name 26 unindicted co-conspirators, and states that "others known and unknown to the grand jury" were also members of the conspiracy. The indictment then details the organization of the Gangster Disciples. Paragraph 1 names the eight defendants and the unindicted co-conspirators and alleges that they conspired to distribute a variety of contraband substances. Paragraphs 2 through 15 and 21 set forth in some detail the workings of the gang. Paragraphs 16 through 20 allege efforts to "reestablish control" of the gang "after many of the top leaders of the Gangster Disciple organization were indicted on August 31, 1995" (p 16), such as attempts by various gang members, including Jeffrey Hatcher, to assume control of the gang and to start a gang war to help the Gangster Disciples to regain power within the Chicago region.

We now turn, for comparison, to the allegations in the Hoover indictment. It set forth fifty counts and named Larry Hoover and eight others as defendants. Counts One to Four directly parallel the second Hatcher indictment, centered around an alleged conspiracy involving Hoover and 38 named individuals knowingly to possess with intent to distribute and to distribute various drugs in violation of 21 U.S.C. §§ 841(a)(1) and 846. Counts Five through Fifty detail a variety of alleged drug, weapons, and related offenses. Count Fifteen alleged that three defendants possessed a Colt Official Police Special, serial number 712129 (exactly the same gun alleged in No. 96 CR 553), on or about October 15 1994 (the same day as alleged in No. 96...