In re Bulger

• Citation: 710 F.3d 42
• Decision Date: 14 March 2013
• Docket Number: No. 12–2488.,12–2488.
• Parties: In re James J. BULGER, Petitioner.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

710 F.3d 42

In re James J. BULGER, Petitioner.

No. 12–2488.

United States Court of Appeals,First Circuit.

March 14, 2013.

J.W. Carney, Jr. for petitioner.

Mark T. Quinlivan, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, and Zachary R. Hafer, Assistant United States Attorney, were on brief for respondent.

Before LYNCH, Chief Judge, SOUTER,^* Associate Justice, and SELYA, Circuit Judge.

SOUTER, Associate Justice.

James Bulger, the defendant in the federal criminal prosecution underlying this petition,¹ asks us to issue a writ of mandamus to require reversal of the district court's order denying a motion for recusal of the judge currently assigned to preside in the case. With great respect for the trial judge, we nonetheless grant the petition, because it is clear that a reasonable person would question the capacity for impartiality of any judicial officer with the judge's particular background in the federal prosecutorial apparatus in Boston during the period covered by the accusations.

I

The as-yet-untested indictment returned by a Massachusetts federal grand jury in 2001 describes the defendant as a leader of a criminal organization in Boston from 1972 to 1999. It charges him with a number of federal offenses, including violations of the Racketeer Influenced and Corrupt Organizations (RICO) Act, and it alleges that he committed 19 murders ancillary to the RICO conspiracy. The defendant's associate in the crimes charged, Stephen Flemmi, was likewise indicted and has since been convicted and sentenced on a guilty plea. See United States v. Flemmi, 225 F.3d 78, 81–83 (1st Cir.2000); United States v. Flemmi, 245 F.3d 24, 25–27 (1st Cir.2001); United States v. Connolly, 341 F.3d 16, 21 (1st Cir.2003). The defendant remained a fugitive until his arrest in 2011, with these proceedings ensuing.

During the 1970s and 1980s, organized crime in Boston was investigated by the Federal Bureau of Investigation and prosecuted federally either by the United States Attorney's Office or by a separate team of prosecutors, called the New England Organized Crime Strike Force, which operated independently of control by the United States Attorney, but not free from communication with his office. The defendant now alleges that over the course of that earlier period these law enforcement groups came to know of whatever evidence the Government relies upon to charge the crimes listed in the indictment. He argues that owing to his level of notoriety, the earlier prosecutors could not possibly have been ignorant of the involvement on his part that their successors now seek to show. He says that they refrained from taking action because they were aware of rumors he was working with the Government as an informant. Further, he contends that their failure to prosecute him is evidence that the Justice Department had granted him immunity for all crimes now alleged, which is at least one of his responses to the indictment.

The defendant's case was randomly assigned to the Honorable Richard G. Stearns of the United States District Court for the District of Massachusetts. Earlier in his career, Judge Stearns held a variety of managerial and supervisory appointments within the U.S. Attorney's Office in the District, and during a significant period of the time covered by the indictment he was at various times Chief of the General Crimes Unit, Chief of the Criminal Division, First Assistant United States Attorney, and Senior Litigation Counsel.

In moving that Judge Stearns recuse himself, the defendant cited 28 U.S.C. § 455(a), (b)(1), (b)(3) and (b)(5)(iv). He asserted that a reasonable person would conclude that the judge could not be impartial, particularly in treating with the immunity defense, after the judge had held those positions of high responsibility in the U.S. Attorney's Office during part of the period in question, and that recusal was required under § 455(a). The defendant also contended that Judge Stearns likely would have had personal relationships at the time with numerous witnesses and would himself be a material witness, necessitating recusal under § 455(b).

Judge Stearns denied the motion. He found that his impartiality could not reasonably be called into question because at the time relevant here the U.S. Attorney's Office was separate from the Strike Force. He stated that he had no doubt that he could remain impartial and that no reasonable person could doubt it. Judge Stearns rejected the defendant's § 455(b)(5)(iv) claim because he had no personal knowledge of anything material to the charged conduct.

The defendant then renewed his motion in part, asserting again that recusal was warranted under § 455(a) and (b)(5)(iv). He alluded to Judge Stearns's order denying the first motion, in contending that “a failure to participate in any investigation targeting [Bulger] ... is circumstantial evidence that corroborates [his] assertion of his immunity agreement.” Pet. App. 137. The defendant also represented that he intended to call as a witness Robert S. Mueller, III, the current Director of the Federal Bureau of Investigation and formerly a Chief of the Criminal Division of the local U.S. Attorney's Office, who is said to be a close friend of Judge Stearns. The defendant reiterated his argument that a reasonable person would question Judge Stearns's impartiality.

Judge Stearns denied the renewed motion, concluding that it raised no new matters of law or fact (beyond the identification of the late Jeremiah O'Sullivan as the person defendant claims to have given him the promise of plenary immunity). Judge Stearns said that he remained unpersuaded that the defendant would call him as a witness, as he knew nothing of any relevance to the case.

The defendant now petitions this court for interlocutory relief by a writ of mandamus directing Judge Stearns to vacate his order denying the renewed motion for recusal and to remove himself from the case. He raises here the same two arguments for recusal presented in the renewed motion: that a reasonable person would question Judge Stearns's impartiality, see28 U.S.C. § 455(a); and that Mr. Mueller and Judge Stearns are likely to be material witnesses, see id. § 455(b)(5)(iv).² Because our resolution of the § 455(a) contention is dispositive, we do not address the § 455(b)(5)(iv) claim.

II

Resolving this case calls for synthesizing two legal standards. The governing statute, 28 U.S.C. § 455(a), provides that a judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” See Susan B. Hoekema, Questioning the Impartiality of Judges: Disqualifying Federal District Court Judges Under 28 U.S.C. § 455(a), 60 Temp. L.Q. 697, 708 (1987) (“[S]ection 455(a) suggests that it requires disqualification for the appearance of bias.”); accord In Re Chantal, 902 F.2d 1018, 1023 (1st Cir.1990). When after trial we review a judge's decision declining to recuse, we enquire only whether the district court abused its discretion. See United States v. Pulido, 566 F.3d 52, 62 (1st Cir.2009). We ask “not whether [we] would have decided as did the trial court, but whether that decision cannot be defended as a rational conclusion supported by [a] reasonable reading of the record.” United States v. Snyder, 235 F.3d 42, 46 (1st Cir.2000) (second alteration in original) (quoting In re United States, 158 F.3d 26, 30 (1st Cir.1998)). Thus, an abuse of discretion will be found only if a reasonable reading of the record fails to support the conclusion that the judge's impartiality was not subject to question.

The second standard is implicated because this issue arises not on direct appeal after trial but on petition for a writ of mandamus, which places an even more exacting burden on those who request it. Before the writ will issue, “the petitioner must satisfy ‘the burden of showing that [his] right to issuance of the writ is clear and indisputable.’ ” Cheney v. U.S. Dist. Court for Dist. of Columbia, 542 U.S. 367, 381, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004) (quoting Kerr v. United States Dist. Court for Northern Dist. of Cal., 426 U.S. 394, 403, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976)). A petitioner for mandamus relief must also demonstrate that he has no other adequate source of relief; that is, he must show “irreparable harm.” In re Vázquez–Botet, 464 F.3d 54, 57 (1st Cir.2006); cf. In re Martinez–Catala, 129 F.3d 213, 217–18 (1st Cir.1997) (“Some opinions suggest that a clear entitlement to recusal may itself warrant immediate [mandamus] relief, absent an equitable bar, because public confidence is enhanced where a clearly disqualified judge is removed swiftly.”). And finally, a petitioner must demonstrate that, on balance, the equities favor issuance of the writ. See Cheney, 542 U.S. at 381, 124 S.Ct. 2576;In re Vásquez–Botet, 129 F.3d at 57.

Applying the mandamus rule to the substantive recusal standard thus requires a doubly deferential review: relief for the defendant is only warranted if it is “clear and indisputable” that no reasonable reading of the record supports a refusal to recuse. In other words, the issue here is this: is it clear that a reasonable person might question Judge Stearns's ability to remain impartial in hearing the case?

This standard is difficult to meet, and rightly so. Absent such deferential review, any defendant with a spurious accusation might seek to trigger immediate mandamus review of recusal proceedings that would burden the Government and delay his trial. Since the law consequently entrusts these matters to the sound discretion of the district court, we review them only for the rare error that might arise from willful malfeasance or, as in this case, from a good-faith failure to recognize how a reasonable member of the public would perceive one's relation to the case.

III

In order to explain the conclusion we reach, we emphasize the limits on what we consider. The sole claim we pass upon...