In re Moore

• Decision Date: 09 April 2020
• Docket Number: No. 19-2076,19-2076
• Citation: 955 F.3d 384
• Parties: IN RE: John Henry MOORE, Petitioner.
• Court: U.S. Court of Appeals — Fourth Circuit

955 F.3d 384

IN RE: John Henry MOORE, Petitioner.

No. 19-2076

United States Court of Appeals, Fourth Circuit.

Argued: January 30, 2020

Decided: April 9, 2020

ARGUED: Melissa Susanne Baldwin, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Petitioner. Anthony Joseph Enright, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Respondent. ON BRIEF: Anthony Martinez, Federal Public Defender, John Parke Davis, First Assistant Federal Public Defender, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Petitioner. R. Andrew Murray, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Respondent.

Before KING, HARRIS, and RICHARDSON, Circuit Judges.

Petition denied by published opinion. Judge Harris wrote the opinion, in which Judge King and Judge Richardson joined.

PAMELA HARRIS, Circuit Judge:

Judge Robert J. Conrad was to preside over the criminal trial of John Henry Moore when the parties learned that Judge Conrad had prosecuted Moore successfully for bank robbery in 1989. If Moore’s current trial ends in conviction, then the facts surrounding his 1989 bank robbery conviction could become relevant at sentencing. Moore therefore sought Judge Conrad’s immediate, pre-trial recusal under the judicial disqualification statute, see 28 U.S.C. § 455, arguing that Judge Conrad had personal knowledge of facts that might be disputed at sentencing and that his impartiality reasonably could be questioned. Judge Conrad denied the motion.

Moore then filed the petition for a writ of mandamus we consider today, asking that this court direct Judge Conrad to recuse from presiding over his criminal trial. We share Moore’s concern that there could come a point at which recusal might be required, and certainly would be appropriate. But we conclude that the extraordinary relief of mandamus is not warranted now, primarily because Moore has failed to show a clear and indisputable right to immediate recusal based on grounds that involve a future sentencing and may never materialize. We thus deny Moore’s petition.

I.

Moore was indicted by a grand jury on two counts of Hobbs Act robbery in violation of 18 U.S.C. § 1951, one count of brandishing a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c), and one count of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g). For present purposes, what is most important about these charges is that if Moore is convicted, he could face a mandatory life sentence under the federal "three-strikes" statute. See 18 U.S.C. § 3559(c)(1).

Under the three-strikes law, a district court must impose a life sentence if a defendant is convicted of a "serious violent felony" and has two or more prior convictions for serious violent felonies. 18 U.S.C. § 3559(c)(1) ; see United States v. Thompson , 554 F.3d 450, 451–52 (4th Cir. 2009) (describing three-strikes law). It is not disputed that at least one of the current charges against Moore could qualify as a "serious violent felony." And the government has filed a "three-strikes notice" asserting that Moore indeed is subject to a mandatory life sentence if convicted, citing three predicate "serious violent felonies" in the form of three federal bank robbery convictions, including one from 1989. J.A. 18.

Whether a prior conviction is a "serious violent felony" – a strike for three-strikes purposes – is decided by the district court at sentencing. Thompson , 554 F.3d at 452. In this case, the district court also may determine whether the statute’s so-called "safety valve," 18 U.S.C. § 3559(c)(3)(A), would allow Moore to avoid an otherwise mandatory life sentence. Under the safety-valve provision, a robbery – like Moore’s prior bank robberies – does not qualify as a predicate "serious violent felony" if the defendant establishes, by clear and convincing evidence, that it did not involve the use or threatened use of a firearm or other dangerous weapon and did not result in death or serious bodily injury to any person. See id. If Moore is convicted at trial, in other words, he may avoid a life sentence if he can show that the facts surrounding at least two of his prior bank robberies bring those convictions within the safety-valve provision.

Two weeks before Moore’s jury trial was scheduled to begin before Judge Robert J. Conrad, the government informed the court and the defense that one of those prior bank robberies – the one for which Moore was convicted in 1989 – apparently was prosecuted by Judge Conrad, then an Assistant United States Attorney ("AUSA"). Neither party then had access to the full case file for Moore’s 1989 conviction, and that record was not filed before Judge Conrad. But the docket sheet showed that "Robert J. Conrad, Jr." was listed as the sole AUSA on the 1989 case and that he appeared on behalf of the government in multiple hearings – including those at which Moore entered his guilty plea and was sentenced – and there is no dispute that Judge Conrad indeed represented the United States in its 1989 bank robbery case against Moore.

In response, Moore moved for Judge Conrad’s immediate recusal, arguing that the judicial disqualification statute, 28 U.S.C. § 455, prohibited Judge Conrad from presiding over his trial. As Moore explained, if he is convicted of all the current offenses, then under the safety-valve provision of the three-strikes law, the facts surrounding his 1989 bank robbery could become both relevant and contested, requiring Judge Conrad – who prosecuted that bank robbery – to adjudicate whether the robbery involved the use or threatened use of a firearm and whether it resulted in death or serious bodily injury. See 18 U.S.C. § 3559(c)(3)(A).

According to Moore, recusal therefore was required under 28 U.S.C. § 455(b)(1), which covers cases in which a judge has "personal knowledge of disputed evidentiary facts concerning the proceeding." Moore also argued for disqualification under § 455(a) – a judge "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned" – on the ground that Judge Conrad’s impartiality in reviewing the nature of the 1989 bank robbery that he prosecuted would be open to reasonable question.¹ "[T]o the extent a serious question arises [at sentencing] regarding whether there was evidence of a dangerous weapon or threat in the 1989 case," Moore contended, Judge Conrad’s personal impression of the case, acquired as a prosecutor, inevitably would compete with the arguments of the parties. J.A. 23.² Although the 1989 bank robbery at the heart of Moore’s motion would become relevant, if at all, only at sentencing, Moore sought Judge Conrad’s immediate recusal from any further proceedings in his criminal trial. The government took no position on Moore’s motion.

In an oral ruling from the bench, Judge Conrad denied the motion for recusal. Based on the docket sheet, Judge Conrad explained, he had no memory of the 1989 bank robbery, which he had prosecuted "[s]ome 30 years ago." J.A. 31. And in any event, Judge Conrad reasoned, Moore’s motion did not "affect in any way the trial aspects of this case. It comes into play if there is a conviction and that prior conviction becomes relevant, if at all, with respect to sentencing ." J.A. 32 (emphasis added).

Moore then petitioned this court for a writ of mandamus directing Judge Conrad to recuse from his criminal trial. We granted a stay of Moore’s criminal proceedings pending a decision on the petition, directed the government to file an answer, and invited the district court also to address the petition. The government opposed Moore’s petition, and the district court reiterated its view that recusal was not warranted. We also directed the parties to file a supplemental joint appendix containing the full record of Moore’s 1989 prosecution. See S.J.A. 1–45.

II.

Moore’s central argument is this: If he is convicted, then at sentencing, the facts surrounding his 1989 bank robbery might become relevant and the source of dispute under the safety-valve provision of the three-strikes law. Were that to happen, 28 U.S.C. § 455, the judicial disqualification statute, would require the recusal of Judge Conrad, who prosecuted the 1989 bank robbery. And – the final and critical step – based on that potential ground for disqualification at sentencing, Judge Conrad is required to recuse himself now, pre-trial, as a "prophylactic" measure; a partial recusal at sentencing, should it become necessary, is not enough to satisfy § 455.

The government takes issue only with the last step of Moore’s reasoning. It does not argue that Judge Conrad could preside over Moore’s sentencing if events transpire as Moore hypothesizes, so that Judge Conrad would be required to make findings about a bank robbery he personally prosecuted. But recusal now , the government argues, is not required: § 455 does not demand recusal pre-trial whenever grounds for disqualification might emerge at sentencing, and there will be time enough to consider recusal if and when the details of Moore’s 1989 bank robbery actually become relevant to his sentencing. Moreover, the government contends, the speculative basis for Moore’s claim makes the grant of extraordinary mandamus relief especially inappropriate.

We agree with the government that mandamus relief is not warranted in this posture. This is not a direct appeal, in which we would review a judge’s recusal decision under the ordinary abuse-of-discretion standard. See United States v. Stone , 866 F.3d 219, 229 (4th Cir. 2017). Instead, Moore is seeking a writ of mandamus, "a drastic remedy that must be reserved for extraordinary situations." In re Murphy-Brown, LLC , 907 F.3d 788, 795 (4th Cir. 2018) (internal quotation marks omitted). So to prevail here, Moore must show not only that 28 U.S.C. § 455 requires a judge’s immediate recusal from a criminal trial where...