Larson, In re, s. 94-3488

• Decision Date: 29 December 1994
• Docket Number: 94-3538,Nos. 94-3488,s. 94-3488
• Citation: 43 F.3d 410
• Parties: In re Peter LARSON, Petitioner. In re Neal LARSON; Robert Farrar; Black Hills Institute of Geological Research; Terry Wentz; Edwin Allen Cole; Jun Shimizu, Petitioners.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 410

43 F.3d 410

In re Peter LARSON, Petitioner.

In re Neal LARSON; Robert Farrar; Black Hills Institute of

Geological Research; Terry Wentz; Edwin Allen

Cole; Jun Shimizu, Petitioners.

Nos. 94-3488, 94-3538.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 14, 1994.

Decided Dec. 29, 1994.

Patrick Duffy, Rapid City, SD (Mark Marshall, on the brief), for petitioner Peter Larson.

Bruce Ellison, Rapid City, SD (Ronald Banks, Randal Connelly, Terry Pechota and George Grassby, on the brief), for petitioner Neal Larson.

Robert Mandell, David Zuercher, Asst. U.S. Attys., Rapid City, Robert Hofer, Pierre, SD, for Judge Battey.

Before MAGILL, Circuit Judge, JOHN R. GIBSON, Senior Circuit Judge, and BEAM, Circuit Judge.

MAGILL, Circuit Judge.

Peter and Neal Larson, four other individuals associated with the Black Hills Institute of Geological Research (the Institute), and the Institute (collectively referred to as Petitioners) petition this court for a writ of mandamus to the United States District Court for the District of South Dakota. Petitioners seek a writ instructing that court to: (1) vacate its order denying Petitioners' motions for recusal under 28 U.S.C. Sec. 455(a) and (b)(1); ¹ and (2) recuse itself from any further proceedings in the underlying criminal action. We deny the petition.

I. BACKGROUND

This petition for a writ of mandamus arises from an ill-fated commercial fossil-gathering operation. The Institute was organized as a commercial fossil business. The Institute appeared to strike paydirt when it uncovered the bones of a 65-million-year-old Tyrannosaurus Rex. Unfortunately, the discovery of this dinosaur, affectionately referred to as "Sue," created the threat of landing the would-be fossil hunters in jail rather than on easy street. On May 14, 1992, the government seized the fossil bones, which the government alleged were illegally collected. The government obtained a thirty-nine-count indictment, alleging various crimes ranging from currency violations to conspiracy and theft of government property, and subjecting the defendants to potentially draconian sanctions. The criminal action was lodged in the District of South Dakota before the Honorable Richard H. Battey. Judge Battey also presided over a related civil case.

After more than two years and numerous proceedings before Judge Battey (the docket sheets consist of over 350 entries), the criminal case was on the verge of being concluded under a plea agreement. On September 20, 1994, the front page of the Rapid City Journal carried the headline "Fossil case won't go to trial." The accompanying article summarized the history of the case, noting that the government initially "made a standing offer to end the case if one of the institute owners or employees would plead guilty to a single felony count." The article explained that the government had since suffered several setbacks, and had "virtually giv[en] up the case" by negotiating an agreement under which the Institute, but no individual, would plead guilty to a single felony charge.

On September 21, 1994, a status hearing was held before Judge Battey. At the time of the hearing, the plea agreement was not yet finalized, and no plea of guilty had been entered. The source and effect of the Rapid City Journal article were extensively discussed at this hearing. During the course of the hearing, Judge Battey made the following remarks that provide the basis for this petition:

A plea agreement, if reached between the parties, has to pass muster with the Court. From what I saw in the paper, if that's the plea agreement, it's not a plea agreement, it's a capitulation by the government. I am going to look very closely at whether or not in any plea agreement of your client [Peter Larson], principal officers of a closed corporation, can escape by putting the fault over on the corporation. I made a decision on that. But this case has been going on for two years, practically. It's a 39-count indictment and your clients deserve a trial. They have been professing their innocence all along, as is their right. But the system is also a part of these matters and so I will be looking at that plea agreement. What can the Court do in its limited power? Well, if I deny the plea agreement, you will try the case. How you try the case is up to you, but if the government is chagrin[ned] because the Court doesn't accept a plea agreement that the government is involved in and capitulates in the courtroom[--]which I don't believe the government would [do] because again, we, everybody took an oath, including the Court, to do the job which they have been assigned[--]we just go from there. I think that's all I will say about that plea agreement. I don't want to enter into a plea agreement. I am not going to, but I am going to exercise my judgment to examine the plea agreement. It looks to me from what I see in filings that there are relative degrees of fault, even among the conspiracy members. Some may be marginally involved; others may be highly involved. But I will wait. I don't want to affect that plea agreement by what I do about moving this trial, but we are within 40 days of trying a very complicated 39-count indictment. The last thing that lawyers should be doing right now is worrying about a plea agreement. That should have been done a long time ago. And right now you should be in the final phase of preparing this case for trial. All the negotiations for plea agreement do is distract you from the final preparation stage.

Tr. of Hearing, Sept. 21, 1994, at 26-27.

Later the same day, Judge Battey sent a letter to counsel of record, stating that he "consider[ed]" his remarks during the hearing to be "contrary to" Federal Rule of Criminal Procedure 11(e), which provides that the court "shall not participate in any such [plea agreement] discussions." Petitioners later filed motions for recusal which were denied.

II. DISCUSSION

A. Standard for Writ of Mandamus

This case comes to us as a petition for a writ of mandamus. Accordingly, we start by identifying the Petitioners' burden of proof. The law of this circuit is that:

[t]he writ of mandamus is an extraordinary remedy that should be utilized only in those 'exceptional circumstances ... amounting to a judicial usurpation of power.' In re Lane, 801 F.2d 1040, 1042 (8th Cir.1986) (quoting Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 35, 101 S.Ct. 188, 190, 66 L.Ed.2d 193 (1980) (per curiam)). A federal court may issue a writ of mandamus only when the appellant has established a 'clear and indisputable right' to the relief sought, the court has a nondiscretionary duty to honor that right, and appellant has no other adequate remedy. Lane, 801 F.2d at 1042.

Perkins v. General Motors Corp., 965 F.2d 597, 598-99 (8th Cir.), cert.denied, --- U.S. ----, 113 S.Ct. 654, 121 L.Ed.2d 581 (1992). This petition presents a single dispositive issue: Whether Petitioners established a "clear and indisputable right" to recusal, the relief sought in the petition. We hold that they have not. Because of this decision, we do not address whether the court has a nondiscretionary duty to honor that right, or whether Petitioners have no other adequate remedy. We also do not address the issue whether there has been a judicial usurpation of power, although we doubt whether these facts support such a claim.

B. Have Petitioners established a "clear and indisputable

right" to recusal?

Petitioners argue that Judge Battey's remarks during the September 21 hearing: (1) reveal that Judge Battey has an actual bias against them; and (2) would lead a reasonable person to question Judge Battey's impartiality. It is important to note what is and is not at issue. Although Judge Battey learned of the plea agreement from an extrajudicial source (the newspaper article), and this knowledge precipitated his remarks, Petitioners do not claim that Judge Battey's alleged bias derived from the newspaper article. Moreover, Petitioners do not argue that Judge Battey's bias resulted from any extrajudicial source. Rather, Petitioners argue that the alleged bias derives from Judge Battey's prior involvement in the criminal proceedings against Petitioners and in the now-completed civil suit involving the Institute. Petitioners therefore claim that they are entitled to recusal because Judge Battey has developed a bias from a "judicial source" of information. This argument requires us to examine the continued vitality of the extrajudicial source doctrine.

1. Is recusal required because of actual bias?

Although the extrajudicial source doctrine is not of recent vintage, it has proved "more standard in its formulation than clear in its application." Liteky v. United States, --- U.S. ----, ----, 114 S.Ct. 1147, 1152, 127 L.Ed.2d 474 (1994). The standard formulation of the doctrine provides that "[t]he alleged bias and prejudice to be disqualifying ... must stem from an extrajudicial source." Id. at ----, 114 S.Ct. at 1152 (quoting United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 1710, 16 L.Ed.2d 778 (1966)). Although statement of the doctrine is relatively simple, application has proved more complicated because of the different definitions given to "extrajudicial source." Liteky, --- U.S. at ----, 114 S.Ct. at 1152. The lack of clarity of application was partially eliminated by the Supreme Court's recent decision in Liteky, which provides guidance for us in this case. Liteky instructs us that:

opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.

Id. at ----, 114 S.Ct. at 1157. ² To determine whether Petitioners have a right to recusal, we must therefore determine whether Judge Battey's remarks display a deep-seated...