U.S., In re, 81-1517

• Decision Date: 07 December 1981
• Docket Number: No. 81-1517,81-1517
• Citation: 666 F.2d 690
• Parties: In re UNITED STATES of America, Petitioner.
• Court: U.S. Court of Appeals — First Circuit

Page 690

666 F.2d 690

In re UNITED STATES of America, Petitioner.

No. 81-1517.

United States Court of Appeals,

First Circuit.

Argued Oct. 7, 1981.

Decided Dec. 7, 1981.

Douglas P. Woodlock, Asst. U.S. Atty., Boston, Mass., with whom Edward F. Harrington, U.S. Atty., Boston, Mass., was on brief, for petitioner.

Gael Mahony, with whom Robert G. Dreher, and Hill & Barlow, Boston, Mass., were on brief, for respondent.

John S. Leonard and The McLaughlin Brothers, Boston, Mass., on brief, for James A. Kelly, Jr.

Before COFFIN, Chief Judge, BOWNES, Circuit Judge, BREYER, Circuit Judge.

COFFIN, Chief Judge.

This petition for mandamus is brought by a United States Attorney and seeks the enforced recusal of a United States district judge from further proceedings in a federal criminal prosecution.

During the spring of 1981, former Massachusetts state Senator James A. Kelly, Jr., was tried in Boston for extortion in violation of federal law. 18 U.S.C. § 1951. The government charged that he had wielded his power as a state senator and Chairman of the Senate Ways and Means Committee to exact $34,000 from an architectural firm, promising to influence the award of architectural contracts. United States District Judge Joseph L. Tauro, assigned by random draw, conducted the 25-day trial which ended on April 29 in the declaration of a mistrial when the jury reached an eleven-to-one deadlock after approximately thirteen hours of deliberation.

On June 16, in the course of proceedings preparatory to a retrial, the United States Attorney responsible for the prosecution filed a motion for disqualification of the judge under 28 U.S.C. § 455(a). The judge, on July 9, issued a lengthy memorandum discussing the sufficiency of the allegations justifying recusal and denied the motion. He further suggested that this court in the exercise of its supervisory powers give prompt consideration to the propriety of his action. We declined to take this approach. Subsequently the prosecutor brought this petition.

The Facts

The essence of the prosecution's motion for disqualification and this petition is that the combination of (1) the judge's past and present close professional and personal relationship with former Massachusetts Governor John Volpe, (2) defendant Kelly's reported helpfulness to the governor during a 1966 legislative investigation chaired by Kelly, and (3) the judge's own reported involvement in that proceeding as the governor's legal counsel would compel a reasonable observer to doubt that the judge would be impartial in any future proceeding or retrial connected with this prosecution. The prosecutor makes a subsidiary argument: because of the appearance of bias arising from these factors, several rulings during the trial lend themselves to the interpretation that they were the result of the bias.

We discuss the relevant facts in several time frames-what the prosecutor was aware of before the case went to trial, what was reported by newspaper columnists soon after the mistrial was declared, and what was revealed by an FBI investigation spurred by one of the newspaper accounts. Before the case went to trial, the U.S. Attorney was aware that the judge, before ascending to the bench, had been chief legal counsel for Governor Volpe in 1966 when Senator Kelly, a Democrat, had chaired a legislative investigation of the Republican Volpe administration; that the investigation focussed on the way in which the administration awarded architectural contracts; that Kelly had supposedly handled the matter in a manner favorable to the administration; and that there were vague rumors to the effect that the judge and Kelly had known each other during that period.

Early in January, 1981, the U.S. Attorney approached the judge about the possibility that he should disqualify himself from another case. In the course of discussing this matter, the judge brought up the fact that a reporter had just told him he should not sit on the Kelly case. He went on to say that the only role he had played in the administration's defense during the 1966 investigation was to consult with attorney Walter McLaughlin who represented Governor Volpe's brother, also under investigation. At this point, the U.S. Attorney felt that he had no specific, reliable information about the roles of the judge and Kelly in the investigation or the degree of the judge's relationship with Volpe.

Subsequently, during the trial, the prosecutor received queries "from a variety of sources, including members of the bar, the judiciary, the press and politicians" about the propriety of the judge presiding over this particular trial. The issue came into public view when two articles appeared in the Boston papers. On May 20, three weeks after the declaration of mistrial, Boston Herald American columnist, Peter Lucas, wrote that "Tauro knew Kelly. State House observers believed that Kelly went in the tank to Volpe on that investigation." While publicly questioning the propriety of the judge continuing to preside over the case, the columnist did not supply the prosecutor with any new information.

Shortly thereafter another columnist, David Wilson, writing for the Boston Globe, brought the issue to a head. In a June 1 column he noted that in 1966 the judge had been in the inner circle of Governor Volpe's Republican campaign forces, that the judge owed his appointment as a judge to Volpe, that Volpe's campaign had been threatened by the investigation, and that Kelly was the chairman of the investigatory committee. "(W)hen the Volpe organization communicated its wishes to Chairman Kelly, the communicator, so far as anyone in Kelly's hearing room could tell, was Atty. Joseph L. Tauro. Frequent Tauro-Kelly conferences had Democratic members seething." Wilson stated that Kelly had wanted to withhold publication of the committee's report until after the election. The impression conveyed was that the judge appeared to have reason for gratitude for favors rendered to him as the result of his personal communications with Kelly.

The Wilson article caused the prosecutor to instigate an FBI investigation to probe the facts of the reported relationships. He felt that inaction was no longer appropriate: specific allegations-in particular the labelling of the judge as "communicator"-created a previously unknown cause for concern. The FBI investigation, which involved interviews with some fifteen persons who had been involved in or close to the 1966 hearings, turned up no evidence whatsoever that the judge had ever communicated with Kelly concerning the investigation or had ever had any conferences with him. Although the investigation provided no support for the triggering allegation that the judge was "the communicator", it did reveal in detail the roles of various individuals in the 1966 hearings.

One focus of the investigation was the nature of the judge's involvement in the 1966 hearings. He did not directly participate, there being other attorneys representing the specific targets of the contract award inquiry, but he did play a substantial role by preparing witnesses, planning strategy, consulting closely with Walter McLaughlin, the attorney representing the governor's brother, attending hearings as an observer, and reporting to the governor. There was no evidence that he ever conferred with any of the committee members.

A second focus of the FBI investigation was the issue of bias in favor of the Volpe administration on the part of Senator Kelly. The principal source of information tending to show such bias was a conversation between FBI agents and one Beryl W. Cohen in 1966 a senator and member of Kelly's committee and also a Democratic candidate for the office of lieutenant governor. Cohen recalled that Kelly had initially tried to control the hearings, not allowing others to ask questions and not asking probing questions himself, but soon lost this control when others gained the right to ask questions. After the hearings were over, Cohen, feeling that Kelly was not going to submit a written report, found someone to prepare a report. Cohen felt there had to be some arrangement between Kelly and the Volpe administration but never learned what it was. In addition to Cohen's views, the investigation revealed that Kelly had characterized the investigation as "political", adding that "everything is political", had leaked a copy of the report to the governor's office, and, though a Democrat, had supported the governor's sales tax proposal.

Factors in the report tending to contradict or minimize Kelly's bias include Cohen's posture as a candidate for top office in an election year who had an incentive to exploit to the maximum any legislative inquiry into an opposing administration; the fact that the committee had neither staff nor funding for help in preparing a report; and the fact that in any event Kelly not only signed the report but presented it at a press conference. The report did contain damaging material but had little impact, Volpe winning reelection overwhelmingly. One conclusion emerges clearly. Whether or not Kelly was a biased chairman, by conviction or prearrangement, he does not seem to have had much influence on the outcome of his committee's work.

A third area of information in the FBI report was the close personal and professional relationship between the judge and Governor Volpe. Professionally, the judge, when serving as legal counsel, was also part of Volpe's "kitchen cabinet" and, indeed, was the only person apart from the chief secretary to have direct access to the governor. The ties of personal friendship were close and longstanding. Volpe's wife was the attending nurse at the judge's birth. The judge's father previously had served as Volpe's legal counsel until Volpe appointed him to the Massachusetts Superior Court, and, reportedly, the judge owed his nomination for the position of district court judge to Volpe's efforts. The judge's personal regard for Volpe...