U.S. v. Salemme

• Decision Date: 13 February 1998
• Docket Number: No. CR. 94-10287.,No. CR. 97-10009.,CR. 94-10287.,CR. 97-10009.
• Citation: 164 F.Supp.2d 49
• Parties: UNITED STATES of America v. Francis P. SALEMME, et al. United States of America v. John Martorano.
• Court: U.S. District Court — District of Massachusetts

164 F.Supp.2d 49

UNITED STATES of America v. Francis P. SALEMME, et al.

United States of America v. John Martorano.

No. CR. 94-10287.

No. CR. 97-10009.

United States District Court, D. Massachusetts.

February 13, 1998.

COPYRIGHT MATERIAL OMITTED

Randolph Gioia, Boston, MA, Anthony M. Cardinale, Cardinale & DiMauro, LLC, Boston, MA, for Robert P. DeLuca.

MaryEllen Kelleher, Law Office of Richard Egbert, Boston, MA, John Mitchell, Law Office of John Mitchell, New York City, Anthony M. Cardinale, Cardinale & DiMauro, LLC, for Francis P. Salemme.

Richard M. Egbert, Boston, MA, Kenneth J. Fishman, Fishman, Ankner & Horstman, LLP, Boston, MA, Kimberly Homan, Sheketoff & Homan, Boston, MA, for Stephen J. Flemmi.

Sean E. Curran, Manchester, NH, for George Kaufman.

MEMORANDUM AND ORDER

WOLF, District Judge.

I. Summary

Federal law requires that a presiding judge not have a personal bias or prejudice concerning any party. 28 U.S.C. § 455(b)(1). It also requires that a judge decide matters based solely on the evidence presented in judicial proceedings. This means, among other things, that a judge may not preside if he: (a) "participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy," § 455(b)(4); (b) has "personal knowledge of disputed evidentiary facts concerning the proceeding," § 455(b)(1); or (c) knows he or she is "likely to be a material witness in the proceeding," § 455(b)(5)(iv). If any of these circumstances exist, the judge must disqualify himself even if the parties agree that it would be desirable for him to continue to preside. United States v. Chantal, 902 F.2d 1018, 1023 (1st Cir. 1990).

In addition, a judge must "disqualify himself in any proceeding in which his impartiality might reasonably be questioned." § 455(a). "`Disqualification [under § 455(a)] is appropriate only if the facts provide what an objective, knowledgeable member of the public would find to be a reasonable basis for doubting the judge's impartiality.'" In re Allied-Signal, Inc., 891 F.2d 967, 970 (1st Cir.1989), cert. denied sub nom. ACW Airwall, Inc. v. United States District Court for District of Puerto Rico, 495 U.S. 957, 110 S.Ct. 2561, 109 L.Ed.2d 744 (1990) (quoting In re United States, 666 F.2d 690, 695 (1st Cir. 1981)) (emphasis in original).

[Section] 455(a) is triggered by an attitude or state of mind so resistant to fair and dispassionate inquiry as to cause a party, the public, or a reviewing court to have a reasonable grounds to question the neutral and objective character of the judge's rulings or findings ... a high threshold is required to satisfy this standard. Thus, under § 455(a), a judge should be disqualified only if it appears that he or she harbors an aversion, hostility, or disposition of a kind that a fairminded person could not set aside when judging the dispute.

Liteky v. United States, 510 U.S. 540, 557-58, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994) (Kennedy, J., concurring).

"The task of applying the objective standard to the facts grants a judge a degree of discretion in disqualification decisions under section 455(a) that is not present in section 455(b) decisions." S. Hoekema, Questioning the Impartiality of Judges: Disqualifying Federal District Court Judges Under 28 U.S.C. § 455(a), 60 Temp. L.Q. 697, 727 (1987) (footnotes omitted). Accordingly, the Court of Appeals for the First Circuit allows the district judge "a range of discretion" in deciding whether a reasonable, objective person would question his impartiality and reviews that decision only for abuse of discretion. In re Allied-Signal, 891 F.2d at 970.

There are competing considerations which at times must be weighed by a presiding judge in deciding whether to recuse himself under § 455(a). As the Court of Appeals for the First Circuit has stated:

[W]hen considering disqualification, the district court is not to use the standard of "Caesar's wife," the standard of mere suspicion (citation omitted). That is because the disqualification decision must reflect not only the need to secure public confidence through proceedings that appear impartial, but also the need to prevent parties from too easily obtaining the disqualification of a judge, thereby potentially manipulating the system for strategic reasons, perhaps to obtain a judge more to their liking.

* * * * * *

[Therefore,] the judge must ... tread cautiously, recognizing, on the one hand, the great importance to the judicial institution of avoiding any appearance of partiality, while simultaneously remaining aware of the potential injustices that may arise out of unwarranted disqualification.

In re Allied-Signal, 891 F.2d at 970 (emphasis in original).

If the only basis for recusal is an appearance of partiality under § 455(a), the parties may, after "full disclosure on the record of the basis for disqualification," waive this ground for recusal. § 455(e). The government and the defendants provided such waivers with regard to the information I described in detail on December 4, 1997, including my work in the United States Attorney's Office from 1981 to 1985, and my resulting association with a number of the witnesses in the pending hearings on defendants' motions to dismiss and suppress.

As described below, the evolution of events in this case caused me on January 21, 1998 to raise the question whether I should now recuse myself under § 455(a) or (b) because of a December 21, 1984 memorandum concerning a conversation I had with then Assistant Attorney General Stephen Trott (Exhibit A hereto), which I discovered the night before. I have since found an October 15, 1984 memorandum relating to the prosecution of Vincent Piro (Exhibit B hereto), which is also relevant to this inquiry.

Beginning on January 21, 1998, I have at several conferences consulted the parties concerning the questions raised relating to my possible recusal.¹ That discussion has been helpful, but not decisive. The defendants have stated that they believe that my disqualification is not necessary or appropriate under either § 455(a) or (b), and that they will again waive any possible ground for recusal under § 455(a).

The government has not expressed a definitive view on the pending recusal issues. It has described a number of possible concerns. The government has also encouraged me to consider the issues in the first instance and to require the government to declare whether it requests my recusal only if it is not clear to me whether my disqualification is appropriate. This memorandum is written in response to that request.

In summary, the recusal questions, particularly the issue of whether I should be disqualified under § 455(a), must be analyzed in the context of the long history of this case, and with an understanding of the issues to be litigated and of my prior employment by the Department of Justice. Section II of this memorandum describes what I perceive to be the relevant facts.

Section III describes what I understand, without the benefit of briefing by the parties, to be the applicable legal standards and my present, still preliminary, views on how they apply in this case. As described in detail, I do not believe that I have any personal bias or prejudice against any party. Thus, my disqualification is not required under that prong of § 455(b)(1). See § III. A.

In contrast to my visceral reaction, expressed to the parties on January 21, 1998, I am not now inclined to believe that the December 21, 1984 memorandum requires my recusal under § 455(b). See § III. B. More specifically, that memorandum indicates that, when he spoke to me, the Assistant Attorney General had already decided to authorize the application for the 1984-85 electronic surveillance now subject to defendants' motion to suppress. He did not solicit or receive advice on its merits from me. Rather, he was calling to complain about the Assistant United States Attorney who prepared the application and the quality of his draftsmanship. Thus, it does not now appear to me that I have personal knowledge of a disputed evidentiary fact concerning the 1984-85 electronic surveillance. Nor has any party stated that I am likely to be called to testify with regard to my conversation with the Assistant Attorney General or the memorandum concerning it.

Similarly, at this time it appears to me that the October 15, 1984 memorandum regarding the Piro prosecution does not indicate that I have personal knowledge of a disputed evidentiary fact in this case. See § III. C. I now realize that I dealt with Federal Bureau of Investigation ("FBI") Special Agent John Morris when I was the Deputy United States Attorney, from 1981 to 1985, and discussed with colleagues the suspicion that he had said something to former FBI Special Agent Dennis Condon that may have compromised the Piro investigation. I believe, however, that this information does not impair my ability to assess, if necessary, the credibility of any testimony Messrs Morris or Condon may provide in this case. Moreover, I do not recall any suspicion of defendant James "Whitey" Bulger concerning the Piro matter. Nor, according to the FBI's interview report, does John Pappalardo, who was the lead prosecutor in the Piro case.

Finally, with regard to § 455(b), the FBI 209 report of statements made by defendant Stephen Flemmi on August 8, 1983, (Exhibit C hereto) does not cause me to be biased or prejudiced against Mr. Flemmi. Nor, as I now perceive it, does the 209 give me personal knowledge of any disputed evidentiary fact. See § III. D.

In addition, at this time, it appears to me that with regard to § 455(a), the waivers provided by the government and defendants in December 1997 were valid and binding with regard to the matters then disclosed, and that the appropriate focus now is on the recent disclosures. See § III. E. In any event, even if a broader view is taken, it now seems to me that...