United States v. Sampson, Cr. No. 01–10384–MLW.

• Decision Date: 17 March 2014
• Docket Number: Cr. No. 01–10384–MLW.
• Parties: UNITED STATES of America v. Gary Lee SAMPSON.
• Court: U.S. District Court — District of Massachusetts

12 F.Supp.3d 203

UNITED STATES of America

v.Gary Lee SAMPSON.

Cr. No. 01–10384–MLW.

United States District Court, D. Massachusetts.

Filed March 17, 2014.

George W. Vien, Donnelly, Conroy & Gelhaar, LLP, John A. Wortmann, Jr., Mark T. Quinlivan, Zachary R. Hafer, United States Attorney's Office, Boston, MA, for United States of America.

Miriam Conrad, Elizabeth L. Prevett, J. Martin Richey, Federal Public Defender Office, Boston, MA, Susan Katherine Marcus, Susan K. Marcus, Esq., New York, NY, William E. McDaniels, Jennifer G. Wicht, Thomas P. Windom, Williams & Connolly, LLP, Washington, DC, for Gary Lee Sampson.

MEMORANDUM AND ORDER

WOLF, District Judge.

This Memorandum is based on the part of the transcript of the January 21, 2014 hearing in which the court explained its preliminary view that its recusal is not required under 28 U.S.C. § 455(a) on the basis of its association with Assistant United States Attorney Zachary Hafer. This Memorandum adds headings and citations, clarifies and amplifies some language, and, in footnotes, addresses some subsequent events.

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I. INTRODUCTION

As suggested by the government in its December 20, 2013 submission, I have seriously considered whether I should now recuse myself sua sponte pursuant to 28 U.S.C. § 455(a), which requires a judge's disqualification if his impartiality might reasonably be questioned, unless the parties waive the ground for disqualification under 28 U.S.C. § 455(e). Based on the facts, which I will describe in detail, and the applicable legal standards, I now believe that my recusal is not permissible or, if permissible, appropriate. However, this view has necessarily been developed without the benefit of briefing by the parties. Therefore, I am directing the parties to order the transcript of this part of the proceeding on an expedited basis and, after considering my analysis, file, by January 28, 2014, either a motion for recusal or a statement that the party does not request my disqualification.

More specifically, in response to the invitation in the November 29, 2013 Order to raise issues to be addressed at the January 21, 2014 hearing, the government stated that the court should address whether its recusal is necessary and appropriate because Assistant United States Attorney Zachary Hafer, who did not begin participating in this case until 2010, is now lead counsel for the government, and because of the First Circuit's reasoning in In re Bulger, 710 F.3d 42 (1st Cir.2013).

When Mr. Hafer first appeared, as the fourth prosecutor in this case, in 2010, I promptly disclosed the facts regarding our relationship in an August 23, 2010 written Memorandum and Order. The government and Sampson each twice agreed that: (1) I was not actually biased and, therefore, there was no issue of my possible recusal under 28 U.S.C. § 455(b)(1) ; (2) a reasonable person could not question my impartiality and, therefore, there was no basis for my recusal under § 455(a) ; and (3) in any event, the government and Sampson waived any objection to my participation under § 455(a) pursuant to § 455(e). See Gov't's Resp. to Court's Aug. 23, 2010 Order; Sampson's Resp. to This Court's Order of Aug. 23, 2010/ Aug. 30, 2010 Tr. at 4.

The government, and implicitly the defendant, reiterated at the January 21, 2014 hearing that there is no contention that I am actually biased or prejudiced, which would, if true, require recusal under § 455(b)(1). Nevertheless, the government states that Mr. Hafer's new status and In re Bulger are “significant” developments that necessitate the court revisiting its 2010 decision concerning recusal.

For the reasons I will describe, In re Bulger does not establish a new, substantially expanded legal standard for recusal under § 455(a). Without the benefit of a motion to recuse and briefing by the parties, I do not find that recusal sua sponte is either permissible or appropriate. I will, as I said, provide the parties an opportunity to consider my reasoning and to move for my recusal if either perceives a proper basis for doing so. If a motion is filed, I will carefully consider and decide it.

II. LEGAL STANDARD

It is important to start with the applicable standard and to explain why the In re Bulger decision does not alter the jurisprudence of the First Circuit concerning § 455(a), which is consistent with the jurisprudence throughout the United States.

In In re Bulger, the First Circuit began its analysis of the standard that controls recusal decisions by quoting the applicable statute. It wrote: “The governing statute, 28 U.S.C. § 455(a), provides that a judge shall disqualify himself from any proceeding in which his impartiality might reasonably be questioned.” 710 F.3d at 45. The phrase “might reasonably be questioned” recognizes that reasonable people might differ in their views as to whether a judge's impartiality should be questioned in a particular set of circumstances.

In addition to using the statutory language “might reasonably be questioned,” the First Circuit in In re Bulger also, essentially interchangeably, employed the standard of whether a reasonable person “would” question the judge's impartiality. See id. at 43, 46.

In In re Bulger, quoting its earlier decision in In re Allied–Signal, the First Circuit emphasized that:

The disqualification decision must reflect not only the need to secure public confidence in 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.

In re Bulger, 710 F.3d at 47 (quoting

In re Allied–Signal Inc., 891 F.2d 967, 970 (1st Cir.1989)¹ ). “Hence,” the First Circuit wrote, “a district judge asked to recuse is not to use the standard of Caesar's wife, the standard of mere suspicion.” Id. (quoting In re Allied–Signal, 891 F.2d at 970 ).

I discussed In re Allied–Signal in two decisions in United States v. Salemme, another case involving Bulger. See United States v. Salemme, 164 F.Supp.2d 49 (D.Mass.1998) (“Salemme I ”); United States v. Salemme, 164 F.Supp.2d 86 (D.Mass.1998) (“Salemme II ”). In Salemme, the government attempted to prompt my recusal based, in part, on grounds it had previously waived. To the extent that they involve issues concerning a prior waiver, Salemme and the instant case are analogous.

In Salemme I, relying substantially on In re Allied–Signal, I wrote:

[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 (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 fair-minded 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.” [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, 727 (1987) (footnotes omitted).² 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.

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[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).³

Salemme I, 164 F.Supp.2d at 51–52 (alterations in original).

This framework is essentially reiterated in In re Bulger, 710 F.3d at 45, 47. Therefore, it has been recently reaffirmed.

In In re Allied–Signal, the First Circuit also made two points of particular significance in the instant case, both of which were also discussed in Salemme I. First, the court noted that “the more common the potentially biasing circumstances and the less easily avoidable it seems, the less that circumstance will appear to a knowledgeable observer as a sign of partiality.” In re Allied–Signal, 891 F.2d at 971, discussed in Salemme I, 164 F.Supp.2d at 82. As the Seventh Circuit has observed, “[i]n today's...