throbber
Case: 12-2488 Document: 00116504364 Page: 1 Date Filed: 03/14/2013 Entry ID: 5718560
`
`United States Court of Appeals
`For the First Circuit
`
`No. 12-2488
`
`IN RE JAMES J. BULGER,
`Petitioner.
`
`PETITION FOR A WRIT OF MANDAMUS
`TO THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
`[Hon. Richard G. Stearns, U.S. District Judge]
`
`Before
`Lynch, Chief Judge,
`Souter, Associate Justice,
`*
`and Selya, Circuit Judge.
`
`J. W. Carney, Jr. for petitioner.
`Mark T. Quinlivan, Assistant United States Attorney, with whom
`Carmen M. Ortiz, United States Attorney, and Zachary R. Hafer,
`Assistant United States Attorney, were on brief for respondent.
`
`March 14, 2013
`
`Hon. David H. Souter, Associate Justice (Ret.) of the Supreme
`*
`Court of the United States, sitting by designation.
`
`

`
`Case: 12-2488 Document: 00116504364 Page: 2 Date Filed: 03/14/2013 Entry ID: 5718560
`
`SOUTER, Associate Justice. James Bulger, the defendant
`in the federal criminal prosecution underlying this petition, asks
`1
`us to issue a writ of mandamus to require reversal of the district
`court’s order denying a motion for recusal of the judge currently
`assigned to preside in the case. With great respect for the trial
`judge, we nonetheless grant the petition, because it is clear that
`a reasonable person would question the capacity for impartiality of
`any judicial officer with the judge’s particular background in the
`federal prosecutorial apparatus in Boston during the period covered
`by the accusations.
`
`I
`a
`by
`returned
`indictment
`as-yet-untested
`The
`Massachusetts federal grand jury in 2001 describes the defendant as
`a leader of a criminal organization in Boston from 1972 to 1999.
`It charges him with a number of federal offenses, including
`violations of the Racketeer Influenced and Corrupt Organizations
`(RICO) Act, and it alleges that he committed 19 murders ancillary
`to the RICO conspiracy. The defendant’s associate in the crimes
`charged, Stephen Flemmi, was likewise indicted and has since been
`convicted and sentenced on a guilty plea. See United States v.
`Flemmi, 225 F.3d 78, 81-83 (1st Cir. 2000); United States v.
`Flemmi, 245 F.3d 24, 25-27 (1st Cir. 2001); United States v.
`Connolly, 341 F.3d 16, 21 (1st Cir. 2003). The defendant remained
`
`1
`
` See United States v. Bulger, No. 99-10371-RGS (D. Mass).
`-2-
`
`

`
`Case: 12-2488 Document: 00116504364 Page: 3 Date Filed: 03/14/2013 Entry ID: 5718560
`
`a fugitive until his arrest in 2011, with these proceedings
`ensuing.
`
`During the 1970s and 1980s, organized crime in Boston was
`investigated by the Federal Bureau of Investigation and prosecuted
`federally either by the United States Attorney’s Office or by a
`separate team of prosecutors, called the New England Organized
`Crime Strike Force, which operated independently of control by the
`United States Attorney, but not free from communication with his
`office. The defendant now alleges that over the course of that
`earlier period these law enforcement groups came to know of
`whatever evidence the Government relies upon to charge the crimes
`listed in the indictment. He argues that owing to his level of
`notoriety, the earlier prosecutors could not possibly have been
`ignorant of the involvement on his part that their successors now
`seek to show. He says that they refrained from taking action
`because they were aware of rumors he was working with the
`Government as an informant. Further, he contends that their
`failure to prosecute him is evidence that the Justice Department
`had granted him immunity for all crimes now alleged, which is at
`least one of his responses to the indictment.
`The defendant’s case was randomly assigned to the
`Honorable Richard G. Stearns of the United States District Court
`for the District of Massachusetts. Earlier in his career, Judge
`Stearns held a variety of managerial and supervisory appointments
`
`-3-
`
`

`
`Case: 12-2488 Document: 00116504364 Page: 4 Date Filed: 03/14/2013 Entry ID: 5718560
`
`within the U.S. Attorney’s Office in the District, and during a
`significant period of the time covered by the indictment he was at
`various times Chief of the General Crimes Unit, Chief of the
`Criminal Division, First Assistant United States Attorney, and
`Senior Litigation Counsel.
`In moving that Judge Stearns recuse himself, the
`defendant cited 28 U.S.C. § 455(a), (b)(1), (b)(3) and (b)(5)(iv).
`He asserted that a reasonable person would conclude that the judge
`could not be impartial, particularly in treating with the immunity
`defense, after the judge had held those positions of high
`responsibility in the U.S. Attorney’s Office during part of the
`period in question, and that recusal was required under § 455(a).
`The defendant also contended that Judge Stearns likely would have
`had personal relationships at the time with numerous witnesses and
`would himself be a material witness, necessitating recusal under
`§ 455(b).
`
`Judge Stearns denied the motion. He found that his
`impartiality could not reasonably be called into question because
`at the time relevant here the U.S. Attorney’s Office was separate
`from the Strike Force. He stated that he had no doubt that he
`could remain impartial and that no reasonable person could doubt
`it. Judge Stearns rejected the defendant’s § 455(b)(5)(iv) claim
`because he had no personal knowledge of anything material to the
`charged conduct.
`
`-4-
`
`

`
`Case: 12-2488 Document: 00116504364 Page: 5 Date Filed: 03/14/2013 Entry ID: 5718560
`
`The defendant then renewed his motion in part, asserting
`again that recusal was warranted under § 455(a) and (b)(5)(iv). He
`alluded to Judge Stearns’s order denying the first motion, in
`contending that “a failure to participate in any investigation
`targeting [Bulger] . . . is circumstantial evidence that
`corroborates [his] assertion of his immunity agreement.” Pet. App.
`137. The defendant also represented that he intended to call as a
`witness Robert S. Mueller, III, the current Director of the Federal
`Bureau of Investigation and formerly a Chief of the Criminal
`Division of the local U.S. Attorney’s Office, who is said to be a
`close friend of Judge Stearns. The defendant reiterated his
`argument that a reasonable person would question Judge Stearns’s
`impartiality.
`Judge Stearns denied the renewed motion, concluding that
`it raised no new matters of law or fact (beyond the identification
`of the late Jeremiah O’Sullivan as the person defendant claims to
`have given him the promise of plenary immunity). Judge Stearns
`said that he remained unpersuaded that the defendant would call him
`as a witness, as he knew nothing of any relevance to the case.
`The defendant now petitions this court for interlocutory
`relief by a writ of mandamus directing Judge Stearns to vacate his
`order denying the renewed motion for recusal and to remove himself
`from the case. He raises here the same two arguments for recusal
`presented in the renewed motion: that a reasonable person would
`
`-5-
`
`

`
`Case: 12-2488 Document: 00116504364 Page: 6 Date Filed: 03/14/2013 Entry ID: 5718560
`
`question Judge Stearns’s impartiality, see 28 U.S.C. § 455(a); and
`that Mr. Mueller and Judge Stearns are likely to be material
`witnesses, see id. § 455(b)(5)(iv). Because our resolution of the
`2
`§ 455(a) contention is dispositive, we do not address the
`§ 455(b)(5)(iv) claim.
`
`II
`Resolving this case calls for synthesizing two legal
`standards. The governing statute, 28 U.S.C. § 455(a), provides
`that a judge “shall disqualify himself in any proceeding in which
`his impartiality might reasonably be questioned.” See 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, 708 (1987) (“[S]ection 455(a) suggests that it requires
`disqualification for the appearance of bias.”); accord In Re
`Chantal, 902 F.2d 1018, 1023 (1st Cir. 1990). When after trial we
`review a judge’s decision declining to recuse, we enquire only
`whether the district court abused its discretion. See United
`States v. Pulido, 566 F.3d 52, 62 (1st Cir. 2009). We ask “not
`whether [we] would have decided as did the trial court, but whether
`that decision cannot be defended as a rational conclusion supported
`by [a] reasonable reading of the record.” United States v. Snyder,
`235 F.3d 42, 46 (1st Cir. 2000) (second alteration in original)
`
` The defendant raises no grounds for recusal based on the
`2
`Code of Conduct for United States Judges, and we consider no
`arguments other than those presented in the petition.
`-6-
`
`

`
`Case: 12-2488 Document: 00116504364 Page: 7 Date Filed: 03/14/2013 Entry ID: 5718560
`
`(quoting In re United States, 158 F.3d 26, 30 (1st Cir. 1998)).
`Thus, an abuse of discretion will be found only if a reasonable
`reading of the record fails to support the conclusion that the
`judge’s impartiality was not subject to question.
`The second standard is implicated because this issue
`arises not on direct appeal after trial but on petition for a writ
`of mandamus, which places an even more exacting burden on those who
`request it. Before the writ will issue, “the petitioner must
`satisfy ‘the burden of showing that [his] right to issuance of the
`writ is clear and indisputable.’” Cheney v. U.S. Dist. Court for
`Dist. of Columbia, 542 U.S. 367, 381 (2004) (quoting Kerr v. United
`States Dist. Court for Northern Dist. of Cal., 426 U.S. 394, 403
`(1976)). A petitioner for mandamus relief must also demonstrate
`that he has no other adequate source of relief; that is, he must
`show “irreparable harm.” In re Vázquez-Botet, 464 F.3d 54, 57 (1st
`Cir. 2006); cf. In re Martinez-Catala, 129 F.3d 213, 217-18 (1st
`Cir. 1997) (“Some opinions suggest that a clear entitlement to
`recusal may itself warrant immediate [mandamus] relief, absent an
`equitable bar, because public confidence is enhanced where a
`clearly disqualified judge is removed swiftly.”). And finally, a
`petitioner must demonstrate that, on balance, the equities favor
`issuance of the writ. See Cheney, 542 U.S. at 381; In re Vásquez-
`Botet, 129 F.3d at 57.
`
`-7-
`
`

`
`Case: 12-2488 Document: 00116504364 Page: 8 Date Filed: 03/14/2013 Entry ID: 5718560
`
`Applying the mandamus rule to the substantive recusal
`standard thus requires a doubly deferential review: relief for the
`defendant is only warranted if it is “clear and indisputable” that
`no reasonable reading of the record supports a refusal to recuse.
`In other words, the issue here is this: is it clear that a
`reasonable person might question Judge Stearns’s ability to remain
`impartial in hearing the case?
`This standard is difficult to meet, and rightly so.
`Absent such deferential review, any defendant with a spurious
`accusation might seek to trigger immediate mandamus review of
`recusal proceedings that would burden the Government and delay his
`trial. Since the law consequently entrusts these matters to the
`sound discretion of the district court, we review them only for the
`rare error that might arise from willful malfeasance or, as in this
`case, from a good-faith failure to recognize how a reasonable
`member of the public would perceive one’s relation to the case.
`III
`In order to explain the conclusion we reach, we emphasize
`the limits on what we consider. The sole claim we pass upon here
`is the invocation of § 455(a) on the ground that Judge Stearns’s
`impartiality might reasonably be questioned, it being understood
`that a reasonable person may question impartiality without the
`presence of any evidence that a judge is subjectively biased.
`
`-8-
`
`

`
`Case: 12-2488 Document: 00116504364 Page: 9 Date Filed: 03/14/2013 Entry ID: 5718560
`
`Indeed, defendant has made no claim that Judge Stearns has in fact
`demonstrated any bias in his handling of the case.
`Accordingly, our analysis of the defensive claim and
`relevant facts does not question either Judge Stearns’s ability to
`remain actually impartial or his sincerity in concluding that he is
`not biased against the defendant, nor do we draw any conclusion
`that he is biased. The point under § 455(a) is not his actual
`state of mind at a particular time, but the existence of facts that
`would prompt a reasonable question in the mind of a well-informed
`person about the judge’s capacity for impartiality in the course of
`the trial and its preliminaries. This focus likewise excludes any
`consideration of the merits of defendant’s assertion of immunity on
`the basis he claims, or of his entitlement to seek evidentiary
`support for that claim in testimony from Judge Stearns or Mr.
`Mueller. The issue under § 455(a) goes only to who should make the
`decisions.
`
`Subject to these limits, what we do decide here comprises
`both facial and underlying, supportive elements. We understand the
`defendant’s facial argument and its implications to run like this.
`The actions charged in the indictment are alleged to have occurred
`during a period when the defendant claims he was covered by a
`promise of immunity from any criminal prosecution, including for
`murder. He says the promise was made by the late Jeremiah
`O'Sullivan, then a member of the Strike Force but at other times an
`
`-9-
`
`

`
`Case: 12-2488 Document: 00116504364 Page: 10 Date Filed: 03/14/2013 Entry ID: 5718560
`
`Assistant United States Attorney and acting United States Attorney.
`This promise was supposedly given in return for the defendant’s
`agreement to supply information about the criminal activities of
`others. The immunity agreement must have been known and honored by
`the Government’s prosecutorial apparatus in Boston, the argument
`goes, throughout the better part of the period covered by the
`indictment. A reasonable member of the public could easily think
`that anyone who held a position of high responsibility in the
`Office of the United States Attorney during this period would only
`be human in reacting to such a claim in either a defensive or an
`adversarial way. Both responses would be natural, given the
`institutional relationship between the former official and his
`former office during his time there.
`Still, the defendant’s claim and its implications cannot
`themselves alone suffice to require the judge’s recusal, lest the
`law confer a veto power on the assignment of his trial judge to any
`heckling defendant who merely levels a charge that implicates a
`judge’s defensive or vicariously defensive reaction. The recusal
`standard must be more demanding 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.” In re
`
`-10-
`
`

`
`Case: 12-2488 Document: 00116504364 Page: 11 Date Filed: 03/14/2013 Entry ID: 5718560
`
`Allied-Signal Inc., 891 F.2d 967, 970 (1st Cir. 1989); see In re
`United States, 158 F.3d at 35 (“A party cannot cast sinister
`aspersions, fail to provide a factual basis for those aspersions,
`and then claim that the judge must disqualify [him]self because the
`aspersions, ex proprio vigore, create a cloud on [his]
`impartiality.”). Hence, a district judge asked to recuse “is not
`to use the standard of ‘Caesar’s wife,’ the standard of mere
`suspicion.” In re Allied-Signal Inc., 891 F.2d at 970. The
`necessary independent support for a challenge to impartiality with
`the potential to produce bias, see Brooks v. N.H. Supreme Court, 80
`F.3d 633, 640 (1st Cir. 1996), is supplied in this case by official
`reports and conclusions predating these proceedings, and already
`largely in the public domain, that disclosed disquieting links
`between the Government and the criminal element during the years in
`question, and that may fairly stimulate a critical attitude on the
`part of an independent observer.
`For purposes of the reasonable question standard, some
`facts may be treated as undisputed owing to an extensive history of
`litigation and official enquiry into the relationship between the
`defendant and the FBI during a substantial portion of the span
`covered by the indictment. See United States v. Flemmi, 402 F.3d
`79 (1st Cir. 2005); Donahue v. United States, 634 F.3d 615 (1st
`Cir. 2011); Flemmi, 225 F.3d 78; Connolly, 341 F.3d 16; McIntyre
`v. United States, 367 F.3d 38 (1st Cir. 2004); United States v.
`
`-11-
`
`

`
`Case: 12-2488 Document: 00116504364 Page: 12 Date Filed: 03/14/2013 Entry ID: 5718560
`
`Connolly, 504 F.3d 206 (1st Cir. 2007); United States v. Salemme,
`164 F. Supp. 2d 49 (D. Mass. 1998). Prior judicial findings
`indicate that at relevant times the defendant and his associate
`Flemmi controlled the Boston crime organization known as the Winter
`Hill Gang, and they agreed with FBI agents to act as confidential
`informants about the city’s chapter of La Cosa Nostra, which it was
`a Justice Department priority to destroy. Flemmi, 225 F.3d at
`81-83; McIntyre, 367 F.3d at 45; Salemme, 164 F. Supp. 2d at 40,
`60. The period covered by the special relationship between the
`defendant and the FBI overlapped both the dates of the activity
`alleged in the defendant’s indictment and the years that Judge
`Stearns held supervisory positions in the federal prosecutor’s
`office.
`
`It is widely known that the FBI’s principal contact
`person (“handler”) with the defendant and Flemmi was later
`convicted of taking bribes from them, see Connolly, 341 F.3d at 20-
`21, and evidence in prior litigation showed that the FBI provided
`the Winter Hill Gang with names of rival snitches, who were
`subsequently murdered, see McIntyre, 367 F.3d at 41. Although the
`FBI agents were the defendant’s immediate partners in the informant
`relationship, some knowledge of it and participation in it went
`deeper into the Justice Department, for it indisputably extended to
`O’Sullivan, from whom the defendant says he received the promise of
`immunity. See Flemmi, 225 F.3d at 90. At the time claimed,
`
`-12-
`
`

`
`Case: 12-2488 Document: 00116504364 Page: 13 Date Filed: 03/14/2013 Entry ID: 5718560
`
`O’Sullivan was a member of the New England Organized Crime Strike
`Force, for which he was at one period the chief prosecutor, though
`at other times (as mentioned before) he was an Assistant United
`States Attorney and even acting United States Attorney. He
`appeared as a witness in the congressional enquiry that followed
`the public disclosure of the informant agreement, cf. McIntyre, 367
`F.3d at 45, where he was questioned about an investigation into a
`scheme implicating Winter Hill Gang members in fixing horse races
`at New England tracks, see 1 H.R. Rep. No. 108-414, Everything
`Secret Degenerates: The FBI’s Use of Murderers as Informants, at 58
`(2004). When he was asked why the Government had sought no
`indictments of the defendant and Flemmi along with others that were
`handed up, cf. Flemmi, 225 F.3d at 81-82, O’Sullivan spoke of their
`minimal participation, only to be confronted with a memo he had
`written on the matter at the time, which made it clear that the
`gang-leader informants were in no way minimal participants. See 1
`H.R. Rep. 108-414, at 58. He acknowledged that what he wrote must
`have been what he understood at the time, but the committee’s
`report branded his initial testimony as “false,” not merely
`mistaken, id., and responsibility for favoritism to the defendant
`was thus extended to a Strike Force member who was subsequently
`placed in charge of the United States Attorney’s Office. On these
`facts, concerns about impartiality arise from the very structure of
`
`-13-
`
`

`
`Case: 12-2488 Document: 00116504364 Page: 14 Date Filed: 03/14/2013 Entry ID: 5718560
`
`the prosecutorial forces, which included some communication between
`the Strike Force and the United States Attorney's Office.
`The Strike Force, to be sure, was distinct from the
`Office of the United States Attorney where Judge Stearns was a
`supervisor, and was a competitor organization within the Justice
`Department, reporting directly to the Attorney General. But there
`is reason to believe that there was no impermeable barrier
`insulating information known to one office from being shared with
`the other. In 1970, the Attorney General instructed the two
`enforcement arms to keep each other informed of their activities,
`In re Persico, 522 F.2d 41, 68 (2d Cir. 1975), the two offices in
`Boston “interact[ed]” from time to time, and O’Sullivan was known
`to be in touch with the United States Attorney, Salemme, 164 F.
`Supp. 2d at 55. FBI reports, a source common to both offices,
`indicate that on at least some occasions the United States
`Attorney’s Office as well as the Strike Force was apprised of
`investigations of the defendant’s activities, and those
`investigations must have been aimed at the sort of activity charged
`here: the indictment itself lists a string of serious criminal
`acts, including 19 murders, on the part of the defendant or his
`organization, all of a sort subject to federal scrutiny during the
`periods of the judge’s supervisory positions.
`These disclosures of record do not, of course, add up to
`showing that any federal officers promised the immunity the
`
`-14-
`
`

`
`Case: 12-2488 Document: 00116504364 Page: 15 Date Filed: 03/14/2013 Entry ID: 5718560
`
`defendant claims (let alone that anyone had authority to do so).
`But they do tend to indicate that the Government and the defendant
`were not at arm’s length during all of the period in question, and
`that any evidence about the terms on which they dealt with each
`other could reflect on the United States Attorney’s Office as it
`was constituted in those days.
`The record likewise includes enough to justify a
`reasonable belief that the defense’s claim probably portends an
`enquiry into just those dealings. Given the institutional ties
`described here, the reasonable person might well question whether
`a judge who bore supervisory responsibility for prosecutorial
`activities during some of the time at issue could suppress his
`inevitable feelings and remain impartial when asked to determine
`how far to delve into the relationship between defendant and
`Government, and to preside over whatever enquiry may ultimately be
`conducted. On this record, that question could not reasonably be
`avoided.
`
`We think it would be of no consequence to the reasonable
`person that the judge in the supervisory position had not been the
`United States Attorney, who carried ultimate responsibility for the
`office. See United States v. Arnpriester, 37 F.3d 466, 467 (9th
`Cir. 1994) (finding a U.S. Attorney responsible for the activities
`of his office). Indeed, a supervisor, such as Chief of Criminal
`Division, is more immediately accountable for the actions of his
`
`-15-
`
`

`
`Case: 12-2488 Document: 00116504364 Page: 16 Date Filed: 03/14/2013 Entry ID: 5718560
`
`own section than the United States Attorney is, with a
`correspondingly immediate difficulty in remaining impartial toward
`a defendant who seeks to throw more fuel on the embers left from
`the prior disclosures related to this case. Cf. United States v.
`Scholl, 166 F.3d 964, 977 (9th Cir. 1999) (rejecting a recusal
`claim against a supervisor with no authority over the section of
`the office conducting the relevant investigation).
`That of course is not quite the end of the matter, for as
`we mentioned earlier a mandamus petitioner must show irreparable
`harm if immediate relief is denied, and a balance of equities in
`his favor. As for the former, we can leave aside any question of
`harm personal to the defendant and concentrate on damage to the
`judicial system. It is enough to say that we need not consider a
`rule that a clear showing under the substantive recusal standard
`always suffices to demonstrate irreparable harm, see In Re
`Martinez-Catala, 129 F.3d at 217-218, for here the prior
`disclosures make it imperative to act promptly to preclude any
`reasonable question whether untoward Government action in the past
`may affect the fairness of the judicial branch in the present. Nor
`does balancing the equities present any close question. The prior
`disclosures take this case out of the category of the heckler’s
`veto, and the defendant has represented that he will not seek any
`trial delay if a new judge is substituted.
`
`-16-
`
`

`
`Case: 12-2488 Document: 00116504364 Page: 17 Date Filed: 03/14/2013 Entry ID: 5718560
`
`In sum, despite our respect for Judge Stearns and our
`belief in his sincerity, we are nonetheless bound to conclude that
`it is clear that a reasonable person might question the judge’s
`ability to preserve impartiality through the course of this
`prosecution and the likely rulings made necessary by the immunity
`claim. The other mandamus conditions being satisfied, the
`3
`petition is granted, and the case shall be reassigned to a judge
`whose curriculum vitae does not implicate the same level of
`institutional responsibility described here.
`
`It is so ordered.
`
` On March 4, 2013, Judge Stearns responded to the
`3
`Government’s motion under Federal Rule of Criminal Procedure 12 by
`rejecting the defendant’s immunity claim as a matter of law insofar
`as it included immunity for criminal acts that might have been
`committed after the date of any promise. This ruling neither moots
`the recusal issue nor affects our reasoning, for defendant’s claim
`of possibly retrospective immunity remains subject to litigation.
`Nor does our own ruling require that Judge Stearns’s March 4 order
`(or any other, save the one under review) be vacated. The
`defendant is free to respond to that order as he sees fit, but
`nothing we decide here necessarily requires reploughing the ground,
`given the absence of any allegation that Judge Stearns is actually
`biased.
`
`-17-

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