In Re: Bulger v. , 710 F.3d 42 ( 2013 )

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.
SOUTER, Associate Justice. James Bulger, the defendant
in the federal criminal prosecution underlying this petition,1 asks
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
The as-yet-untested indictment returned by a
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).
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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
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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.
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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
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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).2 Because our resolution of the
§ 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)
2
The defendant raises no grounds for recusal based on the
Code of Conduct for United States Judges, and we consider no
arguments other than those presented in the petition.
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(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.
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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.
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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
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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
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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.
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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,
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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
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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
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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
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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.
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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.3 The other mandamus conditions being satisfied, the
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.
3
On March 4, 2013, Judge Stearns responded to the
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.
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