United States v. Gottesfeld ( 2021 )

United States Court of Appeals
For the First Circuit
Nos. 18-1669, 19-1042, 19-1043, 19-1107
UNITED STATES OF AMERICA,
Appellee,
v.
MARTIN GOTTESFELD,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Howard, Chief Judge,
Lynch and Kayatta, Circuit Judges.
Michael Pabian, with whom Brandon Sample was on brief, for
appellant.
Javier A. Sinha, Attorney, Criminal Division, Appellate
Section, with whom Andrew E. Lelling, United States Attorney,
District of Massachusetts, Donald C. Lockhart, Assistant United
States Attorney, Seth B. Kosto, Assistant United States Attorney,
Brian C. Rabbitt, Acting Assistant Attorney General, and Robert A.
Zink, Acting Deputy Assistant Attorney General, were on brief, for
appellee.
November 5, 2021
KAYATTA, Circuit Judge. In March 2014, Martin
Gottesfeld and others committed a "Distributed Denial of Service"
cyberattack against Boston Children's Hospital and Wayside Youth
and Family Support Network, causing both to lose their internet
capabilities for three to four weeks. Gottesfeld targeted Boston
Children's and Wayside because of their role in caring for Justina
Pelletier, a child whose medical condition and treatment were at
the center of a custody dispute that received national attention.
Gottesfeld publicly admitted responsibility for the attacks. He
was subsequently charged with intentionally causing damage to a
protected computer, 18 U.S.C. § 1030(a)(5)(A), and conspiring to
do the same, id. § 371. After an eight-day trial, Gottesfeld was
convicted on both counts and sentenced to 121 months'
imprisonment, to be followed by three years of supervised release.
I.
A.
We begin with Gottesfeld's argument that his indictment
should be dismissed under the Speedy Trial Act, 18 U.S.C. §§ 3161–
3174. In pertinent part, the Speedy Trial Act provides that "[a]ny
information or indictment charging an individual with the
commission of an offense shall be filed within thirty days from
the date [of his arrest]." Id. § 3161(b). An indictment filed
after the thirty-day period has expired must be dismissed. Id.
§ 3162(a)(1). But certain periods of delay are not counted toward
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the thirty-day limit. See id. § 3161(h). Two such exclusions are
relevant here.
First, the Act excludes delay resulting from so-called
"ends-of-justice continuances." Zedner v. United States, 547 U.S.
489, 498–99 (2006) (describing what is now 18 U.S.C.
§ 3161(h)(7)(A)). These are "continuance[s] granted by any
judge . . . on the basis of his findings that the ends of justice
served by taking such action outweigh the best interests of the
public and the defendant in a speedy trial," as long as the reasons
supporting such findings are "set forth[] in the record of the
case, either orally or in writing." 18 U.S.C. § 3161(h)(7)(A).
Second, the Act also does not count time "resulting from any
pretrial motion, from the filing of the motion through the
conclusion of the hearing on, or other prompt disposition of, such
motion." Id. § 3161(h)(1)(D).
In this case, Gottesfeld was arrested on February 17,
2016 and indicted 246 days later, on October 19, 2016. It is
undisputed that twenty-six of these days were not excludable under
the Speedy Trial Act. The remainder of the delay was initially
excluded by the district court as resulting from six ends-of-
justice continuances granted by the district court without any
contemporaneous objection by Gottesfeld. When Gottesfeld
subsequently moved to dismiss the indictment under the Speedy Trial
Act, the district court clarified that the same periods of delay
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were also excludable in part as resulting from the district court's
consideration of each of the six predicate motions to continue.
See id. § 3161(h)(1)(D).
On appeal, Gottesfeld challenges the exclusion of the
time during which six motions to continue were pending and the
time covered by three of the ends-of-justice continuances. We
address each in turn.
1.
Gottesfeld focuses first on the time during which the
six motions to continue were pending before the district court.
Gottesfeld argues that the time during which these motions were
pending was not properly excludable because the motions were not
"pretrial motions" within the meaning of section 3161(h)(1)(D).
The parties dispute whether Gottesfeld has preserved this
argument. While a defendant cannot prospectively waive the
application of the Speedy Trial Act, Zedner, 547 U.S. at 503, a
defendant can waive or forfeit a claim of error in the application
of the Act by failing to timely raise the claim in the district
court, United States v. Valdivia, 680 F.3d 33, 41 (1st Cir. 2012).
And a defendant's request for a continuance or his acquiescence in
a request can be considered in weighing the propriety of the
continuance. United States v. Balsam, 203 F.3d 72, 79–80 (1st
Cir. 2000).
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In this instance, we need not decide what standard of
review applies because we see no error, plain or otherwise, in the
district court's decision to exclude time under
section 3161(h)(1)(D). Indeed, we have previously treated motions
to continue as "pretrial motions" under that statutory provision.
See United States v. Richardson, 421 F.3d 17, 27–31 (1st Cir. 2005)
(excluding time between the filing of the government's motion to
continue and the district court's effective denial of that motion).
Gottesfeld insists that this case is distinguishable,
pointing to a provision of the district court's Plan for the Prompt
Disposition of Criminal Cases that requires all pre-indictment
motions to continue to be filed in what is known as the
"miscellaneous business docket." Because any such motion is not
filed directly in the docket for a defendant's criminal case,
Gottesfeld argues, it cannot be considered a "pretrial motion"
within the meaning of section 3161(h)(1)(D). We reject this
formalistic argument. We have historically adopted a functional
rather than formalistic approach to determining what constitutes
a "pretrial motion." See Richardson, 421 F.3d at 28–29 ("'We have
read the term "pretrial motion" broadly to encompass all manner of
motions' for purposes of tolling the speedy trial clock, 'ranging
from informal requests for laboratory reports to "implied"
requests for a new trial date.'" (quoting United States v. Barnes,
159 F.3d 4, 11 (1st Cir. 1998))); see, e.g., United States v.
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Santiago-Becerril, 130 F.3d 11, 17 (1st Cir. 1997) (construing
counsel's notification of availability as an implied motion for a
new trial date and therefore treating it as a "pretrial motion"
for speedy-trial purposes). And we do not see how continuances
granted by way of the miscellaneous business docket would "affect[]
the course of trial" any differently than they would if granted on
a criminal docket. Barnes, 159 F.3d at 11.1
2.
Gottesfeld separately advances three arguments
challenging the exclusion of sixty-two days resulting from three
of the six ends-of-justice continuances. He contends that:
(1) the judge who granted the continuances did not make "findings
that the ends of justice served by taking such action outweigh[ed]
the best interest of the public and the defendant in a speedy
trial," as required by section 3161(h)(7)(A); (2) the court's
reasons for making such findings were never "set[] forth[] in the
record of the case," as required by the same provision; and (3) the
continuances were granted on an impermissible basis.
The first two of these arguments largely hinge on our
construction of the law, and were raised in the district court, so
1 We need not address Gottesfeld's suggestion that the
miscellaneous business docket is unfair because it only allows for
"one-sided" government participation. The fact that Gottesfeld
assented to every motion to continue filed below belies any notion
that he was unable to participate in or was otherwise prejudiced
by the procedures for adjudicating those motions.
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we will consider them de novo. See United States v. Irizarry-
Colón, 848 F.3d 61, 65 (1st Cir. 2017). Gottesfeld's third
argument, however, appears for the first time on appeal. Although
we have held that "exclusions of time not specifically challenged
in the district court are waived on appeal," United States v.
Laureano-Pérez, 797 F.3d 45, 57 (1st Cir. 2015), we have never
definitively decided the applicable standard of review where the
defendant challenges the same exclusions under a new theory.
Without adequate briefing by the parties as to the standard of
review, we assume favorably to Gottesfeld that plain-error review
applies to the specific arguments he failed to raise below. See
Valdivia, 680 F.3d at 41–42 (noting that "there [was] a strong
basis for finding [an] argument waived" where the defendant did
not present it to the district court in his motion to dismiss under
the Speedy Trial Act, but assuming that plain error review applied
in any event).
a.
Delay resulting from a continuance is excluded only if
the judge before granting the continuance finds (even if only in
his or her mind) that the ends of justice served by the continuance
outweigh the best interests of the defendant and the public in
speed. Zedner, 547 U.S. at 506. Additionally, specific facts
supporting that determination need be apparent from the order
itself or the record. Id. at 495, 505–07. On the other hand, "it
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is not necessary for the court to articulate the basic facts"
underlying its decision to grant an ends-of-justice continuance
"when they are obvious and set forth in" the motion to continue.
United States v. Pakala, 568 F.3d 47, 60 (1st Cir. 2009) (quoting
United States v. Rush, 738 F.2d 497, 507 (1st Cir. 1984)).
Here, the relevant motions asserted that the ends of
justice supported the continuances under section 3161(h)(7)(A)
because the parties were awaiting a detention decision by the
magistrate judge and could not "conclude their discussions of a
possible plea agreement and information" without it. By granting
each motion, the judge presiding over the miscellaneous business
docket "necessarily adopted" these grounds, Pakala, 568 F.3d at
60, which supports the conclusion that she was "persuad[ed] . . .
that the factual predicate for a statutorily authorized exclusion
of delay could be established," id. (quoting Zedner, 547 U.S. at
505). No more was required at the time the challenged continuances
were granted.2
b.
Turning to Gottesfeld's second procedural argument
challenging the excludability of delays resulting from the
2 Gottesfeld argues that the court could not have adopted
the contents of the relevant motions to continue because stalled
plea negotiations could not justify an exclusion of time. We
consider this argument later, when addressing the substance of the
district court's ends-of-justice determinations.
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continuances, we are satisfied that the requisite findings were
adequately "set[] forth[] in the record of the case" as required
by 18 U.S.C. § 3161(h)(7)(A). In denying Gottesfeld's motion to
dismiss the indictment under the Speedy Trial Act, the trial judge
explained that Gottesfeld, through counsel, sought the continuance
because he was "seriously considering" a plea agreement that had
been drafted. The court further stated that it found the
continuance to be in Gottesfeld's interest. These statements
qualify as a statement of reasons set forth "in the record of the
case" under section 3161(h)(7)(A). See Valdivia, 680 F.3d at 39("Such findings must be entered into the record by the time a
district court rules on a defendant's motion to dismiss under the
[Speedy Trial Act]."); Rush, 738 F.2d at 507 ("Both purposes [of
the findings requirement] are served if the text of the order
[granting the continuance], taken together with more detailed
subsequent statements, adequately explains the factual basis for
the continuance under the relevant criteria.").
Gottesfeld nevertheless argues that the trial judge's
elaboration of reasons supporting the ends-of-justice continuances
cannot satisfy section 3161(h)(7)(A) because a different judge
actually granted the continuances on the miscellaneous business
docket. However, the statute does not require that the judge who
grants the continuance must be the same judge who sets forth in
the record the reasons for the ultimate decision to exclude time.
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Indeed, the statute suggests the opposite by using different words
to allocate responsibility for these distinct requirements. While
it requires the "judge" who grants an ends-of-justice continuance
to do so only "on the basis of" the requisite findings, it permits
the "reasons" supporting such findings to be "set[] forth[] in the
record of the case" by the "court." 18 U.S.C. § 3161(h)(7)(A)
(emphases added). Given the plain language of the statute -- and
absent any reason to believe that following it would contravene
the intent of the Speedy Trial Act in this case in which the
motions themselves made obvious the reasons for granting them --
we conclude that the trial judge's order denying Gottesfeld's
motion to dismiss sufficiently set forth the reasons supporting
the challenged ends-of-justice determinations.3
c.
Gottesfeld's third speedy trial argument, that the
district court granted the challenged continuances for improper
reasons, fares no better. As we have already explained, we review
this argument under the plain error standard.
The district court excluded the time resulting from the
challenged continuances under section 3161(h)(7)(A) because it
agreed with Gottesfeld that serious plea negotiations warranted
3 Having so concluded, we need not address Gottesfeld's
separate argument that the judge who granted the challenged
continuances on the miscellaneous business docket failed to
adequately set forth such findings.
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the continuance. "[W]e have expressly left open the issue whether
periods of plea negotiations can properly be excluded," United
States v. Souza, 749 F.3d 74, 80 (1st Cir. 2014), and at least two
circuit courts have indicated that they can be so excluded under
the ends-of-justice provision, see United States v. White, 920
F.3d 1109, 1116 (6th Cir. 2019); United States v. Fields, 39 F.3d
439, 445 (3d Cir. 1994). Thus, the district court did not commit
clear or obvious error in finding that the parties' plea
negotiations justified an ends-of-justice continuance. Hence,
there was no plain error. Valdivia, 680 F.3d at 42; see also
United States v. Gonzalez, 949 F.3d 30, 39 (1st Cir. 2020) (finding
no plain error where there was no binding authority on point).
Even accepting the notion that plea negotiations can
support an ends-of-justice determination, Gottesfeld argues that
the challenged continuances could not have been granted on that
basis because the parties' plea discussions were "on hold" and
"stalled" rather than "active" and "ongoing" during the relevant
periods. However, he cites no authority that would support
distinguishing between "active" and "stalled" phases of a
negotiation that the parties still view as open. And such a
distinction is not obvious. The utility of plea discussions
necessarily depends on the information available to the parties at
the time. As such, temporary pauses in genuinely open negotiations
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might well be expected while the parties wait to receive
information that might affect their ongoing negotiation strategy.
Gottesfeld emphasizes that the information on which the
parties were waiting was the magistrate judge's decision on
detention. As such, Gottesfeld argues, granting the challenged
continuances under the guise of plea negotiations effectively
extended the amount of excludable time during which the detention
decision could be kept "under advisement" from thirty days to
ninety-two days, working an end-run around section 3161(h)(1)(H)
and frustrating the purposes of the Speedy Trial Act. But this
argument merely begs the question of whether the ends-of-justice
continuances were properly granted. And it also overlooks that an
"ends of justice" continuance can serve as an independent source
of excludable time. See Rush, 738 F.2d at 505 (suggesting that
time beyond the thirty-day under-advisement period can be excluded
if there is some other "source of excludable time such as an 'ends
of justice' continuance").
Still, Gottesfeld asserts, the need for additional time
for plea negotiations undisputedly depended on the delay in the
detention decision. Because that delay was not explained by the
district court, Gottesfeld asserts that it must have been caused
by "general congestion of the court's calendar," which cannot be
used to justify an ends-of-justice continuance. 18 U.S.C.
§ 3161(h)(7)(C). But it is not obvious that congestion is the
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only available explanation for the delay. And a district court is
not generally required to explain the reasons underlying any delay
in issuing an opinion on a contested issue after a hearing.
Moreover, Gottesfeld specifically consented to each of the
challenged continuances at the time they were proposed and granted.
See United States v. Gates, 709 F.3d 58, 67–68 (1st Cir. 2013)
(relying in part on defense counsel's consent in affirming the
denial of a motion to dismiss under the Speedy Trial Act). For
all these reasons, and absent caselaw directly on point, see
Gonzalez, 949 F.3d at 39, we find no plain error.4
B.
Gottesfeld also contends that the district court
erroneously denied his motion to suppress evidence collected from
his apartment during the execution of a search warrant because the
magistrate judge who signed the warrant "was neither neutral nor
detached" and because she was "subject to recusal."5 We review
the district court's findings of fact for clear error and legal
4 Because we find that Gottesfeld's contentions under the
Speedy Trial Act do not support vacating or reversing his
conviction, we need not address the government's arguments that
those contentions were barred by the doctrine of judicial estoppel.
5 Below, Gottesfeld also moved to suppress evidence obtained
pursuant to a trap-and-trace order, which was signed by a different
magistrate judge, on other grounds. On appeal, Gottesfeld does
not challenge the district court's denial of his motion to suppress
as to that issue, so we do not address it.
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rulings de novo. See United States v. Tom, 988 F.3d 95, 98 (1st
Cir. 2021).
Gottesfeld contends that the magistrate judge was not
neutral, detached, or sufficiently impartial because her spouse
was a victim of the cyberattack on Boston Children's. In making
this argument below, Gottesfeld pointed to: (1) a statement in the
affidavit attached to the search warrant application that the
cyberattack had also caused disruption to the "network on which
[Boston Children's] and other Harvard University-affiliated
hospitals communicate," and (2) evidence that the magistrate
judge's spouse was employed as a doctor by Brigham and Women's
Hospital, which is affiliated with Harvard University, and as a
professor by Harvard Medical School. But Gottesfeld identified no
evidence to suggest that the magistrate judge's spouse was actually
affected by the cyberattack in any substantial manner. For this
and other reasons, the district court denied his motion to
suppress.
On appeal, Gottesfeld highlights evidence in the trial
record that Brigham and Women's was one of the Harvard-affiliated
hospitals that lost its internet connection as a result of the
cyberattack. He also points to a statement made by the government
during his detention hearing that "Harvard hospitals" were unable
to complete routine patient-care tasks in the aftermath of the
cyberattack. From this evidence, Gottesfeld asserts, it is "clear"
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that the magistrate judge's spouse was "directly and profoundly
affected" by the cyberattack.
Gottesfeld's hyperbole to one side, we agree that one
can reasonably infer that the shutdown of 65,000 IP addresses in
a network that included the husband's two employers likely had
some adverse effect on him. Armed with this inference that the
magistrate judge's husband likely experienced some adverse effect,
Gottesfeld argues that: (1) recusal was mandatory under both 28
U.S.C. § 455(a) and the Fourth Amendment, see generally United
States v. Leon, 468 U.S. 897, 914 (1984); and (2) that evidence
gathered pursuant to the warrant issued by the magistrate judge
must be suppressed. For the following reasons, we disagree.
First, the inferred harm here is both indirect and, as
to its extent, speculative. See United States v. Bayless, 201
F.3d 116, 127 (2d Cir. 2000) ("[D]isqualification [under section
455] is not required on the basis of remote, contingent, indirect
or speculative interests."). There is also nothing in the record
to compel a finding that the magistrate judge suspected that her
husband was a target of the disruption. And while the aggregate
effect of the denial-of-service attack was serious and undoubtedly
created a substantial risk of significant harm to many persons,
especially patients, there is no suggestion in the record that the
magistrate judge's husband experienced any untoward effects beyond
inconvenience, delay, and likely annoyance.
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Gottesfeld points to no precedent at all holding that an
effect on a spouse of this type would preclude a magistrate judge
from issuing a search warrant. He points only to cases in which
a judge's colleagues had been murdered by the defendant or injured
by a bomb blast one block away from the judge's courtroom. See,
e.g., United States v. Moody, 977 F.2d 1425, 1428 (11th Cir. 1992)
(judicial colleague murdered); Nichols v. Alley, 71 F.3d 347, 350
(10th Cir. 1995) (member of judge's staff injured in Oklahoma City
bombing). These cases simply highlight how different and uncertain
the indirect effect on the magistrate judge is in this case.
Second, Gottesfeld offers no support for the second part
of his argument -- that an issuance by a magistrate with this type
of a personal interest would call for application of the
exclusionary rule as a remedy. Would harmless error apply? Would
good faith affect the calculus? On these and other points
Gottesfeld is completely silent. So, the second part of his two-
part argument is waived. United States v. Zannino, 895 F.2d 1, 17
(1st Cir. 1990) ("[I]ssues adverted to in a perfunctory
manner . . . are deemed waived.").
For these reasons, we reject Gottesfeld's mandatory
recusal argument. Given that he offers no other challenges to the
warrant or to the search, we also reject his challenge to the
government's use at trial of evidence gathered pursuant to the
warrant.
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C.
Gottesfeld's next argument revolves around four motions
to withdraw that were filed by his trial counsel and denied by the
district court. We begin by setting forth the relevant factual
background before addressing Gottesfeld's claims on appeal.
1.
At his initial appearance in the District of
Massachusetts in April 2016, Gottesfeld was represented by hired
counsel. Approximately eight months later, that counsel moved to
withdraw due to Gottesfeld's indigency. An Assistant Federal
Defender was appointed as a replacement. In March of the following
year, another Assistant Federal Defender joined in Gottesfeld's
representation. But by November 2017, Gottesfeld claimed that he
had "lost faith and trust in the [Federal Public Defender Office]
to effectively and zealously represent his best interests," and
moved for substitute counsel. The district court granted the
motion and appointed yet a fourth attorney to represent Gottesfeld.
That attorney later moved, with Gottesfeld's consent, to withdraw
as counsel on two separate occasions in March 2018. At the hearing
on that attorney's second motion to withdraw, the district court
advised Gottesfeld as follows:
[I]f I allow his motion and appoint new
counsel, this will be the last counsel you
will get, . . . and there will be no further
attorneys. The alternative of course is that
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you agree to represent yourself pro se, which
you've told me . . . you don't want to pursue.
Gottesfeld indicated that he understood the judge's advice and did
not retract his assent to his attorney's motion to withdraw as
counsel. The district court granted the motion and appointed David
Grimaldi as Gottesfeld's fifth attorney.
Attorney Grimaldi worked on Gottesfeld's case for less
than three months before moving to withdraw as counsel at
Gottesfeld's request on June 1, 2018, citing Gottesfeld's
disagreement with Attorney Grimaldi over trial strategy and his
consequent lack of trust in Attorney Grimaldi. The court found
that the evidence provided in support of this motion did not
constitute good cause for excusing Attorney Grimaldi and did not
justify the delay that would inevitably result if the motion were
granted. Gottesfeld does not appear to challenge that decision on
appeal.
On June 28, 2018, with trial less than three weeks away,
Attorney Grimaldi filed a second motion to withdraw on his own
behalf, asserting "an irreparable breakdown in the attorney-client
relationship." At a hearing on the second motion to withdraw,
Attorney Grimaldi explained that Gottesfeld had made a number of
disparaging online posts about him and his legal practice. Because
Gottesfeld was "attacking [his] livelihood," Attorney Grimaldi
represented that he did not believe he could effectively represent
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Gottesfeld any longer. Gottesfeld opposed Attorney Grimaldi's
motion, stating that he "did not want a new lawyer" and "[did] not
want more delay." The district court denied the motion, finding
that "no irreparable breakdown in communication had occurred."
The district court also noted that "trial [was] quickly
approaching," and that Attorney Grimaldi had been able to
diligently and zealously represent Gottesfeld up to that point.
The parties continued preparing for trial until July 12,
2018, when Attorney Grimaldi filed a third motion to withdraw as
counsel on an emergency basis, given that jury selection was only
seven days away. The motion was referred by the trial judge to
another judge who was responsible for handling emergencies in the
district court. The emergency judge held a hearing, at which
Attorney Grimaldi indicated that Gottesfeld had continued to make
disparaging public statements about him and his law firm bearing
the same name. Based on these events, Attorney Grimaldi
represented that he could not "represent Mr. Gottesfeld zealously"
and that "Mr. Gottesfeld [did] not have [his] full and undivided
loyalty." Gottesfeld nevertheless stated: "I want this trial
date. . . . I don't want to delay it. I don't want new counsel.
I don't want to waive my right to counsel. I want Mr. Grimaldi to
do his job." Based on Gottesfeld's statements and the fact that
the motion was filed "on the eve of trial," the emergency judge
denied the motion on July 16, 2018.
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The next day, just two days before jury selection was
scheduled to commence, Attorney Grimaldi filed a fourth motion to
withdraw, asking that the trial judge (rather than the emergency
judge) consider the grounds asserted in the third motion to
withdraw. The trial judge denied the motion that afternoon for
substantially the same reasons as the emergency judge. The trial
judge also reiterated his earlier warning to Gottesfeld that
Attorney Grimaldi was his "last court-appointed attorney" and that
further public attacks on Attorney Grimaldi or any other misconduct
could be treated as "an implied waiver of counsel."
Trial proceeded as scheduled, and the jury returned a
guilty verdict on August 1, 2018. On August 31, one week before
post-trial motions were due and seven weeks before sentencing,
Attorney Grimaldi filed a fifth motion to withdraw as counsel for
the same reasons as before. Gottesfeld assented to the motion,
but only "so long as he [would be] provided new counsel (and not
ordered to represent himself pro se) and the change of attorneys
does not delay future proceedings, including but not limited to
his sentencing hearing." The district court held a hearing on the
motion and engaged in the following colloquy with Gottesfeld:
THE COURT: You understand that, if I allow
his motion, you are going to
represent yourself pro se?
THE DEFENDANT: That would be over my
objection, Your Honor. I don't
plan on waiving my right to the
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effective assistance of
counsel. . . . I would object
to having to represent myself.
I assent to --
THE COURT: You remember when I appointed
him, I told you this was your
last lawyer.
THE DEFENDANT: Yep, yep. . . . [Y]ou know, if
I would not be appointed new
counsel, that I do not assent
to Mr. Grimaldi leaving.
The district court again denied Attorney Grimaldi's motion,
finding that he had done "a very creditable and professional job"
even as Gottesfeld was "attacking him online . . . with frivolous
and cockamamy charges" and that appointing substitute counsel
would likely delay Gottesfeld's sentencing hearing. Attorney
Grimaldi was subsequently permitted to withdraw as counsel at a
later date, prior to sentencing, after Gottesfeld initiated a
separate legal proceeding against him.
2.
With full knowledge of these facts, and after asking the
district court to deny each of Attorney Grimaldi's second, third,
and fourth motions to withdraw, Gottesfeld now takes the position
that the district court should have granted those motions.
Although he expressly and repeatedly assured the district court
that he wanted to proceed with Attorney Grimaldi as counsel, he
now asserts that Attorney Grimaldi should not have been permitted
to continue representing him because Attorney Grimaldi's
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statements at the hearings on the relevant motions to withdraw
demonstrated an actual conflict of interest and a "total breakdown
in communication" in the attorney-client relationship.
In advancing this argument, Gottesfeld offers no view as
to the proper standard of review. The government in its brief
makes the case for waiver, to which Gottesfeld offers no opposition
in his reply. Waiver of some type would seem to be implicated
here. A defendant usually cannot "properly challenge on appeal a
proposal he himself offered to the trial court." United States v.
Amaro-Santiago, 824 F.3d 154, 160 (1st Cir. 2016) (quoting United
States v. Angiulo, 897 F.2d 1169, 1216 (1st Cir. 1990)). The
reasons for this rule are clear: Without it, defendants would be
able to "sandbag" the district court by taking one position and
"gambling on a favorable verdict, knowing [that] if [the] verdict
went against them[,] they could seek a new trial." United States
v. Hallock, 941 F.2d 36, 45 (1st Cir. 1991) (citing United States
v. Costa, 890 F.2d 480, 482 (1st Cir. 1989)); see also United
States v. Ocean, 904 F.3d 25, 39 (1st Cir. 2018) (stating that a
defendant may not "plant[] an error and nurtur[e] the seed as
insurance against an infelicitous result" (quoting United States
v. Taylor, 54 F.3d 967, 972 (1st Cir. 1995))).
In any event, even if we were to find Gottesfeld's
challenge to the denial of the second, third and fourth motions to
withdraw reviewable, we would still reject it. When reviewing a
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district court's denial of a motion to withdraw, we consider "the
timeliness of the motion, the adequacy of the court's inquiry into
the defendant's complaint, and whether the conflict between the
defendant and his counsel was so great that it resulted in a total
lack of communication preventing an adequate defense." United
States v. Reyes, 352 F.3d 511, 515 (1st Cir. 2003) (quoting United
States v. Woodward, 291 F.3d 95, 107 (1st Cir. 2002)). "We accord
'extraordinary deference' to the district court's decision when
'allowance of the motion would necessitate a last-minute
continuance.'" United States v. Theodore, 354 F.3d 1, 5 (1st Cir.
2003) (quoting Woodward, 291 F.3d at 107). We review preserved
objections to decisions on motions to withdraw for abuse of
discretion, see Reyes, 352 F.3d at 515, and forfeited objections
for plain error, see United States v. Brake, 904 F.3d 97, 99 (1st
Cir. 2018).
The second, third, and fourth motions to withdraw were
filed a very short time before trial. Given the complexity of
Gottesfeld's case, granting any of the challenged motions to
withdraw would have almost certainly required a "last-minute
continuance." Theodore, 354 F.3d at 5 (quoting Woodward, 291 F.3d
at 107). Nevertheless, the district court gave due consideration
to all those motions at issue, exhaustively exploring the grounds
for each of them through a hearing. The district court also found
that Attorney Grimaldi was capable of effectively representing
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Gottesfeld despite the difficulties of their relationship and that
Attorney Grimaldi in fact did "a very creditable and professional
job" defending Gottesfeld at trial. Based on our review of the
trial record, we see no reason to doubt these findings. For all
these reasons, Gottesfeld is not entitled to a new trial, under
any standard of review, based on the district court's denials of
Attorney Grimaldi's second, third, and fourth motions to withdraw.
To rule otherwise would be to rule that a defendant in a criminal
case need simply attack his own lawyer online in order to force
the court's hand in making rulings that could then themselves be
attacked on appeal.
This leaves, to some extent, Gottesfeld's challenge to
the district court's denial of the fifth motion to withdraw. It
is true that Gottesfeld initially claimed not to oppose Attorney
Grimaldi's fifth motion to withdraw, on the condition that he would
not have to proceed pro se if the motion were granted. But given
the district court's prior admonitions on this score, Gottesfeld
was well aware that this condition would not be satisfied. He had
been repeatedly advised that he would have to proceed pro se if
Attorney Grimaldi withdrew. And when the district court reminded
him of this during the hearing on the fifth motion to withdraw,
Gottesfeld indicated that he understood and that he wanted Attorney
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Grimaldi to continue as counsel.6 In any event, Attorney Grimaldi
eventually was allowed to withdraw, and Gottesfeld offers no claim
at all that he suffered any prejudice during the period between
the post-trial denial of the fifth motion and the presentencing
withdrawal of his attorney.
D.
Still training his attention on Attorney Grimaldi's
motions to withdraw, Gottesfeld contends that the district court
violated his Sixth Amendment right to a public trial by not
allowing the press or the public attend the hearings conducted on
five of the motions. Gottesfeld in at least four of these
instances objected to the exclusion, so we review the challenged
decisions to exclude de novo. See United States v. Brown, 669
F.3d 10, 32 (1st Cir. 2012)
The Sixth Amendment provides, in relevant part, that
"[i]n all criminal prosecutions, the accused shall enjoy the right
to a speedy and public trial." U.S. Const. amend. VI. That right
to a public trial applies at "any stage of a criminal trial,"
including jury selection. Presley v. Georgia, 558 U.S. 209, 213
(2010). And the Supreme Court has concluded that the right extends
6 Gottesfeld does not assert on appeal that the district
court erred in issuing these warnings, and we can find no fault
with them. See United States v. Jones, 778 F.3d 375, 388 (1st
Cir. 2015) ("In some circumstances, a district court may force a
defendant to choose between proceeding with unwanted counsel or no
counsel at all.").
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to at least one pretrial context: hearings aimed at suppressing
evidence proffered for trial. Waller v. Georgia, 467 U.S. 39, 47
(1984). Gottesfeld asks that we further extend the public-trial
right to pretrial hearings on motions to withdraw by counsel.
Neither party points to any case deciding whether such an extension
is warranted. We think it is not, at least absent factors not
present here.
As justification for its holding that a defendant has a
constitutional right to public suppression hearings, the Supreme
Court explained that suppression hearings "often resemble[] a
bench trial" where "witnesses are sworn and testify," "counsel
argue their positions," and the "outcome frequently depends on a
resolution of factual matters." Id. at 47. Notably, the Court
cited the fact that suppression hearings often challenge police
conduct, which creates a strong interest in public scrutiny. Id.These withdrawal hearings, by contrast, involved only a
dispute between the defendant and his counsel. Public hearings on
such motions will not "encourage[] witnesses to come forward" or
"discourage[] perjury" because they do not involve the
presentation of evidence relevant to the defendant's guilt or
innocence. Brown, 669 F.3d at 33 (quoting Waller, 467 U.S. at
46). Indeed, government counsel was also barred from the hearing.
The issue -- should defense counsel be allowed to withdraw -- was
entirely collateral to the trial or to any issues of guilt or
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innocence. And the nature of the issue -- antagonism between
counsel and the defendant -- raised a serious possibility that
public disclosure of the hearing would create publicity that might
find its way into the jury box and would certainly become known to
the prosecution. The primary purpose of the Sixth Amendment right,
after all, is to "benefit . . . the accused." Brown, 669 F.3d at
33 (quoting United States v. Scott, 564 F.3d 34, 38 (1st Cir.
2009)). As to this last point -- benefiting the accused --
Gottesfeld argues that he waived any objection to closing the
hearings. But that waiver was itself uncounseled, illustrating
how different these hearings are from the adversarial proceedings
known as a trial.
All in all, we decline the invitation to hold that the
Sixth Amendment public-trial right applied to the pretrial and
post-trial hearings on counsel's motions to withdraw in this case.7
Gottesfeld's trial was held in public; the withdrawal hearings
were not part of that trial.
E.
Turning from procedure to substance, Gottesfeld
challenges the district court's order precluding him from raising
7 It is arguable that members of the public have a First
Amendment right to attend hearings distinct from Gottesfeld's
right to a public trial under the Sixth Amendment. See generally
Press-Enter. Co. v. Superior Ct., 464 U.S. 501 (1984). But we
need not address that issue, as Gottesfeld does not raise it (nor
is it clear he would have standing to do so).
- 27 -
at trial the affirmative defense known as "defense of another." A
district court "may preclude the presentation of [a] defense
entirely" if the defendant does not produce sufficient evidence
"to create a triable issue." United States v. Lebreault-Feliz,
807 F.3d 1, 4 (1st Cir. 2015) (quoting United States v. Maxwell,
254 F.3d 21, 26 (1st Cir. 2001)). We review decisions precluding
affirmative defenses de novo. Id."Use of force is justified when a person reasonably
believes that it is necessary for the defense of . . . another
against the immediate use of unlawful force," so long as the person
"use[s] no more force than appears reasonably necessary in the
circumstances." United States v. Bello, 194 F.3d 18, 26 (1st Cir.
1999) (quoting First Circuit Pattern Crim. Jury Instr. § 5.04);
see also 2 Paul H. Robinson et al., Crim. L. Def. § 133 ("Conduct
constituting an offense is justified if: (1) an aggressor
unjustifiably threatens harm to another person; and (2) the
[defendant] engages in conduct harmful to the aggressor (a) when
and to the extent necessary to protect the other person, (b) that
is reasonable in relation to the harm threatened."); Model Penal
Code § 3.05 (similar).
Gottesfeld sought to argue at trial that his cyberattack
on Boston Children's and Wayside was justified because it was
necessary to protect Pelletier from remaining under the care of
those institutions. In support of this theory, he primarily
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pointed to news and television reports stating that Pelletier was
being "abused" and "tortured" under the care of Boston Children's
and Wayside; that Pelletier's custody proceeding might be
"compromised"; and that Pelletier's parents had contacted the
Federal Bureau of Investigation and other law enforcement agencies
regarding Pelletier's plight to no avail.
This evidence would perhaps support a finding that
Gottesfeld subjectively believed Pelletier was at some risk of
harm. But he marshals no case to support a finding that he
reasonably believed that she faced the threat of immediate unlawful
force. To the contrary, he knew that her custody was authorized
by a court order.8 Furthermore, even if he thought that some
individual or group of individuals were using or threatening to
use unlawful force, that would have provided no justification for
Gottesfeld to take hostage thousands of other persons' internet
connections.
8 To the extent Gottesfeld contends that he reasonably
believed that Pelletier's treatment during her custody was
unlawful, that argument is waived multiple times over: Gottesfeld
did not clearly assert it before the district court and only now
tries to develop it in his reply brief. Even were we to consider
this argument, public commentary and opinion comparing Pelletier's
treatment to torture -- which is all he cites to support this claim
-- does not alone support a finding that he reasonably believed
that she was in fact being subjected to torture. To rule otherwise
would be to empower every citizen with the ability to
simultaneously incite and immunize criminal conduct by another
even as a judicial tribunal is available to hear the claims of
harm.
- 29 -
Nor could a jury have found Gottesfeld's chosen methods
reasonably necessary. The issue of Pelletier's custody and
treatment were before a court, and all allegations known to
Gottesfeld were known to law enforcement authorities. To the
extent that Gottesfeld viewed these alternative courses of action
as unlikely to succeed, we have previously explained that a
defendant's likely inability "to effect the changes he desires
through legal alternatives does not mean, ipso facto, that those
alternatives are nonexistent." Maxwell, 254 F.3d at 29(considering a defendant's assertion of the necessity defense);
see also Bello, 194 F.3d at 27 (stating that, under federal law,
the "absence of lawful alternatives is an element of all lesser-
evil defenses" (quoting United States v. Haynes, 143 F.3d 1089,
1090–91 (7th Cir. 1998))). But see United States v. Perez-Jimenez,
219 F. App'x 644, 646–47 (9th Cir. 2007) (availability of
alternatives is relevant, albeit not an element). Gottesfeld's
opening brief on appeal does not even attempt to argue otherwise;
he addresses the issue of necessity only in his reply brief, and
even then does so cursorily. This provides yet another independent
basis for affirming the district court's decision precluding
Gottesfeld from presenting his defense-of-others argument at
trial: "[A]n appellant waives any argument not made in his
'opening brief but raised only in [his] reply brief.'" United
States v. Pedró-Vidal, 991 F.3d 1, 4 n.3 (1st Cir. 2021)
- 30 -
(alterations in original) (quoting United States v. Rivera-
Carrasquillo, 933 F.3d 33, 40 n.7 (1st Cir. 2019)).9
F.
Finally, we address Gottesfeld's argument that the trial
judge improperly denied three recusal motions he made pro se after
the verdict but before sentencing. As we explained above, under
28 U.S.C. § 455(a), a judge "shall disqualify himself in any
proceeding in which his impartiality might reasonably be
questioned." Additionally, a judge must recuse himself if he "has
a personal bias or prejudice" concerning a party, 28 U.S.C.
§§ 144, 455(b)(1); if he "knows that he, individually or as a
fiduciary, . . . has a financial interest in the subject matter in
controversy or in a party to the proceeding, or any other interest
that could be substantially affected by the outcome of the
proceeding," id. § 455(b)(4); or if he knows that a person "within
the third degree of relationship" to him has "an interest that
could be substantially affected by the outcome of the proceeding,"
id. § 455(b)(5). "We review a ruling on a motion to recuse for
abuse of discretion." United States v. Torres-Estrada, 817 F.3d
376, 380 (1st Cir. 2016) (quoting United States v. Pulido, 566
F.3d 52, 62 (1st Cir. 2009)). We will uphold the district court's
9We accordingly need not review the district court's other
rationales for precluding Gottesfeld from raising a defense-of-
others defense at trial.
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denial of such a motion "unless we find that it cannot be defended
as a rational conclusion supported by a reasonable reading of the
record." Id. (quoting Pulido, 566 F.3d at 62).
In his motions to disqualify the trial judge below,
Gottesfeld alleged that: (1) the trial judge had a financial and
personal interest in maintaining the reputation of Boston
Children's, which was a target of Gottesfeld's cyberattack;
(2) the trial judge was "emotionally compromised" from having
presided over the trial of another hacker who committed suicide
after being convicted and sentenced on charges similar to those
brought against Gottesfeld; and (3) the judge ruled against him on
a number of motions. Having reviewed Gottesfeld's allegations
concerning the trial judge's financial disclosures, prior judicial
service, and legal rulings in this case, we see nothing to suggest
that the trial judge had any bias, prejudice, personal interest,
or financial interest that would have required his
disqualification from this case. To start, as we mentioned above,
section 455 does not require recusal "on the basis of remote,
contingent, indirect or speculative interests." Bayless, 201 F.3d
at 127. Gottesfeld's allegations of the judge's financial
interests in the reputation of Boston Children's -- based on an
attenuated series of connections involving non-profits to which
the judge had donated -- are far too remote and indirect to suggest
even an appearance of partiality, and his allegations concerning
- 32 -
the judge's emotional response to the events following a prior
case are similarly too speculative to require disqualification.
Finally, his third basis for recusal, which boils down to a bare
disagreement with the judge's rulings in this case, runs afoul of
the "extrajudicial source" doctrine. See Liteky v. United States,
510 U.S. 540, 544–51 (1994) (explaining that any claim of bias or
prejudice -- with limited exceptions -- must "stem from an
extrajudicial source" (quoting United States v. Grinnell Corp.,
384 U.S. 563, 583 (1966))).
Gottesfeld does not attempt to argue otherwise on
appeal. Indeed, he does not even repeat the allegations of
judicial bias and impropriety that he asserted in his recusal
motions below. Rather, he asserts that the district court exceeded
the scope of its discretion by denying his recusal motions without
making factual findings on the record to support those decisions.
But given our conclusion that Gottesfeld's allegations do not raise
any doubt about the trial judge's impartiality, we necessarily
hold that each of the district court's orders denying Gottesfeld's
recusal motions was "a rational conclusion supported by a
reasonable reading of the record." Torres-Estrada, 817 F.3d at
380. No further findings were required.10
Insofar as Gottesfeld seeks to challenge the district
10
court's denial of the recusal motion made by his trial counsel
after the jury began deliberations, we reject that challenge for
the same reasons.
- 33 -
II.
For the foregoing reasons, we affirm Gottesfeld's
conviction.
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