United States v. Boyd, Jeff ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 98-2035, 98-2036, 98-2037, 98-2038 & 98-2060
United States of America,
Plaintiff-Appellee,
v.
Jeff Boyd, Charles Green, Sammy Knox,
Noah R. Robinson, and Melvin Mays,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 89 CR 908--James B. Zagel, Judge.
Argued September 27, 1999--Decided April 3, 2000
Before Posner, Chief Judge, and Ripple and Rovner,
Circuit Judges.
Posner, Chief Judge. The defendants, members of
Chicago’s "El Rukn" street gang, were indicted
along with other members of the gang in 1989 on a
variety of serious federal charges. They were
tried before a jury in 1991 (all but appellant
Mays) and convicted; but the trial judge (Judge
Aspen) ordered a new trial because the government
had knowingly used false testimony to convict
them and had failed to disclose materials that
the defendants could have used to impeach the
government’s witnesses. After we affirmed his
order, 55 F.3d 239 (7th Cir. 1995), the
defendants were retried, this time before Judge
Zagel, and at the end of the 12-week trial the
jury again convicted the defendants (now
including Mays) of multiple crimes--mainly
narcotics violations, and murders committed in
the course of turf wars with rival drug gangs--
all pursuant to a continuing and wide-ranging
conspiracy reaching back to the mid-1960s. All
five defendants were sentenced to life
imprisonment except Boyd, who was sentenced to 50
years.
The appeals present almost 20 separate issues,
but we confine our discussion to those that have
at least colorable merit. Although all the
appellants are represented by counsel, Robinson
has filed a pro se supplemental brief. Earlier
motions by him to file such a brief were
repeatedly denied. Eventually the presiding judge
of this panel allowed it to be filed; but on
further consideration, given the lateness of the
filing (long after the case was argued), we have
decided to vacate the order allowing the brief to
be filed. It goes without saying that a
represented litigant has no right to file a pro
se brief, e.g., United States v. Gwiazdzinski,
141 F.3d 784, 787 (7th Cir. 1998), and although
we can permit such a filing in appropriate
circumstances, e.g., Hayes v. Hawes, 921 F.2d
100, 101-02 (7th Cir. 1990) (per curiam), given
the lateness of the filing and the repetitive
character of the motion the circumstances are not
appropriate.
At the first trial--the one set aside because of
prosecutorial misconduct--Edgar Cooksey was a
defendant and he was convicted with the others.
But after the new trial was ordered, he pleaded
guilty, and he testified for the government at
the second trial. The examination of Cooksey both
by the government’s lawyer and by one of the
defense lawyers, which was conducted over a
period of three days, brought out the fact that
Cooksey had been a codefendant of at least some
of the current defendants, that they had been
indicted in 1989, that he had testified at a
previous jury trial in 1991 called "United States
v. Boyd" (which the current jury knew, of course,
was the title of the case it was hearing), that
he had spoken to the judge in that trial in
"allocution" and had "accepted responsibility"
for his acts, that he had pleaded guilty shortly
before the beginning of the current trial, and
that he had been in prison continuously since
1991. The lawyers for the other defendants thrice
objected to the questions that elicited this
information, and moved for a mistrial on the
ground that the jury was bound to infer that the
defendants had been convicted by a previous jury.
The government concedes that it can be a
reversible error to disclose to the jury (or
allow the jury to discover) that a defendant was
previously convicted by another jury, see, e.g.,
United States v. O’Keefe, 722 F.2d 1175, 1179
(5th Cir. 1983); United States v. Attell, 655
F.2d 703, 705-06 (5th Cir. 1981); United States
v. Williams, 568 F.2d 464, 470-71 (5th Cir.
1978), though reversal is not automatic. Patton
v. Yount, 467 U.S. 1025, 1031-35 (1984); United
States v. Keating, 147 F.3d 895, 900 (9th Cir.
1998); cf. United States v. Bruscino, 687 F.2d
938, 940 (7th Cir. 1982) (en banc); United States
v. Plescia, 48 F.3d 1452, 1464-65 (7th Cir.
1995). And reversal is out of the question--no
possible prejudice is shown--if the damning fact
is not actually disclosed. Judge Zagel refused to
grant a mistrial, saying he thought it unlikely
that the jury would infer that the defendants had
previously been found guilty; if he was right,
the question whether the jury could have set
aside their knowledge of the fact would not even
arise.
The question of what the jury is likely to have
inferred from statements made in its presence,
like the question whether the jury is likely to
have been prejudiced by hearing things they
shouldn’t have, Marshall v. United States, 360
U.S. 310, 312 (1959) (per curiam); United States
v. Bruscino, supra, 687 F.2d at 940-41; United
States v. Zizzo, 120 F.3d 1338, 1349 (7th Cir.
1997), is quintessentially one for the trial
judge to answer, subject only to light appellate
review. Because he has his finger on the pulse of
the trial and monitors the alertness and
attentiveness of the jury, he is in a better
position than the appellate judges to determine
whether prejudicial matter presented at the trial
is likely to have affected the outcome. Judge
Zagel could tell how the jurors seemed to be
"taking" the revelations concerning Cooksey’s
previous trial. In the circumstances, we do not
think he abused his discretion in refusing to
grant a mistrial. The revelations had been
scattered over three days of examination and
cross-examination of Cooksey and, since they
employed technical legal terminology (such as
"allocution") and were thus susceptible of other
interpretations by a jury of lay persons, did not
compel an inference that the current defendants
had previously been convicted.
The next issue concerns the admissibility of
tape recordings of telephone conversations in
1985 and 1986 in which the defendants made
incriminating admissions. The defendants argue
that the reliability of the recordings was never
adequately determined, that some may have been
tampered with, and that the government violated
the Brady rule by failing to disclose a specific
problem with the accuracy of the tapes that could
have been used to impeach the government’s
evidence. Brady v. Maryland, 373 U.S. 83 (1963).
Because tape recordings at once are devastatingly
effective evidence and are susceptible to
tampering that is very difficult to discover,
Title III--the federal statute that regulates
electronic surveillance--requires that recordings
"be done in such way as will protect the
recording from editing or other alterations." 18
U.S.C. sec. 2518(8)(a). To this end, the section
requires that the recordings be judicially sealed
as soon as the interception order pursuant to
which they were made expires. Id.; United States
v. Ojeda Rios, 495 U.S. 257, 263 (1990); United
States v. Jackson, No. 98-2696, 2000 WL 248575,
at *3 (7th Cir. March 23, 2000); United States v.
Plescia, supra, 48 F.3d at 1463; United States v.
Wong, 40 F.3d 1347, 1375 (2d Cir. 1994). This was
done here, back in 1985 and 1986. The original
recordings were placed in sealed envelopes, and
the envelopes in sealed boxes. Some of the seals,
both on boxes and on envelopes, were later
broken, and anyway the recordings that were
actually placed in evidence were not the original
recordings. They were copies of duplicate
originals made at the same time as the original
recordings and intended to be identical to them.
They differed--or at least were supposed to
differ--only in having been made on a different
machine, recording the same conversations.
Neither the duplicate originals nor the copies
made from them were secured against tampering.
The admissibility of the copies was not
challenged at the first trial, and the district
judge ruled that this waived the issue as to all
the appellants but Mays, who was not a defendant
at that trial. The judge was wrong. Rulings made
at a previous trial of the same case only
presumptively control the second trial, under the
doctrine of law of the case, Alston v. King, 157
F.3d 1113, 1116 (7th Cir. 1998), and when the
ruling concerns the admissibility of evidence the
presumption is either nonexistent, Tang v. Rhode
Island, 163 F.3d 7, 11 (1st Cir. 1998); United
States v. Akers, 702 F.2d 1145, 1147-48 (D.C.
Cir. 1983), or weak, Menzer v. United States, 200
F.3d 1000, 1004-05 (7th Cir. 2000); United States
v. Williams, 2000 WL 204531, at *11 (2d Cir. Feb.
23, 2000); United States v. Todd, 920 F.2d 399,
403 (6th Cir. 1990); United States v. Birney, 686
F.2d 102, 107 (2d Cir. 1982), since issues of
admissibility are often highly contextual and
evidence at a second trial will often deviate
significantly from that at the first. See, e.g.,
Coal Resources, Inc. v. Gulf & Western
Industries, Inc., 954 F.2d 1263, 1265-66 (6th
Cir. 1992). (The presumption is strongest when
the ruling concerns a rule of law, and some cases
might be taken to suggest that it operates only
then. Arizona v. California, 460 U.S. 605, 618
(1983); Payne v. Churchich, 161 F.3d 1030, 1037
n. 8 (7th Cir. 1998).) Even the Ninth Circuit,
which takes a harder line on the binding effect
of evidentiary rulings made in the first trial,
United States v. Tham, 960 F.2d 1391, 1397-98
(9th Cir. 1991), does not regard failure to
object at the first trial as an irrevocable
waiver. Id. at 1398; United States v. Seidman,
503 F.2d 1027 (9th Cir. 1974). The judge’s error
in supposing the defendants absolutely precluded
from challenging the admissibility of the copies
at the second trial was peculiarly harmless,
however, since he had to discuss the merits of
the issue of admissibility with regard to Mays,
and that discussion is equally applicable to the
admissibility of the tape recordings against the
other defendants. And so let us turn to those
merits.
The fact that the recordings used at the trial
had not been sealed was not, as the defendants
argue, fatal; nor the fact that the seals had
been broken (the seals have to be broken at some
point, if the recordings are to be placed in
evidence). Neither Title III nor the case law
places specific restrictions on the manner in
which the contents of tape-recorded conversations
can be communicated to the jury at trial. See 18
U.S.C. sec. 2517(3); United States v. Rivera, 153
F.3d 809, 812 (7th Cir. 1998). The relevant
issues are, rather, whether Title III permitted
the disclosure of the contents of the
conversations at all, and whether (if so) the
particular evidence conveying those contents to
the jury was adequately authenticated.
The contents of a recorded communication
governed by Title III can lawfully be disclosed
even if the recording was not under seal,
provided the absence of the seal is
satisfactorily explained. 18 U.S.C. sec.
2518(8)(a); cf. United States v. Jackson, supra,
at *3. The usual satisfactory explanation is a
judicial order unsealing the recording so that it
can be used in evidence, and such orders were
indeed issued here for both sets of tapes that
are at issue. In the case of successive trials,
as we have here, the recording should be resealed
after the first trial, United States v. Long, 917
F.2d 691, 699-700 (2d Cir. 1990); United States
v. Scopo, 861 F.2d 339, 347 (2d Cir. 1988)--and
promptly, too. But this was done. Although
defendants argue--belatedly, in their reply
brief, Employers Ins. of Wausau v. Browner, 52
F.3d 656, 665-66 (7th Cir. 1995)--that one set of
tapes had been unsealed for the nine years since
the first trial, the trial judge was entitled to
and did credit the contrary testimony of the
government agent who examined them in preparation
for the second trial.
But it is not the case that these recordings
were merely removed from the boxes and envelopes
pursuant to judicial order and played to the
jury; they were not played to the jury at all;
copies were played to the jury and the second and
separate issue concerning their admissibility is
whether the copies were adequately authenticated.
On this issue two types of evidence were
presented that the judge found convincing. First,
one of the turncoat witnesses, Jackie Clay,
testified that a recording of a telephone
conversation that he had participated in back in
1986 was accurate. Although testifying ten years
later Clay could hardly have been certain about
the matter--any pretense of certainty would
merely have cast doubt on his credibility--
participants in other recorded conversations who
testified for the government were not asked by
the defendants’ lawyers whether the recordings
were accurate. The district judge inferred from
testimony by government agents that the other
conversations had been recorded in like manner to
the one Clay testified about and, from the
absence of any contrary evidence, that the
recordings of those conversations were probably
accurate too. Second, a government agent
testified that he opened some of the sealed
evidence envelopes pursuant to an unsealing order
by the district judge and compared the tapes in
them to the tapes played at trial, and found no
discrepancies.
Clay’s testimony was weak because of the lapse
of time. The agent’s was stronger, although not
airtight. For one thing, he didn’t compare all
the tapes played at trial with the originals.
Rather, he conducted a spot check, and having
discovered no discrepancies in the tapes that he
sampled decided not to check further. For
another, there is an unexplained discrepancy
between one of the original recordings and its
duplicate original, which although supposed to be
identical contained conversations not audible on
the original. The expert who examined the two
tapes could not determine the cause of the
discrepancy. It could have been a malfunction, or
it could have been a bit of creative editing, but
the latter inference, as the judge determined,
was the less likely, precisely because the
duplicate contained more conversation than the
original. It was the duplicate that was used in
evidence, and if the government had edited out
portions that favored the defendants, the
original would have had more conversation than
the duplicate. Although it is possible in
principle that the government "edited in"
additional conversation to the duplicate, there
is no indication at all of this more elaborate
form of tampering. Similarly, while it would have
been preferable had the agent checked all the
tapes, no reasons have been suggested for
doubting either the good faith or the adequacy of
his sampling.
It is essential to distinguish between excluding
evidence for want of adequate authentication, and
challenging its weight. The defendants were
entitled to and did question the weight that the
jury should give the tape recordings in light of
the possibility of tampering, but questions of
authentication are governed by Fed. R. Evid.
901(a), which merely requires "evidence
sufficient to support a finding that the matter
in question is what its proponent claims," that
is, that the recordings played to the jury were
in fact recordings of the defendants’
conversations. Testimony by an "ear" witness,
such as Clay, is sufficient, United States v.
Brown, 136 F.3d 1176, 1182 (7th Cir. 1998); there
is more here; and we have said in previous cases
that only in "extraordinary" circumstances will
we reverse the trial judge’s decision to admit
tape recordings over objections based on lack of
authentication. United States v. Magana, 118 F.3d
1173, 1207 (7th Cir. 1997); United States v.
Welch, 945 F.2d 1378, 1383 (7th Cir. 1991);
United States v. Vega, 860 F.2d 779, 788 (7th
Cir. 1988). That high standard is not met here.
The Brady rule requires the government to
disclose evidence it knows about that would be
helpful to the defense, whether because the
evidence is exculpatory or because it could be
used to impeach the government’s evidence. Brady
v. Maryland, supra, 373 U.S. at 87; Strickler v.
Greene, 119 S. Ct. 1936, 1948 (1999). The
discrepancy between one of the original tapes and
its duplicate, a discrepancy that could have been
used to some effect to impeach the government’s
taped evidence, may have arisen as early as 1986,
when the two recordings were made; in any event
it was not recent, and the defendants ask us to
infer from this that the government must have
known about it. But of this there is no other
evidence and the inference is implausible because
the government prepared its case from the
duplicate originals while the "original
originals" remained in storage. So far as
appears, the discrepancy was first discovered by
the defendants, who thought they heard something
odd on one of the tapes; they drew this to the
judge’s attention and then the comparison was
conducted, which confirmed the existence of the
anomaly. Brady liability is not strict; the
government does not violate Brady by failing to
disclose information that it (or its agents,
e.g., Kyles v. Whitley, 514 U.S. 419, 437 (1995)-
-a category that doesn’t include the criminal
defendants whom it prosecutes!) doesn’t know
about. United States v. Bhutani, 175 F.3d 572,
577 (7th Cir. 1999); United States v. Earnest,
129 F.3d 906, 910 (7th Cir. 1997); United States
v. Avellino, 136 F.3d 249, 255 (2d Cir. 1998).
The discrepancy between the tapes is such
information.
We come last to the most troubling issue in the
case--whether Judge Zagel should have
disqualified himself from presiding at this
trial. We have already held, in another case
involving the El Rukns, that Judge Zagel’s
refusal to disqualify himself was not a plain
error, United States v. Franklin, 197 F.3d 266,
270 (7th Cir. 1999), but the question remains
whether it was error. There is a threshold
procedural question, which is both novel and
unnecessary to resolve. Section 144 of the
Judicial Code entitles a party to disqualify a
judge (only once per case, however) on the basis
just of an affidavit sufficiently alleging the
existence of a personal bias or prejudice in
favor of an adverse party or against the affiant;
but the affidavit must be "accompanied by a
certificate of counsel of record stating that it
is made in good faith." Defendant Robinson filed
a section 144 affidavit against Judge Zagel, but
without the required certificate, because
Robinson was proceeding pro se. The judge ruled
that the absence of the certificate was fatal.
The ruling denies pro se parties the benefit of
the statute, a result that might be thought an
undue burden on the constitutional right of a
criminal defendant to proceed pro se. Faretta v.
California, 422 U.S. 806, 834, 836 (1975); United
States v. Brock, 159 F.3d 1077, 1079 (7th Cir.
1998); see also 28 U.S.C. sec. 1654. Yet the
requirement of the certificate is salutary, given
that the statute makes the party’s affidavit
conclusive for recusal provided it alleges the
requisite bias or prejudice. The obvious
solution, suggested by Robinson himself but
opposed by the government and rejected by the
judge, is to appoint a lawyer for the pro se
defendant for the limited purpose of enabling him
to determine whether to file the certificate. The
rejection of this measure--a measure we commend
to the district courts in future cases--turns out
to have been harmless, however, because the
relevant facts in Robinson’s affidavit were
conceded.
Section 455(a) of the Judicial Code requires a
judge to disqualify himself "in any proceeding in
which his impartiality might reasonably be
questioned." Our cases hold that appellate review
of a judge’s refusal to disqualify himself under
this section is possible only by petitioning the
appellate court for mandamus before trial. E.g.,
In re Hatcher, 150 F.3d 631, 637 (7th Cir. 1998);
United States v. Horton, 98 F.3d 313, 316-17 (7th
Cir. 1996); Taylor v. O’Grady, 888 F.2d 1189,
1201 (7th Cir. 1989); United States v.
Balistrieri, 779 F.2d 1191, 1204-05 (7th Cir.
1985). This is a minority position, see, e.g., In
re Cargill, Inc., 66 F.3d 1256, 1264 and n. 10
(1st Cir. 1995); United States v. Cooley, 1 F.3d
985, 996 n. 9 (10th Cir. 1993); In re School
Asbestos Litigation, 977 F.2d 764, 777 n. 12 (3d
Cir. 1992); Chitimacha Tribe v. Harry L. Laws
Co., 690 F.2d 1157, 1164 n. 3 (5th Cir. 1982),
but the defendants do not ask us to reexamine it.
On the contrary, they expressly waive any
challenge to the rule by stating in their
consolidated brief that "the motion for recusal
under 28 U.S.C. sec. 455(a) could only be, and
was, appealed by mandamus." Given this express
waiver by experienced counsel, it would be
inappropriate for us to reexamine the rule in
this case.
Because the rule forecloses appellate review at
the conclusion of the case, we review a petition
for mandamus to enforce section 455(a) under the
normal appellate standard. Hook v. McDade, 89
F.3d 350, 353-54 and n. 3 (7th Cir. 1996). Such a
petition was filed here, and another panel of
this court denied it, but in an unpublished order
with no statement of reasons, a disposition that
we find puzzling because, as will soon become
clear, the case for disqualification under
section 455(a) was more than colorable, and
indeed in our judgment was compelling. But there
is no reason to suppose that the panel which
denied mandamus applied the incorrect standard,
and in the absence of such an error we cannot
revisit the issue without abandoning the rule
that makes mandamus the exclusive route for
challenging a judge’s refusal to disqualify
himself under section 455(a).
The defendants also argue, however, that Judge
Zagel should have disqualified himself under
either of two other subsections (or both) of
section 455. The first is (b)(1), which so far as
bears on this case requires disqualification if
the judge has "personal knowledge of disputed
evidentiary facts concerning the proceeding." The
second is (b)(3), which requires disqualification
if the judge had, when he was a government
employee, "participated as counsel, adviser or
material witness concerning the proceeding or
expressed an opinion concerning the merits of the
particular case in controversy."
In 1983, at which time the now-Judge Zagel was
the head of the Illinois state police, Robinson
opened a restaurant in Chicago. Late in 1985 or
early in 1986, when Zagel was still head of the
state police, Robinson hired security guards for
his restaurant from a company called Security &
Maintenance Service (SMS), which was owned and
operated by El Rukn "General" Hunter, a key
government witness at the 1996 trial here on
appeal. These guards were unarmed but SMS had
applied for a license that would permit them to
be armed. The El Rukns’ purpose in operating a
security agency whose employees were authorized
to carry weapons was, of course, to strengthen
the gang’s position in the endless turf wars in
the course of which the murders with which these
defendants were charged were committed. The
authorities got wind of the scheme. They were
already investigating the El Rukns (whose drug
and related criminal activities went back to the
1960s, remember) by means of a joint federal,
state, and local task force that included members
of the Illinois state police. The task force
conducted a "sting" of SMS. An Illinois state
police officer played a key role in the sting,
operating undercover and dealing directly with
Hunter and Robinson. In June of 1986, Chicago
police officers who were members of the task
force and who later worked on the present case
raided SMS’s premises, which Robinson owned, and
arrested (at another location) 18 of its
employees. One of them, Crowder, was a defendant
in the first trial of this case and a defense
witness in the second trial, the trial before
Judge Zagel.
The day of the arrest, Director Zagel held a
joint press conference with Richard Daley, at the
time the Cook County prosecutor. They announced
the arrests and explained that they had begun
investigating SMS when they learned that Crowder,
an El Rukn "captain," had applied for a state
firearm identification card. Zagel remarked that
"street gangs [such as the El Rukns] have grown
to rival organized crime in the scope of their
operations, and in the savagery in which they
control entire sections of the city." The El
Rukns task force produced the evidence that led
to the 1989 indictments of the present
defendants. Not only did two of the El Rukns who
had been involved in the SMS caper testify at the
trial before Judge Zagel, but they testified--
Hunter extensively--about the caper, using it to
tie Robinson to other El Rukn activities as well.
In denying the motion to recuse, Judge Zagel
said that the SMS investigation had had nothing
to do with the current trial, but this is
incorrect. The creation of SMS was part of the
drug and incidental murder conspiracy for which
the defendants in the present case were tried and
convicted before Judge Zagel, although SMS’s
activities were not charged as overt acts of the
conspiracy. The judge was involved in the
investigation of activities at issue in the
trial, and the press conference shows that he had
personal, extrajudicial knowledge of those
activities. But SMS’s activities were not at
issue in this case except insofar as they
connected Robinson to the El Rukns. Had Judge
Zagel learned of this connection from the 1986
investigation of SMS, Robinson would be entitled
to a new trial before a different judge. But
Zagel did not mention Robinson at the press
conference, and there is no basis in the record
for Robinson’s claim that Zagel was the "point
man" for the investigation and had "full
knowledge" of its details. The judge denied this
charge on the record, and in the absence of
contrary evidence (Robinson’s mere assertion not
being evidence), we must credit the denial.
United States v. Balistrieri, supra, 779 F.2d at
1202.
This conclusion is only superficially in tension
with our (and Judge Zagel’s) crediting the facts
alleged in Robinson’s affidavit in support of his
motion to recuse Judge Zagel under 28 U.S.C. sec.
144. The only facts in such an affidavit that
must be credited, and plainly the only facts in
Robinson’s affidavit that Judge Zagel did credit,
are those that are "sufficiently definite and
particular to convince a reasonable person that
bias exists; simple conclusions, opinions, or
rumors are insufficient." United States v. Sykes,
7 F.3d 1331, 1339 (7th Cir. 1993); see also
United States v. Balistrieri, supra, 779 F.2d at
1199; Jones v. Pittsburgh Nat’l Corp., 899 F.2d
1350, 1356 (3d Cir. 1990); 13A Charles Alan
Wright, Arthur R. Miller & Edward H. Cooper,
Federal Practice and Procedure sec. 3551, pp.
634-37 (2d ed. 1984). Robinson’s assertions that
Zagel was the "point man" of the investigation
and had "full knowledge" of the details of the
investigation don’t count as factual assertions;
they are conclusions.
Section 455(b)(3) is also inapplicable. Zagel
did not participate other than as judge in the
present case and did not, back when he was head
of the state police, express an opinion about it.
The case was then, of course, years in the
future. There is a pregnant difference in wording
between the participation and expression-of-
opinion clauses of 455(b)(3). The former refers
to participation in "the proceeding," the latter
to expressing an opinion on the merits of "the
particular case in controversy," and we have held
that the use of the word "particular" narrows the
clause to the situation in which the judge
expressed his opinion in "the present case, not a
related former case." Russell v. Lane, 890 F.2d
947, 948 (7th Cir. 1989); cf. Rice v. McKenzie,
581 F.2d 1114, 1116 (4th Cir. 1978). In any
event, since nothing Zagel said at the press
conference could reasonably be construed as an
expression of opinion on the merits of the case
that he presided over, we need not pursue this
novel and interesting interpretive question.
The cases interpreting the participation clause
do not require a formal identity between the
proceeding in which the government employee who
is now a judge participated or expressed an
opinion about; it is enough if they overlap
significantly. See, e.g., United States v.
Outler, 659 F.2d 1306, 1312-13 (5th Cir. 1981);
Jenkins v. Bordenkircher, 611 F.2d 162, 166 (6th
Cir. 1979); Mixon v. United States, 608 F.2d 588,
591-92 (5th Cir. 1979). And there was an overlap
here, in the part of the SMS investigation that
linked Robinson to the El Rukns. But Director
Zagel never expressed an opinion about that
aspect of the investigation, and the requisite
"participation" is not imputed to a supervisor by
virtue of his supervisory authority; it must be
personal, and it was not. E.g., Mangum v.
Hargett, 67 F.3d 80, 83 (5th Cir. 1995); Kendrick
v. Carlson, 995 F.2d 1440, 1444 (8th Cir. 1993);
United States v. Di Pasquale, 864 F.2d 271, 279
(3d Cir. 1988). The exception noted in the last-
two cited cases for where the supervisor is the
U.S. Attorney is not applicable here.
Recurring briefly to section 455(a), we wish to
emphasize our belief that compliance with it is
essential to the perceived legitimacy of the
judicial process, especially when the defendants
are vicious criminals facing long sentences and
the prosecution has been marred by
irregularities. It would have been far, far
better for Judge Zagel to have recused himself in
light of his earlier involvement with the
parallel proceeding against the El Rukns and the
fact that two of the El Rukns involved in that
proceeding testified in the present case. But the
panel that considered the petition for mandamus
ruled that there was no violation of section
455(a), and while we disagree with the ruling,
the issue of its soundness is not before us.
Several sentencing issues remain to be
discussed. Green and Mays argue that their
sentences violate the ex post facto clause, U.S.
Const., art. I, sec. 9, cl. 3, because the
conspiracies did not persist beyond the date on
which the statutes under which they were
sentenced were enacted or because they had
withdrawn from the conspiracies prior to that
date. The first claim is just wrong, for although
there wasn’t a great deal of evidence of
continued drug dealing by the El Rukns subsequent
to the crucial dates (November 1, 1987, for one
of the statutes under which these defendants were
sentenced and November 18, 1988, for another),
there was enough to place the district judge’s
finding beyond possibility of reversal for clear
error. Withdrawal from a conspiracy requires a
definitive break, rather than mere cessation of
activities even when combined with a subjective
determination not to resume; otherwise a
conspirator could sit back and wait to see
whether the conspiracy had succeeded or failed
and only then decide whether to announce that he
had withdrawn. E.g., United States v. Wilson, 134
F.3d 855, 863 (7th Cir. 1998); United States v.
Williams, 81 F.3d 1434, 1442 (7th Cir. 1996);
United States v. Diaz, 176 F.3d 52, 98 (2d Cir.
1999). Mays’s argument that he withdrew when he
became a fugitive from justice borders on the
frivolous, United States v. Pandiello, 184 F.3d
682, 687 (7th Cir. 1999), as it would merely
reward fugitives; and anyway there is nothing
about hiding to suggest withdrawal--Mays was
hiding from the police rather than from the El
Rukns.
Green has a better argument, that he could not
be given a sentencing enhancement for having been
a leader of the conspiracy (U.S.S.G. sec.
3B1.1(a)) when his leadership role had--and this
the government acknowledges--ended with his
demotion from El Rukn "General" to private before
the guideline under which his sentence was
enhanced went into effect (as one of the original
guidelines) on November 1, 1987. The conspiracy
of which he was a member straddled the date of
promulgation, and a crime that straddles can be
punished under a guideline promulgated after the
straddle date. E.g., United States v. Kramer, 955
F.2d 479, 485 (7th Cir. 1992); United States v.
Hargus, 128 F.3d 1358, 1365 (10th Cir. 1997), and
United States v. Smith, 46 F.3d 1223, 1239 (1st
Cir. 1995). The straddle rule implies punishment
for conduct committed before the date of the
guideline that determined the severity of the
punishment, and we cannot see what difference it
can make whether the pre-guideline conduct was
the sale of a quantity of drugs perhaps much
greater than any that occurred after the critical
date or the exercise of leadership
responsibilities relinquished by that date.
Green’s best case is United States v. Torres,
901 F.2d 205, 226-27 (2d Cir. 1990), which held
that the ex post facto clause forbids punishing
the defendants as "principal administrators,
organizers, or leaders" of a continuing criminal
enterprise if their leadership role did not
continue after the enactment of the statute
creating the offense, even though the enterprise
itself did continue past that date. See also
United States v. Williams-Davis, 90 F.3d 490,
510-11 (D.C. Cir. 1996) (acknowledging but
distinguishing Torres). The statute at issue in
Torres created a new substantive offense that
required as one of its elements that the
defendant have had a leadership role, and so
punished Torres for engaging in conduct before
the statute was passed. In our case the defendant
committed all the elements of the offense after
the change in the sentencing guideline and by
doing so became responsible for the conduct in
which he had engaged before the change. Torres
was not a straddle case; ours is; if the
difference seems tenuous, then we must reject
Torres, as we are committed to the straddle
doctrine--and so, for that matter, is the Second
Circuit, which reaffirmed the straddle doctrine
in Torres itself. We add that Green could have
avoided the new guideline by quitting the
conspiracy when the guideline was announced but
before it took effect.
Last, we note some clerical mistakes in the
judgments. Mays’s judgment should reflect a
guidelines life sentence on count 3 and 60 months
on count 4, rather than vice versa, and Green’s
judgment should reflect a life sentence on counts
1 and 3 and concurrent 10-year terms on counts 4
and 5, rather than a life sentence on counts 1,
4, and 5 and a 10-year sentence on count 3. As
modified to correct these mistakes, the judgments
are
Affirmed.
RIPPLE, Circuit Judge, dissenting. The panel is
unanimous in its view that the trial judge should
have recused himself under sec. 455(a), which
requires a judge to "disqualify himself in any
proceeding in which his impartiality might
reasonably be questioned." Under the
circumstances set forth in detail by the majority
here, in any other circuit a new trial would be
ordered. In this circuit, however, we can only
review the trial judge’s decision against recusal
when the issue is presented in a petition for a
writ of mandamus. The defendants did file a
petition for mandamus relief from the trial
judge’s decision not to recuse himself, and
another panel of this court denied that petition
without opinion.
The rule that mandamus is the only avenue by
which a party can seek review of a ruling under
sec. 455(a) is well-established in this circuit.
See United States v. Horton, 98 F.3d 313, 316-17
(7th Cir. 1996); Hook v. McDade, 89 F.3d 350, 353
n.2 (7th Cir. 1996); United States v. Towns, 913
F.2d 434, 443 (7th Cir. 1990). This circuit’s
view has been that sec. 455(a) is intended to
protect against the appearance of impropriety,
and that, once the proceedings in the district
court have been completed, the harm sec. 455(a)
seeks to prevent has already occurred. See United
States v. Troxell, 887 F.2d 830, 833 (7th Cir.
1989). Thus, we have required litigants to bring
mandamus petitions to cure potential problems
under sec. 455(a) and to prevent a potentially
tainted trial from ever taking place. See id.
No other court of appeals has followed our
approach. See Kenneth M. Fall, Note, Liljeberg v.
Health Services Acquisition Corp.: The Supreme
Court Encourages Disqualification of Federal
Judges Under Section 455(a), 1989 Wis. L. Rev.
1033, 1056. Some circuits have rejected
explicitly our position. The Third Circuit has
said that mandamus is the preferred method of
appeal, but allows review on direct appeal
because it may provide a "partial cure" to any
harm to the public perception of the judiciary.
See In re School Asbestos Litig., 977 F.2d 764,
777 n.12 (3d Cir. 1992). The Tenth Circuit has
held that, although sec. 455(a) is concerned with
the rights of the public, the parties do retain
some rights thereunder, and direct appeal may
therefore be appropriate. See United States v.
Cooley, 1 F.3d 985, 996 n.9 (10th Cir. 1993).
Other circuits have entertained sec. 455(a)
arguments on direct appeal and, indeed, have
addressed the merits or found the issue waived
because it was not raised in the district court.
See, e.g., United States v. Mosby, 177 F.3d 1067,
1068-69 (8th Cir. 1999); United States v.
Morrison, 153 F.3d 34, 48-49 (2d Cir. 1998);
United States v. Barrett, 111 F.3d 947, 951-53
(D.C. Cir. 1997); United States v. Sturman, 951
F.2d 1466, 1481-82 (6th Cir. 1991); Diversified
Numismatics, Inc. v. City of Orlando, 949 F.2d
382, 384-85 (11th Cir. 1991) (per curiam); United
States v. Arache, 946 F.2d 129, 140 (1st Cir.
1991); United States v. Payne, 944 F.2d 1458,
1476-77 (9th Cir. 1991); United States v. Wade,
931 F.2d 300, 302-05 (5th Cir. 1991); United
States v. Mitchell, 886 F.2d 667, 671 (4th Cir.
1989).
Moreover, we not only stand alone among the
circuits in our approach to this question, but we
also have taken a position in considerable
tension with the decisions of the Supreme Court
of the United States. Indeed, the Supreme Court
appears to have taken a different path. Although
the Court has not rejected explicitly that
mandamus is the only avenue of review for sec.
455(a) matters, it has twice interpreted that
section in cases brought to it in the manner of
an appeal from final judgment. See Liteky v.
United States, 510 U.S. 540 (1994); Liljeberg v.
Health Services Acquisition Corp., 486 U.S. 847
(1988). These cases, especially Liljeberg’s
approval of vacatur of a trial court’s judgment,
clearly cast significant doubt on our view that
mandamus is the only appropriate remedy under
sec. 455(a). Nevertheless, we never have
considered whether these decisions of the Supreme
Court make our approach untenable; we have
continued to follow our same approach even after
the announcement of those Supreme Court
decisions.
This case points out one of the pitfalls of our
approach. As the Third Circuit has suggested, a
trial judge well might appear unbiased at the
outset of a trial, but later events might cause a
judge’s impartiality to be reasonably questioned
and thus make appropriate the "partial cure" of
reversing the improperly obtained verdict.
Asbestos Litig., 977 F.2d at 777-78. Indeed, in
one recent case, the First Circuit, although
denying mandamus relief, specifically left open
the possibility that further development of the
record could lead to a different conclusion on an
appeal from final judgment. See In re Martinez-
Catala, 129 F.3d 213, 221 (1st Cir. 1997).
Regardless of whether this panel would have
issued the same ruling as the earlier motions
panel if it had been presented with the record
available at that early stage of the litigation,
the record made at trial has convinced us that
recusal is necessary. There must be public
confidence in a judgment that incarcerates
defendants, in some cases for the rest of their
lives. The trial of this matter was a difficult
task. It required that the trial court make many
rulings, both with respect to the admissibility
of evidence and the enhancement of sentences,
that required the exercise of a great deal of
discretion.
After thorough review of the record, this panel
believes that the district judge should have
recused himself under 28 U.S.C. sec. 455(a). Only
our rigid adherence to a procedural rule not
followed in any other circuit and in significant
tension with the decisions of the Supreme Court
of the United States prevents our giving the
relief that, under the prevailing national
standards, would be granted. See, e.g., United
States v. Bremers, 195 F.3d 221 (5th Cir. 1999)
(vacating conviction because trial judge should
have recused himself under sec.455(a)); Cooley, 1
F.3d at 998 (same); United States v. Brown, 539
F.2d 467 (5th Cir. 1976) (same). See also United
States v. Waskom, 179 F.3d 303, 315-16 (5th Cir.
1999) (vacating sentence in guilty plea case even
in the absence of specific allegation of
sentencing error because trial judge should have
recused himself); United States v. Reyes, 160
F.3d 258, 259 (5th Cir. 1998) (vacating sentence
in guilty plea case because of failure to
recuse).
The majority characterizes the defendants’
reference to the earlier mandamus proceeding as a
waiver of the argument that mandamus should not
be the only available remedy. The defendants
state: "Defendants appeal the denial of recusal
under 28 U.S.C. sec.sec. 144 and 455(b). The
motion for recusal under 28 U.S.C. sec. 455(a)
could only be, and was, appealed by mandamus."
Appellant’s br. at 49. This was sufficient to put
this court on notice of our rule that only
mandamus relief is available under sec. 455(a).
It is indeed a parsimonious reading of this
statement to characterize it as a knowing and
intelligent waiver. Far from ignoring the issue,
the defendants specifically brought it to our
attention. Because the defendants raised the
matter, and clearly have maintained throughout
this litigation that recusal under sec. 455(a)
was required, this court should not be restrained
from reconsidering in this case our position on
the issue./1
Moreover, even if the defendants did not raise
this issue, we are in no way precluded from
raising it on our own in the interests of
justice. The Supreme Court has acknowledged that
it often decides cases on issues other than those
argued fully by the parties:
"On a number of occasions, this Court has
considered issues waived by the parties below and
in the petition for certiorari because the issues
were so integral to decision of the case that
they could be considered ’fairly subsumed’ by the
actual questions presented." Gilmer v.
Interstate/Johnson Lane Corp., 500 U.S. 20, 37,
111 S. Ct. 1647, 114 L. Ed. 2d 26 (1991) (Stevens,
J., dissenting) (citing cases). The court has not
always confined itself to the set of issues
addressed by the parties.
Kolstad v. American Dental Assoc., 119 S. Ct.
2118, 2127 (1999). The Court has also
specifically instructed the courts of appeals
that they, too, may raise issues on their own
initiative:
The matter of what questions may be taken up and
resolved for the first time on appeal is one left
primarily to the discretion of the courts of
appeals, to be exercised on the facts of
individual cases. We announce no general rule.
Certainly there are circumstances in which a
federal appellate court is justified in resolving
an issue not passed on below, as where the proper
resolution is beyond any doubt, or where
injustice might otherwise result.
Singleton v. Wulff, 428 U.S. 106, 121 (1976)
(citations and quotations omitted); see also
Niedert v. Rieger, 200 F.3d 522, 527 (7th Cir.
1999) (quoting Singleton); United States v.
Brown, 739 F.2d 1136, 1145 (7th Cir. 1984)
(same).
Prior to Singleton, the Ninth Circuit explained
the circumstances that might motivate a court of
appeals to address a matter without the benefit
of full briefing by the parties:
There is . . . no rigid and undeviating
judicially declared practice under which courts
of review invariably and under all circumstances
decline to consider all questions which have not
previously been specifically urged. Indeed there
could not be without doing violence to the
statutes which give federal appellate courts the
power to modify, reverse or remand decisions as
may be just under the circumstances. Exceptional
cases or particular circumstances may prompt a
reviewing court, where injustice might otherwise
result or where public policy requires, to
consider questions neither pressed nor passed
upon below.
Nuelsen v. Sorensen, 293 F.2d 454, 462 (9th Cir.
1961) (citation and quotations omitted)./2 As we
did in Niedert and Brown, and as the Ninth
Circuit did in Nuelsen, so too have other
circuits acknowledged that they may, when justice
requires it, raise critical issues of law sua
sponte./3 The Ninth Circuit wisely cautioned
that this power must be "exercised sparingly."
Nuelsen, 293 F.2d at 462. This case, however, is
the sort of exceptional case that casts new light
on procedures previously taken for granted.
If we may sua sponte raise and decide
substantive questions of law, then surely we have
the power to sua sponte alter the procedures we
ask litigants to follow in their efforts to seek
resolution of their substantive questions of law.
It is well settled that stare decisis has less
effect in the context of procedural rules, which
do not serve as a guide to lawful behavior. See
Hohn v. United States, 524 U.S. 236, 251-52
(1998); United States v. Gaudin, 515 U.S. 506,
521 (1995).
The prosecution of the El Rukn crime
organization has been a deeply troubling episode.
Chief Judge Aspen presided over the first trial
of this particular case, and, in ordering a
retrial, described the situation as tragic,
noting that the prosecutorial misconduct in the
case had wasted years of hard work by the courts,
prosecutors, and law enforcement officers. See
United States v. Boyd, 833 F. Supp. 1277, 1281
(N.D. Ill. 1993), aff’d, 55 F.3d 239 (7th Cir.
1995). Two other El Rukn trials were also
declared mistrials. See United States v. Andrews,
824 F. Supp. 1273 (N.D. Ill. 1993); United States
v. Burnside, 824 F. Supp. 1215 (N.D. Ill. 1993).
As the judiciary was quick to correct an abuse of
power in another branch of government after the
first trial, it also ought to be willing to
correct an error in its own house--even one made
in good faith--so that the public can have
confidence that, even in the most notorious of
criminal cases, the evenhandedness of the
judicial process is above reproach.
It is time for us to join the rest of the
Country and permit review by appeal of a failure
to recuse under sec. 455(a). I would vacate the
judgments of conviction and order a new trial.
/1 When a party does not make a fully formed
argument that we should overrule our earlier
precedent to align ourselves with other courts,
the court may consider the argument waived. See
United States v. Martin, 195 F.3d 961, 967 (7th
Cir. 1999). Waiver is not mandatory, of course,
but instead, appellate courts have the discretion
to find that arguments are waived. See, e.g.,
Smith v. Freeman, 892 F.2d 331, 337 n.12 (3d Cir.
1989) (collecting cases). We are therefore under
no obligation to avoid this question.
/2 See also All Care Nursing Serv., Inc. v. Bethesda
Mem. Hosp., 887 F.2d 1535, 1538 n.3 (11th Cir.
1989) (quoting Nuelsen); Boals v. Gray, 775 F.2d
686, 691 (6th Cir. 1985) (same); Cohen v. West
Haven Bd. of Police Comm’rs, 638 F.2d 496, 500
n.6 (2d Cir. 1980) (citing Nuelsen); McKissick v.
United States, 379 F.2d 754, 759 (5th Cir. 1967)
(quoting Nuelsen).
/3 See Curry v. Beatrice Pocahontas Coal Co., 67
F.3d 517, 522 n.8 (4th Cir. 1995) ("The normal
rule of course is that the failure to raise an
issue for review in the prescribed manner
constitutes a waiver. But the rule is not an
absolute one and review may proceed (even
completely sua sponte) when the equities
require." (citation omitted)); Lambert v. Genesee
Hosp., 10 F.3d 46, 56 (2d Cir. 1993) ("However,
we have discretion to consider and decide sua
sponte a dispositive issue of law."); Counts v.
Kissack Water & Oil Serv., Inc., 986 F.2d 1322,
1325-26 (10th Cir. 1993) ("Although it is rarely
done an appellate court may, sua sponte, raise a
dispositive issue of law when the proper
resolution is beyond doubt and the failure to
address the issue would result in a miscarriage
of justice.").