Nettles, Gale v. Bucklo, Elaine ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-4104
IN RE: GALE NETTLES,
Petitioner.
____________
Petition for Writ of Mandamus to the
United States District Court for the
Northern District of Illinois, Eastern Division.
No. 04 CR 699—Elaine E. Bucklo, Judge.
____________
SUBMITTED DECEMBER 8, 2004—DECIDED JANUARY 21, 2005
____________
Before POSNER, RIPPLE, and SYKES, Circuit Judges.
POSNER, Circuit Judge. After allegedly purchasing ammo-
nium nitrate fertilizer from an undercover FBI agent and
selling it to another undercover agent, who was posing as a
terrorist, Gale Nettles was charged with several federal crimes,
including attempting to damage and destroy a federal build-
ing, 18 U.S.C. § 844(f)(1)—namely the Dirksen Courthouse in
downtown Chicago, the site of the federal courts in Chicago,
including the United States District Court for the Northern
District of Illinois. The case was assigned to Judge Bucklo of
that court. Nettles moved to recuse her and the other judges of
the court on the ground that since the plot involved a threat to
the judges’ safety, a trial presided over by any one of them
would create an appearance of bias. 28 U.S.C. § 455(a).
2 No. 04-4104
Although the government supported the motion, Judge Bucklo
denied it on the ground there had never been “any real dan-
ger” of damage to the building and she had no “actual fear of
harm” that might influence her rulings in the case.
The petition for mandamus seeks recusal of Judge Bucklo
and the other judges of the Northern District on the ground
that a reasonable observer would think there was “a signifi-
cant risk that the judge will resolve the case on a basis other
than the merits.” Hook v. McDade, 89 F.3d 350, 354 (7th Cir.
1996). We must bear in mind that “these outside observers are
less inclined to credit judges’ impartiality and mental disci-
pline than the judiciary itself will be.” In re Mason, 916 F.2d
384, 386 (7th Cir. 1990). Although the federal court of appeals
for this circuit also resides in the Dirksen Courthouse, our
recusal from considering the petition is not sought. But we will
have to take up the question of our recusal at the end of this
opinion.
The cases (none in this court) that have addressed the issue
of recusal based on threats have held that a threat to a judge
that appears to be genuine and not just motivated by a desire
to recuse the judge requires recusal. United States v. Yousef, 327
F.3d 56, 170 (2d Cir. 2003); Nichols v. Alley, 71 F.3d 347 (10th
Cir. 1995); United States v. Greenspan, 26 F.3d 1001, 1006-07
(10th Cir. 1994); United States v. Cooley, 1 F.3d 985, 993-94 (10th
Cir. 1993). This is such a case. According to the indictment,
Nettles, while serving a two-year prison sentence imposed by
a judge of the Northern District, told a fellow prisoner that he
wanted to destroy the Dirksen Courthouse, killing or injuring
its occupants, by means of a truck bomb. The prisoner re-
ported the threat, and the FBI gave him a phone number, to
give Nettles, of a purported supplier of ammonium nitrate.
Upon his release from prison Nettles called the number and
made arrangements for the purchase—from an undercover FBI
agent, of course—for resale to a purported terrorist (another
undercover agent) who seemed willing and able to use it to
No. 04-4104 3
destroy the building. Te-Ta-Ma Truth Found.—Family of URI,
Inc. v. World Church of the Creator, 246 F.Supp. 2d 980 (N.D. Ill.
2003). Since no proceedings against Nettles were pending in
the Northern District, his actions could not have been taken
with recusal, or some other tactic that might delay or derail a
case against him, in mind.
Of course the actual threat to the Dirksen Courthouse was
nil because Nettles’s accomplices were federal agents. But the
next time he might be more careful and succeed in his aim. A
reasonable observer would think that a judge who works in
the Dirksen building would want Nettles to be convicted and
given a long sentence, rather than to be set free, either forth-
with or sooner rather than later, to make another attempt to
destroy the courthouse or its occupants. It is true that if Nettles
is innocent, and therefore not a threat, the judge’s incentive to
convict him would be eliminated or at least attenuated. But (it
might appear to the reasonable, but outside, observer of the
judicial system) a judge might be convinced of Nettles’ guilt
yet concerned that a jury might acquit him, and might there-
fore rule against him on evidentiary and procedural issues,
regardless of the merits. And innocence is not the only
question in a criminal trial; the length of the sentence is
another, and it is a question on which the judge retained
significant discretion under the federal sentencing guidelines
even before United States v. Booker, 2005 WL 50108 (Jan. 12, 2005).
We do not suggest that Judge Bucklo would in fact be pre-
judiced against Nettles. The issue is appearances. With reluc-
tance we conclude that Nettles is entitled to a writ of manda-
mus directing the recusal of Judge Bucklo and any other judge
of the Northern District.
However, there is a further issue to consider. Although as
we said Nettles has not asked us to recuse ourselves from rul-
ing on his petition for mandamus, he did ask the district judge
not only to recuse herself but, before doing so, to transfer the
case to another circuit, so that the appellate judges in the
4 No. 04-4104
Dirksen Courthouse would not decide any appeals in his
criminal case. The petition for mandamus does not discuss the
transfer issue directly, but does refer to the arguments that
Nettles made in the motion he filed in district court, including
the argument that the judges of this court would appear pre-
judiced if we were to hear his appeal. Although we feel our-
selves to be no more prejudiced against Nettles than Judge
Bucklo does, a reasonable observer might conclude that,
should he be convicted and sentenced, and appeal, he would
no more get a fair shake in our court that he would in the
district court, since the appellate judges in this courthouse are
as menaced by an Oklahoma City style attack as the district
judges.
No purpose would be served by requiring Nettles to renew
his transfer motion in the district court, before a judge brought
in from outside the Northern District, or to make a subsequent
motion to recuse the members of this court. A more efficient
method of proceeding is for us to recuse ourselves now, to be
replaced by judges from other circuits who will be designated
to hear any further proceedings instituted by Nettles in this
court.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-21-05