United States v. Markette Tillman

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-10131
Plaintiff-Appellee,
D.C. No.
v. 2:08-cr-00283-
RCJ-PAL-3
MARKETTE TILLMAN, AKA Ketty P,
Defendant-Appellant,
OPINION
and
JOHN R. GRELE,
Appellant.
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Argued and Submitted
March 13, 2014—San Francisco, California
Filed June 30, 2014
Before: J. Clifford Wallace, M. Margaret McKeown,
and Ronald M. Gould, Circuit Judges.
Opinion by Judge McKeown
2 UNITED STATES V. TILLMAN
SUMMARY*
Criminal Law
The panel dismissed criminal defendant Markette
Tillman’s interlocutory appeal of an order removing John R.
Grele as Tillman’s counsel, granted Grele’s mandamus
petition challenging the district court’s order sanctioning
Grele and referring him to the California State bar for
disciplinary proceedings, and vacated the district court’s
sanctions order.
The panel held that under Flanagan v. United States, 465
U.S. 259 (1984), this court lacks jurisdiction over Tillman’s
claim that counsel was improperly removed, where the
removal order is nonfinal and not immediately appealable,
and Tillman has the opportunity to raise this issue on direct
appeal.
The panel held that mandamus jurisdiction is appropriate
to consider the sanctions order because it had an immediate
impact on Grele and continues to affect his professional
reputation as learned counsel in capital proceedings. The
panel held that the district court erred in imposing sanctions
without notice and a hearing, and that the order should be
vacated.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. TILLMAN 3
COUNSEL
John R. Grele (argued), Tiburon, California, for Defendant-
Appellant and Appellant.
Daniel G. Bogden, United States Attorney, Elizabeth Olson
White (argued), Appellate Chief and Assistant United States
Attorney, Office of the United States Attorney, District of
Nevada, Reno, Nevada, for Plaintiff-Appellee.
OPINION
McKEOWN, Circuit Judge:
This case highlights the tension between judicial efforts
to control costs of appointed counsel, the defendant’s
constitutional right to have counsel appointed, counsel’s
reliance on timely payment of Criminal Justice Act (“CJA”)
vouchers, and the delays often present in processing vouchers
for payment. In this unusual interlocutory appeal, John R.
Grele and his former client, Markette Tillman, appeal an
order removing Grele as counsel, sanctioning him, and
referring him to the California State bar for disciplinary
proceedings. Under Flanagan v. United States, 465 U.S. 259
(1984), we lack jurisdiction over Tillman’s claim that counsel
was improperly removed. The removal order is nonfinal and
not immediately appealable; Tillman has the opportunity to
raise this issue on direct appeal, if there is one. Grele’s
petition as to the sanctions order presents a different question,
however, because the improper sanctions order not only had
an immediate impact on Grele but continues to affect his
professional reputation as learned counsel in capital
proceedings. We conclude that mandamus jurisdiction is
4 UNITED STATES V. TILLMAN
appropriate to consider the sanctions order, that the district
court erred in imposing sanctions without notice and a
hearing, and that the order should be vacated.
FACTUAL AND PROCEDURAL BACKGROUND
Tillman was charged with conspiracy to engage in a
racketeer-influenced corrupt organization, in violation of
18 U.S.C. § 1962(d), and other, related offenses in the
District of Nevada along with several codefendants. Pursuant
to the Federal Death Penalty Act of 1994, 18 U.S.C. § 3591
et seq., the indictment included special findings regarding an
alleged murder. Grele was appointed pro hac vice as counsel
“learned in the law applicable to capital cases” pursuant to
18 U.S.C. § 3005 and the CJA, 18 U.S.C. § 3006A. Although
the Department of Justice ultimately declined to seek the
death penalty, Grele remained Tillman’s attorney.
Nearly five years after the filing of the indictment, Grele
began an exchange with the court regarding payment of his
CJA vouchers. On February 14, 2013, Grele sent an e-mail
to a financial specialist at the court. The e-mail stated:
I see that the judge has still not signed the
voucher although he signed others that were
before him at the same time several weeks
ago. As I have had no communications
regarding the voucher, I assume it is fine,
otherwise I would have heard something by
now. I’m sorry to have to suspend work on
the case, including any efforts to resolve the
case by way of plea, but that appears to be
what I have to do to be able to work on paying
UNITED STATES V. TILLMAN 5
matters and meet my financial obligations to
my family.
Having reviewed Grele’s e-mail to the financial specialist, the
judge wrote back in a February 20 e-mail to Grele:
You must be aware . . . that you cannot
withdraw from such representation without
approval of the District Court under our rules,
and only upon a showing of good cause. Your
suggestion below that you would suspend
work or other efforts on this case, for
whatever reason, without prior Court
approval, violates our rules, is contrary to
ethical standards for both the Nevada and
California Bars, and violates your obligation
to provide effective and competent
representation to the Defendant.
Grele responded immediately:
Thank you, Your Honor, for the opportunity
to set the record straight regarding CJA
matters in this case. The Court may rest
assured that I would file a notification and ask
to appear before I completely halted work on
this or any other matter. . . .
The Court may wish to familiarize itself with
the 10 pending CJA requests in this case. . . .
The Court may also wish to familiarize itself
with the Guide to Judiciary Policy, vol. 7,
chapter 2, section 230.13(b), which requires
6 UNITED STATES V. TILLMAN
payment within 30 days of submission of
counsel’s voucher.
The court then set a status hearing, which it characterized
as a “hearing regarding the continued representation” of
Tillman by Grele. The hearing focused almost entirely on
budget issues. Grele “expressed concerns regarding the
court’s timely signature of his [CJA] vouchers and payment
thereof.” The district judge expressed concern about
excessive billing by Grele, his paralegal, and his investigators
noting that the total bill was “approaching a million dollars.”
The court first noted its concern with the overall level of
billing in light of its review of an annual list of cases and
expenditures provided by the Ninth Circuit, which has
oversight authority over certain aspects of CJA expenses.
However, as the court noted, “[t]hat’s not an indication from
the Circuit that they’re displeased, or that there’s a problem,
or that you’re overbilling . . . we just need to be circumspect
and careful.” The court apologized because in rejecting
several vouchers, the court “went beyond the time that Mr.
Grele was normally relying upon to get his vouchers handled
and paid, and [Grele] wanted to note that to [the financial
specialist].”
A second concern related to further budget requests for
investigators and for a second attorney. After some
discussion, the court said it would approve a new voucher for
certain expert and investigation fees.
The final concern related to Grele’s February 14, 2013 e-
mail, which the judge acknowledged was transmitted in
accord with local rules and was appropriate under the
circumstances. The questions the judge raised were whether
UNITED STATES V. TILLMAN 7
Grele was “providing . . . effective assistance to the best of
[his] ability,” and whether he would give the court his
“reassurance that [he] will devote full time in [his] judgment
necessary to provide effective and competent counsel to Mr.
Tillman.” Grele responded, “[t]hat is my hope and effort,
[Y]our Honor.”
Following that exchange, there was a lengthy discussion
about the complexity of the case, the request for second
counsel, and the overall budget for the case. Grele promised
to consider how he could reduce the budget.
Later in the hearing, when asked if he was “withdrawing
from the case,” Grele explained that although his e-mail was
inelegantly phrased, he “did not mean it that way,” and he
was not, as the judge put it, “withdrawing from the case . . .
temporarily, if not permanently, until the vouchers were
paid.” Grele also explained that the statement in his e-mail
regarding suspension of work on the case was “supposedly []
prospective” because of the “position [he had] been placed
in.” The court repeatedly asked Grele for his “assurance” that
he would provide effective assistance of counsel to the best
of his ability. Grele attempted to explain that “if there is
delay of payment, it puts me in a conflict position . . . . For
instance, if the [c]ourt does not approve investigative funding,
which it did not, no lawyer would — no matter how good
their efforts are, would be considered to be competent. But
that’s not the lawyer’s fault. The lawyer is doing whatever
the lawyer can, and that’s the fault of the system . . . .”
The district court told Grele that he could not withdraw
from the case because he did not get “a voucher paid right
exactly on time.” The court found that “part of Mr. Grele’s
motivation here is to set it up for [a] 2255 [motion] and/or set
8 UNITED STATES V. TILLMAN
it up for delay or severance,” and the judge stated that he
would remove Grele as counsel if he could not assure the
court that he would provide “competent, effective assistance
to Mr. Tillman.” Grele later responded, “[i]f I get paid in a
timely fashion, I can represent [that] I can provide effective
assistance of counsel.” He also stated, “I make the assurance
that I will do my best for Mr. Tillman, and I have done my
best for Mr. Tillman . . . .” The district court nonetheless
concluded, “[B]asically what you’re doing is you’re extorting
the [c]ourt.”
Later that day, the district court entered an order
containing the following factual findings:
1. Mr. Grele was attempting to extort the
court by delay or withdraw[al] of
representation into prioritizing the signature
of his vouchers and the approval of
extraordinary and inappropriate budget
requests and voucher requests for counsel,
second counsel, paralegal, investigators and
forensic experts;
2. Mr. Grele was violating his ethical
obligations of representation to a client;
3. Mr. G[r]ele was attempting to manufacture
an ineffective assistance of counsel claim on
behalf of the Defendant; and
4. Mr. Grele had threatened and in fact had
delayed or withdrawn from representation in
certain respects, all without the approval of
the court as required by local rule.
UNITED STATES V. TILLMAN 9
Finally upon the court’s requests for assurance
that Mr. G[r]ele would provide effective
assistance and competent representation of the
defendant going forward through trial
proceedings, Mr. Grele refused to give such
assurance.
The district court directed that a copy of the order “be
referred to the State of California Bar Association for
violation of Mr. Grele’s ethical obligations under professional
code, for abandonment of representation of his client . . .
without prior court approval.”
New counsel was appointed for Tillman. In proceedings
following Grele’s removal, the district court stated that Grele
was part of a coordinated strategy by criminal defense
attorneys to delay capital proceedings in order to wear down
the government’s will to pursue capital punishment.
Because of the court’s trial schedule, the district judge
recused himself and requested reassignment to a different
judge. This matter has been reassigned, and trial is pending.
The State of California Bar Association dismissed the
referral at the investigatory stage. As Grele represented at
oral argument on appeal, the bar “ha[s] determined not to go
forward” with any discipline.
ANALYSIS
I. Disqualification of Counsel
The question of jurisdiction over Tillman’s interlocutory
appeal of the nonfinal order disqualifying and removing Grele
10 UNITED STATES V. TILLMAN
as his counsel falls squarely within the Supreme Court’s
decision in Flanagan, 465 U.S. 259. The final judgment rule,
which ordinarily limits appeals to final decisions, has
particular force in the field of criminal law. Cobbledick v.
United States, 309 U.S. 323, 325–26 (1940). The Supreme
Court has established three conditions for a collateral appeal
of a nonfinal order: “First, [the order] must conclusively
determine the disputed question; second, it must resolve an
important issue completely separate from the merits of the
action; third, it must be effectively unreviewable on appeal
from a final judgment.” Flanagan, 465 U.S. at 265 (quoting
Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978))
(internal quotation marks omitted).
In Flanagan, the Supreme Court held that “[a]n order
disqualifying counsel lacks the critical characteristics that
make orders . . . immediately appealable.” 465 U.S. at 266.
The Court reasoned that a judgment of acquittal or a direct
appeal could vindicate the defendant’s right to a certain
counsel. Id. at 267. The Court also determined that a
disqualification order “is not independent of the issues to be
tried,” and that “[i]ts validity cannot be adequately reviewed
until trial is complete” because it requires an evaluation of
prejudice to the defendant. Id. at 268–69. Under Flanagan,
we lack jurisdiction over the disqualification of counsel order.
Tillman argues that despite Flanagan we have pendent
appellate jurisdiction to review collaterally the order
disqualifying Grele as counsel because it is “inextricably
intertwined” with the sanctions order over which we have
jurisdiction. “Pendent appellate jurisdiction refers to the
exercise of jurisdiction over issues that ordinarily may not be
reviewed on interlocutory appeal, but may be reviewed on
interlocutory appeal if raised in conjunction with other issues
UNITED STATES V. TILLMAN 11
properly before the court . . . [and] if the rulings were
‘inextricably intertwined’ or if review of the pendent issue
was necessary to ensure meaningful review of the
independently reviewable issue.” Cunningham v. Gates,
229 F.3d 1271, 1284 (9th Cir. 2000). We decline to exercise
pendent appellate jurisdiction over the disqualification of
counsel appeal because although the orders are “intertwined,”
they are not “inextricably” so. See id. (“We have consistently
interpreted ‘inextricably intertwined’ very narrowly.”). The
validity of the disqualification order may be addressed either
through a judgment of acquittal or a direct appeal, if there is
one. We also decline to grant the petition for a writ of
mandamus for the disqualification order because other
avenues exist to vindicate Tillman’s right to a particular
counsel. See Cole v. U.S. Dist. Court for Dist. of Idaho,
366 F.3d 813, 822–23 (9th Cir. 2004). We therefore dismiss
Tillman’s appeal from the disqualification of counsel order
for lack of jurisdiction.
II. Sanctions Order Against Grele1
Grele challenges the district court’s order as an improper
sanction and requests that we exercise mandamus jurisdiction
to vacate the order. The district court’s order made factual
findings and “reached a legal conclusion that [Grele]
knowingly and wilfully violated a specific rule of ethical
1
The government advocated for dismissal of Tillman’s appeal under
Flanagan, but took no position with respect to Grele’s appeal. In its brief,
the government recognized “the importance that appointed defense
attorneys operate independently of the prosecution,” and that “federal law
and administrative policy has long precluded participation by the U.S.
Attorney’s Offices in CJA-related matters.” It took the same position with
respect to the court’s supervisory authority over the matter of Grele’s
discipline.
12 UNITED STATES V. TILLMAN
conduct. Such a finding, per se, constitutes a sanction.”
United States v. Talao, 222 F.3d 1133, 1138 (9th Cir. 2000).
We construe Grele’s portion of the appeal as a petition for a
writ of mandamus. See Hernandez v. Tanninen, 604 F.3d
1095, 1099 (9th Cir. 2010) (“We may treat an appeal from an
otherwise nonappealable order as a petition for a writ of
mandamus.”); Stanley v. Woodford, 449 F.3d 1060, 1062 (9th
Cir. 2006) (holding that under 28 U.S.C. § 1291, the court
lacked “appellate jurisdiction to entertain a prejudgment
appeal of an order imposing sanctions on a non-party attorney
[who] no longer represent[ed] any party in the underlying
case . . . .”). Cf. Talao, 222 F.3d at 1137 (stating in
mandamus action that a prejudgment sanctions order was “an
appealable sanction”). We exercise our mandamus
jurisdiction, grant the petition, and vacate the order.
Under 28 U.S.C. § 1651, this court has “the power to
issue a writ of mandamus in aid of its appellate jurisdiction.”
California v. Mesa, 813 F.2d 960, 962 (9th Cir. 1987) (citing
Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 25 (1943)); see
28 U.S.C. § 1651(a) (providing that federal courts “may issue
all writs necessary or appropriate in aid of their respective
jurisdictions and agreeable to the usages and principles of
law.”). Mandamus is a “drastic and extraordinary remedy
reserved for really extraordinary causes.” In re Van Dusen,
654 F.3d 838, 840 (9th Cir. 2011) (internal quotation marks
omitted).
Our court considers five factors (the “Bauman factors”)
to evaluate whether to exercise mandamus jurisdiction:
(1) [W]hether the petitioner has other
adequate means, such as a direct appeal, to
attain the relief he or she desires; (2) whether
UNITED STATES V. TILLMAN 13
the petitioner will be damaged or prejudiced
in a way not correctable on appeal;
(3) whether the district court’s order is clearly
erroneous as a matter of law; (4) whether the
district court’s order makes an oft-repeated
error, or manifests a persistent disregard of
the federal rules; and (5) whether the district
court’s order raises new and important
problems, or legal issues of first impression.
In re Van Dusen, 654 F.3d at 841 (quoting Bauman v. U.S.
Dist. Court, 557 F.2d 650, 654–55 (9th Cir. 1977)) (internal
quotation marks omitted). “A petitioner need not establish all
five factors, and we will weigh the factors together based on
the facts of the individual case.” United States v. Fei Ye,
436 F.3d 1117, 1122 (9th Cir. 2006) (internal citation
omitted).
The first factor regarding alternative means to obtain
relief weighs in favor of granting the writ. The sanctions
order and the disqualification order are intertwined. Because
the disqualification order itself is not collaterally appealable,
see Flanagan, 465 U.S. at 267, if Tillman accepts a plea
agreement or is acquitted, it is unlikely that the removal order
will ever be reviewed. Cf. Fei Ye, 436 F.3d at 1123 (granting
government’s petition for a writ of mandamus in part in light
of the fact that the error would not be reviewable on appeal
because if the defendants were acquitted double jeopardy
would bar the appeal, and if they were convicted there would
be no prejudice). As to the sanctions portion of the order,
there is no other avenue for relief from the immediate and
ongoing harm to Grele’s professional reputation.
14 UNITED STATES V. TILLMAN
This continuing harm also tilts the second Bauman factor,
whether the petitioner will be damaged or prejudiced in a way
that is not correctable on appeal, in favor of exercising our
mandamus jurisdiction. As Grele represented at oral
argument on appeal, the continued existence of the order has
collateral effects on his reputation and professional
endeavors. He is “a death penalty specialist” who has been
qualified as learned counsel in many districts, and his ability
to participate in capital proceedings is critical to his clients
and to his own livelihood. Grele represents that judges have
already questioned him about the ethical implications of the
order entered in this case. The order was also referenced in
the district court’s publicly-available opinion denying
Tillman’s speedy trial motion, which memorializes the
court’s concern that Grele would not competently represent
Tillman.2
We agree that the existence of the sanctions order may
influence judges to think twice before appointing Grele as
counsel, despite his qualifications. Although the damage is
2
The substance of the court’s discussion of the sanctions order is as
follows:
The recent seven-month delay due to the latest
continuance from April 2013 to November 2013, which
delay cannot be attributed to Defendant, was a result of
the [c]ourt’s concern that Defendant’s previous counsel
would not competently represent him. Although
Tillman initially verbally objected at the hearing where
the [c]ourt disappointed Attorney Grele, Tillman has
since asked the [c]ourt to continue the trial at least three
more times.
United States v. Tillman, No. 08-CR-00283, 2013 WL 5741414, at *2 (D.
Nev. Oct. 22, 2013).
UNITED STATES V. TILLMAN 15
already done in part, there is no reason to prolong it; through
mandamus we can offer Grele some relief.
Lawyers do not have a ready “toolkit” for their
profession. Instead, their professional reputations are the
essence of their livelihood. Reputations matter—to the court,
to clients, to colleagues, and to the public. In a specialized
arena, such as criminal defense, the professional circle is even
more circumscribed. Appointed lawyers representing
indigent clients in federal cases rely on public funds which,
in turn, are controlled in part by the judiciary. To be sure, the
judiciary and the lawyers have an obligation to be stewards of
CJA funds. But this oversight should not trade off with the
rights of clients. Nor should such supervision ignore the
practical reality that inordinate delays in processing CJA
vouchers stretch lawyers to their economic limits.
Most importantly, the third Bauman factor, whether the
district court’s order was clearly erroneous, weighs in favor
of granting the writ of mandamus. See Cole, 366 F.3d at 820
(“Absence of this factor is often dispositive of the petition.”).
After Grele spent years as Tillman’s counsel, the district
court improperly removed him for highlighting a problem
with the voucher payments, which the district court admitted
were untimely, and the court did so without giving Grele any
notice or opportunity to be heard.
The Supreme Court has plainly stated that it “do[es] not
consider a lawyer’s criticism of the administration of the
[CJA] . . . cause for discipline or suspension.” In re Snyder,
472 U.S. 634, 646 (1985). The Court has approved of letters
from counsel to “a court employee charged with
administrative responsibilities . . . concern[ing] a practical
matter in the administration of the [CJA].” Id. Grele’s e-
16 UNITED STATES V. TILLMAN
mails to the financial specialist and the judge brought to the
court’s attention problems with the administration of the CJA,
namely with regard to timely voucher payments. “Officers of
the court may appropriately express criticism on such
matters.” Id. The statements for which Grele was sanctioned
did not merit any sanction under Supreme Court precedent.
Grele’s critique, whether or not justified, was not, as the
district court suggested, tantamount to extortion.
The district court’s determination of an ethical violation,
its disqualification order, and its referral to the state bar
without giving Grele any notice or opportunity to be heard
violated our clearly established law: “Ninth Circuit law does
not permit a summary disqualification of counsel; for the
court to sanction an attorney, procedural due process requires
notice and an opportunity to be heard.” Cole, 366 F.3d at 821
(citing Pac. Harbor Capital, Inc. v. Carnival Air Lines, Inc.,
210 F.3d 1112, 1118 (9th Cir. 2000)). Cf. Martens v.
Thomann, 273 F.3d 159, 175 (2d Cir. 2001) (“[R]evocation
of pro hac vice status is a form of sanction that cannot be
imposed without notice and an opportunity to be heard.”).
The district court clearly erred in summarily issuing the
sanctions order without giving Grele notice and an
opportunity to be heard, particularly over Grele’s
representations that he never ceased working on the case and
that he would “provide effective assistance of counsel” and
do his “best for Mr. Tillman.”
What began as a status hearing about an e-mail exchange
over vouchers ballooned into a full-blown hearing on attorney
sanctions. Nothing in the notice of the hearing gave even a
hint that the hearing would be directed to topics as
wide-ranging as violation of attorney ethics, extortion, and
manufacturing an ineffective assistance of counsel claim.
UNITED STATES V. TILLMAN 17
The question here is not one of interpretation of fair notice;
the reality is that, contrary to our precedent, there was no
notice. See Cole, 366 F.3d at 821.
During the hearing, despite Grele’s efforts to explain what
had occurred regarding the payment of vouchers, the judge
kept pressing him and said he would have to replace him as
counsel unless Grele could assure the court “that he will
provide effective assistance come hell or high water.” Time
and again, Grele said, “I gave you my assurance that I would
represent Mr. Tillman to my fullest capabilities. I gave you
that assurance.” He also explained that “there are external
features of the case” that affect competence and went on to
note that a lack of investigative funding could not be the
lawyer’s fault.
The court’s post-hearing findings went beyond what was
addressed at the hearing, and Grele had no opportunity to be
heard on those findings. For example, the court found that
Grele “had threatened and in fact had delayed or withdrawn
from representation in certain respects” without court
approval. The record does not support such a finding. Grele
had not stopped work on the case, and he specifically
represented that he would never withdraw without court
approval. Likewise, the court’s finding that Grele was
attempting “to extort the court” by seeking approval of
“inappropriate budget requests” is totally at odds with a
rational discussion between the court and counsel about the
budget and Grele agreeing to try to fit into the budget. Other
findings are similarly flawed.
As the hearing wore on, the district court began raising
questions of whether there were ethical violations involving
Grele, none of which were part of any pre-hearing notice. It
18 UNITED STATES V. TILLMAN
is fair to say that both Grele and the court were frustrated by
voucher issues, but this circumstance was hardly a
justification for a harsh attack on court-appointed defense
attorneys. For decades, the administration of the CJA has
been a source of tension between CJA attorneys and the
judges tasked with overseeing the CJA program. See, e.g.,
F.T.C. v. Superior Court Trial Lawyers Ass’n, 493 U.S. 411
(1990) (suit involving a group of attorneys in the District of
Columbia who planned a strike to increase compensation
under the CJA). Indeed, reluctance to provide adequate
funding for CJA attorneys, at times, has created “difficulty in
attracting qualified attorneys to act as court-appointed
counsel for the indigent.” Richard Klein, The Eleventh
Commandment: Thou Shalt Not Be Compelled to Render the
Ineffective Assistance of Counsel, 68 Ind. L.J. 363, 365
(1993). “[M]ajor empirical studies unanimously have
concluded that inadequate funding stands as the most
prominent barrier to the provision of effective assistance of
counsel.” Albert L. Vreeland, II, Note, The Breath of the
Unfee’d Lawyer: Statutory Fee Limitations and Ineffective
Assistance of Counsel in Capital Litigation, 90 Mich. L. Rev.
626, 641 (1991). Grele’s statements to the district court
merely echoed these critiques and offered a personal
example; they were not, however, “cause for discipline.” See
Snyder, 472 U.S. at 646.
Of particular concern is the court’s broad statement
regarding the criminal defense bar, claiming that Grele was
“part and parcel” of a coordinated “strategy” by criminal
defense attorneys to “kill the motivation of the U.S.
Attorney” so that the government would capitulate on capital
punishment. Notably, this charge was offered with no
foundation; it unfairly implicates attorneys who represent
UNITED STATES V. TILLMAN 19
defendants in the most difficult cases and unfairly suggests
that U.S. Attorneys would cave to such pressures.
The district court’s order was a clear violation of well-
established principles governing the removal of counsel and,
hopefully, was directed solely at one individual attorney.
Therefore, “it is likely not an ‘oft-repeated’ error,” nor does
it present a novel question. Fei Ye, 436 F.3d at 1124.
Accordingly, the fourth and fifth Bauman factors do not
weigh in favor of granting the petition.
The balance of the factors, particularly satisfaction of the
clear error factor, weighs in favor of granting the petition for
a writ of mandamus. See Douglas v. U.S. Dist. Court for
Cent. Dist. of Cal., 495 F.3d 1062, 1066 (9th Cir. 2007)
(noting that “all five factors need not be satisfied at once” to
grant mandamus relief (citation omitted)). The petitioner has
made a “clear and indisputable” case that he is entitled to the
writ. See Kerr v. U.S. Dist. Court for N. Dist. of Cal.,
426 U.S. 394, 403 (1976). We grant the petition and vacate
the order.
The parties shall bear their own costs on appeal.
DISMISSED in part; VACATED in part; GRANTED
in part.