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In re United States, No. 09-2264 (7th Cir. 07/10/2009).

The United States (“the Government”) has filed this petition for a writ of mandamus seeking the recusal of the respondent district judge currently presiding over a criminal action pending in the United States District Court for the Eastern District of Wisconsin. Because the Government has established that a reasonable, well-informed observer might question the impartiality of the district judge, we must grant the requested writ, disqualifying the judge from presiding over the proceeding and requiring that he vacate all orders entered since the filing of the recusal motion in the district court.

In January 2003, Rashid A. Salahuddin failed to return to a corrections facility while he was on work-release. Local authorities in Milwaukee, Wisconsin, obtained an escape warrant and searched for Mr. Salahuddin in the home of his estranged wife, where he may have been living at the time. During the course of the search, the officers discovered two guns in a bedroom closet, but they did not find Mr. Salahuddin. The next day, they returned, found Mr. Salahuddin and placed him under arrest. Before the officers were able to administer Miranda warnings, Mr. Salahuddin stated that there were two guns in the closet of the bedroom where the guns had been found the previous day.

More than two years later, in June 2005, a federal grand jury indicted Mr. Salahuddin on one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The case was assigned to Judge Clevert. The assistant United States attorney prosecuting the case suggested in a letter to Mr. Salahuddin’s attorney that Mr. Salahuddin would not qualify as an armed career criminal and therefore would not be subject to the fifteen-year mandatory minimum sentence. See 18 U.S.C. § 924(e)(1).

Mr. Salahuddin elected to plead guilty. At the change of plea hearing, Mr. Salahuddin hesitated when the court explained that, by pleading guilty, he could no longer challenge the admissibility of the Government’s evidence against him as the fruits of an unlawful search. Mr. Salahuddin decided at that time to plead not guilty. Judge Clevert set the matter for trial, but, only days later, Mr. Salahuddin again changed his mind and entered a guilty plea.

After the change of plea hearing, but shortly before the sentencing hearing, the Government altered its position and informed Mr. Salahuddin that it now believed he did qualify as an armed career criminal. Mr. Salahuddin then moved to withdraw his plea, which the Government opposed. Judge Clevert granted Mr. Salahuddin’s motion to withdraw his plea and, in the same order, recused himself from further participation in the case.

The matter was reassigned to Chief Judge Randa. entertained. Chief Judge Randa sentenced him to 180 months’ imprisonment; the sentence was the mandatory minimum for career criminals sentenced under 18 U.S.C. § 924(e) and also was below the advisory guidelines range.

Mr. Salahuddin appealed to this court. He argued that the district court should have entertained his motions to suppress. We agreed and held that it was “incongruous to permit a defendant to withdraw a guilty plea and go to trial while not permitting him to litigate the admissibility of significant evidence.” United States v. Salahuddin, 509 F.3d 858, 862 (7th Cir. 2007).

On remand, Chief Judge Randa sua sponte recused himself under Circuit Rule 36.  The case was reassigned to the respondent district judge (hereinafter “the Judge”).

The Judge reviewed the report and recommendation, and he called a meeting in chambers on October 9, 2008, with then United States Attorney Steven M. Biskupic and Federal Defender Daniel W. Stiller. Assistant United States Attorney Gordon P. Giampietro and Associate Federal Defender Nancy Joseph, who were the attorneys actually litigating the case, were not invited.

No court reporter was present, and no meeting minutes are reflected on the district court’s docket.  The Judge recounted the procedural history of the case and reminded the office heads that, before the confusion surrounding application of the armed career criminal statute, both parties had preferred to resolve the case with a plea bargain.  The Judge recommended the case should be resolved without further litigation and that he recommended that the parties agree to a guilty plea to a false-statement count (which carries a ten-year statutory maximum, as opposed to the fifteen-year statutory minimum under § 924(e)). 

Finally, although the Judge recognized that he should not be involved in plea negotiations, he opined that this was an “extremely rare” case that needed to be addressed “at the top”; that he was disturbed that there were 100 docket entries in a one-count gun case.

Eleven days later, on October 20, 2008, the Government moved for the Judge’s recusal pursuant to 28 U.S.C. § 455(a). He granted Mr. Salahuddin’s motions to suppress statements, denied the motion to suppress the gun, ordered a new trial and denied the Government’s motion for recusal. The portion of the order denying the recusal motion reads: On its face the motion represents nothing more than an ill-considered, poorly-disguised, preemptive collateral attack, albeit through the convenience of forum shopping, on the wisdom of the court’s decision announced today. The motion is denied.

Two weeks later, the Government filed a motion for reconsideration; it contended that the October 9, 2008 meeting violated Federal Rule of Criminal Procedure 11 and that the Judge’s comments, both during the meeting and in his order, called into question his impartiality.

The Judge denied the motion for reconsideration on April 10, 2009. He reasoned that he did not violate Federal Rule of Criminal Procedure 11 for three reasons: (1) Neither the Government nor Mr. Salahuddin proposed or reached a plea agreement; (2) The discussion was with the United States Attorney and Federal Defender, not the attorneys litigating the case (although the Judge acknowledged that otherwise it might be considered a “classic negotiation session,”r.117 at 6); and (3) The rule protects the defendant, not the Government, from judicial coercion. The Judge further held that recusal was not necessary because Mr. Salahuddin had waived recusal.

Trial was set for May 18, 2009. On May 12, the Government filed in the district court a motion to stay proceedings pending a petition for writ of mandamus in this court. The next day, the Government filed in this court a petition for a writ of mandamus and a motion to stay district court proceedings pending resolution of the petition. The Government requests a writ of mandamus directing the Judge to recuse himself from the case and vacate all orders entered after October 20, 2008, when the Government filed its motion for recusal.

In considering a petition for a writ of mandamus seeking the disqualification of a district judge, we review that judge’s denial of a recusal motion de novo. Hook v. McDade, 89 F.3d 350, 353-54 (7th Cir. 1996).

The All Writs Act, 28 U.S.C. § 1651, permits courts created by Act of Congress to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a). See generally United States v. Denedo, 120 S.Ct. 2213, 2220-22 (2009). Courts of appeals traditionally have employed the writ of mandamus to confine a district court to the “lawful exercise of its prescribed jurisdiction.” See Cheney v. United States Dist. Court, 542 U.S. 367, 380 (2004).  We have held that a petition for writ of mandamus under the All Writs Act, 28 U.S.C. § 1651(a), is the proper-indeed the only- means of reviewing a district court’s denial of a motion for recusal. The Government’s petition is therefore the appropriate means of seeking review in this court of the district court’s denial of the Government’s motion for recusal.

Section 455(a) of the Judicial Code provides: “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). The Supreme Court has explained that ” ‘[t]he goal of section 455(a) is to avoid even the appearance of partiality.’ ” Liljeberg v. Health Serv. Acquisition Corp., 486 U.S. 847, 860 (1988).  Accordingly, we have required recusal “whenever there is ‘a reasonable basis’ for a finding of an ‘appearance of partiality under the facts and circumstances’ of the case.” PepsiCo, Inc. v. McMillen, 764 F.2d 458, 460 (7th Cir. 1985).

Recusal is required when a “reasonable person perceives a significant risk that the judge will resolve the case on a basis other than the merits.” In re Mason, 916 F.2d 384, 385 (7th Cir. 1990).

Of course, needless recusals exact a significant toll; judges therefore should exercise care in determining whether recusal is necessary, especially when proceedings already are underway. “[A] change of umpire mid-contest may require a great deal of work to be re-done… and facilitate judge-shopping.” Nat’l Union Fire Ins. Co., 839 F.2d at 1229 (citation omitted).

Mr. Salahuddin submits that the Government’s petition is untimely. We cannot accept this submission.   It is well-established in this circuit that a motion for recusal under section 455(a) must be made before trial; after trial, the damage to the public perception of the judicial system already has been done, and the party may not then seek relief because the simple appearance of partiality is, at most, harmless error.

We now turn to the merits of the Government’s submission. At bottom, this matter requires that we decide one fundamental issue: whether a reasonable, well-informed observer could question the Judge’s impartiality. See, e.g., Hatcher, 150 F.3d at 637.

In answering this question, we must examine carefully the nature of the Judge’s meeting with the heads of the two governmental offices involved. The Judge called an off-the-record meeting with the United States Attorney and the Federal Defender. This manner of proceeding in a federal criminal matter is indeed unusual and necessarily raises substantial concerns in the mind of any well-informed observer. We must take special note of the fact that no record was taken of the meeting.

The substance of the discussion at the meeting convinces us that the Judge misapprehended the limits of his authority.

The parties agree that, at the October 9 meeting, the Judge suggested a specific plea bargain. This participation was clearly violative of the specific prohibition in the Federal Rules of Criminal Procedure that forbids the court from becoming involved in plea negotiations. See Fed. R. Crim. P. 11(c)(1). We have expressed the same view in United States v. Kraus, 137 F.3d 447, 452 (7th Cir. 1998), when we wrote that “[e]xcluding the judge from the plea discussions thus serves three purposes: it minimizes the risk that the defendant will be judicially coerced into pleading guilty, it preserves the impartiality of the court, and it avoids any appearance of impropriety.” The judge who advocates a particular plea bargain may resent the government for disagreeing.

Here we must conclude that the Judge did more than simply participate in a plea bargain.  He questioned the Government’s decision to prosecute the matter as a federal case in terms that a reasonable observer might well interpret as critical of the Government’s position in the case.

In expressing these views and insisting that action be taken to conform the future course of litigation to those views, the Judge misapprehended the limits of his authority as the presiding judicial officer and undertook to participate in determinations that are in the proper domain of the Department of Justice.

The power of the Executive Branch to make these decisions is a safeguard of liberty. As this court has noted, entrusting these prerogatives to the Executive ensures that ” ‘no one can be convicted of a crime without the concurrence of all three branches.’ ” United States v. O’Neill, 437 F.3d 654, 660 (7th Cir. 2006).  Judges do not possess, and should not attempt to exercise, prosecutorial discretion.

A motion under section 455(a) is “directed against the appearance of partiality, whether or not the judge is actually biased.” Balistrieri, 779 F.2d at 1204.  We must conclude that the Judge’s actions, assessed in their totality, are such that a reasonable, well-informed observer would question his partiality. Hook, 89 F.3d 350 at 353-54.

The question before us is not whether the Judge is biased.  However, we must conclude that the Government is entitled to the issuance of the writ of mandamus for which it has petitioned because it has established that a reasonable well-informed observer could question the Judge’s impartiality.

It is so ordered.

For the full opinions visit the 7th Circuit Court of Appeals Web Site.

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