In re: John Moore

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 19-2076

In re: JOHN HENRY MOORE,

Petitioner.

On Petition for Writ of Mandamus. (3:19-cr-00086-RJC-DSC-1)

Argued: January 30, 2020 Decided: April 9, 2020

Before KING, HARRIS, and RICHARDSON, Circuit Judges.

Petition denied by published opinion. Judge Harris wrote the opinion, in which Judge King
and Judge Richardson joined.

ARGUED: Melissa Susanne Baldwin, FEDERAL DEFENDERS OF WESTERN
NORTH CAROLINA, INC., Charlotte, North Carolina, for Petitioner. Anthony Joseph
Enright, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina,
for Respondent. ON BRIEF: Anthony Martinez, Federal Public Defender, John Parke
Davis, First Assistant Federal Public Defender, FEDERAL DEFENDERS OF WESTERN
NORTH CAROLINA, INC., Charlotte, North Carolina, for Petitioner. R. Andrew Murray,
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte,
North Carolina, for Respondent.
PAMELA HARRIS, Circuit Judge:

Judge Robert J. Conrad was to preside over the criminal trial of John Henry Moore

when the parties learned that Judge Conrad had prosecuted Moore successfully for bank

robbery in 1989. If Moore’s current trial ends in conviction, then the facts surrounding his

1989 bank robbery conviction could become relevant at sentencing. Moore therefore

sought Judge Conrad’s immediate, pre-trial recusal under the judicial disqualification

statute, see 28 U.S.C. § 455, arguing that Judge Conrad had personal knowledge of facts

that might be disputed at sentencing and that his impartiality reasonably could be

questioned. Judge Conrad denied the motion.

Moore then filed the petition for a writ of mandamus we consider today, asking that

this court direct Judge Conrad to recuse from presiding over his criminal trial. We share

Moore’s concern that there could come a point at which recusal might be required, and

certainly would be appropriate. But we conclude that the extraordinary relief of mandamus

is not warranted now, primarily because Moore has failed to show a clear and indisputable

right to immediate recusal based on grounds that involve a future sentencing and may never

materialize. We thus deny Moore’s petition.

I.

Moore was indicted by a grand jury on two counts of Hobbs Act robbery in violation

of 18 U.S.C. § 1951, one count of brandishing a firearm during and in relation to a crime

of violence in violation of 18 U.S.C. § 924(c), and one count of possession of a firearm by

a convicted felon in violation of 18 U.S.C. § 922(g). For present purposes, what is most

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important about these charges is that if Moore is convicted, he could face a mandatory life

sentence under the federal “three-strikes” statute. See 18 U.S.C. § 3559(c)(1).

Under the three-strikes law, a district court must impose a life sentence if a

defendant is convicted of a “serious violent felony” and has two or more prior convictions

for serious violent felonies. 18 U.S.C. § 3559(c)(1); see United States v. Thompson, 554

F.3d 450, 451–52 (4th Cir. 2009) (describing three-strikes law). It is not disputed that at

least one of the current charges against Moore could qualify as a “serious violent felony.”

And the government has filed a “three-strikes notice” asserting that Moore indeed is subject

to a mandatory life sentence if convicted, citing three predicate “serious violent felonies”

in the form of three federal bank robbery convictions, including one from 1989. J.A. 18.

Whether a prior conviction is a “serious violent felony” – a strike for three-strikes

purposes – is decided by the district court at sentencing. Thompson, 554 F.3d at 452. In

this case, the district court also may determine whether the statute’s so-called “safety

valve,” 18 U.S.C. § 3559(c)(3)(A), would allow Moore to avoid an otherwise mandatory

life sentence. Under the safety-valve provision, a robbery – like Moore’s prior bank

robberies – does not qualify as a predicate “serious violent felony” if the defendant

establishes, by clear and convincing evidence, that it did not involve the use or threatened

use of a firearm or other dangerous weapon and did not result in death or serious bodily

injury to any person. See id. If Moore is convicted at trial, in other words, he may avoid

a life sentence if he can show that the facts surrounding at least two of his prior bank

robberies bring those convictions within the safety-valve provision.

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 Two weeks before Moore’s jury trial was scheduled to begin before Judge Robert

J. Conrad, the government informed the court and the defense that one of those prior bank

robberies – the one for which Moore was convicted in 1989 – apparently was prosecuted

by Judge Conrad, then an Assistant United States Attorney (“AUSA”). Neither party then

had access to the full case file for Moore’s 1989 conviction, and that record was not filed

before Judge Conrad. But the docket sheet showed that “Robert J. Conrad, Jr.” was listed

as the sole AUSA on the 1989 case and that he appeared on behalf of the government in

multiple hearings – including those at which Moore entered his guilty plea and was

sentenced – and there is no dispute that Judge Conrad indeed represented the United States

in its 1989 bank robbery case against Moore.

In response, Moore moved for Judge Conrad’s immediate recusal, arguing that the

judicial disqualification statute, 28 U.S.C. § 455, prohibited Judge Conrad from presiding

over his trial. As Moore explained, if he is convicted of all the current offenses, then under

the safety-valve provision of the three-strikes law, the facts surrounding his 1989 bank

robbery could become both relevant and contested, requiring Judge Conrad – who

prosecuted that bank robbery – to adjudicate whether the robbery involved the use or

threatened use of a firearm and whether it resulted in death or serious bodily injury. See

18 U.S.C. § 3559(c)(3)(A).

According to Moore, recusal therefore was required under 28 U.S.C. § 455(b)(1),

which covers cases in which a judge has “personal knowledge of disputed evidentiary facts

concerning the proceeding.” Moore also argued for disqualification under § 455(a) – a

judge “shall disqualify himself in any proceeding in which his impartiality might

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reasonably be questioned” – on the ground that Judge Conrad’s impartiality in reviewing

the nature of the 1989 bank robbery that he prosecuted would be open to reasonable

question. 1 “[T]o the extent a serious question arises [at sentencing] regarding whether

there was evidence of a dangerous weapon or threat in the 1989 case,” Moore contended,

Judge Conrad’s personal impression of the case, acquired as a prosecutor, inevitably would

compete with the arguments of the parties. J.A. 23. 2 Although the 1989 bank robbery at

the heart of Moore’s motion would become relevant, if at all, only at sentencing, Moore

sought Judge Conrad’s immediate recusal from any further proceedings in his criminal

trial. The government took no position on Moore’s motion.

In an oral ruling from the bench, Judge Conrad denied the motion for recusal. Based

on the docket sheet, Judge Conrad explained, he had no memory of the 1989 bank robbery,

which he had prosecuted “[s]ome 30 years ago.” J.A. 31. And in any event, Judge Conrad

reasoned, Moore’s motion did not “affect in any way the trial aspects of this case. It comes

1
The relevant sections of 28 U.S.C. § 455 read in full:

(a) Any justice, judge, or magistrate judge of the United States shall disqualify
himself in any proceeding in which his impartiality might reasonably be
questioned.

(b) He shall also disqualify himself in the following circumstances:

(1) Where he has a personal bias or prejudice concerning a party, or personal
knowledge of disputed evidentiary facts concerning the proceeding; . . . .
2
Before the district court, Moore also sought disqualification under 28 U.S.C.
§ 455(b)(3), covering certain cases in which a judge has served as government counsel in
a proceeding. Moore has not pressed that claim in his petition for mandamus, and we do
not address it here.

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into play if there is a conviction and that prior conviction becomes relevant, if at all, with

respect to sentencing.” J.A. 32 (emphasis added).

Moore then petitioned this court for a writ of mandamus directing Judge Conrad to

recuse from his criminal trial. We granted a stay of Moore’s criminal proceedings pending

a decision on the petition, directed the government to file an answer, and invited the district

court also to address the petition. The government opposed Moore’s petition, and the

district court reiterated its view that recusal was not warranted. We also directed the parties

to file a supplemental joint appendix containing the full record of Moore’s 1989

prosecution. See S.J.A. 1–45.

II.

Moore’s central argument is this: If he is convicted, then at sentencing, the facts

surrounding his 1989 bank robbery might become relevant and the source of dispute under

the safety-valve provision of the three-strikes law. Were that to happen, 28 U.S.C. § 455,

the judicial disqualification statute, would require the recusal of Judge Conrad, who

prosecuted the 1989 bank robbery. And – the final and critical step – based on that potential

ground for disqualification at sentencing, Judge Conrad is required to recuse himself now,

pre-trial, as a “prophylactic” measure; a partial recusal at sentencing, should it become

necessary, is not enough to satisfy § 455.

The government takes issue only with the last step of Moore’s reasoning. It does

not argue that Judge Conrad could preside over Moore’s sentencing if events transpire as

Moore hypothesizes, so that Judge Conrad would be required to make findings about a

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bank robbery he personally prosecuted. But recusal now, the government argues, is not

required: § 455 does not demand recusal pre-trial whenever grounds for disqualification

might emerge at sentencing, and there will be time enough to consider recusal if and when

the details of Moore’s 1989 bank robbery actually become relevant to his sentencing.

Moreover, the government contends, the speculative basis for Moore’s claim makes the

grant of extraordinary mandamus relief especially inappropriate.

We agree with the government that mandamus relief is not warranted in this posture.

This is not a direct appeal, in which we would review a judge’s recusal decision under the

ordinary abuse-of-discretion standard. See United States v. Stone, 866 F.3d 219, 229 (4th

Cir. 2017). Instead, Moore is seeking a writ of mandamus, “a drastic remedy that must be

reserved for extraordinary situations.” In re Murphy-Brown, LLC, 907 F.3d 788, 795 (4th

Cir. 2018) (internal quotation marks omitted). So to prevail here, Moore must show not

only that 28 U.S.C. § 455 requires a judge’s immediate recusal from a criminal trial where

grounds for disqualification might arise at sentencing, but also that he has a “clear and

indisputable” right to that relief. Id. (quoting Cheney v. U.S. Dist. Court for D.C., 542 U.S.

367, 380–81 (2004)). He also must demonstrate that he has “no other adequate means” –

such as direct appeal after conviction – to attain the desired relief. Id. And even then, we

must be satisfied, in the exercise of our discretion, that the writ is “appropriate under the

circumstances.” Id.

Moore cannot meet this high standard. Most importantly, he cannot show a “clear

and indisputable” right to Judge Conrad’s immediate recusal in response to grounds for

disqualification that might never materialize. We may assume, for present purposes, that

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§ 455 would require Judge Conrad’s recusal if the “evidentiary facts” surrounding Moore’s

1989 bank robbery became “disputed” at sentencing, 28 U.S.C. § 455(b)(1), or that

otherwise his “impartiality might reasonably be questioned,” 28 U.S.C. § 455(a). 3 But as

the government explains, at this time, it is entirely uncertain whether that will come to pass.

There can be a “dispute” over facts related to the 1989 bank robbery, see 28 U.S.C.

§ 455(b)(1), only if each of the following occurs: Moore is convicted at trial of a “serious

violent felony” triggering the federal three-strikes law; the government continues to pursue

a mandatory life sentence under that law; Moore invokes the law’s safety-valve provision;

and as part of that effort, which would require Moore to show that two of his three prior

bank robberies involved neither the use of a dangerous weapon nor death or injury, Moore

puts at issue the facts surrounding his 1989 bank robbery. If any of those events does not

occur, then the grounds for disqualification never will materialize.

Under those circumstances, there is no “clear and indisputable” right to the relief

Moore is seeking: Judge Conrad’s immediate recusal from all parts of Moore’s criminal

trial. According to Moore, recusal at sentencing, if and when his 1989 bank robbery

becomes relevant, is not sufficient under § 455; that kind of partial recusal would be

3
In resolving Moore’s petition, we assess § 455(a) and § 455(b)(1) together because
he contends that both provisions require pre-trial recusal for the same reason – that is, a
factual dispute regarding the 1989 bank robbery might arise at sentencing. We emphasize,
however, that the standards governing recusal under § 455(a) and § 455(b) are materially
different. See United States v. DeTemple, 162 F.3d 279, 286 (4th Cir. 1998) (“Obviously,
it is possible for facts to indicate that a judge might be biased such that recusal is required
under § 455(a) even though none of those facts indicates actual bias necessitating recusal
under § 455(b).”).

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inconsistent with the statute’s terms, which mandate disqualification from an entire

“proceeding.” See 28 U.S.C. § 455(a) (“Any . . . judge . . . shall disqualify himself in any

proceeding in which his impartiality might reasonably be questioned.” (emphasis added));

United States v. Feldman, 983 F.2d 144, 145 (9th Cir. 1992) (§ 455 “speak[s] of a federal

judge being reassigned or disqualified from a ‘proceeding’” so “recusal must be from a

whole proceeding”). Moore’s view is not without support. In Murray v. Scott, 253 F.3d

1308 (2001), on which Moore principally relies, the Eleventh Circuit adopted a similar

position, ruling – on direct appeal, not a petition for a writ of mandamus – that recusal was

required under § 455 even though the ground for disqualification would materialize, if at

all, only after decision of a threshold issue. “[W]hen a district judge considers recusal, he

must consider his potential conflict with regard to the overall case, not just his potential

conflict for each separate issue or each stage of the litigation.” Id. at 1310–11 (citation

omitted). The fact that the evidence giving rise to the recusal issue might or might not

become relevant later in the proceedings – “depending on how [the judge] resolved the

threshold issue” – did not relieve the judge of his obligation to recuse from the entire case.

Id. at 1311. And at least one other circuit has come to a similar conclusion, rejecting partial

recusal as a remedy under § 455. See Feldman, 983 F.2d at 145 (holding “that recusal from

only a portion of the proceedings . . . is not permitted under the recusal statutes”).

But that is not the end of the matter, because other circuits have disagreed and

endorsed partial recusal under § 455, at least in certain circumstances. See Ellis v. United

States, 313 F.3d 636, 641 (1st Cir. 2002) (describing circuit disagreement on partial recusal

and “majority view” allowing “such a case-management device”). In Ellis, for example, a

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district court judge adjudicated several claims raised by a petitioner’s § 2255 motion and

recused only from the claim accusing him of judicial bias and misconduct. See id. at 640–

41. The First Circuit approved, holding “that a judge may, in an appropriate case, decide

certain issues and recuse himself or herself as to others,” balancing “the demands of the

recusal statute, 28 U.S.C. § 455(a),” with other interests. Id. at 642; see also Pashaian v.

Eccelston Properties, Ltd., 88 F.3d 77, 84–85 (2d Cir. 1996) (rejecting argument that “once

[a judge] decided to recuse himself as a matter of discretion, such recusal had to be total

and immediate” under § 455). And our court, too, has approved partial recusal, though in

the context of a bankruptcy proceeding governed by distinct rules of recusal. See United

States v. DeTemple, 162 F.3d 279, 285–86 (4th Cir. 1998). Moreover, the cases approving

partial recusal do so where the need for some form of recusal is a certainty, not a question

mark. Where, as here, the grounds for any recusal remain contingent on future events,

there may be an even stronger case for partial recusal as a “practical and appropriate” case-

management device. Pashaian, 88 F.3d at 84; see Ellis, 313 F.3d at 641–42.

Given this case law on partial recusal, it cannot be said that Moore has a “clear and

indisputable right” to Judge Conrad’s immediate recusal from all aspects of his criminal

trial. To be clear, in this posture, we have no occasion to reach further and attempt to

resolve the division in authority over the general permissibility and propriety of partial

recusal under § 455. Because Moore seeks the extraordinary remedy of mandamus, it is

enough to say that in this case, any right to recusal before trial – as opposed to recusal at

sentencing, should the details of Moore’s 1989 bank robbery become relevant and

contested – is not indisputable.

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 By itself, that is enough to foreclose mandamus relief. But we note that the other

two mandamus factors also weigh against issuance of a writ of mandamus. First, denial of

the writ at this time will not leave Moore without a remedy. See In re Murphy-Brown, 907

F.3d at 795 (writ will issue only where petitioner has “no other adequate means” to attain

relief). If Moore is correct – if Judge Conrad is required to recuse now, and a potential

recusal at sentencing would be insufficient under § 455 – then we can remedy Judge

Conrad’s failure to recuse from Moore’s criminal trial on direct review of Moore’s

conviction and sentence. We recognize that the improper denial of a recusal motion when

a judge’s impartiality reasonably might be questioned harms not only the defendant, but

also the judicial system and the public confidence it enjoys. See In re Bulger, 710 F.3d 42,

49 (1st Cir. 2013). But here, on Moore’s own account, that potential harm could arise only

at sentencing, and then only if all the various contingencies materialize. And that brings

us to the third factor, under which we exercise our discretion to determine whether a writ

of mandamus is “appropriate under the circumstances.” In re Murphy-Brown, 907 F.3d at

795. As “one of the most potent weapons in the judicial arsenal,” the writ is to be reserved

for extraordinary situations. Cheney, 542 U.S. at 381 (internal quotation marks omitted).

We hesitate to use such a drastic remedy where, as here, the basis for a recusal motion is

still hypothetical and speculative.

We hold today only that Moore is not entitled to the exceptional remedy of a writ of

mandamus at this time. If Moore is convicted of a qualifying “serious violent felony” under

the three-strikes law and his 1989 conviction appears likely to be at issue at sentencing,

then Moore may seek recusal again. In considering such a motion, the district court then

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would have the benefit of the full record from the 1989 case, and we expect that the court

and the government would give any such motion the careful attention it would deserve.

And nothing would foreclose Moore from petitioning this court again for a writ of

mandamus, should that become necessary, at the appropriate time.

III.

For the foregoing reasons, the petition for a writ of mandamus is denied.

PETITION DENIED

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