United States Court of Appeals
For the First Circuit
No. 06-2230
IN RE: RENÉ VÁZQUEZ-BOTET,
Petitioner.
ON PETITION FOR A WRIT OF MANDAMUS
TO THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Torruella, Selya and Howard,
Circuit Judges.
Howard Srebnick, with whom Black, Srebnick, Kornspan & Stumpf,
P.A., and Edgar Vega-Pabón were on petition for writ of mandamus,
for petitioner.
Michael Férrara, Trial Attorney, Public Integrity Section,
Criminal Division, U.S. Department of Justice, with whom Alice S.
Fisher, Assistant Attorney General, Criminal Division, Edward C.
Nucci, Acting Chief, and Mary K. Butler and Matthew C. Solomon,
Trial Attorneys, Public Integrity Section, were on opposition to
petition for writ of mandamus, for respondent.
September 20, 2006
Per Curiam. Petitioner René Vázquez-Botet, who is
awaiting trial on charges of conspiracy, fraud, and extortion,
seeks a writ of mandamus ordering the recusal of the presiding
district court judge. Because the scheduled start of trial was
imminent, this court expedited the hearing on this petition. We
then issued a judgment on September 14, 2006 (the day after oral
argument), denying the mandamus petition and indicating that an
opinion would follow. This is that opinion. In it, we set forth
our reasons for withholding relief from petitioner.1
Background
This is the second recusal-based mandamus petition to
emerge from the underlying criminal proceedings. Earlier this
year, upon request of the government, this court ordered the
replacement of the original judge in the case. See In re United
States, 441 F.3d 44 (1st Cir.), petition for cert. filed, 75
U.S.L.W. 3065 (U.S. July 31, 2006) (No. 06-166). While dismissing
accusations of actual bias, we there agreed that, because of the
manner in which an investigation into alleged grand jury
improprieties was being conducted, the judge’s “impartiality might
reasonably be questioned.” 28 U.S.C. § 455(a). On remand, the
case was randomly reassigned to Chief Judge Fusté on May 16, 2006,
who has scheduled the start of trial for September 26, 2006. In a
1
The judgment also provided that any petition for panel
rehearing or en banc review was to be filed no later than fourteen
days from the date of this opinion.
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recent filing, the parties estimated that trial would take two to
three weeks.
The instant petition relies on an entirely different set
of allegations. They center on the fact that Chief Judge Fusté’s
wife, Rachel Brill, is a practicing attorney who has had some
involvement with matters tangential to this criminal case. With
co-counsel, she has represented Gregory Laracy--a subject of the
investigation and an unindicted coconspirator. Laracy was an
officer of one of the local contractors that allegedly made
extortionate payments. In May 2003, after several earlier meetings
with the government, Brill negotiated a proffer agreement providing
Laracy with immunity for his testimony. Petitioner asserts that
Laracy, while being represented by Brill, testified before one or
more of the grand juries involved in the underlying investigation.
The government describes him as a potential prosecution witness at
trial. Brill’s representation of Laracy mostly involved events
occurring over three years ago, and she entered no appearance in
any criminal or civil case in connection therewith. She states
that she last billed Laracy in October 2003 and does not expect to
do so in the future. There is, however, no formal indication that
such representation has been terminated.
Brill also has represented José Ventura–-another local
contractor who was not involved in the crimes charged here but who
pled guilty to a similar offense in 2002. The government
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originally contemplated calling Ventura as a “404(b) witness” to
describe other bad acts allegedly committed by petitioner, see Fed.
R. Evid. 404(b), but it has now announced that it will not do so.
For present purposes, the circumstances surrounding Brill’s
representation of Ventura remain relevant primarily because of two
documents that she drafted on his behalf. One publicly accused
petitioner, through counsel, of trying to “intimidate” Ventura.
The other privately charged that petitioner may have “once again”
attempted to “extort money” from Ventura; it also advised that the
prosecution would be notified of the possibility that petitioner
had thereby violated his bail conditions.2
2
The first document was a motion for sanctions, filed by
Brill in February 2004 in a criminal case. See United States v.
Rivera Rangel, 396 F.3d 476 (1st Cir. 2005). Ventura testified at
that trial as a government witness. Defendant Rivera was
represented by Attorney Edgar Vega-Pabón (“Vega”), who has also
been serving as one of petitioner’s attorneys here. While the
Rivera case was on appeal, Vega filed a motion charging, inter
alia, that Ventura had committed perjury and violated his plea
agreement. Brill responded with a request for sanctions.
Referring to Vega’s simultaneous representation of petitioner, she
suggested at one point that “the efforts to intimidate Mr. Ventura
are intended to reach beyond the interests of Ms. Rivera.” Neither
motion was ever acted on by the district court.
The second document was a letter sent by Brill to petitioner’s
attorneys in December 2004. It responded to a letter petitioner
had sent to Ventura, in which he supposedly sought a $10 million
payment for alleged slander committed by Ventura while testifying
at several judicial and legislative proceedings. Citing a
statutory privilege, Brill deemed this request “laughable” and
possibly “extort[ionate].” There is no indication that the
prosecution, upon receiving such correspondence from Brill, took
any action. Petitioner’s counsel made Brill’s letter public by
appending it to his motion to recuse.
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According to petitioner, these circumstances require
Chief Judge Fusté’s recusal under four separate provisions of 28
U.S.C.:
C § 455(a), because his impartiality “might
reasonably be questioned”;
C § 455(b)(4), because he or Brill has “a financial
interest in the subject matter in controversy” or
some “other interest that could be substantially
affected by the outcome of the proceeding”;3
C § 455(b)(5)(ii), because Brill “[i]s acting as a
lawyer in the proceeding”; and
C § 455(b)(5)(iv), because Brill “[i]s to the judge’s
knowledge likely to be a material witness in the
proceeding.”
Rejecting petitioner’s request for an evidentiary hearing before a
different judge, Chief Judge Fusté issued a detailed opinion
examining each provision separately and concluding that none of
them warranted his recusal. Petitioner seeks to overturn this
ruling by way of the instant mandamus petition.
Discussion
A district judge’s refusal to recuse, although
“[o]rdinarily” reviewable only on appeal from final judgment, In re
Martinez-Catala, 129 F.3d 213, 217 (1st Cir. 1997), can sometimes
present “an extraordinary situation suitable for the exercise of
our mandamus jurisdiction,” In re United States, 666 F.2d 690, 694
3
See also 28 U.S.C. § 455(b)(5)(iii) (spouse is “known by
the judge to have an interest that could be substantially affected
by the outcome of the proceeding”).
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(1st Cir. 1981); accord In re United States, 158 F.3d 26, 30 (1st
Cir. 1998). “[T]he standards for issuance of the writ are high”:
petitioner must make “a showing of both clear entitlement to the
requested relief and irreparable harm without it, accompanied by a
favorable balance of the equities.” In re Cargill, Inc., 66 F.3d
1256, 1260 (1st Cir. 1995). “[I]n recusal cases, mandamus is almost
always withheld ... unless the petitioner demonstrates that it is
clearly entitled to relief.” In re Martinez-Catala, 129 F.3d at
218 (internal quotation marks omitted). But mandamus is a
“discretionary writ,” and “even where the merits clearly favor the
petitioner, relief may be withheld for lack of irreparable injury
or based on a balance of equities.” Id. at 217. At bottom,
“mandamus requires a case not merely close to the line but clearly
over it.” Id. at 221.4
This is not such a case. We stop short of reaching any
definitive resolution of the recusal issue, preferring to leave
that question open “for resolution on an end-of-case appeal,” In re
Cargill, Inc., 66 F.3d at 1261, should petitioner be found guilty
and thereafter choose to pursue an appeal. For present purposes,
4
When mandamus is sought by the government in a criminal
case, these exacting requirements are relaxed and an abuse of
discretion standard is instead applied, due to the government’s
inability to press an end-of-case appeal. See, e.g., In re United
States, 158 F.3d at 30-31; see also In re Boston’s Children First,
244 F.3d 164, 167 n.6 (1st Cir. 2001). The earlier mandamus
petition in this case was adjudicated under this more lenient
standard. See In re United States, 441 F.3d at 56.
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it suffices to say that no “clear and indisputable” right to relief
has been established–-i.e., “that the issue is sufficiently clouded
that petitioner’s eventual entitlement to the requested redress-
–the district judge’s recusal--is problematic.” Id. at 1262
(footnote omitted). We explain briefly.
First: Mandamus relief is not warranted based on the
allegation that, under § 455(b)(4), Chief Judge Fusté (or Brill,
for that matter) has either a “financial interest” at stake or some
other interest that could be substantially affected by the case’s
outcome. Petitioner makes much of the hourly fees paid to Brill by
Laracy; indeed, his request for an evidentiary hearing below
focused mostly on financial matters. Notably absent, however, is
any explanation of how Brill’s receipt of such fees could possibly
be affected by the judge’s rulings or the jury’s verdict. More
generally, petitioner has not argued that a lawyer/client
relationship falls within § 455(d)(4)’s definition of “financial
interest.” And while he suggested below that Laracy would be
eligible for restitution in the aftermath of this case, the
government has since announced that no such relief will be sought
on Laracy’s behalf.
Petitioner also insists that Brill has an interest in his
conviction because of its possible impact on future litigation. He
contends that if he were to be convicted, if Laracy were then to
file a damages action against him, and if Brill were retained to
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pursue that action, she could argue that petitioner is estopped
from relitigating facts set forth in the indictment. The district
court rejected this contention on the ground that the alleged
interest was “too remote, speculative, and contingent” to be one
that might be substantially affected by the case’s outcome. In re
Kansas Pub. Emp’ees Ret. Sys., 85 F.3d 1353, 1362 (8th Cir. 1996).
It is enough here to acknowledge the obvious: that this conclusion
is not clearly misplaced. Cf. Sensley v. Albritton, 385 F.3d 591,
600 (5th Cir. 2004) (rejecting § 455(b)(4) argument constructed by
“layering several speculative premises on top of one another to
reach a speculative conclusion”).
Second: The charge that Brill “[i]s acting as a lawyer
in the proceeding” under § 455(b)(5)(ii) does not provide a basis
for mandamus relief. Courts have held that, while an attorney need
not be “enrolled as counsel” of record in order to fall within this
provision, McCuin v. Texas Power & Light Co., 714 F.2d 1255, 1260
(5th Cir. 1983), the attorney must at least “actually participate[]
in the case,” id.; accord S.J. Groves & Sons Co. v. Int’l Bhd. of
Teamsters Local 627, 581 F.2d 1241, 1248 (7th Cir. 1978). Here,
there is no prospect of any future participation by Brill; in
accordance with a standing order issued in 1990, Chief Judge Fusté
has declared that she is foreclosed from appearing as an attorney
“in any proceeding” before him. That standing order would, of
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course, prohibit her from representing Laracy in this case, even if
she were inclined to do so.5
Petitioner emphasizes the fact that Brill negotiated the
immunity agreement for Laracy. Yet those events occurred over ten
months before this criminal case was initiated (the original
indictment was returned on April 8, 2004). Even though the word
“proceeding” is defined to include “pretrial, trial, appellate
review, or other stages of litigation,” 28 U.S.C. § 455(d)(1),
Chief Judge Fusté was not clearly mistaken in confining his
attention here “to the litigation encompassed by this indictment.”6
Nor does Brill’s authorship of the December 2004 letter
to petitioner’s counsel-–the one post-indictment event cited by
petitioner in this regard--call for a different result. As
petitioner sees it, Brill was there serving as “the advocate for
Ventura in favor of petitioner’s incarceration.” Even under that
arguably hyperbolic view, it is not immediately apparent how Brill
5
Petitioner notes one court’s expression of reluctance “to
encourage a lawyer’s withdrawal as a substitute for the judge’s
disqualification.” S.J. Groves & Sons, 581 F.2d at 1248-49. Yet
the concern there was about possible “hardship to the client of the
withdrawing firm.” Id. We perceive no such hardship should
Laracy--a non-party, potential witness--be required for whatever
reason to consult other counsel.
6
Petitioner also suggested below that Brill’s representation
of Laracy before the grand jury would qualify. Yet because the
grand jury “is not an arm of the district court,” In re United
States, 441 F.3d at 57, it is doubtful that the grand jury falls
within the definition of “proceeding.” In any event, petitioner
has not pursued that argument before this court.
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would thereby be converted into a lawyer “acting ... in the
proceeding.” She sent the letter in response to a private
communication from petitioner involving events not directly related
to this case, see supra n.2, and it was petitioner rather than
Brill who made the letter public by filing it in court.
Third: The argument that Brill is “likely to be a
material witness in the proceeding” under § 455(b)(5)(iv) is based
on Giglio v. United States, 405 U.S. 150 (1972). The parties agree
that, pursuant thereto, the events surrounding the negotiation of
Laracy’s immunity agreement constitute material evidence. In
petitioner’s view, cross-examination of Laracy will not permit
adequate exploration of these matters, and Brill’s testimony will
thus be necessary, for several reasons. First, although Brill
voiced the expectation that Laracy would receive both direct and
derivative use immunity, the agreement ended up conferring only the
latter. Second, Brill had various conversations with the
government in Laracy’s absence. And third, because the Public
Integrity Section of the Department of Justice took control of the
case after the immunity agreement was reached with the local U.S.
Attorney’s office, Brill’s testimony is allegedly needed to confirm
that the new prosecutors will abide by its terms. The government
has responded to these points (e.g., by arguing that the running of
the limitations period has sharply reduced Laracy’s criminal
exposure, and that conversations held in Laracy’s absence could not
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affect his bias or credibility). The parties have debated the
extent to which the attorney/client privilege would apply. And
Chief Judge Fusté has dismissed petitioner’s argument as
“disingenuous.”
We do not find petitioner’s reasoning sufficiently
compelling to satisfy the demanding mandamus standards. We are
also disinclined to address these matters in the abstract, on the
basis of speculative scenarios about what may or may not transpire
at trial. (It is conceivable, for example, that the government
will decide not to put Laracy on the stand.) We instead think it
advisable to await an end-of-case appeal, should one ensue, in
which any argument along these lines can be pursued on the basis of
an established record.
Fourth: Finally, petitioner invokes § 455(a).
Disqualification is appropriate under this provision “only when the
charge is supported by a factual basis, and when the facts asserted
provide what an objective, knowledgeable member of the public would
find to be a reasonable basis for doubting the judge’s
impartiality.” In re Boston’s Children First, 244 F.3d 164, 167
(1st Cir. 2001) (footnote and internal quotation marks omitted).
“While doubts ordinarily ought to be resolved in favor of
recusal,... the challenged judge enjoys a margin of discretion.”
In re United States, 158 F.3d at 30.
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The government, in opposing petitioner’s § 455(a)
argument, thinks it enough that § 455(b) is not implicated and that
there is no controlling authority on point. Yet even if the §
455(b) claims were properly dismissed (a matter we do not
ultimately resolve), subsection (a) can require recusal “in some
circumstances where subsection (b) does not.” Liteky v. United
States, 510 U.S. 540, 553 n.2 (1994). Nor can petitioner’s
concerns in this regard be deemed frivolous. It is not entirely
fanciful, for example, to suppose that an informed observer might
infer that, by representing Laracy, Brill was vouching for his
character or credibility. Nonetheless, we agree with the
government that this is not the sort of case or circumstance for
which mandamus relief is appropriate.
Conclusion
We need go no further. The underlying criminal case has
now been pending for over 29 months. Chief Judge Fusté complied
with our earlier directive that the case be “promptly set for
trial.” In re United States, 441 F.3d at 68. Given these
circumstances, given the demanding mandamus requirements, and given
petitioner’s right “to raise [his] claim of error, if [he] so
chooses, in an end-of-case appeal,” In re Cargill, Inc., 66 F.3d at
1264 (footnote omitted), we find the concerns raised here to be
insufficient to justify further delay. It is for these reasons
that we have denied the petition.
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