WALTER LEROY MOODY, JR., PETITIONER V. UNITED STATES OF AMERICA No. 90-6769 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Eleventh Circuit Brief For The United States In Opposition OPINIONS BELOW The order of the court of appeals (Pet. App. 2-4) denying petitioner's petition for a writ of mandamus is not reported. The order of the district court (Pet. App. 14-25) denying petitioner's motion to recuse the district judge is not reported. JURISDICTION The judgment of the court of appeals was entered on December 4, 1990. The petition for a writ of certiorari was filed on January 2, 1991. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the court of appeals properly denied petitioner's petition for a writ of mandamus seeking the disqualification of the district court judge who presided over his trial. STATEMENT 1. In a 13-count indictment returned in the Middle District of Georgia, petitioner was charged with conspiring to obstruct justice and commit other offenses (18 U.S.C. 371), obstructing justice (18 U.S.C. 1503), obstructing a criminal investigation (18 U.S.C. 1510(a)), suborning perjury (18 U.S.C. 1622), bribing a witness (18 U.S.C. 201(c)(2)), and tampering with a witness (18 U.S.C. 1512(b)). The indictment charged that petitioner had committed these offenses while procuring false testimony to support an application for relief from a 1972 pipe-bombing conviction and obstructing a grand jury investigation into that application. Pet. App. 29-59. At the time of the indictment, petitioner was widely reported to be a suspect in the 1989 murders of Judge Robert Vance, a member of the United States Court of Appeals for the Eleventh Circuit, and Robert E. Robinson, a lawyer who practiced in Savannah. /1/ By order dated October 4, 1990, Chief Judge Wilbur D. Owens, Jr., of the Middle District of Georgia, recused himself, reported that the remaining judges in that district were also unwilling to hear the case, and asked the Chief Judge of the Eleventh Circuit to designate a judge from another district to preside over the case. Pet. App. 26. Chief Judge Tjoflat entered an order, pursuant to 28 U.S.C. 292(b), designating Judge Anthony A. Alaimo of the Southern District of Georgia to hear the case. /2/ 2. Petitioner filed motions in the district court seeking Judge Alaimo's recusal under 28 U.S.C. 144 and 455. Pet. App. 5-13. The affidavit filed pursuant to Section 144 stated that petitioner was a target of an investigation into the murder of Mr. Robinson; that Mr. Robinson had been a prominent member of the Savannah bar who practiced in the Southern District of Georgia; and that Judge Alaimo presided over that district, in which the murder occurred. On this basis, the affidavit asserted that Judge Alaimo's "close relationship with Mr. Robinson gives him an extra-judicial source of personal bias against (petitioner) because of allegations made about (petitioner's) involvement in his death." Id. at 11. The affidavit also averred that petitioner was the target of a grand jury investigation of Judge Vance's murder; that Judge Alaimo had served by designation on the Eleventh Circuit "on numerous occasions"; and that the judge's "close personal relationship with that Court gives him an extra-judicial source of personal bias against (petitioner) because of allegations made about (petitioner's) involvement in" Judge Vance's murder. Id. at 12. In his Section 455 motion, petitioner argued that the same circumstances would cause a reasonable person to doubt Judge Alaimo's impartiality. Id. at 5-8. Judge Alaimo denied the motions for recusal. Pet. App. 14-25. He noted that Robinson "(was) not a witness, victim, or attorney to this witness-tampering case" and that "(a)t most, his death bears a highly tangential relationship to the subject matter of this suit." Id. at 20. Further, Judge Alaimo continued, the personal and professional ties set forth in the affidavit -- i.e., the fact that Robinson was admitted to practice and was killed in the district in which Judge Alaimo sits -- "are simply too attenuated to raise even a reasonable appearance of impropriety." Ibid. With respect to Judge Vance, Judge Alaimo observed that "(a)bsent a strong personal interest, prior contact with the victim of the crime or the defendant in a civil suit is an insufficient basis of recusal." Pet. App. 21. After reviewing cases involving such associations, Judge Alaimo concluded that "the bias alleged (Judge Vance's death) and the subject matter of this case (tampering with a witness) are unrelated" and that "the mere fact that (Judge Alaimo) was acquainted with Judge Vance is simply too attenuated an interest" to create an appearance of partiality. Id. at 23. 3. Petitioner took an appeal from the denial of his motions and, in the alternative, petitioned for a writ of mandamus directing Judge Alaimo to recuse himself. The Chief Justice designated three judges from the Fourth Circuit to hear the appeal and the petition for mandamus. Pet. App. 3. /3/ The panel dismissed the appeal for lack of appellate jurisdiction, holding that "an interlocutory appeal does not lie from the denial of a motion to disqualify a trial judge." Pet. App. 3. The court denied the petition for mandamus on the merits, concluding (id. at 3-4): Accepting (petitioner's) factual allegations as being true, we find nothing that would cast the district court judge's impartiality in doubt to reasonable people in this case. We hold that he acted within his discretion in refusing to disqualify himself. 4. The case proceeded to trial before Judge Alaimo. On December 14, 1990, the jury returned guilty verdicts on all counts. The petition for a writ of certiorari was filed thereafter. We are advised that sentencing has been deferred pending the outcome of petitioner's trial on the indictment arising out of Judge Vance's murder. Judge Alaimo is not presiding over that case, which has been assigned to Judge Edward J. Devitt (D. Minn.) sitting by designation. Petitioner has not moved to recuse Judge Devitt. ARGUMENT 1. Petitioner contends (Pet. 5-10) that the court of appeals should have issued a writ of mandamus directing Judge Alaimo to recuse himself. "The traditional use of the writ in aid of appellate jurisdiction both at common law and in the federal courts has been to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so." Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 26 (1943); see, e.g., Mallard v. United States District Court, 490 U.S. 296, 309 (1989); Kerr v. United States District Court, 426 U.S. 394, 402 (1976). "To ensure that mandamus remains an extraordinary remedy," applicants for the writ "must show that they lack adequate alternative means to obtain the relief they seek, * * * and carry 'the burden of showing that (their) right to issuance of the writ is "clear and indisputable."'" Mallard v. United States District Court, 490 U.S. at 309. Petitioner made no such showing in this case. Far from demonstrating a clear and indisputable entitlement to a writ of mandamus, petitioner presented no facts of the sort required by Section 144 /4/ or Section 455 /5/ to justify Judge Alaimo's recusal -- i.e., facts showing that the judge was actually biased against petitioner or that his impartiality could reasonably be questioned. Sections 144 and 455(b)(1) require recusal upon a showing that a district judge has an actual "personal bias or prejudice" concerning a party to the case. Because a judge is presumed to be impartial, the party seeking recusal "has a substantial burden to overcome the presumption with factual allegations of personal bias stemming from (an) extra judicial source." United States v. Baskes, 687 F.2d 165, 170 (7th Cir. 1981). In the absence of actual bias or prejudice, Section 455(a) requires a judge to "disqualify himself in any proceeding in which his impartiality might reasonably be questioned." The inquiry is an objective one: whether a reasonable person, aware of all the facts, would have a reasonable basis for questioning the judge's impartiality. E.g., In Re Drexel Burnham Lambert Inc., 861 F.2d 1307, 1313 (2d Cir. 1988), cert. denied, 490 U.S. 1102 (1989); Blalock v. United States, 844 F.2d 1546, 1552 (11th Cir. 1988); In re Beard, 811 F.2d 818, 827 (4th Cir. 1987); United States v. Greenough, 782 F.2d 1556, 1558 (11th Cir. 1986); United States v. Harrelson, 754 F.2d 1153, 1165 (5th Cir.), cert. denied, 474 U.S. 908 (1985). District courts exercise substantial discretion in applying this standard. In re Drexel Burnham Lambert Inc., 861 F.2d at 1312. A "trial judge must carefully weigh the policy of promoting public confidence in the judiciary against the possibility that those questioning his impartiality might be seeking to avoid the adverse consequences of his presiding over their case." Ibid. Judged by these standards, petitioner's motions were plainly insufficient to warrant Judge Alaimo's recusal. The record does not suggest that Judge Alaimo had any social or personal relationship with either attorney Robinson or Judge Vance of the sort that might call his impartiality into question. A judge's "background of experiences, associations and viewpoint" is not enough to require recusal; rather, "a reasonable suspicion of bias will usually arise only in the presence of such factors as a financial or strong personal interest in one of the litigants." Brody v. President & Fellows of Harvard College, 664 F.2d 10, 11 (1st Cir. 1981), cert. denied, 455 U.S. 1027 (1982). The professional relationships that a judge necessarily develops in the course of his duties ordinarily present no basis for recusal. See United States v. Harrelson, 754 F.2d at 1164-1166; Parrish v. Board of Commissioners, 524 F.2d 98 (5th Cir. 1975) (en banc), cert. denied, 425 U.S. 944 (1976). Moreover, "(p)rior contact with the victim of a crime is not sufficient to show judicial bias." United States v. Story, 716 F.2d 1088, 1091 (6th Cir. 1983). /6/ Petitioner makes no effort to demonstrate that the decision in this case is inconsistent with standards applied in any other decision. Indeed, this case presents an even less substantial basis for recusal than United States v. Harrelson, supra, the most closely analogous case. In Harrelson, the defendants were tried before Judge William S. Sessions, who at the time was a federal judge of the Western District of Texas, on charges arising from the murder of John H. Wood, Jr., also a federal judge of that district. Judge Sessions had known and worked with Judge Wood for eight or nine years, had served as an honorary pallbearer at Judge Wood's funeral, and had eulogized him at several memorial ceremonies. 754 F.2d at 1164-1165. Nonetheless, the court of appeals rejected the contention that Judge Sessions was under any obligation to recuse himself, finding that such circumstances fell "far short of casting his impartiality in doubt to reasonable people." Id. at 1166. Here, likewise, petitioner failed to present any facts demonstrating that Judge Alaimo had an actual bias or that the Judge's partiality could reasonably be questioned. 2. After petitioner's petition for mandamus was denied, the case proceeded to trial before Judge Alaimo, and the jury returned guilty verdicts on all counts. Under these circumstances, there is no reason to consider petitioner's disqualification claim on review of the denial of his petition for mandamus. When a final judgment has been entered in the district court, petitioner may raise that claim on appeal from his conviction and, if necessary, in a petition for a writ of certiorari seeking review of an unfavorable court of appeals' decision. /7/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General DEBORAH WATSON Attorney MARCH 1991 /1/ Petitioner was subsequently indicted in the Northern District of Georgia on a 70-count indictment charging him with the murders of Judge Vance and Mr. Robinson and related offense. United States v. Moody, No. 1:90-CR-383 (N.D. Ga.). Pet. App. 60-78. /2/ Petitioner challenged the appointment in proceedings that culminated in a petition to this Court for a writ of mandamus requiring Judge Tjoflat to vacate the appointment. On January 7, 1991, this Court denied the petition for a writ of mandamus. 111 S. Ct. 715. /3/ On February 27, 1990, all active and senior judges of the Eleventh Circuit, "acting on their own initiative," recused themselves from a civil action, to which petitioner was a party, that sought access to search warrants issued in connection with the investigation of Judge Vance's murder, as well as from "any other cases relating to the investigation of the murder of the Honorable Robert S. Vance in which (petitioner) is a party." Pet. App. 28. /4/ Section 144 provides, in pertinent part: Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therin, but another judge shall be assigned to hear such proceeding. /5/ Section 455 provides, in pertinent part: (a) Any justice, judge, or magistrate 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. /6/ Petitioner suggests in passing (Pet. 5, 8) that Judge Alaimo was obligated to appoint another judge to conduct a hearing on petitioner's Section 144 motion. However, Section 144 requires a presiding judge to assign another judge to conduct the recusal hearing only if there has been filed a "sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party." In this case, the statements in petitioner's affidavit, taken as true, were insufficient to require the trial judge's recusal. There was thus no need for a hearing before a different judge. /7/ The Seventh Circuit has held that a claim under Section 455(a) is reviewable only on a petition for a writ of mandamus, and not on direct appeal. E.g., Durhan v. Neopolitan, 875 F.2d 91, 97 (1989); Union Carbide Corp. v. U.S. Cutting Service, Inc., 782 F.2d 710, 712-713 (1986); United States v. Balistrieri, 779 F.2d 1191, 1204-1205 (1985), cert. denied, 475 U.S. 1095 (1986). That court has reasoned that, when a challenge to a judge is based solely on an appearance of impropriety, a defendant who has been convicted cannot show that his substantial rights were affected by the judge's refusal to recuse himself and any injury to the public's confidence in the legal system is complete. The Eleventh Circuit has not, to our knowledge, taken a position on this issue. But in any event, the Seventh Circuit's reasoning is as much a bar to a post-trial request for a writ of mandamus as it is to a direct appeal. No purpose would be served, even under the Seventh Circuit's reasoning, by further review of petitioner's request for a writ of mandamus. Because no final judgment has been entered and the case remains pending before Judge Alaimo, petitioner's request for a writ of mandamus is technically not moot. See Pet. 10. Petitioner is mistaken, however, in suggesting that the question presented is capable of repetition. The other case pending against petitioner has been assigned to a different judge, whom petitioner has not sought to recuse. There is no indication that petitioner will have any occasion in the future to challenge Judge Alaimo's ability to preside over a similar case.