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.