United States v. J.P. Stadtmueller

In the

United States Court of Appeals

For the Seventh Circuit

No. 09-2264

IN RE:

U NITED STATES OF A MERICA,

Petitioner.

Petition for Writ of Mandamus

from the Eastern District of Wisconsin.

No. 2:05-cr-00145-JPS-1—J.P. Stadtmueller, Judge.

JULY 10, 2009Œ

Before R IPPLE, R OVNER and W OOD , Circuit Judges.

R IPPLE, Circuit Judge. The United States (“the Govern-

ment”) has filed this petition for a writ of mandamus

seeking the recusal of the respondent district judge cur-

rently 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

Œ

This opinion was released initially in typescript form.

2 No. 09-2264

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.

I

BACKGROUND

A.

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.

Mr. Salahuddin was charged in state court with being

a felon in possession of a firearm. Later that month, a

state court commissioner dismissed the case for lack of

probable cause on the ground that there was insufficient

evidence connecting the guns to Mr. Salahuddin. The

state appealed, arguing that Mr. Salahuddin’s statement

indicated an ability to possess the guns. The state court

disagreed, however, and, in April 2003, affirmed the

commissioner’s dismissal of the case.

No. 09-2264 3

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. Shortly thereafter, the parties began

plea negotiations. 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 mini-

mum sentence. See 18 U.S.C. § 924(e)(1). According to the

prosecutor’s letter, Mr. Salahuddin’s criminal history

included juvenile convictions for resisting or obstructing

an officer, receiving stolen property, possession of a

controlled substance and three separate incidents of

burglary. He also had adult convictions for armed

robbery (for which he had been imprisoned for almost

eight years), being a felon in possession of a firearm,

carrying a concealed weapon, possession of marijuana

and escape. The assistant United States attorney calculated

Mr. Salahuddin’s advisory guideline range as 46-57

months’ imprisonment, but also advised Mr. Salahuddin

that “the judge will ultimately decide the defendant’s

criminal history score.” R.20, Att. 1.1 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

1

Citations to the record are to the district court’s docket

available on CM/ECF. There is no record on appeal.

4 No. 09-2264

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 Govern-

ment 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. Al-

though the deadline for filing pretrial motions had

expired, Mr. Salahuddin moved in March 2006 for leave

to file instanter two motions to suppress both the guns

and statements he allegedly had made. The motions

were referred to Magistrate Judge Goodstein who, reason-

ing that the delay in filing the suppression motions re-

sulted from the dispute over the applicability of the

armed career criminal statute, concluded that “in the

interests of justice” the motions should be entertained.

R.39 at 3. The Government sought review of that order in

the district court. Chief Judge Randa concluded in

May 2006 that Mr. Salahuddin had not met the “good

cause” requirement of Federal Rule of Criminal Procedure

12(e) and, therefore, reversed the magistrate judge’s

decision.2

2

Around the same time, the Government petitioned for

Mr. Salahuddin’s pretrial bond to be revoked. This matter

(continued...)

No. 09-2264 5

After a two-day trial in August 2006, Mr. Salahuddin

was convicted of being a felon in possession of a firearm.

See 18 U.S.C. § 922(g)(1). Mr. Salahuddin’s post-trial

motions for a judgment of acquittal and for a new trial

were denied, and Chief Judge Randa sentenced him to

180 months’ imprisonment; the sentence was the manda-

tory minimum for career criminals sentenced under

18 U.S.C. § 924(e) and also was below the advisory guide-

lines 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 admissibil-

ity of significant evidence.” United States v. Salahuddin,

509 F.3d 858, 862 (7th Cir. 2007). We remanded the case

with instructions to hear the suppression motions and,

if they were found to be meritorious, to order a new trial.

B.

On remand, the motions were referred to Magistrate

Judge Goodstein, who recommended that the motions be

2

(...continued)

was heard before Magistrate Judge Callahan, who agreed with

the Government that Mr. Salahuddin’s failure to return home,

as required by the conditions of his release, necessitated the

revocation of his bond. Mr. Salahuddin did not challenge the

petition for detention, and he was remanded into custody.

6 No. 09-2264

denied in their entirety. Mr. Salahuddin objected to the

magistrate judge’s report and recommendation, and

the Government filed a response. However, before the

district court issued a ruling on the report and recommen-

dation, Chief Judge Randa sua sponte recused himself

under Circuit Rule 36.3 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

3

Circuit Rule 36 provides in relevant part: “Whenever a case

tried in a district court is remanded by this court for a new

trial, it shall be reassigned by the district court for trial before

a judge other than the judge who heard the prior trial unless

the remand order directs or all parties request that the same

judge retry the case. . . .” Circuit Rule 36. It is not immediately

clear whether this rule required Chief Judge Randa to

recuse himself before ruling on the suppression motions.

Although the rule requires cases remanded for new trials to

be reassigned, this court’s opinion only conditionally directed

a new trial, which would be necessary only if the district

court first concluded that Mr. Salahuddin’s arguments were

meritorious. Orders directing the district court to undertake

further proceedings are routinely heard by the district judge

who entered the order that was the subject of the appeal.

Chief Judge Randa probably could have, consistent with

Circuit Rule 36, heard the suppression motions and, if neces-

sary, ordered the case reassigned if he concluded that a new

trial was warranted.

No. 09-2264 7

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 began by telling Mr.

Biskupic and Mr. Stiller that he would not hear discussion,

comment or response from either of them. According to the

parties’ submissions, the Judge then recounted the proce-

dural history of the case and reminded the office heads

that, before the confusion surrounding application of

the armed career criminal statute, both parties had pre-

ferred to resolve the case with a plea bargain. The Judge

also suggested that his pending ruling on the motions to

suppress would not satisfy either party and recom-

mended that they consult with the assigned attorneys to

explore the possibility of resolving the case without

additional litigation.

The Government adds that, in discussing the

procedural history of the case, the Judge suggested that

there was “an awful lot of blame to be spread around

for what he considered to be a total breakdown of justice.”

Pet. 4. The Government states that the Judge mentioned

the length of time that had passed between

Mr. Salahuddin’s arrest by state authorities and the

commencement of his federal prosecution and questioned

why the case was accepted for federal prosecution at

all, given that the qualifying conviction for armed career

criminal status was an armed robbery Mr. Salahuddin

had committed while a juvenile (he had been waived

into adult court). The Government further recites that

the Judge said the case should be resolved without

further litigation and that he recommended that the

8 No. 09-2264

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)),

recognizing that Mr. Salahuddin would have to waive

the statute of limitations.4 The Government submits that

the Judge suggested in the alternative that the case be

sent back to state court. Finally, the Government suggests

that, 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;5 that if the

case were to go forward there may be another appeal;

that the case was “an embarrassment to the justice sys-

tem”; and that he would recuse himself if requested. Pet. 5.

Neither the Judge nor Mr. Salahuddin challenges the

accuracy of the Government’s recitation of these addi-

tional facts.

Eleven days later, on October 20, 2008, the Government

moved for the Judge’s recusal pursuant to 28 U.S.C.

§ 455(a). On January 5, 2009, the Government inquired as

4

This account is corroborated by the Judge’s order of April 10,

2009, which denied the Government’s motion for reconsidera-

tion of its request for recusal. See R.117 at 5 n.1. (stating that “the

court thought it prudent to suggest an alternative disposition

under an otherwise appropriate statute that would not trigger

application of the enhancement”).

5

This concern also is corroborated by comments in the Judge’s

order of January 8, 2009, denying the Government’s motion

for recusal. R.107 at 1.

No. 09-2264 9

to the status of the case. Three days later, the Judge

issued an order adopting in part the report and recom-

mendation of the magistrate judge. 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 in its

entirety:

There remains but one additional matter—a recusal

motion filed by the government. The motion followed

a joint meeting between the court and counsel for the

parties as more fully detailed in an earlier footnote.

To be sure, on its face the motion represents nothing

more than an ill-considered, poorly-disguised, preemp-

tive collateral attack, albeit through the convenience

of forum shopping, on the wisdom of the court’s

decision announced today. The motion is denied.

R.107 at 30-31. The earlier footnote explains that:

The court was prepared to issue its decision on

de novo review of the magistrate’s recommendations

on October 10, 2008. As part of its review, the court

took note of the troubling procedural history of this

case and the ever-mounting commitment of limited

prosecution, defense, and judicial resources that,

when taken together, have become prohibitively

expensive and certainly less cost effective to taxpayer

interests. Thus, the confluence of these factors

together with the interests of justice more than sug-

gest that the court and counsel for the parties make

a good faith effort toward resolution of the case with-

10 No. 09-2264

out the necessity of further litigation. Toward that

end, on October 9, 2008, the court met in chambers

with the Federal Defender, Daniel Stiller, and the

United States Attorney, Steven Biskupic, to explain

that the court had completed its review of the magis-

trate’s recommendation and, without further elabora-

tion, indicated that neither side would be happy

with the court’s ruling since litigation in the case

would likely continue unabated. The court then pro-

vided counsel with additional relevant background

facts leading to the court’s recommendation that the

parties explore potential alternatives to the current

charge. The court concluded by stating that it would

withhold release of today’s ruling for a reasonable

period of time so as to provide the parties with a

safe harbor within which to consider an alternative

disposition.

R.107 at 2 n.1.

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. At

the final pretrial conference, the district court did not

rule on the motion for reconsideration, but did invite

the United States to respond to Mr. Salahuddin’s waiver

of recusal, which Mr. Salahuddin had filed in response

to the Government’s motion for reconsideration. The

Government declined to do so on the ground that, under

In re National Union Fire Insurance Co., 839 F.2d 1226, 1231

No. 09-2264 11

(7th Cir. 1988), it was inappropriate for the court to

solicit the parties’ views on recusal.

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, because neither the denial of the Government’s

motion nor comments made in judicial rulings were a

basis for recusal, and because the October 9 meeting

did not amount to interference with the Government’s

prosecutorial function.

Trial was set for May 18, 2009. On May 12, the Gov-

ernment filed in the district court a motion to stay pro-

ceedings 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.

Both this court and the district court granted motions to

12 No. 09-2264

stay the proceedings. We ordered Mr. Salahuddin to

respond and invited a response from the Judge. Those

responses have now been filed.

II

DISCUSSION

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).

A.

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) (quoting Roche v. Evaporated Milk

Ass’n, 319 U.S. 21, 26 (1943)). 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

No. 09-2264 13

for recusal.6 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) (quoting Hall v. Small Bus. Admin., 695

F.2d 175, 179 (5th Cir. 1983)). 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) (quoting SCA

Servs., Inc. v. Morgan, 557 F.2d 110, 116 (7th Cir. 1977)).

6

See, e.g., In re United States, 398 F.3d 615, 617 (7th Cir. 2005);

United States v. Boyd, 208 F.3d 638, 645 (7th Cir. 2000); In re

Hatcher, 150 F.3d 631, 637 (7th Cir. 1998); United States v. Horton,

98 F.3d 313, 316-17 (7th Cir. 1996); Hook v. McDade, 89 F.3d 350,

354 n.2 (7th Cir. 1996); In re Mason, 916 F.2d 384, 385 (7th Cir.

1990); Taylor v. O’Grady, 888 F.2d 1189, 1201 (7th Cir. 1989);

United States v. Balistrieri, 779 F.2d 1191, 1204-05 (7th Cir. 1985);

SCA Servs., Inc. v. Morgan, 557 F.2d 110, 117-18 (7th Cir. 1977);

but see Boyd, 208 F.3d at 649-50 (Ripple, J., dissenting) (noting

that this position is in tension with two decisions by the Su-

preme Court and has not been followed by other courts of

appeals).

14 No. 09-2264

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); Nat’l Union Fire Ins. Co., 839 F.2d at 1229.7

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).

B.

Mr. Salahuddin submits that the Government’s

petition is untimely. He suggests that this court requires

litigants to petition for mandamus “immediately after a

judge grants or denies a motion for recusal.” Salahuddin

Br. at 8 (citing United States v. Horton, 98 F.3d 313

(7th Cir. 1996), and United States v. Balistrieri, 779 F.2d 1191

(7th Cir. 1985)). Here, the district court denied the Gov-

ernment’s motion for recusal on January 8, 2009, and the

Government did not file this petition until May 12,

2009, four months after the motion was denied and one

month after the motion for reconsideration was denied.

We cannot accept this submission. The time during

which the Government sought reconsideration of the

7

See also Cheney v. United States Dist. Court, 541 U.S. 913, 924

(2004) (Scalia, J., in chambers); Microsoft Corp. v. United States,

530 U.S. 1301, 1302 (2000) (statement of Rehnquist, C.J.).

No. 09-2264 15

district court’s order denying its motion for recusal

should not be considered in determining the timeliness

of the petition.8 Mr. Salahuddin suggests no reason why

the rule should be otherwise, and, indeed, there are

significant benefits in excluding that period. Most impor-

tantly, there is significant judicial economy in not

requiring a party to file a petition for writ of mandamus

in the court of appeals while the district court recon-

siders its earlier denial. This approach gives the district

court adequate time to reflect on its order and, if necessary,

correct its own error before another court becomes in-

volved. Both the parties and the court of appeals are

spared the burden of an additional round of litigation.9

Requiring the petition to be filed any earlier would accom-

plish very little; indeed, in most instances, this court

would withhold judgment until the district court had

ruled on the motion to reconsider.

8

Neither the All Writs Act, 28 U.S.C. § 1651(a), nor Federal

Rule of Appellate Procedure 21, provides a specific time frame

within which all petitions for writ of mandamus must be filed.

9

Cf. United States v. Dieter, 429 U.S. 6, 8 (1976) (per curiam)

(noting that deferring appellate consideration until disposition

of a petition for rehearing saves time and reduces the burden on

appellate courts by “giving district courts the opportunity

promptly to correct their own alleged errors”); Divane v. Krull

Elec. Co., 194 F.3d 845, 850 (7th Cir. 1999) (explaining that

Federal Rule of Civil Procedure 59(e) allows district courts

to correct their own errors, thus avoiding “unnecessary appel-

late procedures” (quoting Moro v. Shell Oil Co., 91 F.3d 872,

876 (7th Cir. 1996))).

16 No. 09-2264

Here, the Government’s petition was filed more than a

month after the district court denied its motion to recon-

sider. Mr. Salahuddin suggests that this delay does not

comport with this court’s requirement that a petition for

a writ of mandamus to compel the recusal of a district

judge must be made “immediately” or not at all. Horton,

98 F.3d at 316-17; Balistrieri, 779 F.2d at 1205. Read

in context, however, these cases simply stand for the

proposition, 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.1 0

Rather than turning on the term “immediately,” our

cases have taken a fact-specific, pragmatic approach in

determining whether a petition seeking recusal is timely.

We have examined the prejudice to any other party or to

the district court caused by the delay and have examined

the amount of work that the delay would cause the new

judge to redo. See Nat’l Union Fire Ins. Co., 839 F.2d at

1232. Here, neither the Judge nor Mr. Salahuddin has

suggested any prejudice caused by the time it has taken

the Government to file its petition. Since denying the

Government’s motion for recusal, the Judge has issued,

10

See United States v. Ruzzano, 247 F.3d 688, 694 (7th Cir. 2001);

United States v. Troxell, 887 F.2d 830, 833 (7th Cir. 1989) (collect-

ing cases); N.Y. City Hous. Dev. Corp. v. Hart, 796 F.2d 976, 978-

79 (7th Cir. 1986) (per curiam).

No. 09-2264 17

in addition to the denial of the Government’s motion

for reconsideration and the order staying proceedings

pending this petition, only a handful of orders, most of

which concern scheduling. The Judge did rule on the

major issue on remand, the suppression motions, after

the Government filed its motion for recusal. However, the

Judge’s decision to resolve all the suppression motions

in the same order as the denial of the recusal motion

cannot be attributed to the Government. Any delay at-

tributable to the Government would not require significant

work to be redone by a new judge.

Moreover, the Government has given a significant

reason for the four-week intermission between the

denial of its motion for reconsideration and the filing of

this petition. The United States Attorney’s office was

required, under the policies of the Department of Justice,

to obtain the permission of the Solicitor General before

filing the petition for a writ of mandamus. 1 1 See United

States Attorneys’ Manual, § 2-2.124. The petition was

filed the day after permission was received. While this

requirement necessarily slows the progress of a case, it

has long been recognized as a salutary device to ensure

that governmental litigation is conducted in a manner

consonant with national norms rather than provincial

priorities.

11

This reason is mentioned in footnote 1 of the motion for stay,

but not in the petition for a writ of mandamus.

18 No. 09-2264

C.

We now turn to the merits of the Government’s submis-

sion. 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 637.1 2

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 neces-

sarily 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. In other contexts,

this and other courts have pointed out the need to make

a record whenever substantive discussions take place

between court and counsel, and we see no reason to

exempt the present situation from that admonition.1 3

12

This is an objective standard. Hook, 89 F.3d at 353-54. In

denying the motion for reconsideration, the Judge suggested

that the fact that Mr. Salahuddin did not desire his recusal

demonstrates that such a standard has been met. We

respectfully disagree. Mr. Salahuddin is not an impartial

observer. The Judge’s view of the future course of this prosecu-

tion clearly was favorable to the defendant.

13

See United States v. Head, 927 F.2d 1361, 1376 (6th Cir. 1991)

(observing that the parties’ divergent recollections of what

(continued...)

No. 09-2264 19

Indeed, the extraordinary nature of this meeting, evi-

denced by the Judge’s initial willingness to disqualify

himself, should it be requested, and his recognition

that such a proceeding was extraordinary, should have

made the need to memorialize the event even more obvi-

ous to the participants.

The substance of the discussion at the meeting con-

vinces 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 prohibi-

tion in the Federal Rules of Criminal Procedure that

forbids the court from becoming involved in plea negotia-

13

(...continued)

occurred during an off-the-record presentence conference

demonstrated the “serious dangers of such discussions off

the record” and, “[b]ecause of the uncertainties attendant to

this procedure,” remanding “with directions to afford a full

opportunity to defendant to address those parts of the sentenc-

ing” affected by the in-chambers conference); cf. Maltby v.

Winston, 36 F.3d 548, 561 n.18 (7th Cir. 1994) (noting that “it is

the responsibility of the district court, if it conducts the instruc-

tion conference without a court reporter, to provide the

parties with an opportunity to specifically object to jury instruc-

tions on the record”); United States v. Gallo, 763 F.2d 1504, 1532

(6th Cir. 1985) (holding that the defendant had waived viola-

tions of Court Reporters Act but noting that the “safe course”

was to “let the reporter record what takes place” during side

bars).

20 No. 09-2264

tions. See Fed. R. Crim. P. 11(c)(1).1 4 As the Fifth Circuit has

noted, “such involvement ‘is likely to impair the trial

court’s impartiality. The judge who suggests or

encourages a particular plea bargain may feel a personal

stake in the agreement . . . and may therefore resent the

14

Federal Rule of Criminal Procedure 11(c)(1) states:

(c) Plea Agreement Procedure.

1) In General. An attorney for the government and the

defendant’s attorney, or the defendant when proceed-

ing pro se, may discuss and reach a plea agreement. The

court must not participate in these discussions. If the

defendant pleads guilty or nolo contendere to either a

charged offense or a lesser or related offense, the plea

agreement may specify that an attorney for the govern-

ment will:

(A) not bring, or will move to dismiss, other

charges;

(B) recommend, or agree not to oppose the defen-

dant’s request, that a particular sentence or

sentencing range is appropriate or that a particu-

lar provision of the Sentencing Guidelines, or

policy statement, or sentencing factor does or

does not apply (such a recommendation or

request does not bind the court); or

(C) agree that a specific sentence or sentencing

range is the appropriate disposition of the case,

or that a particular provision of the Sentencing

Guidelines, or policy statement, or sentencing

factor does or does not apply (such a recom-

mendation or request binds the court once the

court accepts the plea agreement).

No. 09-2264 21

defendant who rejects his advice.’ ” United States v. Miles,

10 F.3d 1135, 1139 (5th Cir. 1993) (quoting United States v.

Adams, 634 F.2d 830, 840 (5th Cir. 1981)) (omissions in

original). 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 dis-

cussions 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.1 5

Here we must conclude that the Judge did more than

simply participate in a plea bargain.1 6 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. The statement that neither party would be

15

Because of the distinct possibility of such resentment, the

Rule is violated even when no plea negotiation actually takes

place. See United States v. Baker, 489 F.3d 366, 371 n.3 (7th Cir.

2007).

16

See United States v. Kraus, 137 F.3d 447, 457 (7th Cir. 1998)

(evaluating whether “the error in this case, or the appearance of

error, was harmless” and quoting Federal Rule of Criminal

Procedure 11(h) for the proposition that “[a]ny variance from

the procedures required by this rule which does not affect

substantial rights shall be disregarded,” but also noting that

“insofar as judicial intervention in the negotiation of a plea

agreement is concerned, the possibility of harmless error may

be more theoretical than real”).

22 No. 09-2264

pleased with his ruling on the suppression motions

could have been interpreted as indicating that he was ill-

disposed toward the Government’s position and might

rule based not on the merits, but on his distaste for its

prosecutorial decision. A reasonable, well-informed

observer well may have concluded that the Judge was

no longer acting as a neutral arbiter, but was advocating

for his desired result.

The Supreme Court has noted that:

[O]pinions formed by the judge on the basis of facts

introduced or events occurring in the course of the

current proceedings, or of prior proceedings, do not

constitute a basis for a bias or partiality motion unless

they display a deep-seated favoritism or antagonism

that would make fair judgment impossible. Thus,

judicial remarks during the course of a trial that are

critical or disapproving of, or even hostile, to, counsel,

the parties, or their cases, ordinarily do not support

a bias or partiality challenge. . . . [T]hey will do so if

they reveal such a high degree of favoritism or antago-

nism as to make fair judgment impossible.

Liteky v. United States, 510 U.S. 540, 555 (1994) (emphasis

in original). The parties therefore correctly acknowledge

that “[e]xpressions of impatience, dissatisfaction, annoy-

ance, and even anger,” do not establish bias or partiality.

Id. at 555-56. We must conclude, however, that, taken

in context, some of the Judge’s comments go further

and comment on substantive matters, rather than the

conduct of the proceedings. For example, as we have

just noted, the Judge questioned why this case was ac-

cepted for federal prosecution, expressed concern

No. 09-2264 23

about the time that had passed between Mr. Salahuddin’s

initial arrest and the commencement of federal proceed-

ings, and suggested that this case was an embarrassment

to the justice system and an inefficient allocation of tax-

payer resources. He also sought to avoid a conviction

under 18 U.S.C. § 924(c), so as to prevent imposition of

the fifteen-year mandatory minimum sentence.

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.1 7 The power of the

Executive Branch to make these decisions is a safe-

guard 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) (Posner, J., concurring in the judgment)

(quoting In re United States, 345 F.3d 450, 454 (7th Cir.

17

We cannot accept the suggestion that the appearance of

impropriety was somewhat lessened by the participation at the

meeting of policy-level officers—the United States Attorney

and the Federal Defender—rather than the litigating attorneys.

The United States Attorney has the ultimate authority to

prosecute cases. See 28 U.S.C. § 547. A reasonable observer

certainly could conclude that the purpose of the meeting was

to pressure the officers present at the meeting to direct their

subordinates to undertake the course of action preferred by

the Judge.

24 No. 09-2264

2003)). 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 (emphasis

supplied). 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. If the Government had the burden to establish

that fact, it would have indeed a high mountain to climb

in light of the Judge’s distinguished public service of

almost forty years. 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. Accordingly, all

orders entered by the Judge after the motion for recusal

was filed must be vacated. 1 8 The Judge is directed to

remove himself from further proceedings in this matter.

It is so ordered.1 9

18

See N.Y. City Hous. Dev. Corp., 796 F.2d at 979.

19

Because we have granted the Government’s writ of manda-

mus, the Government’s motion to compel disclosure is dis-

missed as moot.

6-17-09