Opposition Brief — Jurijus Kadamovas, Petitioner v. United States
Supreme Court briefJun 10, 2019
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No. 18-7489
________________________________________________________________
________________________________________________________________
IN THE SUPREME COURT OF THE UNITED STATES
_______________
JURIJUS KADAMOVAS, PETITIONER
v.
UNITED STATES OF AMERICA
(CAPITAL CASE)
_______________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
_______________
BRIEF FOR THE UNITED STATES IN OPPOSITION
_______________
NOEL J. FRANCISCO
Solicitor General
Counsel of Record
BRIAN A. BENCZKOWSKI
Assistant Attorney General
SCOTT A.C. MEISLER
Attorney
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
________________________________________________________________
________________________________________________________________
CAPITAL CASE
QUESTIONS PRESENTED
1.
Whether a conviction for hostage-taking by a foreign
national in the United States, in violation of 18 U.S.C. 1203,
requires proof of a nexus to international terrorism.
2.
Whether
Congress
had
the
authority
under
the
U.S.
Constitution to enact Section 1203.
3.
Whether the court of appeals erred in determining that
petitioner’s motion seeking the recusal of the district judge only
during the trial’s penalty phase, based on a no-longer active
circumstance
that
the
judge
had
disclosed
without
objection
several weeks earlier during the trial’s guilt phase, was untimely
and did not require the judge to step aside.
(I)
IN THE SUPREME COURT OF THE UNITED STATES
_______________
No. 18-7489
JURIJUS KADAMOVAS, PETITIONER
v.
UNITED STATES OF AMERICA
(CAPITAL CASE)
_______________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
_______________
BRIEF FOR THE UNITED STATES IN OPPOSITION
_______________
OPINION BELOW
The opinion of the court of appeals (Pet. App. 14-69) is
reported at 889 F.3d 1003.
JURISDICTION
The judgment of the court of appeals was entered on May 9,
2018.
A petition for rehearing was denied on September 7, 2018
(Pet. App. 13).
On November 25, 2018, Justice Kagan extended the
time within which to file a petition for a writ of certiorari to
and including February 4, 2019.
The petition was filed on January
2
14, 2019.
The jurisdiction of this Court is invoked under 28
U.S.C. 1254(1).
STATEMENT
Following a jury trial in the United States District Court
for the Central District of California, petitioner was convicted
on one count of conspiracy to take hostages resulting in death, in
violation
of
18
U.S.C.
1203;
three
counts
of
hostage
taking
resulting in death, in violation of 18 U.S.C. 1203; one count of
conspiracy to commit money laundering, in violation of 18 U.S.C.
1956(h); and one count of conspiracy to escape from custody, in
violation of 18 U.S.C. 371.
E.R. 174-213.
Judgment 1; Pet. App. 33; Joint C.A.
After the jury recommended that petitioner be
sentenced to death, the district court imposed a capital sentence
on each of the Section 1203 counts and a sentence of 240 months of
imprisonment on the remaining counts.
The court of appeals affirmed.
1.
national)
Judgment 1-2; Pet. App. 33.
Pet. App. 14-69.
In late 2001 and early 2002, petitioner (a Lithuanian
and
co-defendant
Iouri
Mikhel
(a
Russian
national)
abducted five people in Southern California, held them captive,
murdered them, and dumped their bodies in a reservoir outside
Yosemite National Park.
a.
Pet. App. 29-30.
In October 2001, petitioner, Mikhel, and Ainar Altmanis
hatched a plan to kidnap real-estate developer Meyer Muscatel.
Pet. App. 30.
Mikhel, posing as a businessman, asked Muscatel to
view a property with him, and when Muscatel agreed, they drove
3
together to the property, which was actually Mikhel’s house. Ibid.
When Muscatel entered, petitioner and Altmanis grabbed him, and
petitioner handcuffed his arms behind his back while Altmanis bound
his legs with plastic ties.
Ibid.
Mikhel then duct-taped Muscatel’s eyes and pistol-whipped his
head, drawing blood.
Pet. App. 30.
Petitioner and Mikhel took
Muscatel’s wallet and credit cards, quizzed him about his finances,
and unsuccessfully tried to withdraw money from his bank account.
Ibid.
When petitioner and Mikhel realized that they would not get
money
from
Muscatel,
they
injected
him
with
Dimedrol
(an
antihistamine with sedative properties) and held him to the ground.
Ibid.
Mikhel then placed a plastic bag over Muscatel’s head and
pinched his nose shut until Muscatel suffocated and died.
Ibid.
Petitioner and Mikhel loaded Muscatel’s body into petitioner’s van
and drove to the New Melones Reservoir outside Yosemite National
Park, where they tossed Muscatel’s body off the Parrots Ferry
Bridge and into the reservoir.
Id. at 29-30.
One of petitioner’s
friends later reported that petitioner found the incident “very
funny.”
b.
Id. at 30.
Petitioner and Mikhel next came up with a scheme to
kidnap wealthy Russian businessman George Safiev.
Pet. App. 30.
The first step was to abduct Safiev’s financial advisor, Rita
Pekler, and use her as bait.
Ibid.
In December 2001, petitioner
pretended to be interested in Pekler’s advice on a real-estate
transaction and convinced her to drive him to a property that he
4
claimed to be interested in buying, but which was actually his own
home.
Ibid.
When Pekler arrived at the house, Mikhel restrained
her and told her that, if she brought Safiev to them, they would
inject her with Dimedrol or get her drunk with vodka and then leave
her unharmed in a motel.
Ibid.
Pekler initially resisted, explaining that she was pregnant
and feared that the drugs or alcohol would harm the baby, but
ultimately relented and called Safiev. Pet. App. 30. After Safiev
told Pekler that he was too busy to meet, petitioner and Mikhel
“decided Pekler had outlived her usefulness,” and they injected
her with Dimedrol, strangled her, and threw her body off the
Parrotts Ferry Bridge.
Ibid.
Mikhel later told Altmanis that
Pekler had been difficult to kill, “like a snake,” because “she
was holding [on] for her life.”
c.
Gov’t C.A. E.R. 1462.
Later that month, at the suggestion of another co-
conspirator, petitioner and Mikhel targeted automobile-shop owner
Alexander Umansky.
lured
Umansky
to
Pet. App. 30.
petitioner’s
Posing as a customer, Mikhel
house,
where
petitioner
seated
Umansky in a chair, handcuffed him, and bound his legs with plastic
ties.
Id. at 30-31.
Petitioner and Mikhel took Umansky’s wallet,
questioned him about his finances, and used his debit card to
withdraw money from an ATM.
Id. at 31.
They kept Umansky trapped
in petitioner’s home for three days, forcing him to call his
brother and beg for money to secure his release.
Ibid.
Petitioner
and Mikhel also sent Umansky’s family a ransom note demanding
5
nearly $235,000; Umansky’s family wired part of the ransom to a
bank account in the United Arab Emirates that Mikhel had designated
and later paid the rest after receiving a call threatening harm to
other family members.
Ibid.; Gov’t C.A. E.R. 1544.
The ransom
money was laundered abroad and then deposited in accounts held by
petitioner and Mikhel.
Pet. App. 31.
When petitioner and Mikhel “decided they no longer needed
Umansky alive,” Mikhel shoved plastic bags in Umansky’s mouth,
duct-taped
his
mouth,
and
placed
a
bag
over
his
petitioner held him down and pinched his nose shut.
head
while
Pet. App. 31.
When those efforts failed to kill Umansky, Mikhel and Altmanis
strangled Umansky from behind with a rope.
Ibid.
Petitioner,
Mikhel, and Altmanis then loaded Umansky’s body into petitioner’s
van and, after a stop for dinner with Mikhel’s girlfriend, drove
to the New Melones Reservoir and threw Umansky’s body off the
Parrotts Ferry Bridge.
d.
Ibid.
In January 2002, petitioner and Mikhel devised a new
plan for trapping Russian businessman Safiev, this time through
his business partner, Nick Kharabadze.
Pet. App. 31.
After
petitioner’s girlfriend persuaded Kharabadze to come to a store
that petitioner and Mikhel owned, Mikhel handcuffed Kharabadze to
a chair, and petitioner and Mikhel forced Kharabadze to call Safiev
and lure him there.
Ibid.; Gov’t C.A. E.R. 1614-1616.
When Safiev
entered the store, Mikhel handcuffed him, and petitioner and Mikhel
then transported both Safiev and Kharabadze to petitioner’s house,
6
where they remained imprisoned for four days.
Pet. App. 31.
During that time, petitioner and Mikhel forced Safiev to contact
a business partner abroad and beg him to transfer $940,000 to a
foreign account.
Ibid.
In addition, petitioner recorded Safiev’s
voice to enable the conspirators to extort more money after Safiev
was dead.
Ibid.
After Mikhel confirmed receipt of the $940,000, petitioner,
Mikhel, and other co-conspirators plied Kharabadze and Safiev with
alcohol
and
drove
them
in
separate
cars
to
the
New
Melones
Reservoir.
Pet. App. 31.
The conspirators killed Safiev first,
and
later
that
Mikhel
stated
Safiev,
like
Pekler,
difficult to kill because he was “strong as a snake.”
32.
had
been
Id. at 31-
After the conspirators threw Safiev’s body off the Stevenot
Bridge and into the reservoir, Mikhel killed Kharabadze by placing
a plastic bag over his head and tightening a plastic tie around
his throat.
Id. at 31.
As they had done with Safiev, the
conspirators threw Kharabadze’s body off the Stevenot Bridge and
into the reservoir.
e.
Ibid.
Over the course of their activities, petitioner and
Mikhel obtained more than $1 million in ransom money.
Pet. App.
32. At one point, petitioner told a co-conspirator that he planned
to continue abducting people and throwing their bodies into the
reservoir until he had $50 million, even if it meant piling bodies
up to the surface of the water.
Id. at 31.
7
2.
After
federal
investigators
uncovered
evidence
of
petitioner’s and Mikhel’s involvement in the crimes described
above,
petitioner,
Mikhel,
and
a
third
co-conspirator
were
arrested and jailed in the same detention facility in Los Angeles.
Pet. App. 32.
They promptly began trying to escape.
Ibid.
Mikhel devised an escape plan that called for the three to
bore holes through their cell walls to reach an adjacent stairwell,
where they would use a hydraulic pump to push open a window’s bars,
climb through the window, and rappel to the ground.
Pet. App. 32.
“In accordance with the plan, Mikhel successfully smuggled a
veritable hardware store into his cell, including hacksaw blades,
wrenches, screwdrivers, fishing line, paint, work gloves, bolt
cutters, and a camcorder.”
Ibid.
Meanwhile, petitioner “managed
to change cells to be next to the stairwell intended for the
escape.”
Ibid.
Mikhel attempted to recruit another inmate to
join the escape conspiracy, warning him that they would have to
kill any guards they encountered during the escape.
inmate informed jail officials about the plan.
3.
a.
California
Ibid.
That
Ibid.
In 2004, a grand jury in the Central District of
returned
a
second
superseding
indictment
charging
petitioner and Mikhel with one count of conspiracy to take hostages
resulting in death, in violation of 18 U.S.C. 1203; three counts
of hostage taking resulting in death, in violation of 18 U.S.C.
1203, based on the kidnapping and murder of Umansky, Kharabadze,
and Safiev; one count of conspiracy to launder money, in violation
8
of 18 U.S.C. 1956(h); and one count of conspiracy to escape from
custody, in violation of 18 U.S.C. 371.
Pet. App. 33; Joint C.A.
E.R. 174-213.
Section 1203(a) by its terms provides that
whoever, whether inside or outside the United States, seizes
or detains and threatens to kill, to injure, or to continue
to detain another person in order to compel a third person or
a governmental organization to do or abstain from doing any
act as an explicit or implicit condition for the release of
the person detained, or attempts or conspires to do so, shall
be punished by imprisonment for any term of years or for life
and, if the death of any person results, shall be punished by
death or life imprisonment.
18 U.S.C. 1203(a).
Section 1203(b)(2) then provides that
[i]t is not an offense under this section if the conduct
required for the offense occurred inside the United States,
each alleged offender and each person seized or detained are
nationals of the United States, and each alleged offender is
found in the United States, unless the governmental
organization sought to be compelled is the Government of the
United States.
18 U.S.C. 1203(b)(2).
Congress first enacted Section 1203 in 1984
to satisfy the United States’ obligations under the International
Convention
Against
the
Taking
of
Hostages
(Hostage-Taking
Convention), done Dec. 17, 1979, T.I.A.S. No. 11,081, 1983 WL
144724 (entered into force June 3, 1983), to which the United
States is a party.
See Act for the Prevention and Punishment of
the Crime of Hostage-Taking, Pub. L. No. 98-473, Tit. II, Ch. XX,
Pt. A, §§ 2001-2003, 98 Stat. 2186 (enacting 18 U.S.C. 1203 (Supp.
II 1984)).
b.
The government filed a notice of intent to seek the death
penalty against both petitioner and Mikhel, and petitioner and
9
Mikhel
proceeded
Attorney’s
to
Office
for
prosecuting the case.
the
trial’s
together,
the
with
Central
the
District
United
of
evidence
guilt
of
phase,
the
government
petitioner’s
“the
detailed
testimony
coconspirators,”
testimony
from
other
and
of
witnesses
During
presented
Mikhel’s
three
States
California
Pet. App. 33; Joint C.A. E.R. 3044.
five-month
“overwhelming”
including
trial
guilt,
cooperating
who
linked
petitioner and Mikhel to the victims’ disappearances, DNA and
fingerprint evidence, and other physical evidence.
Pet. App. 51-
52; see id. at 30-33.
At a hearing on December 28, 2006, near the end of the guilt
phase, the district judge informed the parties that he had recently
submitted materials
in
response
to
an
inquiry
from
a
search
committee for the position of United States Attorney for the
Central District of California.
Pet. App. 36.
After noting that
he had previously announced his plans to retire from the bench
when this case was over, the district judge stated:
A couple of weeks ago I received a telephone call from a
search committee that’s looking to replace the United States
Attorney and they asked me to submit my name for that
position. The search committee is not associated with the
Justice
Department
nor
is
it
associated
with
the
administration. They make recommendations and they asked me
to submit my name. Whether anything comes of it I don’t know,
but I thought I should disclose this to you. I’m not doing
it for any financial gain, because I made it very clear that
if I do take the position that I would do it for a dollar a
year, because of the fact that I’m on a
* * *
judicial
pension, and I don’t believe in double dipping. So I do make
this disclosure to you. Again, I don’t know if anything is
going to come of it.
I haven’t been contacted by the
10
administration.
Washington.
I haven’t been contacted by anybody in
Id. at 37.
No one raised any objection.
Pet. App. 37.
The guilt phase
of trial continued, and a few weeks later, on January 17, 2007,
the jury found petitioner and Mikhel guilty as charged.
33, 37.
Id. at
The trial’s penalty phase began the following week, and
the government rested its case in chief in the penalty phase on
January 25, 2007.
On
January
Id. at 33; Gov’t C.A. E.R. 5850.
29,
2007,
Mikhel
filed
a
motion
(joined
by
petitioner) to recuse the district judge under 28 U.S.C. 455(a),
which requires a judge to recuse himself “in any proceeding in
which his impartiality might reasonably be questioned.”
Pet. App.
38 (citation omitted); see Joint C.A. E.R. 2066-2071; Gov’t C.A.
E.R. 5871.
Mikhel asked that the district judge “declare a
mistrial as to the penalty phase of this case, and then
* * *
recuse [him]self from presiding any further over this litigation.”
Joint C.A. E.R. 2068.
The judge denied the motion.
Joint C.A. E.R. 2133-2137.
Pet. App. 37;
The judge explained that he had
“submitted a form application” for the United States Attorney
position and had been interviewed only by a “screening committee,”
and not by “anyone [at] the Department of Justice o[r] White House
counsel’s office.”
Pet. App. 37 (second set of brackets in
original); Joint C.A. E.R. 2134.
The judge further stated that he
had since “withdrawn [his] name from consideration” and had been
11
informed that neither the Department of Justice nor the White House
had considered his application “on the merits.”
Pet. App. 37;
Joint C.A. E.R. 2136-2137.
Petitioner and Mikhel filed a petition in the court of appeals
for a writ of mandamus compelling the recusal of the district judge
and granting a mistrial limited to the trial’s penalty phase. Pet.
App. 37; Gov’t C.A. E.R. 7260-7269.
The court of appeals denied
the petition, stating in part that petitioner and Mikhel had
“arguably filed their motion to recuse the district judge too
late.”
Pet. App. 37; Gov’t C.A. E.R. 7287.
In February 2007, the jury returned penalty-phase verdicts in
petitioner’s
and
Mikhel’s
cases.
Pet.
App
33.
The
jury
unanimously found all nine aggravating factors proposed by the
government against both petitioner and Mikhel, and no juror found
any mitigating factor as to either petitioner or Mikhel.
Ibid.
The jury unanimously recommended that both petitioner and Mikhel
be sentenced to death, and the district court imposed that sentence
as to both petitioner and Mikhel on each of the four Section 1203
counts.
Ibid.
The court sentenced petitioner and Mikhel to 240
months of imprisonment on the remaining counts and ordered over
$1 million in forfeiture.
4.
Ibid.
After receiving more than 1700 pages of briefing and
hearing more than three hours of oral argument, the court of
appeals affirmed.
Pet. App. 33; see id. at 14-69.
12
a.
The court of appeals rejected petitioner’s contention,
raised for the first time on appeal, see Gov’t C.A. Br. 77-79,
that a conviction under Section 1203 requires “proof of a nexus to
international terrorism.”
court
explained
international
that
Pet. App. 34; see id. at 33-35.
Section
terrorism”
and
1203
“makes
determined
no
that
The
mention
of
petitioner’s
construction of Section 1203 was “infirm as a matter of statutory
interpretation” and foreclosed by circuit precedent.
Id. at 34.
The court of appeals next rejected petitioner’s contention,
again raised for the first time on appeal, see Gov’t C.A. Br. 7779,
that
Congress
exceeded
enacting Section 1203.
its
constitutional
Pet. App. 35-36.
authority
in
The court determined
that Section 1203 “was a valid exercise of Congress’s power under
the Necessary and Proper Clause together with the Treaty Power,”
reasoning that the Hostage-Taking Convention was “well within the
President’s Treaty Power” and that Section 1203 fulfills the United
States’
obligations
under
the
Convention,
“tracks
the
[Convention’s] language in all material respects,” and “clearly
bears a rational relationship to” the Convention.
Ibid.
In light
of that determination, the court found that it “need not consider
whether there might be other sufficient constitutional bases for
[Section 1203] as well, such as the Define and Punish Clause
or the Commerce Clause.”
* * *
Id. at 36, 67 n.3.
The court of appeals further determined that Congress had
acted within its authority in amending Section 1203 to authorize
13
the death penalty.
Pet. App. 36.
“If Congress has the power to
criminalize conduct,” the court explained, “it also has the power
to prescribe a constitutionally permissible punishment for that
conduct.”
Ibid.
The court observed that the Hostage-Taking
Convention, which “is not self-executing,” “explicitly leaves it
to each signatory to” decide on an appropriate punishment for
hostage taking that “‘take[s] into account the grave nature of
those offences.’”
Ibid. (quoting Hostage-Taking Convention art.
2, T.I.A.S. No. 11,081, at 5, 1983 WL 144724, at *2).
b.
The court of appeals also rejected petitioner’s claim
that the district judge abused his discretion under 28 U.S.C.
455(a) and violated petitioner’s due-process rights in declining
to recuse himself.
Pet. App. 36-38, 67 n.6.
As a threshold
matter, the court of appeals found that petitioner and Mikhel
“filed their recusal motion too late.”
Id. at 38.
The court
explained that “a recusal motion must be made in a timely fashion”
and “should be filed with reasonable promptness after the ground
for such a motion is ascertained.”
Id. at 37 (quoting E. & J.
Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280, 1295 (9th Cir.
1992)).
The court observed that, despite receiving “clear[]
notifi[cation]” that the district judge had responded to a request
for a submission to a United States Attorney search committee,
petitioner and Mikhel “withheld their motion while trial was
ongoing and waited to file until after the jury’s verdicts against
them, and after the government rested its penalty-phase case.”
14
Id. at 38.
In addition, the court of appeals noted that petitioner
and Mikhel “did not seek a mistrial as to the guilt phase” and
“likely recognized that the evidence of guilt was overwhelming.”
Ibid.
Based on those circumstances, the court saw “a heightened
risk” that petitioner and Mikhel were using the recusal motion
“for strategic purposes.” Ibid. (quoting Preston v. United States,
923 F.2d 731, 733 (9th Cir. 1991)).
The court of appeals also determined that the recusal motion
“fails on its merits” because “‘a reasonable person with knowledge
of all the facts’” would not have questioned the district judge’s
impartiality.
that
Pet. App. 38 (citation omitted).
determination
on
several
factors,
The court based
including
the
judge’s
“prompt[] and clear[] disclos[ure of] the alleged grounds for
recusal,”
the
fact
that
the
judge’s
application
was
never
considered on the merits, and the judge’s “immediate[]” withdrawal
of his application upon the filing of the recusal motion.
Ibid.
And because the court found no abuse of discretion under Section
455(a), which it described as “more stringent than due process,”
it also found that the district judge’s failure to recuse did not
violate petitioner’s rights under the Due Process Clause.
Id. at
67 n.6.
ARGUMENT
Petitioner renews his argument (Pet. 6-27), raised for the
first time on appeal, that 18 U.S.C. 1203 requires proof of a nexus
to international terrorism and that Congress lacked authority to
15
enact Section 1203.
Petitioner further argues (Pet. 27-40) that
28 U.S.C. 455(a) and the Due Process Clause required the district
judge’s recusal. 1
The court of appeals correctly rejected each of
petitioner’s claims, and its decision does not conflict with any
decision of this Court or another court appeals.
This case would
also be an unsuitable vehicle for reviewing petitioner’s various
claims, the first two of which he did not even raise in the district
court and would thus be subject to plain-error review, see Fed. R.
Crim. P. 52(b).
1.
Further review is unwarranted.
The court of appeals correctly rejected petitioner’s
contention (Pet. 7-15), raised for the first time in that court,
that conviction under Section 1203 requires proof that the hostage
taking had a connection to “international terrorism.”
The court
of appeals’ determination accords with the decisions of every other
court of appeals to address the issue and does not warrant this
Court’s review.
a.
As relevant here, Section 1203 applies broadly to a
foreign national who “seizes or detains and threatens to kill, to
injure, or to continue to detain” a person in the United States
“in order to compel [either] a third person or a governmental
organization to do or abstain from doing any act as an explicit or
All three questions are presented in the petition for a
writ of certiorari filed by petitioner’s co-defendant. See Mikhel
v. United States, No. 18-7835 (filed February 4, 2019). The first
two questions are also presented by the petition for a writ of
certiorari in Noel v. United States, No. 18-7485 (filed Jan. 16,
2019).
1
16
implicit condition for the release of the person detained.”
18
U.S.C. 1203(a); see 18 U.S.C. 1203(b)(2).
That plain statutory
language
and
“encompasses
not
only
kidnapping
ransom
demands
seeking to compel action of ‘a governmental organization,’” a
category of conduct that terrorist organizations might employ in
pressuring governments, “but also kidnapping and ransom demands
‘to compel a third person.’”
United States v. Noel, 893 F.3d 1294,
1300 (11th Cir. 2018), petition for cert. pending, No. 18-7485
(filed Jan. 16, 2019).
At the same time, as the court of appeals
recognized, the statutory text “makes no mention of international
terrorism.”
Pet. App. 34.
Section 1203 thus reaches “acts of
hostage taking for ransom between private parties” that bear no
connection to “governmental organizations” at all, let alone to
“terrorism,” however that nonstatutory term might be defined.
Noel, 893 F.3d at 1300 (citing 18 U.S.C. 1203(a)); see Pet. App.
34-35.
The court of appeals therefore correctly determined that
Section 1203’s plain language “squarely” encompasses the acts for
which petitioner was convicted and “does not require proof of a
nexus to international terrorism.”
Pet. App. 35.
The other courts of appeals to consider the question have
likewise found no ambiguity in the statutory language and have
declined
to
“limit[]”
Section
international terrorism.”
1203
“to
conduct
related
to
United States v. Rodriguez, 587 F.3d
573, 579-580 (2d Cir. 2009) (citing cases); see Noel, 893 F.3d at
1299-1300; United States v. Lin, 101 F.3d 760, 765-766 (D.C. Cir.
17
1997); United States v. Carrion-Caliz, 944 F.2d 220, 223 (5th Cir.
1991), cert. denied, 503 U.S. 965 (1992).
Although petitioner
contends (Pet. 6-8) that the Second Circuit “suggested” otherwise
in Rodriguez, that court discussed “whether [Section 1203] may be
validly applied to any conduct that is not related to international
terrorism” and determined that “the case law has now established
that
a
[Section
1203]
violation
international terrorism.”
does
not
require
a
link
to
587 F.3d at 579-580; see id. at 579
(citing cases).
b.
In urging a contrary result, petitioner attempts (Pet.
7-9, 13) to find support in the preamble and “context” of the
Hostage-Taking Convention, statements by individual legislators at
two
congressional
statement
subcommittee
transmitting
to
hearings,
Congress
President
proposed
Reagan’s
legislation
in
accordance with the Hostage-Taking Convention, and the fact that
the chapter of the public law that included Section 1203 was titled
“‘[t]errorism.’”
But this Court has repeatedly emphasized that
where, as here, “the statute is clear and unambiguous[,] that is
the end of the matter.”
Sullivan v. Stroop, 496 U.S. 478, 482
(1990) (citation and internal quotation marks omitted); see also,
e.g., Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253-254
(1992).
Because the plain text of Section 1203 clearly and
unambiguously covers acts of “abducting and holding * * * victims
for ransom,” Pet. App. 35, without any requirement of a nexus to
“terrorism” (or definition of that term), petitioner cannot impose
18
such an atextual limitation by invoking considerations outside the
statutory text.
Even accepting “that a primary focus of the
statute is on acts of terrorism,” Noel, 893 F.3d at 1300, “[t]he
Congress that wrote” Section 1203 “enacted a provision which goes
well beyond that,” Whitfield v. United States, 135 S. Ct. 785, 789
(2015) (addressing 18 U.S.C. 2113(e)).
Contrary to petitioner’s contention (Pet. 10-15), the Court’s
decision in Bond v. United States, 572 U.S. 844 (2014), does not
support engrafting a terrorism limitation onto Section 1203 that
is found nowhere in the statute’s operative text.
Bond was, as
this Court repeatedly stressed, a “curious” and “unusual” case.
Id. at 860, 863, 865.
The Court in Bond considered whether 18
U.S.C. 229(a), a federal statute that prohibits possessing or using
a “chemical weapon,” reaches conduct that the Court described as
“a purely local crime” -- namely, the defendant’s use of chemicals
to poison her romantic rival in a lovers’ quarrel.
572 U.S. at
848, 856-857.
Congress had enacted Section 229(a) “[t]o fulfill the United
States’ obligations” under an international convention on chemical
weapons, Bond, 572 U.S. at 848, and the Court determined that the
statute was ambiguous based on the confluence of several factors:
the
“dissonance”
between
the
limited
“ordinary
meaning”
of
“‘chemical weapon’” and the statute’s potential breadth if its
more technical definition applied to purely local conduct; “the
context from which the statute arose,” which the Court found
19
“demonstrate[d] a much more limited prohibition was intended”; and
the fact that “the most sweeping reading of the statute would
fundamentally upset the Constitution’s balance between national
and local power.”
“exceptional
Id. at 861, 866; see id. at 860.
convergence
of
factors,”
the
Court
That
reasoned,
“call[ed] for [it] to interpret the statute more narrowly,” id. at
866, in accordance with the “natural meaning of ‘chemical weapon,’”
which “takes account of both the particular chemicals that the
defendant used and the circumstances in which she used them,” id.
at 861.
The Court thus found Bond’s conduct, which involved
chemicals that were “not of the sort that an ordinary person would
associate with instruments of chemical warfare,” to be outside the
statute’s scope.
Ibid.
No such “exceptional convergence of factors” is present in
Section 1203.
As an initial matter, to the extent the section’s
title is taken into account, no “dissonance” exists “between th[e]
ordinary meaning” of the term “hostage taking” and the elements of
the offense set forth in Section 1203’s operative text.
U.S. at 861.
Bond, 572
To the contrary, Section 1203 comports with the
ordinary meaning of “hostage-taking” as “[t]he unlawful holding of
an unwilling person as security that the holder’s terms will be
met by an adversary.”
Black’s Law Dictionary 855 (10th ed. 2014);
see also Webster’s Third New International Dictionary 1094 (2002)
(defining “hostage” as “the state of a person given or kept as a
pledge
pending
the
fulfillment
of
an
agreement,
demand,
or
20
treaty”).
And as the court of appeals observed, the specific
conduct at issue in this case -- abducting multiple victims,
binding them with handcuffs and ties, demanding ransom from their
families and associates, and holding them prisoner while ransom
demands are met -- “comports with any ordinary understanding of a
‘hostage taking’”
Pet. App. 35.
Nor does Section 1203 alter the federal-state balance in any
way that supports a federalism-based limitation on the statute’s
reach.
Cf. Bond, 572 U.S. at 856-860.
As the court of appeals
explained, the “international component” of requiring that either
the perpetrator or victim be foreign (or found abroad) ensures the
statute will not cover conduct of “purely local” concern.
App. 35.
Pet.
And as petitioner’s own case demonstrates, acts of
hostage taking committed by or against foreign nationals (or by
those who flee to foreign countries) are likely to implicate
foreign-affairs and immigration concerns that the Constitution
commits
exclusively
to
the
federal
government. 2
See
ibid.
Although petitioner suggests in passing that Section
1203 “raises serious questions of equal protection of the laws”
because it draws distinctions on the basis of alienage, Pet. 14
(citation and internal quotation marks omitted), he does not
develop an equal-protection argument. In any event, every court
of appeals that has considered an equal-protection challenge to
Section 1203 has rejected it. See United States v. Ferreira, 275
F.3d 1020, 1025-1027 (11th Cir. 2001), cert. denied, 535 U.S. 977,
535 U.S. 1028, and 537 U.S. 926 (2002); United States v.
Montenegro, 231 F.3d 389, 394-395 (7th Cir. 2000); United States
v. Santos-Riviera, 183 F.3d 367, 373 (5th Cir. 1999), cert. denied,
528 U.S. 1054 (1999); United States v. Lue, 134 F.3d 79, 87 (2d
Cir. 1998); United States v. Lopez-Flores, 63 F.3d 1468, 1475 (9th
Cir. 1995), cert. denied 516 U.S. 1082 (1996).
2
21
(observing that petitioner and Mikhel “sent a ransom demand abroad
and laundered ransom money through foreign countries”).
It is
therefore not the case here, as it was in Bond, that state laws
will necessarily be “sufficient to prosecute” the criminal conduct
at issue, 572 U.S. at 864, and no further review of petitioner’s
atextual limiting construction is warranted.
2.
Petitioner
next
contends
(Pet.
15-27)
that
Congress
exceeded its enumerated powers in enacting Section 1203 and in
amending it in 1994 to authorize imposition of the death penalty
for hostage-taking offenses that result in death.
The court of
appeals correctly rejected those contentions, in accord with the
decisions of every other court of appeals to consider them.
Its
decision does not warrant this Court’s review, and this case would
be an unsuitable vehicle for revisiting this Court’s precedents on
the scope of congressional authority.
Congress enacted Section 1203 to satisfy the United States’
obligations
under
the
Hostage-Taking
Convention.
See
United
States v. Ali, 718 F.3d 929, 943 (D.C. Cir. 2013) (observing that
Section
1203
“fulfills
U.S.
treaty
obligations”
under
the
Convention).
The Convention requires its State parties, including
the
States,
United
to
punish
“hostage-taking”
offenses
with
“appropriate penalties which take into account the grave nature of
those
offences,”
Hostage-Taking
Convention
arts.
1(2)
and
2,
T.I.A.S. No. 11,081, at 5, 1983 WL 144724, at *2, and to “take
such measures as may be necessary to establish its jurisdiction
22
over,” inter
alia,
acts
of
hostage
taking
committed
“in
its
territory”; “by any of its nationals”; or against “a hostage who
is
a
national
of
that
State,
if
that
State
considers
it
appropriate,” id. art. 5(1)(a), (b), and (d), T.I.A.S. No. 11,081,
at 6, 1983 WL 144724, at *3.
The Convention’s definition of
“‘hostage-taking’” substantially corresponds to Section 1203(a),
providing that a person “commits the offence of taking hostages”
if he “seizes or detains and threatens to kill, to injure or to
continue to detain another person (
to
compel
a
third
party,
namely,
* * *
a
the ‘hostage’) in order
State,
an
international
intergovernmental organization, a natural or juridical person, or
a group of persons, to do or abstain from doing any act as an
explicit or implicit condition for the release of the hostage.”
Id. art. 1(1), T.I.A.S. No. 11,081, at 4-5, 1983 WL 144724, at *2;
see 18 U.S.C. 1203(a).
The Convention’s definition, similar to
Section 1203, does not apply when the act of hostage taking is
committed “within a single State, the hostage and the alleged
offender are nationals of that State and the alleged offender is
found in the territory of that State.”
Hostage-Taking Convention
art. 13, T.I.A.S. No. 11,081, at 11, 1983 WL 144724, at *5; see 18
U.S.C. 1203(b)(2).
Petitioner
argues
(Pet.
19-22)
that
Section
1203
is
unconstitutional on the theory that the Hostage-Taking Convention
falls outside the federal government’s Treaty Power.
See U.S.
Const. Art. II, § 2, Cl. 2 (authorizing the President, “by and
23
with the Advice and Consent of the Senate, to make Treaties,
provided
two
thirds
of
argument lacks merit.
the
Senators
present
concur”).
That
This Court has long recognized that an
“agreement with respect to the rights and privileges of citizens
of the United States in foreign countries, and of the nationals of
such countries within the United States,
scope of th[e treaty] power.”
40 (1931).
* * *
is within the
Santovincenzo v. Egan, 284 U.S. 30,
In Bond, Justice Thomas expressed the view “that the
Treaty Power can be used to arrange intercourse with other nations,
but not to regulate purely domestic affairs.”
572 U.S. at 884
(Thomas, J., concurring in the judgment); see id. at 897 (Alito,
J., concurring in the judgment) (agreeing “that the treaty power
is
limited
to
agreements
international concern”).
that
address
matters
of
legitimate
Justice Thomas made clear, however, that
such “intercourse with other nations
* * *
[]includ[es] their
people and property,” id. at 893, as reflected in, for example,
treaties providing protection for citizens of one country resident
in another or for extradition of foreign nationals.
See id. at
893-894 (citing, inter alia, Asakura v. City of Seattle, 265 U.S.
332, 341 (1924), and Holmes v. Jennison, 39 U.S. (14 Pet.) 540,
569 (1840)).
The
Hostage-Taking
Convention
falls
squarely
within
that
authority because it concerns the treatment of and the protections
afforded the “people” of “other nations” in the United States, as
well as the United States’ ability to protect its own nationals
24
resident in other countries.
See Bond, 572 U.S. at 893 (Thomas,
J., concurring in the judgment).
Accordingly, every court of
appeals to consider the issue has concluded that the “Convention
is well within the boundaries of the Constitution’s Treaty Power.”
United States v. Lue, 134 F.3d 79, 84 (2d Cir. 1998); see Noel,
893 F.3d at 1301-1302; Pet. App. 35-36.
And like every other court
of appeals to consider the question, the court below found that
Congress had the authority to enact Section 1203.
See Noel, 893
F.3d at 1301-1302; United States v. Shibin, 722 F.3d 233, 247 (4th
Cir. 2013), cert. denied, 572 U.S. 1089 (2014); Lue, 134 F.3d at
82-84; Pet. App. 35-36.
Petitioner also invokes (Pet. 15-18, 23) Justice Scalia’s
concurring opinion in Bond, 572 U.S. at 873-881 (Scalia, J.,
concurring in the judgment), to suggest that the Court revisit its
decision in Missouri v. Holland, 252 U.S. 416 (1920), in which
this Court held that, “[i]f [a] treaty” entered into by the
President with the advice and consent of the Senate “is valid[,]
there
can
be
no
dispute
about
the
validity
of
[a]
statute”
implementing that treaty “under Article I, § 8, as a necessary and
proper means to execute the powers of the Government.”
Id. at
432; see U.S. Const. Art. II, § 2 (empowering the President, “by
and with the Advice and Consent of the Senate, to make Treaties,
provided two thirds of the Senators present concur”).
But this
case does not implicate the core concerns that Justice Scalia
voiced, as Section 1203 is limited to conduct with a foreign nexus,
25
does not displace state authority, and does not afford the federal
government authority amounting to “a general police power.”
Bond,
572 U.S. at 879 (Scalia, J., concurring in the judgment). Instead,
as noted above, Section 1203 is limited to conduct involving
foreign nationals in the United States and U.S. nationals in
foreign countries.
Moreover, in light of its statutory focus,
Section 1203 may well be a valid exercise of other congressional
powers -- such as its authority over immigration, foreign commerce,
or the protection of U.S. nationals abroad -- in which case
reviewing the court of appeals’ specific reasoning would have no
effect on petitioner’s case.
to
“consider
whether
Cf. Pet. App. 36, 67 n.3 (declining
there
might
be
other
sufficient
constitutional bases for [Section 1203] as well”).
For similar reasons, petitioner’s contention (Pet. 22-27)
that Congress exceeded its authority when it amended Section
1203(a) in 1994 to authorize the death penalty for a hostagetaking offense that results in death likewise does not warrant
this Court’s review.
As the court of appeals explained, if
“Congress has the power to criminalize [the] conduct” described in
Section
1203,
“it
also
has
the
power
to
prescribe
constitutionally permissible punishment for that conduct.”
a
Pet.
App. 36; see Mistretta v. United States, 488 U.S. 361, 364 (1989)
(“Congress
* * *
has the power to fix the sentence for a federal
crime.”).
Contrary to petitioner’s contention (Pet. 22-24), the
amendment is consistent with the Hostage-Taking Convention, which
26
expressly requires the United States to punish hostage-taking
offenses with “appropriate penalties which take into account the
grave nature of those offences.”
5, 1983 WL 144724, at *2.
Art. 2, T.I.A.S. No. 11,081, at
The 1994 amendment reflects Congress’s
determination that the death penalty is an appropriate punishment
for a Section 1203 violation that results in death, and so long as
the criminal prohibition itself is within Congress’s authority,
the identification of an appropriate penalty is as well. 3
3.
Petitioner
additionally
contends
(Pet.
27-40)
that
28 U.S.C. 455(a) and the Due Process Clause required the district
judge to recuse himself.
The court of appeals correctly rejected
that factbound claim, its decision does not conflict with any
decision of this Court or another court of appeals, and this case
would be an unsuitable vehicle for further review.
a.
Under
28
U.S.C.
455(a),
“[a]ny
justice,
judge,
or
magistrate judge of the United States shall disqualify himself in
any proceeding in which his impartiality might reasonably be
questioned.”
On the particular facts of this case, the court of
appeals correctly determined that the district court did not abuse
Petitioner contends (Pet. 24-27) that Congress’s
authority to enact the 1994 amendment turns on five considerations
discussed in the context of United States v. Comstock, 560 U.S.
126 (2010), which upheld a civil-commitment statute. As petitioner
tacitly acknowledges (Pet. 24), however, this Court has never
suggested that those considerations drive the analysis in “the
treaty context,” and he identifies no sound reason why they would
limit Congress’s ability to choose the appropriate penalty for a
federal crime.
3
27
its discretion in denying petitioner and Mikhel’s motion seeking
disqualification based on the district judge’s response to a
request to submit materials to a search committee for a new U.S.
Attorney for the Central District of California.
Pet. App. 38.
As the court of appeals observed, the district judge “promptly and
clearly disclosed the alleged grounds for recusal to the parties”
and “immediately withdrew his application” upon the filing of the
recusal
motion,
before
the
“consider[ation] on its merits.”
application
Ibid.
received
any
The court of appeals thus
correctly found that no “reasonable person with knowledge of all
the
facts
would
impartiality.”
have
questioned
the
[district
judge’s]
Ibid.; cf. Mistretta, 488 U.S. at 410 (“We simply
cannot imagine that federal judges will comport their actions to
the wishes of the President for the purpose of receiving an
appointment to the Sentencing Commission.”). The court of appeals’
fact-bound rejection of petitioner’s recusal argument does not
warrant this Court’s review.
Contrary to petitioner’s contention (Pet. 37-38), the court
of appeals’ decision does not conflict with the Committee on Codes
of Conduct’s Advisory Opinion No. 84.
2B U.S. Courts, Guide to
Judiciary
https://www.uscourts.gov/
Policy,
Ch.
2,
No.
84,
sites/default/files/guide-vol02b-ch02-2019_final.pdf
visited June 7, 2019).
(last
That opinion states that “[a]fter the
initiation of any discussions” with a potential employer, a judge
should recuse himself “on any matter in which the [employer]
28
appears.”
Id. at 125.
Because the district judge here withdrew
his application for United States Attorney before “the initiation
of any discussions” with the Department of Justice or the White
House about his possible employment, ibid., Advisory Opinion No.
84 did not require him to recuse himself from petitioner’s case.
In addition, even if some tension existed between Advisory Opinion
No. 84 and the decision below, petitioner cites no authority to
support his contention that “lower federal courts are generally
bound by the opinions” of the Committee on the Codes of Conduct
and thus should be “direct[ed]
opinions.”
Pet. 28, 37.
* * *
to follow the Committee’s
Although the courts of appeals have
generally recognized that the views of the Committee on Codes of
Conduct should be given at least some weight, the Committee’s
opinions are “not a definitive interpretation of the statutory
recusal obligations of [Section] 455(a).”
Ragozzine v. Youngstown
State Univ., 783 F.3d 1077, 1080 (6th Cir. 2015); see also, e.g.,
Draper v. Reynolds, 369 F.3d 1270, 1280 (11th Cir.), cert. denied,
543 U.S. 988 (2004).
Petitioner’s
citations
of
decisions
by
other
courts
addressing recusal in other contexts (Pet. 38-39) are inapposite.
Those decisions address a judge’s obligation to recuse himself
from a prosecution by a United States Attorney’s Office when he
was
“actively
negotiating
for
employment”
with
the
Executive
Office for United States Attorneys, see Scott v. United States,
559 A.2d 745, 750 (D.C. 1989); from a case involving a law firm
29
that
had
informed
the
judge’s
“headhunter”
that
it
was
not
interested in hiring the judge, Pepsico, Inc. v. McMillen, 764
F.2d 458, 459-461 (7th Cir. 1985); and from a prosecution by a
county attorney’s office, where the judge had agreed to act as an
expert witness for that office in another case, State v. Pratt,
813 N.W.2d 868, 876-878 (Minn. 2012).
None of those opinions
states that a judge must recuse himself in the circumstances
presented here, i.e., where the judge responds to a request for
materials from a search committee for an executive-branch position
that requires nomination by the President and confirmation by the
Senate, promptly discloses that fact to the parties, and then
withdraws the application before it receives any “consider[ation]
on its merits.” 4
b.
The
Pet. App. 38.
court
of
appeals
also
correctly
rejected
petitioner’s contention (Pet. 39-40) that the Due Process Clause
required the district judge’s recusal.
Petitioner bases his due-
process claim on Williams v. Pennsylvania, 136 S. Ct. 1899 (2016),
and In re Murchison, 349 U.S. 133 (1955), but neither decision
supports
it.
Those
decisions
establish
that
“[d]ue
process
guarantees ‘an absence of actual bias’ on the part of a judge” and
The D.C. Circuit’s recent decision in In re Al-Nashiri,
921 F.3d 224 (2019), also does not address those circumstances.
See id. at 233-237 (discussing military judge’s obligation to
recuse himself from a case in which “the Attorney General was a
participant * * * from start to finish,” where the judge applied
for and later obtained a position as an immigration judge and “the
Attorney General himself [wa]s directly involved in selecting”
such judges).
4
30
that “an unconstitutional potential for bias exists when the same
person
serves
as
both
accuser
and
adjudicator
in
a
case.”
Williams, 136 S. Ct. at 1905 (quoting Murchison, 349 U.S. at 136)).
In Williams, the Court found “an impermissible risk of actual bias”
under the Due Process Clause “when a judge earlier had significant,
personal
involvement
as
a
prosecutor
in
a
critical
decision
regarding the defendant’s case” -- there, personally approving the
decision to seek the death penalty against the defendant.
Ibid.
And in Murchison, the Court held it unconstitutional for a judge
who had served as a “one-man grand jury” to preside over a contempt
hearing arising from the grand jury proceedings.
349 U.S. at 136.
No similar circumstances are present here.
Although
the
district
judge
responded
to
a
request
for
materials from a search committee for the position of United States
Attorney partway through trial, he later withdrew his submission
and never served as an accuser or prosecutor in petitioner’s case.
The judge thus had no “‘personal knowledge and impression’ of the
case, acquired through his
* * *
role in the prosecution,” that
might “carry far more weight with the judge than the parties’
arguments to the court.”
Williams, 136 S. Ct. at 1906 (quoting
Murchison, 349 U.S. at 138). Likewise, no “serious question arises
as to whether the judge
* * *
could set aside any personal
interest in the outcome,” and no “risk” exists that “the judge
‘would be so psychologically wedded’ to his
* * *
previous
position as a prosecutor that the judge ‘would consciously or
31
unconsciously avoid the appearance of having erred or changed
position.’”
Ibid. (citation omitted).
due-process
claim
would
fail
under
And because petitioner’s
any
standard
of
review,
petitioner would not be entitled to relief even if he could
establish that the court of appeals “applied the wrong standard of
review” to his due-process claim, Pet. 39.
c.
should
Petitioner
grant
review
also
argues
to
resolve
(Pet.
an
27-35)
asserted
that
the
circuit
Court
conflict
regarding whether Section 455 imposes a timeliness requirement on
motions for recusal under Section 455(a).
But answering that
question would have no effect on the outcome of petitioner’s case
because the court of appeals determined that, “[i]n addition to
its
untimeliness,
merits.”
[petitioner’s]
recusal
motion
Pet. App. 38; see pp. 26-31, supra.
fails
on
its
Petitioner’s case
is thus an unsuitable vehicle for addressing any question regarding
the timeliness of recusal motions.
In any event, the decision below does not implicate any
circuit conflict that warrants this Court’s review.
As petitioner
appears to recognize (Pet. 30-33), the courts of appeals, including
the court below, generally agree that Section 455(a) recusal
motions must be timely made and that a party’s failure to file a
timely
recusal
motion
appellate review.
affects
the
scope
or
availability
of
See, e.g., In re United States, 441 F.3d 44, 65
(1st Cir.), cert. denied, 549 U.S. 888 (2006); United States v.
Bayless, 201 F.3d 116, 127 (2d Cir.), cert. denied, 529 U.S. 1061
32
(2000); United States v. Vampire Nation, 451 F.3d 189, 208 & n.18
(3d Cir.), cert. denied, 549 U.S. 970 (2006); United States v.
Owens, 902 F.2d 1154, 1155-1156 (4th Cir. 1990); United States v.
York, 888 F.2d 1050, 1053-1055 (5th Cir. 1989); United States v.
Rubashkin, 655 F.3d 849, 858 (8th Cir. 2011), cert. denied, 568
U.S. 927 (2012); United States v. Nickl, 427 F.3d 1286, 1297 (10th
Cir. 2005); United States v. Slay, 714 F.2d 1093, 1094 (11th Cir.
1983) (per curiam), cert. denied, 464 U.S. 1050 (1984); United
States v. Brice, 748 F.3d 1288, 1289 (D.C. Cir. 2014) (opinion of
Kavanaugh,
requirement
J.);
Pet.
App.
“prevent[s]
37-38.
litigants
Enforcing
from
that
using
timeliness
§ 455(a)
for
strategic purposes,” Pet. App. 38, and “serves to induce the timely
raising of claims and objections, which gives the district court
the opportunity to consider and resolve them” and often enables
the district court to “avoid [a] mistake.”
Puckett v. United
States, 556 U.S. 129, 134 (2009) (discussing the value of applying
plain-error review to untimely objections).
Petitioner
contends
(Pet.
29-30)
that
“[t]he
Sixth
and
Seventh Circuits have held that § 455 does not have a timeliness
requirement,” but neither circuit appears currently to have a rule
that conflicts with the general principle that Section 455(a)
motions must be timely filed.
Although the Sixth Circuit once
stated that Section 455(a)’s text and legislative history contain
no
“suggestion”
that
a
timeliness
requirement
applies
to
“disqualification under [Section] 455,” Roberts v. Bailar, 625
33
F.2d 125, 128 n.8 (1980), that court has since determined that
Section 455 implicitly “require[s] that disqualification motions
be timely” and that “[t]imeliness is a factor that obviously merits
consideration” in reviewing recusal claims. In re City of Detroit,
828 F.2d 1160, 1167 (1987) (per curiam), abrogated on other grounds
by In re Aetna Cas. & Sur. Co., 919 F.2d 1136, 1139-1143 (6th Cir.
1990); see also, e.g., Bosley v. 21 WFMJ Television, Inc., 245
Fed. Appx. 445, 455 (6th Cir. 2007); McKibben v. Hamilton Cnty.,
215 F.3d 1327, No. 99-3360, 2000 WL 761879, at *6 (6th Cir. 2000)
(Tbl.); Callihan v. Eastern Ky. Prod. Credit Ass’n, 895 F.2d 1412,
No. 89-5578, 1990 WL 12186, at *2 (6th Cir. 1990) (Tbl.).
For its part, the Seventh Circuit stated 40 years ago in SCA
Servs., Inc. v. Morgan, 557 F.2d 110 (1977) (per curiam), that
Section
455
does
not
“contain
disqualification must be sought.”
any
time
limits
Id. at 117.
within
which
But that court
soon “question[ed]” that decision, Union Carbide Corp. v. U.S.
Cutting Serv., Inc., 782 F.2d 710, 716 (7th Cir. 1986), and
acknowledged that it “st[ood] alone,” United States v. Murphy, 768
F.2d 1518, 1539 (7th Cir. 1985), cert. denied, 475 U.S. 1012
(1986). And in United States v. Balistrieri, 779 F.2d 1191 (1985),
cert. denied, 475 U.S. 1094, and 475 U.S. 1095 (1986), overruled
by Fowler v. Butts, 829 F.3d 788 (7th Cir. 2016), the Seventh
Circuit concluded that “a timely petition for a writ of mandamus”
was the exclusive means of obtaining appellate review of “the
administration of [Section] 455(a) in the district courts,” thus
34
effectively requiring that Section 455(a) challenges be timely
made.
Id. at 1205.
The Seventh Circuit recently overruled the
mandamus-only rule it adopted in Balistrieri, see Fowler, 829 F.3d
at 791-795, and since that development, the court has not addressed
whether Section 455(a) recusal claims must be timely raised.
Accordingly, further review of any tension between the Seventh
Circuit’s decision in SCA Services and the decisions of other
courts of appeals is unwarranted at this time.
Petitioner also appears to argue (Pet. 29-33) that, even
his
Section
if
d.
455(a)
motion
was
subject
to
a
timeliness
requirement, the Court should grant review to resolve asserted
circuit conflicts regarding whether (1) “a recusal motion must be
made
at
‘the
earliest
possible
moment’
or
instead
within
a
‘reasonable’ time”; (2) the filing of an untimely motion “result[s]
in waiver or forfeiture allowing for plain error review”; and (3) a
timeliness requirement also applies to recusal motions under a
different subsection of the recusal statute, 28 U.S.C. 455(b).
Pet. 29 (citation omitted).
This case does not provide a suitable
vehicle for resolving those questions.
First, to the extent that petitioner believes that it would
be error to require a party to file a recusal motion at the
“earliest possible moment” (Pet. 34), his concern is theoretical
because the court of appeals here did not apply such a requirement.
Instead, the court below stated that Section 455(a) motions “should
be filed with reasonable promptness after the ground for such a
35
motion is ascertained,” Pet. App. 37, which reflects the more
permissive
reasonableness
standard
that
petitioner
advocates.
Second, although the court found that petitioner’s Section 455(a)
motion was untimely, it proceeded to consider the merits of the
motion and reviewed the district court’s recusal decision for abuse
of discretion.
Id. at 38, 67 n.6.
This case thus does not provide
a vehicle for deciding whether a court of appeals might err if it
treated
an
forfeited.
untimely
recusal
challenge
as
either
waived
or
Finally, because petitioner did not move for recusal
under Section 455(b), a decision that addresses the requirements
for such motions would have no effect on petitioner.
e.
Petitioner also briefly argues (Pet. 33-36) that this
case implicates a separate asserted conflict between the Seventh
Circuit and all other courts of appeals over the standard for
reviewing “timely recusal claim[s]” under Section 455(a).
As
petitioner acknowledges, “[t]he overwhelming majority of courts of
appeals apply the deferential abuse-of-discretion standard” in
reviewing the denial of recusal motions.
See 13D Charles Alan
Wright et al., Federal Practice and Procedure § 3553, at 146-161
& n.30 (3d ed. 2008 & Supp. 2019) (collecting cases).
Based on a decision addressing a Section 455(b) recusal claim,
see United States v. Diekemper, 604 F.3d 345, 351 (7th Cir. 2010),
petitioner asserts (Pet. 33) that “[t]he Seventh Circuit applies
de novo review.”
But as explained above, see pp. 33-34, supra,
the Seventh Circuit had only limited occasion to review recusal
36
challenges under Section 455(a) on direct appeal because of its
longstanding rule, in place until 2016, that such challenges had
to be raised in a mandamus petition.
In addition, the Seventh
Circuit previously stated that it “review[s] a district court
judge’s decision not to recuse himself for abuse of discretion,”
United States v. Franklin, 197 F.3d 266, 269 (1999), and it
recently applied that standard in affirming a district court’s
decision not to recuse himself under Section 455(a), see Whitlow
v. Bradley Univ., 722 Fed. Appx. 592, 593 (2018). Any intracircuit
inconsistency within the Seventh Circuit would not warrant this
Court’s review.
See Wisniewski v. United States, 353 U.S. 901,
902 (1957) (per curiam).
For several reasons, this case would also be an unsuitable
vehicle for addressing the proper standard of review for timely
Section 455(a) recusal claims.
appeals
applied
the
First, although the court of
abuse-of-discretion
standard,
it
also
determined that petitioner’s recusal claim was untimely, making
this case an odd vehicle for resolving any disagreement among the
courts of appeals regarding the appropriate standard of review for
timely
recusal
proceedings,
claims.
petitioner
Second,
and
during
Mikhel’s
the
recusal
district
motion
court
sought
a
mistrial only as to the trial’s penalty phase, see Pet. App. 38,
which indicates that they were not objecting to the district
judge’s failure to recuse himself during the guilt phase of trial.
Accordingly, to the extent that petitioner now argues that the
37
district judge should have recused himself sua sponte during the
guilt phase, that claim would not be timely under any standard and
should be reviewed only for plain error.
See Gov’t C.A. Br. 151-
153.
Finally, the court of appeals’ opinion does not indicate that
a different standard of review would affect that court’s resolution
of petitioner’s Section 455(a) recusal claim.
To the contrary,
the court of appeals conducted a thorough review of the facts
surrounding the district judge’s recusal decision, identified the
judge’s prompt withdrawal of his submission as a “particularly
significant” fact, and observed that the case would present “a
closer question” without that fact.
Pet. App. 38.
Nothing in
that analysis suggests that the court viewed the case, which does
include that fact, as sufficiently “close[],” ibid., that the de
novo standard petitioner seeks would have made a difference.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
NOEL J. FRANCISCO
Solicitor General
BRIAN A. BENCZKOWSKI
Assistant Attorney General
SCOTT A.C. MEISLER
Attorney
JUNE 2019
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.