Reply Brief — Daniel A. Rodriguez, Petitioner v. United States

No. 21-6630

IN THE

Supreme Court of the United States

______________

DANIEL ANGEL RODRIGUEZ,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

______________

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

______________

REPLY BRIEF FOR PETITIONER

______________

MICHAEL CARUSO

FEDERAL PUBLIC DEFENDER

ANDREW L. ADLER

Counsel of Record

ASS’T FED. PUBLIC DEFENDER

1 E. Broward Blvd., Ste. 1100

Ft. Lauderdale, FL 33301

(954) 356-7436

Andrew_Adler@fd.org

Counsel for Petitioner

March 24th, 2022

TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................... ii

REPLY BRIEF FOR PETITIONER .............................................................................. 1

I.

The Thirty-Year Old Circuit Split Should Be Resolved .................................. 2

II. This Case Is an Excellent Vehicle to Resolve the Split ................................... 8

III. The Majority View Is Wrong .......................................................................... 12

CONCLUSION............................................................................................................. 15

i

TABLE OF AUTHORITIES

Cases

Blackledge v. Perry,

417 U.S. 21 (1974) .................................................................................................... 14

Brownback v. King,

141 S. Ct. 740 (2021) ................................................................................................ 11

Caperton v. A.T. Massey Coal Co., Inc.,

556 U.S. 868 (2009) .................................................................................................... 4

Cheney v. U.S. Dist. Ct. for Dist. of Columbia,

541 U.S. 913 (2004) .................................................................................................... 4

Cheney v. U.S. Dist. Ct. for Dist. of Columbia,

542 U.S. 367 (2004) .................................................................................................... 5

Class v. United States,

138 S. Ct. 798 (2018) ............................................................................................ 1, 14

Cutter v. Wilkinson,

544 U.S. 709 (2005) .................................................................................................... 8

Harris v. Reed,

489 U.S. 255 (1989) .................................................................................................. 11

Liljeberg v. Health Servs. Acquisition Corp.,

486 U.S. 847 (1988) ...................................................................................... 3, 4, 7, 13

Liteky v. United States,

510 U.S. 540 (1994) .................................................................................................... 4

Menna v. New York,

423 U.S. 61 (1975) .................................................................................................... 14

Nguyen v. United States,

539 U.S. 69 (2003) .................................................................................................... 15

Patti v. United States,

540 U.S. 1149 (2004) ................................................................................................. 4

Potashnick v. Port City Const. Co.,

609 F.2d 1101 (5th Cir. 1980) ................................................................................. 12

ii

Sao Paulo State of Fed. Republic of Brazil v. Am. Tobacco Co., Inc.,

535 U.S. 229 (2002) .................................................................................................... 4

Schlagenhauf v. Holder,

379 U.S. 104 (1964) .................................................................................................... 5

Shearer v. United States,

528 U.S. 827 (1999) ................................................................................................... 4

United States v. Antar,

53 F.3d 568 (3d Cir. 1995) ...................................................................................... 4, 7

United States v. Broce,

488 U.S. 563 (1989) ............................................................................................ 14, 15

United States v. Jones,

718 F. App’x 181 (4th Cir. 2018) ................................................................................ 3

United States v. Lopez,

569 F. App’x 238 (5th Cir. 2014) ................................................................................ 2

United States v. Lovaglia,

954 F.2d 811 (2d Cir. 1992) ........................................................................................ 2

United States v. Musgrove,

426 F. App’x 754 (11th Cir. 2011) .............................................................................. 3

United States v. Patti,

337 F.3d 1317 (11th Cir. 2003) .......................................................................... 4, 6, 8

United States v. Pulido,

566 F.3d 52 (1st Cir. 2009) ......................................................................................... 2

United States v. Ross,

116 F.3d 487, 1997 WL 345646 (9th Cir. 1997)......................................................... 3

United States v. Shearer,

167 F.3d 538 (5th Cir. 1998) ...................................................................................... 3

United States v. Siegelman,

640 F.3d 1159 (11th Cir. 2011) ................................................................................ 12

United States v. Sturgis,

667 F. App’x 347 (2d Cir. 2016).................................................................................. 2

iii

United States v. Swallers,

897 F.3d 875 (7th Cir. 2018) ...................................................................................... 3

United States v. Voccola,

99 F.3d 37 (1st Cir. 1996) ........................................................................................... 2

Will v. United States,

389 U.S. 90 (1967) ...................................................................................................... 5

Williams v. Pennsylvania,

579 U.S. 1 (2016) ........................................................................................................ 4

Wood v. Milyard,

566 U.S. 433 (2012) .................................................................................................. 11

Statutes

28 U.S.C.

§ 455(a) .............................................................................................................. passim

§ 455(e) .................................................................................................... 12, 13, 14, 15

Rule

Fed. R. Crim. P. 11....................................................................................................... 13

iv

Other Authorities

John G. Roberts, Jr., Chief Justice of the United States,

2021 Year-End Report on the Federal Judiciary (Dec. 31, 2021) ............................. 3

U.S. Br. in Opp.

Patti v. United States,

540 U.S. 1149 (2004) (No. 03-575), 2003 WL 23010677............................................ 6

U.S. C.A. Br.

United States v. Barrios,

1997 WL 33553025 (9th Cir. Sept. 3, 1997) (No. 97-10131) ..................................... 3

United States v. Harrigan,

2003 WL 24045951 (3d Cir. Mar. 27, 2003) (No. 02-3911) ....................................... 3

United States v. Lopez,

2014 WL 271396 (5th Cir. Jan. 15, 2014) (No. 13-10709) ......................................... 3

United States v. Metz,

1998 WL 34184647 (11th Cir. Aug. 6, 1998) (No. 96-5484) ...................................... 3

United States v. Shimabukuro,

2019 WL 264785 (9th Cir. June 19, 2019) (Nos. 18-10269, 18-10338) ..................... 3

United States v. Swallers,

2018 WL 2203120 (7th Cir. May 4, 2018) (No. 17-2568)........................................... 3

v

REPLY BRIEF FOR PETITIONER

The question presented is whether an unconditional guilty plea, by itself,

waives a federal defendant’s right to appeal a district court’s failure to recuse under

28 U.S.C. § 455(a). The government expressly concedes that there is a “decades-old

disagreement” on that question among the circuits. BIO 7, 10. There is indeed. The

circuits first divided in 1990, and they have been divided 3-to-2 since 2003. The Fifth,

Tenth, and Eleventh Circuits have all held that an unconditional guilty plea waives

the right to appeal the district court’s failure to recuse under § 455(a). The First and

Second Circuits have held that it does not. For the last twenty years, lower courts

and commentators have repeatedly noted this intractable conflict. See Pet. 3, 10–14.

That conflict should be resolved. Guilty pleas resolve 97% of federal cases, and

it is “critically important that defendants, prosecutors, and judges understand the

consequences of these pleas.” Class v. United States, 138 S. Ct. 798, 807 (2018) (Alito,

J., dissenting). That is especially true where the consequence is a waiver of § 455(a),

a statute that Congress enacted to ensure public confidence in the federal Judiciary.

Reported decisions, as well as the government’s own briefs, confirm that this waiver

question has recurred for the last three decades. And it will affect the outcome where

§ 455(a) matters most: criminal cases where the judge erroneously fails to recuse.

Vehicle-wise, the government does not dispute that this case squarely presents

the waiver question. And it agrees that such vehicles are “rare.” BIO 12. It argues

only that Petitioner might not prevail on his § 455(a) claim. But that is an issue for

remand, as the Eleventh Circuit held only that his claim was waived. That was error.

1

I.

The Thirty-Year Old Circuit Split Should Be Resolved

Notwithstanding the “decades-old disagreement” among the circuits, the

government argues that the question presented “does not warrant this Court’s

review.” BIO 10. But it offers no sound reason to let the split persist indefinitely.

1.

As an initial matter, the government does not dispute any of Petitioner’s

arguments for why this Court’s review is warranted. To recap: the question presented

implicates the integrity of the Judiciary and the administration of criminal justice;

97% of all federal criminal cases––60,000 in 2020 alone––are resolved by guilty plea;

the split injects confusion into plea bargaining, plea hearings, and the resolution of

§ 455(a) claims on appeal; and the split undermines the very purpose of § 455(a) to

ensure public confidence in the Judiciary, as it leads to the disparate judicial

treatment of § 455(a) claims on appeal based solely on geography. See Pet. 3, 14–16.

2.

The government asserts, without further explanation, that review is

unwarranted because the “question presented arises infrequently.” BIO 7. But five

circuits have issued precedential decisions resolving it. See Pet. 10–13 (summarizing

cases). In line with those precedents, the First and Second Circuits have addressed

§ 455(a) claims that would have otherwise been waived by a plea. See, e.g., United

States v. Pulido, 566 F.3d 52, 55, 62–63 (1st Cir. 2009); United States v. Voccola, 99

F.3d 37, 39, 41–43 (1st Cir. 1996); United States v. Sturgis, 667 F. App’x 347, 348–39

(2d Cir. 2016); United States v. Lovaglia, 954 F.2d 811, 814–17 (2d Cir. 1992). By

contrast, the Fifth and Eleventh Circuits have deemed § 455(a) claims waived by a

plea. See, e.g., United States v. Lopez, 569 F. App’x 238, 238–39 (5th Cir. 2014);

2

United States v. Musgrove, 426 F. App’x 754, 758 (11th Cir. 2011); United States v.

Shearer, 167 F.3d 538 (5th Cir. 1998). Three more circuits have noted but bypassed

the waiver question by rejecting § 455(a) claims on the merits. See, e.g., United States

v. Swallers, 897 F.3d 875, 877 n.2 (7th Cir. 2018); United States v. Jones, 718 F. App’x

181, 184–85 (4th Cir. 2018); United States v. Ross, 116 F.3d 487, 1997 WL 345646,

at *1 (9th Cir. 1997). Finally, the government itself has filed briefs in each of the last

three decades noting the split.1 These reported decisions and briefs, which are not

exhaustive, confirm that the waiver “question recurs with some frequency.” Pet. 19.

The government also asserts, again without further explanation, that the

waiver question has “little practical significance.”

BIO 7.

To the extent the

government is arguing that it will not be dispositive in a substantial number of cases,

that is only because federal judges do not violate § 455(a) in a substantial number of

cases. But the federal Judiciary is “duty-bound to strive for 100% compliance” with

§ 455(a) “because public trust is essential, not incidental, to [its] function.” John G.

Roberts, Jr., Chief Justice of the United States, 2021 Year-End Report on the Federal

Judiciary 3 (Dec. 31, 2021). Yet history teaches that such violations do occur. See,

e.g., Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847 (1988) (trial judge had

1

See, e.g., United States v. Shimabukuro, U.S. Br., 2019 WL 2647857, at *18–19 (9th

Cir. June 19, 2019) (Nos. 18-10269, 18-10338); United States v. Swallers, U.S. Br.,

2018 WL 2203120, at *5–6 (7th Cir. May 4, 2018) (No. 17-2568); United States v.

Lopez, U.S. Br., 2014 WL 271396, at *15–17 & nn.6–8 (5th Cir. Jan. 15, 2014) (No. 1310709); United States v. Harrigan, U.S. Br., 2003 WL 24045951, at *30–31 (3d Cir.

Mar. 27, 2003) (No. 02-3911); United States v. Metz, U.S. Br., 1998 WL 34184647,

at *15–17 (11th Cir. Aug. 6, 1998) (No. 96-5484); United States v. Barrios, U.S. Br.,

1997 WL 33553025, at *12 (9th Cir. Sept. 3, 1997) (No. 97-10131).

3

financial conflict of interest); United States v. Antar, 53 F.3d 568, 572–79 (3d Cir.

1995) (trial judge made improper remarks at sentencing); BIO 11 (citing three

criminal cases where § 455(a) mandated recusal); see also Williams v. Pennsylvania,

579 U.S. 1 (2016) (due process violation where state supreme court justice who voted

to uphold capital sentence had been the prosecutor to approve the charges). And it is

in those very cases where the waiver question will affect the outcome, for it will

determine whether the § 455(a) violation can be remedied on appeal. That class of

cases warrants close scrutiny because unchecked recusal violations threaten to

undermine the public’s confidence in the Judiciary. This Court has always taken that

threat seriously, granting review on recusal issues in each of the last four decades.2

The dynamic above also explains why the Court has not yet had occasion to

resolve the question presented. Because § 455(a) violations are relatively uncommon,

courts of appeals tend to resolve claims on the merits, not waiver. The upshot is that

suitable vehicles for certiorari seldom come along.

Indeed, according to the

government, the last petition to present the waiver question came nearly 20 years

ago, and the only other petition to do so came last century (and before Patti). See

BIO 7 (citing cert. denials in Patti v. United States, 540 U.S. 1149 (2004) and Shearer

v. United States, 528 U.S. 827 (1999)). However, as reiterated below, the waiver

question is dispositive here: Petitioner—who is serving a 33-year sentence—has a

2

See, e.g., Williams, 579 U.S. 1 (2016); Caperton v. A.T. Massey Coal Co., Inc., 556

U.S. 868 (2009); Sao Paulo State of Fed. Republic of Brazil v. Am. Tobacco Co., Inc.,

535 U.S. 229 (2002); Liteky v. United States, 510 U.S. 540 (1994); Liljeberg, 486 U.S.

847 (1988). Individual Justices have also issued in-chambers recusal opinions. See,

e.g., Cheney v. U.S. Dist. Ct. for Dist. of Columbia, 541 U.S. 913 (2004) (Scalia, J.).

4

meritorious § 455(a) claim that the Eleventh Circuit deemed waived by virtue of his

plea. Had he been convicted in the First or Second Circuits, that § 455(a) violation

would have been remedied. This very case, then, illustrates the importance of the

waiver question to the administration of justice. The Court should not remain idle in

the face of that geographic disparity and risk yet another three decades of confusion.

3.

The government emphasizes that the waiver rule adopted by the Fifth,

Tenth, and Eleventh Circuits does not create “insuperable barriers” to appellate

review because writs of mandamus remain available. BIO 10–11. But “[i]t is, of

course, well settled, that the writ is not to be used as a substitute for appeal,”

Schlagenhauf v. Holder, 379 U.S. 104, 110 (1964), especially in the criminal context,

see Will v. United States, 389 U.S. 90, 96–97 (1967). Indeed, mandamus is a “drastic

and extraordinary remedy reserved for really extraordinary causes.” Cheney v. U.S.

Dist. Ct. for Dist. of Columbia, 542 U.S. 367, 380 (2004) (quotation omitted). Thus, a

mandamus “petitioner must satisfy the burden of showing that his right to issuance

of the writ is clear and indisputable.” Id. at 381 (quotations and brackets omitted).

If the waiver rule adopted by the Fifth, Tenth, and Eleventh Circuits is

wrong—and, as reiterated below, it is—then the remote possibility of mandamus does

not cure the denial of a defendant’s statutory right to appeal. Nearly half of all federal

defendants to plead guilty do so in one of those three circuits. See Pet. 14–15. Yet,

to obtain mandamus, they must satisfy stringent legal standards and heightened

burdens of proof that would not apply in their direct criminal appeals. On appeal,

they need not show “extraordinary” circumstances or a “clear and indisputable”

5

§ 455(a) violation. They need show only that “an objective, disinterested, lay observer

fully informed of the facts underlying the grounds on which recusal was sought would

entertain a significant doubt about the judge’s impartiality, and any doubts must be

resolved in favor of recusal.” United States v. Patti, 337 F.3d 1317, 1321 (11th Cir.

2003) (citation omitted). Thus, mandamus is cold comfort to the large swath of

defendants who plead guilty each year in the Fifth, Tenth, and Eleventh Circuits.

Once again, this case illustrates the point. After the district court denied

Petitioner’s recusal motions, he sought two writs of mandamus from the Eleventh

Circuit directing the district court to recuse.3 The Eleventh Circuit summarily denied

both petitions. The government speculates that it did so because the petitions were

without merit. BIO 11–12. But, given the strength of Petitioner’s claim, the denials

were more likely due to the near-“insuperable” procedural barriers to mandamus.

Regardless, the Eleventh Circuit’s cursory treatment shows that mandamus does not

afford defendants the robust review and process that they would otherwise receive on

appeal. Nor should it; again, mandamus is not supposed to substitute for an appeal.

That well-settled proposition also reveals the problem with the government’s

argument even if the waiver rule in the Fifth, Tenth, and Eleventh Circuits were

correct. On the government’s view, defendants in those circuits should liberally

employ mandamus as a substitute for the very appeals that their guilty pleas have

waived, clogging the circuits with interlocutory appeals masquerading as mandamus

3

Unlike Petitioner, the defendant in Patti did not seek mandamus on the recusal

issue, a fact that the government emphasized when opposing review there. See BIO

8–10, Patti v. United States, 540 U.S. 1149 (2004) (No. 03-575), 2003 WL 23010677.

6

petitions. That cannot be right. Notably, the government cites no case where a court

of appeals has granted mandamus after a plea. In all likelihood, then, no appellate

review will be permitted in that posture. Meanwhile, similarly-situated defendants

in the First and Second Circuits will continue to receive plenary appellate review.

The government identifies a grand total of three § 455(a) cases in all of history

where mandamus was granted (BIO 11), but in those cases mandamus was sought

before the entry of any plea. While mandamus in that posture would not circumvent

any plea-based waiver, the facts giving rise to a § 455(a) violation are not always

known––and sometimes do not even exist—at the outset of a case. See, e.g., Liljeberg,

486 U.S. at 863 n.11, 869 (explaining that, through no fault of the parties, the judge’s

conflict was first discovered 10 months after the judgment was affirmed on appeal);

Antar, 53 F.3d at 572–79 (finding a § 455(a) violation based on the judge’s remarks

at sentencing). And where the § 455(a) claim is discovered or arises after the plea,

the government’s expansive view of mandamus would permit, if not incentivize,

criminal defendants to circumvent their plea-based waivers via extraordinary writs.

In sum, the government’s mandamus arguments bolster rather than

undermine the need to resolve the split. On the one hand, if the Fifth, Tenth, and

Eleventh Circuits are wrong that a guilty plea waives a § 455(a) claim for appeal,

then defendants will be denied their statutory right to appeal—a violation that is not

cured by the remote prospect of mandamus—and § 455(a) violations will fall through

the cracks. On the other hand, if the waiver rule in those three circuits is correct,

then defendants will (on the government’s view) be free to use mandamus as a

7

substitute for the appeals that they have waived, and similarly-situated defendants

in the First and Second Circuits will receive plenary appellate review when they

should receive none at all. Either way, mandamus is no basis to leave the split intact.

II.

This Case Is an Excellent Vehicle to Resolve the Split

1.

As explained in the Petition (at 7–9, 16–17), this case neatly tees up the

question presented. Petitioner moved to recuse Judge Ungaro, Dist. Ct. ECF Nos.

277, 280, and she denied his request on the merits, Pet. App. E, 60a–65a. After

unsuccessfully seeking mandamus, Petitioner reiterated his § 455(a) argument on

direct appeal. Without addressing the merits, the Eleventh Circuit held that he had

“waived any argument concerning his § 455(a) motion when he entered a voluntary

and unconditional guilty plea.” Pet. App. 8a (citing Patti, 337 F.3d at 1320). After

that dispositive holding, he sought rehearing en banc, unsuccessfully urging the

Eleventh Circuit to overrule Patti and adopt the law in the First and Second Circuits.

Given that clean procedural posture, the government does not dispute that this case

squarely presents and implicates the waiver question dividing the circuits. BIO 10.

2.

Instead, the government lodges only a superficial vehicle objection. It

argues that, even if the Eleventh Circuit erroneously held that Petitioner’s § 455(a)

claim was waived, he “would not be likely” to prevail on the merits. BIO 12. But

while the Eleventh Circuit did reject his argument that the 1994 recusal order

applied, it did not address the merits of his “alternative[ ]” recusal argument based

on § 455(a). Pet. App. 7a–8a; see BIO 4–6. Thus, the merits of Petitioner’s § 455(a)

claim is not before this Court. See Pet. 17; Cutter v. Wilkinson, 544 U.S. 709, 718 n.7

8

(2005) (“we are a court of review, not of first review”). And because that claim would

be addressed in the first instance by the court of appeals, it is irrelevant here whether

that claim involves “atypical facts” (BIO 12), as compelling recusal claims often do.

3.

In any event, the government’s arguments fail even on their own terms.

a.

The government argues that § 455(a) did not require Judge Ungaro’s

recusal (BIO 13–14 & n.*), but its analysis is incomplete. The government argues

that recusal is not required merely because Petitioner was charged with assaulting

Judge Highsmith in an unrelated case back in 1994. BIO 13. But that analysis omits

two crucial (and undisputed) facts. See Pet. 6–7, 18; BIO 4–5. First, Judge Ungaro

was Judge Highsmith’s colleague at the time of the alleged assault, and she remained

his colleague until he retired in 2008. Second, in 2010, the District’s Chief Judge

displayed actual bias against Petitioner by opposing his request for sentencing credit

on the ground that he had “actual[ly] attack[ed]” Judge Highsmith, Dist. Ct. ECF No.

277-2, a charge for which Petitioner had been acquitted. The Ninth Circuit later held

that this letter violated not only § 455(a) but due process. For no discernible reason,

the Chief Judge sent his letter to every Judge in the District, including Judge Ungaro.

The government omits this key episode from its analysis (BIO 13), but it re-poisoned

the judicial well. These troubling facts alone raise an appearance of impropriety.

Judge Ungaro’s actions in Petitioner’s criminal case exacerbated rather than

mitigated that appearance. The government does not dispute that she ruled against

him at every turn, ultimately imposing a 33-year sentence—effectively a life sentence

for a then 47-year old man. Pet. 8–9, 18. Nor can the government deny that Judge

9

Ungaro knew about the “Judge Highsmith assault” before counsel informed her

(BIO 13 n.*), confirming that she had recalled Petitioner due to his notoriety in the

District and/or that she had been infected by the Chief Judge’s 2010 letter. Pet. 7–8,

18. And her damning comment that recusal would be a “gift” to Petitioner indicates

that she had negatively pre-judged his upcoming sentencing. Pet. 8, 18. Indeed, that

comment came in the context of discussing whether Petitioner would represent

himself at sentencing. In light of these additional facts, a reasonable observer could

surely question Judge Ungaro’s impartiality. The most the government can say is

that the Eleventh Circuit affirmed her rulings on appeal. BIO 13–14. But it did so

after reviewing ten of her rulings deferentially—all for abuse of discretion, clear

error, or plain error. If anything, that highlights just how much discretion Judge

Ungaro—a statutorily disqualified judge—exercised in Petitioner’s criminal case.

Finally, Judge Ungaro did recuse from a civil suit that Petitioner brought

against the Chief Judge based on the letter. Pet. 18–19. And that recusal occurred

shortly after she sentenced Petitioner (and denied his motion for compassionate

release). Even if her recusal in the civil case could be attributed to the Chief Judge’s

status as a party, as the government speculates (BIO 13 n.*), a reasonable observer

could still find it disconcerting that she did not also recuse in the criminal case, where

Petitioner’s liberty was at stake. It is not every day that a federal judge recuses from

a civil case brought by a person over whose criminal case she is actively presiding,

especially where the same core facts underlie the request for recusal in both the civil

and criminal cases. At best, this situation was highly irregular and ethically fraught.

10

b.

Unable to impugn the merits of Petitioner’s § 455(a) claim, which is not

even presented for review, the government also asserts, in one passing sentence, that

Petitioner’s failure to timely seek recusal “may have forfeited” such relief. BIO 12–

13. But that equivocal assertion fails on procedural, legal, and factual grounds.

Procedurally, the Eleventh Circuit did not address any timeliness issue, and

this Court routinely grants review where a district court has alternatively ruled on

grounds not reviewed by the court of appeals. See, e.g., Brownback v. King, 141 S. Ct.

740, 746–47 (2021); Harris v. Reed, 489 U.S. 255, 258–60 (1989). That practice is

most sensible in a case like this one, where the district court’s alternative ruling was

a conclusory afterthought. Its five-page recusal order focused on the merits. Pet.

App. 60a–65a. The lone exception was a footnote at the tail end where, in tiny font,

the court stated that Petitioner had “waived” recusal because, in addition to entering

an unconditional guilty plea, he had “waited too long to raise the issue.” Pet. App.

65a n.1. But the court gave no reasoning and made no findings. Then, on appeal, the

government relied solely on the guilty plea. U.S. C.A. Br. 37–38. Its failure to raise

any timeliness issue on appeal was (if not a waiver) a forfeiture that the Eleventh

Circuit would be bound to enforce on remand unless the government could show

“extraordinary circumstances.” See Wood v. Milyard, 566 U.S. 433 (2012).

In any event, as a legal matter, there is no statutory timeliness requirement

at all. The actual text of § 455 imposes “no duty on the parties to seek disqualification,

nor any time limits within which disqualification must be sought. Although the

Department of Justice recommended that section 455 include some limitation of time

11

to prevent applications for disqualification from being filed near the end of a trial

when the underlying facts were known long before, Congress did not incorporate this

recommendation.” Potashnick v. Port City Const. Co., 609 F.2d 1101, 1115 (5th Cir.

1980) (quotation omitted). Notwithstanding that deliberate textual omission, the

Eleventh Circuit has grafted a timeliness requirement onto § 455 for the purpose of

preventing an “eleventh-hour ploy based upon [a party’s] dissatisfaction” with an

adverse ruling. United States v. Siegelman, 640 F.3d 1159, 1188 (11th Cir. 2011).

Even if that judicially-invented timeliness requirement were sound, the

district court’s single-sentence footnote-only assertion made no factual findings at all.

It certainly made no finding that Petitioner abusively sought recusal due to an

adverse ruling. And the government makes no such accusation here. After all, his

lawyers expressly told Judge Ungaro at the 2019 status conference that the 1994

recusal order had only just come to their attention, and they filed the recusal motions

as soon as they obtained a copy from the National Archives. Pet. App. 47a–49a, 55a–

56a. And Petitioner himself—who was shocked to learn that Judge Ungaro had been

on the bench back in 1994—insisted that he “never waived recusal.” Pet. App. 56a.

III.

The Majority View Is Wrong

The government argues that the Fifth, Tenth, and Eleventh Circuits are

correct that a guilty plea waives a § 455(a) claim for appeal. BIO 7–10. They are not.

1.

That categorical rule cannot be squared with the text of § 455(e), which

provides that a party’s waiver of § 455(a) “may be accepted provided it is preceded by

a full disclosure on the record of the basis for disqualification.” By conditioning

12

§ 455(a) waivers on a “full disclosure on the record,” Congress precluded waivers by

implication. And that strict textual limitation on waiver accords with § 455(a)’s

purpose of “promot[ing] public confidence in the integrity of the judicial process.”

Liljeberg, 486 U.S. at 859–60. Where there is an appearance of impropriety, public

confidence in the judicial process can be maintained only through recusal or a waiver

following a “full disclosure on the record” of the factual basis. See Pet. 20–23.

In response, the government concedes that the Eleventh Circuit’s “finding that

petitioner’s unconditional guilty plea waived his right to appeal the denial of his

recusal motions is not itself the waiver of a recusal under Section 455(e).” BIO 9.

That is exactly Petitioner’s point. Entering a guilty plea does not, by itself, satisfy

§ 455(e)’s on-the-record disclosure requirement. As a result, a guilty plea alone does

not waive the right to a § 455(a)-qualified judge. And if a guilty plea does not waive

that right, why would it waive the ability to appeal the denial of that right? To the

extent the government is drawing such a distinction, it cites no supporting authority.

Unable to address § 455(e), the government attacks a straw man. It asserts

that district courts are not required to advise defendants of “every potential claim”

that may be waived by a plea. BIO 9. But Petitioner has never argued that they are.

His point is simply that, if a court fails to satisfy § 455(e)’s disclosure requirement

(whether at the plea hearing or otherwise), then the defendant has not waived a

§ 455(a) claim for appeal. That Rule 11 does not require district courts to advise

defendants of potential § 455(a) issues only highlights that the typical plea hearing

will not satisfy § 455(e). The only plea hearings likely to do so are those where there

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is an express § 455(a) waiver in a plea agreement, the terms of which the court must

explain at the hearing. In that situation, any appearance of impropriety will likely

be obviated by a knowing, explicit waiver. But anything short of that will not.

2.

Even putting aside § 455(e), the government’s defense of the waiver rule

in the Fifth, Tenth, and Eleventh Circuits is lackluster and vague. In one brief

paragraph, the government appears to argue that a guilty plea waives a § 455(a)

claim because it is a pre-trial defect that would contradict admissions made at the

plea. BIO 7–8. But the government fails to identify what admission a § 455(a) claim

would contradict. While the government refers to a defendant’s admission to the

charges, that admission obviates trial-related rights going to factual guilt (e.g., where

incriminating evidence was obtained in violation of the Fourth or Fifth Amendments).

See Class, 138 S. Ct. at 803–05; Menna v. New York, 423 U.S. 61, 62 n.2 (1975). That

admission, however, does not accept a particular judge’s authority to preside over the

case. And where a judge is statutorily disqualified from presiding, that defect infects

the entire proceeding, not just the trial phase where guilt would be determined.

If anything, § 455(a) claims resemble those claims that are not waived by a

guilty plea. Under this Court’s precedents, that includes claims that: the statute of

conviction is unconstitutional, as applied to conduct admitted at the plea, Class, 138

S. Ct. at 804–06; the prosecution is vindictive, in violation of due process, Blackledge

v. Perry, 417 U.S. 21, 30–31 (1974); and the prosecution violates double jeopardy, as

judged on the face of the record, United States v. Broce, 488 U.S. 563, 575 (1989)

(citing Menna, 423 U.S. at 62 n.2). These claims all share a common feature: if

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established, then “the Court had no power to enter the conviction or impose the

sentence.” Broce, 488 U.S. at 569. The same is true of § 455(a) claims: if established,

then the District Judge had no power to enter the conviction or impose the sentence.

Finally, as a historical matter, this Court has scrupulously enforced statutes

protecting the integrity of the federal Judiciary. For example, in Nguyen v. United

States, 539 U.S. 69 (2003), the Court vacated a decision affirming the petitioner’s

convictions because the panel included a visiting judge who was not a “district judge”

under the designation statute. Although the petitioner raised no objection below, the

Court explained that it had consistently “agreed to correct, at least on direct review,

violations of a statutory provision that embodies a strong policy concerning the proper

administration of judicial business even though the defect was not raised in a timely

manner.” Id. at 78 (quotation omitted). Section 455(a) is precisely such a provision.

Thus, this Court’s precedents align with Congress’s policy judgment in § 455(e):

statutes safeguarding judicial integrity cannot be easily forfeited or implicitly waived.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

MICHAEL CARUSO

FEDERAL PUBLIC DEFENDER

/s/ Andrew L. Adler

Counsel of Record

ANDREW L. ADLER

ASS’T FED. PUBLIC DEFENDER

1 E. Broward Blvd., Ste. 1100

Ft. Lauderdale, FL 33301

(954) 356-7436

Andrew_Adler@fd.org

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