Opposition Brief — Bertoli v. United States District Court

Suprems Court, U.S.

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No. 92-1917 JUL 28 1995 |

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OfFFivc peers

Jn the Supreme Court of the Aunited States

OCTOBER TERM, 1993

RICHARD O. BERTOLI, PETITIONER

2d).

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

DREW S. DAYS, III

Solicitor General

JOHN CC, KEENEY

Acting Assistant Attorney General

JOEL M. GERSHOWITZ

Attorney

Department of Justice

Washington, D.C. 20530

(202) 514-2217

a BEST AVAILABLE

QUESTION PRESENTED

Whether the court of appeals erred in denying peti-

tioner’s petition for a writ of mandamus seeking to

compel a district judge to recuse himself under 28 U.S.C.

455(a), which requires recusal when a judge’s impartial-

ity might reasonably be questioned.

(1)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

International Business Machines, In re, 618 F.2d 923 (2d

a ork og cssnccs dancsnsaes sasdncens.cc,..., 7

Johnson v. Trueblood, 629 F.2d 287 (3d Cir. 1980), cert.

denied, 450 U.S. 999 (1981) .........ccccccccccccccccececeeeeseccccees. 10

Liteky v. United States, cert. granted (May 24, 1993)

NE aii latcsdandesshieskapluhaduvsaonsassassesavkardsvavicacanvas 10

SCA Services, Inc. v. Morgan, 557 F.2d 110 (7th Cir.

ental dics Lcnclss sk cnannasesaseiavucenecsedaicevavesoeececeesic, 7

School Asbestos Litigation, In re, 977 F.2d 764 (3d Cir.

gi avd sacecsctsvannden'eonnnaesivesse'eiaccedece 7

United States, In re, 666 F.2d 690 (1st Cir. 1981) ............ 7

United States v. Archbold-Newball, 554 F.2d 665 (5th

Cir.), cert. denied, 434 U.S. 1000 (1977) ........................ 10

United States v. Cowden, 545 F.2d 257 (1st Cir. 1976),

cert. denied, 430 U.S. 909 (1977) ........cccccccccccscsccoseoceeeees 4)

United States v. Nelson, 718 F.2d 315 (9th Cir. 1983) ..... 8

United States v. Sammons, 918 F.2d 592 (6th Cir. 1990). 8

United States v. Studley, 783 F.2d 934 (9th Cir. 1986) .... 10

Statutes and rule:

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IV

Rule—Continued: Page

Sup. Ct. R. 14.1(j)

RUAN ROR Tee Keener ete E te eh eA ATT En RA Clee ce 10

In the Supreme Court of the United States

OCTOBER TERM, 1993

No. 92-1917

RICHARD O. BERTOLI, PETITIONER

te

UNITED STATES DISTRICT CouRrT

FOR THE DISTRICT OF NEW JERSE Y

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The order of the court of appeals (Pet. App. la-2a) is

unreported.

JURISDICTION

The judgment of the court of appeals was entered on

April 16, 1993. The petition for a writ of certiorari

was filed on May 28, 1993. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Petitioner was indicted in the United States

District Court for the District of New Jersey on

charges of conducting an enterprise through a

(1)

2

pattern of racketeering activity, in violation of 18

U.S.C. 1962(c); conspiring to commit that offense, in

violation of 18 U.S.C. 1962(d); conspiring to obstruct

justice, in violation of 18 U.S.C. 371; and obstructing

justice, in violation of 18 U.S.C. 1503. The indictment

alleged that together with Richard Cannistraro and

Leo Kisenberg, petitioner conducted the affairs of a

securities brokerage firm, Monarch Funding Corp.,

through a pattern of racketeering activity involving a

variety of fraudulent securities trading practices and

obstruction of justice. According to the indictment,

petitioner and his co-conspirators prepared and

distributed or caused to be distributed false and

misleading research reports recommending purchase

of the stock of various companies in order to inflate

the price of that stock after they had previously

purchased the stock for their own benefit. In addition,

the indictment alleged that, through perjury, subor-

nation of perjury, and destruction and concealment of

evidence, petitioner and his co-conspirators attempted

to obstruct justice in connection with civil and

criminal investigations of their activities. Second

Superseding Indictment, Count 1 94 10-73; id., Count

399 14-28.

1. On November 2, 1989, petitioner filed a motion to

recuse the district judge assigned to this case. Pet.

App. 28a. In that motion, petitioner contended that

animosity existed between the judge and himself as a

result of letters that petitioner had written to the

judge, to former Justice Thurgood Marshall, and to

others disparaging the judge for the sentence he

imposed on petitioner’s co-defendant, Richard Cann-

istraro, after Cannistraro pleaded guilty in another

criminal case. Pet. App. 38a, 40a-41a.

3

The district court denied the motion. Pet. App. 27a-

97a. The judge explained that “[nJothing in the record

shows ill will on my part toward [petitioner], nor has

anything been shown to demonstrate emotional

involvement.” Jd. at 96a. Although the judge declined

to so find, he noted that a reasonable person could

conclude, based on the facts and circumstances giving

rise to the recusal motion, that petitioner’s letters

were part of a “calculated plan seeking to have me

disqualified in the event [petitioner] would be indicted

in a case assigned to me.” Jd. at 42a n.19.

After the denial of the recusal motion, petitioner

sought to compel the judge’s recusal by filing a

petition for a writ of mandamus in the court of

appeals. The court of appeals denied the petition.

Pet. 6.

2. Prior to trial, petitioner, who was proceeding

pro se, requested 50 blank trial subpoenas from the

district court. The court ruled that petitioner would

be permitted to obtain the subpoenas only if he

provided a statement with respect to each subpoena

explaining the relevance and necessity of the evidence

sought; explaining why, in the case of documents, the

evidence was not otherwise procurable by the

exercise of due diligence; and showing that the

request was made in good faith and not for the

purpose of delay. Pet. C.A. Br., Exh. D, at 5-6. In

imposing that requirement, the court recognized that

“Fed. R. Crim. P. 17 provides for the issuance of trial

subpoenas on request of a party.” Jd. at 1. The court

concluded, however, that “[s]uch justification appears

to be necessary in the interests of avoiding the

presentation of cumulative, repetitive and/or irrele-

vant testimony at trial, given the history in this case

4

of pushing discovery and motion practice to unneces-

sary extremes.” Jd. at 2.' The court added (id. at 6):

In a case of this magnitude, a court has an

obligation to control the proceedings. The size of

the task which confronts the court and the parties

requires pre-trial efforts to organize the presen-

tation of such a potentially large mass of evidence

in the most efficient manner possible. Succinctly

stated, a trial court, in a case such as this, must

insist upon specificity concerning potential evi-

dentiary issues before allowing a massive factual

controversy to proceed. The above directives have

been formulated with this in mind.

Both petitioner and the government took issue with

the district court’s requirement of a threshold

showing for the issuance of defense subpoenas. Pet.

C.A. Br., Exh. E, at 1-2; 7d., Exh. F, at 18-20. In

! The court noted that petitioner had previously requested

24 subpoenas duces tecum seeking documents from more than

250 individuals and entities, and had filed 22 motions and three

letter requests consisting of 1,080 pages of briefs and affidavits

and 2,115 pages of exhibits. Pet. C.A. Br., Exh. D, at 2, 3.

Among the entities that petitioner had previously sought to

subpoena were the Manhattan District Attorney’s office, for

various investigative files; the CIA, for records relating to him

and two other individuals; the Boston law firm of Choate, Hall

& Stewart, for records relating to a sexual harassment case

brought by a former SEC employee in Washington; the Defense

Department, for records relating to all sites under Defense

- Department control that have been contaminated by toxic

substances; the Commerce Department, for nine months of -

visitor logs for the Economic Development Administration; and

the IRS, for three years of tax returns for 15 individuals. See

May 6, 1992, Letter-Opinion at 4-7; April 6, 1992, Gov’t Letter

Br. at 7-9; March 20, 1992, Gov’t Letter Br. at 4 n.4.

5

response, the court expressed concern that, on the

day of trial, with a jury sitting, it would be confronted

“with 50 people walking in with 50 motions to quash a

Subpoena.” Jd. at 19. Nevertheless, the court

indicated that it would be willing to vacate the order

“if there is a better way.” /d. at 20.

Thereafter, the government proposed an alternative

procedure for avoiding disruption or delay of the trial

as a result of the defense subpoenas. Under the

government’s proposal, each subpoena duces tecum

issued by the defense would include a cover letter to

the recipient from the court summarizing the

charges against the defendants, requiring that

motions to quash be filed well in advance of trial

according to a specified schedule, informing recipi-

ents that they could comply with the subpoena prior

to trial if they so wished, and inviting the recipients

to contact either the government or the defendant

issuing the subpoena if they had any question con-

cerning the charges or wanted a copy of the indict-

ment. Pet. C.A. Br., Exh. H, at 3-4 & attachment.

Over petitioner’s objection, the district court

accepted the government’s proposal and, on December

7, 1992, provided the parties with a copy of the cover

letter. Pet. C.A. Br., Exh. N, at 2 & attachment. In

response to petitioner’s complaint that the govern-

ment’s proposed cover letter would result. in

disclosure of his defense to the government (Pet. C.A.

Br., Exh. K), the court rejected the government’s

suggestion that the letter invite subpoena recipients

to call the government if they had any questions or

wanted a copy of the indictment. Instead, the letter

invited recipients to contact the issuing defendant

with any questions. Pet. C.A. Br., Exh. N, attach-

ment.

6

Although the cover letter prepared by the district

court specified January 11, 1993, as the due date for

motions to quash, petitioner did not serve any

subpoenas before that date. At a hearing on January

12, 1993, the court directed that the parties specify

May 3, 1993, as the return date for all trial subpoenas

and told petitioner that he could obtain blank trial

subpoenas from the clerk’s office. Pet. C.A. Br., Exh.

P, at 8, 12. The court did not specifically direct

petitioner to attach the cover letter to those subpoe-

nas, nor did the court revise the cover letter’s now-

expired due date for motions to quash. At the same

hearing, petitioner renewed his earlier motion

requesting the district judge to disqualify himself

“based upon not only the appearance of prejudice but

actual prejudice.” The court denied the motion. /d. at

10; Pet. App. 11a; see also Pet. C.A. Br., Exh. O, at 2.

3. Thereafter, petitioner filed a petition for a writ

of mandamus with the court of appeals seeking to

compel the district judge to (1) rescind the cover-

letter requirement and (2) disqualify himself because

his actions concerning the defense subpoenas created

the appearance of bias. While the mandamus petition

was pending, the government asked the district court

to clarify whether the cover letter requirement was

still in effect, given the court’s failure to reimpose

the requirement at the January 12 hearing. The

court responded that “[dJjefendants are permitted to

serve trial subpoenas duces tecum, returnable 3 May

1993, without enclosure of any cover letter.” District

Court’s Letter of Feb. 23, 1993.

In light of the district court’s ruling, petitioner

informed the court of appeals that “[t]he district

judge’s withdrawal of the cover letter requirement

moots our first ground for mandamus. It in no way

7

moots the second [i.e., the recusal issue].” Pet.

Letter of March 1, 1993. On April 16, 1998, the court

of appeals denied the petition for mandamus without

opinion.

ARGUMENT

Petitioner contends that he was entitled to a writ of

mandamus compelling the district judge to recuse

himself. Under 28 U.S.C. 455(a), on which petitioner

apparently relies (see Pet. 16), a judge must “dis-

qualify himself in any proceeding in which his

impartiality might reasonably be questioned.” Peti-

tioner argues that disqualification was appropriate

here because of the judge’s imposition of the cover-

letter requirement, his earlier order requiring <

threshold showing for the issuance of defense

subpoenas, and the comments the judge made about

petitioner’s co-defendant at the sentencing hearing in

a prior case. Petitioner’s fact-bound claim does not

merit review, and in any event the court of appeals

correctly denied the mandamus petition.’

The district judge’s initial imposition of the cover-

letter and threshold-showing requirements provides

no basis for disqualification. The record clearly

demonstrates that the judge did not take those

9

2 The courts of appeals have uniformly held that mandamus

is a proper means for obtaining review of a district judge’s

refusal to recuse himself under Section 455(a). See, e.g., /n re

School Asbestos Litigation, 977 F.2d 764, 774-778 (3d Cir. 1992);

In re United States, 666 F.2d 690, 694 (Ist Cir. 1981); In re

International Business Machines, 618 F.2d 923, 926-927 (2d

Cir. 1980); SCA Services, Inc. v. Morgan, 557 F.2d 110, 117-118

(7th Cir. 1977). Accordingly, for purposes of this brief, we do

not contend that petitioner’s claim could not be raised through

a petition for mandamus.

8

actions out of personal pique or in a deliberate

attempt to disadvantage petitioner; rather, his obvi-

ous purpose was to avoid being inundated, at the

commencement of an otherwise complex trial, with a

flood of motions to quash petitioner’s 50 subpoenas,

which he feared might have a seriously disruptive

impact on the proceedings. The judge’s fears, more-

over, were not merely speculative; petitioner had

already demonstrated through his previous discovery

practice a proclivity for issuing extremely broad and

seemingly irrelevant requests for documents. See

note 1, supra.

In any event, the district judge eventually recon-

sidered his attempt to regulate the subpoena process,

withdrew the threshold-showing and cover-letter

requirements, and permitted petitioner to issue his

subpoenas without restriction. Even if the judge’s

initial efforts at regulation were misguided, there is

no reason to believe that they were made in bad faith.*

As petitioner concedes (Pet. 22), a judge’s errors of

law, standing alone, do not require disqualification.

See, e.g., United States v. Sammons, 918 F.2d 592, 599

(6th Cir. 1990); United States v. Nelson, 718 F.2d 315,

321 (9th Cir. 1983).4

3 To the contrary, before removing the cover-letter

requirement altogether, the judge revised the cover letter

proposed by the government in order to protect petitioner

from any prejudice arising from the letter.

4 Petitioner makes much of the fact that the judge imposed

the cover letter requirement solely on the defendants. Pet. 22.

It was petitioner’s discovery practice, however, and not the

government’s, that posed the threat of a flood of motions to

quash. Accordingly, the judge’s action had a reasonable justifi-

cation and did not reflect bias.

9

In order to establish that the judge’s actions in

connection with the subpoenas were motivated by

bias, petitioner cites (Pet. 23-24) comments made by

the judge in sentencing Richard Cannistraro, peti-

tioner’s co-defendant, in a separate case nearly two

years before the return of the indictment in this case.

The judge stated at that time that the only distinction

between Cannistraro and a bank robber was “the

absence of a weapon”; that Cannistraro had demon-

strated “no shame”; that his “bottom line was

avarice”; and that the decision to sentence Cannis-

traro to a prison term was not “heart wrenching” or a

“close call.” Those comments directed to Cannis-

traro do not reflect animosity egainst petitioner;

petitioner cites nothing to suggest that the judge

prejudged petitioner’s case as a result of the

Cannistraro prosecution.

Moreover, sentencing judges are supposed to make

moral judgments about defendants and their crimes,

and the judge’s remarks concerning Cannistraro

were typical of the comments judges make at sentenc-

ing. If such remarks were sufficient to disqualify a

judge from hearing future cases involving the same

defendant or a co-conspirator, the judicial system

would break down in many districts. As the court of

appeals observed in United States v. Cowden, 545 F.2d

257, 266 (1st Cir. 1976), cert. denied, 430 U.S. 909

(1977), “the judicial system could not function if

judges could deal but once in their lifetime with a

given defendant, or had to withdraw from a case

whenever they had presided in a related or companion

case or in a separate trial in the same case.” See also

10

United States v. Archbold-Newball, 554 F.2d 665, 682

(5th Cir.), cert. denied, 434 U.S. 1000 (1977).'

There is no reason for the Court to hold this case

pending its decision in Liteky v. United States, cert.

granted (May 24, 1993) (No. 92-6921). The issue in

Liteky is whether the appearance of bias necessitat-

ing disqualification under Section 455(a) must derive

from an extrajudicial source. Although the Third

Circuit recognizes a distinction between judicial and

extrajudicial bias in applying Section 455(a), see

Johnson v. Trueblood, 629 F.2d 287, 290-291 (3d Cir.

1980), cert. denied, 450 U.S. 999 (1981), neither the

district court nor the court of appeals expressly

relied on that distinction in denying petitioner’s

recusal motion, and thus there is no basis for

concluding that this case presents the question at

5 Although he does not discuss the matter in the text of his

petition, petitioner suggests in the “Questions Presented”

portion of his petition that the judge was biased because of

petitioner’s disparaging comments, made before the return of

the instant indictment, about the judge’s handling of Cannis-

traro’s sentencing—an argument that was rejected by the court

of appeals when it denied petitioner’s previous mandamus

petition in this case. Even if petitioner had properly raised

this question in the body of his petition for certiorari (see Sup.

Ct. R. 14.1GQ)), it would not merit review. A defendant may

not obtain disqualification of a judge based on his own hostile

comments about the judge. See United States v. Studley, 783

F.2d 934, 939-940 (9th Cir. 1986). If that were the case, then

defendants would be able to manipulate the system in order to

pick their own judges. Indeed, the district judge indicated that

that may have been precisely what petitioner was trying to do

through his disparaging comments; the judge noted the

existence of evidence suggesting that petitioner had pursued a

similar strategy with respect to other judges in earlier

proceedings. Pet. App. 42a-46a & n.19.

11

issue in Liteky. Even if the Court in Liteky were to

reject the extrajudicial-source requirement and hold

that recusal is required when the appearance of bias

arises out of judicial proceedings, the outcome in this

case would not change. As discussed above, the

judge’s actions in connection with the defense

subpoenas did not raise a reasonable question of bias

so as to require his disqualification.

CONCLUSION

‘The petition for a writ of certiorari should be

denied.

Respectfully submitted.

DREW S. Days, III

Solicitor General

JOHN C. KEENEY

Acting Assistant Attorney General

JOEL M. GERSHOWITZ

Attorney

JULY 1993