                               In the

United States Court of Appeals
                For the Seventh Circuit

No. 09-2264

IN RE:

      U NITED STATES OF A MERICA,
                                                           Petitioner.


                     Petition for Writ of Mandamus
                 from the Eastern District of Wisconsin.
           No. 2:05-cr-00145-JPS-1—J.P. Stadtmueller, Judge.



                           JULY 10, 2009




    Before R IPPLE, R OVNER and W OOD , Circuit Judges.
  R IPPLE, Circuit Judge. The United States (“the Govern-
ment”) has filed this petition for a writ of mandamus
seeking the recusal of the respondent district judge cur-
rently presiding over a criminal action pending in the
United States District Court for the Eastern District of
Wisconsin. Because the Government has established that
a reasonable, well-informed observer might question
the impartiality of the district judge, we must grant the




    This opinion was released initially in typescript form.
2                                            No. 09-2264

requested writ, disqualifying the judge from presiding
over the proceeding and requiring that he vacate all
orders entered since the filing of the recusal motion in
the district court.


                            I
                   BACKGROUND
                           A.
  In January 2003, Rashid A. Salahuddin failed to return
to a corrections facility while he was on work-release.
Local authorities in Milwaukee, Wisconsin, obtained an
escape warrant and searched for Mr. Salahuddin in the
home of his estranged wife, where he may have been
living at the time. During the course of the search, the
officers discovered two guns in a bedroom closet, but
they did not find Mr. Salahuddin. The next day, they
returned, found Mr. Salahuddin and placed him under
arrest. Before the officers were able to administer
Miranda warnings, Mr. Salahuddin stated that there were
two guns in the closet of the bedroom where the guns
had been found the previous day.
  Mr. Salahuddin was charged in state court with being
a felon in possession of a firearm. Later that month, a
state court commissioner dismissed the case for lack of
probable cause on the ground that there was insufficient
evidence connecting the guns to Mr. Salahuddin. The
state appealed, arguing that Mr. Salahuddin’s statement
indicated an ability to possess the guns. The state court
disagreed, however, and, in April 2003, affirmed the
commissioner’s dismissal of the case.
No. 09-2264                                               3

  More than two years later, in June 2005, a federal
grand jury indicted Mr. Salahuddin on one count of
being a felon in possession of a firearm in violation of
18 U.S.C. § 922(g)(1). The case was assigned to
Judge Clevert. Shortly thereafter, the parties began
plea negotiations. The assistant United States attorney
prosecuting the case suggested in a letter to Mr.
Salahuddin’s attorney that Mr. Salahuddin would not
qualify as an armed career criminal and therefore
would not be subject to the fifteen-year mandatory mini-
mum sentence. See 18 U.S.C. § 924(e)(1). According to the
prosecutor’s letter, Mr. Salahuddin’s criminal history
included juvenile convictions for resisting or obstructing
an officer, receiving stolen property, possession of a
controlled substance and three separate incidents of
burglary. He also had adult convictions for armed
robbery (for which he had been imprisoned for almost
eight years), being a felon in possession of a firearm,
carrying a concealed weapon, possession of marijuana
and escape. The assistant United States attorney calculated
Mr. Salahuddin’s advisory guideline range as 46-57
months’ imprisonment, but also advised Mr. Salahuddin
that “the judge will ultimately decide the defendant’s
criminal history score.” R.20, Att. 1.1 Mr. Salahuddin
elected to plead guilty. At the change of plea hearing,
Mr. Salahuddin hesitated when the court explained that,
by pleading guilty, he could no longer challenge the
admissibility of the Government’s evidence against him
as the fruits of an unlawful search. Mr. Salahuddin


1
  Citations to the record are to the district court’s docket
available on CM/ECF. There is no record on appeal.
4                                              No. 09-2264

decided at that time to plead not guilty. Judge Clevert set
the matter for trial, but, only days later, Mr. Salahuddin
again changed his mind and entered a guilty plea.
  After the change of plea hearing, but shortly before the
sentencing hearing, the Government altered its position
and informed Mr. Salahuddin that it now believed he
did qualify as an armed career criminal. Mr. Salahuddin
then moved to withdraw his plea, which the Govern-
ment opposed. Judge Clevert granted Mr. Salahuddin’s
motion to withdraw his plea and, in the same order,
recused himself from further participation in the case.
  The matter was reassigned to Chief Judge Randa. Al-
though the deadline for filing pretrial motions had
expired, Mr. Salahuddin moved in March 2006 for leave
to file instanter two motions to suppress both the guns
and statements he allegedly had made. The motions
were referred to Magistrate Judge Goodstein who, reason-
ing that the delay in filing the suppression motions re-
sulted from the dispute over the applicability of the
armed career criminal statute, concluded that “in the
interests of justice” the motions should be entertained.
R.39 at 3. The Government sought review of that order in
the district court. Chief Judge Randa concluded in
May 2006 that Mr. Salahuddin had not met the “good
cause” requirement of Federal Rule of Criminal Procedure
12(e) and, therefore, reversed the magistrate judge’s
decision.2


2
 Around the same time, the Government petitioned for
Mr. Salahuddin’s pretrial bond to be revoked. This matter
                                             (continued...)
No. 09-2264                                                 5

  After a two-day trial in August 2006, Mr. Salahuddin
was convicted of being a felon in possession of a firearm.
See 18 U.S.C. § 922(g)(1). Mr. Salahuddin’s post-trial
motions for a judgment of acquittal and for a new trial
were denied, and Chief Judge Randa sentenced him to
180 months’ imprisonment; the sentence was the manda-
tory minimum for career criminals sentenced under
18 U.S.C. § 924(e) and also was below the advisory guide-
lines range.
   Mr. Salahuddin appealed to this court. He argued that
the district court should have entertained his motions
to suppress. We agreed and held that it was “incongruous
to permit a defendant to withdraw a guilty plea and go
to trial while not permitting him to litigate the admissibil-
ity of significant evidence.” United States v. Salahuddin,
509 F.3d 858, 862 (7th Cir. 2007). We remanded the case
with instructions to hear the suppression motions and,
if they were found to be meritorious, to order a new trial.


                             B.
  On remand, the motions were referred to Magistrate
Judge Goodstein, who recommended that the motions be



2
  (...continued)
was heard before Magistrate Judge Callahan, who agreed with
the Government that Mr. Salahuddin’s failure to return home,
as required by the conditions of his release, necessitated the
revocation of his bond. Mr. Salahuddin did not challenge the
petition for detention, and he was remanded into custody.
6                                                     No. 09-2264

denied in their entirety. Mr. Salahuddin objected to the
magistrate judge’s report and recommendation, and
the Government filed a response. However, before the
district court issued a ruling on the report and recommen-
dation, Chief Judge Randa sua sponte recused himself
under Circuit Rule 36.3 The case was reassigned to the
respondent district judge (hereinafter “the Judge”).
  The Judge reviewed the report and recommendation, and
he called a meeting in chambers on October 9, 2008, with
then-United States Attorney Steven M. Biskupic and
Federal Defender Daniel W. Stiller. Assistant United States
Attorney Gordon P. Giampietro and Associate Federal


3
   Circuit Rule 36 provides in relevant part: “Whenever a case
tried in a district court is remanded by this court for a new
trial, it shall be reassigned by the district court for trial before
a judge other than the judge who heard the prior trial unless
the remand order directs or all parties request that the same
judge retry the case. . . .” Circuit Rule 36. It is not immediately
clear whether this rule required Chief Judge Randa to
recuse himself before ruling on the suppression motions.
Although the rule requires cases remanded for new trials to
be reassigned, this court’s opinion only conditionally directed
a new trial, which would be necessary only if the district
court first concluded that Mr. Salahuddin’s arguments were
meritorious. Orders directing the district court to undertake
further proceedings are routinely heard by the district judge
who entered the order that was the subject of the appeal.
Chief Judge Randa probably could have, consistent with
Circuit Rule 36, heard the suppression motions and, if neces-
sary, ordered the case reassigned if he concluded that a new
trial was warranted.
No. 09-2264                                               7

Defender Nancy Joseph, who were the attorneys actually
litigating the case, were not invited. No court reporter was
present, and no meeting minutes are reflected on the
district court’s docket. The Judge began by telling Mr.
Biskupic and Mr. Stiller that he would not hear discussion,
comment or response from either of them. According to the
parties’ submissions, the Judge then recounted the proce-
dural history of the case and reminded the office heads
that, before the confusion surrounding application of
the armed career criminal statute, both parties had pre-
ferred to resolve the case with a plea bargain. The Judge
also suggested that his pending ruling on the motions to
suppress would not satisfy either party and recom-
mended that they consult with the assigned attorneys to
explore the possibility of resolving the case without
additional litigation.
  The Government adds that, in discussing the
procedural history of the case, the Judge suggested that
there was “an awful lot of blame to be spread around
for what he considered to be a total breakdown of justice.”
Pet. 4. The Government states that the Judge mentioned
the length of time that had passed between
Mr. Salahuddin’s arrest by state authorities and the
commencement of his federal prosecution and questioned
why the case was accepted for federal prosecution at
all, given that the qualifying conviction for armed career
criminal status was an armed robbery Mr. Salahuddin
had committed while a juvenile (he had been waived
into adult court). The Government further recites that
the Judge said the case should be resolved without
further litigation and that he recommended that the
8                                                       No. 09-2264

parties agree to a guilty plea to a false-statement count
(which carries a ten-year statutory maximum, as opposed
to the fifteen-year statutory minimum under § 924(e)),
recognizing that Mr. Salahuddin would have to waive
the statute of limitations.4 The Government submits that
the Judge suggested in the alternative that the case be
sent back to state court. Finally, the Government suggests
that, although the Judge recognized that he should not
be involved in plea negotiations, he opined that this was
an “extremely rare” case that needed to be addressed
“at the top”; that he was disturbed that there were
100 docket entries in a one-count gun case;5 that if the
case were to go forward there may be another appeal;
that the case was “an embarrassment to the justice sys-
tem”; and that he would recuse himself if requested. Pet. 5.
Neither the Judge nor Mr. Salahuddin challenges the
accuracy of the Government’s recitation of these addi-
tional facts.
  Eleven days later, on October 20, 2008, the Government
moved for the Judge’s recusal pursuant to 28 U.S.C.
§ 455(a). On January 5, 2009, the Government inquired as


4
   This account is corroborated by the Judge’s order of April 10,
2009, which denied the Government’s motion for reconsidera-
tion of its request for recusal. See R.117 at 5 n.1. (stating that “the
court thought it prudent to suggest an alternative disposition
under an otherwise appropriate statute that would not trigger
application of the enhancement”).
5
  This concern also is corroborated by comments in the Judge’s
order of January 8, 2009, denying the Government’s motion
for recusal. R.107 at 1.
No. 09-2264                                              9

to the status of the case. Three days later, the Judge
issued an order adopting in part the report and recom-
mendation of the magistrate judge. He granted
Mr. Salahuddin’s motions to suppress statements, denied
the motion to suppress the gun, ordered a new trial and
denied the Government’s motion for recusal. The portion
of the order denying the recusal motion reads in its
entirety:
    There remains but one additional matter—a recusal
    motion filed by the government. The motion followed
    a joint meeting between the court and counsel for the
    parties as more fully detailed in an earlier footnote.
    To be sure, on its face the motion represents nothing
    more than an ill-considered, poorly-disguised, preemp-
    tive collateral attack, albeit through the convenience
    of forum shopping, on the wisdom of the court’s
    decision announced today. The motion is denied.
R.107 at 30-31. The earlier footnote explains that:
    The court was prepared to issue its decision on
    de novo review of the magistrate’s recommendations
    on October 10, 2008. As part of its review, the court
    took note of the troubling procedural history of this
    case and the ever-mounting commitment of limited
    prosecution, defense, and judicial resources that,
    when taken together, have become prohibitively
    expensive and certainly less cost effective to taxpayer
    interests. Thus, the confluence of these factors
    together with the interests of justice more than sug-
    gest that the court and counsel for the parties make
    a good faith effort toward resolution of the case with-
10                                              No. 09-2264

     out the necessity of further litigation. Toward that
     end, on October 9, 2008, the court met in chambers
     with the Federal Defender, Daniel Stiller, and the
     United States Attorney, Steven Biskupic, to explain
     that the court had completed its review of the magis-
     trate’s recommendation and, without further elabora-
     tion, indicated that neither side would be happy
     with the court’s ruling since litigation in the case
     would likely continue unabated. The court then pro-
     vided counsel with additional relevant background
     facts leading to the court’s recommendation that the
     parties explore potential alternatives to the current
     charge. The court concluded by stating that it would
     withhold release of today’s ruling for a reasonable
     period of time so as to provide the parties with a
     safe harbor within which to consider an alternative
     disposition.
R.107 at 2 n.1.
  Two weeks later, the Government filed a motion for
reconsideration; it contended that the October 9, 2008
meeting violated Federal Rule of Criminal Procedure 11
and that the Judge’s comments, both during the meeting
and in his order, called into question his impartiality. At
the final pretrial conference, the district court did not
rule on the motion for reconsideration, but did invite
the United States to respond to Mr. Salahuddin’s waiver
of recusal, which Mr. Salahuddin had filed in response
to the Government’s motion for reconsideration. The
Government declined to do so on the ground that, under
In re National Union Fire Insurance Co., 839 F.2d 1226, 1231
No. 09-2264                                             11

(7th Cir. 1988), it was inappropriate for the court to
solicit the parties’ views on recusal.
  The Judge denied the motion for reconsideration on
April 10, 2009. He reasoned that he did not violate
Federal Rule of Criminal Procedure 11 for three reasons:
(1) Neither the Government nor Mr. Salahuddin proposed
or reached a plea agreement; (2) The discussion was
with the United States Attorney and Federal Defender, not
the attorneys litigating the case (although the Judge
acknowledged that otherwise it might be considered a
“classic negotiation session,”r.117 at 6); and (3) The rule
protects the defendant, not the Government, from
judicial coercion. The Judge further held that recusal
was not necessary because Mr. Salahuddin had waived
recusal, because neither the denial of the Government’s
motion nor comments made in judicial rulings were a
basis for recusal, and because the October 9 meeting
did not amount to interference with the Government’s
prosecutorial function.
  Trial was set for May 18, 2009. On May 12, the Gov-
ernment filed in the district court a motion to stay pro-
ceedings pending a petition for writ of mandamus in
this court. The next day, the Government filed in this
court a petition for a writ of mandamus and a motion
to stay district court proceedings pending resolution of
the petition. The Government requests a writ of
mandamus directing the Judge to recuse himself from
the case and vacate all orders entered after October 20,
2008, when the Government filed its motion for recusal.
Both this court and the district court granted motions to
12                                              No. 09-2264

stay the proceedings. We ordered Mr. Salahuddin to
respond and invited a response from the Judge. Those
responses have now been filed.


                             II
                      DISCUSSION
  In considering a petition for a writ of mandamus seeking
the disqualification of a district judge, we review that
judge’s denial of a recusal motion de novo. Hook v.
McDade, 89 F.3d 350, 353-54 (7th Cir. 1996).


                            A.
  The All Writs Act, 28 U.S.C. § 1651, permits courts
created by Act of Congress to “issue all writs necessary or
appropriate in aid of their respective jurisdictions and
agreeable to the usages and principles of law.” 28 U.S.C.
§ 1651(a). See generally United States v. Denedo, 120 S. Ct.
2213, 2220-22 (2009). Courts of appeals traditionally
have employed the writ of mandamus to confine a
district court to the “lawful exercise of its prescribed
jurisdiction.” See Cheney v. United States Dist. Court, 542
U.S. 367, 380 (2004) (quoting Roche v. Evaporated Milk
Ass’n, 319 U.S. 21, 26 (1943)). We have held that a
petition for writ of mandamus under the All Writs Act,
28 U.S.C. § 1651(a), is the proper—indeed the only—
means of reviewing a district court’s denial of a motion
No. 09-2264                                                       13

for recusal.6 The Government’s petition is therefore the
appropriate means of seeking review in this court of the
district court’s denial of the Government’s motion for
recusal.
  Section 455(a) of the Judicial Code provides: “Any
justice, judge, or magistrate judge of the United States
shall disqualify himself in any proceeding in which his
impartiality might reasonably be questioned.” 28 U.S.C.
§ 455(a). The Supreme Court has explained that “ ‘[t]he
goal of section 455(a) is to avoid even the appearance of
partiality.’ ” Liljeberg v. Health Serv. Acquisition Corp., 486
U.S. 847, 860 (1988) (quoting Hall v. Small Bus. Admin., 695
F.2d 175, 179 (5th Cir. 1983)). Accordingly, we have
required recusal “whenever there is ‘a reasonable basis’
for a finding of an ‘appearance of partiality under the
facts and circumstances’ of the case.” PepsiCo, Inc. v.
McMillen, 764 F.2d 458, 460 (7th Cir. 1985) (quoting SCA
Servs., Inc. v. Morgan, 557 F.2d 110, 116 (7th Cir. 1977)).


6
  See, e.g., In re United States, 398 F.3d 615, 617 (7th Cir. 2005);
United States v. Boyd, 208 F.3d 638, 645 (7th Cir. 2000); In re
Hatcher, 150 F.3d 631, 637 (7th Cir. 1998); United States v. Horton,
98 F.3d 313, 316-17 (7th Cir. 1996); Hook v. McDade, 89 F.3d 350,
354 n.2 (7th Cir. 1996); In re Mason, 916 F.2d 384, 385 (7th Cir.
1990); Taylor v. O’Grady, 888 F.2d 1189, 1201 (7th Cir. 1989);
United States v. Balistrieri, 779 F.2d 1191, 1204-05 (7th Cir. 1985);
SCA Servs., Inc. v. Morgan, 557 F.2d 110, 117-18 (7th Cir. 1977);
but see Boyd, 208 F.3d at 649-50 (Ripple, J., dissenting) (noting
that this position is in tension with two decisions by the Su-
preme Court and has not been followed by other courts of
appeals).
14                                                   No. 09-2264

Recusal is required when a “reasonable person perceives
a significant risk that the judge will resolve the case on a
basis other than the merits.” In re Mason, 916 F.2d 384, 385
(7th Cir. 1990); Nat’l Union Fire Ins. Co., 839 F.2d at 1229.7
  Of course, needless recusals exact a significant toll;
judges therefore should exercise care in determining
whether recusal is necessary, especially when proceedings
already are underway. “[A] change of umpire mid-
contest may require a great deal of work to be re-done . . .
and facilitate judge-shopping.” Nat’l Union Fire Ins. Co.,
839 F.2d at 1229 (citation omitted).


                                B.
   Mr. Salahuddin submits that the Government’s
petition is untimely. He suggests that this court requires
litigants to petition for mandamus “immediately after a
judge grants or denies a motion for recusal.” Salahuddin
Br. at 8 (citing United States v. Horton, 98 F.3d 313
(7th Cir. 1996), and United States v. Balistrieri, 779 F.2d 1191
(7th Cir. 1985)). Here, the district court denied the Gov-
ernment’s motion for recusal on January 8, 2009, and the
Government did not file this petition until May 12,
2009, four months after the motion was denied and one
month after the motion for reconsideration was denied.
 We cannot accept this submission. The time during
which the Government sought reconsideration of the


7
  See also Cheney v. United States Dist. Court, 541 U.S. 913, 924
(2004) (Scalia, J., in chambers); Microsoft Corp. v. United States,
530 U.S. 1301, 1302 (2000) (statement of Rehnquist, C.J.).
No. 09-2264                                                  15

district court’s order denying its motion for recusal
should not be considered in determining the timeliness
of the petition.8 Mr. Salahuddin suggests no reason why
the rule should be otherwise, and, indeed, there are
significant benefits in excluding that period. Most impor-
tantly, there is significant judicial economy in not
requiring a party to file a petition for writ of mandamus
in the court of appeals while the district court recon-
siders its earlier denial. This approach gives the district
court adequate time to reflect on its order and, if necessary,
correct its own error before another court becomes in-
volved. Both the parties and the court of appeals are
spared the burden of an additional round of litigation.9
Requiring the petition to be filed any earlier would accom-
plish very little; indeed, in most instances, this court
would withhold judgment until the district court had
ruled on the motion to reconsider.



8
 Neither the All Writs Act, 28 U.S.C. § 1651(a), nor Federal
Rule of Appellate Procedure 21, provides a specific time frame
within which all petitions for writ of mandamus must be filed.
9
  Cf. United States v. Dieter, 429 U.S. 6, 8 (1976) (per curiam)
(noting that deferring appellate consideration until disposition
of a petition for rehearing saves time and reduces the burden on
appellate courts by “giving district courts the opportunity
promptly to correct their own alleged errors”); Divane v. Krull
Elec. Co., 194 F.3d 845, 850 (7th Cir. 1999) (explaining that
Federal Rule of Civil Procedure 59(e) allows district courts
to correct their own errors, thus avoiding “unnecessary appel-
late procedures” (quoting Moro v. Shell Oil Co., 91 F.3d 872,
876 (7th Cir. 1996))).
16                                                     No. 09-2264

  Here, the Government’s petition was filed more than a
month after the district court denied its motion to recon-
sider. Mr. Salahuddin suggests that this delay does not
comport with this court’s requirement that a petition for
a writ of mandamus to compel the recusal of a district
judge must be made “immediately” or not at all. Horton,
98 F.3d at 316-17; Balistrieri, 779 F.2d at 1205. Read
in context, however, these cases simply stand for the
proposition, well-established in this circuit, that a motion
for recusal under section 455(a) must be made before
trial; after trial, the damage to the public perception of
the judicial system already has been done, and the party
may not then seek relief because the simple appearance
of partiality is, at most, harmless error.1 0
  Rather than turning on the term “immediately,” our
cases have taken a fact-specific, pragmatic approach in
determining whether a petition seeking recusal is timely.
We have examined the prejudice to any other party or to
the district court caused by the delay and have examined
the amount of work that the delay would cause the new
judge to redo. See Nat’l Union Fire Ins. Co., 839 F.2d at
1232. Here, neither the Judge nor Mr. Salahuddin has
suggested any prejudice caused by the time it has taken
the Government to file its petition. Since denying the
Government’s motion for recusal, the Judge has issued,



10
  See United States v. Ruzzano, 247 F.3d 688, 694 (7th Cir. 2001);
United States v. Troxell, 887 F.2d 830, 833 (7th Cir. 1989) (collect-
ing cases); N.Y. City Hous. Dev. Corp. v. Hart, 796 F.2d 976, 978-
79 (7th Cir. 1986) (per curiam).
No. 09-2264                                                  17

in addition to the denial of the Government’s motion
for reconsideration and the order staying proceedings
pending this petition, only a handful of orders, most of
which concern scheduling. The Judge did rule on the
major issue on remand, the suppression motions, after
the Government filed its motion for recusal. However, the
Judge’s decision to resolve all the suppression motions
in the same order as the denial of the recusal motion
cannot be attributed to the Government. Any delay at-
tributable to the Government would not require significant
work to be redone by a new judge.
   Moreover, the Government has given a significant
reason for the four-week intermission between the
denial of its motion for reconsideration and the filing of
this petition. The United States Attorney’s office was
required, under the policies of the Department of Justice,
to obtain the permission of the Solicitor General before
filing the petition for a writ of mandamus. 1 1 See United
States Attorneys’ Manual, § 2-2.124. The petition was
filed the day after permission was received. While this
requirement necessarily slows the progress of a case, it
has long been recognized as a salutary device to ensure
that governmental litigation is conducted in a manner
consonant with national norms rather than provincial
priorities.




11
  This reason is mentioned in footnote 1 of the motion for stay,
but not in the petition for a writ of mandamus.
18                                                 No. 09-2264

                              C.
  We now turn to the merits of the Government’s submis-
sion. At bottom, this matter requires that we decide one
fundamental issue: whether a reasonable, well-informed
observer could question the Judge’s impartiality. See, e.g.,
Hatcher, 150 F.3d at 637.1 2
  In answering this question, we must examine carefully
the nature of the Judge’s meeting with the heads of the
two governmental offices involved. The Judge called an
off-the-record meeting with the United States Attorney
and the Federal Defender. This manner of proceeding in
a federal criminal matter is indeed unusual and neces-
sarily raises substantial concerns in the mind of any well-
informed observer. We must take special note of the fact
that no record was taken of the meeting. In other contexts,
this and other courts have pointed out the need to make
a record whenever substantive discussions take place
between court and counsel, and we see no reason to
exempt the present situation from that admonition.1 3


12
   This is an objective standard. Hook, 89 F.3d at 353-54. In
denying the motion for reconsideration, the Judge suggested
that the fact that Mr. Salahuddin did not desire his recusal
demonstrates that such a standard has been met. We
respectfully disagree. Mr. Salahuddin is not an impartial
observer. The Judge’s view of the future course of this prosecu-
tion clearly was favorable to the defendant.
13
  See United States v. Head, 927 F.2d 1361, 1376 (6th Cir. 1991)
(observing that the parties’ divergent recollections of what
                                                  (continued...)
No. 09-2264                                                       19

Indeed, the extraordinary nature of this meeting, evi-
denced by the Judge’s initial willingness to disqualify
himself, should it be requested, and his recognition
that such a proceeding was extraordinary, should have
made the need to memorialize the event even more obvi-
ous to the participants.
  The substance of the discussion at the meeting con-
vinces us that the Judge misapprehended the limits of his
authority. The parties agree that, at the October 9
meeting, the Judge suggested a specific plea bargain. This
participation was clearly violative of the specific prohibi-
tion in the Federal Rules of Criminal Procedure that
forbids the court from becoming involved in plea negotia-




13
   (...continued)
occurred during an off-the-record presentence conference
demonstrated the “serious dangers of such discussions off
the record” and, “[b]ecause of the uncertainties attendant to
this procedure,” remanding “with directions to afford a full
opportunity to defendant to address those parts of the sentenc-
ing” affected by the in-chambers conference); cf. Maltby v.
Winston, 36 F.3d 548, 561 n.18 (7th Cir. 1994) (noting that “it is
the responsibility of the district court, if it conducts the instruc-
tion conference without a court reporter, to provide the
parties with an opportunity to specifically object to jury instruc-
tions on the record”); United States v. Gallo, 763 F.2d 1504, 1532
(6th Cir. 1985) (holding that the defendant had waived viola-
tions of Court Reporters Act but noting that the “safe course”
was to “let the reporter record what takes place” during side
bars).
20                                                    No. 09-2264

tions. See Fed. R. Crim. P. 11(c)(1).1 4 As the Fifth Circuit has
noted, “such involvement ‘is likely to impair the trial
court’s impartiality. The judge who suggests or
encourages a particular plea bargain may feel a personal
stake in the agreement . . . and may therefore resent the


14
     Federal Rule of Criminal Procedure 11(c)(1) states:
       (c) Plea Agreement Procedure.
           1) In General. An attorney for the government and the
           defendant’s attorney, or the defendant when proceed-
           ing pro se, may discuss and reach a plea agreement. The
           court must not participate in these discussions. If the
           defendant pleads guilty or nolo contendere to either a
           charged offense or a lesser or related offense, the plea
           agreement may specify that an attorney for the govern-
           ment will:
                  (A) not bring, or will move to dismiss, other
                  charges;
                 (B) recommend, or agree not to oppose the defen-
                 dant’s request, that a particular sentence or
                 sentencing range is appropriate or that a particu-
                 lar provision of the Sentencing Guidelines, or
                 policy statement, or sentencing factor does or
                 does not apply (such a recommendation or
                 request does not bind the court); or
                 (C) agree that a specific sentence or sentencing
                 range is the appropriate disposition of the case,
                 or that a particular provision of the Sentencing
                 Guidelines, or policy statement, or sentencing
                 factor does or does not apply (such a recom-
                 mendation or request binds the court once the
                 court accepts the plea agreement).
No. 09-2264                                                    21

defendant who rejects his advice.’ ” United States v. Miles,
10 F.3d 1135, 1139 (5th Cir. 1993) (quoting United States v.
Adams, 634 F.2d 830, 840 (5th Cir. 1981)) (omissions in
original). We have expressed the same view in United
States v. Kraus, 137 F.3d 447, 452 (7th Cir. 1998), when
we wrote that “[e]xcluding the judge from the plea dis-
cussions thus serves three purposes: it minimizes the
risk that the defendant will be judicially coerced into
pleading guilty, it preserves the impartiality of the court,
and it avoids any appearance of impropriety.” The judge
who advocates a particular plea bargain may resent the
government for disagreeing.1 5
  Here we must conclude that the Judge did more than
simply participate in a plea bargain.1 6 He questioned the
Government’s decision to prosecute the matter as a
federal case in terms that a reasonable observer might
well interpret as critical of the Government’s position in
the case. The statement that neither party would be


15
  Because of the distinct possibility of such resentment, the
Rule is violated even when no plea negotiation actually takes
place. See United States v. Baker, 489 F.3d 366, 371 n.3 (7th Cir.
2007).
16
  See United States v. Kraus, 137 F.3d 447, 457 (7th Cir. 1998)
(evaluating whether “the error in this case, or the appearance of
error, was harmless” and quoting Federal Rule of Criminal
Procedure 11(h) for the proposition that “[a]ny variance from
the procedures required by this rule which does not affect
substantial rights shall be disregarded,” but also noting that
“insofar as judicial intervention in the negotiation of a plea
agreement is concerned, the possibility of harmless error may
be more theoretical than real”).
22                                                No. 09-2264

pleased with his ruling on the suppression motions
could have been interpreted as indicating that he was ill-
disposed toward the Government’s position and might
rule based not on the merits, but on his distaste for its
prosecutorial decision. A reasonable, well-informed
observer well may have concluded that the Judge was
no longer acting as a neutral arbiter, but was advocating
for his desired result.
 The Supreme Court has noted that:
     [O]pinions formed by the judge on the basis of facts
     introduced or events occurring in the course of the
     current proceedings, or of prior proceedings, do not
     constitute a basis for a bias or partiality motion unless
     they display a deep-seated favoritism or antagonism
     that would make fair judgment impossible. Thus,
     judicial remarks during the course of a trial that are
     critical or disapproving of, or even hostile, to, counsel,
     the parties, or their cases, ordinarily do not support
     a bias or partiality challenge. . . . [T]hey will do so if
     they reveal such a high degree of favoritism or antago-
     nism as to make fair judgment impossible.
Liteky v. United States, 510 U.S. 540, 555 (1994) (emphasis
in original). The parties therefore correctly acknowledge
that “[e]xpressions of impatience, dissatisfaction, annoy-
ance, and even anger,” do not establish bias or partiality.
Id. at 555-56. We must conclude, however, that, taken
in context, some of the Judge’s comments go further
and comment on substantive matters, rather than the
conduct of the proceedings. For example, as we have
just noted, the Judge questioned why this case was ac-
cepted for federal prosecution, expressed concern
No. 09-2264                                                 23

about the time that had passed between Mr. Salahuddin’s
initial arrest and the commencement of federal proceed-
ings, and suggested that this case was an embarrassment
to the justice system and an inefficient allocation of tax-
payer resources. He also sought to avoid a conviction
under 18 U.S.C. § 924(c), so as to prevent imposition of
the fifteen-year mandatory minimum sentence.
  In expressing these views and insisting that action be
taken to conform the future course of litigation to
those views, the Judge misapprehended the limits of his
authority as the presiding judicial officer and undertook
to participate in determinations that are in the proper
domain of the Department of Justice.1 7 The power of the
Executive Branch to make these decisions is a safe-
guard of liberty. As this court has noted, entrusting
these prerogatives to the Executive ensures that “ ‘no one
can be convicted of a crime without the concurrence of
all three branches.’ ” United States v. O’Neill, 437 F.3d 654,
660 (7th Cir. 2006) (Posner, J., concurring in the judgment)
(quoting In re United States, 345 F.3d 450, 454 (7th Cir.



17
  We cannot accept the suggestion that the appearance of
impropriety was somewhat lessened by the participation at the
meeting of policy-level officers—the United States Attorney
and the Federal Defender—rather than the litigating attorneys.
The United States Attorney has the ultimate authority to
prosecute cases. See 28 U.S.C. § 547. A reasonable observer
certainly could conclude that the purpose of the meeting was
to pressure the officers present at the meeting to direct their
subordinates to undertake the course of action preferred by
the Judge.
24                                                      No. 09-2264

2003)). Judges do not possess, and should not attempt to
exercise, prosecutorial discretion.
  A motion under section 455(a) is “directed against the
appearance of partiality, whether or not the judge is
actually biased.” Balistrieri, 779 F.2d at 1204 (emphasis
supplied). We must conclude that the Judge’s actions,
assessed in their totality, are such that a reasonable, well-
informed observer would question his partiality. Hook,
89 F.3d 350 at 353-54.
  The question before us is not whether the Judge is
biased. If the Government had the burden to establish
that fact, it would have indeed a high mountain to climb
in light of the Judge’s distinguished public service of
almost forty years. However, we must conclude that the
Government is entitled to the issuance of the writ of
mandamus for which it has petitioned because it has
established that a reasonable well-informed observer
could question the Judge’s impartiality. Accordingly, all
orders entered by the Judge after the motion for recusal
was filed must be vacated. 1 8 The Judge is directed to
remove himself from further proceedings in this matter.
                                                 It is so ordered.1 9




18
     See N.Y. City Hous. Dev. Corp., 796 F.2d at 979.
19
 Because we have granted the Government’s writ of manda-
mus, the Government’s motion to compel disclosure is dis-
missed as moot.

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