     08-2157-op
     In re Vincent Basciano



1                         UNITED STATES COURT OF APPEALS

2                             FOR THE SECOND CIRCUIT

3                                August Term, 2007

4    (Argued: May 27, 2008              Decided: September 17, 2008
5                                       Errata Filed: October 10, 2008)
6                              Docket No. 08-2157-op

7                    -------------------------------------

8                             In re VINCENT BASCIANO,

9                                   Petitioner.

10                   -------------------------------------

11   Before:     KEARSE, LEVAL, and SACK, Circuit Judges.

12               The United States District Court for the Eastern

13   District of New York (Nicholas G. Garaufis, Judge) denied the

14   petitioner's motions seeking the judge's recusal based on

15   government-furnished evidence suggesting that the petitioner had

16   plotted to have the judge murdered.     The petitioner then filed a

17   petition for a writ of mandamus in this Court asking us to order

18   Judge Garaufis to recuse himself.

19               Petition denied.

20                                JANE SIMKIN SMITH (Ephraim Savitt,
21                                Richard Jasper, Ying Stafford, New York,
22                                NY, of counsel), Millbrook, NY, for
23                                Petitioner;

24                                JOHN BURETTA, Assistant United States
25                                Attorney (Benton J. Campbell, United
26                                States Attorney for the Eastern District
27                                of New York, Peter A. Norling, Amy Busa,
28                                Winston Chan, Assistant United States
29                                Attorneys, of counsel), Brooklyn, NY,
30                                for Respondent United States.
1    SACK, Circuit Judge:

2                Petitioner Vincent Basciano petitions for a writ of

3    mandamus requiring Judge Nicholas G. Garaufis of the United

4    States District Court for the Eastern District of New York to

5    recuse himself from presiding over Basciano's impending capital

6    trial.   In an order dated June 11, 2008, we denied Basciano's

7    petition, stating that an opinion would follow.       This is that

8    opinion.

9                                 BACKGROUND

10               Basciano, allegedly a highly placed member of the

11   Bonanno crime family, see United States v. Basciano, 369 F. Supp.

12   2d 344, 351 (E.D.N.Y. 2005) (Garaufis, J.) ("Basciano"), was

13   originally indicted on August 14, 2003 for various racketeering-

14   related offenses.    Following several superseding indictments and

15   two trials on these indictments in 2006 and 2007, Basciano was

16   found guilty of charges in each.       On March 31, 2008, he was

17   sentenced to life imprisonment.    See Judgment as to Vincent

18   Basciano, United States v. Massino, No. 03-cr-0929 (E.D.N.Y. Apr.

19   8, 2008).

20               In January 2005, while awaiting trial, Basciano was

21   placed in the Special Housing Unit ("SHU") at the Metropolitan

22   Detention Center ("MDC") in Brooklyn.       Basciano v. Lindsay, 530

23   F. Supp. 2d 435, 438 (E.D.N.Y. 2008) (Garaufis, J.) ("Lindsay").

24   In a separate indictment returned shortly thereafter, on January

25   26, 2005, Basciano was charged with, among other things, Murder

26   in Aid of Racketeering, 18 U.S.C. §§ 1959(a)(1)-(2), 3551 et

                                        2
1    seq., based on the 2004 death of Randolph Pizzolo.   See

2    Indictment, United States v. Basciano, No. 05-cr-060 (E.D.N.Y.

3    Jan. 26, 2005).   The indictment alleges that Basciano conspired

4    to murder the Assistant United States Attorney, Greg Andres, who

5    had been the lead prosecutor in the earlier cases.   See Lindsay,

6    530 F. Supp. 2d at 438.    The government has stated its intent to

7    seek the death penalty on these still-pending charges.     See

8    Letter Regarding Attorney General's Death Penalty Decision,

9    Basciano, No. 05-cr-060 (E.D.N.Y. Apr. 2, 2007).   It is trial on

10   these charges for which Basciano has sought to have Judge

11   Garaufis recuse himself.

12             Two months after this indictment was filed, in March

13   2005, Basciano was moved from the MDC to Unit 10 South1 at the

14   Metropolitan Correctional Center ("MCC") in Manhattan.     See

15   Lindsay, 530 F. Supp. 2d at 438.

16             While housed in Unit 10 South, Basciano's
17             contact with visitors, including his
18             attorneys, was sharply curtailed based on the
19             Government's contention that the conditions
20             were necessary to prevent Basciano from
21             directing the affairs of the Bonanno crime
22             family from prison, including ordering acts
23             of violence. Specifically, the Government
24             argued that, in addition to his involvement
25             in the plot to kill Andres, Basciano had
26             ordered the Pizzolo murder from the MDC.
27   Id. (citations omitted).


          1
             "[Unit 10 South] at the [MCC] is considered the most
     secure housing unit available at any Bureau of Prisons ("BOP")
     facility in the New York City Metropolitan Area and is generally
     reserved for terrorism suspects and other inmates considered to
     be a danger to other inmates and/or prison guards." Lindsay, 530
     F. Supp. 2d at 438.

                                        3
1              In May 2005, however, the district court "f[ound] that

2    Basciano's detention in the SHU [was] not reasonably related to

3    the government's legitimate objective of curtailing [his] alleged

4    criminal activities, and that less restrictive means of doing so

5    [were] available to the government."    Basciano, 369 F. Supp. 2d

6    at 353.   Basciano was therefore released by order of the district

7    court into the general prison population of the MCC subject to

8    "such restrictions as the government deem[ed] necessary to

9    prevent him from communicating with other Bonnano family members

10   and associates."   Id.2

11             In July 2006, however, Basciano was transferred by the

12   Bureau of Prisons from the general prisoner population at the MCC

13   back to Unit 10 South.    At the end of the following month, the

14   government disclosed to the district court, under seal, the

15   reasons for the transfer.

16             In its sealed filing, the government asserted that in

17   April or May 2006, Basciano had composed a handwritten list with



          2
             The district court also noted that the earlier conditions
     of confinement imposed by the government were hampering
     Basciano's ability to fight the government's efforts to have the
     death penalty imposed against him. The court remarked that,
     "[a]s a practical matter, the security restrictions in place in
     the SHU ma[d]e it much more difficult for Basciano to have
     productive meetings with his counsel," and that "long periods of
     solitary confinement can have devastating effects on the mental
     well-being of a detainee." Lindsay, 530 F. Supp. 2d at 439
     (quoting Basciano, 369 F. Supp. 2d at 352-53)(internal quotation
     marks omitted). The court concluded that the "'nuclear option'
     of indefinite solitary confinement [in the SHU]" was
     inappropriate "until it [wa]s clear that less restrictive options
     ha[d] failed to constrain Basciano." Basciano, 369 F. Supp. 2d
     at 353.

                                       4
1    the names of Judge Garaufis, Assistant United States Attorney

2    Andres, and three cooperating witnesses who had testified at

3    trial.   According to the government, Basciano gave this list to

4    another inmate and indicated that he wanted to have the listed

5    individuals murdered.   The second inmate took no further action

6    regarding the list, however, and eventually turning it over to

7    the government on June 30, 2006.

8               The government later produced a transcript of a

9    telephone conversation between Basciano and his wife, which the

10   government had intercepted on June 8, 2006.   It took place

11   sometime after the putative "hit list" had been prepared and

12   delivered, but before it had been disclosed to the government by

13   the inmate recipient.   The transcript reads, in part:

14              Basciano: I'm going to try to get a different
15              judge. I'm gonna see if I can get a different
16              judge. . . . [H]e's just so predisposed
17              because the government brought in so many
18              witnesses. [The government] can't handle the
19              fact that I might get acquitted. . . .
20              [T]hey brought in so many witnesses and spent
21              so much money. I have to pull all the
22              rabbits out of my hat for this one. . . . I
23              gotta pull all the rabbit[s], I have to fight
24              the same way they fight, honey. . . .

25              Angela Basciano: Try to get a different
26              judge.

27              Basciano: Yeah, well I don't know if it's
28              going to be possible. But I thought this
29              judge was okay . . . . Al[l] right listen to
30              me, I'm pulling every rabbit out of the hat,
31              and, uh, I gotta fight fire with fire with
32              these people.

33              Angela Basciano: Yeah, well that's what
34              you've got to do.


                                        5
1    Exhibit B to Memorandum of Law in Opposition to the Motions To

2    Recuse by Defendants, Basciano, Nos. 03-cr-0929, 05-cr-0060

3    (E.D.N.Y. Nov. 1, 2006).

4                    Basciano disputed the government's characterization of

5    the list.        At a status conference held August 28, 2006, he

6    contended that it was created for use in a Santeria ritual3 that

7    required the list to be placed in his right shoe and stomped on

8    five times per day during the course of trial.         Basciano

9    requested an evidentiary hearing regarding the nature of the

10   list.        The district court denied the request.4

11                   On September 21, 2006, the government informed Basciano

12   and his counsel that it had received authorization from the

13   Attorney General to impose stringent Special Administrative

14   Measures ("SAMs") on Basciano.        See Lindsay, 530 F. Supp. 2d at

15   439.        Federal regulations provide that the Bureau of Prisons may

16   implement SAMs, "[u]pon direction of the Attorney General," when

17   "reasonably necessary to protect persons against the risk of

18   death or serious bodily injury."        28 C.F.R. § 501.3(a).

19                   On January 30, 2007, Basciano filed a habeas corpus

20   petition pursuant to 28 U.S.C. § 2241 challenging his transfer

21   back to the SHU and the imposition of the SAMs.         The district



             3
            Santeria is an Afro-Cuban religious cult. XIV Oxford
     English Dictionary 468 (2d ed. 1989).
             4
            If Basciano is correct that the list was part of a
     Santeria ritual and not a "hit list," there is simply no reason
     for the district court judge to recuse himself. Thus, the
     district court judge did not need to hold an evidentiary hearing
     on the nature of the "hit list" to decide the recusal himself.
                                     6
1    court denied the petition in 2008, making no finding as to

2    whether Basciano's list was a "hit list."    The court found

3    sufficient evidence, independent of the list, of "Basciano's

4    dangerousness to justify the Government's safety concerns"

5    underlying the government's decision both to impose the SAMs and

6    to assign Basciano to the SHU.5   Lindsay, 530 F. Supp. 2d at 447.

7                Recusal Motions

8                In the meantime, in October 2006, Basciano filed a

9    motion requesting that Judge Garaufis recuse himself from

10   presiding over Basciano's capital case.    See Motion for Recusal,

11   Basciano, No. 05-cr-0060 (E.D.N.Y. Oct. 31, 2006) (the "2006

12   Motion").    He renewed this motion in June 2007, in connection

13   with his habeas petition, and again in February 2008, following

14   the government's notice that it intended to introduce Basciano's

15   list of names during a potential penalty phase of trial, and that

16   it might also introduce the list as evidence during the guilt

17   phase, see Motion for Hearing or Alternately for Recusal of the

18   Court, Basciano, No. 05-cr-0060 (E.D.N.Y. Feb. 12, 2008) (the

19   "2008 Motion").

20               The district court denied all of these motions.    In an

21   order dated November 30, 2006, responding to the 2006 Motion, the

22   court determined that recusal under 28 U.S.C. § 455(a), which

23   provides that "[a]ny . . . [federal] judge . . . shall disqualify


          5
           This evidence included testimony at Basciano's 2006 trial
     regarding his role in the Bonanno crime family, as well as
     evidence of his discussions of plans to murder three people,
     including Assistant United States Attorney Andres. See Lindsay,
     530 F. Supp. 2d at 440-442, 446-447.
                                     7
1    himself in any proceeding in which his impartiality might

2    reasonably be questioned," was not warranted.      United States v.

3    Basciano, Nos. 03-cr-929, 05-cr-060, 2006 WL 3483924, at *1-*2,

4    2006 U.S. Dist. LEXIS 86533, at *5 (E.D.N.Y. Nov. 30, 2006)

5    (Garaufis, J.).   Observing that Basciano was a "sophisticated

6    party" as evidenced by his regular replacement of counsel, and

7    that the first recusal motion followed both his racketeering

8    conviction and statement to his wife about seeking a "different

9    judge," id. at *2, 2006 U.S. Dist. LEXIS 86533, at *5-*6

10   (internal quotation marks omitted), the district court found that

11   Basciano had sought to "engineer" the judge's recusal, id., 2006

12   U.S. Dist. LEXIS 86533, at *6 (internal quotation marks omitted).

13   In the absence of actual bias manifested by the court, the court

14   concluded that a reasonable person "would not reasonably question

15   th[e] court's impartiality."   Id., 2006 U.S. Dist. LEXIS 86533,

16   at *7.

17             In a memorandum and order dated March 24, 2008,

18   responding to a motion for a new trial, the district judge

19   reaffirmed his decision not to recuse himself and added that

20   neither that decision nor his denial of habeas relief created "an

21   appearance of partiality sufficient to call into question the

22   fairness of Basciano's retrial."       United States v. Basciano, No.

23   03-CR-0929, 2008 WL 794945, at *10, 2008 U.S. Dist. LEXIS 23107,

24   at *36 (E.D.N.Y. Mar. 24, 2008) (Garaufis, J.).      The court noted

25   that the defendant had pointed to decisions adverse to him, but

26   had failed to identify any pattern of actions by the court that

                                        8
1    would contribute to an appearance of an absence of impartiality.

2    Id. at *11, 2008 U.S. Dist. LEXIS 23107, at *41.

3               The court reaffirmed its recusal decision yet again,

4    for substantially the same reasons, in an order dated April 3,

5    2008.   See Order Denying Motion for Evidentiary Hearing and

6    Renewed Motion for Recusal as to Vincent Basciano, Basciano, No.

7    05-cr-0060 (E.D.N.Y. Apr. 3, 2008).    Basciano then filed in this

8    Court the instant petition seeking a writ of mandamus.

9                                  DISCUSSION

10              I.     Standard of Review

11              A petition for a writ of mandamus based on a district

12   judge's refusal to recuse himself requires that we consider both

13   the standard for issuance of the writ and the standard for review

14   of the recusal decision itself.    See In re Drexel Burnham Lambert

15   Inc., 861 F.2d 1307, 1312 (2d Cir. 1988), cert. denied, 490 U.S.

16   1102 (1989).

17              "[I]t is well-settled that the exceptional remedy of

18   mandamus will only be invoked where the petitioner has

19   demonstrated that its right to such relief is 'clear and

20   indisputable.'"    Id. (quoting Moses H. Cone Mem'l Hosp. v.

21   Mercury Constr. Corp., 460 U.S. 1, 18 (1983)) (emphasis omitted).

22   The district judge has discretion "in the first instance to

23   determine whether to disqualify himself."    Id.   We will overturn

24   the court's determination in that regard only if it constitutes

25   an abuse of discretion.    Id.   The recusal decision requires that

26   the district court "carefully weigh the policy of promoting

                                        9
1    public confidence in the judiciary against the possibility that

2    those questioning his impartiality might be seeking to avoid" the

3    adverse consequences of his expected adverse decisions.      Id.

4                In order for us to issue the writ, the petitioner

5    therefore "must 'clearly and indisputably' demonstrate that the

6    district court abused its discretion.    Absent such a showing,

7    mandamus will not lie."    Id. at 1312-13.

8                II.   Whether the District Judge Abused His
9                      Discretion By Refusing To Recuse Himself

10               A judge must recuse himself "in any proceeding in which

11   his impartiality might reasonably be questioned."    28 U.S.C.

12   § 455(a).    "[T]his test deals exclusively with appearances.      Its

13   purpose is the protection of the public's confidence in the

14   impartiality of the judiciary."    United States v. Amico, 486 F.3d

15   764, 775 (2d Cir. 2007).    In applying this test, we consider the

16   petitioner's allegations of bias as well as the judge's "rulings

17   on and conduct regarding them," id., and ask whether "an

18   objective, disinterested observer[,] fully informed of the

19   underlying facts, [would] entertain significant doubt that

20   justice would be done absent recusal," id. (quoting United States

21   v. Lovaglia, 954 F.2d 811, 815 (2d Cir. 1992)) (internal

22   quotation marks omitted).

23               Although a plot or threat, real or feigned, may create

24   a situation in which a judge must recuse himself, see United

25   States v. Greenspan, 26 F.3d 1001 (10th Cir. 1994), recusal is

26   not ordinarily or routinely required.     See, e.g., United States

27   v. Holland, 519 F.3d 909, 915-916 (9th Cir. 2008) (concluding
                                       10
1    recusal not required); United States v. Yousef, 327 F.3d 56, 170

2    (2d Cir.) cert. denied, 540 U.S. 933 (2003) (same); United States

3    v. Yu-Leung, 51 F.3d 1116, 1120 (2d Cir. 1995) (same); United

4    States v. Cooley, 1 F.3d 985, 993-94 (10th Cir. 1993) (same)

5    (listing among "matters . . . which will not ordinarily satisfy

6    the requirements for disqualification under 455(a)," "threats or

7    other attempts to intimidate the judge"); United States v.

8    Studley, 783 F.2d 934, 940 (9th Cir. 1986) (concluding recusal

9    not required); United States v. Grismore, 564 F.2d 929, 934 (10th

10   Cir. 1977) (same), cert. denied, 435 U.S. 954 (1978).   Even where

11   a threat is serious, then, a judge may appropriately decline to

12   recuse himself, at least in some circumstances.

13             To determine whether a trial judge must recuse himself

14   on learning of evidence that the defendant has plotted or

15   threatened to kill the judge (or someone close to him), we must

16   focus first on whether "an objective, disinterested observer[,]

17   fully informed of the underlying facts, [would] entertain

18   significant doubt that justice would be done absent recusal."

19   Amico, 486 F.3d at 775. Depending on the facts, it might

20   reasonably be argued that a judge who becomes aware of a

21   defendant's credible plot or threat to kill him is likely to be

22   adversely influenced in further rulings in that defendant's case.

23   Cf. Greenspan, 26 F.3d at 1005-06.6   And in some circumstances


          6
             We are wary of the approach taken by the Tenth Circuit in
     Greenspan, which focused largely on the seriousness of the threat
     rather than the evidence of resulting bias. That would suggest
     that a person awaiting trial must mount not only a threat, but a
     serious one, in order to obtain a new trial judge. Even so, the
                                     11
1    that might counsel recusal.   If, for example, a judge was

2    assigned to hear a criminal case involving a defendant who had

3    previously threatened the judge, the judge might well be required

4    to recuse himself.

5              But in the situation here, where there is a significant

6    possibility that the defendant's purpose in at least appearing to

7    plot against the judge was to change judges either through

8    physical attack or recusal, additional serious concerns arise.

9    Requiring a judge to recuse himself because the defendant, in an

10   attempt to change judges, has plotted or threatened to kill him

11   would provide any defendant who wanted a new judge with an


     Court noted that the threat at issue had apparently resulted in
     questionable actions taken by the trial court with respect to the
     sentencing of the defendant.
               The trial [judge who was the subject of the
               defendant's threat] was aware of the
               allegations at the sentencing hearing, and in
               fact expedited the hearing in order to "get
               [the defendant] into the federal penitentiary
               system immediately, where he can be monitored
               more closely." [And] the trial court refused
               to continue the sentencing hearing at the
               request of defendant's counsel, who had been
               appointed only two days before the expedited
               sentencing date.
     Greenspan, 26 F.3d at 1005.

               We should not be misunderstood as suggesting that the
     nature of a plot or threat is irrelevant. An idle malicious
     comment by a person awaiting trial is worlds away from a full-
     fledged conspiracy to assassinate a judge. We would expect the
     judicial behavior of a judge to be more likely to be affected by
     the latter than the former. It is, however, but one factor. The
     principal indicium of whether a judge's "impartiality might
     reasonably be questioned," we think, is whether judicial action
     subsequently taken by the judge with respect to the defendant in
     the wake of his or her discovery of the plot or threat does or
     does not appear to be impartial.

                                     12
1    effective, if in some cases dreadful, method to achieve that end.

2    A defendant cannot be permitted to use such a plot or threat as a

3    judge-shopping device.    See In re Aguinda, 241 F.3d 194, 201-02

4    (2d Cir. 2001) (civil action); see also Holland, 519 F.3d at 915

5    ("Such blatant manipulation would subvert our processes,

6    undermine our notions of fair play and justice, and damage the

7    public's perception of the judiciary.").     In the circumstance

8    presented here, we therefore give particular deference to the

9    decision of the district judge.

10             In this case, then, we look first to the manner in

11   which the district judge decided not to recuse himself, employing

12   an "abuse of discretion" standard of review.     The district judge

13   came to his decision meticulously.     As noted, Basciano made or

14   renewed his motion for recusal on three separate occasions.     On

15   each, the court explained precisely why the motion was being

16   denied.   We have no reason to doubt the manner in which the judge

17   came to his conclusion.

18             Second, we review the actions of the district court to

19   see whether the defendant's behavior has resulted in actions by

20   the judge which might be viewed by "an objective, disinterested

21   observer" as evidencing bias.   The only actions identified by

22   Basciano here are the district court's rulings refusing to hold

23   an evidentiary hearing as to the alleged plot, denying the

24   petitioner's motions to recuse, and declining to decide whether

25   the list of persons ostensibly identified as targets reflected a

26   serious threat.   That evidence establishes no more than that the

                                       13
1    court ruled against Basciano; it does not reveal partiality.        See

2    Yousef, 327 F.3d at 170 ("[W]ere we to hold that [the district

3    court judge] had an inherent conflict of interest as a result of

4    his prior ruling, we would essentially be requiring district

5    judges to recuse themselves anytime they were asked to revisit a

6    prior decision. . . .    [And] the Supreme Court has held that

7    judicial rulings and the opinions formed by judges on the basis

8    of facts introduced in the course of proceedings almost never

9    constitute a valid basis for a bias or partiality motion . . .

10   unless they display a deep-seated favoritism or antagonism that

11   would make fair judgment impossible." (citation and internal

12   quotation marks omitted)).

13               We conclude that the district judge did not abuse his

14   discretion by declining to recuse himself.

15               III.   Whether Recusal Is Required If
16                      the List Is Admitted as Evidence

17               The petitioner also insists that we direct the district

18   judge to recuse himself because of the possibility that the

19   admission of the list into evidence in a trial presided over by

20   the judge may prejudice the jury.      We decline to address this

21   argument for lack of ripeness.

22               "Two factors inform our analysis of prudential

23   ripeness:    1) the fitness of the issues for judicial decision;

24   and 2) the hardship to the parties of withholding court

25   consideration."    Ehrenfeld v. Mahfouz, 489 F.3d 542, 546 (2d Cir.

26   2007) (citation and internal quotation marks omitted).      Although

27   the government has indicated its intent to introduce the list as
                                       14
1    evidence during one or more phases of trial, the defendant has

2    not yet challenged the admissibility of this evidence, nor has

3    the district court made any ruling in this regard.    And the

4    hardships identified by petitioner arising from our withholding

5    consideration of this question at this time -- his potential

6    interest in questioning jurors regarding the list during voir

7    dire and the potential use of the list as part of his defense --

8    are too speculative for us to act upon the assertion now.      The

9    degree and nature of the difficulties Basciano might face are

10   themselves dependent on, among other things, the admissibility of

11   Basciano's list as evidence and the government's actual use

12   thereof at trial.    The factors bearing on this issue can be

13   understood only in the fullness of time.

14               The district court has not determined, moreover,

15   whether it would recuse itself if the list were admitted as

16   evidence.    In the absence of a decision by the district court on

17   this issue, there is no exercise of discretion before us that we

18   may examine for abuse.    We need not and do not express any view,

19   or intend to imply one, as to whether recusal might then,

20   depending on the circumstances, be appropriate or necessary.7

21                                CONCLUSION




          7
             The district court may wish to consider ruling on the
     admissibility of the "hit list" in limine so as to explore,
     before trial begins, all available options including, but not
     limited to, disallowing the use of the list, recusal, or
     redacting the potentially prejudicial portions of the list, such
     as the names of the judge and the prosecutor.
                                     15
1             For the foregoing reasons, on June 11, 2008, we denied

2   Basciano's petition for a writ of mandamus.




                                   16
