          United States Court of Appeals
                      For the First Circuit

No. 12-2488

                      IN RE JAMES J. BULGER,

                           Petitioner.



                 PETITION FOR A WRIT OF MANDAMUS

               TO THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Richard G. Stearns, U.S. District Judge]


                              Before

                       Lynch, Chief Judge,
                   Souter,* Associate Justice,
                    and Selya, Circuit Judge.



     J. W. Carney, Jr. for petitioner.
     Mark T. Quinlivan, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, and Zachary R. Hafer,
Assistant United States Attorney, were on brief for respondent.



                          March 14, 2013




     *
      Hon. David H. Souter, Associate Justice (Ret.) of the Supreme
Court of the United States, sitting by designation.
             SOUTER, Associate Justice.          James Bulger, the defendant

in the federal criminal prosecution underlying this petition,1 asks

us to issue a writ of mandamus to require reversal of the district

court’s order denying a motion for recusal of the judge currently

assigned to preside in the case.             With great respect for the trial

judge, we nonetheless grant the petition, because it is clear that

a reasonable person would question the capacity for impartiality of

any judicial officer with the judge’s particular background in the

federal prosecutorial apparatus in Boston during the period covered

by the accusations.

                                         I

             The     as-yet-untested         indictment      returned     by   a

Massachusetts federal grand jury in 2001 describes the defendant as

a leader of a criminal organization in Boston from 1972 to 1999.

It   charges   him   with   a   number    of federal      offenses,     including

violations of the Racketeer Influenced and Corrupt Organizations

(RICO) Act, and it alleges that he committed 19 murders ancillary

to the RICO conspiracy.         The defendant’s associate in the crimes

charged, Stephen Flemmi, was likewise indicted and has since been

convicted and sentenced on a guilty plea.                 See United States v.

Flemmi, 225 F.3d 78, 81-83 (1st Cir. 2000); United States v.

Flemmi, 245 F.3d 24, 25-27 (1st Cir. 2001); United States v.

Connolly, 341 F.3d 16, 21 (1st Cir. 2003).            The defendant remained


      1
          See United States v. Bulger, No. 99-10371-RGS (D. Mass).

                                     -2-
a   fugitive   until     his arrest    in 2011,        with   these   proceedings

ensuing.

            During the 1970s and 1980s, organized crime in Boston was

investigated by the Federal Bureau of Investigation and prosecuted

federally either by the United States Attorney’s Office or by a

separate team of prosecutors, called the New England Organized

Crime Strike Force, which operated independently of control by the

United States Attorney, but not free from communication with his

office.    The defendant now alleges that over the course of that

earlier period     these    law   enforcement      groups     came to    know    of

whatever evidence the Government relies upon to charge the crimes

listed in the indictment.         He argues that owing to his level of

notoriety, the earlier prosecutors could not possibly have been

ignorant of the involvement on his part that their successors now

seek to show.      He says that they refrained from taking action

because    they   were    aware   of   rumors     he   was    working   with    the

Government as an informant.              Further, he contends that their

failure to prosecute him is evidence that the Justice Department

had granted him immunity for all crimes now alleged, which is at

least one of his responses to the indictment.

            The   defendant’s     case    was    randomly     assigned    to    the

Honorable Richard G. Stearns of the United States District Court

for the District of Massachusetts.              Earlier in his career, Judge

Stearns held a variety of managerial and supervisory appointments


                                       -3-
within the U.S. Attorney’s Office in the District, and during a

significant period of the time covered by the indictment he was at

various times Chief of the General Crimes Unit, Chief of the

Criminal Division, First Assistant United States Attorney, and

Senior Litigation Counsel.

            In   moving   that    Judge    Stearns   recuse   himself,    the

defendant cited 28 U.S.C. § 455(a), (b)(1), (b)(3) and (b)(5)(iv).

He asserted that a reasonable person would conclude that the judge

could not be impartial, particularly in treating with the immunity

defense,    after   the   judge   had     held   those   positions   of   high

responsibility in the U.S. Attorney’s Office during part of the

period in question, and that recusal was required under § 455(a).

The defendant also contended that Judge Stearns likely would have

had personal relationships at the time with numerous witnesses and

would himself be a material witness, necessitating recusal under

§ 455(b).

            Judge Stearns denied the motion.             He found that his

impartiality could not reasonably be called into question because

at the time relevant here the U.S. Attorney’s Office was separate

from the Strike Force.       He stated that he had no doubt that he

could remain impartial and that no reasonable person could doubt

it.   Judge Stearns rejected the defendant’s § 455(b)(5)(iv) claim

because he had no personal knowledge of anything material to the

charged conduct.


                                     -4-
            The defendant then renewed his motion in part, asserting

again that recusal was warranted under § 455(a) and (b)(5)(iv). He

alluded to Judge Stearns’s order denying the first motion, in

contending that “a failure to participate in any investigation

targeting    [Bulger]   .   .   .   is    circumstantial   evidence   that

corroborates [his] assertion of his immunity agreement.” Pet. App.

137.   The defendant also represented that he intended to call as a

witness Robert S. Mueller, III, the current Director of the Federal

Bureau of Investigation and formerly a Chief of the Criminal

Division of the local U.S. Attorney’s Office, who is said to be a

close friend of Judge Stearns.            The defendant reiterated his

argument that a reasonable person would question Judge Stearns’s

impartiality.

            Judge Stearns denied the renewed motion, concluding that

it raised no new matters of law or fact (beyond the identification

of the late Jeremiah O’Sullivan as the person defendant claims to

have given him the promise of plenary immunity).           Judge Stearns

said that he remained unpersuaded that the defendant would call him

as a witness, as he knew nothing of any relevance to the case.

            The defendant now petitions this court for interlocutory

relief by a writ of mandamus directing Judge Stearns to vacate his

order denying the renewed motion for recusal and to remove himself

from the case.    He raises here the same two arguments for recusal

presented in the renewed motion: that a reasonable person would


                                    -5-
question Judge Stearns’s impartiality, see 28 U.S.C. § 455(a); and

that Mr. Mueller and Judge Stearns are likely to be material

witnesses, see id. § 455(b)(5)(iv).2     Because our resolution of the

§   455(a)   contention   is   dispositive,   we   do   not   address   the

§ 455(b)(5)(iv) claim.

                                   II

             Resolving this case calls for synthesizing two legal

standards.     The governing statute, 28 U.S.C. § 455(a), provides

that a judge “shall disqualify himself in any proceeding in which

his impartiality might reasonably be questioned.”             See Susan B.

Hoekema, Questioning the Impartiality of Judges: Disqualifying

Federal District Court Judges Under 28 U.S.C. § 455(a), 60 Temp.

L.Q. 697, 708 (1987) (“[S]ection 455(a) suggests that it requires

disqualification for the appearance of bias.”); accord In Re

Chantal, 902 F.2d 1018, 1023 (1st Cir. 1990).       When after trial we

review a judge’s decision declining to recuse, we enquire only

whether the district court abused its discretion.              See United

States v. Pulido, 566 F.3d 52, 62 (1st Cir. 2009).             We ask “not

whether [we] would have decided as did the trial court, but whether

that decision cannot be defended as a rational conclusion supported

by [a] reasonable reading of the record.” United States v. Snyder,

235 F.3d 42, 46 (1st Cir. 2000) (second alteration in original)


      2
       The defendant raises no grounds for recusal based on the
Code of Conduct for United States Judges, and we consider no
arguments other than those presented in the petition.

                                   -6-
(quoting In re United States, 158 F.3d 26, 30 (1st Cir. 1998)).

Thus, an abuse of discretion will be found only if a reasonable

reading of the record fails to support the conclusion that the

judge’s impartiality was not subject to question.

           The second standard is implicated because this issue

arises not on direct appeal after trial but on petition for a writ

of mandamus, which places an even more exacting burden on those who

request it.   Before the writ will issue, “the petitioner must

satisfy ‘the burden of showing that [his] right to issuance of the

writ is clear and indisputable.’”      Cheney v. U.S. Dist. Court for

Dist. of Columbia, 542 U.S. 367, 381 (2004) (quoting Kerr v. United

States Dist. Court for Northern Dist. of Cal., 426 U.S. 394, 403

(1976)).   A petitioner for mandamus relief must also demonstrate

that he has no other adequate source of relief; that is, he must

show “irreparable harm.” In re Vázquez-Botet, 464 F.3d 54, 57 (1st

Cir. 2006); cf. In re Martinez-Catala, 129 F.3d 213, 217-18 (1st

Cir. 1997) (“Some opinions suggest that a clear entitlement to

recusal may itself warrant immediate [mandamus] relief, absent an

equitable bar, because public confidence is enhanced where a

clearly disqualified judge is removed swiftly.”).     And finally, a

petitioner must demonstrate that, on balance, the equities favor

issuance of the writ.    See Cheney, 542 U.S. at 381; In re Vásquez-

Botet, 129 F.3d at 57.




                                 -7-
          Applying the mandamus rule to the substantive recusal

standard thus requires a doubly deferential review: relief for the

defendant is only warranted if it is “clear and indisputable” that

no reasonable reading of the record supports a refusal to recuse.

In other words, the issue here is this: is it clear that a

reasonable person might question Judge Stearns’s ability to remain

impartial in hearing the case?

          This standard is difficult to meet, and rightly so.

Absent such deferential review, any defendant with a spurious

accusation might seek to trigger immediate mandamus review of

recusal proceedings that would burden the Government and delay his

trial.   Since the law consequently entrusts these matters to the

sound discretion of the district court, we review them only for the

rare error that might arise from willful malfeasance or, as in this

case, from a good-faith failure to recognize how a reasonable

member of the public would perceive one’s relation to the case.

                                  III

          In order to explain the conclusion we reach, we emphasize

the limits on what we consider.    The sole claim we pass upon here

is the invocation of § 455(a) on the ground that Judge Stearns’s

impartiality might reasonably be questioned, it being understood

that a reasonable person may question impartiality without the

presence of any evidence that a judge is subjectively biased.




                                  -8-
Indeed, defendant has made no claim that Judge Stearns has in fact

demonstrated any bias in his handling of the case.

          Accordingly, our analysis of the defensive claim and

relevant facts does not question either Judge Stearns’s ability to

remain actually impartial or his sincerity in concluding that he is

not biased against the defendant, nor do we draw any conclusion

that he is biased.    The point under § 455(a) is not his actual

state of mind at a particular time, but the existence of facts that

would prompt a reasonable question in the mind of a well-informed

person about the judge’s capacity for impartiality in the course of

the trial and its preliminaries.   This focus likewise excludes any

consideration of the merits of defendant’s assertion of immunity on

the basis he claims, or of his entitlement to seek evidentiary

support for that claim in testimony from Judge Stearns or Mr.

Mueller. The issue under § 455(a) goes only to who should make the

decisions.

          Subject to these limits, what we do decide here comprises

both facial and underlying, supportive elements. We understand the

defendant’s facial argument and its implications to run like this.

The actions charged in the indictment are alleged to have occurred

during a period when the defendant claims he was covered by a

promise of immunity from any criminal prosecution, including for

murder.      He says the promise was made by the late Jeremiah

O'Sullivan, then a member of the Strike Force but at other times an


                               -9-
Assistant United States Attorney and acting United States Attorney.

This promise was supposedly given in return for the defendant’s

agreement to supply information about the criminal activities of

others. The immunity agreement must have been known and honored by

the Government’s prosecutorial apparatus in Boston, the argument

goes, throughout the better part of the period covered by the

indictment.   A reasonable member of the public could easily think

that anyone who held a position of high responsibility in the

Office of the United States Attorney during this period would only

be human in reacting to such a claim in either a defensive or an

adversarial way.    Both responses would be natural, given the

institutional relationship between the former official and his

former office during his time there.

          Still, the defendant’s claim and its implications cannot

themselves alone suffice to require the judge’s recusal, lest the

law confer a veto power on the assignment of his trial judge to any

heckling defendant who merely levels a charge that implicates a

judge’s defensive or vicariously defensive reaction.    The recusal

standard must be more demanding because “the disqualification

decision must reflect not only the need to secure public confidence

through proceedings that appear impartial, but also the need to

prevent parties from too easily obtaining the disqualification of

a judge, thereby potentially manipulating the system for strategic

reasons, perhaps to obtain a judge more to their liking.”     In re


                               -10-
Allied-Signal Inc., 891 F.2d 967, 970 (1st Cir. 1989); see In re

United States, 158 F.3d at 35 (“A party cannot cast sinister

aspersions, fail to provide a factual basis for those aspersions,

and then claim that the judge must disqualify [him]self because the

aspersions,   ex   proprio   vigore,   create   a   cloud   on   [his]

impartiality.”).   Hence, a district judge asked to recuse “is not

to use the standard of ‘Caesar’s wife,’ the standard of mere

suspicion.”   In re Allied-Signal Inc., 891 F.2d at 970.           The

necessary independent support for a challenge to impartiality with

the potential to produce bias, see Brooks v. N.H. Supreme Court, 80

F.3d 633, 640 (1st Cir. 1996), is supplied in this case by official

reports and conclusions predating these proceedings, and already

largely in the public domain, that disclosed disquieting links

between the Government and the criminal element during the years in

question, and that may fairly stimulate a critical attitude on the

part of an independent observer.

          For purposes of the reasonable question standard, some

facts may be treated as undisputed owing to an extensive history of

litigation and official enquiry into the relationship between the

defendant and the FBI during a substantial portion of the span

covered by the indictment.   See United States v. Flemmi, 402 F.3d

79 (1st Cir. 2005); Donahue v. United States, 634 F.3d 615 (1st

Cir. 2011);   Flemmi, 225 F.3d 78; Connolly, 341 F.3d 16; McIntyre

v. United States, 367 F.3d 38 (1st Cir. 2004); United States v.


                                -11-
Connolly, 504 F.3d 206 (1st Cir. 2007); United States v. Salemme,

164 F. Supp. 2d 49 (D. Mass. 1998).              Prior judicial findings

indicate that at relevant times the defendant and his associate

Flemmi controlled the Boston crime organization known as the Winter

Hill Gang, and they agreed with FBI agents to act as confidential

informants about the city’s chapter of La Cosa Nostra, which it was

a Justice Department priority to destroy.           Flemmi, 225 F.3d at

81-83; McIntyre, 367 F.3d at 45; Salemme, 164 F. Supp. 2d at 40,

60.   The period covered by the special relationship between the

defendant and the FBI overlapped both the dates of the activity

alleged in the defendant’s indictment and the years that Judge

Stearns held supervisory positions in the federal prosecutor’s

office.

            It is widely known that the FBI’s principal contact

person    (“handler”)   with   the   defendant    and   Flemmi   was   later

convicted of taking bribes from them, see Connolly, 341 F.3d at 20-

21, and evidence in prior litigation showed that the FBI provided

the Winter Hill Gang with names of rival snitches, who were

subsequently murdered, see McIntyre, 367 F.3d at 41.         Although the

FBI agents were the defendant’s immediate partners in the informant

relationship, some knowledge of it and participation in it went

deeper into the Justice Department, for it indisputably extended to

O’Sullivan, from whom the defendant says he received the promise of

immunity.    See Flemmi, 225 F.3d at 90.           At the time claimed,


                                     -12-
O’Sullivan was a member of the New England Organized Crime Strike

Force, for which he was at one period the chief prosecutor, though

at other times (as mentioned before) he was an Assistant United

States Attorney     and   even    acting    United    States Attorney.      He

appeared as a witness in the congressional enquiry that followed

the public disclosure of the informant agreement, cf. McIntyre, 367

F.3d at 45, where he was questioned about an investigation into a

scheme implicating Winter Hill Gang members in fixing horse races

at New England tracks, see 1 H.R. Rep. No. 108-414, Everything

Secret Degenerates: The FBI’s Use of Murderers as Informants, at 58

(2004).     When he was asked why the Government had sought no

indictments of the defendant and Flemmi along with others that were

handed up, cf. Flemmi, 225 F.3d at 81-82, O’Sullivan spoke of their

minimal participation, only to be confronted with a memo he had

written on the matter at the time, which made it clear that the

gang-leader informants were in no way minimal participants.              See 1

H.R. Rep. 108-414, at 58.        He acknowledged that what he wrote must

have been what he understood at the time, but the committee’s

report    branded   his   initial   testimony    as    “false,”   not   merely

mistaken, id., and responsibility for favoritism to the defendant

was thus extended to a Strike Force member who was subsequently

placed in charge of the United States Attorney’s Office.            On these

facts, concerns about impartiality arise from the very structure of




                                     -13-
the prosecutorial forces, which included some communication between

the Strike Force and the United States Attorney's Office.

              The Strike Force, to be sure, was distinct from the

Office of the United States Attorney where Judge Stearns was a

supervisor, and was a competitor organization within the Justice

Department, reporting directly to the Attorney General.                  But there

is   reason    to   believe       that   there    was   no   impermeable      barrier

insulating information known to one office from being shared with

the other.        In 1970, the Attorney General instructed the two

enforcement arms to keep each other informed of their activities,

In re Persico, 522 F.2d 41, 68 (2d Cir. 1975), the two offices in

Boston “interact[ed]” from time to time, and O’Sullivan was known

to be in touch with the United States Attorney, Salemme, 164 F.

Supp. 2d at 55.           FBI reports, a source common to both offices,

indicate    that     on    at    least   some    occasions    the    United   States

Attorney’s Office as well as the Strike Force was apprised of

investigations        of        the   defendant’s       activities,     and     those

investigations must have been aimed at the sort of activity charged

here: the indictment itself lists a string of serious criminal

acts, including 19 murders, on the part of the defendant or his

organization, all of a sort subject to federal scrutiny during the

periods of the judge’s supervisory positions.

              These disclosures of record do not, of course, add up to

showing    that     any    federal     officers    promised    the    immunity    the


                                         -14-
defendant claims (let alone that anyone had authority to do so).

But they do tend to indicate that the Government and the defendant

were not at arm’s length during all of the period in question, and

that any evidence about the terms on which they dealt with each

other could reflect on the United States Attorney’s Office as it

was constituted in those days.

           The   record   likewise   includes   enough   to   justify   a

reasonable belief that the defense’s claim probably portends an

enquiry into just those dealings.       Given the institutional ties

described here, the reasonable person might well question whether

a judge who bore supervisory responsibility for prosecutorial

activities during some of the time at issue could suppress his

inevitable feelings and remain impartial when asked to determine

how far to delve into the relationship between defendant and

Government, and to preside over whatever enquiry may ultimately be

conducted.   On this record, that question could not reasonably be

avoided.

           We think it would be of no consequence to the reasonable

person that the judge in the supervisory position had not been the

United States Attorney, who carried ultimate responsibility for the

office.    See United States v. Arnpriester, 37 F.3d 466, 467 (9th

Cir. 1994) (finding a U.S. Attorney responsible for the activities

of his office).    Indeed, a supervisor, such as Chief of Criminal

Division, is more immediately accountable for the actions of his


                                 -15-
own   section   than     the   United   States     Attorney       is,    with     a

correspondingly immediate difficulty in remaining impartial toward

a defendant who seeks to throw more fuel on the embers left from

the prior disclosures related to this case.          Cf. United States v.

Scholl, 166 F.3d 964, 977 (9th Cir. 1999) (rejecting a recusal

claim against a supervisor with no authority over the section of

the office conducting the relevant investigation).

           That of course is not quite the end of the matter, for as

we mentioned earlier a mandamus petitioner must show irreparable

harm if immediate relief is denied, and a balance of equities in

his favor.   As for the former, we can leave aside any question of

harm personal to the defendant and concentrate on damage to the

judicial system.    It is enough to say that we need not consider a

rule that a clear showing under the substantive recusal standard

always   suffices   to    demonstrate   irreparable       harm,    see     In    Re

Martinez-Catala,    129    F.3d   at    217-218,    for    here     the    prior

disclosures make it imperative to act promptly to preclude any

reasonable question whether untoward Government action in the past

may affect the fairness of the judicial branch in the present.                  Nor

does balancing the equities present any close question.                 The prior

disclosures take this case out of the category of the heckler’s

veto, and the defendant has represented that he will not seek any

trial delay if a new judge is substituted.




                                   -16-
           In sum, despite our respect for Judge Stearns and our

belief in his sincerity, we are nonetheless bound to conclude that

it is clear that a reasonable person might question the judge’s

ability   to   preserve   impartiality      through     the    course   of   this

prosecution and the likely rulings made necessary by the immunity

claim.3    The   other    mandamus    conditions      being    satisfied,    the

petition is granted, and the case shall be reassigned to a judge

whose curriculum    vitae    does    not    implicate    the    same    level of

institutional responsibility described here.

           It is so ordered.




     3
        On March 4, 2013, Judge Stearns responded to the
Government’s motion under Federal Rule of Criminal Procedure 12 by
rejecting the defendant’s immunity claim as a matter of law insofar
as it included immunity for criminal acts that might have been
committed after the date of any promise. This ruling neither moots
the recusal issue nor affects our reasoning, for defendant’s claim
of possibly retrospective immunity remains subject to litigation.
Nor does our own ruling require that Judge Stearns’s March 4 order
(or any other, save the one under review) be vacated.           The
defendant is free to respond to that order as he sees fit, but
nothing we decide here necessarily requires reploughing the ground,
given the absence of any allegation that Judge Stearns is actually
biased.

                                     -17-
