melissa baldwin on behalf of the petitioner john henry moore may please the court twenty eight us c section fifty five he won contains a bright line the judge shall disqualify himself where he has personal knowledge of disputed evidentiary facts concerning the procedure that rule applies here where the judge actually prosecuted a prior conviction and that prior conviction is subject to a conduct specific prior conduct related to this robbery conviction became an issue but i didn't think it was clear and undisputed that that meant he has to recuse now that partially quetzal wouldn't fix the  problem because it seems as though some courts had suggested that partially quetzal as could be appropriate in a case like this then what do i do why would say you go back to the statute which is subsection be won and impartial impartial were cute is all it is very rare there were only three cases we could identify where it was used and those all involved unique circumstances that justified the approaching non involved a subsection b one conflict like we have here and the problem with partial recusal here is that you would be employing at because you see the judge has it just has a disqualifying conflict of personal knowledge that couldn't fact the case but you still want the judge to be involved in the case so if you actually did know well contrary to the judge's ruling you can have personal knowledge even if they said a judge is presumed to have personal knowledge so i understand that argument but i am i mean i just think it's important for me at least to recognize that you know lewis is a appeal cases not a mandamus case and i understand the logic of lewis and it has some appeal to it i'm not sure whether tried or not it's not apparent to me that when you say personal knowledge it doesn't mean personal knowledge like actual knowledge  amus presents but it seems like to me here you get two or three different steps on this process that we would have to find even if i might well have recused myself had i been in the shoes below i don't get to make clear as judge harris pointed out that if there's a potential for a dispute about a fact down the road that that requires current recusal and i think you have reasonable arguments you know we can keep going but i'll just use those two examples and you get reasonable arguments on both of them but what you have to do is combine you know even if you are seventy percent right on the st one and seventy percent right on the nd one yes so i was going to say you do not have to find the district judge that the district judge is representation no memory is faulty it's just sorry if he misconstrued subjective test but wouldn't knowledge like personal knowledge in that necessarily subjective right whether a particular person is not whether a reasonable person would have knowledge like having personal knowledge by defining knowledge is personal then that means it has to be subjective it's whether that person has knowledge no it doesn't because it's the supreme court recognizing williams versus pennsylvania the personal knowledge could be unconscious in which case the district judge absolutely would have no specific  involvement in the prosecution twenty nine years earlier presented to due process risk because he has knowledge that prosecution could unconsciously enter into the case but that's a different quote that isn't the how does this work the concern i would think would be that even if the judge doesn't remember now what is going to remind him is precisely the problem that if these facts become relevant at the sentencing hearing that's what he is going to have the like i don't remember the cases i heard yesterday but when i go back and look at my notes i hope i will remember them and that's usually the way it works so i guess is the idea that the judge could then make sort of a call right then when he opens the papers oh hang on now i remember that i have concerns about the process and i guess i want to share them and give you a chance to address them and so those statutes i do want to point out the statutory text here permit does not prohibit the district facts and so going back to yes the the personal knowledge is on a sentencing enhancement and that's case and that sentencing enhanced hasn't been litigated but nonetheless the personal knowledge is relevant in this prosecution now the notice has been filed this is a three strikes case where the judge is assigned to preside over a theory where he will have to adjudicate the dispute and this is one of the strong yes be done over because the judges possession of personal knowledge stripped him of statutory authority to hear the case so it had to be all done over even though he never had occasion to address the issue on which he had personal knowledge an indeed doesn't that go to the other mandamus problem i mean i think it's a totally different case if we're after a result but at this stage part of what you've also got to show in addition to being industry really clear is that you lack ability to remedy and the cases that you continue to cite to as i think appropriately like lewis and otherwise or all you know post senate seeing appeals based on the very issues that you're raising  here and i get there have been instances in which the court has has not given that significant discussion but why is it that also in this same idea even if we you know would agree with you that maybe the better course of action would have been recusal while would that be a rim of the available after conviction because we are talking about you dish will disqualification here and as a rd circuit rd circuit case right but it didn't address and i think i remember the case that you're describing that i don't know i don't recall it addressing me just silent on this question of whether it was redress of all after the  impropriety they are still relevant under four hundred and fifty five dollars be won and in those cases they say that the public that there would judiciaries reputation is harmed by allowing a judge we know to be disqualified without statutory continue presiding over the case so even if you were to grant some sort of remedy to us from final judgment you would not be remedying the harm to the judiciary is reputation from allowing a disqualified judge to knowingly proceed over mandatory light case where the facts of the conviction he prosecuted could determine whether or not mr morris spent his life in prison rely on supplemental records in this case the briefing did not rely on the supplemental record in this case given since we started talking just a little bit about it i'm curious your interpretation i will ask your colleague hopefully one of the two of you   and the indictment refers to two charges different statutory offenses both on the same day neither of which has at least enough information for me to determine whether they were the same bank robbery or whether they were separate bank robbers well i can tell you i know that the case involved were separate bank robberies they were separately indicted and there intends to preside over sentencing in this case and so regardless cantons based on the information he has now i mean that that's always the case in these scenarios right that maybe when he looks at this information is just suggests he looks at and he's like i remember this guy i mean i'm a little bit like judge harris please don't tell me a case name from yesterday because i've got nothing right but you give me some documents and i look at it it makes a lot more sense to me and certainly we should not assume that if you looked at this information or he saw additional information that was pertinent that he wouldn't in that instance recuse and if you didn't then maybe you would have a much you know as we told the panel we tried to get the documents originally before filing because we were told by the clerk's office they only had the docket sheet it was only when we made our rd request and the government's minute simultaneous request that we got t extraordinary that the district judge would be in a position where he where he would have to find himself credible and representing a firearm is involved in this case to trigger a mandatory life doesn't specify which bank robbery and if it's there it at least two he pled guilty to one i take count one in two of the indictment to refer to the same bank robbery once force one is on force not perfectly clear but that's my best read i hope your colleague can clarify that but that means that there was a nd indictment somewhere for a nd bank robbery and it may well have been that bank robbery which he did not plead guilty to  that was represented to involve a gun or not i have no idea and i suspect neither the judge conrad at this day and i'm curious what your colleague doesn't know but regardless that's the record we've b one based on the record prior to the supplemental joint appendix because the judge actually prosecuted a prior conviction and we know that prior conviction is subject to conduct specific inquiry and that determination could lead to an increase in the  i don't love stopping you before you start but can you based on the record i don't want you to go outside of the record like that you may know this information based on extra record discussions or otherwise i'm not asking that because i don't think we can consider based on the record cannot tell anything about all the supplemental join appendix reference to a firearm and whether that has any connection to allegation of a fire or what it was in connection with specifically or the circumstances i don't think there's anything in the record like that i can tell you that person or that's not to see some i don't but and eighty nine dollars motion to you just laid out for the court there were four indictments each one of them charged bank robbery and bank and bank larceny of a separate bank that doesn't answer the question but it at least in the four indictments that is being referenced there is that is that a s j a seven is one indictment two camps one bank one larceny one force right that's guess i can't really ask you that i won't to know whether they charged two thousand one hundred and thirteen on any of the other three right yes your honor i think but but the point i guess i don't want to answer if it's not in the record i mean as part of my my problem here is i have trouble figuring out what the what is actually happening the answer might be in the in the peace agreement or the judgment you don't and they think they might say what was dismissed but they are i know but they got a guy's face a life sentence still i mean i got to do whatever they can do all these lawyers got an obligation to get to record right for us we we want to try to get to ensure right that's that's true your honor i can tell you that when i've spoken to the court about this most people are not familiar with the record keeping practices from thirty years what we did was we sent the court's order some of us and one of these judges said no peers are you with for more than thirty years are fortunately charges not just two suggesting although by no means like any real evidence of it suggesting that that was the indictment that included the d t r not just the a and b that went with the other three perhaps i mean i just had to and i don't want to cut off the questions about the record which i was so fine hard to get my hands around but on the record we have it now i'm just not clear is the government's position that the judge could conduct the said he wanted to correct any misstep retention of what he had previously said at the hearing and at the hearing he said it really doesn't affect in any way the trial aspects of this case it comes into play if there is a conviction and that prior conviction becomes relevant if at all with respect to sentencing as i sit here today and the only thing he knew was a speculation that this might come up as i sit here today and like any other judge and i would be like any other judge if this evidence were in front of me and i had evidence about my personal communications back and nine to adjudicate he never considered that because that was never put in for any as i said your name like any other judge the resolution of that issue would be based not on any personal recollection i have today but on whatever the parties can show me through the pre  making police simply clear that the fact that i prosecuted this case thirty years ago has no bearing on the trial and sentencing if necessary i have no memory of the case whatsoever and apparent that a call and i have the resulting ability to sit like any other judge disqualification is not required you think he's saying maybe i'll disqualify myself i don't know anything i don't think he's expressing any opinion i think i don't think he's expressing an opinion as to whether disqualification is required given that it says accordingly disqualification is not require i think he's i think he is expressing an opinion on whether disqualification is required to day i don't think as it is the sentencing i mean this is ok i'm i understand that your honor and you can see how one might read this as a judge saying i'm not disqualifying at the what might change his mind would be an actual dispursed he's convicted at trial so that issue has a possibility of coming but that's what insane here he's saying it will have no bearing on the sentencing if it occurs but beyond that i think might change his mind and i don't just and one example could be you know there's a conviction and you all get together and you gather evidence and submit briefs with respect to the three strike the wall and in doing so you describe the particular bank robbery like you know i prosecuted a bank robbery that happened during an eclipse right and so i have to remember that guy's name but like if you said oh the bank robbery happened during the eclipse even if i don't remember the name i would remember that bank robbery and so that type of information facts that triggered a memory in his mind which certainly i don't think precludes him at all from reconsidering to snow and i think that if he remembers that i was there was a genuine question so you think what might change his mind is right now he doesn't remember but if something jogs his ma'am i don't think it might be something jog his memory i think it just needs to be a presentation of facts oh i have this looks like facts of which i had personal knowledge at one time i think if you look at the little decision there's there's not a lot of room for the idea that i knew at one time that i forgot but so i think if judge conrad saw a fact that you know the hype i mean that that's not binding on him it's not binding on us i mean that may well question not a factual question sure do we shouldn't we did b in light of the three might be three as it is a narrow sort of recusal provision for government lawyers right that sort of says unlike most people government lawyers we do narrow recusals does that affect at all our interpretation or analysis of the one i think it can your honor i'm not entirely sure exception for government lawyers seems to have some bearing on that well it gives it gives government lawyers a bit wider because it would otherwise record require recusal of every judge of something for example a rule that  says anyone sort of represents a party i thought when i when i did my ethics training in the government they were really clear on this like the employment exclusion is one thing but if you have personal knowledge you can't say yes i don't think it changes that ultimately you need personal knowledge of a disputed the no but what it seems to me to say is that we should not presume knowledge from mere fact of representation right so absolutely your example in interpret what what knowledge means it makes it harder to i think to make this constructive knowledge idea yes because if you extend it if you interpret personal knowledge to mean something broader constructive knowledge not personality but constructive knowledge then you you over read out a significant portion of b three and the rest from getting if you've got actual knowledge it's really easy right but it used to according to what he said he has not and does not have personal knowledge today maybe develops in the future and i guess to i mean is that not i think that's a very fair thing i and this court even has wondered temple where it was a private party the judge had represented an adversary to  bankruptcy for the defendant and head off the sent them letters trying to like the debt from that defendant and this was a victim of the bankruptcy fraud and five years later he was on the bench and the court said well look that's fine that was that  was not an issue actually litigated in the case it was significant to the court by the way that the actual letter and that that didn't come up in the trial that's we don't know we don't know if there's something significant about nine hundred and eighty nine dollars that's going to come up and actually be disputed or not it could be that when we have all the facts one of us looks and says oh this is so obviously not a gun or threat case that we're not going to pursue it or it's so obviously is that we're going to focus on the other issues it may not come up a i thought the defendant was right just if you put in to one side the mandamus standard but let's just assume i think the defendant is right that the best way to read this statute and on the record we have the judge can sit on the sentencing if all of these certainly strongly disfavored partially controlled so if i were getting this case on direct review that's what i would be inclined to say i understand though there were many many damus and so the standards are all very different but the thing i'm trying to head off sort of coming down the this case goes forward the contingencies materialize the judge does what i think the judge at least can be understood as saying he's going to do which is i'm sitting on that sentencing then the case comes back to me undirected appeal and i have to undo the entire thing because i think the judge should recuse before trial so it's not just the sentence that goes out it's a whole conviction this it's just a really practical question so what should a judge like that do so i think the answer is clear because the standard for mandamus the remedy asked for in this court please send it back for a new trial or a new sentencing and i would note that there are several to see and i get but why is the government so happy about that i mean i feel it every time and every time you run off and the government is telling me it's really expensive to retry cases and you can really expensive and resource intensive to resentence people and it just strikes me i mean the seven the seven circuit right you have to raise these things by mandamus for exactly these reasons they don't want to have a whole trial and sentencing knowing full well that on direct appeal they're going to reverse well your honor honestly there's plenty of circumstances where it would be easier for us to just find out what your honour's would think of an issue before really litigate case before we finish an investigation  suppression issue could take out the entire trial could be a six week trial it could be it you know years of discovery all undermined by the situation that could have been fixed early on but that's not what the law is and i don't mean to suggest i'm happy about this we took the position that have to go by mandamus or preserve your objection in every other circuit i've seen there are at least cases where people do hear these disqualifications things on mandamus and theoretically you could always get your windows mandamus cases at least the one cited by the defendant all have one thing in common the allegation is one where a reasonable observer could believe that the judge is partial in the sense of showing favoritism they favor one party of another because they went to an all expense paid  have the application in the department of justice it's surely a reasonable server here an outside objective observer told that the judge as actually prosecuted the defendant in a prior case could have questions about partiality so the defendant st two everything he prosecuted him before on a conviction that is now before the court at sentencing well right but the point is an objective observer would look at the facts at the time of quetzal and the ultimate issue at the time recusal and know that judge conrad can make an evidentiary decision exists those there are certainly plenty of examples to make that kind of allegation he's not let's just kind of a did something wrong in one thousand nine hundred and eighty nine just to suit justice souter said in the boulder case of course the judge would only be natural in reacting with as an a trial and the court said oh it's a possibility but we can't grant mandamus on this and this court has taken very seriously some of the judge richardson mentioned takes very seriously the requirement that it be clear and undisputable in the saudi case which this court began by saying this is an extraordinarily important appeal that pits the rights of the defendant against the obligation and duties to protect national security and there was a real allegation that producing this witness would destroy relationships with other countries and the court said we can't decide this because the issue is complex and the outcome is not readily apparent we can't decide on the ending and those are that's a very strong standard and it's not met here because not only are the issues not clear they're really  rd one is in any way relief is available on direct appeal that's a very fair summary of it if there's no further questions i see my time is up i would ask that this court deny the extraordinary writ of manda the government has now told us the district judge cannot preside over sentencing in this case because the judge has a three strikes predicate that could determine the sentence only when the defendant submits evidence on that nine hundred and eighty nine bank robbery he prosecuted that is not how four hundred and fifty five b one works because the very decision on what evidence to present and what arguments to make are going to take into account count the fact it's being presented to the prosecutor justice souter writing for the st circuit in route bolger said we do not look at what evidence sits on the conflicting issue because the question is whether or not the decision maker himself has a conflict so regardless of the decision on that issue the question is whether or not the district judge can make that decision and now the government has said he cannot and the government has says that this is premature we should be waiting but the problem is this is affecting the case now this is influencing the case now sentencing exposure matters from the cases inception and it drives the parties those decisions in the case the reality of the situation here is that the parties have to proceed in this case to sign their strategies decide whether or not to make a plea offer the terms and to accept it based on the fact that judge currently assigned to preside over the case who is in the position to impose a there is no direct appeal if our the case mandamus would never in shoot because there is always there is always going to be the pos there is almost always going to be the possibility of appeal there was the possibility of possibility of appeal in all of the cases where the courts granted it and they did so in these just judicial disqualification contacts is because awaiting final appeal is not an adequate now me and him it is available to correct a clear abuse of discretion and the district judge's ruling in this case is that is that his prior prosecution of a conviction that is subject to a specific conduct inquiry in this case to determine a maybe although cheney indicates that mandamus in cases implicating separation of powers and executive power is a more readily granted standard i don't drag you into a broader debate but do you maybe maybe that's different than a clear abuse of discretion and as i just want him to understand which of those two you're continuing is the appropriate standard for us to consider well awaiting final judgment is an inadequate remedy and that this and that the equity is otherwise convince this court mandamus was appropriate and here because the judge prosecuted a prior conviction that is subject to a conduct specific inquiry to increase the statutory punishment