In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 04-4104

IN RE: GALE NETTLES,

Petitioner.

____________

Petition for Writ of Mandamus to the

United States District Court for the

Northern District of Illinois, Eastern Division.

No. 04 CR 699—Elaine E. Bucklo, Judge.

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SUBMITTED DECEMBER 8, 2004—DECIDED JANUARY 21, 2005

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Before POSNER, RIPPLE, and SYKES, Circuit Judges.

POSNER, Circuit Judge. After allegedly purchasing ammonium nitrate fertilizer from an undercover FBI agent and

selling it to another undercover agent, who was posing as a

terrorist, Gale Nettles was charged with several federal crimes,

including attempting to damage and destroy a federal building, 18 U.S.C. § 844(f)(1)—namely the Dirksen Courthouse in

downtown Chicago, the site of the federal courts in Chicago,

including the United States District Court for the Northern

District of Illinois. The case was assigned to Judge Bucklo of

that court. Nettles moved to recuse her and the other judges of

the court on the ground that since the plot involved a threat to

the judges’ safety, a trial presided over by any one of them

would create an appearance of bias. 28 U.S.C. § 455(a).
2 No. 04-4104

Although the government supported the motion, Judge Bucklo

denied it on the ground there had never been “any real danger” of damage to the building and she had no “actual fear of

harm” that might influence her rulings in the case.

The petition for mandamus seeks recusal of Judge Bucklo

and the other judges of the Northern District on the ground

that a reasonable observer would think there was “a significant risk that the judge will resolve the case on a basis other

than the merits.” Hook v. McDade, 89 F.3d 350, 354 (7th Cir.

1996). We must bear in mind that “these outside observers are

less inclined to credit judges’ impartiality and mental discipline than the judiciary itself will be.” In re Mason, 916 F.2d

384, 386 (7th Cir. 1990). Although the federal court of appeals

for this circuit also resides in the Dirksen Courthouse, our

recusal from considering the petition is not sought. But we will

have to take up the question of our recusal at the end of this

opinion.

The cases (none in this court) that have addressed the issue

of recusal based on threats have held that a threat to a judge

that appears to be genuine and not just motivated by a desire

to recuse the judge requires recusal. United States v. Yousef, 327

F.3d 56, 170 (2d Cir. 2003); Nichols v. Alley, 71 F.3d 347 (10th

Cir. 1995); United States v. Greenspan, 26 F.3d 1001, 1006-07

(10th Cir. 1994); United States v. Cooley, 1 F.3d 985, 993-94 (10th

Cir. 1993). This is such a case. According to the indictment,

Nettles, while serving a two-year prison sentence imposed by

a judge of the Northern District, told a fellow prisoner that he

wanted to destroy the Dirksen Courthouse, killing or injuring

its occupants, by means of a truck bomb. The prisoner reported the threat, and the FBI gave him a phone number, to

give Nettles, of a purported supplier of ammonium nitrate.

Upon his release from prison Nettles called the number and

made arrangements for the purchase—from an undercover FBI

agent, of course—for resale to a purported terrorist (another

undercover agent) who seemed willing and able to use it to
No. 04-4104 3

destroy the building. Te-Ta-Ma Truth Found.—Family of URI,

Inc. v. World Church of the Creator, 246 F.Supp. 2d 980 (N.D. Ill.

2003). Since no proceedings against Nettles were pending in

the Northern District, his actions could not have been taken

with recusal, or some other tactic that might delay or derail a

case against him, in mind.

Of course the actual threat to the Dirksen Courthouse was

nil because Nettles’s accomplices were federal agents. But the

next time he might be more careful and succeed in his aim. A

reasonable observer would think that a judge who works in

the Dirksen building would want Nettles to be convicted and

given a long sentence, rather than to be set free, either forthwith or sooner rather than later, to make another attempt to

destroy the courthouse or its occupants. It is true that if Nettles

is innocent, and therefore not a threat, the judge’s incentive to

convict him would be eliminated or at least attenuated. But (it

might appear to the reasonable, but outside, observer of the

judicial system) a judge might be convinced of Nettles’ guilt

yet concerned that a jury might acquit him, and might therefore rule against him on evidentiary and procedural issues,

regardless of the merits. And innocence is not the only

question in a criminal trial; the length of the sentence is

another, and it is a question on which the judge retained

significant discretion under the federal sentencing guidelines

even before United States v. Booker, 2005 WL 50108 (Jan. 12, 2005).

We do not suggest that Judge Bucklo would in fact be prejudiced against Nettles. The issue is appearances. With reluctance we conclude that Nettles is entitled to a writ of mandamus directing the recusal of Judge Bucklo and any other judge

of the Northern District.

However, there is a further issue to consider. Although as

we said Nettles has not asked us to recuse ourselves from ruling on his petition for mandamus, he did ask the district judge

not only to recuse herself but, before doing so, to transfer the

case to another circuit, so that the appellate judges in the
4 No. 04-4104

Dirksen Courthouse would not decide any appeals in his

criminal case. The petition for mandamus does not discuss the

transfer issue directly, but does refer to the arguments that

Nettles made in the motion he filed in district court, including

the argument that the judges of this court would appear prejudiced if we were to hear his appeal. Although we feel ourselves to be no more prejudiced against Nettles than Judge

Bucklo does, a reasonable observer might conclude that,

should he be convicted and sentenced, and appeal, he would

no more get a fair shake in our court that he would in the

district court, since the appellate judges in this courthouse are

as menaced by an Oklahoma City style attack as the district

judges.

No purpose would be served by requiring Nettles to renew

his transfer motion in the district court, before a judge brought

in from outside the Northern District, or to make a subsequent

motion to recuse the members of this court. A more efficient

method of proceeding is for us to recuse ourselves now, to be

replaced by judges from other circuits who will be designated

to hear any further proceedings instituted by Nettles in this

court.

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—1-21-05