United States Court of Appeals

For the First Circuit

No. 06-2230

IN RE: RENÉ VÁZQUEZ-BOTET,

Petitioner.

ON PETITION FOR A WRIT OF MANDAMUS

TO THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

 Torruella, Selya and Howard,

Circuit Judges.

Howard Srebnick, with whom Black, Srebnick, Kornspan & Stumpf,

P.A., and Edgar Vega-Pabón were on petition for writ of mandamus,

for petitioner.

Michael Férrara, Trial Attorney, Public Integrity Section,

Criminal Division, U.S. Department of Justice, with whom Alice S.

Fisher, Assistant Attorney General, Criminal Division, Edward C.

Nucci, Acting Chief, and Mary K. Butler and Matthew C. Solomon,

Trial Attorneys, Public Integrity Section, were on opposition to

petition for writ of mandamus, for respondent.

September 20, 2006
 The judgment also provided that any petition for panel 1

rehearing or en banc review was to be filed no later than fourteen

days from the date of this opinion.

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Per Curiam. Petitioner René Vázquez-Botet, who is

awaiting trial on charges of conspiracy, fraud, and extortion,

seeks a writ of mandamus ordering the recusal of the presiding

district court judge. Because the scheduled start of trial was

imminent, this court expedited the hearing on this petition. We

then issued a judgment on September 14, 2006 (the day after oral

argument), denying the mandamus petition and indicating that an

opinion would follow. This is that opinion. In it, we set forth

our reasons for withholding relief from petitioner.1

Background

This is the second recusal-based mandamus petition to

emerge from the underlying criminal proceedings. Earlier this

year, upon request of the government, this court ordered the

replacement of the original judge in the case. See In re United

States, 441 F.3d 44 (1 Cir.), petition for cert. filed, 75 st

U.S.L.W. 3065 (U.S. July 31, 2006) (No. 06-166). While dismissing

accusations of actual bias, we there agreed that, because of the

manner in which an investigation into alleged grand jury

improprieties was being conducted, the judge’s “impartiality might

reasonably be questioned.” 28 U.S.C. § 455(a). On remand, the

case was randomly reassigned to Chief Judge Fusté on May 16, 2006,

who has scheduled the start of trial for September 26, 2006. In a
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recent filing, the parties estimated that trial would take two to

three weeks. 

The instant petition relies on an entirely different set

of allegations. They center on the fact that Chief Judge Fusté’s

wife, Rachel Brill, is a practicing attorney who has had some

involvement with matters tangential to this criminal case. With

co-counsel, she has represented Gregory Laracy--a subject of the

investigation and an unindicted coconspirator. Laracy was an

officer of one of the local contractors that allegedly made

extortionate payments. In May 2003, after several earlier meetings

with the government, Brill negotiated a proffer agreement providing

Laracy with immunity for his testimony. Petitioner asserts that

Laracy, while being represented by Brill, testified before one or

more of the grand juries involved in the underlying investigation.

The government describes him as a potential prosecution witness at

trial. Brill’s representation of Laracy mostly involved events

occurring over three years ago, and she entered no appearance in

any criminal or civil case in connection therewith. She states

that she last billed Laracy in October 2003 and does not expect to

do so in the future. There is, however, no formal indication that

such representation has been terminated. 

Brill also has represented José Ventura–-another local

contractor who was not involved in the crimes charged here but who

pled guilty to a similar offense in 2002. The government
 The first document was a motion for sanctions, filed by 2

Brill in February 2004 in a criminal case. See United States v.

Rivera Rangel, 396 F.3d 476 (1 Cir. 2005). Ventura testified at st

that trial as a government witness. Defendant Rivera was

represented by Attorney Edgar Vega-Pabón (“Vega”), who has also

been serving as one of petitioner’s attorneys here. While the

Rivera case was on appeal, Vega filed a motion charging, inter

alia, that Ventura had committed perjury and violated his plea

agreement. Brill responded with a request for sanctions.

Referring to Vega’s simultaneous representation of petitioner, she

suggested at one point that “the efforts to intimidate Mr. Ventura

are intended to reach beyond the interests of Ms. Rivera.” Neither

motion was ever acted on by the district court.

The second document was a letter sent by Brill to petitioner’s

attorneys in December 2004. It responded to a letter petitioner

had sent to Ventura, in which he supposedly sought a $10 million

payment for alleged slander committed by Ventura while testifying

at several judicial and legislative proceedings. Citing a

statutory privilege, Brill deemed this request “laughable” and

possibly “extort[ionate].” There is no indication that the

prosecution, upon receiving such correspondence from Brill, took

any action. Petitioner’s counsel made Brill’s letter public by

appending it to his motion to recuse.

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originally contemplated calling Ventura as a “404(b) witness” to

describe other bad acts allegedly committed by petitioner, see Fed.

R. Evid. 404(b), but it has now announced that it will not do so.

For present purposes, the circumstances surrounding Brill’s

representation of Ventura remain relevant primarily because of two

documents that she drafted on his behalf. One publicly accused

petitioner, through counsel, of trying to “intimidate” Ventura.

The other privately charged that petitioner may have “once again”

attempted to “extort money” from Ventura; it also advised that the

prosecution would be notified of the possibility that petitioner

had thereby violated his bail conditions.2
 See also 28 U.S.C. § 455(b)(5)(iii) (spouse is “known by 3

the judge to have an interest that could be substantially affected

by the outcome of the proceeding”).

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According to petitioner, these circumstances require

Chief Judge Fusté’s recusal under four separate provisions of 28

U.S.C.:

C § 455(a), because his impartiality “might

reasonably be questioned”; 

C § 455(b)(4), because he or Brill has “a financial

interest in the subject matter in controversy” or

some “other interest that could be substantially

affected by the outcome of the proceeding”;3

C § 455(b)(5)(ii), because Brill “[i]s acting as a

lawyer in the proceeding”; and 

C § 455(b)(5)(iv), because Brill “[i]s to the judge’s

knowledge likely to be a material witness in the

proceeding.”

Rejecting petitioner’s request for an evidentiary hearing before a

different judge, Chief Judge Fusté issued a detailed opinion

examining each provision separately and concluding that none of

them warranted his recusal. Petitioner seeks to overturn this

ruling by way of the instant mandamus petition.

Discussion

A district judge’s refusal to recuse, although

“[o]rdinarily” reviewable only on appeal from final judgment, In re

Martinez-Catala, 129 F.3d 213, 217 (1 Cir. 1997), can sometimes st

present “an extraordinary situation suitable for the exercise of

our mandamus jurisdiction,” In re United States, 666 F.2d 690, 694
 When mandamus is sought by the government in a criminal 4

case, these exacting requirements are relaxed and an abuse of

discretion standard is instead applied, due to the government’s

inability to press an end-of-case appeal. See, e.g., In re United

States, 158 F.3d at 30-31; see also In re Boston’s Children First,

244 F.3d 164, 167 n.6 (1 Cir. 2001). The earlier mandamus st

petition in this case was adjudicated under this more lenient

standard. See In re United States, 441 F.3d at 56. 

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(1 Cir. 1981); accord In re United States, 158 F.3d 26, 30 (1 st st

Cir. 1998). “[T]he standards for issuance of the writ are high”:

petitioner must make “a showing of both clear entitlement to the

requested relief and irreparable harm without it, accompanied by a

favorable balance of the equities.” In re Cargill, Inc., 66 F.3d

1256, 1260 (1 Cir. 1995). “[I]n recusal cases, mandamus is almost st

always withheld ... unless the petitioner demonstrates that it is

clearly entitled to relief.” In re Martinez-Catala, 129 F.3d at

218 (internal quotation marks omitted). But mandamus is a

“discretionary writ,” and “even where the merits clearly favor the

petitioner, relief may be withheld for lack of irreparable injury

or based on a balance of equities.” Id. at 217. At bottom,

“mandamus requires a case not merely close to the line but clearly

over it.” Id. at 221.4

This is not such a case. We stop short of reaching any

definitive resolution of the recusal issue, preferring to leave

that question open “for resolution on an end-of-case appeal,” In re

Cargill, Inc., 66 F.3d at 1261, should petitioner be found guilty

and thereafter choose to pursue an appeal. For present purposes,
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it suffices to say that no “clear and indisputable” right to relief

has been established–-i.e., “that the issue is sufficiently clouded

that petitioner’s eventual entitlement to the requested redress-

–the district judge’s recusal--is problematic.” Id. at 1262

(footnote omitted). We explain briefly.

First: Mandamus relief is not warranted based on the

allegation that, under § 455(b)(4), Chief Judge Fusté (or Brill,

for that matter) has either a “financial interest” at stake or some

other interest that could be substantially affected by the case’s

outcome. Petitioner makes much of the hourly fees paid to Brill by

Laracy; indeed, his request for an evidentiary hearing below

focused mostly on financial matters. Notably absent, however, is

any explanation of how Brill’s receipt of such fees could possibly

be affected by the judge’s rulings or the jury’s verdict. More

generally, petitioner has not argued that a lawyer/client

relationship falls within § 455(d)(4)’s definition of “financial

interest.” And while he suggested below that Laracy would be

eligible for restitution in the aftermath of this case, the

government has since announced that no such relief will be sought

on Laracy’s behalf.

Petitioner also insists that Brill has an interest in his

conviction because of its possible impact on future litigation. He

contends that if he were to be convicted, if Laracy were then to

file a damages action against him, and if Brill were retained to
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pursue that action, she could argue that petitioner is estopped

from relitigating facts set forth in the indictment. The district

court rejected this contention on the ground that the alleged

interest was “too remote, speculative, and contingent” to be one

that might be substantially affected by the case’s outcome. In re

Kansas Pub. Emp’ees Ret. Sys., 85 F.3d 1353, 1362 (8 Cir. 1996). th

It is enough here to acknowledge the obvious: that this conclusion

is not clearly misplaced. Cf. Sensley v. Albritton, 385 F.3d 591,

600 (5 Cir. 2004) (rejecting § 455(b)(4) argument constructed by th

“layering several speculative premises on top of one another to

reach a speculative conclusion”).

Second: The charge that Brill “[i]s acting as a lawyer

in the proceeding” under § 455(b)(5)(ii) does not provide a basis

for mandamus relief. Courts have held that, while an attorney need

not be “enrolled as counsel” of record in order to fall within this

provision, McCuin v. Texas Power & Light Co., 714 F.2d 1255, 1260

(5 Cir. 1983), the attorney must at least “actually participate[] th

in the case,” id.; accord S.J. Groves & Sons Co. v. Int’l Bhd. of

Teamsters Local 627, 581 F.2d 1241, 1248 (7 Cir. 1978). Here, th

there is no prospect of any future participation by Brill; in

accordance with a standing order issued in 1990, Chief Judge Fusté

has declared that she is foreclosed from appearing as an attorney

“in any proceeding” before him. That standing order would, of
Petitioner notes one court’s expression of reluctance “to 5

encourage a lawyer’s withdrawal as a substitute for the judge’s

disqualification.” S.J. Groves & Sons, 581 F.2d at 1248-49. Yet

the concern there was about possible “hardship to the client of the

withdrawing firm.” Id. We perceive no such hardship should

Laracy--a non-party, potential witness--be required for whatever

reason to consult other counsel. 

 Petitioner also suggested below that Brill’s representation 6

of Laracy before the grand jury would qualify. Yet because the

grand jury “is not an arm of the district court,” In re United

States, 441 F.3d at 57, it is doubtful that the grand jury falls

within the definition of “proceeding.” In any event, petitioner

has not pursued that argument before this court.

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course, prohibit her from representing Laracy in this case, even if

she were inclined to do so.5

Petitioner emphasizes the fact that Brill negotiated the

immunity agreement for Laracy. Yet those events occurred over ten

months before this criminal case was initiated (the original

indictment was returned on April 8, 2004). Even though the word

“proceeding” is defined to include “pretrial, trial, appellate

review, or other stages of litigation,” 28 U.S.C. § 455(d)(1),

Chief Judge Fusté was not clearly mistaken in confining his

attention here “to the litigation encompassed by this indictment.”6

Nor does Brill’s authorship of the December 2004 letter

to petitioner’s counsel-–the one post-indictment event cited by

petitioner in this regard--call for a different result. As

petitioner sees it, Brill was there serving as “the advocate for

Ventura in favor of petitioner’s incarceration.” Even under that

arguably hyperbolic view, it is not immediately apparent how Brill
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would thereby be converted into a lawyer “acting ... in the

proceeding.” She sent the letter in response to a private

communication from petitioner involving events not directly related

to this case, see supra n.2, and it was petitioner rather than

Brill who made the letter public by filing it in court.

Third: The argument that Brill is “likely to be a

material witness in the proceeding” under § 455(b)(5)(iv) is based

on Giglio v. United States, 405 U.S. 150 (1972). The parties agree

that, pursuant thereto, the events surrounding the negotiation of

Laracy’s immunity agreement constitute material evidence. In

petitioner’s view, cross-examination of Laracy will not permit

adequate exploration of these matters, and Brill’s testimony will

thus be necessary, for several reasons. First, although Brill

voiced the expectation that Laracy would receive both direct and

derivative use immunity, the agreement ended up conferring only the

latter. Second, Brill had various conversations with the

government in Laracy’s absence. And third, because the Public

Integrity Section of the Department of Justice took control of the

case after the immunity agreement was reached with the local U.S.

Attorney’s office, Brill’s testimony is allegedly needed to confirm

that the new prosecutors will abide by its terms. The government

has responded to these points (e.g., by arguing that the running of

the limitations period has sharply reduced Laracy’s criminal

exposure, and that conversations held in Laracy’s absence could not
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affect his bias or credibility). The parties have debated the

extent to which the attorney/client privilege would apply. And

Chief Judge Fusté has dismissed petitioner’s argument as

“disingenuous.”

We do not find petitioner’s reasoning sufficiently

compelling to satisfy the demanding mandamus standards. We are

also disinclined to address these matters in the abstract, on the

basis of speculative scenarios about what may or may not transpire

at trial. (It is conceivable, for example, that the government

will decide not to put Laracy on the stand.) We instead think it

advisable to await an end-of-case appeal, should one ensue, in

which any argument along these lines can be pursued on the basis of

an established record.

Fourth: Finally, petitioner invokes § 455(a).

Disqualification is appropriate under this provision “only when the

charge is supported by a factual basis, and when the facts asserted

provide what an objective, knowledgeable member of the public would

find to be a reasonable basis for doubting the judge’s

impartiality.” In re Boston’s Children First, 244 F.3d 164, 167

(1 Cir. 2001) (footnote and internal quotation marks omitted). st

“While doubts ordinarily ought to be resolved in favor of

recusal,... the challenged judge enjoys a margin of discretion.”

In re United States, 158 F.3d at 30. 
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The government, in opposing petitioner’s § 455(a)

argument, thinks it enough that § 455(b) is not implicated and that

there is no controlling authority on point. Yet even if the §

455(b) claims were properly dismissed (a matter we do not

ultimately resolve), subsection (a) can require recusal “in some

circumstances where subsection (b) does not.” Liteky v. United

States, 510 U.S. 540, 553 n.2 (1994). Nor can petitioner’s

concerns in this regard be deemed frivolous. It is not entirely

fanciful, for example, to suppose that an informed observer might

infer that, by representing Laracy, Brill was vouching for his

character or credibility. Nonetheless, we agree with the

government that this is not the sort of case or circumstance for

which mandamus relief is appropriate.

Conclusion

We need go no further. The underlying criminal case has

now been pending for over 29 months. Chief Judge Fusté complied

with our earlier directive that the case be “promptly set for

trial.” In re United States, 441 F.3d at 68. Given these

circumstances, given the demanding mandamus requirements, and given

petitioner’s right “to raise [his] claim of error, if [he] so

chooses, in an end-of-case appeal,” In re Cargill, Inc., 66 F.3d at

1264 (footnote omitted), we find the concerns raised here to be

insufficient to justify further delay. It is for these reasons

that we have denied the petition.