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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 13-12657 ________________________
D.C. Docket No. 2:12-cv-04139-LSC
In re: WALTER LEROY MOODY, JR.,
Petitioner.
__________________________
Appeal from the United States District Court for the Northern District of Alabama _________________________ (January 10, 2014)
Before WILSON, MARTIN, and JORDAN, Circuit Judges.
PER CURIAM:
Walter Leroy Moody, Jr., convicted under federal and state law for the 1989
murder of Eleventh Circuit Judge Robert S. Vance, has petitioned for a writ of
mandamus ordering the recusal of District Judge L. Scott Coogler, who was
randomly assigned to hear his federal petition for a writ of habeas corpus, see 28
U.S.C. § 2254, and directing the transfer of this matter to a district judge outside
the bounds of the Eleventh Circuit. After filing his mandamus petition, Case: 13-12657 Date Filed: 01/10/2014 Page: 2 of 17
Mr. Moody has separately moved for the recusal of all judges on this court,
requesting that we likewise transfer his mandamus petition to a different circuit.
At bottom, Mr. Moody argues that Judge Vance’s murder, which occurred
more than two decades ago, necessitates the recusal of all circuit judges on, and all
district and magistrate judges within, the Eleventh Circuit. According to
Mr. Moody, allowing any such judges to rule on his habeas corpus petition would
create an appearance of partiality within the meaning of 28 U.S.C. § 455(a), and
also violate § 455(b)(4) by allowing them to sit on a case in which they have an
“interest that could be substantially affected by the outcome.” Having analyzed the
unique facts and circumstances of this matter, and with the benefit of oral
argument, we deny Mr. Moody’s petition and motion.
I
In 1972, a federal jury in Georgia convicted Mr. Moody of possessing an
unregistered destructive device. See United States v. Moody, 474 F.2d 1346 (5th
Cir. 1973) (Moody I) (table decision affirming conviction). After his attempts to
set aside the conviction proved unsuccessful, see, e.g., Moody v. United States, 874
F.2d 1575 (11th Cir. 1989) (Moody II) (affirming denial of coram nobis relief),
Mr. Moody mailed a tear-gas package bomb to the NAACP Regional Office in
Atlanta. That bomb exploded on August 21, 1989, “engulf[ing] NAACP
employees in clouds of choking gas.” United States v. Moody, 977 F.2d 1425, 2 Case: 13-12657 Date Filed: 01/10/2014 Page: 3 of 17
1428 (11th Cir. 1992) (Moody V). Mr. Moody also sent out a “Declaration of
War” to the Eleventh Circuit and to television stations around the country,
accusing the Circuit of deliberate misconduct and rank bias. Id.
As detailed in Moody V, 977 F.2d at 1428-29, Mr. Moody then built four
powerful package bombs. He mailed the first of these bombs to Judge Vance in
Alabama, with the return address of another Eleventh Circuit judge. Judge Vance
was killed on December 16, 1989, when he opened the package containing the
bomb, and his wife was seriously injured by the blast. The second of the bombs
killed civil rights attorney Robert Robinson in Savannah, Georgia, two days later.
A security officer intercepted the third bomb at the Eleventh Circuit headquarters
in Atlanta, and the fourth bomb was received but not opened by employees of the
Jacksonville NAACP office because they had heard about the other bombings.
In 1990, the government obtained an indictment against Mr. Moody,
charging him with numerous federal offenses related to the murders of Judge
Vance and Mr. Robinson. All judges then sitting on the Eleventh Circuit entered
an order recusing themselves from all cases “relating to the investigation of the
murder of [Judge] Vance” in which Mr. Moody was a party. See United States v.
Moody, 977 F.2d 1420, 1423 (11th Cir. 1992) (Moody IV).1
1 That recusal order is still in effect for all judges who were members of the Eleventh Circuit at that time (i.e., Circuit Judges Tjoflat, Fay, Hill, Anderson, Kravitch, Cox, and Edmondson). In addition, several other current members of the Eleventh Circuit (Chief Judge 3 Case: 13-12657 Date Filed: 01/10/2014 Page: 4 of 17
All district judges in the Northern District of Georgia also recused
themselves, and as a result Chief Justice Rehnquist designated Judge Edward
Devitt from the District of Minnesota to preside over Mr. Moody’s case. Judge
Devitt granted Mr. Moody’s motion for a change of venue, and moved the trial to
St. Paul. See United States v. Moody, 762 F. Supp. 1485 (N.D. Ga. 1991) (Moody
III). After a jury convicted Mr. Moody of 71 counts, Judge Devitt sentenced him
to seven life terms and 400 years, to be served concurrently with each other and
consecutively to a 15-year sentence imposed in the Middle District of Georgia on
separate perjury and obstruction charges related to Mr. Moody’s attempts to
overturn his 1972 conviction. On appeal, the Eleventh Circuit – with a panel
comprised of three judges from the Fourth Circuit – affirmed Mr. Moody’s
convictions and sentences in Moody V. 2
Carnes and Judges Hull, Marcus, and Pryor) have since voluntarily recused themselves from participation in any of Mr. Moody’s cases. At this time, therefore, the only judges in the Eleventh Circuit who have not recused themselves from Mr. Moody’s cases are the members of this panel. 2 After several judges in the Middle District of Georgia recused themselves, Chief Judge Tjoflat designated Judge Anthony Alaimo from the Southern District of Georgia to preside over Mr. Moody’s perjury/obstruction of justice case. Mr. Moody appealed his convictions in that case, but the Eleventh Circuit – with the same panel of Fourth Circuit judges who heard Moody V – affirmed in Moody IV. One of the arguments Mr. Moody raised on appeal in Moody IV was that Judge Alaimo should have recused himself “because of the appearance of bias arising from [Mr.] Moody’s (then alleged) involvement in the Vance and Robinson murders.” 977 F. 2d at 1423. The panel in Moody IV rejected the argument, finding no abuse of discretion in Judge Alaimo’s reasoning that “the purported basis for . . . bias was ‘simply too attenuated to raise even a reasonable appearance of impropriety.’” Id. 4 Case: 13-12657 Date Filed: 01/10/2014 Page: 5 of 17
The State of Alabama then charged Mr. Moody with the capital murder of
Judge Vance. A jury found Mr. Moody guilty, and the state trial court, following
the jury’s 11-1 recommendation, sentenced him to death. The Alabama Court of
Criminal Appeals affirmed, and the Alabama Supreme Court denied review. See
Moody v. State, 888 So. 2d 532 (Ala. Crim. App. 2003), writ denied, 888 So. 2d
605 (Ala. 2004) (Moody VI). When his attempt to obtain post-conviction relief in
the Alabama courts failed, see Moody v. State, 95 So. 3d 827 (Ala. Crim. App.
2011) (Moody VII), Mr. Moody filed a petition for a writ of habeas corpus in the
Northern District of Alabama. The petition was randomly assigned to Judge
Coogler, who denied Mr. Moody’s motion for recusal.
II
In relevant part, 28 U.S.C. § 455(a) provides that “[a]ny . . . judge . . . of the
United States shall disqualify himself in any proceeding in which his impartiality
might reasonably be questioned.” In keeping with the aim of “‘promot[ing]
confidence in the judiciary by avoiding even the appearance of impropriety
whenever possible,’” United States v. Patti, 337 F.3d 1317, 1321 (11th Cir. 2003)
(quoting Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 865 (1988)),
recusal under § 455(a) turns on “whether an objective, disinterested, lay observer
fully informed of the facts underlying the grounds on which recusal was sought
would entertain a significant doubt about the judge’s impartiality.” United States 5 Case: 13-12657 Date Filed: 01/10/2014 Page: 6 of 17
v. Scrushy, 721 F.3d 1288, 1303 (11th Cir. 2013) (citations and internal quotation
marks omitted).
Under § 455(b)(4), recusal is required whenever a judge has “any . . .
interest that could be substantially affected by the outcome of the proceeding.”
The phrase “any . . . interest that could substantially be affected” is not statutorily
defined, and “it is not easy to conclude what [it] means.” In re Virginia Electric &
Power Co., 539 F.2d 357, 367 (4th Cir. 1976). We have held, however, in a case
alleging improper transactions in a customer’s airline frequent flyer program, that
§ 455(b)(4) did not require recusal of Eleventh Circuit judges who happened to
belong to the same program. See Delta Airlines v. Sasser, 127 F.3d 1296, 1297
(11th Cir. 1997) (explaining in part that the litigation would not “jeopardize the
viability” of the frequent flyer program as a whole). Cf. Liljeberg, 486 U.S. at 867
(district judge violated § 455(b)(4) by failing to recuse after learning that he was a
member of the board of trustees of a university with an interest in the outcome of
the proceedings before him).
“[A]ny doubts must be resolved in favor of recusal.” Patti, 337 F.3d at 1321.
Nevertheless, “there is as much obligation for a judge not to recuse when there is
no occasion for him to do so as there is for him to do so when there is.” United
States v. Burger, 964 F.2d 1065, 1070 (10th Cir. 1992) (internal punctuation and
citation omitted). Indeed, “a judge, having been assigned to a case, should not
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recuse himself on unsupported, irrational, or highly tenuous speculation.” United
States v. Greenough, 782 F.2d 1556, 1558 (11th Cir. 1986).
III
We first address Mr. Moody’s motion for recusal of the members of this
panel. Mr. Moody argues that recusal of all Eleventh Circuit judges is required
because his crimes in 1989 targeted not only Judge Vance, but also the Eleventh
Circuit as an institution (as well as all of its then-constituent judges). Mr. Moody
notes that the judges of the Eleventh Circuit received threatening letters
contemporaneously with Judge Vance’s murder, that a bomb was delivered to the
Eleventh Circuit’s headquarters in Atlanta, that Judge Vance maintained close
relationships with a number of circuit colleagues, and that two current Eleventh
Circuit judges participated in his prosecution. Such facts, Mr. Moody maintains,
would lead a “objective, disinterested, lay observer” to harbor a “significant doubt”
about the Eleventh Circuit’s ability to decide this matter fairly and therefore
necessitate recusal under § 455(a). See Scrushy, 721 F.3d 1303 (internal quotation
A
Recusal decisions under “§ 455(a) are extremely fact driven and ‘must be
judged on their unique facts and circumstances more than by comparison to
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situations considered in prior jurisprudence.’” Nichols v. Alley, 71 F.3d 347, 351
(10th Cir. 1995) (quoting United States v. Jordan, 49 F.3d 152, 157 (5th Cir.
1995)). Given the peculiar scenario here, the facts that Mr. Moody relies on do not
warrant recusal under § 455(a). First, none of the three judges on this panel sat on
the Eleventh Circuit (or were members of the federal judiciary) at the time of
Judge Vance’s death or of the contemporaneous bomb threat to the Eleventh
Circuit’s headquarters. 3 Second, although Judges Wilson and Jordan served as law
clerks to Fifth Circuit and Eleventh Circuit judges respectively, they did so before
Judge Vance’s murder (Judge Wilson in 1980 and Judge Jordan in 1987-88).
Third, no judge on this panel enjoyed a close personal or professional relationship
with Judge Vance or with any member of his immediate family. Fourth, even
though two current Eleventh Circuit judges took part in Alabama’s prosecution of
Mr. Moody, those two judges have recused, so their participation is not an issue.
In short, the only connection between the members of this panel and Mr. Moody’s
current case is our current service on the Eleventh Circuit and Judge Vance’s
service on the same court at the time of his death in 1989. And that is not enough.
Mr. Moody relies heavily on the Seventh Circuit’s sua sponte self-recusal in
In re Nettles, 394 F.3d 1001 (7th Cir. 2005), but we think that case does not control
here. The petitioner in Nettles was arrested in 2004 after he allegedly sold
3 Judge Wilson began his service on the Eleventh Circuit in 1999. Judge Martin and Judge Jordan followed more than a decade later, in 2010 and 2012 respectively. 8 Case: 13-12657 Date Filed: 01/10/2014 Page: 9 of 17
explosives to an undercover FBI agent posing as a terrorist, with the aim of
destroying the Dirksen Courthouse in downtown Chicago, a building which houses
the District Court for the Northern District of Illinois and is the headquarters of the
Court of Appeals for the Seventh Circuit. Id. at 1002-03. Concluding that a
reasonable observer might believe that a district judge stationed in the Dirksen
Courthouse would want the petitioner to be convicted and serve a lengthy sentence,
the Seventh Circuit granted the petitioner mandamus relief and ordered the recusal
of all district judges in the Northern District of Illinois. Id. at 1003. Taking that
logic one step further, the Seventh Circuit sua sponte recused itself from hearing
any further appeals in the petitioner’s case, reasoning that “the appellate judges in
[the Dirksen] [C]ourthouse are as menaced by an Oklahoma City style attack as the
district judges.” Id.
The Ninth Circuit distinguished Nettles in Clemens v. U.S. District Court for
the Central District of California, 428 F.3d 1175, 1179-80 (9th Cir. 2005). In
Clemens, the defendant was charged with making threats (with intent to extort,
assault, murder, or inflict harm) against three district judges who had handled his
pro se cases in the Central District of California. He filed a mandamus petition
asking for the disqualification of all judges in the Central District from his criminal
case. The Ninth Circuit denied relief under § 455(a), explaining that “[w]here
other circuits have required recusal, the recused judge was an intended victim of
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the alleged crime. In Nettles, all the judges of the district could have fairly been
viewed as intended victims of the charged offense. There is no such allegation in
this case, either toward the assigned judge or the entire bench. Nor could a
reasonable person draw an inference of a threat against the entire bench.” Id. at
1179. The Ninth Circuit rejected the defendant’s argument that, given the type of
crime charged, no judge in the Central District could be properly assigned to his
criminal case: “Clemens argues that no judge of the district could preside
impartially over his trial, given the nature of the allegations. However, we have
previously rejected an attempt to disqualify a judge based on his relationship with
the victim.” Id. at 1180.
As we read it, Nettles stands for the proposition that, where a defendant is
charged with trying to blow up (or otherwise damage) a federal courthouse, judges
residing in that courthouse at the time of the alleged plot and judges belonging to
the court based in that courthouse must recuse from cases involving that defendant
because such judges were potential victims of the alleged attack. See also Nichols,
71 F.3d at 352 (granting mandamus relief and ordering recusal of district judge
whose courthouse and chambers were damaged by bomb allegedly set off by
defendants at nearby federal building). Here, consistent with the rationale of
Nettles, those judges sitting on the Eleventh Circuit at the time of Judge Vance’s
murder have recused themselves from hearing all cases relating to that murder in
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which Mr. Moody is a party. See Moody IV, 977 F.2d at 1423. So have all other
Eleventh Circuit judges, save for the members of this panel, as explained in
footnote 2.
The narrow question then, is whether, 24 years after Judge Vance’s murder,
recusal is required for current Eleventh Circuit judges who had no personal
connection or relationship with Judge Vance and who were not members of the
Circuit at the time. The answer, we think, is no. The only fact distinguishing this
panel from a randomly-assigned panel comprised of judges from another circuit is
that we happen to be assigned to the Eleventh Circuit, on which Judge Vance sat at
the time of his death in 1989. We conclude that under the unique facts of this case
such a tenuous connection would not, standing alone, raise significant doubt in the
mind of an informed, objective, and disinterested lay observer about our ability to
fairly decide cases involving Mr. Moody. See Clemens, 428 F.3d at 1179-80.
To the extent that our hypothetical lay observer might have a possible doubt
about the ability of any federal judge to fairly adjudicate the habeas corpus petition
of a defendant convicted of murdering another federal judge, such a doubt would
be based on the notion that federal judges might tend to view an attack on one as
an attack on all. But such a doubt would extend to all federal judges – regardless
of their circuit or district – and would, if disqualifying, prevent Mr. Moody from
having a federal forum in which to obtain review of his state capital conviction and
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sentence. Cf. Bolin v. Story, 225 F.3d 1234, 1238 (11th Cir. 2000) (“Under [the]
‘rule of necessity,’ a judge is not disqualified due to a personal interest if there is
no other judge available to hear the case.”).
B
Mr. Moody also contends that all judges currently sitting on the Eleventh
Circuit are part of the “victim class” for the crimes of which he was convicted, and
must recuse themselves because they have an “interest that could be substantially
affected by the outcome of the proceeding” within the meaning of § 455(b)(4). We
disagree.
As we have noted, there is little precedent on the meaning of the phrase “any
. . . interest that could be substantially affected by the outcome.” One
commentator, however, has suggested that the word “substantial” in that phrase
“should probably be read to depend on the interaction of two variables: the
remoteness of the interest and its extent or degree.” Note, Disqualification of
Judges and Justices in the Federal Courts, 86 HARV. L. REV. 736, 753 (1973)
(cited with approval in In re Virginia Electric & Power Co., 539 F.2d at 368).
That formulation makes sense to us, and we therefore use it in our analysis. See
13D CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & EDWARD H. COOPER,
FEDERAL PRACTICE AND PROCEDURE § 3547 (3d ed. 2008) (“[T]he courts appear to
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weigh two factors in deciding whether to recuse under [§ 455(b)(4)]: the
remoteness of the interest and its extent or degree.”).
As previously discussed, none of the members of this panel had a close
professional or personal relationship with Judge Vance or his family, sat on the
Eleventh Circuit in 1989, or were members of the federal judiciary at that time.
Our interest, if there is one, is remote and weak, such that it is not disqualifying,
and will not, in any event, be substantially affected by the outcome of
Mr. Moody’s habeas corpus proceeding. We cannot conclude that we became
prospective members of the so-called “victim class” upon our confirmation to the
Eleventh Circuit 10, 21, and 23 years after Judge Vance’s death, and we are not
aware of any authority suggesting that the murder of a judge requires the recusal of
all future judges on the victim’s court for time immemorial.
IV
Having determined that we need not recuse ourselves from this matter, we
now turn to Mr. Moody’s mandamus petition. We conclude that Mr. Moody is not
entitled to the recusal of Judge Coogler.
We ordinarily review a district judge’s decision not to recuse for abuse of
discretion. See Scrushy, 721 F.3d at 1303. Because Mr. Moody has petitioned for
mandamus, however, our review of Judge Coogler’s failure to recuse is even more
stringent. The Supreme Court has instructed that “the remedy of mandamus is a 13 Case: 13-12657 Date Filed: 01/10/2014 Page: 14 of 17
drastic one, to be invoked only in extraordinary situations” and “only exceptional
circumstances, amounting to a judicial usurpation of power, will justify the
invocation of this extraordinary remedy.” Allied Chem. Corp. v. Daiflon, Inc., 449
U.S. 33, 34-35 (1980). See also In re Lopez-Lukis, 113 F.3d 1187, 1187-88 (11th
Cir. 1997) (“[M]andamus is an extraordinary remedy, which is available only to
correct a clear abuse of discretion or usurpation of judicial power. The petitioners
have the burden of showing that their right to issuance of the writ [requiring
recusal] is ‘clear and indisputable.’”) (citations omitted). Indeed, “a party is not
entitled to mandamus merely because it shows evidence that, on appeal, would
warrant reversal of the district court.” In re BellSouth Corp., 334 F.3d 941, 953
(11th Cir. 2003).
Mr. Moody raises many of the same arguments with respect to Judge
Coogler’s recusal as he does with respect to our own recusal. He asserts that
because Judge Coogler serves on a district court in Alabama, within the Eleventh
Circuit, recusal is mandated under § 455(a), as an informed objective,
disinterested, lay observer would entertain a significant doubt about his
impartiality. He also contends that, because of his status as a district judge within
this Circuit, Judge Coogler has an interest that could be substantially affected by
the outcome under § 455(b)(4).
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As we see it, Judge Coogler properly exercised his discretion in declining to
recuse himself for substantially the same reasons discussed earlier. Judge Coogler,
like the members of this panel, occupied no federal judicial position at the time of
Judge Vance’s death, has had no close connection to Judge Vance or his relatives,
and took no part in the underlying investigation and prosecution of Mr. Moody.
Judge Coogler, furthermore, was never personally subjected to the threats that were
sent to Eleventh Circuit judges sitting at the time Judge Vance was murdered. See
United States v. Yousef, 327 F.3d 56, 169 (2d Cir. 2003) (recusal of district judge
was not warranted in light of threat that “did not specify a particular judge”);
Moody IV, 977 F.2d at 1423 (holding that district judge in Georgia did not have to
recuse from Mr. Moody’s perjury/obstruction of justice case because of
Mr. Moody’s alleged involvement in the murder of Judge Vance and Mr.
Robinson). And to the extent that Judge Coogler could be characterized as
belonging to a prospective “victim class” of district judges in this case, the same
characterization would apply to all federal district judges nationwide.4
Mr. Moody also argues that we should order Judge Coogler to recuse
because he teaches as an adjunct professor at the University of Alabama School of
4 At oral argument, Mr. Moody’s counsel was unable to articulate a concrete, workable standard for determining which district judges would be able to hear Mr. Moody’s case if we were to grant his mandamus petition. For example, one would think that a district judge from another circuit whose family members were killed by a disgruntled pro se litigant might not be the appropriate person to rule on Mr. Moody’s habeas corpus petition, but at oral argument Mr. Moody’s counsel was equivocal about such a scenario. 15 Case: 13-12657 Date Filed: 01/10/2014 Page: 16 of 17
Law, which in turn maintains a professorship named in Judge Vance’s honor, and
because of some perceived connection between Judge Coogler and the Robert S.
Vance Federal Building and United States Courthouse in Birmingham, Alabama.
But the mere fact that Judge Coogler teaches at a university that has chosen to
memorialize Judge Vance does not mandate recusal. See Wu v. Thomas, 996 F.2d
271, 275 (11th Cir. 1993) (holding that “no reasonable observer would assume that
[the district judge] had extra-judicial knowledge of this case or otherwise question
[his] impartiality” because the district judge merely served as adjunct professor
(without a salary) at, and donated to, the defendant university). Nor does the
presence of a federal building and courthouse named for Judge Vance in
Birmingham entitle Mr. Moody to a writ of mandamus. As Judge Coogler
explained, he is not stationed in Birmingham, and does not hold court there.
V
We recognize the systemic and case-specific importance of recusal in our
judicial system and the grave consequences that may result from an erroneous
failure to recuse. But given the unique circumstances of this case, including the
many years that have passed since Judge Vance’s death, we conclude that we are
not required to recuse as a panel under 28 U.S.C. §§ 455(a) & 455(b)(4), and that
Mr. Moody is not entitled to a writ mandamus requiring the recusal of Judge
Coogler. We take Judge Coogler at his word that he will be able to rule on
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Mr. Moody’s habeas corpus petition fairly and impartially, and have no doubt that
he will take appropriate action should he decide otherwise in the future.
MOTION FOR RECUSAL OF PANEL DENIED; MANDAMUS PETITION DENIED.