Full opinion text
MEMORANDUM AND ORDER WOLF, District Judge. I. Summary Federal law requires that a presiding judge not have a personal bias or prejudice concerning any party. 28 U.S.C. § 455(b)(1). It also requires that a judge decide matters based solely on the evidence presented in judicial proceedings. This means, among other things, that a judge may not preside if he: (a) “participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy,” § 455(b)(4); (b) has “personal knowledge of disputed evidentiary facts concerning the proceeding,” § 455(b)(1); or (c) knows he or she is “likely to be a material witness in the proceeding,” § 455(b)(5)(iv). If any of these circumstances exist, the judge must disqualify himself even if the parties agree that it would be desirable for him to continue to preside. United States v. Chantal, 902 F.2d 1018, 1023 (1st Cir.1990). In addition, a judge must “disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” § 455(a). “ ‘Disqualification [under § 455(a) ] is appropriate only if the facts provide what an objective, knowledgeable member of the public would find to be a reasonable basis for doubting the judge’s impartiality.’ ” In re Allied-Signal, Inc., 891 F.2d 967, 970 (1st Cir.1989), cert. denied sub nom. ACW Airwall, Inc. v. United States District Court for District of Puerto Rico, 495 U.S. 957, 110 S.Ct. 2561, 109 L.Ed.2d 744 (1990) (quoting In re United States, 666 F.2d 690, 695 (1st Cir.1981)) (emphasis in original). [Section] 455(a) is triggered by an attitude or state of mind so resistant to fair and dispassionate inquiry as to cause a party, the public, or a reviewing court to have a reasonable grounds to question the neutral and objective character of the judge’s rulings or findings ... a high threshold is required to satisfy this standard. Thus, under § 455(a), a judge should be disqualified only if it appears that he or she harbors an aversion, hostility, or disposition of a kind that a fair-minded person could not set aside when judging the dispute. Liteky v. United States, 510 U.S. 540, 557-58, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994) (Kennedy, J., concurring). “The task of applying the objective standard to the facts grants a judge a degree of discretion in disqualification decisions under section 455(a) that is not present in section 455(b) decisions.” S. Hoekema, Questioning the Impartiality of Judges: Disqualifying Federal District Court Judges Under 28 U.S.C. § 155(a), 60 Temp. L.Q. 697, 727 (1987) (footnotes omitted). Accordingly, the Court of Appeals for the First Circuit allows the district judge “a range of discretion” in deciding whether a reasonable, objective person would question his impartiality and reviews that decision only for abuse of discretion. In re Allied-Signal, 891 F.2d at 970. There are competing considerations which at times must be weighed by a presiding judge in deciding whether to re-cuse himself under § 455(a). As the Court of Appeals for the First Circuit has stated: [WJhen considering disqualification, the district court is not to use the standard of “Caesar’s wife,” the standard of mere suspicion (citation omitted). That is 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. * * * * * * [Therefore,] the judge must ... tread cautiously, recognizing, on the one hand, the great importance to the judicial institution of avoiding any appearance of partiality, while simultaneously remaining aware of the potential injustices that may arise out of unwarranted disqualification. In re Allied-Signal, 891 F.2d at 970 (emphasis in original). If the only basis for recusal is an appearance of partiality under § 455(a), the parties may, after “full disclosure on the record of the basis for disqualification,” waive this ground for recusal. § 455(e). The government and the defendants provided such waivers with regard to the information I described in detail on December 4, 1997, including my work in the United States Attorney’s Office from 1981 to 1985, and my resulting association with a number of the witnesses in the pending hearings on defendants’ motions to dismiss and suppress. As described below, the evolution of events in this ease caused me on January 21, 1998 to raise the question whether I should now recuse myself under § 455(a) or (b) because of a December 21, 1984 memorandum concerning a conversation I had with then Assistant Attorney General Stephen Trott (Exhibit A hereto), which I discovered the night before. I have since found an October 15, 1984 memorandum relating to the prosecution of Vincent Piro (Exhibit B hereto), which is also relevant to this inquiry. Beginning on January 21, 1998,1 have at several conferences consulted the parties concerning the questions raised relating to my possible recusal. That discussion has been helpful, but not decisive. The defendants have stated that they believe that my disqualification is not necessary or appropriate under either § 455(a) or (b), and that they will again waive any possible ground for recusal under § 455(a). The government has not expressed a definitive view on the pending recusal issues. It has described a number of possible concerns. The government has also encouraged me to consider the issues in the first instance and to require the government to declare whether it requests my recusal only if it is not clear to me whether my disqualification is appropriate. This memorandum is written in response to that request. In summary, the recusal questions, particularly the issue of whether I should be disqualified under § 455(a), must be analyzed in the context of the long history of this case, and with an understanding of the issues to be litigated and of my prior employment by the Department of Justice. Section II of this memorandum describes what I perceive to be the relevant facts. Section III describes what I understand, without the benefit of briefing by the parties, to be the applicable legal standards and my present, still preliminary, views on how they apply in this case. As described in detail, I do not believe that I have any personal bias or prejudice against any party. Thus, my disqualification is not required under that prong of § 455(b)(1). See § III. A. In contrast to my visceral reaction, expressed to the parties on January 21, 1998, I am not now inclined to believe that the December 21, 1984 memorandum requires my recusal under § 455(b). See § III. B. More specifically, that memorandum indicates that, when he spoke to me, the Assistant Attorney General had already decided to authorize the application for the 1984-85 electronic surveillance now subject to defendants’ motion to suppress. He did not solicit or receive advice on its merits from me. Rather, he was calling to complain about the Assistant United States Attorney who prepared the application and the quality of his draftsmanship. Thus, it does not now appear to me that I have personal knowledge of a disputed evidentiary fact concerning the 1984-85 electronic surveillance. Nor has any party stated that I am likely to be called to testify with regard to my conversation with the Assistant Attorney General or the memorandum concerning it. Similarly, at this time it appears to me that the October 15, 1984 memorandum regarding the Piro prosecution does not indicate that I have personal knowledge of a disputed evidentiary fact in this case. See § III. C. I now realize that I dealt with Federal Bureau of Investigation (“FBI”) Special Agent John Morris when I was the Deputy United States Attorney, from 1981 to 1985, and discussed with colleagues the suspicion that he had said something to former FBI Special Agent Dennis Condon that may have compromised the Piro investigation. I believe, however, that this information does not impair my ability to assess, if necessary, the credibility of any testimony Messrs. Morris or Condon may provide in this case. Moreover, I do not recall any suspicion of defendant James “Whitey” Bulger concerning the Piro matter. Nor, according to the FBI’s interview report, does John Pappalardo, who was the lead prosecutor in the Piro case. Finally, with regard to § 455(b), the FBI 209 report of statements made by defendant Stephen Flemmi on August 8, 1983, (Exhibit C hereto) does not cause me to be biased or prejudiced against Mr. Flemmi. Nor, as I now perceive it, does the 209 give me personal knowledge of any disputed evidentiary fact. See § III. D. In addition, at this time, it appears to me that with regard to § 455(a), the waivers provided by the government and defendants in December 1997 were valid and binding with regard to the matters then disclosed, and that the appropriate focus now is on the recent disclosures. See § III. E. In any event, even if a broader view is .taken, it now seems to me that it may be debatable whether a reasonable person, fully informed of all of the relevant facts, would question my impartiality, but this question is at least within the range of my discretion to decide. I am preliminarily inclined to find that such a reasonable person would not question my impartiality. If this is a permissible and appropriate conclusion, I am inclined to continue to preside in order to facilitate the progress of this case, rather than to recuse myself as I often do when a legitimate issue of possible disqualification is raised at the outset of a case. I am, however, interested in the parties’ views on these § 455(a) issues, among others. If the parties agree that this is a close question on which I have legitimate discretion, I wish to have their advice as to how I should exercise that discretion. I also want to know whether if the only issue is a possible appearance of partiality— rather than any § 455(b) actual impediment to my ability to continue to preside fairly — they again wish to waive this ground for my disqualification. Accordingly, it will be necessary for the parties to state and explain their positions on the relevant issues before I decide whether to continue to preside in this case. I am now ordering the parties to address the questions concerning my possible disqualification in the context of the following facts and legal considerations, as well as any others they deem appropriate. After their submissions are received, a hearing will, if necessary, be held concerning my possible recusal. II. Factual History As the parties have known since the inception of this case, and as I have discussed on the other occasions on which I have raised questions concerning my possible recusal, prior to becoming a judge I served in the Department of Justice. In 1974, I was a Special Assistant to the Deputy Attorney General. From 1975 to 1977 I was a Special Assistant to the Attorney General. From November 1981 to April 1985 I was the Deputy United States Attorney for the District of Massachusetts and the Chief of the Special Investigations Unit in that office, which was responsible for the prosecution of political corruption cases (the “SIU” or “Public Corruption Unit”). While I was Deputy United States Attorney, William F. Weld was the United States Attorney. Jeremiah O’Sullivan was the Chief of the Organized Crime Strike Force (the “Strike Force”), as well as a recent predecessor of mine as the head of the Political Corruption Unit. In that period, the Strike Force, and its attorneys, were not part of the United States Attorney’s Office. The Strike Force and the United States Attorney’s Office did, however, interact at times. After beginning work together in November 1981, Mr. Weld and I received joint briefings on many matters, including some Organized Crime matters. In addition, initially we often worked on matters together. As the FBI reports Mr. Weld stated when interviewed on July 29, 1997, that as Chief of the Strike Force, Mr. O’Sullivan generally dealt directly with Mr. Weld as United States Attorney, rather than reporting to him through me as Deputy United States Attorney. In addition, over time, my joint activities with the United States Attorney diminished as I increasingly focused on supervising the Public Corruption Unit and personally conducting grand jury investigations and prosecutions. As I explained on December 4, 1997, I did discuss certain public corruption matters with Mr. O’Sullivan, who had recently headed the SIU. December 4, 1997 Tr. at 45-6. In addition, I played a role in developing an investigation of possible corruption in the Boston Police Department which was transferred from the SIU to the Strike Force. Assistant United States Attorney Robert Cordy and Strike Force Attorney Diane Kottmyer were primarily responsible for any necessary coordination concerning that investigation. The summaries of Mr. O’Sullivan’s logs and calendar entries furnished to me and defense counsel by the government on February 5, 1998 indicate that he and I also discussed that investigation on several occasions. Such discussions would have been consistent with our relative roles and I assume that they occurred. I also assume for present purposes that the other occasional telephone conversations and meetings reflected on Mr. O’Sullivan’s records occurred. The Organized Crime Drug Enforcement Task Force (“OCDETF”) was established during my tenure in the United States Attorney’s Office. It was located in the District of Massachusetts, but its jurisdiction covered several states. Its Coordinator did not, as a practical matter, report to the United States Attorney through me as Deputy United States Attorney. I did not participate in reviewing any applications for electronic surveillance prepared by the OCDETF to the best of my recollection. In August 1984, I was informed.that I had tentatively been selected to be nominated by the President for appointment to the United States District Court. That process consumed a great deal of my time and attention. I was nominated in October 1984, but not confirmed prior to the Presidential election in November. The issue of my renomination and, particularly, my potential confirmation required my attention after the 1984 election. My selection to become a member of the District Court also limited the appropriate range of my activities on behalf of the United States Attorney’s Office. Thus, after my selection, my activities on behalf of the United States Attorney’s Office were largely devoted to supervising the work of the Public Corruption Unit and writing an appellate brief. My nomination was confirmed in April 1985, and I left the United States Attorney’s Office that month. My working files remained in the United States Attorney’s Office. I did, however, retain a personal, monthly chronological file of letters and memoranda that I wrote. When I became a judge, it was my practice not to preside in any case that was indicted or under investigation while I was in the United States Attorney’s Office. Those cases were generally identified by the United States Attorney’s Office when indictments were returned and they were not assigned to me. Over time, the cases requiring my recusal based generally on my service as Deputy United States Attorney diminished in number and then disappeared. There continued, however, to be cases which raised questions concerning my possible disqualification based on particular facts, which I addressed on their individual merits. When this case was indicted, the government did not identify it as one that was being investigated while I was Deputy United States Attorney. The nature and dimensions of the charges in this case were dramatically different when it was originally indicted than they are today. The original indictment was returned on October 25, 1994, against one defendant, Robert DeLuca. In five pages it charged DeLuca with conspiring to violate the Travel Act, 18 U.S.C. § 1952, and with a substantive violation of that statute based upon his alleged attendance at a Mafia induction ceremony held at 34 Guild Street, Medford, Massachusetts on October 29, 1989. The timing of the indictment was evidently influenced by the fact that the five year statute of limitations on these offenses was about to expire. See 18 U.S.C. § 3282. The DeLuca case was randomly assigned pursuant to the District Court’s established procedures. It was drawn to me. On January 10, 1995, the government obtained a 91-page superceding indictment. This First Superceding Indictment added six defendants — Bulger, Flemmi, George Kaufman, Francis P. Salemme, Francis P. Salemme, Jr., and James Mar-torano; John Martorano was not then named as a defendant. The First Su-perceding Indictment also radically altered the charges in the case. The new charges included, among others, an alleged RICO conspiracy lasting more than 30 years and a lengthy conspiracy to extort bookmakers and drug dealers. DeLuca was named in only a fraction of the alleged racketeering acts and substantive charges. The new charges against DeLuca and his codefend-ants could have been brought as a separate indictment, which would have been randomly assigned to a member of the District Court. However, as those charges were brought in a superceding indictment in an existing case, they were, in accordance with the District Court’s standard and well-known practice, assigned to me. Prior to January 1995, I had presided in several cases against alleged members of the Patriarca Family of La Cosa Nostra (“LCN”) in which the government obtained convictions and, in almost all instances, the imposition of the sentences it requested. Most notably, as a result of random assignments, I presided in two cases involving the prosecutions of LCN members Raymond J. Patriarca, Joseph Russo, Vincent Ferrara, Robert Carrozza, Dennis Lepore, Carmen Tortora, Biagio DiGiaeomo, Antonio Spagnolo, Joseph Gio-acehini and an LCN Associate, Pasquale Barone. All except Patriarca and Barone received the sentences to which the government and the defendant had agreed in Fed.R.Crim.P. 11(e)(1)(C) binding plea agreements. See, e.g., United States v. Carrozza, 807 F.Supp. 156, 157-58 (D.Mass.1992), aff'd in part, vacated in part, 4 F.3d 70 (1st Cir.1993), cert. denied, 511 U.S. 1069, 114 S.Ct. 1644, 128 L.Ed.2d 365 (1994). After a trial, Barone was sentenced to life in prison. Patriarca, who had not been finally sentenced as of January 1995, ultimately received a ten-year sentence, which although representing an upward departure under the Sentencing Guidelines was significantly less than the life sentence the government was seeking. See United States v. Patriarca, 912 F.Supp. 596 (D.Mass.1995). In addition, in the prosecution of Patr-iarca and his codefendants, I had issued a then unprecedented decision finding the “roving bug” provisions of 18 U.S.C. § 2518(11)(a) to be constitutional, and denied a motion to suppress the tape-recorded evidence of the Mafia induction ceremony that was intercepted at 34 Guild Street, on October 29, 1989. See United States v. Ferrara, 771 F.Supp. 1266, 1319 (D.Mass.1991). My factual findings and analysis were adopted by the District Court in Connecticut in United States v. Bianco, and were affirmed by the Court of Appeals for the Second Circuit in that case. 998 F.2d 1112, 1119-28 (2d Cir.1993), cert. denied, 511 U.S. 1069, 114 S.Ct. 1644, 128 L.Ed.2d 364 (1994). The government planned to offer the tape recording of the Mafia induction ceremony as evidence in this case. In January 1995, the government had good reason to believe that it could predict how I would rule on the foreseeable motion to suppress that evidence in this case. On August 1, 1995, the government obtained a Second Superceding Indictment that added John Martorano as a defendant. John Martorano had been a fugitive from RICO charges brought in 1979 against Howard Winter, himself, and others relating to horse race-fixing scheme which was, in effect, alleged to be a racketeering act of a RICO enterprise known as the Winter Hill Gang. After he was apprehended, John Martorano’s case was assigned to District Judge Reginald Lindsay. On July 24, 1995, over the government’s objection, Judge Lindsay dismissed the case against John Martorano, without prejudice, because of a violation of the Speedy Trial Act, 18 U.S.C. § 3161. Rather than attempting to reinstitute the dismissed charges, the government brought new charges against Martorano in this case, including allegations that he participated in the race-fixing scheme on behalf of a different RICO enterprise, the amalgamation of the Winter Hill Gang and the Patriarca Family charged here. Thus, I became responsible for presiding in the case against John Martorano. On May 21, 1996, the government obtained what it called a Third Superceding Indictment, with two parts, one of which included only the charges against John Martorano. The government characterized this as a “bifurcation” of the Second Superceding Indictment. Neither counsel nor the court was familiar with any precedent for such a severance of charges by a grand jury within a single indictment. I, therefore, deemed the charges against John Martorano to constitute a separate indictment, and had it given a separate case number. I did not, however, have that indictment randomly reassigned. With the consent of the parties, in the interest of efficiency, I consolidated for pretrial purposes the case against John Martorano and the case against his former codefendants. After I indicated that motions to dismiss the Third Superceding Indictment for failure to allege properly certain elements of a RICO offense might be meritorious, on July 2, 1996, the government obtained a Fourth Superceding Indictment, which was intended to cure the alleged defects in pleading. I subsequently conducted lengthy hearings on some of defendants’ many remaining motions to dismiss and to suppress. As of March 1997, I had denied the defendants’ motion to dismiss the Fourth Superceding Indictment and many of the alleged Racketeering Acts. See United States v. Salemme, 1997 WL 37530, *1-6 (D.Mass. January 13, 1997). I also orally announced my decision denying the motion to suppress certain electronic surveillance conducted by the Massachusetts State Police although I found that the government had violated state law by obtaining in the wrong county the court order authorizing that electronic surveillance, January 29, 1997 Tr. at 1-7, 26, and had not had the resulting tape recordings sealed in the time required by federal law. February 18, 1997 Tr. at 3-52. In addition, on several occasions I informed the parties of my inclination to exclude the testimony of Hugh .Shields and other evidence concerning the 1967 murders of Edward, Walter, and William Bennett, and Richard Grasso, which were charged for the first time in the Third Superceding Indictment as racketeering acts of Flemmi and Salemme, because the government had misused the grand jury to obtain evidence to strengthen the RICO charges previously alleged. This issue may have significant practical consequences for this case. If Flemmi and/or Salemme are convicted but not held accountable at sentencing for any of the four murders, it appears that the Guideline ranges for their sentences may be reduced from life imprisonment to as little as ten to thirteen years for Flemmi and eight to ten years for Salemme. As I have told the parties, however, I have not issued a decision on this matter, which I have intended to be the subject of a written memorandum and order. In March 1997, the defendants moved for evidentiary hearings on their motions to suppress certain electronic surveillance and for disclosure of whether certain individuals, including Bulger and Mercurio, had been FBI informants at the time that they were treated as targets or individuals expected to be intercepted in the applications for court orders authorizing the electronic surveillance at issue. In the course of the hearings on these motions, I realized that Flemmi had been an FBI informant and also named, with Bulger and Kaufman, as a target of electronic surveillance conducted by the Drug Enforcement Administration (“DEA”) and the FBI from December 1984 to March 1985. See United States v. Salemme, 978 F.Supp. 343, 350-51 & n. 3 (D.Mass.1997). After Flemmi confirmed this fact, which had been known by the prosecutors since 1995, it was disclosed to his codefendants. Id. The government strenuously opposed the motions for evidentiary hearings and the request that it be required to confirm or deny whether Bulger, Mercurio and others had been FBI informants. Id. at 345. Because the motions involved issues relating to the confidentiality of informants and it was uncertain how they would be decided, at the request of the parties, the submissions concerning them were sealed and several hearings closed to the public were conducted. Id. On May 22, 1997, I issued a Memorandum and Order deciding that: [T]he defendants are entitled to eviden-tiary hearings on their motions to suppress electronic surveillance: (a) jointly conducted in 1984 and 1985 by the Drug Enforcement Administration (“DEA”) and Federal Bureau of Investigation (“FBI”), which targeted Bulger, Flem-mi, and George Kaufman, among others; (b) conducted on October 29, 1989, by the FBI, at 34 Guild Street, Medford, Massachusetts; and (c) conducted on December 11, 1990, by the FBI, at the Hilton Hotel in East Boston, Massachusetts. In connection with these hearings, the defendants are entitled to discovery concerning whether Angelo “Sonny” Mercurio, Robert Donati, Bul-ger, Flemmi, Anthony St. Laurant, Kenneth Guarino, and perhaps others were at relevant times secretly providing information to the government. Id. at 345^16. Because I was told that the government might dismiss the case rather than confirm or deny the existence of a cooperating individual, or ask that it be held in civil contempt so that it could appeal the Order, the May 22, 1997 decision was temporarily sealed. Id. at 346. The government subsequently confirmed that Bulger, who was and remains a fugitive, was an FBI informant during the period he is charged in this case with committing serious crimes; conceded that there was a proper basis for the court to have ordered evidentiary hearings on the defendants’ motions to suppress electronic surveillance; at the direction of the Acting Deputy Attorney General declined to obey the Order that it confirm or deny whether anyone but Bulger was an informant; and asked for reconsideration of that Order. See United States v. Salemme, 978 F.Supp. 364, 365 (D.Mass. June 6, 1997). The May 22, 1997 Memorandum and Order was unsealed and public proceedings on these issues commenced. Id. at 366. In brief summary, the motion to reconsider was denied. Id. The Acting Deputy Attorney General initially declined to obey the order to disclose the status of anyone other than Bulger. Id. The defendants moved to have him held in civil contempt and incarcerated. Id. at 365. The Acting Deputy Attorney General asked that I instead enter an order of conditional exclusion of the electronic surveillance evidence so the government could attempt to appeal. See United States v. Salemme, 978 F.Supp. 375, 376 (D.Mass. June 13, 1997). I found that the government had not satisfied the requirements for a conditional order of exclusion. Id. at 376-77. In an effort to cut the Gordian Knot, however, I ordered Mercurio to appear in court to be questioned concerning whether he was an FBI informant when he attended the Mafia induction ceremony on October 29, 1989. Id. at 379. I also required the other individuals at issue, except Donati who was dead, to appear to respond to similar questions. Id. On June 18,1997, Mercurio testified that he was cooperating with the government in connection with the October 29, 1989 LCN induction ceremony. United States v. Salemme, 978 F.Supp. 379, 381 (D.Mass. June 19, 1997). In response to a renewed Order, id. at 385, the Acting Deputy Attorney General revised his refusal to address Donati’s status and represented that he had not been an informant. United States v. Salemme, 978 F.Supp. 390, 391 (D.Mass. June 27, 1997). I decided to defer addressing the motion to suppress the December 11, 1991 electronic surveillance conducted at the Hilton Hotel and thus took no action on defendants’ motion to hold the Acting Deputy Attorney General in civil contempt to the extent that it related to that electronic surveillance. Id. On June 25, 1997, Flemmi filed an affidavit intended to respond to certain representations made by the government concerning his status as an informant. Among other things, Flemmi asserted that FBI Supervisory Special Agent Morris had told him and Bulger that they could be involved in any criminal activities short of murder and would be protected by the FBI. He also claimed that as part of his continuing relationship with the FBI he was specifically informed of the date his indictment in this case was to be returned so he could flee if he chose to do so. Flemmi had previously asserted that in 1991 Mercurio had been given prior notice of his indictment so he could flee. See April 27, 1997 Flemmi Affidavit, ¶ 4. On June 26, 1997, I ordered that the government produce certain documents and information which was relevant to the forthcoming evidentiary hearings on the motions to suppress and to Flemmi’s charges. United States v. Salemme, 978 F.Supp. 386 (D.Mass. June 26, 1997). The required discovery included, among other things: virtually all of Flemmi’s FBI informant file, id. at 387; the documents relied upon by FBI Special Agent John Michael Callahan, Chief Division Counsel for the Boston Division of the FBI, in concluding that “Flemmi’s control agents were obviously aware over the years from what Flemmi reported that he was engaged in illegal gambling and LCN policymaking” and that such agents “ ‘at least tacitly authorized [his] participation,’ ” id. (citations omitted); comparable records regarding Bulger, id.; and documents and information tending to show that Department of Justice and/or FBI regulations had not been complied with concerning Flemmi, Bulger, or Mercurio, id. at 387-88. The next day the government repeatedly objected to the scope of the discovery order. See, e.g., June 27, 1997 Tr. at 18, 20-21, 24, 28, 36. Generally, the objections were overruled. The evolution of the case prompted me to inform the parties of possible recusal issues that I discerned. More specifically, in an April 16,1997 discussion of the 1984-85 electronic surveillance targeting Bulger and Flemmi, I pointed out that: I was then the Deputy United States Attorney; the applicant, Assistant United States Attorney Gary Crossen, would have been under me on the organization chart; I did not then have a role in reviewing applications for electronic surveillance; and that I was not “personally involved” in that electronic surveillance. April 16, 1997 Tr. at 19-20. I said that I had understood that no one thought that my service as Deputy United States Attorney was a reason for me to be disqualified, but stated that if someone felt the foregoing had implications for my participation, the issue should not be overlooked; rather we should deal with it. Id. No one pursued this subject. Similarly, on April 16, 1997, the defendants indicated that they might ask me to reconsider the accuracy of an affidavit submitted by former FBI Special Agent James Ring in the 1991 litigation concerning the intercepted Mafia induction ceremony. Id. at 75. I then informed the parties that while in the United States Attorney’s Office I worked with Mr. Ring in a public corruption case and in 1995 had appointed him as the monitor of an order I had issued in a civil case — a capacity in which he was, and is, still employed. Id. at 76. John Mitchell, Esq., counsel for Salemme, responded that these facts “raisefd] no problem for the defense.” Id. The government said nothing. Id. Nevertheless, on June 17, 1997, I raised again with the parties my prior association with Mr. Ring, Mr. Crossen, and several other individuals involved in this case. June 17, 1997 Tr. at 10-23. I asked them to consider the implications of those associations for my possible recusal. Most significantly for present purposes, I described again the nature of my activities in the United States Attorney’s Office in 1984, and stated that I was “quite certain that I did not review Mr. Crossen’s application for electronic surveillance.” Id. at 14-15. Assistant United States Attorney Fred Wyshak reminded me that the wiretaps at issue commenced in December 1984. Id. at 21. I reiterated that “I was not reviewing matters” at that time, and expressed my appreciation to Mr. Wyshak for bringing that date to my attention. Id. After making these disclosures, I told the parties to consider the matter overnight rather than state their positions regarding my possible recusal at that time. Id. at 21-22. On June 18, 1997, I asked the parties whether, on reflection, “anybody had any questions, concerns, or objections about my participation ... in the case.” June 18, 1997 Tr. at 5. No one asked any questions. Id. Defense counsel stated that their clients had no objection to my participation. Id. The government said the same. Id. On June 27, 1997, I again raised the issue of my possible recusal with the parties because of a document brought to my attention on June 25, 1997. In preparing to produce Flemmi’s FBI informant file to him in discovery, the government found an FBI 209 report of a conversation with Flemmi on August 8, 1983. In essence, the 209 states that Flemmi said that I was leaking information concerning an investigation of Gennaro Angiulo and other members of the Patriarca Family to an unknown Jewish male, who was married to the sister of Bruce Swerling, and who told everything to someone named Howie Rubin, who told Angiulo. The document also states that Flemmi said that he trusted Mr. O’Sullivan of the Strike Force. Upon receiving the report, I told the prosecutors that they had done the right thing in bringing it to my attention promptly. June 25, 1997 Tr. at 5. I stated that the allegations were untrue. Id. at 4. I asked the government to give the document to the defendants immediately so that everyone could consider it, ask me any questions, and express their views of its implications for my possible recusal. Id. at 4-5. I also stated that ultimately this matter should be discussed in a proceeding open to the public. Id. at 4. Issues relating to the report of Flemmi’s statements on August 8, 1988 were discussed in the late morning of June 27, 1997, and pursued after lunch. I reiterated my desire to have the report and its implications for my recusal discussed publicly. June 27, 1997 Tr. at 57-58, 63. The defendants and Mr. Wyshak, who was designated to speak for the government, urged me to conduct the discussion in a closed proceeding. Id. at 95. Assistant United States Attorney James Herbert expressed some concern about proceeding in a closed session, but deferred to Mr. Wys-hak. Id. at 99-100. I decided to conduct the colloquy in the lobby, reserving the right to summarize what occurred publicly, or to release the transcript. Id. at 100-01. The government said that although it did not believe § 455(b)(1) was applicable, conceivably someone could claim that I had personal knowledge of a disputed eviden-tiary fact, particularly the credibility of Flemmi or FBI Special Agent John Connolly, the “handling agent” for Flemmi who wrote the report. Id. at 57, 62-63, 66-67. Defense counsel suggested that the government’s comments were intended to prompt my recusal after I had made a series of rulings adverse to it. Id. at 60. The government responded that it was not trying to engineer a recusal issue, but only seeking to assure that the defendants would not have a basis for attacking any conviction by claiming that I should have been disqualified. Id. at 60, 62. I offered the parties an opportunity to ask me any questions. Id. at 103. None were raised. Id. I expressed my belief that I had no personal knowledge of any disputed evidentiary fact. Id. at 103-04. I also stated that I had no personal bias or prejudice concerning Flemmi or anyone else. Id. at 104. Flemmi and his counsel stated that they were not concerned that I would be biased against him. Id. at 108, 110-11. All of the defendants, in essence, agreed, and also stated that they did not believe a reasonable person would question my impartiality. Id. at 108-11. In any event, the defendants each waived any objection to my participation in the case on the latter ground. Id. at 110-11. On behalf of the government, Mr. Wys-hak stated that I had demonstrated that I was impartial, and the government did not believe a reasonable person would question my impartiality, based on the report. Id. at 109. He also expressed the view that I had adequately demonstrated concern for the defendants’ rights. Id. Mr. Herbert also stated that the government then saw no reason for my recusal, although it might wish to study the law further. Id. at 102. He did not indicate that the government intended to investigate my conduct while serving as Deputy United States Attorney. Id. at 102-03. I decided to wait until after a planned break of a month in the proceedings to decide whether to unseal the transcript of the colloquy I had just conducted. Id. at 113-14. I did this to avoid making a possible error in haste regarding unsealing, id., and to protect the government from the possible public inference that by bringing the report to my attention, it was seeking to prompt the disqualification of a judge who had recently made rulings with which it deeply disagreed, id. at 101. Thus, I said I would decide the question of unsealing at some point in the future. Id. at 114. Everyone agreed that this was appropriate. Id. On June 27, 1997, I scheduled the evi-dentiary hearings on the motions to suppress to begin on August 11,1997. In July 1997, the Attorney General established a task fore comprised of prosecutors and many FBI agents to investigate the issues generated by the revelations that Flemmi, Bulger, and Mercurio had been FBI informants. In August 1997, the parties agreed that I should read the Executive Summary of the results of that investigation, in part to determine whether it had produced documents and information which should be furnished to the defendants. The Executive Summary and related documents that I read indicated that, among other things, the FBI had investigated factual matters that might require or prompt my recusal. For example, the FBI reported that Mr. Weld stated that I was not likely to have been involved in any discussion relating to the 1984-85 electronic surveillance targeting Bulger and Flem-mi. Consistent with this, Mr. Crossen reportedly told the FBI that he did not recall discussing that matter with me. In addition, Mr. Weld reportedly told the FBI that Mr. O’Sullivan reported directly to him on Strike Force matters rather than through me. The interview report indicates that Mr. Weld also said that he had no recollection of discussing the Angiulo prosecution memorandum with me, although I would have had access to it. The FBI also interviewed the woman who was referenced in Flemmi’s August 8, 1983 complaint about me. She said that the “unknown Jewish male” Flemmi was describing was her partner Stephen Ricci, who was not Jewish. She did not, according to the report of her interview, list me as among Ricci’s friends. The report does not state that she was asked about me, although Flemmi’s allegations concerning me were the evident reason for the interview. The Executive Summary, however, informed the Attorney General that her task force had found that it was “apparent that these FBI informants [Flemmi and Bulger] had their own network of sources in law enforcement.” The list of “possible law enforcement leaks” included the following: 15. Then AUSA (now U.S. District Judge) Mark Wolf and a female who works for the USAO. On August 8, 1993, a Cl advised that leaks were coming from Howie Rubin’s girlfriend, who worked for the USAO and AUSA Mark Wolf. The source advised that Wolf is very close to an unknown Jewish male and this unknown Jewish male was identified as Stephen Ricci. Ricci died in August of 1993. This entry does not identify Flemmi as the “Cl” or “source.” Although the prosecutors in this case were consulted by the task force on various matters, and participated in some of the interviews, the Executive Summary does not disclose or describe the June 25 and 27, 1997 colloquies concerning Flemmi’s statements. On September 17, 1997, in an ex parte session with the government that was convened for other purposes, I mentioned this entry in the Executive Summary and stated that if the government had revised its view and now felt that Flemmi’s allegations merited my recusal, that issue should be dealt with before we resumed lengthy evidentiary hearings. September 17, 1997 Tr. at 12-13. Mr. Wyshak assured me that I was not under investigation. Id. at 15. Rather, I was told that there was no change in the government’s view as to whether there was an issue concerning my continued participation in this case based on the Flemmi 209. Id. at 18-19. In any event, when proceedings resumed in August 1997, the question whether the transcript of the June 27, 1997 colloquy should be unsealed had been eclipsed by more urgent matters. Despite earnest efforts, the government had not yet located or reviewed all of the documents and information required to be produced by the June 26, 1997 Order. There were disputes between the parties concerning what the government was required to produce. In addition, there was some information and certain documents that the government asked me to review in camera to determine whether production was necessary. There were also questions whether the Department of Justice task force had developed documents and information to which the defendants were entitled. Thus, at the request of all parties, the commencement of the evidentiary hearings concerning the motions to suppress was postponed. In August 1997, the government also requested that the evidentiary hearings on the motions to suppress not be conducted until the defendants filed a notice, pursuant to Fed.R.Crim.P. 12.3(a)(1), of any intent that they had to assert a public authority defense, and motions to dismiss the Fourth Superceding Indictment based on claims of immunity and other grounds. I granted the government’s motion. See August 11, 1997 Order at ¶ 2. On September 3, 1997, the defendants filed under seal their motion to dismiss, a 63-page memorandum, and a supporting affidavit of Anthony Cardinale, Esq., who was then counsel for Salemme and DeLu-ca. The grounds for the motion to dismiss included the contentions that: the government had engaged in systematic, outrageous misconduct in connection with the investigation of this case and thus violated defendants’ rights to due process; dismissal was required as an exercise of the court’s supervisory powers; there had been gross abuse by the government in failing to inform the grand jury of Flemmi and Bulger’s status and activities as informants; that immunized testimony had been improperly presented to the grand jury; and illegally obtained electronic surveillance evidence had been presented to the grand jury. See Memorandum of Law in Support of Defendants’ Motion to Dismiss All Pending Indictments. Mr. Cardinale’s affidavit charged that Special Agent Connolly had attempted to foment violence by telling him in 1989 that Frank Salemme was planning to kill his then client Vincent Ferrara. In addition, Flemmi filed a notice that as part of his defense he would assert that he was authorized by the FBI to engage in the acts now charged as crimes. The defendants submissions were, despite the government’s objection, unsealed on September 10, 1997. United States v. Salemme, 985 F.Supp. 193, 193-95 (D.Mass. 1997). On October 6, 1997, the defendants filed, under seal, an 85-page Factual Submission in Support of Defendants’ Motion to Dismiss. This Factual Submission referenced and analyzed information defendants had received in discovery. On October 22, 1997, the government filed, under seal, a 99-page Opposition to Defendants’ Motion to Dismiss All Pending Indictments, and attachments. The memorandum thoroughly addressed the law relating to virtually all of defendants’ claims except Flemmi’s contention that he had been provided immunity for acts with which he is now charged. The theme of the government’s submission was, in essence, that the defendants were not entitled to a pretrial evidentiary hearing on their motion to dismiss and that their claims would at trial be proven to be un-meritorious. At a hearing on October 29, 1997, the merits of the motion to dismiss were argued preliminarily. Most of the discussion focused on defendants’ claim that the case should be dismissed because of outrageous government misconduct. I expressed the view that outrageous government misconduct might not be a legally viable basis for pursuing dismissal. October 29, 1997 Tr. at 45, 58. I also said, however, that defendants’ supervisory powers claim might be legally viable if certain facts were proven. Id. at 45-46. In addition, I pointed out that First Circuit jurisprudence and other cases indicated that a claim of immunity was to be decided by the court, rather than a jury. Id. at 47-48 (citing United States v. McLaughlin, 957 F.2d 12, 16 (1st Cir.1992)). I said, however, that it was not clear to me whether Mr. Flemmi was claiming he was promised immunity or merely asserting authorization, an issue to be decided by a jury. Id. at 47. If there was an immunity claim, I noted that it would also relate to the motion to dismiss for grand jury abuse. Id. at 48. Finally, I indicated an inclination to start the eviden-tiary hearings with the motion to suppress the 1984-85 electronic surveillance, which also relates to the motion to dismiss for grand jury abuse. Id. Also on October 29, 1997, following a trial, I found Mr. Cardinale not guilty of criminal contempt charges I had instituted against him after documents produced to defendants in discovery pursuant to the June 26, 1997 Protective Order limiting their dissemination were discovered in the Norfolk County Jail cell of reputed Patr-iarca Family member Frederick Simone. Id. at 14. These proceedings occupied much of October 1997. It was then necessary to litigate whether DeLuca, Flemmi, and Salemme were entitled to appointment of counsel under the Criminal Justice Act, 18 U.S.C. § 3006A, because they claimed that they were each financially unable to retain counsel privately any longer. See United States v. Salemme, 985 F.Supp. 197, 199-200 (D.Mass. 1997). The government raised questions concerning the propriety of this request. After several hearings, on November 14, 1997, I allowed the defendants’ requests and appointed their private counsel to continue to represent them under the Criminal Justice Act. See November 14, 1997 Order. Also on November 14, 1997, I disclosed to defendants, under seal, certain documents and information I had reviewed in camera, and certain information from the Executive Summary of the Department of Justice investigation. I then expected the evidentiary hearings would commence in early December 1997. The defendants, however, requested a continuance. On December 4, 1997, I held a hearing to address matters concerning the forthcoming evidentiary hearings. These matters included questions I wished to raise concerning my possible recusal which were presented by the witness list for the first phase of the hearings. I had worked with a number of the 32 witnesses identified by the defendants. Once again, I had and expressed two concerns. First and foremost, I did not wish to continue to preside if it was impermissible or inappropriate for me to do so. See December 4, 1997 Tr. at 58. Second, recognizing that any party might become unhappy with my future decisions, I wanted to minimize the risk that a disappointed litigant would have a reasonable basis for seeking to disrupt or reopen proceedings based on my participation in them. Id. at 58-59. Thus, with regard to the possible issues concerning recusal that I discerned, I told the parties my tentative view of the applicable law, id. at 24-34; described what I perceived to be the relevant facts; offered the parties repeated opportunities to ask me questions; required them to reflect on what I had said; and with regard to defendants, required them to consult their counsel before expressing any view on the propriety of my continued participation. Id. at 34-77. I emphasized any views I expressed were “tentative,” and I wanted the question of my possible recusal to be “resolved in a thoughtful, considered way.” Id. at 17. I also recognized, however, that legal proceedings are dynamic, something unforeseen could emerge, and therefore while I wanted to achieve as much finality as possible on the recusal question, perhaps true finality was not possible. Id. at 22. Among other things, I said that, “I recalled] no involvement in any matters pertaining to this case, including the 1984-85 electronic surveillance.” Id. at 20. I also said that: “I don’t recall working on any case related matters with Mr. Crossen. And I had no involvement with Mr. Cros-sen regarding any matter pertaining to this case.” Id. at 40. I noted that the FBI reports of the July 1997 interviews of Messrs. Weld and Crossen indicated that their recollections were consistent with mine with regard to the 1984-85 electronic surveillance. Id. at 20. In response to an invitation by me, Mr. Wyshak raised the concern that possibly an argument could be made that as Deputy United States Attorney I suspected Bul-ger and/or Flemmi were informants and had a duty to disclose my suspicions concerning them to the officials actively participating in the 1984-85 electronic surveillance. Id. at 21. I stated that while I may have heard of Bulger and Flemmi when I was a prosecutor, they were not individuals I had encountered in the work I was doing, and had no reason to wonder whether they were informants. Id. at 22. Mr. Wyshak reiterated that he was not suggesting that I be disqualified, but only was concerned about a possible post-conviction attack by defendants on this basis. Id. at 23. I went on to describe in detail my professional and personal relationship with Mr. Weld, including the dinner I had in his home in March 1997. Id. at 34-37. I also discussed my associations with former Assistant Attorney General Trott, id. at 38-39, and his colleague Frederick Hess, who reviewed the application for the 1984-85 electronic surveillance on behalf of Mr. Trott, id. at 39-40. After discussing other witnesses, I reiterated and amplified my prior disclosures concerning Mr. Ring. Id. at 45 — 46. I then reviewed my association with Mr. O’Sullivan. Id. at 46 — 47. In essence, I described that as the Chief of the Strike Force, Mr. O’Sullivan reported directly to Mr. Weld, rather than through me and that he and I had early in my tenure discussed public corruption matters. Id. The summary of Mr. O’Sullivan’s calendar entries produced by the government on February 5, 1997, has an entry indicating that he spoke to Mr. Weld and me about the “Angiulo T-3, etc.” on November 12, 1981. I understand this to be a reference to the FBI’s electronic surveillance of An-giulo and others. While I have no specific memory of this discussion, Mr. Weld and I had then just begun work at the United States Attorney’s Office and were receiving joint briefings from many sources, so I assume for present purposes that it occurred. After discussing my association with other individuals on the witness list, including former FBI Special Agents in Charge in Boston Lawrence Sarhartt and James Greenleaf, I addressed former FBI Special Agents Morris, Connolly, and Con-don. With regard to Mr. Morris, I said that I may have met him, but did not remember having done so. Id. at 44-45. I also said that we did not work together because the Organized Crime Unit he headed worked with the Strike Force, which was separate from the United States Attorney’s Office. Id. at 45. With regard to Mr. Connolly, I said I may have met him, but had no recollection of having done so. Id. at 49. I also said we did not work on anything together. Id. Finally, for present purposes, I discussed Mr. Condon. I said that I thought I met Mr. Condon in some context when I was Deputy United States Attorney, but I had no memory of where we encountered each other. Id. at 52. I also described Mr. Condon’s June 9, 1997 brief interview with me as part of a background investígation he was employed to conduct for the Department of State concerning Mr. Weld’s then proposed appointment to be Ambassador to Mexico. Id. at 52-53. As I noted, as of June 9, 1997, I had not seen any document that suggested that Mr. Condon had any connection with this case. Id. at 52. It was not discussed at all. Id. at 52-53. Following my disclosures I encouraged the parties to think about the issues concerning my recusal at least overnight, and longer if they wished, and to do any research they felt was appropriate. Id. at 54-55, 58-60. After a break, however, the defendants insisted that they were ready to respond. They and their counsel stated that they did not believe that my recusal was required by any provision of § 455(a) or (b). Id. at 64-67. More specifically, they said they did not believe that I was biased or prejudiced concerning any party, or that I had knowledge of any disputed evidentiary fact. Id. at 65. In addition, they stated that with regard to § 455(a), they did not believe that a reasonable person would question my impartiality. Id. Nevertheless, the defendants waived any right to object to my participation on this basis in any post-conviction proceeding or otherwise. Id. at 68-76. The prosecutors requested and received an opportunity to consult their colleagues. Later on December 4, 1997, they submitted the following statement: The Court has instructed the United States to state the government’s position regarding the applicability of Title 28, United States Code, §§ 455(a), 455(b)(1) and 455(b)(3) in the case at bar. The government’s position, based upon information provided by the Court to the parties on this date and on prior occasions, is that mandatory disqualification is not applicable in this case. Particularly, the fact that the Court was Deputy United States Attorney and Chief of the Public Corruption Unit during the period that certain electronic surveillance in this case was planned and implemented does not, in and of itself, require disqualification as a matter of law pursuant to §§ 455(b)(1) or 455(b)(3). Based upon the information currently known to the government, § 455(b)(3) is not implicated. Further, the government does not believe that the Court has a personal bias or prejudice concerning any party in this case. Nor is the government aware that the Court has personal knowledge of disputed evidentiary facts concerning the proceeding. See § 455(b)(1). The government does believe, however, that based upon the nature of the past relationships between the Court and several prospective witnesses in this case, the Court’s impartiality might reasonably be questioned. See § 455(a). However, pursuant to § 455(e), the government waives any motion to disqualify the Court based upon the grounds set forth in § 455(a). Accordingly, on December 5, 1997, I issued an Order stating that I found that “it was permissible for me to continue to preside in this case,” and “in view of my intense involvement in this complex matter for more than two years, and the value to the parties and the administration of justice of having this case proceed on an informed and efficient basis, I would do so.” December 5, 1997 Order at 3-4. I also wrote, however, that: As stated in court, the parties, particularly the defendants, are encouraged to continue to consider the issues relating to my possible disqualification and to inform the court when hearings resume on December 11, 1997, if they have any further questions or, upon reflection, wish to object to my continued participation in this case for any reason. Id. at 3 n. 6. On December 11, 1997, in response to my inquiry, the government and the defendants stated that they neither had any further questions to ask me nor any objection to my continued participation in the case. December 11, 1997 Tr. at 4-5. They also said that they did not wish to withdraw their waivers of any claim that I should be disqualified under § 455(a). Id. at 5. On December 11, 1997, Flemmi clarified and confirmed that he was as part of his motion to dismiss contending that he had been promised immunity by the FBI. Id. at 6-7. I pointed out that the government had correctly contended that defenses of authorization, lack of criminal intent, and entrapment by estoppel presented issues for a jury to decide. Id. at 9. I reiterated my understanding, based on a series of cases I cited, that an issue of immunity, however, was to be decided by the court and could be addressed pretrial in the context of a motion to suppress or dismiss. Id. at 9-10. As I anticipated that the testimony of former Special Agents Morris and Connolly would be important to the issue of im-munityj and that they might assert a Fifth Amendment right not to testify, I had invited their counsel to attend the December 11, 1997 hearing. Robert Popeo, Esq., counsel for Mr. Connolly, indicated that his client did not have access to the information and documents that the parties had and, therefore, there were foreseeable issues concerning whether Mr. Connolly would testify unless compelled to do so. Id. at 34-55. William Kettlewell, Esq., concurred with regard to Mr. Morris, his client. Id. at 48. The government indicated that it did not then know whether it would seek an immunity and compulsion order, pursuant to 18 U.S.C. § 6002 et seq., for Mr. Connolly and/or Mr. Morris. Id. at 55. That would depend on the scope of the hearings because the government continued to contend that their testimony was not relevant. Id. at 55-56. The defendants, however, asserted that the testimony of Mr. Connolly and Mr. Morris was central to the issues to be litigated. Id. at 56-57. Thus, they expected to request that I compel the government to immunize them, pursuant to United States v. Angiulo, 897 F.2d 1169 (1st Cir.), cert. denied, 498 U.S. 845, 111 S.Ct. 130, 112 L.Ed.2d 98 (1990), and United States v. Castro, 129 F.3d 226 (1st Cir.1997). Accordingly, I encouraged the parties to speak with counsel for Messrs. Connolly and Morris about the foreseeable issues. Id. at 59-60. Other issues relating to the forthcoming hearings were then discussed, including the scope of the government’s duty to disclose statements of witnesses. I provided the parties an opportunity to supplement their submissions on the immunity and discovery issues, among others. In response, the government filed a lengthy memorandum on December 15, 1997. Further hearings were conducted on December 18 and 23, 1997. On December 18, 1997, the government argued strongly that there was not a proper basis for an eviden-tiary hearing on Flemmi’s claim of immunity, December 18, 1997 Tr. at 31-32, 41; that Flemmi should be required to be the first witness at any evidentiary hearing, id. at 39-40, 55; and the next witnesses should be Mr. Crossen and DEA Special Agent David Boer