No Mandamus to Require Recusal Prior to Trial for Potential Sentencing Conflict

In re: Moore: Moore was charged with Hobbs Act robbery and firearms offenses. Due to prior convictions that could subject him to a mandatory life sentence under the “three strikes” law, depending on which counts he was convicted of at trial. Even if he was convicted of all counts at trial, he could escape the mandatory life sentence if the district court made certain factual findings about his prior offenses at sentencing. As it happens, the judge assigned to Moore’s case was the AUSA who prosecuted him on one of those prior offenses. Moore moved the judge to recuse himself (the Government did not object) and the motion was denied.

Moore filed a petition for a writ of mandamus with the Fourth Circuit, seeking an order for the judge to recuse himself from Moore’s case immediately, before trial. The Fourth Circuit declined to grant the motion, holding that Moore could not meet the high standard necessary for obtaining mandamus relief. The court noted that any conflict the judge might have with Moore would only ripen at sentencing, where the district court could be required to make factual findings about a case the judge himself prosecuted. Noting a circuit split on whether a judge in such a case must recuse themselves before trial or only prior to sentencing (where the conflict has ripened), the court concluded Moore could not show a “clear and indisputable” right to relief. If Moore is convicted at trial and faces the three-strikes sentence and the judge then fails to recuse, Moore can appeal from the judgment entered after sentencing.