382 F.2d 856 (6th Cir. 1967), 16991, United States v. Hoffa

Docket Nº:16991-16994.
Citation:382 F.2d 856
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. James R. HOFFA, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Thomas Ewing PARKS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Larry CAMPBELL, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Ewing KING, Defendant-Appellant.
Case Date:September 14, 1967
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 856

382 F.2d 856 (6th Cir. 1967)

UNITED STATES of America, Plaintiff-Appellee,

v.

James R. HOFFA, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Thomas Ewing PARKS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Larry CAMPBELL, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Ewing KING, Defendant-Appellant.

Nos. 16991-16994.

United States Court of Appeals, Sixth Circuit.

Sept. 14, 1967

Page 857

B. J. Mellman, St. Louis, Mo., for appellants, James E. Haggerty, St., Detroit, Mich., (for James R. Hoffa), Jacques M. Schiffer, Long Island, N.Y., (for Thomas Ewing Parks), Cecil D. Branstetter, Nashville, Tenn. (for Larry Campbell), Harold E. Brown, Chattanooga, Tenn. (for Ewing King), on brief, Daniel B. Maher, Washington, D.C., Morris A. Shenker, St. Louis, Mr., of counsel.

Nathan Lewin, Office of the Solicitor General Washington, D.C., for appellee, Fred M. Vinson, Jr., Asst. Atty. Gen., Robert S. Erdahl, Charles N. Shaffer, Jr., Theodore George Gilinsky, Attys.,

Page 858

Dept. of Justice, Criminal Division, Washington, D.C., John H. Reddy, U.S. Atty., Chattanooga, Tenn., on brief.

Before WEICK, Chief Judge, O'SULLIVAN, Circuit Judge, and CECIL, Senior Circuit Judge.

WEICK, Chief Judge.

These appeals are from an order of the District Court denying Appellants' third motion for a new trial. Like the second one, it was also based on alleged newly discovered evidence. The alleged newly discovered evidence does not relate to the guilt or innocence of Appellants. The motion was not filed until nearly eighteen months after their conviction and one month after was had affirmed. United States v. Hoffa, 349 F.2d 20 (6th Cir. 1965), aff'd 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966), rehearing denied February 27, 1967, 386 U.S. 951, 87 S.Ct. 970, 17 L.Ed.2d 880 (1967). 1

The third motion alleged misconduct on the part of jurors and United States Marshals who were attending them during their sequestration. In this respect the third motion was similar to the first one, although the allegations of misconduct were embellished to a much greater extent.

After filing the third motion in the District Court, Appellant Hoffa sought to disqualify from hearing the motion the Judge who had presided over his trial which had lasted for nearly two months. He filed an affidavit under Title 28 U.S.C. Section 144, alleging personal bias and prejudice. The Judge ruled that the affidavit was untimely and legally insufficient and ordered it stricken. Hoffa then filed a motion to disqualify him under Title 28 U.S.C. Section 455, which the Judge considered and denied. The other Appellants adopted Hoffa's third motion for a new trial and his affidavit of bias and prejudice and motion to disqualify. We will consider first the affidavit of bias and prejudice and the motion to disqualify.

Affidavit of Personal Bias and Prejudice Under Section 144

The only factual support for this affidavit was furnished by the affidavit of a prostitute named Marie Monday, who stated that on two different occasions, 'Some time late in January, 1964, or the early part of February, 1964, during the course of the trial of the Hoffa case,' she met the presiding Judge at the hotel where the jury was sequestered, and that on the first occasion the Judge told her that he was in charge of the 'Hoffa' trial and that 'Hoffa was going to get what was coming to him this time and that he was going to see to it that he did.' On the second occasion the Judge is alleged to have told her, 'Don't you worry, he (Hoffa) is going to be convicted' because he (the Judge) was 'in charge of it.'

The Judge in a written opinion held that the affidavit was insufficient on its face; that it was not timely filed; that it did not comply with the statutory requirement of a certificate of counsel; and that it was not authorized by the statute since it was the second such affidavit filed in the case, the statute permitting the filing of only one affidavit.

After passing upon the sufficiency of the affidavit of bias and prejudice, the Judge then categorically denied that he had ever made the statements set forth in the prostitute's affidavit, to anyone, including her. He denied that he had ever met her or had a conversation with her, and denied that he was in the hotel where the jury was sequestered, or even in the vicinity of it, at any time during the trial, and stated that he had purposely stayed away from the hotel. He denied that he held any bias or prejudice against any of the Appellants. He pointed

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out that he had directed a verdict of acquittal for defendant Hoffa on one of the counts of the indictment. The jury had also acquitted defendants Hoffa, Dorfman and Tweel on Count IV of the indictment. The Judge stated that the prostitute's affidavit 'is a complete and total fabrication and fraud' and that he would not 'be deterred by such patent perjury from doing his duty * * *. Each defendant will continue to receive every right accorded to him under the law.'

There can be no question but that the Court was required to pass upon the sufficiency of the affidavit of bias and prejudice. Berger v. United States, 255 U.S. 22, 32, 41 S.Ct. 230, 65 L.Ed. 481 (1920); Refior v. Lansing Drop Forge Co., 124 F.2d 440, 444 (6th Cir. 1942), cert. denied, 316 U.S. 671, 62 S.Ct. 1047, 86 L.Ed. 1746 (1942); Shea v. United States, 251 F. 433 (6th Cir. 1918), cert. denied 248 U.S. 581, 39 S.Ct. 132, 63 L.Ed. 431 (1918). The statute does not permit the Court to inquire into the truth of the facts alleged in the affidavit.

The Judge ought not to be precluded from answering the attack upon him which contained innuendoes concerning his conversations with a prostitute and made a mockery of the administration of justice in a United States Court.

Understandably, he did not want the scandalous allegations concerning him to remain unchallenged in the record. See Cole v. Loew's Inc., 76 F.Supp. 872, 877-878 (S.D.Cal.1948). His answer did not exhibit bias or prejudice. In any event, his answer did not affect the validity of his ruling that the affidavit was legally insufficient.

The statute would seem to require affidavits of personal bias and prejudice to 'be based upon facts antedating the trial, not those occurring during the trial,' Berger v. United States, supra, 255 U.S. page 34, 41 S.Ct. page 233; Ex parte American Steel Barrel Co., 230 U.S. 35, 33 S.Ct. 1007, 57 L.Ed. 1379 (1913). Bias and prejudice occurring during the trial can be corrected on review by the Court of Appeals, Knapp v. Kinsey, 232 F.2d 458 (6th Cir. 1956), cert. denied 352 U.S. 892, 77 S.Ct. 131, 1 L.Ed.2d 86 (1956). See also Taylor v. United States, 179 F.2d 640 (9th Cir. 1950) (affidavit not filed until defendant moved to vacate sentence, untimely); Ex parte Glasgow, 195 F. 780 (N.D.Ga.1912), aff'd sub nom. Glasgow v. Moyer, 225 U.S. 420, 32 S.Ct. 753, 56 L.Ed. 1147 (affidavit not filed until after motion in arrest of judgment and new trial, untimely). Nor was the statute

'* * * intended to paralyze the action of a judge who heard the case, or a question in it, by the interposition of a motion to disqualify him between a hearing and a determination of the matter heard. * * *' Ex parte American Steel Barrel Co., supra, 230 U.S. at page 44, 33 S.Ct. at page 1010.

But Appellants have additional hurdles to overcome. The statute required the filing of 'a timely and sufficient affidavit,' Refior v. Lansing Drop Forge Co., supra. It further provided that the affidavit 'shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time.'

In his affidavit for disqualification, defendant Hoffa stated that he first learned of these matters on August 23, 1965, and could not have learned of them any sooner through the exercise of due diligence. This does not explain why it took nearly eighteen months to learn about events alleged to have taken place during the trial. The affidavit does not state what diligence, if any, was exercised to discover this information nor why it could not have been discovered sooner.

But it appeared from the first motion for a new trial filed on March 10, 1964, and the affidavits filed in support thereof, of, that Appellants alleged misconduct of Marshals and jurors; that the Marshals furnished large quantities of intoxicating liquors to the jurors and entertained

Page 860

them; and that Ezell Ervons, one of the porters at the hotel, arranged for a girl to visit a Marshal. A bellboy named Culpepper signed an affidavit that he saw a lot of drinking going on on the tenth floor where the jurors were staying and that he saw some of the jurors standing around with drinks in their hands. Another bellboy named Ball mentioned drinking on the floor of the hotel where the jurors were staying.

In support of the third motion for a new trial, Appellants procured another affidavit from this same bellboy, Culpepper, which stated that during the trial on several occasions he called a girl named Marie and a girl named Bobbie, to come to the hotel, and that after each visit the girl would give him a tip. Marie is the prostitute Monday's given name.

Monday, in another affidavit which was filed in support of the third motion for a new trial, stated that she went to the hotel on numerous occasions during the trial and that on some of these occasions she saw Cupepper, Ball and Ervons.

Since Appellants knew of the bellboys and the porter in March, 1964, and had obtained affidavits from some of them relating to misconduct of Marshals and jurors, it would seem to us that the more scandalous material now alleged was then available and could have been obtained from the same bellboys and porter. Under these circumstances, we do not believe that the failure of...

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