United States v. Civella

• Decision Date: 27 January 1975
• Docket Number: Crim. A. No. 23562-3.
• Citation: 416 F. Supp. 676
• Court: U.S. District Court — Western District of Missouri
• Parties: UNITED STATES of America, Plaintiff, v. Nicholas CIVELLA et al., Defendants.

416 F. Supp. 676

UNITED STATES of America, Plaintiff, v. Nicholas CIVELLA et al., Defendants.

Crim. A. No. 23562-3.

United States District Court, W. D. Missouri, W. D.

January 27, 1975.

Gary Cornwell, Kansas City, Mo., for plaintiff.

James P. Quinn, Kansas City, Mo., for defendants.

ORDER DENYING MOTION OF DEFENDANT NICHOLAS CIVELLA FOR DISQUALIFICATION OF JUDGE

WILLIAM H. BECKER, Chief Judge.

In the late afternoon of January 24, 1975, defendant Nicholas Civella, through his counsel, filed a motion and affidavit pursuant to Section 144, Title 28, United States Code, and Section 455, Title 28, United States Code, requesting therein that the undersigned District Judge "voluntarily" disqualify himself in this cause, or in the alternative, requiring disqualification for personal bias and prejudice. The completion of the evidentiary hearing on the validity of a wiretap is scheduled for completion on January 28, 1975, and final pretrial hearings and jury trial are set to begin on February 6, 1975.

The affidavit states three grounds.

The first ground of the affidavit is as follows:

"1. That the Honorable William H. Becker, during the latter part of December, 1974 or the first part of 1975, in Kansas City, Missouri, at the Federal Courthouse at 8th and Grand Avenue, but not in any courtroom, in a discussion of the case pending against this defendant, stated that gambling has been slowed down for quite a few years, but that it was returning again; that the only way to control it was to eliminate this defendant and that he (Judge Becker) was going to see that this defendant was removed from the scene for a long tim. (sic) One of the statements was in substance, `The Godfather (referring to this defendant) escapted (sic) at Apalachin, but I'll see to it that he won't make it out of my courtroom.'

"As a result of the Mario Puzio book and motion picture entitled, `The Godfather', the term "godfather" universally means a Don or head of the so-called Mafia or so-called organized criminal group).

"That during the last several years the Honorable William H. Becker has on a number of occasions referred to this defendant as the `Kansas City Godfather'.

"Affiant further states that the above information was received by him on January 20th and 21st, 1975, from persons employed by the Federal Government; that these informants have, in the past, furnished Affiant with information which was correct and accurate and Affiant has every reason to believe that said informants are responsible and trustworthy.

"Affiant further states that he could not have obtained or learned any of this information before the time stated; that a report was made to his attorney as soon as he could reach his attorney. The Defendant-Affiant states that he has not filed this affidavit of personal prejudice for the reason that knowledge of bias and prejudice did not come to him until the dates stated, and he avers that said absence of knowledge is good cause for his failure to file such affidavit prior to this date.

The second ground of the affidavit is as follows:

"2. That in the case of United States vs. Ross Joseph Strada, Number 22676-3, before this Court, wherein that defendant entered a plea of guilty to one count of an Indictment, this Court (Judge Becker) on November 6, 1968, sentenced that defendant to imprisonment for two years, but suspended all but six months of such sentence and granted probation on special conditions. The special conditions of probation imposed by the Court were that defendant, `shall not associate with or be employed by Anthony Civella, Corkey Civella, Nick Civella, August Fasoni, or any individual reputed to be engaged in illicit or or (sic) criminal activities.'

"In summarizing the pre-sentence report, this Court stated:

"`At this point the defendant took employment at antonio's (sic) Pizzaria at 4321 Main Street, which is reported to be a congregating point for the criminal element in Kansas City. The owners of the business are Paul Salvia, Anthony — known as Tony — Civella, and Nick Civella. In the opinion of the law enforcing authorities these people are a part of the underworld criminal element and are reputed to be associated with the Mafia or the Cosa Nostra. After undertaking this employment, the defendant was a constant companion, according to the report, of Anthony Civella and a prominent figure in carrying out some of the very illicit activities including gambling.'

"That on January 22, 1974 in a hearing on the Motion to Revoke Probation of the defendant Ross Joseph Strada in the case heretofore referred to, this Court referred to the present cases against Civella as the `associated cases' Pg 428 TR Strada.

The third ground of the affidavit is as follows:

"3. In hearings on motions in the instant case on August 11, 1972, this Court, addressing himself to defendant Nicholas Civella, stated:

"`The Court: If you don't be quiet you will spend a weekend in the County Jail.' (Tr 46)

"`* * * you have been a disruptive character in this case all the time.' (Tr 47).

"Affiant states that Judge Becker has on a number of occasions in various hearings in this cause indicated, by gesture and expression, that he considers the Affiant as the number one or principal defendant and that other defendants herein are merely associates, whereas to the defendant's knowledge there is no evidence connecting this defendant with any of the charges in the three Indictments returned against him."

Counsel for the defendant Nicholas Civella filed a certificate in the following language:

"I the undersigned, counsel of record in the above entitled cause, hereby certify that I believe the above affidavit made by the said Nicholas Civella, was made in good faith."

This certificate of counsel is qualified by the following language over the signature of counsel:

"Counsel is not vouching for the facts stated in defendant's affidavit concerning the statements of this Honorable Court. The defendant has informed his counsel that the sources of his information are extremely confidential and that he cannot, and will not, reveal those sources, even to his counsel. It is impossible for counsel to make an independent investigation of the allegations made by the Affiant. Counsel can merely state that he believes defendant is making the affidavit in good faith."

If the affidavit and certificate are sufficient in substance and timely filed the Court cannot deny the motion for disqualification even if the facts stated are demonstrably false. Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481 (1921). The penalties for perjury and disbarment are considered a sufficient guaranty against unfounded allegations and motions made in bad faith. Note, Disqualification Of Judges for Bias in the Federal Courts, 79 Harv.L. Rev. 1435 (1966). On the other hand, when the affidavit of bias or prejudice does not meet the statutory requirements the judge has an obligation not to disqualify himself. United States v. Anderson, 433 F.2d 856 (8th Cir. 1970).

The motion to require disqualification will be denied for the following separate and independent reasons:

1. The certificate of counsel does not comply with the requirements of Section 144, Title 28 United States Code;

2. In respect to the second and third grounds, the motion and affidavit are not timely filed;

3. In respect to the third ground, the affiant has not stated the alleged facts in a manner sufficient to determine whether the alleged facts, however false they may be, are sufficient in form and substance to require disqualification;

4. In respect to ground two, the facts stated are insufficient to require disqualification in the light of the portions of the cited record not quoted in the affidavit. United States v. Strada, 374 F.Supp. 680 (W.D.Mo.1974), affirmed, 503 F.2d 1081 (8th Cir. 1974); and

5. In respect to ground three, the facts stated are insufficient to require disqualification.

These reasons for denying the motion will be discussed hereinafter.

Before discussing separately the above reasons for denying the motion, it is noted generally that "one of the reasons for allowing the district judge to rule on the sufficiency of the affidavit in the first place is to prevent parties from using section 144 as a means of delay." 79 Harv.L.Rev. 1435, 1440 (1966). This comment is particularly applicable to grounds two and three quoted above.

I Deficiencies in the Certificate of Counsel

The certificate of counsel does not certify to the good faith of counsel in filing the motion and affidavit as required by Section 144 as construed by the majority of courts. 79 Harv.L.Rev. 1435 (1966); In re Union Leader Corp., 292 F.2d 381 (1st Cir. 1961). A less strict interpretation is followed by some courts. Flegenheimer v. United States, 110 F.2d 379 (3rd Cir. 1936). There are valid arguments for each of these diverse views. For the majority view it can be said that the restraint provided by the requirement that the lawyer certify his own good faith as well as that of his client provides an added guaranty against frivolous or false affidavits. It may be a permissible view to construe an unconditional certificate by counsel of good faith of his client, as an implied certificate of good faith of counsel. Freed v. Inland Empire Insurance Co., 174 F.Supp. 458, 465 (D.Utah 1959). But here we cannot make the implication because of the expressed disavowal by counsel in the quoted part of the suggestions. In this case the value of this requirement is more apparent than in most reported cases. On the other hand, there is some logic for the view that the lawyer's bona fide apprehension of bias should not deprive his client of the opportunity to present his bona fide beliefs. Cf. 79 Harv.L.Rev. 1435, 1441-1443 (1966). The certificate of counsel in this case is deficient under both divergent lines of authority.

In respect to the third ground, in this case, counsel has been deprived of an opportunity to...