U.S. v. Gigax

Citation605 F.2d 507
Decision Date19 September 1979
Docket NumberNo. 78-1333,78-1333
Parties79-2 USTC P 9646 UNITED STATES of America, Plaintiff-Appellee, v. Norman A. GIGAX, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Joseph F. Dolan, U. S. Atty., Denver, Colo. (James E. Nesland, Asst. U. S. Atty., Denver, Colo., on brief), for plaintiff-appellee.

Arnold C. Wegher, Denver, Colo. (Gary H. Tobey, Denver, Colo., on brief), for defendant-appellant.

Before McWILLIAMS, BARRETT and DOYLE, Circuit Judges.

BARRETT, Circuit Judge.

Norman A. Gigax (Gigax) appeals his jury conviction of wilfully making false and fraudulent statements in a Form W-4 Employee's Withholding Allowance Certificate by claiming 21 allowances and exemptions in violation of 26 U.S.C. § 7205.

Gigax was charged in a one-count information filed January 10, 1978. After various pre-trial motions, he proceeded to trial on February 21, 1978. He was found guilty on February 22, 1978.

Gigax does not contest the sufficiency of the evidence underlying his conviction. Rather, he claims the district court erred in (1) failing to recuse himself, Sua sponte ; (2) failing to declare a mistrial based upon conversations between third persons and jurors; (3) failing to appoint, Sua sponte, "standby" counsel to assist Gigax in his defense; (4) failing to grant Gigax's motion for continuance; and (5) improperly assessing the impact of certain alleged prejudicial publicity.

I.

Gigax contends that "the trial court was so personally prejudiced against the 'tax protestors' in general and the Defendant specifically that he should have recused himself." (Brief of Appellant, p. 17.)

The Supreme Court in In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955), stated:

A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness. . . . Circumstances and relationships must be considered. This Court has said, however, that '(e)very procedure which would offer a possible temptation to the average man as a judge * * * not to hold the balance nice, clear, and true between the State and the accused, denies the latter due process of law.' (Citation.) Such a stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties. But to perform its high function in the best way 'justice must satisfy the appearance of justice.' (Citation.)

349 U.S., p. 136, 75 S.Ct., p. 625.

Citing Murchison, the court in United States v. Brown, 539 F.2d 467 (5th Cir. 1976) stated:

The truth pronounced by Justinian more than a thousand years ago that, 'Impartiality is the life of justice,' is just as valid today as it was then. Impartiality finds no room for bias or prejudice. It countenances no unfairness and upholds no miscarriage of justice. Bias and prejudice can deflect the course of justice and affect the measure of its judgments. If the judge finds himself possessed of those sentiments, he should recuse himself; or, if he does not, confront the likelihood of proceedings under the statute 5 (28 U.S.C. § 144) to require him to do so. (Footnote omitted.)

539 F.2d, p. 469.

See also: United States v. Haldeman, 181 U.S.App.D.C. 254, 559 F.2d 31 (1976), Cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977); Rapp v. Van Dusen, 350 F.2d 806 (3d Cir. 1965); 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).

Thus, if a judge's conduct or appearance in the trial of a case does not comport with the appearance of justice, the conviction must be reversed. Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481 (1921); United States v. Brown, supra, at 470. Nonetheless, charges of misconduct or prejudice leveled at trial judges "should not be lightly made and, once made, should not be casually treated by a reviewing court." United States v. Cardall, 550 F.2d 604, 606 (10th Cir. 1976), Cert. denied, 434 U.S. 841, 98 S.Ct. 137, 54 L.Ed.2d 105 (1977).

Mandatory disqualification of a federal judge to preside over a particular case may be premised on either of two statutes 28 U.S.C. §§ 144 or 455. Section 144 provides as follows Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.

The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and 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. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.

Under § 144, a motion to recuse must be filed promptly after the facts forming the basis of the disqualification become known. Davis v. Cities Service Oil Company, 420 F.2d 1278 (10th Cir. 1970). The motion must be accompanied by an affidavit stating, in non-conclusory terms, the facts establishing the alleged personal prejudice, stemming from an extra-judicial source and resulting in an opinion on the merits other than that which the judge has learned through his participation in the case. United States v. Grinnell Corporation, 384 U.S. 563, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966); United States v. Ritter, 540 F.2d 459 (10th Cir. 1976), Cert. denied, 429 U.S. 951, 97 S.Ct. 370, 50 L.Ed.2d 319 (1976). The challenged judge determines the sufficiency of the affidavit but does not weigh or test the truth of the allegations. United States v. Ritter, supra. If the facts "give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment" (Berger v. United States, supra, 255 U.S. 33-34, 41 S.Ct. 233) the judge must recuse even though the statements may not accurately reflect the judge's state of mind. Bell v. Chandler, 569 F.2d 556 (10th Cir. 1978). The mere fact that a judge has made an adverse ruling during trial; accepted the guilty plea of a coconspirator, or has had prior judicial contact with the defendant does not establish prejudice or bias. United States v. Baker, 441 F.Supp. 612 (M.D.Tenn.1977).

Section 455, on the other hand, requires that a judge disqualify or recuse himself where "his impartiality might reasonably be questioned."

The office of the procedure under § 144 is to disqualify a judge prior to trial on motion of a party. Section 455 is the statutory standard for disqualification of a judge. 11 It is self-enforcing on the part of the judge. It may also be asserted by a party by motion in the trial court, Rapp v. Van Dusen, 3 Cir., 1965, 350 F.2d 806, 809; Through assignment of error on appeal, United States v. Seiffert, 5 Cir., 1974, 501 F.2d 974; Shadid v. Oklahoma City, 10 Cir., 1974, 494 F.2d 1267, 1268, by interlocutory appeal, as here, or by mandamus, Texaco, Inc. v. Chandler, 10 Cir. 1965, 354 F.2d 655. (Footnote omitted.) (Emphasis supplied.)

Davis v. Board of School Commissioners, 517 F.2d 1044, 1051, (5th Cir. 1975), Cert. denied, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188 (1976).

In determining whether a judge should recuse under § 455(a), the issue is not whether the judge is impartial in fact, but rather, whether a reasonable man might question his impartiality under all circumstances. United States v. Ritter, supra; Rice v. McKenzie, 581 F.2d 1114 (4th Cir. 1978); SCA Services, Inc. v. Morgan, 557 F.2d 110 (7th Cir. 1977).

Congress enacted the revision to make the statute conform to the Code of Judicial Conduct, 119 Cong.Rec. 33029 (1973) (remarks of Senator Burdick) as well as to "broaden and clarify the grounds for disqualification," 119 Cong.Rec. 33029 (1973), and to substitute an objective test of reasonableness for the subjective test of the former Section 455. Under the broader standard of revised Section 455(a), disqualification is appropriate not only where there is actual or apparent bias or prejudice, but also when the circumstances are such that the judge's "impartiality might be reasonably questioned." See 13 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction, Section 3549.

United States v. Ritter, 540 F.2d, p. 462.

In SCA Services, Inc. v. Morgan, supra, the Seventh Circuit discussed the new "objective" standard noting the practical difficulties encountered in its application:

. . . Although the statute enunciates the appearance of partiality as the general standard for judicial recusal and the legislative history suggests that this standard is determined by reference to the reasonable person, 18 no factual or concrete examples of the appearance of impartiality were provided in the Congressional debates. Moreover, because a judge must apply the standard both as its interpreter and its object, the general standard is even more difficult to define. . . . (Footnote omitted.)

557 F.2d at p. 116.

Despite the lack of guidance provided by Congress, certain parameters can be drawn through an examination of the case law. Recusal was mandated in the following cases. United States v. Brown, supra, (Judge stated to individual at a bar association meeting prior to Brown's trial "that he was going to get that nigger."); Texaco, Inc. v. Chandler, 354 F.2d 655 (10th Cir. 1965) (sitting En banc ), Cert. denied, 383 U.S. 936, 86 S.Ct. 1066, 15 L.Ed.2d 853 (1966) (Where an attorney represented the judge in a civil damage action, and also represented the plaintiff in a suit against an oil company which was before...

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