Barry v. U.S., No. 75--1659

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore FAIRCHILD, Chief Judge, ADAMS; ADAMS; Thus
PartiesEdward J. BARRY et al., Petitioners-Appellants, v. UNITED STATES of America, Respondent-Appellee.
Decision Date24 February 1976
Docket NumberNo. 75--1659

Page 1094

528 F.2d 1094
Edward J. BARRY et al., Petitioners-Appellants,
v.
UNITED STATES of America, Respondent-Appellee.
No. 75--1659.
United States Court of Appeals,
Seventh Circuit.
Argued Nov. 7, 1975.
Decided Jan. 13, 1976.
Rehearing and Rehearing En Banc
Denied Feb. 24, 1976.

Page 1096

Kenneth N. Flaxman, Chicago, Ill., for petitioners-appellants.

Samuel K. Skinner, U.S. Atty., Daniel K. Webb, Asst. U.S. Atty., Chicago, Ill., for respondent-appellee.

Before FAIRCHILD, Chief Judge, ADAMS, Circuit Judge, * and CAMPBELL, Senior District Judge. **

ADAMS, Circuit Judge.

In this appeal, we are asked to decide whether the district judge who presided at the petitioners' criminal trial contravened the mandatory disqualification statute, 1 whether there was prosecutorial misconduct warranting reversal in connection with the judge's decision not to recuse himself, and whether the scope of the proceedings held in the district court in this collateral attack on the convictions was improperly restricted.

I.

The prosecutions that led to the petition for habeas corpus presently before us arose out of a pervasive scheme of extortion involving the vice squad of Chicago's 18th Police District. 2 Federal jurisdiction over the crimes, which consisted of periodic payoffs from bar and tavern owners to the defendant police officers, was obtained through a thennovel interpretation of the Hobbs Act. 3

When the case was ready for trial, it was assigned to Judge William J. Bauer. 4 Because he had served from July 1970 until November 1971 as United States Attorney for the district in which the prosecution was brought, Judge Bauer requested that office to advise him of the date when the investigation underlying the case had begun. In response, he received an affidavit from James J. Annes, a Special Agent with the FBI, stating that the investigation had formally commenced in May 1972--several months after Judge Bauer had left the office of the U.S. Attorney. As a result of this information, Judge Bauer decided not to disqualify himself from presiding at the trial. The trial and convictions followed.

Page 1097

After affirmance of the convictions by this Court, 5 petitions were filed under 28 U.S.C. § 2255. The district court granted the government's motion for summary judgment and denied relief. We affirm.

II.

Petitioners have raised three primary arguments in this Court. The first is that under the circumstances here, the provisions of 28 U.S.C. § 455 6 required Judge Bauer to disqualify himself from presiding at the criminal trial. This is so, it is asserted, for two reasons. First, the policy decision to employ the Hobbs Act to combat the police extortion ring, a use to which it had not previously been put, was allegedly made by U.S. Attorney Bauer. It is maintained that this made him 'of counsel' to the United States Government and also gave him a 'substantial interest' in prosecutions that rely upon that theory; disqualification was thus required. Second, U.S. Attorney Bauer allegedly appeared before and encouraged the grand jury that indicted the members of the 18th District's vice squad. It is urged that such conduct also mandated disqualification under section 455.

The next contention set forth by petitioners is that when Judge Bauer asked the office of the U.S. Attorney the date when the investigation had begun, in order to determine whether disqualification was called for, the answer was an intentional misrepresentation of the facts. The petitioners assert that the investigation had in fact commenced during the tenure of U.S. Attorney Bauer, and that he did not disqualify himself because he was improperly told it had begun after his appointment to the bench. The argument continues that the government was thus able, as a fruit of its alleged impropriety, to present its case to a judge who was already favorably disposed to its prosecutorial theory.

Finally, petitioners claim that their section 2255 action was invalidly restricted in the district court. They insist that discovery was unduly limited, and that the district court erroneously granted summary judgment to the government on the basis of conflicting affidavits. They further urge that although section 2255 requires a hearing unless 'the motion and the files and records of the case conclusively show the prisoner is entitled to no relief,' and although this was not conclusively shown, no hearing was granted them.

Meeting the claims advanced by the petitioners, the government contends, first, that this 'case' did not get under way until the tenure of William Bauer as U.S. Attorney had ended. It further submits that the policy decision to use the Hobbs Act was not made by U.S. Attorney Bauer, and that even if it were, disqualification was not required. Finally, it is maintained that ample discovery was allowed; that the affidavits did not conflict in any material way; and that no hearing was required, since the claim raised by petitioners was not a substantial one.

III.

Our analysis of the applicability of 28 U.S.C. § 455 in the circumstances present here leads to the conclusion that Judge Bauer's disqualification was not mandated by the statute. 7

Page 1098

Section 455 refers only to particular relationships by the judge 'in any case. . . .' 8 This limitation is a significant one. The two courts of appeals that have construed the phrase 'in any case' have given it a rather strict meaning, one which we follow. In United States v. Wilson, 426 F.2d 268, 269 (6th Cir. 1970), the Sixth Circuit interpreted it as follows:

'A 'case' does not, of course, necessarily come into being with the happening of the offense. The critical point for mandatory disqualification is, we think, the initiation of the prosecution. For purposes of 28 U.S.C. § 455, we believe that a 'case' begins with the first formal prosecutorial proceeding (arrest, complaint or indictment) which is designed to bring a named alleged offender before the court.'

The Third Circuit has taken the same approach, holding that there is no criminal 'case' when there has not yet been an 'arrest or indictment. . . .' In re Grand Jury Investigation, 486 F.2d 1013, 1015--16 (3d Cir. 1973), cert. denied sub nom. Testa v. United States, 417 U.S. 919, 94 S.Ct. 2625, 41 L.Ed.2d 224 (1974). 9

The affidavits filed in the district court in this proceeding show that no 'case' against the petitioners existed until after Mr. Bauer had left the office of the U.S. Attorney. The affidavit by James J. Annes, the FBI Special Agent, averred that the investigation had not begun until May 1972, about five months after Judge Bauer had resigned as U.S. Attorney. This affidavit was undisputed. Petitioners proffered testimony from four individuals indicating that FBI agents had, in 1970 and 1971, asked questions of several persons about payoffs to policemen by tavern owners. But mere questioning of a few individuals does not meet the Wilson standard of attempting 'to bring a named alleged defender before the court,' 10 nor does it constitute the formal opening of the prosecution required by both Wilson 11 and Grand Jury. 12 No other evidence

Page 1099

was presented to the district court that even tended to show that the prosecution either began or continued during the tenure of U.S. Attorney Bauer. 13

Thus, Judge Bauer did not sit in a 'case' in which he had been 'of counsel' 14 or in which he had a 'substantial interest,' 15 the congressional standards for mandatory disqualification. There was therefore no violation of the statute. 16

Nor did Judge Bauer's decision to preside at the trial lead to a constitutional violation. The Supreme Court has held that the due process clause prohibits a criminal trial in which the judge 'has a direct, personal, substantial, pecuniary interest in reaching a conclusion against (the defendant) in his case.' 17 But it is not alleged the Judge Bauer had any financial stake in the outcome of the prosecutions here. More broadly, the Supreme Court has ruled that '(e)very procedure which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the state and the accused, denies the latter due process of law.' 18 The conflicts of interest present in the cases in which this standard was enunciated were, however,

Page 1100

much more extreme than the lack of impartiality suggested here. 19

Furthermore, any error was harmless. 20 At the end of the trial, the defendants stated to Judge Bauer that he had been impeccably fair and just in presiding over the proceedings. The Judge's ruling of law that the Hobbs Act applied to the activities of the police in this case cannot even be considered error, since the same conclusion was reached independently by this Court on appeal. 21

Finally, several Supreme Court Justices have sat in cases in which their relationship to the issues involved was at least as close as was Judge Bauer's in this case. The most recent example is Justice Rehnquist, who declined to disqualify himself from sitting in Laird v. Tatum 22 although he had appeared as the Justice Department's expert witness before a Congressional subcommittee to give testimony about some of the issues raised in Laird. 23 In his memorandum opinion on the disqualification issue, Justice Rehnquist mentioned other examples of Justices who had sat in cases despite an apparent conflict agreater than Judge Bauer's was here: 24 As a Senator, Hugo Black was a primary author of the Fair Labor Standards Act; yet as a Justice he sat in the case upholding its constitutionality and in later cases construing it. As a law professor, Felix Frankfurter was a co-author of The Labor Injunction and a principal drafter of the Norris-LaGuardia Act; yet as a Justice he delivered the opinion of the Court in the Hutcheson case, which determined the scope of that statute. There...

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86 practice notes
  • U.S. v. State of Ala., No. 86-7090
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • October 6, 1987
    ...U.S. 824, 93 S.Ct. 7, 34 L.Ed.2d 50 (1972); Rosquist v. Soo Line Railroad, 692 F.2d 1107, 1112 (7th Cir.1982); Barry v. United States, 528 F.2d 1094 (7th Cir.), cert. denied, 429 U.S. 826, 97 S.Ct. 81, 50 L.Ed.2d 88 (1976); Association of Nat'l Advertisers, Inc. v. F.T.C., 627 F.2d 1151, 11......
  • DelVecchio v. Illinois Dept. of Corrections, Nos. 92-2553
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • December 17, 1993
    ...Judge Garippo could not impartially evaluate the work of the police or his former subordinate. Our decision in Barry v. United States, 528 F.2d 1094 (7th Cir.1976), is instructive on whether DelVecchio's pretrial motions required Judge Garippo to disqualify himself. In Barry, the defendant ......
  • Del Vecchio v. Illinois Dept. of Corrections, Nos. 92-2553
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • July 19, 1994
    ...Judge Garippo could not impartially evaluate the work of the police or his former subordinate. Our decision in Barry v. United States, 528 F.2d 1094 (7th Cir.1976), is instructive on whether Del Vecchio's pretrial motions required Judge Garippo to disqualify himself. In Barry, the defendant......
  • U.S. v. Thompson, No. 589
    • United States
    • U.S. Court of Appeals — Second Circuit
    • January 29, 1996
    ...States v. DeLuna, 763 F.2d 897, 908 (8th Cir.), cert. denied, 474 U.S. 980, 106 S.Ct. 382, 88 L.Ed.2d 336 (1985); Barry v. United States, 528 F.2d 1094, 1098-99 (7th Cir.), cert. denied, 429 U.S. 826, 97 S.Ct. 81, 50 L.Ed.2d 88 (1976); In re Grand Jury Investigation, 486 F.2d 1013, 1015-16 ......
  • Request a trial to view additional results
86 cases
  • U.S. v. State of Ala., No. 86-7090
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • October 6, 1987
    ...U.S. 824, 93 S.Ct. 7, 34 L.Ed.2d 50 (1972); Rosquist v. Soo Line Railroad, 692 F.2d 1107, 1112 (7th Cir.1982); Barry v. United States, 528 F.2d 1094 (7th Cir.), cert. denied, 429 U.S. 826, 97 S.Ct. 81, 50 L.Ed.2d 88 (1976); Association of Nat'l Advertisers, Inc. v. F.T.C., 627 F.2d 1151, 11......
  • DelVecchio v. Illinois Dept. of Corrections, Nos. 92-2553
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • December 17, 1993
    ...Judge Garippo could not impartially evaluate the work of the police or his former subordinate. Our decision in Barry v. United States, 528 F.2d 1094 (7th Cir.1976), is instructive on whether DelVecchio's pretrial motions required Judge Garippo to disqualify himself. In Barry, the defendant ......
  • Del Vecchio v. Illinois Dept. of Corrections, Nos. 92-2553
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • July 19, 1994
    ...Judge Garippo could not impartially evaluate the work of the police or his former subordinate. Our decision in Barry v. United States, 528 F.2d 1094 (7th Cir.1976), is instructive on whether Del Vecchio's pretrial motions required Judge Garippo to disqualify himself. In Barry, the defendant......
  • U.S. v. Thompson, No. 589
    • United States
    • U.S. Court of Appeals — Second Circuit
    • January 29, 1996
    ...States v. DeLuna, 763 F.2d 897, 908 (8th Cir.), cert. denied, 474 U.S. 980, 106 S.Ct. 382, 88 L.Ed.2d 336 (1985); Barry v. United States, 528 F.2d 1094, 1098-99 (7th Cir.), cert. denied, 429 U.S. 826, 97 S.Ct. 81, 50 L.Ed.2d 88 (1976); In re Grand Jury Investigation, 486 F.2d 1013, 1015-16 ......
  • Request a trial to view additional results

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