Craven v. United States

• Decision Date: 19 November 1927
• Docket Number: No. 2132.,2132.
• Citation: 22 F.2d 605
• Parties: CRAVEN v. UNITED STATES.
• Court: U.S. Court of Appeals — First Circuit

22 F.2d 605 (1927)

CRAVEN v. UNITED STATES.

No. 2132.

Circuit Court of Appeals, First Circuit.

November 19, 1927.

William H. Lewis, of Boston, Mass. (Matthew L. McGrath, of Boston, Mass., on the brief), for plaintiff in error.

John V. Spalding, Asst. U. S. Atty., of Boston, Mass. (Frederick H. Tarr, U. S. Atty., of Gloucester, Mass., on the brief), for the United States.

Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge.

Craven, with 19 others, was indicted for conspiracy to commit an offense against the United States by importing at Boston whisky and beer without paying the customs duties thereon. The case was tried twice. Before the second trial 15 of the defendants pleaded guilty. Craven was the only defendant at the second trial. He was convicted and sentenced to two years at Atlanta, and to pay a fine of $1,000. The case comes here with a record containing 14 assignments of error, of which the first and third are expressly waived. The main reliance is upon the second, which involves the refusal of the presiding judge, upon an affidavit of prejudice, to recuse himself. This assignment is urgently pressed, both orally and on the brief.

Craven's affidavit, filed February 3, 1927, with the requisite certificate of counsel, somewhat abbreviated, is to the effect that under the indictment for conspiracy above outlined he was brought to trial on January 26; that on February 2 the jury was discharged from further consideration of the case, and the case set for retrial on February 8; that during the trial the presiding judge exhibited against him a personal bias and prejudice, and a personal bias and prejudice in favor of the United States; that affiant believes that said judge had at the previous trial, and still has, a personal bias against him.

The stated reasons for the affiant's alleged belief are:

(1) That at about 7 p. m. on February 1 the jury returned a verdict of disagreement as to the affiant; but the judge refused to accept the verdict, and sent them back with an admonition that, "if they were honest men, and he assumed that they were honest, to go out and bring in a verdict," and intending to force and coerce the jury into a different verdict against your affiant than the one the jury had rendered, he kept them out all night, until 10 o'clock on Wednesday, February 2, and then dismissed them.

(2) That, when the jury returned with a verdict of disagreement, the judge inquired if they wanted instructions, and in response to a question from the foreman as to whether the jury must find beyond reasonable doubt that the defendant was the man who indorsed "T. Craven" on a draft for $5,000, the judge answered, "No," and charged the jury in substance that there was no reasonable doubt that the defendant signed the draft; "that the temper and manner of the judge in so sending the case back to the jury, and giving the additional charge, which he had solicited, was unjudicial in character, partisan in the extreme, and prejudicial to a fair and impartial trial, to which he is entitled under the law of the land."

(3) That during the trial of the indictment against him before the jury the judge exhibited a partisan and unjudicial spirit, in that while his counsel was arguing the question as to the identity of the person who indorsed the draft, held it up to the light, and dangled it before the jury, and during his charge to the jury, referring to the defendant's failure to take the witness stand, he used the following phrase: "The defendant Craven has not seen fit to take the witness stand," and, while telling the jury they could draw no inference against him by reason thereof, clearly indicated to the jury that he thought otherwise.

(4) That during the course of said trial he exhibited personal bias and prejudice against your affiant and in favor of the United States of America by questions the court asked the witnesses upon the stand.

(5) "That during the trial the judge was in conference with the assistant United States attorney, out of the presence of the defendant, thereby exhibiting a personal bias and prejudice against the affiant."

(6) Your affiant believes that said judge has a personal prejudice and bias against him, and in favor of the United States of America, in that he, said judge, exhibits a violent prejudice against all defendants charged with violation of the liquor laws, as indicated by excessive fines and penalties imposed in various cases by him, and your affiant, being charged with an offense against the liquor laws, as indicated, is subject to his personal bias and prejudice.

(7) Your affiant believes that said judge, designated to sit in the trial of the indictment against him in this district, cannot and will not give him a fair and impartial trial, and that he will use every effort within his power to secure his conviction, and his manner of dismissing the jury and setting the case down for a new trial indicated a partisan intention to secure a conviction of your affiant at all hazards.

(8) Affiant states that the reason for not filing this affidavit ten days before the beginning of the term of court at which his trial was set is that he did not know that the said judge was to preside at said trial, and the date set for a new trial was less than 10 days from the discharge of the jury in the first trial referred to above.

The presiding judge, under a fitting and common practice, referred the sufficiency of this affidavit to another District Judge, who held it insufficient.

The presiding judge accepted this conclusion of his colleague, and presided at the second trial.

The general subject of the disqualification of judges is elaborately treated in Moses v. Julian, 45 N. H. 52, 84 Am. Dec. 114; in 23 Cyc. 575, particularly 582 et seq., and in 33 C. J. 988, 1014.

But the question here presented turns upon the construction and application of section 21 of the Judicial Code, enacted in 1911 (28 USCA § 25). Berger v. United States, 255 U. S. 22, 37, 41 S. Ct. 230, 65 L. Ed. 481.

It is settled that under this statute the sufficiency of the affidavit must be determined on the basis of "the facts and the reasons for the belief that such bias or prejudice exists." Ex parte Am. Steel Barrel Co., 230 U. S. 35, 43, 44, 33 S. Ct. 1007, 1010 (57 L. Ed. 1379).

The same doctrine was stated in Berger v. United States, 255 U. S. 22, 33, 41 S. Ct. 230, 233 (65 L. Ed. 481), in the majority opinion by Mr. Justice McKenna: "Of course, the reasons and facts for the belief the litigant entertains are an essential part of the affidavit, and must give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment." This court, in Keown v. Hughes, 265 F. 573, 577, stated the rule as follows:

"The provision in the statute, to the effect that `such affidavit shall state facts and reasons for the belief that such bias or prejudice exists,' is meaningless, unless construed to require the plaintiff, under oath, at least to assert facts from which a sane and reasonable mind may fairly infer bias or prejudice."

Passing the government's contention that the affidavit was filed too late, under the provision that "such affidavit shall be filed not less than 10 days before the beginning of the term of the court, or good cause shall be shown for the failure to be filed within such time," we proceed to an analysis of the facts and the reasons stated:

There is in the affidavit no intimation that prior to the first trial the presiding judge had any bias or prejudice, personal or other, against the defendant. So far as appears, he had never heard of him or his alleged offense. All that is indicated is that at the first trial, on the basis of the evidence there adduced, the presiding judge acquired and exhibited before the jury (which nevertheless disagreed) a view that the defendant was guilty. Not even this clearly appears, for the allegations in the first and second paragraphs are as consistent with the view that the judge regarded the evidence such as to require a competent jury to agree on a verdict, as with the view that he thought that the jury should have found the defendant guilty. Perhaps we should assume that the third paragraph does indicate that the judge then indicated to the jury that the evidence warranted, if it did not require, a verdict of guilty. But a judge has a right to expect and to urge a jury to agree to a verdict, if the evidence calls on reasonable men to reach an agreement, whether for or against the guilt of the defendant.

There is nothing in the fourth and fifth paragraphs of the affidavit. A general and epithetical charge of bias, by questions not set forth, is idle. Equally frivolous is the contention that the judge in charge of a criminal calendar cannot confer with an assistant United States attorney without grounding an inference of improper scheming against the right of the defendant to a fair and impartial trial. We are surprised that experienced counsel should have certified an affidavit containing such a charge.

The sixth paragraph, asserting personal bias against persons charged with violation of the liquor laws, alleged to be indicated by excessive fines and penalties, is without...