Mitchell v. United States

• Decision Date: 06 March 1942
• Docket Number: No. 2354.,2354.
• Citation: 126 F.2d 550
• Parties: MITCHELL v. UNITED STATES.
• Court: U.S. Court of Appeals — Tenth Circuit

126 F.2d 550 (1942)

MITCHELL v. UNITED STATES.

No. 2354.

Circuit Court of Appeals, Tenth Circuit.

March 6, 1942.

J. Forrest McCutcheon, of Dallas, Tex., for appellant.

Everett M. Grantham, U. S. Atty., District of New Mexico, of Santa Fe, N. M., for appellee.

Before BRATTON, HUXMAN, and MURRAH, Circuit Judges.

MURRAH, Circuit Judge.

Appellant appeals from a conviction, judgment and sentence on an indictment containing eight counts charging violation of Section 215 of the Criminal Code, 18 U.S.C.A. § 338.

For grounds of reversal, appellant contends (1) the court erred in striking appellant's affidavit of personal bias and prejudice filed by the appellant under Section 25, U.S.C.A., Title 28, and refusing to recuse himself in the trial of the said cause; (2) prejudicial error occurring in the trial of the case when one of the government witnesses stated that he had seen the defendant at a previous trial, and statement of government counsel in connection with the admissibility of this evidence; (3) refusal of the trial court to invoke the rule and to exclude all witnesses from the court room while not testifying; and (4) refusal of the court to direct a verdict of not guilty (a) on the insufficiency of the evidence and (b) because the mailing charged in the indictment occurred after the scheme laid in the indictment had terminated, hence no offense under Section 215, 18 U.S.C.A. § 338, was proven.

More than ten days prior to the date of the trial and on June 2, 1941, the appellant filed with the clerk of the trial court a verified affidavit in which he alleged in substance that the trial court had a personal bias and prejudice against him which deprived him of a fair and impartial trial. The basis for the alleged bias and prejudice was that appellant had been previously tried and convicted in the trial judge's court on an indictment containing similar charges; that the conviction had been reversed on appeal and the said indictment dismissed; that the trial judge had stated that the appellant would be convicted in this case and had commented on the particular nature of the testimony which would be introduced against him in the forthcoming trial, and had prejudged the guilt or innocence of the defendant in the present case to such an extent that he could not render a fair and impartial decision in the trial of the case.

The affidavit was not accompanied by the required certificate of counsel of record that such affidavit and application was made in good faith. Appellant attempts to excuse this requirement by alleging that although he had made diligent efforts and was financially able, he had been unable to obtain counsel to represent him and to make the certificate of good faith. On motion of the United States attorney, the affidavit was stricken on the grounds that it was insufficient in law under Section 25, Title 28 U.S.C.A., to disqualify the judge, and for the further reason that the affidavit was not accompanied by the certificate of defendant's counsel of record or any other counsel as required by statute.

The record shows that on May 5, 1941 the defendant appeared in person and by his attorney of record, C. Ray Smith, waived the reading of the indictment and entered a plea of not guilty. C. Ray Smith was the attorney of record when the affidavit of bias and prejudice was filed on June 2, 1941. Thereafter and on June 17, 1941, when the case was called for trial, the appellant was represented by J. Forrest McCutcheon, but there is nothing in the record to indicate that attorney Smith had or did at any time withdraw his appearance as counsel of record for the appellant. Neither does the affidavit of personal bias and prejudice affirmatively state that on June 2, 1941 the appellant was not represented by counsel of record or his intention and desire to represent himself in his own right in the trial of the case.

Section 21 of the Judicial Code, 28 U.S.C.A. § 25, provides that when a party to a civil or criminal proceedings shall make and file an affidavit that the judge before whom the proceedings is to be tried or heard has a personal bias or prejudice either against him or in favor of an opposing party, such judge shall proceed no further but instead another judge shall be designated to act; that the affidavit shall state the facts and the reasons for the belief that such bias and prejudice exists, and shall be filed not less than ten days before the beginning of the term of court or good cause shall be shown for failure to do so, and that no such affidavit shall be filed unless accompanied by a certificate of counsel of record and that such affidavit and application are made in good faith. When such an affidavit is filed, the truth of all of the allegations of fact contained therein is admitted, and it becomes the duty of the court to determine only its legal sufficiency, and if the affidavit meets the requirements of the statutes and is accompanied by a certificate of the counsel of record, the presiding judge can proceed no further but is disqualified. Scott v. Beams, 10 Cir., 122 F.2d 777; Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481; Henry v. Speer, 5 Cir., 201 F. 869; Lewis v. United States, 10 Cir., 14 F.2d 369; Nations v. United States, 8 Cir., 14 F.2d 507, certiorari denied 273 U.S. 735, 47 S.Ct. 243, 71 L.Ed. 866; Craven v. United States, 1 Cir., 22 F.2d 605, certiorari denied 276 U.S. 627, 48 S.Ct. 321, 72 L.Ed. 739; Morris v. United States, 10 Cir., 26 F.2d 444.

The purpose of this section is to secure for all litigants a fair and impartial trial before a tribunal completely divested of any personal bias or prejudice, either for or against any party to the proceedings, and it is the duty of all courts to scrupulously adhere to this admonition and to guard against any appearance of personal bias or prejudice which might generate in the minds of litigants a well-grounded belief that the presiding judge is for any reason personally biased or prejudiced against their cause. But the statute, by its own terms, provides a safeguard against the abuse of the privilege granted by the statute, and that well-founded safeguard is the requirement that the affidavit must be accompanied by a certificate of counsel of record, and without which the affidavit is ineffectual to disqualify the judge. This requirement is founded on the assumption that a member of the bar or counsel of record will not indulge in reckless disregard of the truth, and further attests to the good faith and belief of the affiant. Beland v. United States, 5 Cir., 117 F.2d 958, certiorari denied 313 U.S. 585, 61 S.Ct. 1110, 85 L.Ed. 1541; Cuddy v. Otis, 8 Cir., 33 F.2d 577; Morse v. Lewis, 4 Cir., 54 F.2d 1027; Currin v. Nourse, 8 Cir., 74 F.2d 273; Newman v. Zerbst, 10 Cir., 83 F.2d 973.

Here the appellant was represented by counsel of record on arraignment. He was represented by the same counsel of record when the affidavit was filed. He was represented by another counsel of record in the trial of the case, but the first counsel of record had not withdrawn his appearance. Appellant now attempts to avoid the requirement of a certificate of counsel of record by saying that he could not secure a certificate of counsel, but that he represented himself in the making and presentation of the affidavit.

The appellant could not represent himself while he was represented by counsel of record; neither could he shuttle his counsel in and out of the case in order to avoid the statute. To so hold would render meaningless and useless the plain provision of the statute which expressly provides for certificate of counsel to accompany the affidavit. Beland v. United States, supra.

Since we hold that the affidavit was ineffectual to disqualify the presiding judge, because it was not accompanied by the required certificate of counsel of record, it is unnecessary for us to determine the legal sufficiency of the facts alleged in the affidavit, and we do not decide that question.

When a witness for the government was asked by government counsel if he knew the appellant, he stated, "I saw the defendant at the trial last September in Albuquerque", where upon appellant's counsel objected and moved that the answer be stricken, and the jury be instructed not to consider it, which the court did immediately. If the answer was improper or prejudicial, it was certainly cured by the instructions of the court. But appellant's counsel persisted by further requesting the court to advise the jury that "the conviction of Mr. Mitchell was reversed". Until suggested by appellant's counsel, nothing had been said concerning a conviction or a reversal. The court, however, again instructed the jury not to consider the statement but to try the case on the evidence produced before them. Obviously no prejudicial error resulted from the statement of the witness or counsel for the government, but any possible prejudice was wholly and...