Simmons v. United States, No. 13620.

• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
• Writing for the Court: BIGGS, , and McLAUGHLIN and FORMAN, Circuit
• Citation: 302 F.2d 71
• Parties: James C. SIMMONS, Appellant, v. UNITED STATES of America.
• Docket Number: No. 13620.
• Decision Date: 13 April 1962

302 F.2d 71 (1962)

James C. SIMMONS, Appellant,
v.
UNITED STATES of America.

No. 13620.

United States Court of Appeals Third Circuit.

Submitted November 2, 1961.

Decided April 13, 1962.

302 F.2d 72

James C. Simmons, pro se.

David M. Satz, Jr., U. S. Atty., Frank J. Ferry, Asst. U. S. Atty., Newark, N. J., for appellee.

Before BIGGS, Chief Judge, and McLAUGHLIN and FORMAN, Circuit Judges.

FORMAN, Circuit Judge.

John C. Simmons, the appellant herein, was indicted in the United States District Court for the District of New Jersey, with John Gregory Marion, on two counts for violation of the narcotic laws. 21 U.S.C.A. § 174 and 26 U.S.C.A. § 4705(a). He pleaded not guilty and was tried alone to the court and a jury.

At the trial two Treasury Agents of the Bureau of Narcotics testified in substance that they made the acquaintance of the appellant at his motel, introducing themselves as having been sent to him by a mutual acquaintance in Philadelphia; that, under the pretext that they were racketeers, they spoke to him concerning the prospect of installing prostitutes in his motel; that the appellant rejected the idea of using his motel for such a purpose, but that he suggested that a house on an adjoining property that belonged to him, and which he contemplated fixing up, could be used better for that purpose; that they also spoke to him concerning the possibility of purchasing a tavern in the neighborhood; that appellant took them to two taverns that he thought could be purchased; that during the course of one of several meetings the agents had with him, one of them stated that they had had some trouble in the purchase of narcotics which had turned out to be a poor grade

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of heroin; that the appellant thereupon volunteered that he had some "connections" in Philadelphia and New York, but that he would have to look them up; one of the agents then told him that they were interested and arrangements were made for all three to go to Harlem, but appellant could not obtain any drugs there, except some marijuana cigarettes, one of which he smoked on the return journey; that subsequently, pursuant to a telephone call from the appellant to meet him they called on him and he advised them that he could purchase some pure heroin from a connection in New York, but that he must have money in advance and go alone and that later he would introduce them to his connection; that he was given $1,000 by the agents; that later he told them that he had gone to New York where he met an acquaintance to whom he gave $600 to make a purchase of heroin; that the acquaintance had turned the money over to a purported seller, who had disappeared with it without delivering the drug; that appellant returned the balance of the $400 to the agents

The agents also testified that upon their request to point out the one to whom appellant gave the money he again accompanied them to Harlem and introduced them to his acquaintance who verified appellant's statements and described the missing seller for whom the agents searched in vain; that following a few more visits by the agents to the appellant he advised them that he had something for them; that they visited the appellant at his motel and he produced a small wax paper wrapped package which he said contained pure heroin, which was priced at $400; that it was agreed that the agents would have the contents of the package tested; that they told appellant that it turned out to be weak heroin but that arrangements were made by the agents with the appellant to be introduced to the source from which it came; that later following a telephone call from the appellant they proceeded to the motel where the appellant introduced them to one, John Gregory Marion,¹ who, he stated, was his New York connection.

The agents further testified that they told Marion in the presence of the appellant that the heroin which had been delivered to them by the appellant was of a very poor grade but that if he had any other connection they would like to meet him; that Marion told them that his connection in New York could get them pure heroin in any amount they wanted; that subsequently they told appellant that they were engaged in the purchase of heroin and that they expected a delivery of it at his motel; that the motel was used by the agents as a meeting place when deliveries of narcotics were made to them; that appellant was told by the agents that he would be cut in on the profits on the deliveries if things went properly to the extent of as much as $5,000.

The appellant testified in his defense to the effect that the agents, making themselves known to him as Mike and Gene, approached him much in the manner that they had described but that he completely rejected their proposal to use any of his premises for the purposes of prostitution; that he did, however, take them to two taverns that he thought could be purchased by them; that they visited him frequently, using his motel premises for the purpose of making telephone calls; that one of the agents initiated the subject of narcotics, telling him that he needed some dope but that the agent told him he need not have anything to do with it except to arrange for a supply which he and his colleague required as they had many customers for it in various cities; that the agents persisted in requesting him to make some kind of a connection for them; that he finally succumbed to their requests and accompanied them to New York to look for some one who would sell them heroin but the trip proved futile; that he did

302 F.2d 74

communicate later with an acquaintance who told him he would be able to take care of him and the agents provided him with $1,000 to make a purchase, but that he lost $700 (the agents testified to $600) in trying to obtain heroin; that he so informed the agents telling them that he would be responsible for the lost money; that he was frequently thereafter importuned by the agents to find them a source of heroin and he finally communicated with Marion to whom he gave $200 and received from him the package which he turned over to the agents; that he estimated that the agents were at his motel 35 or 40 times between June 6, 1957 and the date of his arrest, January 23, 1958; that during that time the agents gave him $90 to cover telephone calls they had made and that his attempts to obtain heroin for them were as personal favors without any suggestion of reward to him except that the agent he knew as Mike said to him shortly before his arrest that if everything went all right he would have enough to fix up the driveway to his motel which was in need of repair

The jury brought in a verdict of guilty on both counts. On April 8, 1958 he was sentenced to ten years on each count to run concurrently. He was represented by counsel throughout and took no appeal.

Now, acting without counsel, he has filed a motion to vacate his sentence under 28 U.S.C. § 2255² and Rule 35 of the Federal Rules of Criminal Procedure, 18 U.S.C.³ Concurrently with that motion he filed an affidavit of bias and prejudice against the Judge who presided at his trial moving for his withdrawal from consideration of the motion to vacate the sentence.

The Trial Judge disposed of the affidavit and motion to withdraw in an opinion in which he dismissed it and denied the motion. In a separate opinion he also denied the motion under § 2255 to vacate the sentence.

Orders were entered pursuant to the opinions and it is from these that appellant seeks review.

- I -

The appellant is ambivalent in the argument he offers to sustain his affidavit of bias and prejudice. In his reply brief he poses this question:

"Whether, in a section 2255 proceeding the District Judge erred in rejecting a timely filed `Affidavit of Prejudice and Bias with Motion to Withdraw\', having improperly construed and mistakenly considered same as an `Application for Disqualification\' under Section 144?"

At other places in his main and reply briefs he appears to contend that his

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affidavit met the standards set by 28 U.S.C. § 144.⁴

Casting aside the technical objections of the Government that the filing of the affidavit under § 144 is untimely and inappropriate in this proceeding and meeting the issue posed by its filing head on, many of the assertions and cases cited by appellant concerning the action required by that statute to be taken by the judge against whom the affidavit is filed are indisputable. For example, it is so, as appellant submits that it is not within the province of the Trial Judge to pass upon the good faith of the defendant if the affidavit is sufficient in form. Morris v. United States, 26 F.2d 444, 448 (8 Cir. 1928). And the allegations in the affidavit must be taken as true, and are not subject to controversy in any manner. Berger v. United States (1921), 255 U.S. 22, 41 S.Ct. 230, 65 L. Ed. 481.

On the other hand the judge against whom an affidavit under § 144 is filed must pass upon the legal sufficiency of the facts alleged. Green v. Murphy, 259 F.2d 591, 593 (3 Cir. 1958).

If the reasons and facts, regardless of their truth or falsity, fairly support "the charge of a bent of mind that may prevent or impede impartiality of judgment" then it is his duty to allow the affidavit and withdraw. Berger v. United States, supra. It is equally his duty to deny the affidavit on insufficient grounds as to allow it on sufficient allegations. Tucker v. Kerner, 186 F.2d 79, 85, 23 A.L.R.2d 1027 (7 Cir. 1950). In Ex parte American Steel Barrel Co., 230 U.S. 35, 43-44, 33 S.Ct. 1007, 57 L.Ed. 1379 (1913) the Court said:

"The basis of the disqualification is that `personal bias or prejudice\' exists, by reason of which the judge is unable to impartially exercise his functions in the particular case. It is a provision obviously not applicable save in those rare instances in which the affiant is able to state facts which tend to show not merely adverse rulings already made, which may be

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