United States v. Baker

• Decision Date: 28 October 1977
• Docket Number: No. 77-30295-NA-CR.,77-30295-NA-CR.
• Citation: 441 F. Supp. 612
• Court: U.S. District Court — Middle District of Tennessee
• Parties: UNITED STATES of America v. Shelby Ann BAKER and Wayne Edward Garrity.

441 F. Supp. 612

UNITED STATES of America v. Shelby Ann BAKER and Wayne Edward Garrity.

No. 77-30295-NA-CR.

United States District Court, M. D. Tennessee, Nashville Division.

October 28, 1977.

COPYRIGHT MATERIAL OMITTED

Hal D. Hardin, U. S. Atty., William H. Farmer, Asst. U. S. Atty., Nashville, Tenn., for plaintiff.

John E. Rodgers, Nashville, Tenn., for Baker.

Alfred H. Knight, III, Nashville, Tenn., for Garrity.

MEMORANDUM

MORTON, Chief Judge.

On September 11, 1977, defendants were arrested for allegedly kidnapping Annette Adams. Bond was initially set for both defendants at $250,000 by Magistrate Barbara H. Delaney of the United States District Court for the Western District of North Carolina. Both defendants were indicted for the alleged kidnapping on September 13, 1977 by the federal grand jury for the Middle District of Tennessee. Each defendant was thereafter removed to the Middle District of Tennessee to stand trial on the indictment.

On September 26, 1977, defendant Baker filed a Motion for Reduction of Bail. A hearing on her motion was held on September 28, 1977. Following argument by both the Government and counsel for defendant Baker, the court made the following statements in denying the motion:

BY THE COURT: All right, it is the judgment of this Court that the bail will not be reduced. I am not going to turn any kidnappers out here on the street and let them take another shot at somebody. So on that basis I will overrule it.

Mr. Rodgers, the Sixth Circuit has a chief judge right downstairs and they have an administrative man up in the Sixth Circuit, and if they think I am wrong, you can put her on the street.

BY MR. RODGERS: Thank you, Your Honor.

BY THE COURT: Draw an order, Mr. — I just believe she's a threat to the community. Anybody that will go out here and allegedly — I don't know whether she's guilty or not, but she's alleged to have gone out and kidnapped somebody off the campus and kept them for fifty-five hours. How do I know they wouldn't start it again tomorrow. I think she's a threat to the community. On that basis I refuse to do it.

All right, anything further?

BY MR. RODGERS: That's all.

BY THE COURT: All right.

(Tr. 19)

Each defendant thereafter filed a motion for this court to recuse itself in this case. Defendant Baker's motion was filed on October 5, 1977, while defendant Garrity's motion was filed on October 6. Each motion was accompanied by an affidavit signed by the defendant and a certificate of good faith signed by each defendant's counsel. Defendant Baker's affidavit states as follows:

Shelby Ann Baker, being duly sworn, says:

1. I am the Defendant in the above numbered and entitled cause.

2. On September 28, 1977, in a hearing relating to bail in the United States District Court, Honorable L. Clure Morton presiding, I heard the Judge refer to me as a kidnapper and as a result felt he was biased and prejudiced and had formed an opinion as to my guilt or innocence. As a result, I requested my attorney to obtain a transcript and look into the matter of getting the Judge to withdraw from the case.

3. On October 3, 1977 I conferred with my attorney and was presented with a transcript of the Judge's remarks in the proceeding which are attached hereto and made a part of this document as if set out in full.

4. Honorable L. Clure Morton, District Judge, Middle District of Tennessee, Nashville Division is therefore disqualified to act in the above numbered and entitled cause under the provisions of Title 28, U.S. Code, Section 455, and 144 respectively.

Defendant Garrity's affidavit states as follows:

Wayne Edward Garrity deposes and says:

I am one of the defendants in the above-captioned case. After her hearing for reduction of bond, my co-defendant Shelby Baker wrote me a letter indicating that the Honorable L. Clure Morton had made a statement during the hearing, indicating bias or prejudice on his part. On October 4, 1977, I asked my lawyer, Alfred H. Knight, about Judge Morton's statements, and he has provided me with a transcript of them. A copy of the transcript is attached to this motion. The Court's statement in the transcript referring to me as a "kidnapper" indicates that Judge Morton is personally biased and prejudiced against me and I respectfully request that he recuse himself and proceed no further in this case.

Each defendant also claims that the court has extrajudicial knowledge of the facts underlying this case. Both defendants rely on the provisions of 28 U.S.C. §§ 144 and 455 as grounds for their motions. Having carefully considered the respective motions and affidavits, the court finds that they must be denied.

A defendant in a criminal case "is entitled to the cold neutrality of an impartial judge." United States v. Orbiz, 366 F.Supp. 628, 629 (D.P.R.1973). "Due process demands a fair hearing before an impartial tribunal." Duffield v. Charleston Area Medical Center, Inc., 503 F.2d 512, 517 (4th Cir. 1974); Knapp v. Kinsey, 232 F.2d 458, 465 (6th Cir.), cert. denied, 352 U.S. 892, 77 S.Ct. 131, 1 L.Ed.2d 86 (1956); United States v. Thomas, 299 F.Supp. 494, 497 (E.D.Mo.1968). This is particularly important at the time of sentencing. United States v. Thompson, 483 F.2d 527, 529 (3d Cir. 1973). However, neither the government nor a defendant has a right or interest in having a particular judge try a particular case. United States v. Devlin, 284 F.Supp. 477, 482 (D.Conn.1968). A motion to recuse may not be used for the purpose of judge or forum shopping. Mavis v. Commercial Carriers, Inc., 408 F.Supp. 55, 61 (C.D.Cal.1975); United States v. Devlin, supra at 482.

28 U.S.C. § 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 section 144, a motion to recuse must be filed. 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). The motion must be promptly filed after the facts forming the basis for disqualification become known. Davis v. Cities Service Oil Co., 420 F.2d 1278, 1282 (10th Cir. 1970); United States v. Hoffa, 382 F.2d 856, 859 (6th Cir. 1967), cert. denied, 390 U.S. 924, 88 S.Ct. 854, 19 L.Ed.2d 984 (1968); Pennsylvania v. Local 542, International Union of Operating Engineers, 388 F.Supp. 155, 158 (E.D.Pa.1974); Molinaro v. Watkins-Johnson CEI Division, 359 F.Supp. 474, 475 (D.Md.1973). An affidavit stating the facts and reasons for the belief that bias or prejudice exists and a certificate signed by counsel of record that the motion to recuse is made in good faith must be filed together with the motion to recuse. United States v. Hoffa, supra at 860; Pennsylvania v. Local 542, International Union of Operating Engineers, supra at 158; Molinaro v. Watkins-Johnson CEI Division, supra at 475.

The standard under section 144 is whether assuming the truth of the facts alleged, a reasonable person would conclude that a particular judge is biased or prejudiced against a particular defendant. Mims v. Shapp, 541 F.2d 415, 417 (3d Cir. 1976); Parrish v. Board of Commissioners, 524 F.2d 98, 100 (5th Cir. 1975), cert. denied, Davis v. Board of School Commissioners of Mobile County, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188 (1976); United States v. Thompson, 483 F.2d at 528; United States v. Devlin, 284 F.Supp. at 481. There is a substantial burden on a defendant to prove that a judge is not qualified or impartial. Molinaro v. Watkins-Johnson CEI Division, 359 F.Supp. at 476; United States v. Thomas, 299 F.Supp. at 498. Moreover, the defendant must establish that the alleged bias and prejudice is personal, stemming from an extrajudicial source and resulting in an opinion on the merits other than what the judge has learned from his participation in the case. United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966); United States v. Bernstein, 533 F.2d 775, 785 (2d Cir.), cert. denied, 429 U.S. 998, 97 S.Ct. 523, 50 L.Ed.2d 608 (1976); Davis v. Board of School Commissioners, 517 F.2d at 1051; Duffield v. Charleston Area Medical Center, Inc., 503 F.2d at 517; United States v. English, 501 F.2d 1254, 1263 (7th Cir.), cert. denied, 419 U.S. 1114, 95 S.Ct. 791, 42 L.Ed.2d 811 (1975); United States v. Beneke, 449 F.2d 1259, 1260 (8th Cir. 1971); Davis v. Cities Service Oil Co., 420 F.2d at 1282; Knapp v. Kinsey, 232 F.2d at 466. Personal bias involves antagonism or animosity towards the affiant. United States v. Nehas, 368 F.Supp. 435, 437 (W.D.Pa.1973). The mere fact that a judge has made an adverse ruling to a particular defendant during the course of the present judicial proceedings, has accepted the guilty plea of a codefendant or coconspirator, or has had prior judicial exposure to a defendant does not establish bias or prejudice on the part of a judge. Berger v. United States, 255 U.S. 22, 31, 41 S.Ct. 230, 65 L.Ed. 481 (1921); United States v. Bernstein, supra at 785; Oliver v. Michigan State Board of Education, 508 F.2d 178, 180 (6th Cir. 1974), cert. denied, 421 U.S. 963, 95 S.Ct. 1950, 44 L.Ed.2d 449 (1975); United States v. English, supra at 1263; United States v. Beneke, supra at 1260; Knapp v. Kinsey, supra at 466. "Displeasure on the part of a defendant in a criminal...