United States v. Beneke

• Decision Date: 12 October 1970
• Docket Number: No. 1-70-Crim-92.,1-70-Crim-92.
• Citation: 317 F. Supp. 1326
• Parties: UNITED STATES of America, Plaintiff, v. Brad K. BENEKE, Defendant.
• Court: U.S. District Court — District of Minnesota

317 F. Supp. 1326

UNITED STATES of America, Plaintiff, v. Brad K. BENEKE, Defendant.

No. 1-70-Crim-92.

United States District Court, D. Minnesota, First Division.

October 12, 1970.

Robert G. Renner, U. S. Atty., for plaintiff.

Brad K. Beneke, pro se.

ORDER

DENYING MOTION UNDER 28 U.S.C.A. § 144

DEVITT, Chief Judge.

Brad K. Beneke, charged in an indictment with two others, of attempting, by force and violence, to interfere with the administration of the Military Selective Service Law in violation of 50 App. U.S.C. § 462(a), has filed an affidavit under 28 U.S.C. § 144 claiming "a personal bias or prejudice" against him by the undersigned judge to the end that this court recuse itself from proceeding further with his case.

The defendant's affidavit recites his contempt of court conviction by the undersigned judge on April 13, 1970. It was based on his courtroom misbehaviour while a spectator at a criminal trial. United States v. John Doe, 3-70-Crim-62. The defendant's affidavit states:

"I believe that the court action has resulted in substantial personal bias and prejudice between Judge Devitt and myself,"

and

"I feel that this bias and prejudice will dominate his decisions in this case and prevent me and my co-defendants from obtaining a just and fair trial."

The affidavit is set out in full and appended as Exhibit A.

In passing on the motion for disqualification, the court must accept the facts stated in the affidavit as true and from them make a legal conclusion as to their sufficiency under the law. Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481 (1921).

The disqualification statute, 28 U.S.C. § 144, by its terms, requires that the bias to disqualify must be personal as distinguished from judicial. In 1966 the United States Supreme Court held that the bias must stem from an extra-judicial source and result in an opinion on the merits on some basis other than what the judge learned in his judicial capacity. United States v. Grinnell Corp., 384 U.S. 563, 86 S.Ct. 1698, 1710, 16 L.Ed.2d 778 (1966). The needed personal bias must be of extra-judicial origin, an attitude derived from without the four corners of the courtroom. Federal Practice and Procedure 902, and cases cited there.

Here the defendant's request for recusation is based solely on the court's previous exposure to the defendant in a judicial capacity. It would be anomalous if the statute were interpreted so as to automatically disqualify a judicial officer from presiding in separate and unrelated matters involving the same defendant. "The statute * * * never contemplated crippling our courts by disqualifying a judge solely on the basis of a bias (or state of mind * * *) against wrongdoers, civil or criminal, acquired from evidence presented in the course of judicial proceedings before him." Craven v. United States, 22 F.2d 605 (1st Cir. 1927).

The Ninth Circuit Court of Appeals has stated that:

"The section (144) is directed to personal bias, which means an attitude of extra judicial origin. A mere showing of prior judicial exposure to the present parties or questions will not invoke the section." Lyons v. United States, 325 F.2d 370, 376.

Our own Eighth Circuit Court of Appeals, in a 1967 case, observed pertinently in this connection:

"Merely because a trial judge is familiar with a party and his legal difficulties through prior judicial hearings, or has found it necessary to cite a party for contempt, does not automatically or inferentially raise the issue of bias." Barry v. Sigler, 373 F.2d 835, 836 (1967).

The United States District Court for the Southern District of New York similarly denied a disqualification request under 28 U.S.C. § 144 where the judge had previously held the defendant in contempt. Mirra v. United States, 255 F Supp. 570 (1966).

An examination of the decided cases uniformly reflects the same interpretation of the statute. Federal Practice and Procedure, Barron & Holtzoff (Wright Ed.) § 902 and cases cited there; 28 U.S.C. § 144 and cases cited there and in the pocket part.

It is thus clear that the affidavit of defendant is not legally sufficient because it does not reflect the statutorily required personal bias. In such case I may not disqualify myself, even if so inclined, for the law is that I have the same obligation not to disqualify myself where the showing is not legally sufficient as I do to disqualify myself where the showing is legally sufficient. Rosen v. Sugarman, 357 F.2d 794, 797 (2nd Cir. 1966).

The motion is denied.

EXHIBIT A

United States District Court District of Minnesota First Division

United States of America 1-70 CR 92 vs. AFFIDAVIT Brad K. Beneke State of Minnesota | > SS County of Ramsey |

Brad K. Beneke, being first duly sworn, deposes and states as follows:

1) This defendant presents this affidavit pursuant to Title 28 U.S.C., Section 144, in order to require that the judge before whom this matter is pending proceed no further, but shall assign this matter to another judge. The reason for this being that the judge to whom this matter has been assigned has a personal bias or prejudice against this defendant.

2) This defendant presents to the court that the bias or prejudice on the part of the judge arises by reason of the following points:

On the thirteenth day of April 1970 this defendant was a spectator observing the trial of one Brian Wells charged with attempting to interfere with the Military Selective Service Act of 1967 by burning records in a Selective Service office in St. Peter, Minnesota. The offense charged in that case is identical to the offense charged against the defendant who is submitting this affidavit.

At the time of the morning recess, it was claimed by a United States Marshall that this defendant did not rise as the judge left the courtroom. When the court was again called into session, Judge Devitt, the presiding judge in that case, asked who the young man was that had refused to stand at the recess. A United States Marshall identified this defendant as that person. I was seated in the front row of the court next...