United States v. Boffa
Decision Date | 19 February 1981 |
Docket Number | Crim. A. No. 80-36. |
Parties | UNITED STATES of America, Plaintiff, v. Eugene BOFFA, Sr. et al., Defendants. |
Court | U.S. District Court — District of Delaware |
Joel M. Friedman, Philadelphia, Pa., Edward J. Levitt, Washington, D. C. and Ronald G. Cole, Philadelphia Strike Force, Philadelphia, Pa., Kenneth F. Noto, U. S. Dept. of Justice, Washington, D. C. and James W. Garvin, Jr., U. S. Atty., Wilmington, Del., for plaintiff.
Glenn A. Zeitz, Zeitz & Zeitz, Philadelphia, Pa., for defendant Francis Sheeran.
This criminal action was initiated in this Court on July 14, 1980, by the Grand Jury's return of an eleven count indictment against Eugene Boffa, Sr., Francis Sheeran, Louis Kalmar, Sr., Robert Boffa, Sr., Chandler Lemon, David Mishler, and Robert Rispo.1 Count I charges all the defendants with conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act ("RICO") in violation of 18 U.S.C. § 1962(d). Count II charges all the defendants with a substantive violation of RICO, 18 U.S.C. § 1962(c). Counts III and IV charge defendant Sheeran as President of Local 326, International Brotherhood of Teamsters, with violating certain criminal provisions of the Taft-Hartley Act, 29 U.S.C. § 186(b)(1) and (d). Counts V through XI charge defendants Eugene Boffa, Sr., Sheeran, and Lemon with mail fraud in violation of 18 U.S.C. §§ 1341 and 2.
Defendant Sheeran, who was arraigned on July 23, 1980, and entered a not guilty plea to all counts,2 on February 10, 1981, filed a motion and supporting affidavit to have this Court recuse itself from acting as presiding judge in this jury case under 28 U.S.C. §§ 144, 455(a) and 455(b)(1).3
Sheeran's recusal affidavit, accompanied by his attorney's certificate stating that his counsel believes that the affidavit was made in good faith and was timely, reads, in pertinent part, as follows:
Based on the foregoing facts, the affidavit suggests: (1) that this Court harbors "a personal bias or prejudice against Sheeran" within the meaning of 28 U.S.C. § 144; (2) that its "impartiality might reasonably be questioned" under 28 U.S.C. § 455(a); and (3) that it "has a personal bias or prejudice concerning" Sheeran "or personal knowledge of disputed evidentiary facts concerning the proceeding" within the language of 28 U.S.C. § 455(b)(1), and concludes that for any one or all of these reasons the Court should disqualify itself from presiding in this criminal case.
In further support of his position, Sheeran's affidavit continues:
There is no question that a criminal defendant "is entitled to the cold neutrality of an impartial judge." United States v. Orbiz, 366 F.Supp. 628, 629 (D.P.R. 1973). Indeed, trial before an unbiased judge is essential to due process. Johnson v. Mississippi, 403 U.S. 212, 216, 91 S.Ct. 1778, 1780, 29 L.Ed.2d 423 (1971). However, these sound legal principles cannot be advanced so broadly as to permit either the government or a defendant under the guise of a motion to recuse to engage in judge-shopping. Mavis v. Commercial Carriers, Inc., 408 F.Supp. 55, 61 (C.D.Cal.1975); United States v. Devlin, 284 F.Supp. 477, 482 (D.Conn.1968).
28 U.S.C. § 144 provides4 that a district judge must recuse himself whenever a party to a proceeding before him files a timely and sufficient affidavit that the judge has a personal bias or prejudice against him or in favor of any adverse party. Thus, this Court against whom the § 144 affidavit is filed must pass on the legal sufficiency of the facts alleged in the affidavit and its timeliness. United States v. Townsend, 478 F.2d 1072, 1073 (C.A.3, 1973); Behr v. Mine Safety Appliances Co., 233 F.2d 371, 372 (C.A.3, 1956). In passing on the recusal affidavit on the grounds of personal bias and prejudice, the facts alleged in the affidavit must be accepted as true and the judge may not question either the truth of the allegations or the good faith of the affidavit, Berger v. United States, 255 U.S. 22, 33-35, 41 S.Ct. 230, 233, 65 L.Ed. 481 (1921); Simmons v. United States, 302 F.2d 71, 75 (C.A.3, 1962), even though the judge may know to a certainty that the allegations of personal prejudice are false. Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481 (1921); Hodgson v. Liquor Salesman Union, 444 F.2d 1344, 1348 (C.A.2, 1971). The test is, assuming the truth of the facts alleged, would a reasonable person conclude that a personal as distinguished from a judicial bias exists. Mims v. Shapp, 541 F.2d 415, 417 (C.A.3, 1976). Personal bias is defined as an attitude arising from extrajudicial sources that results "in an opinion on the merits on some basis other than what the judge learned from his participation in the case," United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 1710, 16 L.Ed.2d 778 (1966), or results in an "attitude towards petitioner that is significantly different from and more particularized than the normal, general feelings of society at large against convicted wrongdoers." Mims v. Shapp, supra, at 417.
Turning now to 28 U.S.C. § 455, it provides in pertinent part as follows:
While § 455 is self-enforcing on the part of a judge, it also may be asserted by a party by filing a motion to recuse. Davis v. Board of School Commissioners, 517 F.2d 1044, 1051 (C.A.5, 1975); Rapp v. Van Dusen, 350 F.2d 806, 809 (C.A.3, 1965). Section 455(a) is general in nature and does not rest on the personal bias or prejudice structure of either § 144 or § 455(b)(1). Parrish v. Board of School Commissioners, 524 F.2d 98, 103 (C.A.5, 1975). It is broader than § 144 since disqualification is warranted not only where there is personal bias, but where the impartiality of the judge might reasonably be questioned. United States v. Ritter, 540 F.2d 459, 462 (C.A.10, 1976). Thus, there must be a factual basis for disqualifying a judge under § 455(a) and the facts...
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