United States v. Boffa, Crim. A. No. 80-36.

• Court: United States District Courts. 3th Circuit. United States District Court (Delaware)
• Writing for the Court: LATCHUM
• Citation: 513 F. Supp. 505
• 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.

513 F. Supp. 505

UNITED STATES of America, Plaintiff,
v.
Eugene BOFFA, Sr. et al., Defendants.

Crim. A. No. 80-36.

United States District Court, D. Delaware.

February 19, 1981.

513 F. Supp. 506

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.

MEMORANDUM OPINION (On Recusal Motion)

LATCHUM, Chief Judge.

This criminal action was initiated in this Court on July 14, 1980, by the Grand Jury's return of an eleven count indictment

513 F. Supp. 507

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

I. Basis for Recusal Motion

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:

1. Judge Latchum presided over the case of Delaware Coca-Cola Bottling Company, Incorporated v. General Teamsters Local Union 326 and handed down an opinion on July 18, 1979 in favor of the plaintiff. (474 F.Supp. 777 (1979)). Subsequently, the Third Circuit Court of Appeals reversed that decision. (June 25, 1980) (624 F.2d 1182, (3rd Cir. 1980)).

2. At the time of the abovementioned proceedings, Francis ("Frank") Sheeran was president of Local 326. He is referred to throughout the District Court opinion wherein one of the major issues was whether the Union should be held responsible for a sympathy strike by production and maintenance employees of Coca-Cola. The decision rendered by the District Court was based upon testimony by Frank Sheeran. The Court held that on the basis of all the evidence the Union was directly responsible for the sympathy strike. Footnote 8 of the District Court's opinion states:

"After hearing Mr. Sheeran's testimony and observing his demeanor, the Court has concluded that his story is not credible. The Court simply does not believe that a president of a union would call a strike by one group of employees at a plant and at the same time give no instructions to the other union employees at the same plant. (See Tr. 79-80). Such a result seems especially unbelievable in this case in view of the fact that Mr. Sheeran admitted that he had told all of the employees to go on strike a few months earlier in connection with the same dispute. (Tr. 84-85). (emphasis supplied in original)

474 F.Supp. 777 at 781.

Footnote 12 continues:

"Mr. Sheeran did testify that he did not believe that the No-Strike clause barred sympathy strikes. (Tr. 81, 93). The Court however, does not credit that testimony. (emphasis supplied in original)

474 F.Supp. 777 at 783.

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

513 F. Supp. 508

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:

4. This personal bias is further evidenced by the fact that the Coca-Cola case was reversed on appeal. The Third Circuit Court of Appeals differed with the Judge with respect to Mr. Sheeran's testimony. It states:

"This testimony is not clear and unmistakable evidence that the president believed the contract waived the right of the production and maintenance employees to strike."

624 F.2d 1182 at 1189. The Appeals Court further stated:

"The district court also relied on the conduct of the parties prior to and during the strike here to determine their understanding of the contract as it related to whether the sympathy strike was prohibited. We of course recognize the danger inherent in utilizing such evidence because it may not reflect the parties' intention of the time of the execution of the contract. Nevertheless, the district court considered such evidence in reaching its result, and we feel constrained to address it.

Id.

5. It is believed by Mr. Sheeran that the Judge has already assessed Mr. Sheeran's demeanor and holds a personal prejudice against him as a credible witness. It is further believed by Mr. Sheeran that Judge Latchum cannot be impartial as a result. The statements made in the above opinion fairly support Mr. Sheeran's belief that Judge Latchum's impartiality has been and will continue to be impeded by this personal prejudice and that Mr. Sheeran as a result will not receive a fair trial.

6. Judge Latchum's impartiality might reasonably be questioned in the event that Mr. Sheeran is called upon to testify in an evidentiary hearing with regard to co-defendant, Robert Rispo. His Honor has already stated that Mr. Sheeran "is not credible" after "hearing his testimony and observing his demeanor." 474 F.Supp. 777, 781, 783, footnotes 8, 12.

II. The Applicable Law

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

513 F. Supp. 509

affidavit and its timeliness. United States v. Townsend, 478 F.2d 1072, 1073 (C.A.3, 1973); Behr v. Mine Safety Appliances...