United States v. Cerrella

• Decision Date: 21 January 1982
• Docket Number: No. FL 75-28-Cr-NCR.,FL 75-28-Cr-NCR.
• Citation: 529 F. Supp. 1373
• Parties: UNITED STATES of America v. John Joseph CERRELLA a/k/a Johnny "Sideburns", Thomas Joseph Chiantese a/k/a Tommy "C".
• Court: U.S. District Court — Southern District of Florida

529 F. Supp. 1373

UNITED STATES of America v. John Joseph CERRELLA a/k/a Johnny "Sideburns", Thomas Joseph Chiantese a/k/a Tommy "C".

No. FL 75-28-Cr-NCR.

United States District Court, S. D. Florida, Ft. Lauderdale Division.

January 21, 1982.

Strike Force, Dept. of Justice, Miami, Fla., for plaintiff.

Stephen J. Finta, Fort Lauderdale, Fla., for Cerrella.

ROETTGER, District Judge.

THIS CAUSE is before the court on a pleading styled "Verified Motion to Disqualify", filed by defendant John Joseph Cerrella, and certified by his attorney, Stephen J. Finta, as made in good faith. The pleading seeks this court's recusal pursuant to 28 U.S.C. §§ 144, 455.

Stripped to its bare bones, defendant's contention is that the court should disqualify itself from hearing defendant's prospective post-conviction motions because defendant feels the trial judge may believe defendant is trying to kill him.

Although the court denies any personal bias or prejudice in past rulings regarding Mr. Cerrella, the trial judge has reason to believe that not only has defendant Cerrella expressed intentions to murder this judge but after the rulings apparently has let a "contract" to effect that objective.

Although the motion is legally insufficient to meet the requirements of 28 U.S.C. § 144, the court finds under 28 U.S.C. § 455(a) that its impartiality "might reasonably be questioned" and will disqualify itself from hearing further matters involving Mr. Cerrella.

The question remains whether a defendant can achieve recusal by threatening, at the minimum, the life of the trial judge in his case and thereafter still enjoy the benefit of section 455(a).

THE TRIAL

Defendant John Joseph Cerrella, a/k/a Johnny "Sideburns," and his co-defendant, Thomas Joseph Chiantese, a/k/a Tommy "C", were indicted on May 13, 1975, on two counts involving a scheme to extort money. The court granted a judgment of acquittal to both men on the second count under 18 U.S.C. § 1510, but defendants were convicted of the Hobbs Act extortion count, 18 U.S.C. § 1951, by a jury on Sept. 4, 1975.

During the trial, at which the undersigned presided, the prosecution presented an overwhelming case of strong-arm extortion. By threats of physical violence, defendant and his co-defendant tried to force the operator of a successful parking-lot concession at a large Fort Lauderdale supper club to make them one-third partners. The concession operator had no desire to sell and, of course, he was to receive no consideration for the one-third interest sought by defendants.

The parking-lot concession operator went to the police and for subsequent meetings had a radio transmitter hidden on his person; consequently, the jury had the benefit of hearing the extortion by tapes as well as by the victim's testimony.

Upon hearing the testimony, the jurors reacted with the most shocked facial expressions this court has seen in any case.

Sentence was imposed immediately after conviction (as permitted by the Rules of Criminal Procedure in effect at that time) because the blatant criminal conduct revealed at the trial precluded any need for a pre-sentence investigation. The court notes this case was the only one in which this trial judge found a pre-sentence investigation to be unnecessary. The Court of Appeals specifically rejected defendant's contention that declining to order a pre-sentence investigation was reversible error. United States v. Chiantese, 582 F.2d 974, 981 (5th Cir. 1978). Mr. Cerrella was sentenced to 16 years; his co-defendant to 13.

The media covered both arrest and trial with stories linking the two defendants to organized crime, some of which are included as exhibits to defendant's motion to disqualify.

POST-SENTENCING MATTERS

The defendants' convictions were reversed on appeal, United States v. Chiantese, 546 F.2d 135 (5th Cir. 1977), but rehearing en banc was granted; the full panel remanded to the original three-judge panel after vacating part of its reversal, 560 F.2d 1244 (5th Cir. 1977). The original panel then affirmed the conviction, 582 F.2d 974 (5th Cir. 1978). Certiorari was denied by the United States Supreme Court, 441 U.S. 922, 99 S.Ct. 2030, 60 L.Ed.2d 395 (1979).

Defendant Cerrella made two motions for reduction of sentence during 1979, both of which were denied. In September of 1980, he filed a motion for correction of sentence, which was denied by order dated October 3, 1980.

A few weeks after the denial of Mr. Cerrella's motion for correction of sentence, law enforcement officers informed the court that defendant Cerrella had placed a contract with certain hit men to have the trial judge killed. The trial judge was put under around-the-clock protection and security by the United States Marshals Service immediately; that protection has been in effect from that day forward.

In the spring of 1981, Mr. Cerrella's co-defendant, Mr. Chiantese, filed a motion for correction of sentence, which the court denied. Apparently, Mr. Chiantese is not linked to the threat.

Mr. Cerrella's motion to disqualify alleges that "approximately on or about the month of March, 1981, and continuing thereafter," the Department of Justice's Strike Force "did investigate an alleged `contract' or `hit' that the defendant allegedly put on Judge Roettger for $300,000." (emphasis and quotation marks in original). The defendant further asserts that the investigation was "made known" to the media and that defendant's counsel attempted to "ascertain the date of these alleged threats" from law enforcement agents, but that the Strike Force "refused to divulge these dates, which upon information and belief coincide not only with defendant's 2255 motion, but also the defendant's co-defendant's 2255 motion; which Judge Roettger denied."

The court notes these matters only to emphasize that Mr. Cerrella's various motions were all denied before the court was aware of any threats; the only matters that have come before the court since then are Mr. Chiantese's motion and the motion that is the subject of this opinion.

MOTION BEFORE THE COURT

Mr. Cerrella's motion consists of 25 numbered paragraphs. The first six paragraphs recite the chronology of the case and note that "the local newspapers were riddled with articles about the defendant and his being a member of the mafia." Paragraph number five asserts that "at the inception of trial, the defendant's counsel, Alan Weinstein, Esquire, attempted to alleviate any question the court had about this question, by raising the matter to the Honorable Judge Roettger. Judge Roettger responded that Mr. Weinstein had told him the same thing about another of his clients and a couple of days later the court found out he had connections to organized crime."

Paragraphs seven through eighteen of the motion are subtitled "Defendant's Contention and His Legal Dilemma" and assert that he wishes to attack the length of the sentence and the fact that it was imposed without a pre-sentence investigation through "the methodology of extraordinary writs." The subsection continues that the trial judge's actions regarding sentencing and post-conviction motions "leave no doubt as to the existence of an extra-judicial bias or prejudice against the defendant." The allegations regarding the contract, recited above, are included in this section, as well. Paragraph seventeen reads "that under the existing factual scenario, and in view of prior comments that Judge Roettger has made about the defendant (see exhibits attached hereto), uncharacteristically sic, the Honorable Judge Roettger should disqualify himself under 28 U.S.C. secs. 144, 455."

The exhibits to which paragraph seventeen refers were filed with the court a month after the motion itself, after repeated calls from the court's staff. They consist of six stories gleaned from local newspapers during the time of trial, sentencing and appeal. Although there is no date on one of the stories, and the date on another is blurred, it is apparent that none of the clippings dates from more recently than June of 1977. The undersigned is mentioned by name in only two of the stories, one of which merely states the sentences imposed. The other, written the day after conviction, quotes the undersigned as saying a pre-sentence investigation "wouldn't serve any purpose in this case" because the facts had been heard at trial, and noted that the undersigned granted a judgment of acquittal as to the obstruction count. All of the newspaper accounts link the defendants to organized crime, and some are quite graphic in their description of the extortion scheme and the testimony at trial.

Paragraphs nineteen through twenty-four are subtitled "Law to be Applied" and cite a total of nine cases, none of which is binding on the court and only one of which is from a district within the Fifth Circuit.¹ The scant "black-letter" statements of law to which the citations apply, however, are valid under this circuit.

Paragraph twenty-five consists of a certificate of good faith of attorney Stephen Finta, who filed the motion on behalf of defendant Cerrella. Mr. Cerrella's statement that the "allegations are true and correct to the best of his information, knowledge and belief" is notarized, but Mr. Finta's is not.

THE LAW

Defendant Cerrella's motion seeks relief under both 28 U.S.C. § 144 and 28 U.S.C. § 455. The motion draws no distinction between the two sections, nor does it cite the subsection of section 455 upon which defendant relies.

Section 144 provides for disqualification "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 ... against him."

Under section 455(a), a judge shall disqualify himself "in any proceeding in which his impartiality might reasonably be questioned." Section 455(b)(1) adds that "he shall also disqualify himself ... where he has a personal bias or prejudice...