United States v. Devlin
| Decision Date | 06 May 1968 |
| Docket Number | 12201,Cr. No. 12174 |
| Court | U.S. District Court — District of Connecticut |
| Parties | UNITED STATES of America v. Edmund DEVLIN. UNITED STATES of America v. Ralph "Whitey" TROPIANO. UNITED STATES of America v. William P. GRASSO. |
Jon O. Newman, U. S. Atty., Hartford, Conn., Samuel J. Heyman, Asst. U. S. Atty., New Haven, Conn., and J. Daniel Sagarin, Asst. U. S. Atty., New Haven, Conn., for the United States.
Ira B. Grudberg, of Jacobs, Jacobs, Grudberg & Clifford, New Haven, Conn., for defendant Devlin in Criminal No. 12,174 and defendant Grasso in Criminal No. 12,201.
Howard A. Jacobs, of Jacobs, Jacobs, Grudberg & Clifford, New Haven, Conn., for defendant Tropiano in Criminal No. 12,201.
The essential question presented by defendants' motions, pursuant to 28 U.S. C. § 144, to disqualify the undersigned judge from proceeding further in these cases is whether rulings by the judge fixing bail and on motions to reduce bail show personal bias or prejudice on the part of the judge against defendants.
The Court holds that the affidavits in support of the instant motions are insufficient as a matter of law to show the personal bias or prejudice required for disqualification. The motions are denied as utterly frivolous.
Each motion is supported by an affidavit by the defendant, two affidavits by the defendant's attorneys and an affidavit by "a third year student at the Yale Law School." Defendants also have submitted memoranda of law. The government has submitted a response, in the form of a memorandum of law, in opposition to the motions. No hearing has been held on the instant motions, at the express request of the moving defendants.
The Court makes the following findings of fact and conclusions of law in support of its order denying the motions to disqualify.
As to Defendant Devlin (Criminal No. 12,174)
(1) Devlin, together with 18 other defendants, was indicted by a grand jury in the District of Connecticut on February 20, 1968. The indictment charged Devlin with one count of interstate transportation of stolen goods, in violation of 18 U.S.C. § 2314, and two counts of conspiracy, in violation of 18 U.S.C. § 371, to transport stolen goods in interstate commerce and to receive, sell and dispose of goods moving in interstate commerce.
(2) The indictment was returned on February 20 at the New Haven seat of Court before Judge Zampano who ordered bench warrants issued for the arrest of some defendants, including Devlin, and ordered summonses issued for other defendants. Judge Zampano, at the time the indictment was returned, fixed bail for some defendants and ordered that bail for other defendants, including Devlin, be fixed at the time of arraignment.
(3) Devlin was presented for arraignment before the undersigned on February 21 at the express request of Judge Zampano because Devlin had been the subject of investigation in a matter unrelated to the instant case while Judge Zampano had been United States Attorney in this District.1
(4) Devlin was presented for arraignment at Bridgeport, the official station of the undersigned and the seat of Court where the undersigned happened to be sitting on February 21.
(5) Upon Devlin's being presented for arraignment before the undersigned at Bridgeport on February 21, attorney Grudberg said his client was not ready to plead but was there only to have bail fixed. Accordingly, at attorney Grudberg's request, the matter of plea was continued.2
(6) After a full hearing on February 21 on the matter of bail, at which Devlin was not only present and represented by counsel but actively participated himself, the undersigned fixed bail at $75,000 and imposed a special geographical limitation that Devlin not leave the County of New Haven except upon further order of the Court.3
(7) Despite the provisions for review by a district judge of such a bail order, 18 U.S.C. § 3146(d), and for appeal to the United States Court of Appeals with respect to a bail order, 18 U.S.C. § 3147, no review was sought and no appeal was taken by Devlin with respect to the undersigned's bail order of February 21.
(8) On the same day, and within a few minutes after Devlin's bail was fixed at $75,000, a surety bond in that amount was posted by Barbara A. Jacobs, a professional bondsman.
(9) On March 4, accompanied by attorney Grudberg, Devlin pleaded not guilty before the undersigned to counts two, five and six of the indictment; and, upon application of attorney Grudberg, Devlin was granted until March 22 to file all motions and to claim them for hearing on April 1.
(10) Devlin filed five motions on March 22, all of which were heard by the undersigned on April 1 and were ruled upon between April 1 and April 4. Relief granted included: bill of particulars; production of Devlin's statements; transcription of grand jury minutes; compliance by government with Brady v. Maryland; dismissal of count five; and severance of the trial of counts four and seven (in which Devlin is not named) from the trial of counts one, two, three and six (Devlin being named in counts two and six).
(11) On April 3 Devlin filed a motion for a continuance of the trial before the undersigned from May 7 to May 28 on the ground of attorney Grudberg's preoccupation with criminal appellate work. The undersigned granted this motion to the extent of continuing the trial to May 21.
(12) On April 26 the instant motion was filed by Devlin to disqualify the undersigned from proceeding further in the case on the ground of alleged personal bias or prejudice against Devlin.
As to Defendants Tropiano and Grasso (Criminal No. 12,201)
(13) Tropiano and Grasso, together with one other defendant, were indicted by a grand jury in the District of Connecticut on March 27, 1968. The indictment charged Tropiano and Grasso with two counts of extortion and attempted extortion by the use of threatened force, violence and fear, in violation of the Hobbs Act, 18 U.S.C. § 1951, and one count of conspiracy, in violation of 18 U.S.C. § 371, to commit such acts.
(14) The indictment was returned at the New Haven seat of Court on March 27 at 2:41 P.M. before the undersigned who ordered bench warrants issued for the arrest of the three defendants, including Tropiano and Grasso, and fixed bail at $100,000 for Tropiano, at $25,000 for Grasso and at $5,000 for the third defendant (who has not made a motion to disqualify).
(15) At 6:20 P.M. on March 27, the day the indictment was returned, Tropiano and Grasso were presented before the undersigned for arraignment at New Haven. Such arraignment was at the express request of, and as an accommodation to, attorney Howard A. Jacobs who then represented both Tropiano and Grasso.4
(16) Upon the presentation of Tropiano and Grasso for arraignment before the undersigned on March 27, attorney Jacobs said his clients were not ready to plead but were there only for the purpose of moving to reduce the bail fixed in the case of each defendant earlier in the day. Accordingly, at attorney Jacobs' request, the matter of plea was continued as to each of his clients.5
(17) After a full hearing on March 27 on the matter of bail, at which Tropiano and Grasso were not only present and represented by counsel but actively participated themselves, the undersigned adhered to his prior ruling that bail at $100,000 be fixed for Tropiano and at $25,000 for Grasso. In addition, the undersigned imposed a special condition that each defendant surrender any passport he might have and that no passport be issued to either defendant during the pendency of the action.6
(18) Despite the provisions of 18 U.S. C. § 3146(d) and 18 U.S.C. § 3147 for review of bail orders and for appeal to the United States Court of Appeals with respect to bail orders, no review was sought and no appeal was taken by either Tropiano or Grasso with respect to the undersigned's bail orders of March 27.7
(19) On the same evening of March 27, and within less than an hour after the undersigned had denied the motions by Tropiano and Grasso to reduce their bail of $100,000 and $25,000, respectively, surety bonds in those amounts were posted for each defendant by Barbara A. Jacobs, a professional bondsman.
(20) In the late afternoon of March 27, during the interval between the overnight recess of a criminal trial then pending before the undersigned and the commencement of the hearing requested by attorney Jacobs on his motions to reduce the Tropiano and Grasso bail, the undersigned requested Chief Assistant United States Attorney Samuel J. Heyman to confer with the undersigned in his chambers regarding the calendar of criminal cases pending at the New Haven seat of the Court. He did. These administrative matters were of critical importance in the proper discharge of the undersigned's duties as Chief Judge — particularly since Judge Zampano was then sitting by designation in the Southern District of New York8 and his designation had just been extended through May 3; the undersigned had been designated also to sit in the Southern District9 from April 8 through May 3, thus leaving no judge at the New Haven seat of the Court during that period; and the undersigned had two criminal jury trials under way at the New Haven seat of the Court on March 27,10 as well as an extensive unfinished calendar of criminal cases. These were the matters, and the only matters, concerning which Mr. Heyman conferred with the undersigned, at the undersigned's request, in chambers on March 27 prior to the Tropiano and Grasso bail hearing. Specifically, the only information brought to the attention of the undersigned regarding Tropiano and Grasso was that disclosed in open Court as reflected by the transcript of the bail hearing11 which began at 6:20 P.M. and ended at 7:40 P.M. on March 27.
(21) Tropiano and Grasso each pleaded not guilty to counts one, two and four of the indictment before the undersigned on ...
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