United States v. Gross

• Decision Date: 15 November 1968
• Docket Number: No. 68-Cr-509-EC.,68-Cr-509-EC.
• Citation: 298 F. Supp. 449
• Parties: UNITED STATES of America, Plaintiff, v. Everett W. GROSS, L. Mary Gross, Paul J. Brunet, Harlan F. Pygman and Joseph Pygman, Defendants.
• Court: U.S. District Court — Northern District of Iowa

298 F. Supp. 449

UNITED STATES of America, Plaintiff, v. Everett W. GROSS, L. Mary Gross, Paul J. Brunet, Harlan F. Pygman and Joseph Pygman, Defendants.

No. 68-Cr-509-EC.

United States District Court N. D. Iowa, E. D.

October 9, 1968.

Order November 15, 1968.

Asher E. Schroeder, U. S. Atty., Sioux City, Iowa, for plaintiff.

Robert Matias, Cedar Rapids, Iowa, for L. Mary Gross.

Gene V. Kellenberger, Cedar Rapids, Iowa, for Everett W. Gross.

John R. Hughes, Cedar Rapids, Iowa, for Joseph Pygman.

Michael O. McDermott, Cedar Rapids, Iowa, for Paul J. Brunet.

A. E. Sheridan, Waukon, Iowa, for Harlan F. Pygman.

ORDER

McMANUS, Chief Judge.

This matter is before the court on defendant Everett W. Gross' "Declination of Appointment of Counsel" filed September 24, 1968, plaintiff's reply thereto filed September 30, 1968, said defendant's "Affidavit of Disqualification" filed August 12, 1968, "Motion to Vacate Trial Setting" and "Amendment to Motion to Produce Books and Matters" filed September 24, 1968, and "Supplemental Affidavit of Disqualification" filed September 25, 1968.

Because of its bearing on the "Affidavits of Disqualification" and the "Motion to Vacate Trial Setting," the court will first rule on the "Declination."

DECLINATION OF APPOINTMENT OF COUNSEL

An examination of the record discloses that on July 31, 1968, Mr. A. E. Sheridan of Waukon, Iowa, an attorney of defendant's own choosing, appeared before this court on behalf of and with the defendant for the purpose of arraignment only. Defendant is a resident of Helena, Montana, and Waukon is approximately 120 miles from Cedar Rapids.

Immediately after his arraignment that afternoon, the defendant orally requested the appointment of counsel and pursuant to the Criminal Justice Act, 18 U.S.C. § 3006A, he executed CJA Form 3a, Affidavit of Financial Status. In conjunction with his request Mr. Gross asked that the court appoint Mr. Sheridan to represent him and was advised by the court that it would not necessarily do so.

On August 1, 1968, Mr. Gene V. Kellenberger of Cedar Rapids, Iowa, an experienced and competent attorney, was appointed to represent Mr. Gross pursuant to this District's Plan¹ under the Criminal Justice Act. The Order (CJA Form 3a) appointing Mr. Kellenberger provided in part as follows:

"* * * IT IS ORDERED that the following member of the Bar is hereby appointed to represent the defendant in all matters pertaining to this action in the district court unless and until relieved by order of the district court * * *"

On September 24, 1968, Mr. Gross filed pro se "Declination of Appointment of Counsel" as follows:

"Comes now defendant Everett W. Gross, and respectfully declines the appointment of Gene Kellenberger, Attorney, 615 Merchants Bank Building, Cedar Rapids, Iowa, as counsel for this defendant in the above entitled matter, and states that Gene Kellenberger does not now, nor has he at any time represented this defendant in this matter. All filings in this matter are made by this defendant pro se.

Defendant Everett W. Gross respectfully asks that no other attorney be appointed for him in this matter until he makes written request of the Court for such appointment."

As a general rule, the right to court-appointed counsel does not carry with it the right to select a particular attorney. United States v. Burkeen, 355 F.2d 241 (6th Cir. 1966). In the Northern District of Iowa, under the Criminal Justice Act of 1964, the choice of court appointed counsel is for the court and not for the defendant. Par. 2 c. fn. 1, supra; United States v. Davis, 365 F.2d 251 (9th Cir. 1966). Absent a showing of good cause the district court may not reject an appointed attorney and appoint another at a later stage of the proceedings. Par. 2 c. fn. 1, supra; see United States v. Abbamonte, 348 F.2d 700 (2d Cir. 1965); United States v. Curtiss, 330 F.2d 278 (2d Cir. 1964); Johnson v. United States, 318 F.2d 855 (8th Cir. 1963). Furthermore, the right of a defendant to discharge court-appointed counsel and his right to defend pro se are not absolute but are discretionary with the court within the bounds of orderly administration of justice. 28 U.S.C.A. § 1654, cases cited n. 7; United States v. Davis, 260 F.Supp. 1009 (D.C. Tenn.1966); Ann. 157 A.L.R. 1226, cases cited and supplemented; see also 77 A.L.R.2d 1234.

An examination of Mr. Gross' "Declination" discloses that it is neither an unequivocal discharge nor waiver noting that he conditionally "* * * asks that no other attorney be appointed for him in this matter until he makes written request of the court for such appointment." (emphasis added). In addition, it wholly fails to allege any grounds or cause to warrant this court's rejection of Mr. Kellenberger's appointment.

From the record in this case it appears to the court that this defendant has had fair representation by competent assigned counsel who has proceeded according to his best judgment and the usually accepted canons of criminal trial practice and that no cause exists for rejection.

MOTION TO VACATE TRIAL SETTING

As to this motion it is noted that Mr. Kellenberger was appointed to represent Mr. Gross on August 1, 1968; that since said date defendant has been at liberty except for the period of August 12, 1968, to September 21, 1968, during which time he was incarcerated in Cedar Rapids, Iowa, the city of his attorney's residence. On August 23, 1968, at the time of the arraignment of the three remaining defendants, the trial date for this case was set for October 21, 1968.

Considering all the circumstances including the fact that the Government has long heretofore made complete disclosure of all documentary evidence upon which it relies, the court is of the view that defendant's motion is not well taken.

AFFIDAVITS OF DISQUALIFICATION

Mr. Gross' "Affidavit of Disqualification" filed August 12, 1968, and his "Supplemental Affidavit of Disqualification" filed September 25, 1968, were filed pro se, apparently pursuant to § 144 of Title 28.² This statute has been construed by the courts on many occasions and the legal principles involved in its application are well settled.

The purpose of the statute is to secure for all litigants a fair trial before a fair judge completely devoid of any personal bias or prejudice. The mere filing of an affidavit of prejudice does not automatically disqualify a judge. He may pass only upon its legal sufficiency. The affidavit itself must be strictly construed and state facts rather than conclusions. The facts so stated must show a prejudice or bias on the part of the judge of a personal as opposed to a judicial origin. United States v. Hanrahan, 248 F.Supp. 471 (D.C. 1965) and cases cited therein.

When presented with such an affidavit a judge may not refuse to recuse himself by inquiring into the truth or falsity of the facts averred. In other words, the judge is denied that "day in court" to whose provision for others he owes his very office. If the affidavit and certificate of counsel strictly follow the statutory requirements the judge has no alternative but to recuse himself no matter how defamatory the charges may be and even if they are known to the court to be false. On the other hand, if the statutory requirements are not satisfied it is the duty of the judge to refuse to disqualify himself. United States v. Hanrahan, supra.

The statutory requirement that an affidavit of prejudice be accompanied by a certificate of good faith filed by counsel of record is to prevent abuse and is founded on the assumption that a member of the Bar or counsel of record will not indulge in reckless disregard of the truth. Barry v. Sigler, 373 F.2d 835 (8th Cir. 1967); Cox v. United States, 309 F.2d 614 (8th Cir. 1962); United States v. Onan, 190 F.2d 1 (8th Cir. 1951); United States v. Hanrahan, supra.

With the foregoing principles in mind the court has examined both affidavits.³ Neither is accompanied by a certificate of counsel of record stating that it is made in good faith. Absent such a certificate, the affidavits are insufficient on their face, 28 U.S.C. § 144 Mayes v. United States, 177 F.2d 505 (8th Cir. 1949); In re Union Leader Corp., 292 F.2d 381 (1st Cir. 1961). And though filed pro se the defendant is not relieved of this requirement. Boyance v. United States, 275 F. Supp. 772 (1967); Beland v. United States, 117 F. 2d 958 (5th Cir. 1941).

Furthermore, the second affidavit filed September 25, 1968, is plainly in disregard of the statutory mandate that a party "may file only one such affidavit in any case." 28 U.S.C. § 144. Finally, a careful reading of both affidavits fails to disclose any factual allegations of personal bias or prejudice.

For the foregoing reasons, it is the court's view that said affidavits are legally insufficient.

AMENDMENT TO MOTION TO PRODUCE BOOKS AND MATTERS

Defendant seeks copies of certain civil service examinations used during the years years 1962 to 1966 inclusive and it is the view of the court that said matters may be relevant to the issues in this case.

It is therefore

ORDERED

1. Defendant Everett W. Gross' "Declination of Appointment of Counsel" and "Motion to Vacate Trial Setting" filed September 24, 1968, are denied.

2. Defendant's "Affidavit of Disqualification" filed August 12, 1968, and "Supplemental Affidavit of Disqualification" filed September 25, 1968, are denied and stricken.

3. By not later than Tuesday, October 15, 1968, counsel for plaintiff shall mail copies of said civil service examinations for the years 1962 to 1966 inclusive to

the defendant personally at his last known address and to his attorney of record, Gene V. Kellenberger.

4. The Clerk shall mail a copy of this order and all subsequent filings in this case to the defendant, Everett W. Gross personally at his last known address as well as to his counsel of record, Mr. Gene V. Kellenberger of Cedar Rapids, Iowa.

APPENDIX A

Affidavit filed August 12, 1968, omitting...