United States v. Hanrahan

• Citation: 248 F. Supp. 471
• Decision Date: 21 December 1965
• Docket Number: Cr. No. 269-62.
• Parties: UNITED STATES of America, Plaintiff, v. Gene Z. HANRAHAN et al., Defendants.
• Court: U.S. District Court — District of Columbia

248 F. Supp. 471

UNITED STATES of America, Plaintiff, v. Gene Z. HANRAHAN et al., Defendants.

Cr. No. 269-62.

United States District Court District of Columbia.

December 21, 1965.

COPYRIGHT MATERIAL OMITTED

Donald A. Smith, Asst. U. S. Atty., for plaintiff.

Charles B. Murray, Washington, D. C., for defendants.

SIRICA, District Judge.

On July 22, 1959, three District of Columbia residents were indicted in Puerto Rico for fraudulent use of the mail. The trial was set for November 16, 1959, in Puerto Rico. However, on October 28, 1959, the defendants moved for a change of venue because prejudicial pretrial publicity against them in Puerto Rico made a fair trial there impossible. On May 24, 1960, this motion was granted and on August 5, 1960, defendants were arraigned in the United States District Court for the District of Columbia.¹ Subsequently, the government dismissed the original indictment, and on March 26, 1962, a new indictment was returned in the District of Columbia alleging the same mail fraud scheme but involving different mailings. Prior to and during the trial in this Court, the defendants moved for dismissal of the indictment on the grounds that they had been denied a speedy trial. These motions were denied because the Court felt the second indictment charged different offenses than those charged in the first indictment, and that different prosecutions were involved. The defendants were convicted by a jury after a trial of approximately three months duration. These convictions were appealed to the United States Court of Appeals for the District of Columbia Circuit, and the case was remanded to this Court.² This Court now must hold a hearing to determine whether the prosecutor exercised reasonable diligence in seeking the second indictment, and why the original indictment was brought in Puerto Rico instead of the District of Columbia, where the defendants lived and where the offense centered, and through the answers to these and other questions, decide whether the defendants were deprived of a speedy trial.

On November 5, 1965, and prior to the scheduling of a hearing on the questions raised by the Court of Appeals, this Court was presented by the defendant Gene Z. Hanrahan, with an affidavit of prejudice and an application for the designation of another judge to hear any further proceedings.³ This affidavit was filed pursuant to 28 U.S.C. § 144 (1948) which provides:

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 either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.

The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.

In a memorandum opinion filed November 15, 1965,⁴ this Court found that the affidavit filed by the defendant Hanrahan complied with the timeliness requirement of the statute. However, the affidavit was not accompanied by a certificate of counsel of record, and for this reason it was deemed to be legally insufficient. It appearing, however, that the defendant Hanrahan was not represented by counsel when the affidavit was filed, the Court allowed the defendant two weeks in which either to retain counsel, or seek the appointment thereof, and to obtain the required certificate. Counsel for defendant Hanrahan having now entered an appearance and having filed a certificate to accompany the application and affidavit, the Court must now determine whether, on the basis of the papers filed, it must disqualify itself from proceeding further in this case. For the reasons which will be hereinafter stated, the Court is of the opinion that it must refuse to disqualify itself, and that the affidavit should be stricken from the record as legally insufficient.

"Democracy must, indeed, fail unless our courts try cases fairly, and there can be no fair trial before a judge lacking in impartiality and disinterestedness." In re J. P. Linahan, Inc., 138 F.2d 650, 651 (2d Cir. 1943) (Frank, J.). The existence of a fair and impartial tribunal is a basic requirement of due process. See In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955). The purpose, then, of the statute is to secure for all litigants a fair and impartial trial before a judge completely devoid of any personal bias or prejudice. Mitchell v. United States, 126 F.2d 550, 552 (10th Cir.), cert. denied, 316 U.S. 702, 62 S.Ct. 1307, 86 L.Ed. 1771 (1942). It is interesting to note that when seeking leave to appeal in forma pauperis,⁵ and in their brief on appeal,⁶ defendant Hanrahan and his co-defendants did not allege that they were deprived of a fair and impartial tribunal, or that they were prejudiced by any comments or bias on the part of the Court. Furthermore, under the plain error rule, the Court of Appeals is presumed to have searched the record, and would be expected to have discovered any bias or prejudice affecting the defendants' rights, if such bias or prejudice existed. No such finding was made.

What has been said should indicate to the average intelligent reader the frivolous nature of the charges made against this Court by defendant Hanrahan. But to satisfy its curiosity, the Court caused to be read the entire transcript of the testimony in this case, amounting to more than six thousand pages, and has personally read every comment it made during the course of this protracted and difficult trial, which by, the wildest stretch of the imagination, could possibly be construed to indicate any personal bias or prejudice against any of the defendants. The result of this exhaustive examination indicates to the Court that not once during the three months of trial did it say or do anything, in or out of the presence of the jury, that could possibly be interpreted as indicating any personal bias or prejudice on its part against defendant Hanrahan or any defendant.

Notwithstanding the foregoing, when presented with an application and affidavit such as this one, a Court may not pass upon the truth or falsity of the allegations, but must accept them as true for the purpose of determining the legal sufficiency of the affidavit. See Berger v. United States, 255 U.S. 22, 26, 41 S.Ct. 230, 65 L.Ed. 481 (1921); Ex parte American Steel Barrel Co., 230 U.S. 35, 33 S.Ct. 1007, 57 L.Ed. 1379 (1913); Korer v. Hoffman, 212 F.2d 211, 45 A.L.R.2d 930 (7th Cir. 1954). "He is precluded from refusing to recuse himself by any inquiry into or discovery about the truth or falsity of the facts alleged. In other words, the judge is denied that `day in court' to whose provision for others he owes his very office." United States v. Parker, 23 F.Supp. 880, 882-883 (D.N.J.1938), aff'd, 103 F.2d 857 (3rd Cir.), cert. denied, 307 U.S. 642, 59 S.Ct. 1044, 83 L.Ed. 1522 (1939). "In the last analysis, the statute involved is not concerned with the actual state of mind of the judge or litigant, but only with what the latter is willing to incorporate in an affidavit and counsel to indorse." Johnson v. United States, 35 F.2d 355, 357 (D.C.W.D.Wash.1929). If the affidavit, application and certificate of counsel comply with the statutory standards, 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. See Morse v. Lewis, 54 F.2d 1027, 1031 (4th Cir.), cert. denied, 286 U.S. 557, 52 S.Ct. 640, 76 L.Ed. 1291 (1932); Freed v. Inland Empire Ins. Co., 174 F.Supp. 458, 461 (D.Utah 1959). On the other hand, if the statutory requirements are not satisfied, it is the duty of the judge to refuse to disqualify himself. See Simmons v. United States, 302 F.2d 71 (3rd Cir. 1962); In re Federal Facilities Realty Trust Co., 140 F.Supp. 522, 524 (N.D. Ill.1956). As stated in In re Union Leader Corp., 292 F.2d 381, 391 (1st Cir. 1961), "There is as much obligation upon a judge not to recuse himself when there is no occasion as there is for him to do so when there is." Thus, the mere filing of an affidavit of prejudice does not automatically disqualify a judge, United States v. Gilboy, 162 F.Supp. 384, 388 (M.D.Pa.1958), but the judge must pass upon the legal sufficiency of the facts well-pleaded, see Green v. Murphy, 259 F.2d 591, 593 (2d Cir. 1958); Eisler v. United States, 83 U.S.App.D.C. 315, 170 F.2d 273, 278 (1948).

While factual allegations may not be controverted, it appears to be beyond dispute that the statutory requirements must be strictly followed, see, e. g., Scott v. Beams, 122 F.2d 777, 788 (10th Cir. 1941), cert. denied, Brady v. Beams, 315 U.S. 809, 62 S.Ct. 794, 86 L.Ed. 1208 (1942); In re Federal Facilities Realty Co., supra, 140 F.Supp. at 524, and that the affidavit itself must be strictly construed, see, e. g., United States v. Gilboy, supra, 162 F.Supp. at 388; Sanders v. Allen, 58 F.Supp. 417, 420 (S.D.Cal.1944). It must state facts as opposed to conclusions, Inland Freight Lines v. United States, 202 F.2d 169, 171 (10th Cir. 1953), and while the information and belief of the affiant as to the truth of the allegations are sufficient, Berger v. United States, supra, 255 U.S. at 34, 41 S.Ct. 230, mere rumors and gossip are not enough, Id. at 33, 41 S.Ct. 230. The identifying facts of time, place, persons, occasion and circumstances must be set forth, Johnson v. United States, supra, 35 F.2d at 357, with at least that degree of particularity one would expect to find in a bill of particulars, see Morse v. Lewis, supra, 54 F.2d at 1032; United...