United States v. Hoffa

• Decision Date: 22 September 1965
• Docket Number: Cr. No. 11989.
• Citation: 245 F. Supp. 772
• Parties: UNITED STATES of America v. James R. HOFFA, Thomas Ewing Parks, Larry Campbell, and Ewing King.
• Court: U.S. District Court — Eastern District of Tennessee

245 F. Supp. 772

UNITED STATES of America v. James R. HOFFA, Thomas Ewing Parks, Larry Campbell, and Ewing King.

Cr. No. 11989.

United States District Court E. D. Tennessee, S. D.

September 22, 1965.

J. H. Reddy, U. S. Atty., Chattanooga, Tenn., Fred M. Vinson, Jr., Robert S. Erdahl, Charles W. Shaffer, Jr., Theodore George Gilinsky, Dept. of Justice, Washington, D. C., for the United States.

James E. Haggerty, Sr., Detroit, Mich., Harold E. Brown, Chattanooga, Tenn., for James R. Hoffa.

Jacques M. Schiffer, New York City, for Thomas Ewing Parks.

Cecil D. Branstetter, Nashville, Tenn., for Larry Campbell.

Harold E. Brown, Chattanooga, Tenn., for Ewing King.

FRANK W. WILSON, District Judge.

The defendants were convicted on March 4, 1964, of willfully endeavoring to influence, intimidate and impede jurors in the discharge of their duties, in violation of the Federal Obstruction of Justice Statute (18 U.S.C. § 1503). Upon appeal the convictions were affirmed by the Court of Appeals by a unanimous opinion filed July 29, 1965, 6 Cir., 349 F.2d 20. The case is now before this Court upon a motion for a new trial alleging newly discovered evidence and upon a motion filed by the defendant Hoffa, and subsequently joined by the other defendants, seeking to disqualify the undersigned as the presiding judge and alleging bias at the time of the trial. This motion to disqualify is based upon a purported affidavit obtained 18 months after the trial and within a few days after the United States Court of Appeals affirmed the conviction of the defendants. The affidavit purports to be that of a woman who identifies herself as one Marie Monday and who, in further affidavits in support of the motion for new trial, identifies her occupation as that of a prostitute who frequented the rooms of the jurors. The affidavit represents that someone who identified himself as the presiding judge in the trial of the defendant Hoffa, and whom she now identifies as such, visited her at the Read House Hotel where the jury was quartered during the course of the trial in January and February 1964 and confided in her that he was biased against the defendant Hoffa.

The Government has filed a motion to strike the motion to disqualify.

The affidavit upon which the motion to disqualify is based is a complete and total fabrication and fraud. The facts are:

(1) The undersigned has never known nor ever been introduced to the person described in the purported affidavit as Marie Monday, nor has the undersigned ever had any conversation with such a person at any time or place about any subject, including any matter relating to the trial of James R. Hoffa or any defendant in this case.

(2) The undersigned was never in nor in the vicinity of the Read House Hotel, Chattanooga, Tennessee, during the entire course of the trial of the case of United States of America v. James R. Hoffa, et al, extending from January 20, 1964, through March 6, 1964, and including the date of sentencing upon March 12, 1964, having deliberately avoided going there for any purpose during the said trial in view of the fact that the jury trying the case was quartered and sequestered at the said hotel.

(3) The undersigned has never made the statement "that he was in charge of the Hoffa trial" or that "Hoffa was going to get what was coming to him this time and he was going to see to it that he did" or "don't you worry, he is going to be convicted because he (Wilson) was in charge of it," nor anything bearing any resemblance to such statements to any person at any time or in any place, including the person identified as Marie Monday, the place identified as the Read House Hotel, and the time identified as during the course of the trial of this case.

(4) The undersigned has never held any bias or prejudice nor acted as a result of any bias or prejudice against the defendant, James R. Hoffa, nor against any defendant in this case, nor has he held any bias or acted as a result of any bias in favor of the prosecution. Each and every action of the Court is a matter of record in the case and was taken solely on the basis of the evidence and in accordance with the law, irrespective of the party or parties affected thereby. For example, this Court directed a verdict of acquittal for the defendant, James R. Hoffa, at the conclusion of the evidence upon one count upon which the Court deemed that the evidence was insufficient to submit to the jury. The record of the trial and each action of the Court has now been carefully and fully reviewed by the United States Court of Appeals and found to be free of error.

The defendants contend, however, that the truth or falsity of the affidavit is irrelevant and cannot be asserted to defeat the motion to disqualify. As unusual as this may seem, this is a correct statement of the present law under 28 U.S.C. § 144, upon which the motion to disqualify is based.

This statute provides as follows:

"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 the case of Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481, with three justices dissenting, the Court held that under the language of the foregoing section, upon the filing of an affidavit of personal bias or prejudice against a judge, the truth or falsity of the facts asserted cannot be passed upon but that, regardless of whether the judge is in fact biased or prejudiced, he must assume the facts as stated in the affidavit to be true and pass only upon the legal sufficiency of the affidavit and motion. See also Taylor v. United States, 9 Cir., 179 F.2d 640; Refior v. Lansing Drop Forge Co., 6 Cir., 124 F.2d 440.

However, even though the falsity of the affidavit is not permitted to be asserted as a basis for denying the motion to disqualify, and even though the fact of bias is not required to exist, the statute makes other requirements before a judge is to be declared disqualified. One of these requirements is that "a party may file only one such affidavit in any case." In this case the defendant, James R. Hoffa, filed such an affidavit against Judge Frank Gray under date of December 10, 1963. Although Judge Gray held the affidavit legally insufficient to require his disqualification, he nevertheless withdrew from the case. It was as a consequence of the withdrawal of Judge Gray following the filing of the affidavit against him that the undersigned was designated to try the case. Having heretofore filed one such affidavit, in accordance with the express provisions of the statute, the defendant is not permitted to file a second against another judge. Otherwise, the defendant could file successive motions and affidavits to disqualify each judge designated to try the case and thereby prevent any disposition of his case.

As stated in the case of Allen v. duPont, D.C., 75 F.Supp. 546, at page 549:

"If the affidavit filed in this case is to prevail conceivably every judge in the Federal system might in monotonous succession be given the same sort of passport and our judicial procedure be rightly made the subject of ridicule and contempt."

See also United States v. Buck, D.C., 23 F.Supp. 508 and Martin v. Texas Indemnity Ins. Co., D.C., 214 F.Supp. 477. As stated by the Court in the latter case at page 480:

"28 U.S.C.A. § 144 imposes a bag limit of one judge for a party to disqualify by the character of motion under consideration here."

In the second place, the statute requires that the affidavit 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." In the present case the motion was filed, as mentioned above, 18 months after the trial of the case and within a few days after the conviction of the defendant had been affirmed upon appeal.

In the case of Ex parte American Steel Barrel Co., 230 U.S. 35, 33 S.Ct. 1007, 57 L.Ed. 1379, the Court held that Section 21 of the Judicial Code (the forerunner of the present Section 144) "was never intended to enable a discontented litigant to oust a judge because of adverse rulings made, for such rulings are reviewable otherwise, but to prevent his future action in the pending cause. Neither was it intended to paralyze the action of a judge who has heard the case, or a question in it, by the interposition of a motion to disqualify him between a hearing and a determination of the matter heard. This is the plain meaning of the requirement that the affidavit shall be filed not less than ten days before the beginning of the term."

This was re-affirmed in the case of Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481, in the following language:

"The section permits only the affidavit of a party, and Ex parte American Steel Barrel Co., supra, decides that it must be based upon facts antedating the trial, not those occurring during the trial."

See also Knapp v. Kinsey (C.C.A. 6, 1956) 232 F.2d 458, wherein the Court held that Section 144, Title 28 U.S.C., is not directly applicable to proceedings wherein the claimed bias or prejudice appears during the course of the trial.

In the case of Ex parte Glasgow, 5 Cir., 195 F. 780, the Court held that Section 21 of the Judicial Code (the forerunner of...