United States v. Mitchell

• Citation: 377 F. Supp. 1312
• Decision Date: 30 April 1974
• Docket Number: Crim. No. 74-110.
• Parties: UNITED STATES of America v. John N. MITCHELL et al.
• Court: U.S. District Court — District of Columbia

377 F. Supp. 1312

UNITED STATES of America v. John N. MITCHELL et al.

Crim. No. 74-110.

United States District Court, District of Columbia.

April 30, 1974.

COPYRIGHT MATERIAL OMITTED

Leon Jaworski, Special Pros., Philip A. Lacovara, Counsel to the Special Prosecutor, Richard Ben-Veniste, Sidney M. Glazer, Asst. Special Prosecutors, Watergate Special Prosecution Force, Washington, D. C., for the United States.

William G. Hundley, Plato Cacheris, Washington, D. C., for defendant Mitchell.

William S. Frates, c/o Floyd, Pearson, Stewart, Proenza & Richman, Frates, Miami, Fla., for defendant Ehrlichman.

Sidney Dickstein, David Shapiro, Washington, D. C., for defendant Colson.

Jacob A. Stein, Washington, D. C., for defendant Parkinson.

John M. Bray, Washington, D. C., for defendant Strachan.

OPINION AND ORDER

SIRICA, Chief Judge.

The present criminal case derives from a thirteen-count indictment charging seven individuals with conspiracy to obstruct justice and other offenses. The Court now has before it two motions, timely filed, for disqualification. Three defendants, John N. Mitchell, John Ehrlichman and Charles Colson jointly move that the Court be disqualified from further participation in this case pursuant to the provisions of Title 28 United States Code §§ 144 and 455¹ and the Fifth and Sixth Amendment rights to a fair trial. Defendant Gordon Strachan moves for disqualification or voluntary recusal on the same basis. Defendant Kenneth Wells Parkinson joins in both motions. The remaining two defendants, Harry R. Haldeman and Robert C. Mardian have not participated.

I

Defendants Mitchell, Ehrlichman and Colson joined by defendant Parkinson have moved that the disqualification motions be referred to the Court Calendar Committee for disposition. The Special Prosecutor in his submission notes that, although such motions are ordinarily determined by the challenged judge, in a few instances judges have elected to refer such decisions elsewhere. He does not object to that being done here. The Court, however, is strongly opposed to such a procedure. To the Court's knowledge, the practice is without precedent in this Circuit. It is permissible at best, and under the statutes that govern here, may be improper. § 144 lays the decision-making burden upon the judge involved, and the part of § 455 most strongly relied upon by defendants calls specifically for the judge's opinion. "The Supreme Court has ruled that the judge has a lawful right to pass on the legal sufficiency of the affidavit, . . . subject to appellate review, of course, and we consider it the duty of the judge, when the showing for recusation is insufficient, to remain in the case." Eisler v. United States, 83 U.S. App.D.C. 315, 170 F.2d 273, 278 (1948). See also United States v. Bell, 351 F.2d 868, 878 (6th Cir. 1965) (challenged judge has duty to pass on sufficiency) and cases cited therein. A judge challenged under these statutes ought to be willing to shoulder the responsibility of ruling in the matter. Only the individual judge knows fully his own thoughts and feelings and the complete context of facts alleged. It follows that only he can be certain of the most equitable resolution. If the judge errs in his determination, the proper remedy is in appellate review. These considerations plus the delay inherent in the suggested procedure have convinced the Court that in acquiescing it would be setting a most unwise precedent. The motion is therefore denied.

Likewise the proposed evidentiary hearing is unnecessary. The facts surrounding the Court's suggestion of possible grand jury witnesses are on the record under seal. The transcript will be made available to counsel at their request. In regards to the Court's meetings with Special Prosecution Force personnel, there are no relevant facts to be had. These proceedings included no discussion of evidence bearing on the guilt or innocence of any defendant in this case nor any discussion even remotely of the kind. An inquiry into the sufficiency of the affidavits as filed will satisfy defendants' rights. United States v. Partin, 312 F.Supp. 1355, 1361 (E.D. La.1970).

II

When presented with an affidavit of prejudice made pursuant to § 144, 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, 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); and Korer v. Hoffman, 212 F.2d 211 (7th Cir. 1954).² "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 (W.D.Wash.1929). 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 (3d Cir. 1958); Eisler v. United States, 85 U.S.App.D.C. 315, 170 F.2d 273, 278 (1948). While factual allegations may not be controverted, the affidavit itself must be strictly construed. See e. g., United States v. Gilboy, supra, 162 F.Supp. at 388, 389; Sanders v. Allen, 58 F.Supp. 417, 420 (S.D.Cal. 1944). The judge is presumed impartial. Beland v. United States, 117 F.2d 958, 960 (5th Cir.) cert. denied 313 U.S. 585, 61 S.Ct. 1110, 85 L.Ed. 1541 (1941). It must state facts as opposed to conclusions and generalities, Simmons v. United States, 302 F.2d 71, 76 (3d Cir. 1962); Inland Freight Lines v. United States, 202 F.2d 169, 171 (10th Cir. 1953); Boyance v. United States, 275 F. Supp. 772, 774 (E.D.Pa.1967), 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, mere rumors and gossip are not enough, Id. at 33. 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, 54 F.2d 1027, 1032 (4th Cir. 1932); United States v. Gilboy, supra 162 F.Supp. at 392-393.

In assessing sufficiency of the facts alleged by affidavit, decisions have emphasized that any bias must be personal, that is, have its origin "in sources beyond the four corners of the courtroom." In re Federal Facilities Realty Trust, 140 F.Supp. 522, 526 (N.D.Ill. 1956). "The alleged bias and prejudice to be disqualifying must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case." United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 1710, 16 L.Ed.2d 778 (1966).

In Hanger v. United States, 398 F.2d 91 (8th Cir. 1968), Judge Meredith of the Eastern District of Missouri refused to disqualify himself from the retrial of a criminal case where the defendant's affidavit of prejudice alleged that at sentencing following the first trial, the judge expressed his belief in the defendants' guilt and described them as deserving severe punishment. The Eighth Circuit Court of Appeals found no error in that decision noting that the judge's opinions derived from proceedings had before him and they did not constitute the personal bias contemplated by § 144. And in United States v. Dichiarinte, 445 F.2d 126, 132-133 (7th Cir. 1971), the court held: "The fact that the judge might have formed an opinion concerning the guilt or innocence of the defendant from the evidence presented at an earlier trial involving the same person is not the kind of bias or prejudice which requires disqualification." (citations omitted).

In a case that bears some striking similarities to the action at bar, Wolfson v. Palmieri, 396 F.2d 121 (2d Cir. 1968), the Second Circuit reaffirmed the principle that the alleged prejudice, no matter how demonstrated, must be personal as opposed to judicial. There Judge Palmieri was assigned, apparently by special assignment, the trial of a criminal indictment, and within a few days, the trial of a second related indictment. Following their conviction in the first case, the two defendants charged in both indictments moved to disqualify Judge Palmieri from the second trial. The motion followed appeal but preceded sentencing. Defendants objected to Judge Palmieri's continuation in the case (1) since it was closely related to the earlier indictment, (2) because of comments and rulings made by the judge at the prior trial, (3) because of pretrial rulings, and (4) because one of the judge's former law clerks was an assistant prosecutor and the defendants intended to claim prosecutorial misconduct. The Court of Appeals found nothing to indicate disqualifying prejudice and adjudged the § 455 claim regarding the former clerk without merit. The Second Circuit has also ruled that it is not improper for the same judge to sit at the trials of co-conspirators tried separately. United States v. DiLorenzo, 429 F.2d 216, 220-221 (2d Cir. 1970) cert. denied 402 U.S. 950, 91 S.Ct. 1609, 29 L.Ed.2d 120 (1971). See also, United States v. Beneke, 449 F.2d 1259 (8th Cir. 1971).

In this Circuit the rule is equally well settled. The Court of Appeals has stated in Hurd v. Letts, 80 U. S.App.D.C. 233, 152 F.2d 121 (1945) and Eisler v. United States, supra, 170 F.2d 273, and more recently in Tynan v. United States, 126 U.S.App.D.C. 206, 376 F. 2d 761, cert. denied 389 U.S. 845, 88 S. Ct. 95, 19 L.Ed.2d 111 (1967) and Brotherhood of Locomotive Firemen and Engineers v. Bangor & Aroostook R. Co., 127 U.S.App.D.C. 23, 380 F.2d 570 (1967) that bias or prejudice spoken of by § 144 must have originated from extrajudicial...