United States v. Parker

• Decision Date: 03 May 1938
• Citation: 23 F. Supp. 880
• Parties: UNITED STATES v. PARKER et al. (two opinions).
• Court: U.S. District Court — District of New Jersey

23 F. Supp. 880

UNITED STATES v. PARKER et al. (two opinions).

District Court, D. New Jersey.

April 13, 1938.

On the Merits May 3, 1938.

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John J. Quinn, U. S. Atty., of Red Bank, N. J., Harold O'Dougherty, U. S. Atty., of Brooklyn, N. Y., and Hubert J. Harrington, Asst. U. S. Atty., of Newark, N. J.

James Mercer Davis, of Camden, N. J., and George S. Silzer and Harry Green, both of Newark, N. J., for defendants.

CLARK, District Judge.

In thirteen years' judicial service two affidavits of bias and prejudice have been filed against us. The first expressed the unfavorable opinion of one Arthur Flegenheimer, better known as Dutch Schultz. We ordered it stricken. The "sudden" death of Flegenheimer while out on bail on reversal by the Circuit Court of Appeals of our disapproval of his bondsmen (two of whom are now under indictment for perjury ensuing upon their giving that bail) deprived us of the guidance of that court with respect to the legal questions raised by the said striking.

We mention this previous affidavit because we wish to reiterate our then expressed criticism of the statute under which these affidavits are permissible. Such criticism if constructively intended is required of all judges by canon 23 of the Judicial Ethics (American Bar Association Reports, Vol. 62, page 1130). This canon reads: "Legislation. A judge has exceptional opportunity to observe the operation of statutes, especially those relating to practice, and to ascertain whether they tend to impede the just disposition of controversies; and he may well contribute to the public interest by advising those having authority to remedy defects of procedure, of the result of his observation and experience."

We shall not repeat it in detail, because any one interested can find it in our opinion in U. S. v. Flegenheimer, 14 F.Supp. 584. Suffice it to say that the critical opinion of this and other similar statutes is so generally held that it finds expression in the encyclopedias, and we find the author of the article on judges in Encyclopedia of Law, Vol. 23, page 582, saying: "But disqualifying a judge on the ground of prejudice is so liable to abuse that some states have refused to adopt it (a statute) and even where it (a statute) has been adopted its liability to abuse induces the most rigid construction of its terms."

And see 33 Corpus Juris, page 999. There seems to be general agreement, also, that the particular enactment governing the disqualification of United States judges exhibits peculiarities that accentuate the abuses inherent in all such statutes. St. Louis Law Review, June, 1935, at page 331; 29 Harvard Law Review at page 431. The principal peculiarity is the one with which the case at bar concerns itself. It is that the accused judge can consider only the legal sufficiency and timeliness of the affidavit. Berger v. U. S., Ill.1921, 255 U.S. 22, 41 S.Ct. 230, 65 L. Ed. 481; Chafin v. U. S., 4 Cir. 1925, 5 F.2d 592, certiorari denied, 1925, 269 U.S. 552, 46 S.Ct. 18, 70 L.Ed. 407; Lewis v. U. S., 8 Cir. 1926, 14 F.2d 369; Nations v. U. S., 8 Cir. 1926, 14 F.2d 507, certiorari denied, 1926, 273 U.S. 735, 47 S.Ct. 243, 71 L.Ed. 866; Simmons v. U. S., 5 Cir. 1937, 89 F.2d 591; U. S. v. Buck, D.C. Mo.1937, 18 F.Supp. 827. 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.

In the light then of this peculiar, but nevertheless well-established principle, let us proceed to the analysis of the affidavits in the principal case. They contain ten paragraphs each, and the required certificates of counsel of which more hereafter. We need concern ourselves with only four; the third, sixth, and tenth as to bias and prejudice, and the seventh as to timeliness. In order to justify said wholesale elimination, we shall touch briefly on the others.

The first correctly asserts the defendants' indictment in the Eastern District of New York for transporting a kidnapped person in interstate commerce (the so-called Lindbergh Law, 18 U.S.C.A. § 408a) and our causing the issuance of a bench warrant upon a request for a hearing on removal to said district. The second avers a general conclusion of bias and prejudice bare of supporting facts.

The couching of the fourth in words of information and belief is fortunate because the information upon which the belief is formed happens to be inaccurate. The defendants say that the usual procedure in removal proceedings in New Jersey contemplates an initial hearing before a United States Commissioner, and that here, as in the Schultz case (tactfully phrased in the affidavits as "except one"), we are departing from precedent. We may say we see no legal objection to such departure, but the facts are otherwise. In 1930, the then United States Attorney for the Southern District of New York voiced a vigorous objection to the dilatory character of certain removal proceedings on mail fraud charges then pending in this district. Since then our own United States Attorney has in many instances proceeded directly before the District Judge. Such practice is sanctioned by the statute, 18 U. S.C.A. § 591, and inasmuch as the order of removal must be signed by the judge and cannot be signed by the commissioner, it saves defendants not desirous of delay the trouble and expense of duplicate hearings. Furthermore, the Attorney General recognizes its general incidence in his Instructions to United States Marshals. We quote: "208(d) Persons arrested on Writs of Capias should be taken directly to Court, if in session, unless the defendant desires to and can give bond for his appearance, in which case he should be taken before the nearest commissioner for that purpose." Page 38.

Concededly, the warrant of arrest in this case comes within the term capias. The regulation fixes the place of giving bail as the nearest commissioner, and expressly leaves the place of appearance on removal unfettered and as before the judge issuing the warrant. There are three such removal proceedings from this district currently pending in the Court of Appeals. We suggest the papers on the writs of habeas corpus allowed to make such appeals possible, drafted by learned counsel, as precedents if they become necessary in the case at bar.

Paragraph 5 has a clairvoyant aspect. It speaks of our future intention to deny the defendants their right of appeal. It is not clear how one can harbor an intention legally impossible of fulfillment, writs of mandamus being what they are. Further, the purity of our intention has been amply demonstrated in the appeals allowed in the cases just referred to and in our flat statement made at the time of the filing of these affidavits. However that may be, bias and prejudice depends upon facts and not upon speculative mental processes.

The eighth and ninth paragraphs set forth the issuing of the bench warrant referred to in paragraph 1 and its instructions to the deputy marshal to bring the defendants before us "in defiance of section 595, title 18, U.S.C.A." The record of the proceeding in Camden indicates that this last phrase is a reference to the legal contention there made. It was fully exploited in the argument on making permanent our learned colleague's temporary restraint and in the application to the Circuit Court of Appeals for a supersedeas of his dissolution of that restraint. We fail to see any relation between the solution of this legal question and our bias and prejudice. Our bench warrant is from this point of view in the nature of an order to show cause. Upon its return defendants could have urged upon us their construction of the statute. If that construction had prevailed, we should have been legally required to hold that the United States must proceed before the commissioner nearest to where the deputy marshals happened to make the arrests. If it had not prevailed, their exception sustained in the Court of Appeals would have rendered all proceedings before us nugatory.

Coming back then to paragraphs 3, 6, and 10, all of which attempt the assertion of "facts and reasons" in support of affiants' belief of our personal bias and prejudice, we find all but one of these assertions not legally sufficient and for one common reason. That common reason is well expressed in the case of Johnson v. United States, D.C., 35 F.2d 355, at page 357: "However false, there can be no denial, but the charge of personal bias or prejudice must be accepted as true. To avoid abuses, the law requires that the affidavit be of legal sufficiency. That is, that the charge be of personal bias or prejudice, that the facts and reasons for the charge be set out and give fair support to the accusation, and that upon its face the affidavit presents evidence of good faith. To that end mere rumors, gossip, general statements that affiant by some person is informed and believes that at some time, some place, some occasion, the judge expressed sentiments manifesting bias or prejudice, are not enough, but informant, and time, place, occasion of, and the judge's expressions, and that the bias or prejudice is personal, all must be set out in the affidavit. This alone will enable the affidavit to bear on its face that evidence of good faith which is necessary before it can be held to be legally sufficient. See Berger v. U. S., supra. Otherwise, the penalties of perjury and disbarment are no restraint on the litigant and counsel; for otherwise it is not even a possibility of either being invoked, much less carried to successful conclusion, however false be affidavit and certificate."

And see Nations v. United States, supra; Minnesota & Ontario Paper Co. v. Molyneaux, District Judge, 8 Cir., 70 F. 2d 545; Wilkes et al v. United States, 9 Cir., 80 F.2d 285; Simmons v. United States, supra.

We analyze the assertions in order of...