United States v. Partin

• Decision Date: 13 May 1970
• Docket Number: Crim. No. 1876.
• Parties: UNITED STATES of America v. Edward Grady PARTIN.
• Court: U.S. District Court — Eastern District of Louisiana

312 F. Supp. 1355

UNITED STATES of America v. Edward Grady PARTIN.

Crim. No. 1876.

United States District Court, E. D. Louisiana, Baton Rouge Division.

May 13, 1970.

Gerald J. Gallinghouse, U. S. Atty., Eastern District of Louisiana, James D. Carriere, Asst. U. S. Atty., Eastern District of Louisiana, New Orleans, La., for the United States.

Edward M. Baldwin, Louis B. Merhige, Baldwin & Merhige, New Orleans, La., for defendant, Edward Grady Partin.

WEST, Chief Judge:

On February 20, 1970, a federal grand jury, sitting in the Eastern District of Louisiana at New Orleans, returned a True Bill charging Edward Grady Partin with violation of Title 18, United States Code, Section 1503. The indictment charges that:

"On or about January 16, 1970, in the Baton Rouge Division of the Eastern District of Louisiana, EDWARD GRADY PARTIN wilfully and corruptly did endeavor to influence, intimidate, and impede Wade McClanahan, a witness in the case of United States of America v. Dunham Concrete Products, Inc; Louisiana Redi-Mix Company, Inc., Anderson-Dunham, Inc.; Ted F. Dunham, Jr.; and Edward Grady Partin, Criminal Action No. 1842, then pending in the United States District Court for the Eastern District of Louisiana, Baton Rouge Division, in the discharge of his duty as a witness by threatening him with bodily harm and death; in violation of Title 18 U.S.C. 1503."

The defendant, Mr. Partin, was arraigned before this Court in Baton Rouge, Louisiana, on March 20, 1970, at which time, upon advice of counsel, and in the presence of his retained counsel, he entered a plea of "Not Guilty," whereupon the Court granted the defendant twenty days within which to file motions or other responsive pleadings. On April 9, 1970, defendant, through his counsel, filed several motions, among which was a "Motion to Recuse." Attached to this motion was an affidavit executed by the defendant and witnessed by his counsel, together with a Certificate of Counsel attesting to the good faith of the affidavit, all as required by Title 28, United States Code, Section 144. The affidavit contains the following allegations upon which the motion to recuse is based:

"Edward Grady Partin, being duly sworn, deposes and says:

"I am the defendant in the above-entitled cause.

"That the Honorable E. Gordon West, Judge of the court in which this action was commenced and is now pending, and before whom it is to be tried or heard, has a personal bias and/or prejudice against me, and that the facts and reasons for such belief are as follows:

"1.

"That in criminal case entitled U. S. vs. Edward Grady Partin, Criminal Action No. 1452, a hearing was held on May 3, 1968, before the Honorable E. Gordon West in which the court held that the interest of justice did not warrant a dismissal of an indictment against the defendant.

"That the transcript of that hearing contains many statements by the court which imply that the court had reason to believe that the defendant was responsible for destruction of certain evidence, that there were dozens of witnesses ready to testify against the defendant, that the public should be apprised of a payoff, if any, to the defendant, and the court apparently considered the defendant guilty of the charges therein;

"2.

"That in Civil Case No. 67-41, before the same court, Altex Ready-Mix Concrete Corporation vs. Ted F. Dunham, et als, in which affiant was a defendant, on October 13, 1967, a hearing was held on a motion to compel answers on deposition by affiant.

"That the comments from the court to counsel for affiant are replete with threats of contempt, with imposition of the heaviest fines possible and that affiant showed contempt for the judicial process, engaged in insulting comments at his deposition, and purposeful evasions.

"That a fair reading of the transcript of that hearing will show a bias and/or prejudice against affiant;

"3.

"That affiant has been advised that statements were made by the court, both before and after his ascendency to the bench, to the effect that said court would `get Partin', or words to that effect, clearly implying a bias and prejudice against affiant, evidence of which affiant will produce upon a hearing of this motion;

"4.

"That on February 4, 1970, the Honorable E. Gordon West, sitting without a jury, rendered a judgment in the amount of $245,940.46 against General Truck Drivers, Warehousemen & Helpers of America, Local Union No. 5, an organization with which Edward Grady Partin has been closely associated in the public's eye;

"5.

"That in United States vs. Dunham Concrete Products, Inc.; Louisiana Ready-Mix Company, Inc.; Anderson-Dunham, Inc.; Ted F. Dunham, Jr.; and Edward Grady Partin, bearing Criminal No. 1842, the said court, sua sponte recused himself from presiding over the said case, ab initio, stating that the ends of justice would be better served, without assigning the reasons therefor."

The motion to recuse was noticed for hearing on May 1, 1970, and on that day a hearing was held. At the hearing counsel for mover endeavored to introduce live testimony in support of his motion. This was objected to by the Government and the objection was sustained. The Court also on its own motion refused to permit any evidence to be introduced other than the affidavit filed pursuant to the provisions of Title 28, United States Code, Section 144. Since the Court, under the law, is required to accept as true all of the allegations contained in the affidavit, when considering a motion to recuse, Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 234, 65 L.Ed. 481 (1921); Tynan v. United States, 126 U.S.App. D.C. 206, 376 F.2d 761 (1967), cert. den. 389 U.S. 845, 88 S.Ct. 95, 19 L.Ed.2d 111, (1967); Willenbring v. United States, 306 F.2d 944 (CA9—1962), and since there was no dispute as to the timeliness of the filing of the affidavit, the hearing was limited to oral argument as to the legal sufficiency of the affidavit.

After hearing, the Court, for the following reasons, concluded that the motion to recuse must be denied.

Title 28, United States Code, Section 144, provides as follows:

"§ 144. Bias or prejudice of a judge

"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."

This is the only statutory provision of the law dealing specifically with the question of recusal on the grounds of bias or prejudice. Defendant, in his affidavit, sets forth five reasons why his motion to recuse should be granted. It takes no more than a cursory examination of the affidavit to immediately eliminate four of the grounds as totally inadequate. Allegations numbered 1, 2, 4, and 5 are clearly inadequate for recusation under Title 28, United States Code, Section 144. Each of these four allegations deal with either comments made or decisions rendered by the Court in prior cases in which this defendant was involved. The law is too clear to admit of argument that the only basis for recusal on the grounds of bias or prejudice is extra-judicial, personal bias or prejudice that a judge may hold against the defendant. Hanger v. United States, 398 F.2d 91, 100 (CA8— 1968); Hodgdon v. United States, 365 F.2d 679 (CA8—1966), cert. den. 385 U.S. 1029, 87 S.Ct. 759, 17 L.Ed.2d 676 (1967); United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 16 L.Ed. 2d 778 (1966). Recusal cannot be based on the Court's rulings in other cases nor on remarks or findings pertaining specifically to the facts or law in other cases in which the defendant was involved but must instead be predicated on extrajudicial attitudes and conceptions formed outside of the courtroom. Tynan v. United States, 126 U.S.App.D.C. 206, 376 F.2d 761, 764 (1967), cert. den. 389 U.S. 845, 88 S.Ct. 95, 19 L.Ed.2d 111 (1967).

Likewise, inferences drawn from prior judicial determinations are insufficient grounds for recusal because it is the duty of the judge to rule upon issues of fact and law and questions of conduct which happen to form a part of the proceedings before him. In re Federal Facilities Realty Trust, 140 F. Supp. 522 (N.D.Ill.—1956); Barry v. Sigler, 373 F.2d 835 (CA8—1967); United States ex rel. Bennett v. Myers, 381 F.2d 814 (CA3—1967).

Thus, based upon these criteria, allegations numbered 1, 2, 4, and 5 of defendant's affidavit are clearly insufficient. Each of these allegations deal solely with rulings of this Court, or remarks made by this Court in connection with prior specific cases, entirely distinct, different and apart from the case presently before the Court, in which this defendant happened to have also been involved. The rulings and/or comments complained of dealt specifically with the particular facts of the cases referred to and had no reference to the matters presently before the Court. In connection with allegation No. 4, pertaining to a money judgment rendered by this Court against the General Truckdrivers, Warehousemen and Helpers of America, Local Union No. 5, lengthy written reasons for judgment were rendered and filed in the record of that case, and it is interesting to note that four days after the motion to recuse was filed in the present case, counsel for the defendants in the above mentioned case filed a motion to extend the time within which to lodge an appeal on the grounds that...