United States v. Sinclair

• Decision Date: 17 November 1976
• Docket Number: Crim. A. No. 76-94.
• Citation: 424 F. Supp. 715
• Parties: UNITED STATES of America, Plaintiff, v. Philippe Andre SINCLAIR, Defendant.
• Court: U.S. District Court — District of Delaware

424 F. Supp. 715

UNITED STATES of America, Plaintiff, v. Philippe Andre SINCLAIR, Defendant.

Crim. A. No. 76-94.

United States District Court, D. Delaware.

November 17, 1976.

W. Laird Stabler, Jr., U. S. Atty., and Alan J. Hoffman, Asst. U. S. Atty., Wilmington, Del., for plaintiff.

Morton R. Kimmel, of Kimmel, Spiller & Bradley, Wilmington, Del., for defendant.

MEMORANDUM OPINION

LATCHUM, Chief Judge.

The matter presently before the Court is defendant's motion and affidavit to disqualify me from presiding over this case.

I. Background Facts

The Grand Jury of this district returned a sealed indictment against the defendant on October 6, 1976 charging him with three offenses. Count 1 charges a violation of 26 U.S.C. § 7212(b) in that the defendant on or about September 24, 1976 did attempt to forcibly rescue or cause to be rescued an automobile that had been seized pursuant to the Internal Revenue Code. Count 2 charges that on the same date defendant, by use of a dangerous weapon, did assault and interfere with Special IRS Agent Wiley P. Smith while he was engaged in the performance of his duties in violation of 18 U.S.C. § 111. Count 3 charges a violation of 26 U.S.C. § 7212 in that the defendant on the same date by threats of force did endeavor to intimidate and impede IRS Officer Wayne Dohrman while he was acting in his official capacity pursuant to the Internal Revenue Code. (Docket Item 1). The indictment was unsealed on October 18, 1976 (Docket Item 4) and the defendant entered a not guilty plea to the entire indictment at his arraignment on October 20, 1976. (Docket Item 1). The case was assigned to me on October 21, 1976. (Docket Item 5). The government moved for trial on October 29, 1976. (Docket Item 6). The Court, noting that no motions had been filed within ten days following arraignment as required by paragraph 5 of this court's Speedy Trial Plan, gave notice to the parties on November 2, 1976 that trial would commence on November 15, 1976. On the same date the Court received a hand delivered letter from the defendant's attorney stating that he had other prior court engagements continuously from November 8 through November 22, 1976 and requesting that the trial be rescheduled sometime in December 1976. (Letter of Kimmel to Court). The Court, honoring defense attorney's request, mailed a notice, dated November 3, 1976, rescheduling the trial to commence on January 3, 1977 the first available date.

On the afternoon of November 3, 1976, apparently before defense counsel received the notice of the rescheduled trial date, defendant filed a motion to disqualify me and for a change of venue. (Docket Item 7). On November 5, 1976 I wrote to defense counsel pointing out that the motion of disqualification was deficient because an affidavit and certificate of good faith were required as provided in 28 U.S.C. § 144 and advised that if the defendant intended to pursue the matter, the required documents should be filed on or before November 12, 1976.

II. Affiant's Basis for Recusal Motion

On November 12, 1976, in accordance with 28 U.S.C. § 144, defendant filed his affidavit containing allegations for disqualification (Docket Item 10) accompanied by a certificate of counsel stating that counsel believed the affidavit was made in good faith. (Docket Item 11). Because it is the focal point of this memorandum opinion, it is set forth in full:

"Philippe A. Sinclair does hereby affirm and state as follows:

(1) the judge before whom this matter is pending is the Honorable James L. Latchum;

(2) I believe that Judge Latchum has a personal bias or prejudice against me and in favor of the United States Government, a because Judge Latchum previously sentenced me on an unrelated Internal Revenue matter, b originally scheduled this case on November 15, 1976, which was approximately one month after my conviction by jury in the United States District Court for the District of Delaware and c because Judge Latchum has been prejudiced against me due to the recent prejudicial publicity."

letters added.

The case referred to in defendant's affidavit in which I previously sentenced him is United States v. Sinclair, Cr.A. No. 2282.¹ In that case, defendant was convicted by a jury for failure to file employers quarterly federal tax returns in violation of 26 U.S.C. § 7203. On April 23, 1973 I sentenced the defendant to imprisonment for a term of one year on condition that he be confined to a jail type facility for a period of 10 days; the execution of the remainder of the sentence was suspended and the defendant was placed on probation for a period of eleven months and twenty days.

III. The Applicable Law

The mere filing of an affidavit under § 144 does not automatically disqualify me from hearing the instant case. United States v. Townsend, 478 F.2d 1072, 1073 (C.A. 3, 1973); Behr v. Mine Safety Appliances Co., 233 F.2d 371, 372 (C.A. 3, 1956), cert. denied, 352 U.S. 942, 77 S.Ct. 264, 1 L.Ed.2d 237 (1956). Disqualification results only from the filing of a timely and legally sufficient affidavit. United States v. Townsend, supra at 1073; Brotherhood of Locomotive Firemen & Enginemen v. Bangor & Aroostook R. R., 127 U.S.App.D.C. 23, 380 F.2d 570, 576 (1967), cert. denied, 389 U.S. 327, 88 S.Ct. 437, 19 L.Ed.2d 560 (1967).

It is my duty, as the judge against whom the affidavit has been filed, to pass upon the legal sufficiency of the facts alleged in the affidavit and its timeliness. Berger v. United States, 255 U.S. 22, 33-35, 41 S.Ct. 230, 65 L.Ed. 481 (1921); United States v. Townsend, supra at 1073; Simmons v. United States, 302 F.2d 71, 75 (C.A. 3, 1962). In passing on the affidavit to recuse on the grounds of bias or prejudice the facts alleged in the affidavit must be accepted as true and I may not question either the truth of the allegations or the good faith of the pleader, Berger, supra, 255 U.S. at 36, 41 S.Ct. 230; United States v. Townsend, supra at 1073, even though I may know to a certainty that the allegations of prejudice are false. Morse v. Lewis, 54 F.2d 1027, 1031 (C.A. 4, 1932), cert. denied, 286 U.S. 557, 52 S.Ct. 640, 76 L.Ed. 1291 (1932); Mims v. Shapp, 541 F.2d 415, 417 (C.A. 3, 1976). The affidavit, however, is strictly construed against the affiant, for a judge is presumed to be impartial. United States v. Garrison, 340 F.Supp. 952, 956 (E.D.La.1972).

The affidavit and certificate in this case were timely filed within the period allowed by the Court. However, the sufficiency of the affidavit is quite another matter. Section 144 requires a "sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice . . .." (Emphasis added). Personal bias is defined as an attitude arising from extrajudicial sources that results "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), or results in an "attitude toward the petitioner that is significantly different from and more particularized than the normal, general feelings of society at large against convicted wrongdoers." Mims v. Shapp, supra at 417.

On the other hand, it is equally clear that a claim of bias or prejudice based on judicial knowledge gained from prior hearings or other cases is not sufficient grounds for disqualification of a judge whether it be from prior judicial exposure to the defendant or prior judicial rulings adverse to the defendant in the same or different cases. United States v. Beneke, 449 F.2d 1259, 1260 (C.A. 8, 1971); Hodgson v. Liquor Salesmen's Union Local No. 2, 444 F.2d 1344 (C.A. 2, 1971); Barry v. Sigler, 373 F.2d 835, 836 (C.A. 8, 1967); Tynan v. United States, 126 U.S.App.D.C. 206, 376 F.2d 761, 764-765 (1967), cert. denied, 389 U.S. 845, 88 S.Ct. 95, 19 L.Ed.2d 111 (1967); Lyons v. United States, 325 F.2d 370 (C.A. 9, 1963), cert. denied, 377 U.S. 969, 84 S.Ct. 1650, 12 L.Ed.2d 738 (1964); Barnes v. United States, 241 F.2d 252, 254 (C.A. 9, 1956). Furthermore, the outright denial of a trial continuance (which was granted in this case) does not give rise to disqualification. United States v. Ming, 466 F.2d 1000, 1003 (C.A. 7, 1972), cert. denied, 409 U.S. 915, 93 S.Ct. 235, 34 L.Ed.2d 176 (1972); Cuddy v. Otis, 33 F.2d 577 (C.A. 8, 1929); Bumpus v. Uniroyal Tire Co., 385 F.Supp. 711, 714 (E.D.Pa.1974). See also United States v. Anderson, 433 F.2d 856 (C.A. 8, 1970).

Consequently, defendant's allegation of bias founded a upon the fact that I sentenced defendant in a prior unrelated case, or b because I set this case for trial, in accordance with the court's Speedy Trial Plan, after the time for filing motions had expired are insufficient grounds as a matter of law to disqualify me.

Defendant's third general allegation that I am personally prejudiced against the defendant c because of recent prejudicial publicity is likewise legally insufficient to disqualify me. To warrant disqualification the affidavit "must give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment." Berger, supra, 255 U.S. at 33-34, 41 S.Ct. at 233. This requires more than mere conclusions; facts including time, place, persons and circumstances must be set forth. United States v. Townsend, supra at 1074; Hodgson v. Liquor Salesmen's Union Local No. 2, supra at 1348; Inland Freight Lines v. United States, 202 F.2d 169 (C.A. 10, 1953). No disqualifying facts have been pleaded here. Accepting the fact allegation that there has been recent publicity concerning the defendant, no other facts are alleged as to the media disseminating the publicity, or the extent or content of the publicity, or the fact that I was exposed to any of it, or the fact that it had any effect upon my impartiality. The allegation of my bias rests solely on uncited pre-trial publicity and is simply a bare conclusion unsupported by any...