United States v. Zarowitz

• Decision Date: 19 April 1971
• Docket Number: No. 7227-CR.,7227-CR.
• Citation: 326 F. Supp. 90
• Court: U.S. District Court — Central District of California
• Parties: UNITED STATES of America, Plaintiff, v. Jerome ZAROWITZ, Sanford Waterman, Elliott Paul Price, Marvin Sillman, Frank Lang Rosenthal, Defendants.

326 F. Supp. 90

UNITED STATES of America, Plaintiff, v. Jerome ZAROWITZ, Sanford Waterman, Elliott Paul Price, Marvin Sillman, Frank Lang Rosenthal, Defendants.

No. 7227-CR.

United States District Court, C. D. California.

April 19, 1971.

Robert L. Meyer, U. S. Atty., Alfred N. King, Robert S. Thaller and Richard P. Crane, Jr., Special Attys., U. S. Dept. of Justice, Los Angeles, Cal., for plaintiff.

Wyman, Bautzer, Finell, Rothman & Kuchel, Milton A. Rudin and Alan D. Croll, Beverly Hills, Cal., for defendant Jerome Zarowitz.

Simon, Sheridan, Murphy, Thornton & Medvene, Thomas R. Sheridan, Los Angeles, Cal., for defendant Sanford Waterman.

Paul T. Smith, Boston, Mass., for defendant Elliott Paul Price.

Burton & Marshall, Adrian Marshall, Beverly Hills, Cal., for defendant Marvin Sillman.

Goodman & Snyder, Ltd., Oscar Goodman, Los Angeles, Cal., for defendant Frank Lang Rosenthal.

FINDINGS, CONCLUSIONS AND ORDER GRANTING DEFENDANTS' MOTIONS FOR DISQUALIFICATION AND REASSIGNMENT OF CASE

HAUK, District Judge.

This matter has come on for hearing Monday, April 19, 1971, at 2:00 P.M., before the Honorable A. ANDREW HAUK, United States District Judge, to whom the case, cause and proceedings herein¹ was heretofore assigned by lot under the rules, regulations and orders of this United States District Court for the Central District of California and particularly General Order No. 104 thereof, upon the Motions of the Defendants that the said Judge disqualify himself from any further action or participation herein.

After full consideration of said motions, the affidavits of Defendants and the certificates of good faith of their counsel of record, together with the points and authorities submitted in support thereof, the points and authorities filed by the Government in opposition thereto, and the oral arguments made in Court today, and good cause appearing, the aforesaid Judge now makes and enters his findings, conclusions and order as follows:

FINDINGS AND CONCLUSIONS

1. Each and all of the affidavits filed by the respective Defendants is and are timely within the meaning and intent of 28 U.S.C. § 144.²

2. Said affidavits set forth certain factual allegations, the truth or falsity of which the Judge may not pass upon or control, and which the Defendants assert support the charge that this Judge has a personal bias or prejudice against them. However, although these factual allegations must be accepted, the Court is obliged to determine their legal sufficiency. Berger v. United States, 255 U.S. 22, 33, 41 S.Ct. 230, 65 L.Ed. 481 (1921); Botts v. United States, 413 F.2d 41 (9th Cir. 1963); United States v. Tropiano, 418 F.2d 1069 (2d Cir. 1969); Lyons v. United States, 325 F.2d 370 (9th Cir. 1963), cert. den., 377 U.S. 969, 84 S.Ct. 1650, 12 L.Ed.2d 738 (1964).

3. The Judge does not now have, nor did he ever have, any such alleged personal bias or prejudice in the slightest degree for or against any of the parties to this case, cause and proceeding herein, and more particularly does not now have and never did have any such alleged personal bias or prejudice in the slightest degree against any of the Defendants herein, singly or collectively.

4. However, the allegations of the affidavits which the Court and Judge must accept as true, are, in the absence of any contradictory evidence which as we have noted is absolutely impermissible under 28 U.S.C. § 144, legally sufficient to show that there is perhaps the appearance of a possibility of personal bias or prejudice of the Judge against at least two of the Defendants, Messrs. Jerome Zarowitz and Elliott Paul Price, by reason of two decisions heretofore rendered by the Judge, compelling testimony of recalcitrant but immunized witnesses in the Grand Jury investigation of a certain alleged meeting in Palm Springs of these two Defendants with other persons who in prior decisions of other Federal Courts of the nation had been characterized as New York members of the notorious underground or underworld group known variously as the Mafia or the Cosa Nostra. In re Loughran, 276 F.Supp. 393, 396 n. 8 (C.D.Cal. 1967); In re Lazarus, 276 F.Supp. 434, 436 n. 9 (C.D.Cal.1967).

5. Moreover the affidavits also set forth other allegations which are indeed actually true as this Judge is well aware, relating to five orders entered by this Judge last September, October and November authorizing fifteen-day wiretaps of several telephones, along with extensions of three of them for additional fifteen-day periods, during the course of which reports were duly rendered to the Court every five days, all as provided by and in accordance with the relatively new Federal wiretapping statutes, 18 U.S.C. §§ 2510-2520 (1968, as amended 1970). And, as alleged in Defendants' affidavits, this Judge necessarily received and filed, secretly and ex parte as provided by law, evidentiary facts by way of affidavits supporting the authorizing wiretapping orders and extensions as well as by way of the five-day reports, which are most certainly relevant and will be introduced in evidence at future hearings upon motions to suppress evidence and during the trial of this case, cause and proceeding. These allegations factually tend to show the appearance, though not the actuality, of possible personal bias or prejudice on the part of this Judge by reason of what might be termed participation in pre-indictment investigations as well as pre-knowledge or pre-viewing by this Judge of evidence helpful to the prosecution but prejudicial to the defense.

6. Thus we conclude that these two sets of allegations do not in and of themselves, whether taken together or separately, show any actual personal bias or prejudice of this Judge that would clearly and peremptorily disqualify him under 28 U.S.C. § 144; nor do they support the other contentions of the Defendants that the Judge will be a "material witness", has been "of counsel" to the Government, or has a "substantial interest" in the case requiring him to disqualify himself under 28 U.S.C. § 455³; nor do they convince the Court that this Judge would be called upon to "determine an appeal" of his own prior decisions in violation of 28 U.S.C. § 47.⁴ Nevertheless, as we also conclude, the two sets of allegations, taken together do appear to be sufficient, legally and factually and standing as they must without evidentiary contradiction, to show the appearance of possible personal bias or prejudice—a showing which necessarily gives us pause and dictates that we disqualify and recuse ourself sua sponte.

7. Finally, a circumspect and punctilious devotion to the ideal of justice in the abstract as it appears to the public at large, as well as the ideal of fairness as it is applied concretely in the case before us, affirms our determination to disqualify and recuse ourself. Like Caesar who parted from his wife Pompeia because she was not above suspicion,⁵ so here to avoid even the appearance of the possibility of personal bias or prejudice, wise discretion and sound judgment compel us to leave this case, however reluctant we are to thrust its burden upon another Judge of our Court or to cause any delay or inconvenience to the parties.

As Mr. Justice Frankfurter so eloquently put it, Public Utilities Comm'n v. Pollak, 343 U.S. 451, 466-467, 72 S.Ct. 813, 822-823, 96 L.Ed. 1068 (1952), in voluntarily withdrawing from participation in a case where no objection by any of the parties had been raised or even hinted:

"The judicial process demands that a judge move within the framework of relevant legal rules and the covenanted modes of thought for ascertaining them. He must think dispassionately and submerge private feeling on every aspect of a case. There is a good deal of shallow talk that the judicial robe does not change the man within it. It does. The fact is that on the whole judges do lay aside private views in discharging their judicial functions. This is achieved through training, professional habits, self-discipline and that fortunate alchemy by which men are loyal to the obligation with which they are entrusted. But it is also true that reason cannot control the subconscious influence of feelings of which it is unaware. When there is ground for believing that such unconscious feelings may operate in the ultimate judgment, or may not unfairly lead others to believe they are operating, judges recuse themselves. They do not sit in judgment. They do this for a variety of reasons. The guiding consideration is that the administration of justice should reasonably appear to be disinterested as well as be so in fact."

And more recently as phrased so aptly by Mr. Justice Black, In Re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955) in reversing as a denial of due process the action of a State judge in presiding at the trial of a contempt citation which he had initiated as a "one-man grand jury":

"A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness. To this end no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome. That interest cannot be defined with precision. Circumstances and relationships must be considered. This Court has said, however, that

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