United States v. ThomasUnited States v. Thomas
HARPER, Chief Judge.
This matter is presently pending before this court on three motions made by the defendant; one, a motion to transfer, two, a motion to suppress certain evidence, and three, a motion for a bill of particulars.
On September 25, 1968, the defendant, Joseph Major Thomas, was indicted by a grand jury for a violation of
“(a) For Prejudice in the District. The court upon motion of the defendant shall transfer the proceeding as to him to another district whether or not such district is specified in the defendant‘s motion if the court is satisfied that there exists in the district where the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial at any place fixed by law for holding court in that district.
“(b) Transfer in Other Cases. For the convenience of parties and witnesses,
and in the interest of justice, the court upon motion of the defendant may transfer the proceeding as to him or any one or more of the counts thereof to another district.”
Even a hurried reading of these two subsections of
However, the defendant is not without a remedy.
“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 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.”
It is clear from the record that the defendant‘s first “motion to transfer” filed on October 15, 1968, was in fact a motion which should have properly been made under this
As previously noted, this court must overrule this motion if it is continued to be made “pursuant to
It is perfectly obvious that the existence of a completely fair and impartial tribunal is the most basic requirement of due process. Without that, our judicial system would be a farce.
As noted, “[T]he statute never contemplated crippling our courts by disqualifying a judge, solely on the basis of a bias (or state of mind, Berger v. United States, 255 U.S. 22, 42, 41 S.Ct. 230, 65 L.Ed. 481) against wrongdoers, civil or criminal, acquired from evidence presented in the course of judicial proceedings before him. Any other construction would make the statute an intolerable obstruction to the efficient conduct of judicial proceedings, now none too speedy or effective.” Craven v. United States, 22 F.2d 605, 608 (1st Cir. 1927). Thus, what the statute is designed to remedy is the situation in which the judge in question is alleged to have a bias or prejudice against this defendant of such a nature that it would prevent that judge from presiding in a fair and impartial manner It would seem that in a trial before a jury, such allegations must be particularly serious to warrant a judge withdrawing.
It has been repeatedly stated by many authorities that the judge involved has a duty to remain as judge in a particular instance and that this duty is equally as strong in his duty under this statute to recuse himself. In re Union Leader Corp., supra, 292 F.2d at 391; Simmons v. United States, 302 F.2d 71 (3rd Cir. 1962); In re Federal Facilities Realty Trust Co., 140 F.Supp. 522, 524 (N.D. Ill.1956).
Clearly the mere fact that an affidavit of prejudice has been filed by the defendant does not automatically require a judge to disqualify himself. United States v. Hanrahan, 248 F.Supp. 471, 475 (D.C.D.C.1965); United States v. Gilboy, 162 F.Supp. 384, 388 (M.D. Pa.1958). The judge attacked by the affidavit must, however, initially determine the legal sufficiency of the affidavit and the facts that are stated therein. See, e. g. United States v. Hanrahan, supra; Green v. Murphy, 259 F. 2d 591, 593 (3rd Cir.1958). In essence it must be said that the statute here provides the defendant with the means whereby he can insure that his trial is free from any personal bias or prejudice, subject only to his ability to allege facts to support his claim and his attorney‘s duty to certify good faith in the filing of the affidavit. Mitchell v. United States, 126 F.2d 550, 552 (10th Cir.), cert. denied, 316 U.S. 702, 62 S.Ct. 1307, 86 L.Ed. 1771 (1942). The defendant and his attorney‘s sense of ethics are the sole limits provided by this section. The court is precluded from refuting the facts alleged regardless of their nature. It cannot pass on their truth, but rather must accept them as fact. Hence review is limited to sufficiency and compliance with the statute. 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); Korer v. Hoffman, 212 F.2d 211, 45 A.L.R.2d 930 (7th Cir. 1954); United States v. Parker, 23 F.Supp. 880 (D.N.J. 1938), aff‘d 103 F.2d 857 (3 Cir.); Johnson v. United States, 35 F.2d 355, 357 (D.C.Wash. 1929).
At the onset of the inquiry the judge is presumed to be qualified to hear the case, and there is a substantial burden upon the defendant to demonstrate that such is not the case. In re Union Leader Corp., supra, 292 F.2d, at 389. As stated in Ex parte American Steel Barrel Co., supra, 230 U.S., at 43, 33 S.Ct., at 1010: “[T]he basis of disqualification is that `personal bias or prejudice’ exists, by reason of which the judge is unable to impartially exercise his function in the particular case.” The burden upon the affiant to provide this basis is threefold. First, the affidavit must state facts with sufficient particularity. Only the facts contained therein are relevant, not conclusions. E. g., Inland Freight Lines v. United States, 202 F.2d 169 (10th Cir. 1953). Second, the facts must be such as to convince a reasonable man that a bias or prejudice exists. United States v. Hoffa, 245 F.Supp. 772 (E.D.Tenn. 1965); Berger v. United States, supra, 255 U.S., at 33-34, 41 S.Ct. 230. Third, “[I]n addition to establishing that a prejudice or bias harbored by a judge is of such a nature that it has, or may have, closed his mind to justice, the factual allegations must also show that this bias is personal, as opposed to judicial in nature.” United States v. Hanrahan, supra, 248 F.Supp., at 476; Gallarellie v. United States, 260 F.2d 259 (1st Cir. 1958); United States v. Gilboy, supra, 162 F.Supp., at 394. (In ascertaining whether or not this burden has been met by the affiant, the law clearly has developed so that the statutory requirements are to be strictly followed. E. g., Scott v. Beams, 122 F.2d 777, 778 (10th Cir. 1941).) That the bias demonstrated must be personal is of the greatest significance. Craven v. United States, supra, 22 F.2d, at 607; In re Union Leader Corp., supra, 292 F.2d, at 388. The bias or prejudice complained of must relate to this individual as such. See United States v. Hanrahan, supra; In re Federal Facilities Realty Trust Co., supra, 140 F.Supp., at 526. Judicial “bias” is not sufficient. It would be less than natural if certain attitudes were not developed over the years one spends on the bench. It would indeed be strange if “a judge became less qualified the greater his judicial experience.”
Having outlined in a general way the applicable law, a view at the motion is appropriate. The circumstances presented are these. In October this court was called upon to rule on a motion for a preliminary injunction against certain officials and police officers in the City of St. Louis. The action there is denominated as a class action and one of the named plaintiffs is the leader of a militant Negro organization named the Black Liberators. After having heard the evidence then presented, the court on the basis of that evidence ruled on the motion. Counsel for the defendant herein stated that the defendant was a member or otherwise associated with that group and further related that the defendant had been ejected from the court room during those proceedings. (The latter is not made part of the motion or affidavit.) If defendant were ejected from this court (and there is certainly no evidence that he ever was), since there were no disturbances on the day in question, such ejection, if any, would have been for violation of this court‘s rule that males wear coats in the court room, a rule about which all had been warned and informed on a preceding day.
As to the matter then before the court, Koen, et al. v. Long, et al., any comments made by the court in its ruling were, of course, based upon the evidence therein presented. They have no relevance to this case which prima facie appears to be entirely unrelated to the incidents which were in fact the subject matter of that other lawsuit. Looking at the motion, the first paragraph states that the affiant does not believe that he can get a fair trial. This is, of course, a bare conclusion, not a fact nor a reason, and is therefore clearly legally insufficient. The second paragraph relates to the Koen matter heretofore noticed. While this paragraph is deficient as it fails to state facts, more important it is deficient in that it fails to demonstrate any personal bias or prejudice relating to this defendant as an individual on trial. Opinions and conclusions drawn from evidence presented in a judicial proceeding do not disqualify a
But this is not the sole reason for the rejection of this motion. This affidavit is the second one filed in this case, the first having been filed before the Honorable John K. Regan. As noted in Martin v. Texas Indemnity Ins. Co., 214 F.Supp. 477, 480 (N.D.Tex. 1962): ”
For the reasons heretofore outlined the defendant‘s motion to transfer will be overruled.
The second matter before the court is the defendant‘s motion to suppress certain evidence alleged to have been seized after an unlawful arrest of defendant in violation of his constitutional rights. The evidence in question apparently is a sawed-off .22 caliber rifle. A hearing was held on this motion and certain evidence adduced. The defendant himself testified that the police stopped the 1961 Cadillac in which he was riding without reason; forced him to get out of the car; searched the car and found the weapon; and then arrested him without a warrant. Another of defendant‘s witnesses, Bailey, testified that the gun was on the seat of the car between himself and the driver and that the police saw the gun on the seat before they were taken out of the car. Without regard to the problems of standing to object to this evidence by reason of claims that it did not belong to him, this court finds that the credible evidence presented was that of Donald Harris, a policeman who made the arrest. Officer Harris testified that he saw the defendant get out of the 1961 Cadillac with what he then thought was a sawed-off shotgun in plain view. The defendant had the gun in his right hand. The officer then got out of the police car and proceeded to arrest the defendant and seize the weapon, which turned out to be a sawed-off .22 caliber rifle. Such testimony, being the only credible evidence presented, clearly reveals that the seizure of the weapon was incidental to a perfectly valid arrest. Therefore, the motion to suppress this evidence will be overruled.
The third matter here before the court is a motion for a bill of particulars. The defendant attacks the indictment on the basis that it is not sufficiently particular, and that the facts are not sufficiently set forth in the indictment to protect the defendant from the danger of double jeopardy.
The indictment returned in this case charges the defendant with a violation of