unwise precedent. The motion is therefore denied.
Likewise the proposed evidentiary hearing is unnecessary. The facts surrounding the Court's suggestion of possible grand jury witnesses are on the record under seal. The transcript will be made available to counsel at their request. In regards to the Court's meetings with Special Prosecution Force personnel, there are no relevant facts to be had. These proceedings included no discussion of evidence bearing on the guilt or innocence of any defendant in this case nor any discussion even remotely of the kind. An inquiry into the sufficiency of the affidavits as filed will satisfy defendants' rights. United States v. Partin, 312 F. Supp. 1355, 1361 (E.D.La.1970).
When presented with an affidavit of prejudice made pursuant to § 144, a court may not pass upon the truth or falsity of the allegations, but must accept them as true for the purpose of determining the legal sufficiency of the affidavit. See 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); and Korer v. Hoffman, 212 F.2d 211 (7th Cir. 1954).
"In the last analysis, the statute involved is not concerned with the actual state of mind of the judge or litigant but only with what the latter is willing to incorporate in an affidavit and counsel to indorse." Johnson v. United States, 35 F.2d 355, 357 (W.D.Wash.1929). The mere filing of an affidavit of prejudice does not automatically disqualify a judge, United States v. Gilboy, 162 F. Supp. 384, 388 (M.D.Pa.1958), but the judge must pass upon the legal sufficiency of the facts well-pleaded. See Green v. Murphy, 259 F.2d 591, 593 (3d Cir. 1958); Eisler v. United States, 83 U.S. App. D.C. 315, 170 F.2d 273, 278 (1948). While factual allegations may not be controverted, the affidavit itself must be strictly construed. See e.g., United States v. Gilboy, supra, 162 F. Supp. at 388, 389; Sanders v. Allen, 58 F. Supp. 417, 420 (S.D. Cal. 1944). The judge is presumed impartial. Beland v. United States, 117 F.2d 958, 960 (5th Cir.) cert. denied 313 U.S. 585, 61 S. Ct. 1110, 85 L. Ed. 1541 (1941). It must state facts as opposed to conclusions and generalities, Simmons v. United States, 302 F.2d 71, 76 (3d Cir. 1962); Inland Freight Lines v. United States, 202 F.2d 169, 171 (10th Cir. 1953); Boyance v. United States, 275 F. Supp. 772, 774 (E.D.Pa.1967), and while the information and belief of the affiant as to the truth of the allegations are sufficient, Berger v. United States, supra, 255 U.S. at 34, mere rumors and gossip are not enough, Id. at 33. The identifying facts of time, place, persons, occasion and circumstances must be set forth, Johnson v. United States, supra, 35 F.2d at 357, with at least that degree of particularity one would expect to find in a bill of particulars. See Morse v. Lewis, 54 F.2d 1027, 1032 (4th Cir. 1932); United States v. Gilboy, supra 162 F. Supp. at 392-393.
In assessing sufficiency of the facts alleged by affidavit, decisions have emphasized that any bias must be personal, that is, have its origin "in sources beyond the four corners of the courtroom." In re Federal Facilities Realty Trust, 140 F. Supp. 522, 526 (N.D.Ill.1956). "The alleged bias and prejudice to be disqualifying must stem from an extrajudicial source and result 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).
In Hanger v. United States, 398 F.2d 91 (8th Cir. 1968), Judge Meredith of the Eastern District of Missouri refused to disqualify himself from the retrial of a criminal case where the defendant's affidavit of prejudice alleged that at sentencing following the first trial, the judge expressed his belief in the defendants' guilt and described them as deserving severe punishment. The Eighth Circuit Court of Appeals found no error in that decision noting that the judge's opinions derived from proceedings had before him and they did not constitute the personal bias contemplated by § 144. And in United States v. Dichiarinte, 445 F.2d 126, 132-133 (7th Cir. 1971), the court held: "The fact that the judge might have formed an opinion concerning the guilt or innocence of the defendant from the evidence presented at an earlier trial involving the same person is not the kind of bias or prejudice which requires disqualification."
In a case that bears some striking similarities to the action at bar, Wolfson v. Palmieri, 396 F.2d 121 (2d Cir. 1968), the Second Circuit reaffirmed the principle that the alleged prejudice, no matter how demonstrated, must be personal as opposed to judicial. There Judge Palmieri was assigned, apparently by special assignment, the trial of a criminal indictment, and within a few days, the trial of a second related indictment. Following their conviction in the first case, the two defendants charged in both indictments moved to disqualify Judge Palmieri from the second trial. The motion followed appeal but preceded sentencing. Defendants objected to Judge Palmieri's continuation in the case (1) since it was closely related to the earlier indictment, (2) because of comments and rulings made by the judge at the prior trial, (3) because of pretrial rulings, and (4) because one of the judge's former law clerks was an assistant prosecutor and the defendants intended to claim prosecutorial misconduct. The Court of Appeals found nothing to indicate disqualifying prejudice and adjudged the § 455 claim regarding the former clerk without merit. The Second Circuit has also ruled that it is not improper for the same judge to sit at the trials of co-conspirators tried separately. United States v. DiLorenzo, 429 F.2d 216, 220-221 (2d Cir. 1970) cert. denied 402 U.S. 950, 91 S. Ct. 1609, 29 L. Ed. 2d 120 (1971). See also, United States v. Beneke, 449 F.2d 1259 (8th Cir. 1971).
In this Circuit the rule is equally well settled. The Court of Appeals has stated in Hurd v. Letts, 80 U.S.App.D.C. 233, 152 F.2d 121 (1945) and Eisler v. United States, supra, 170 F.2d 273, and more recently in Tynan v. United States, 126 U.S.App.D.C. 206, 376 F.2d 761, cert. denied 389 U.S. 845, 88 S. Ct. 95, 19 L. Ed. 2d 111 (1967) and Brotherhood of Locomotive Firemen and Engineers v. Bangor & Aroostook R. Co., 127 U.S.App.D.C. 23, 380 F.2d 570 (1967) that bias or prejudice spoken of by § 144 must have originated from extrajudicial sources, and must bear directly on the then current proceeding. In the Tynan case, captioned below as United States v. Hanrahan, 248 F. Supp. 471 (D.D.C.1965) defendant Hanrahan, upon remand of his case following conviction, moved to disqualify the trial judge from continuing further. The affidavit filed under § 144 alleged that the judge (1) had expressed at the bench an opinion that defendant was guilty, (2) had told the prosecutor he should bring witnesses to refute defendant's testimony, (3) had threatened at trial to lock up defendant if he did not plead guilty, (4) during the proceeding said he did not want defendant to get a reversal on a technicality, and (5) said that defendant had had more than his day in court. Although as a matter of fact, some of the allegations were untrue, the Court of Appeals agreed with the trial judge that the allegations at face value did not constitute grounds for disqualification since none suggested attitudes developed from sources other than court proceedings or evidence in the case.
Additional well-reasoned decisions treating this point include Mirra v. United States, 379 F.2d 782 (2d Cir. 1966) cert. denied 389 U.S. 1022, 88 S. Ct. 593, 19 L. Ed. 2d 667 (1967); Hodgdon v. United States, 365 F.2d 679 (8th Cir. 1966) cert. denied 385 U.S. 1029, 87 S. Ct. 759, 17 L. Ed. 2d 676 (1967); Gallarelli v. United States, 260 F.2d 259 (1st Cir. 1958), cert. denied 359 U.S. 938, 79 S. Ct. 654, 3 L. Ed. 2d 638 (1959); United States v. Gilboy, supra, 162 F. Supp. 384.
Also applicable here is the corollary principle that prior judicial determinations and inferences drawn therefrom are not grounds for recusal. In United States v. Partin, supra, 312 F. Supp. at page 1358, Chief Judge West noted,
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 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).