The opinion of the court was delivered by: SIRICA
The present criminal case derives from a thirteen-count indictment charging seven individuals with conspiracy to obstruct justice and other offenses. The Court now has before it two motions, timely filed, for disqualification. Three defendants, John N. Mitchell, John Ehrlichman and Charles Colson jointly move that the Court be disqualified from further participation in this case pursuant to the provisions of Title 28 United States Code §§ 144 and 455
and the Fifth and Sixth Amendment rights to a fair trial. Defendant Gordon Strachan moves for disqualification or voluntary recusal on the same basis. Defendant Kenneth Wells Parkinson joins in both motions. The remaining two defendants, Harry R. Haldeman and Robert C. Mardian have not participated.
Defendants Mitchell, Ehrlichman and Colson joined by defendant Parkinson have moved that the disqualification motions be referred to the Court Calendar Committee for disposition. The Special Prosecutor in his submission notes that, although such motions are ordinarily determined by the challenged judge, in a few instances judges have elected to refer such decisions elsewhere. He does not object to that being done here. The Court, however, is strongly opposed to such a procedure. To the Court's knowledge, the practice is without precedent in this Circuit. It is permissible at best, and under the statutes that govern here, may be improper. § 144 lays the decision-making burden upon the judge involved, and the part of § 455 most strongly relied upon by defendants calls specifically for the judge's opinion. "The Supreme Court has ruled that the judge has a lawful right to pass on the legal sufficiency of the affidavit, . . . subject to appellate review, of course, and we consider it the duty of the judge, when the showing for recusation is insufficient, to remain in the case." Eisler v. United States, 83 U.S.App.D.C. 315, 170 F.2d 273, 278 (1948). See also United States v. Bell, 351 F.2d 868, 878 (6th Cir. 1965) (challenged judge has duty to pass on sufficiency) and cases cited therein. A judge challenged under these statutes ought to be willing to shoulder the responsibility of ruling in the matter. Only the individual judge knows fully his own thoughts and feelings and the complete context of facts alleged. It follows that only he can be certain of the most equitable resolution. If the judge errs in his determination, the proper remedy is in appellate review. These considerations plus the delay inherent in the suggested procedure have convinced the Court that in acquiescing it would be setting a most 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 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).
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).
In Partin, four of the five grounds for disqualification listed in the defendant's affidavit cited court rulings, one in the case then pending and the others in three unrelated and separate proceedings in which the defendant was a party. In one civil action mentioned, for example, defendant claimed that "comments from the court to counsel for affiant [at a deposition hearing] 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." United States v. Partin, supra, 312 F. Supp. at 1356-1357. Partin also cited the action of Chief Judge West in recusing himself without an assignment of reasons, from another case in which he, Partin was ...