made for the Division on September 9 by the First Assistant).
On my own motion I have carefully considered whether, in light of the foregoing, including the April 1978 newspaper article, I should disqualify myself from trying the Flood case because my impartiality could reasonably be questioned. See 28 U.S.C. § 455.*
It is obvious and understandable that the April 1978 newspaper article was written without the benefit of much of the information which is now being filed in Court on the public record and under seal. In addition, counsel for the Government has represented that, despite suggestions to the contrary in the article, neither of the taxpayers investigated in 1964 will be involved as a witness, or otherwise, in the case now pending with respect to Congressman Flood.
In any event, I have concluded from a review of the public documents and of the sealed ones as well as from the conferences with counsel for both parties that my impartiality could not reasonably be questioned so as to justify my disqualifying myself pursuant to 28 U.S.C. § 455(a). This decision not to disqualify is, however, necessarily based in substantial part upon In camera consideration of sealed Tax Division memoranda. This fact raises the question of whether it would be appropriate for me to retain this case without making available for public scrutiny the relevant Tax Division memoranda about the 1964 case which I have considered in deciding not to disqualify in this case. I conclude that it would not be appropriate for me to try such an important and sensitive case unless those memoranda were in the public record. Compare 28 U.S.C. § 455(e).
It is, of course, theoretically possible to place the memoranda there. But the Government contends, and I agree, that publication of them is precluded by the Privacy Act and the Freedom of Information Act, 5 U.S.C. §§ 552, 552a. The 1964 case was never prosecuted criminally. Facts and unproved allegations of criminal conduct by the taxpayers discussed in the memoranda were never presented to a grand jury. Furthermore, publication of the internal memoranda now could impair the future free exchange of ideas and arguments between Tax Division lawyers responsible for recommendations for and against criminal prosecution of taxpayers. In the unusual circumstances here, even if the law were otherwise, it would be neither fair nor in the public interest to risk exposing the Tax Division and the taxpayers involved in the 1964 investigation to the possible side effects of publication of the memoranda.
The Flood case is in a very preliminary stage; the trial date is just being set. Such an important and sensitive case ought to be conducted as nearly free as possible from side issues which might attract additional pre-trial publicity. I have twelve eminent and able colleagues who could try this case fairly and efficiently without this particular side issue. Accordingly, I am exercising my discretion under our Local Rules and practice to transfer the Flood case to the Calendar Committee for reassignment to another judge. See U.S.Dist.Ct.R. 3-5(a).
The above-entitled matter came before the Court for the setting of a trial date, the defendant having previously been arraigned and pleaded not guilty. The defendant and his counsel have each represented in open court that the defendant would waive application of the statute, 18 U.S.C. 3161 Et seq., and local Court Rules, U.S.Dist.Ct.R. 2-7, pertaining to speedy trial. Thereafter, with the concurrence of the parties, this Court set January 15, 1979, as the date for trial with the expectation that the United States will promptly subpoena its witnesses for a trial commencing that date.
The indictment originally filed in this Court alleges a number of complex transactions involving several different persons. It has since been consolidated for trial with a second case originally filed in the Central District of California. The Court hereby finds from the face of the indictment and representations of counsel that the ends of justice served by setting the trial on January 15, 1979, outweigh the best interest of the public and the defendant in a speedy trial. 18 U.S.C. 3161(h)(8)(A). In support of this finding the Court has considered and concluded that failure to grant this continuance (i) would be likely to result in a miscarriage of justice and (ii) that the case taken as a whole is so unusual and complex, due to the nature of the prosecution, that it is unreasonable to expect adequate preparation within the periods established by law. 18 U.S.C. 3161(h)(8)(B). Accordingly, it is hereby
ORDERED: That the period of delay resulting from the continuance of the trial to January 15, 1979, shall be excluded in computing the time within which the trial in this case must commence.
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