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UNITED STATES v. POLLARD

September 10, 1990

UNITED STATES OF AMERICA, Plaintiff,
v.
JONATHAN POLLARD, Defendant


Aubrey E. Robinson, Jr., Chief United States District Judge.


The opinion of the court was delivered by: ROBINSON, JR.

AUBREY E. ROBINSON, JR., CHIEF UNITED STATES DISTRICT JUDGE

 Nearly four years after pleading guilty to one count of conspiracy to commit espionage in violation of 18 U.S.C. § 794(c), defendant moves on several grounds to withdraw the plea and to stand trial. He files his motion under 28 U.S.C. § 2255. Defendant also moves that his counsel now be provided with access to certain materials made available to him and to the Court at sentencing, namely the classified memoranda submitted both by the Government and by then-Secretary of Defense Caspar Weinberger. Finally, defendant has supplemented his Motion to Withdraw Guilty Plea with an additional claim, previously maintained under seal, that the Government had ex parte contact with the Court prior to sentencing. Based upon the allegations this pleading contains, he also moves that the Court disqualify itself under 28 U.S.C. § 455.

 I. The Court's Alleged Receipt of Ex Parte Material and Defendant's Motion to Disqualify the Court Pursuant to 28 U.S.C. § 455

 A specific and supplemental ground offered as a basis for withdrawing his guilty plea leads defendant to argue that the Court cannot hear this matter because it is a witness to material facts and must testify at some future hearing. Defendant has submitted the sworn affidavit of Professor Alan Dershowitz. *fn2" In this affidavit, Professor Dershowitz reports a series of communications he had with former Supreme Court Justice Arthur Goldberg, who is now deceased. Dershowitz alleges that before he died, Justice Goldberg told Dershowitz of a conversation he claimed to have had with this Court regarding the sentence given defendant. In this conversation, as reported by Justice Goldberg to Mr. Dershowitz, the Court allegedly stated that in sentencing defendant, it relied upon certain materials provided by the Government to the Court ex parte.

 These materials supposedly indicated, falsely, that defendant provided United States satellite intelligence to Israel about Israeli missile programs in South Africa. Defendant believes that if the allegations in Mr. Dershowitz' affidavit are true, the Government violated its plea agreement with him and he is therefore entitled to withdraw his plea. He can only pursue this inquiry through an evidentiary hearing. According to defendant, the only available witness who can testify about the matter is the Court. Hence, the Court must disqualify itself.

 Title 28 of the U.S. Code, section 455 provides that a Judge of the United States shall disqualify himself "in any proceeding in which his impartiality might reasonably be questioned." 28 U.S.C. § 455(a). In addition, "he shall also disqualify himself . . . where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding." Id. § 455(b). Defendant's focus in invoking the section is upon the role he perceives for the Court in shedding light on the question whether any ex parte communication occurred. Recusal is required, he argues, both because the Court has personal knowledge regarding this disputed fact and because, given his allegations, a reasonable person may have doubts concerning the Court's impartiality.

 Of course, to justify disqualification the Court's knowledge of disputed facts, or any alleged bias, must have an extrajudicial source. "Knowledge gained through the court's judicial role is not 'personal' knowledge within the meaning" of section 455. United States v. Heldt, 215 U.S. App. D.C. 206, 668 F.2d 1238, 1274 (D.C. Cir. 1981), cert. denied, 456 U.S. 926, 102 S. Ct. 1971, 72 L. Ed. 2d 440 (1982). Moreover, "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 leaned from his participation in the case." United States v. Grinnell Corp., 384 U.S. 563, 583, 16 L. Ed. 2d 778, 86 S. Ct. 1698 (1966).

  Here, the knowledge at issue -- whether the Court received any information about defendant from the Government ex parte -- is clearly knowledge gained by the Court in its judicial role. The Court "knows" that it did not receive such information, as is in fact the case, because and only because of its participation in this criminal action against defendant. The Government cites two cases which indirectly bolster this point. In United States v. Hillsberg, 812 F.2d 328 (7th Cir. 1987), cert. denied, 481 U.S. 1041, 95 L. Ed. 2d 821, 107 S. Ct. 1981 (1987), the trial court received a letter from the defendant's mother. Defendant argued that the letter gave the court personal knowledge of disputed evidentiary facts and put its impartiality in question. According to the Seventh Circuit, "Hillsberg's mother wrote to the trial judge as the judge in her son's cases so he received the letter in his judicial capacity." Id. at 335. See also United States v. Meester, 762 F.2d 867, 885 (11th Cir. 1985) (no recusal required because of phone call from bondsman reporting defendant's escape, which court received in judicial capacity, or from review of ex parte evidence and denial of motion for access, action which Court took in judicial capacity).

 Defendant correctly points out that these cases miss the mark somewhat, but he does so for the wrong reason. The court's "knowledge" in Hillsberg and Meester came from the ex parte materials themselves. Here, the threshold issue is whether contact occurred at all. Thus, pointing to the open and proper -- undeniably "judicial" -- manner in which the court acted in these and similar cases, *fn3" defendant posits that the alleged ex parte communication here would have been "received by the court without notice and without opportunity to object." According to defendant, "this does not constitute proper judicial action," and presumably therefore could not lead to knowledge gained in a judicial capacity. See Def. Reply to Gov't Opp. to Mot. to Disqualify at 8 n. 7. This may or may not be so. *fn4" The question is irrelevant because the "judicial capacity" issue in this case does not turn upon the propriety or impropriety of the conduct alleged by defendant. The issue is the Court's knowledge of what actually happened. Defendant's proposed inquiry into what the Court knows -- again, whether contact occurred -- could only be answered by reference on the part of the Court to its participation in this case. In that sense, the Court's knowledge that the ex parte communication described by defendant did not occur was indisputably gained in its judicial capacity. Section 455, therefore, does not require recusal, and defendant's motion for disqualification must be denied.

 The Court turns then to the substance of defendant's claim that under 28 U.S.C. § 2255, he should be permitted a hearing and discovery into the possibility that ex parte contact took place. Section 2255 provides that a federal prisoner may attack his sentence where that sentence was imposed in violation of the Constitution or law, exceeded the prescribed maximum, was assessed without jurisdiction, or is "otherwise subject to collateral attack." The provision calls for relief, for example, where a plea or sentence arose from "a fundamental defect which inherently results in a complete miscarriage of justice" or "an omission inconsistent with the rudimentary demands of fair procedure." See Hill v. United States, 368 U.S. 424, 428, 7 L. Ed. 2d 417, 82 S. Ct. 468 (1962).

 By the terms of section 2255, a motion may be made at any time, however this Court need not grant a hearing where controverted factual issues can be determined by the motion itself, by the trial court's files and records, or by the district judge's personal knowledge or recollection. See generally 28 U.S.C. § 2255; see also Machibroda v. United States, 368 U.S. 487, 494-95, 7 L. Ed. 2d 473, 82 S. Ct. 510 (1962); Virgin Islands v. Nicholas, 759 F.2d 1073, 1077 (3d Cir. 1985); Abatino v. United States, 750 F.2d 1442, 1444 (9th Cir. 1985).

 Quite obviously, the "personal knowledge" sanctioned for use by the district court on a motion under section 2255 is distinct from the "personal knowledge" which would require recusal under section 455. *fn5" The former is knowledge gained in a judicial capacity, and its use properly ensures that only palpably credible collateral attacks receive full-blown hearings. Indeed, "it is highly desirable that the motions be passed on by the judge who is familiar with the facts and circumstances surrounding" the case, and as a result "is not likely to be misled by false allegations as to what occurred." Carvell v. United States, 173 F.2d 348, 349 (4th Cir. 1949).

 The Court's determination regarding the credibility of defendant's allegations in the section 455 context, see supra note 4, applies equally here. The claim of ex parte contact by the Government is based upon pure hearsay, twice over. The Court's recollection of events is in stark contradiction to that claim. While the burden falls upon defendant to prove the ex parte communication, cf. Campbell v. Wainwright, 738 F.2d 1573, 1576 (11th Cir. 1984) (no evidentiary hearing required on allegation based solely on counsel's affidavit of ambiguous facts), cert. denied, 475 U.S. 1126, 106 S. Ct. 1652, 90 L. Ed. 2d 195 (1986), he offers no other evidence. It is difficult to see what a hearing would achieve, nor in any event is one justified by the bare affidavit proffered. Defendant's request for a hearing on his allegation, and ultimately to withdraw his plea on this basis and be resentenced, will therefore be denied.

 II. The Government's Adherence to the Plea Agreement; The Voluntariness of Defendant's Plea

 By his main motion, defendant claims three defects in his guilty plea and sentencing which require the withdrawal of the plea and trial. First, defendant argues that the Government breached its plea agreement with him. He asserts that the Government violated its promise not to seek a life sentence because "the entire tenor of its written and oral submissions at sentencing was a request for just such a sentence." Def. Mot. to Withdraw Plea at 1. Moreover, according to defendant, the Government failed to limit its statements to the facts and circumstances of defendant's crimes, and failed to advise the Court adequately of defendant's cooperation. The plea agreement provided for each of these promises expressly.

 Second, defendant contends that the Government improperly argued, and the Court improperly found, that he had violated the plea agreement when he gave an interview to a journalist without following certain steps required by the agreement. Finally, defendant claims that his plea came involuntarily because under the terms of the plea agreement, unless he entered a plea of guilty, his ill wife could not do so. As defendant was concerned for his wife's health and intent on avoiding a prison term for her, he argues that his plea was unlawfully compelled.

 Again, the burden placed upon a defendant in a post-sentence effort to withdraw a guilty plea is a demanding one. Together, Rule 32(d) and section 2255 provide that in order to succeed, a defendant must demonstrate that a "manifest injustice" would result in allowing his plea to stand. See United States v. Griffin, 259 U.S. App. D.C. 383, 816 F.2d 1, 5 (D.C. Cir. 1987). This "stringent standard for post sentence plea withdrawal motions is intended to prevent a defendant from testing the weight of potential punishment, and then withdrawing the plea ...


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