Petition — Barry v. United States

MAY 24 1976

| Beis ) 7

SUPREME COURT OF THE UNITED STATES “.

October Term, 1975

|

EDWARD J. BARRY, THOMAS D. BATASTINI, NATALE

R. CALE, JOHN CATALANO, MARTIN D. ESHOO,

EDWARD F. FINN, CARL FLAGG, JOHN M. GERAGHTY,

PHILIP R. GRANA, EDWARD McGEE, HARRY R.

SALVESEN, JOSEPH A. SCHILLINGER, STEVE L. SENO,

WILLIAM D. SWALLOW, THOMAS D. WEST, MIKE

ZAKOIAN, and CLARENCE BRAASCH,

Petitioners

vs.

UNITED STATES OF AMERICA,

Respondent

———

— a

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Kenneth N. Flaxman

5549 North Clark Street

Chicago, Illinois 60640

312-728-3525

Attorney for Petitioners

oie

INDEX

Opinions Below

Jurisdiction

Questions Presented

Statutes and Regulations

Statement of the Case

The Criminal Case

Collateral Proceedings

Argument

Conclusion

Appendix

Opinion on order regulating

discovery, filed April 23, 1975

Opinion on order deferring

ruling on government's motion

for summary judgment, filed

June 10, 1975

Opinion on order granting

motion for summary judgment,

July 11, 1975

Opinion of the Court of

Appeals (reported at

528 F.2d 1094)

28 U.S.C. §455 (1970)

28 U.S.C. §2255

28 C.F.R. §16.22

Al

A4

Al2

Al7

A28

A28

A29

Rule 5 of the Rules Governing A29

Section 2255 Proceedings for |

the United States District

Courts (effective August 1, 1976)

TABLE OF AUTHORITIES

Adams v. United States, 302 F.2d 307 29

(5th Cir. 1962)

Adickes v. Kress, 398 U.S. 144 (1970) 17

Anders v. California, 386 U.S. 738 (1967) 25

Askew v. Hargrave, 401 U.S. 436 (1971) 15

Bloom v. Illinois, 391 U.S. 194 (1968) 30

Coatings Corp. v. Contiental Cas. Co., 30

393 U.8. 145 (1968)

Del Piano v. United States, 362 F.2d 932 22

(3d Cir. 1966)

Fontaine v. United States, 411 U.S. 213 (1973) 19-20

In re Murchison, 349 U.S. 133 (1955) 29

Johnson v. Mississippi, 403 U.S. 212 (1971) 30

Laird v. Tatum, 409 U.S. 842 (1972) 27

Machibroda v. United States, 368 U.S. 487 2, 12

(1962) 19

Moore v. Illinois, 423 U.S. 938 (1975) 24

Poller _v. Columbia Broadcasting Co., 1?

368 U.S. 464 (1962)

-ilii-

Romero v. United States, 327 F.2d 711

(th Cir. 1964)

Sanders v. United States, 373 U.S. 1 (1963)

Schiebulhut v. United States,

357 F.2d 743 (6th Cir. 1966)

Schoenbaum v. Firstbrook, 405 F.2d 215

(2d Cir. 1568)

Tumey v. Ohio, 273 U.S. 510 (1927)

United States v. Braasch, 505 F.2d 139

(7th Cir. 1975)

United States v. DeMet, 486 F.2d 816

(7th Cir. 1973)

United States v. Diebold, 369 U.S. 654 (1962)

United States v. Keane, 375 F,Supp. 1201

(N.D. Til. 1974)

United States v. Local 807, I.B.T.,

United States v. Mathieson, 256 F.2d

803 (7th Cir. 1958)

United States v. Parker, 447 F.2d 826

t r.

United States v. Salerno, 290 F.2d 105

r.

United States v. Spadafora, 200 F.2d 140

(7th Cir. 1952)

United States v. Staszchuk, 502 F.2d 875

reversed in part on rehearing, 517 F.2d 53

(7th Cir. 1975)

United States v. Wilson, 426 F.2d 628

e r.

27

Walker v. Johnson, 312 U.S. 275 (1949) 19

Ward v. City of Monroeville, 409 U.S. 57 29 |

18 U.S.C. §1951 5

28 U.S.C. §455 (1970) 3

28 U.S.C. §2255 passim

28 U.S.C. §1927 25

Act of December 5, 1974, Public Law 93-512, 32

88 Stat. 1609

28 C.F.R. §16.21 et seq. Be Be BR, 26

Federal Rules of Civil Procedure

Rule 11 25

Rule 12(c) 15

Rule 56 15, 16

Rules Governing Section 2255 Proceedings 14, 23

in the United States District Courts, Rule 7

General Rules of the United States 6

District Court for the Northern District

of Illinois, Rules l, 1A

A.B.A. Code of Professional 25

Responsibility, D. R. 2-110

A.B.A. Standards, Post-Conviction Remedies, §3.4 26

Attenbourugh, The Laws of the Earliest

Kings (1923)

2 Wigmore, Evidence (3d Ed. 1940) §285

21

15

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Petitioners/’ respectfully pray that

a writ of certiorari issue to review the

judgment of the United States Court of

Appeals for the Seventh Circuit entered

in this proceeding on January 1l, 1976.

OPINIONS BELOW

The opinion of the Court of Appeals is

reported at 528 F.2d 1094 (7th Cir. 1976)

and is reproduced infra at Al7-A27.

Three unreported opinions were filed

by the district court, and are reproduced

as follows:

1. Al1-A3, opinion on order regulating

discovery, filed April 23, 1975;

2. A4-All, opinion on order deferring

ruling on government's motion for summary

judgment, filed June 10, 1975;

1/ Petitioners are Edward J. Barry, Thomas

D. Batastini, Natale R. Cale, John Catalano,

Martin D. Eshoo, Edward F. Finn, Carl Flagg,

John M. Geraghty, Philip R. Grana, Edward

McGee, Harry R. Salvesen, Joseph A. Schill-

inger, Steve L. Seno, William D. Swallow,

Thomas D. West, Mike Zakoian, and Clarence

E. Braasch.

3. A1l2-Al6, opinion on order granting

motion for summary judgment, filed July

11, 1975.

JURISDICTION

The jurisdiction of this Court is

invoked pursuant to 28 U.S.C. §1254(1):

The judgment of the Court of Appeals was

entered on January 11, 1976; re-hearing

was denied without opinion on February

24, 1976.

QUESTIONS PRESENTED

1. Does the possibility that a “high

government official would have to be

extensively interrogated" justify a

departure from Machibroda v. United States,

368 U.S. 487 (1962), and allow a district

court to resolve issues of fact on a

motion under 28 U.S.C. §2255 upon ex parte

affidavits without a hearing?

2. May the “expanded record" procedure,

as authorized in Rule 7 of the Rules

Governing Section 2255 Proceedings, be

applied to require a §2255 movant, as a

prerequisite to a hearing, to prove false

an affidavit filed by the government,

= 3-

where the relevant facts are protected

from disclsoure without judicial process

by 28 C.F.R. §16.22, and where discovery

of these facts is not permitted?

3. Is recusal of a district court

judge required to comply with 28 U.S.C.

§455 (1970) and the right of an accused

to trial before a fair and impartial

judge, when, as United States Attorney,

the judge had formulated or approved the

lawfulness of a then novel extension of

federal criminal jurisdiction, and as

judge is assigned to preside at one of

the first cases seeking to apply his

theories?

4. May the prosecutorial misconduct

in misrepresenting to a district judge

facts controlling his recusal decision

in a criminal case be “harmless error?"

STATUTES AND REGULATIONS

The following statutes and regulations

are reproduced in the appendix:

28 U.S.C. §455 (1970)

28 U.S.C. §2255

28 C.F.R. §16.22

Rule 7, Rules Governing Section 2255

Proceedings

STATEMENT OF THE CASE

On the ground that the Honorable

William J. Bauer ,2/the district court

judge who presided at their trial, had

actively participated as United States

Attorney in the preparation of their

prosecution ,2/ petitioners sought post-

conviction relief under 28 U.S.C. §2255.

The principal issues presented in this

Court arise from the procedures used to

dispose of the case without a hearing.

To place these issues in context, a

brief recital of the facts relevant to

the underlying criminal case is required.

2/ Judge Bauer was United States Attor-

ney for the Northern District of Illinois

from July 1970 to November of 1971, and

now sits as a circuit judge of the United

States Court of Appeals for the Seventh

Circuit.

3/ Petitioners alleged that the investi-

gation resulting in their indictment had

been on-going while Judge Bauer was

United States Attorney (Petition, 414-18),

that Judge Bauer had actively participated

in the major policy decisions resulting

in that indictment (Petition, 419, 420),

and that United States Attorney Bauer

had advised the grand jury which subse-

quently returned the indictment against

petitioners (Petition, 423-425).

The Criminal Case

Petitioners were indicted on December

29, 1972,4/ and charged with having used

their office as Chicago police officers

to conspire to extort money from tavern

owners, thereby affecting interstate

commerce, all in violation of the Hobbs

Act, 18 U.S.C. §1951. As the court below

noted (Al18), the indictment was based on

a “then novel interpretation of the

Hobbs Act."

(From the record in this case, it

appears that the attorney for the govern-

ment responsible for this “novel inter-

pretation” is the same William J. Bauer

who, as judge, presided at petitioners'

trial.)

After petitioners had been indicted,

their case was initially assigned to

Judge Hoffman of the district court.

Under the normal procedure of the Nor-

thern District of Illinois, assignment

to Judge Hoffman meant that he would pre-

side at trial.

4/ The grand jury had been impaneled in

February of 1971. (AQ)

After several months of pre-trial pro-

ceedings, the United States Attorney made

an ex parte presentation to the Executive

Committee= of the district court, and

obtained a transfer of the case away from

Judge Hoffman to Judge Bauer, who had

left his post as a United States Attor-

ney to become a district court judge on

November 29, 1971.2/

5/ The Executive Committee of the dis-

trict court consists of the Chief Judge,

as permanent chairman, and four other

district court judges; the function of

the Executive Committe is to "administer

and conduct" the business of the district

court. See General Rules l, 1A, United

States District Court for the Northern

District of Illinois.

6/ The authorization for this transfer

was an unpublished general order of

March 10, 1972, which allowed the Exe-

cutive Committee to specially assign, or

reassign, cases identified to be "pro-

tracted, difficult, or widely publicized."

The rule did not create a procedure for

designating such cases; as the Executive

Committee subsequently noted in United

States v. Keane, 375 F.Supp. 1201, 1205

(N.D. Ill. 1974), it is permissible for

the United States Attorney to make an

ex parte presentation and obtain a re-

assignment.

a

Defendants all objected to transfer

of the case to Judge Bauer; these objections

were denied, and the transfer of the case

was upheld on appeal. _/

In another ex parte presentation,

Judge Bauer was advised by the govern-

ment that the investigation resulting in

the indictment had commenced after he

left the United States Attorney's office.

(Al8) Judge Bauer then elected not to

disqualify himself, and presided at the

lengthy trial, upholding the propriety

of the “novel interpretation" of the

Hobbs Act underlying the prosecution.

The government's case was far from

overhwelming: four of the twenty-three

co-defendants were acquitted. On appeal,

the evidence was viewed in the light

most favorable to the government, and

held sufficient. (Viewed in this light,

even the evidence resulting in acquittals

would have been sufficient to sustain

guilty verdicts.) Other grounds for

reversal were rejected, and the con-

victions were affirmed, sub nom. United

States v. Braasch, 505 F.2d 139 (7th Cir.

7/ United States v. Braasch, 505 F.2d

139, 147 (7th Cir. 1974).

Collateral Proceedings

During the pendency of direct appellate

review, petitioners commenced this pro-

ceeding under 28 U.S.C. §2255.8/ After

formal notice of the filing of the §2255

motion had been ordered, the government

filed a "motion to dismiss," attacking

the legal sufficiency of the §2255 motion,

and expanding the record with an affidavit

of an FBI agent in an attempt to demon-

strate the absence of disputed questions

of fact. Petitioners cross-moved for

authorization of discovery; ruling on

both motions was deferred pending final

disposition of the criminal cases.

Following denial of certiorari in the

criminal case, the district court con-

cluded that disposition of the case required

an expansion of the record and granted

petitioners leave to commence discovery.

(A2) Specifically excluded from per-

missible discovery were any inquiries of

Judge Bauer.

8/ With the filing of their §2255 motion,

petitioners filed a suggestion with the

Chief Judge of the Seventh Circuit that

the §2255 motion be heard by a judge from

outside of the Seventh Circuit. Ex

Parte Braasch, No. 75-8005. This

suggestion was denied without explanation.

Petitioners then propounded a set of

interrogatories to the government. After

consent of the Attorney General had been

obtained in accordance with 28 C.F.R.

§16.24, petitioners deposed Mr. Thomas

Foran, Judge Bauer's predecessor as

United States Attorney .2/ No further dis-

covery was to be permitted -- after the

Foran deposition, and without responding

to the interrogatories, the government

filed a “renewed motion for summary judg-

ment." The gist of the motion was the

claim that the Foran deposition and the

affidavit of the FBI agent proved that

petitioners had not been the target of a

federal investigation until sometime

after Judge Bauer had left the United

States Attorney's office.

No other evidentiary material was ten-

dered by the government to expand the

9/ Foran stated that the decision to

prosecute petitioners marked a vast de-

parture from the prosecutorial policies

extant while he was United States Attor-

ney. In Foran's view, there was no

federal crime to investigate or prose-

cute if a police officer had extorted

money from a tavern owner.

-10-

record. Absent, for example, were ajiy ?

facts dealing with the activities of the

indicting grand jury while Judge Bauer

was United States Attorney. Nor did the

government supply the date when the case

was actually “logged in" at the United

States Attorney's office, a fact placed

in issue by the §2255 motion.

Absent discovery, the only way that

petitioners could seek to dispute the

government's affidavit was with evidence

that an FBI investigation had been in

progress before the date claimed by the

government. Such an affidavit was filed,

but was discounted by the district court

as "a sworn statement by a felon with an

interest in the outcome of a case."

(A10)

The district court accepted the affi- |

davit of the FBI agent as incontrovertible,

holding that it conclusively proved that

the investigation had started in April

of 1972. (A9) The district court did

recognize petitioner's need for discovery

(Al0), but held that petitioners had not

-ll-

presented enough evidence through ex parte

affidavits to justify a further expansion

of the record. +2/

After the record had been expanded with

an affidavit from Judge Bauer , L1/ petition-

ers filed additional affidavits to show,

as best they could, that an investigation

had been in progress while Judge Bauer was

United States Attorney. (See A21) These

10/ The need for discovery was set out

in an affidavit of one of the petitioners

that 28 C.F.R. §16.21 et seq. prevented

petitioners from obtaining ex parte affi-

davits of unquestioned veracity. As

summarized by the district court (Al10):

", . « petitioners' contend] that the

facts necessary to support petitioners'

position are uniquely within the con-

trol of the United States Attorney,

who because of his opposition to

petitioners' case may be presumed to

be withholding them."

1l/ Judge Bauer contributed no facts as

to his involvement in the novel inter-

pretation of the Hobbs Act, or as to the

date when the investigation started. The

Only allegation squarely denied by Judge

Bauer was that, as United States Attor-

ney, he had obtained personal knowledge

of facts in dispute at petitioners' trial.

Following receipt of Judge Bauer's affi-

davit, petitioners' abandoned this last

contention.

-l2-

affidavits were described as not "“incon-

sistent" with the government's affidavit

(Al4), and the government's motion for

"summary judgment" was granted.

The Court of Appeals approved dis-

position of the case without a hearing,

agreeing with the district court that

petitioners' affidavits were inadequate

to controvert the affidavit of the FBI

agent (A200), and applying a circuit rule

that a §2255 movant must be able to ex-

pand the record with affidavits of third

parties to controvert affidavits filed

by the government in order to obtain a

hearing (A26):

The assertion that the district court

should have held a hearing is based

upon the language of section 2255 and

the construction given it in Machibroda

v. United States, 368 U.S. 48 ,

However, it is the rule of this Court

that, in order for a hearing to be

granted, the petition must be accom-

panied by a detailed and specific

affidavit which shows that the

petitioner has actual proof of the

allegations going beyond mere un-

supported assertions.

-13-

The Seventh Circuit justified its de-

parture from prior decisions of this Court

as follows (A27 n. 32):

A hearing was ordered in Sanders v.

United States, 373 U.S. 1, 19-20

, on the basis of allegations

alone. However, the hearing there

required testimony only from the

petitioner himself. Where a high

governmental official would have to

be extensively interrogated, different

considerations are appropriate, and

the requirement of factual support

for the allegations, established in

this Court's prior decisions, will be

read strictly.

-l14-

ARGUMENT |

I. THE §2255 PROCEDURES: A DEPARTURE |

FROM PRIOR DECISIONS OF THIS COURT TO

RENDER §2255 AN INEFFECTIVE REMEDY

This case arises from the use of ex

parte affidavits to "expand the record"

in a proceeding under 28 U.S.C. §2255.

The result of this procedure was dis-

missal of petitioners’ motion to vacate

sentence because they were unable to

prove false an affidavit filed by the

government.

"Expansion of the record" is a pro-

cedure formally recognized in Rule 7 of

the Rules Governing Section 2255 Pro-

ceedings. The manner in which this

potentially useful procedure was applied

in this case requires review by this ;

Court, not merely to correct an erroneous |

result reached below, but to insure that \

the new Rules are not read to justify a |

departure from prior decisions of this

Court and transform §2255 into an in-

effective post-conviction remedy.

-15-

a. The unfairness of the “expansion

of the record" procedure sanctioned

by the court below

The date when the investigation result-

ing in petitioners’ indictment had

commenced was recognized to be a material

question of fact ir the case. (A5-A6)

Subsequent to the filing of the §2255

motion, the government "moved to dismiss"

on the basis of an affidavit of FBI

Special Agent James Annes, who averred

that he had started the investigation,

and that it had started in May of 1972.

Under the Rules of Civil Procedure,

the "motion to dismiss" would have been

considered as a motion for summary judg-

ment, and petitioners would have been

allowed an opportunity to present "all

material made pertinent to such a motion

by Rule 56." See Federal Rule of Civil

Procedure 12(c ,22/ But under the

12/ ". . . If, on a motion for judgment

on the pleadings, matters outside the

pleadings are presented to and not ex-

cluded by the court, the motion shall be

treated as one for summary judgment,

and disposed of as provided in Rule 56,

and all parties shall be given reasonable

opportunity to present all material made

pertinent to such a motion by Rule 56."

-16-

“expansion of the record" procedures

sanctioned by the court below, this oppor-

tunity to demonstrate a disputed question

of fact did not include a fair opportun-

ity to undertake discovery. (A25-A26)

Under the Rules of Civil Procedure,

the affidavit of petitioner Geraghty that

discovery was necessary to pierce the

web of confidentiality created by 28

C.F.R. §16.21 et seq., and obtain the

best evidence to dispute the government's

affidavit, would have prevented the grant

of summary judgment to the government.

See Federal Rule of Civil Procedure

56(£) .23/ Compare Schoenbaum v. First-

brook, 405 F.2d 215, 218 (2d Cir. 1968)

(en banc) But under the “expansion of

the record" procedures sanctioned by the

13/ “Should it appear from the affidavits

of a party opposing the motion that he

cannot for reasons stated present by affi-

davit facts essential to justify his

opposition, the court may refuse the appli-

cation for judgment or may order a con-

tinuance to permit affidavits to be

obtained or depositions to be taken or

discovery to be had or may make such other

order as is just."

-1Ajq-

court below, the fact that 28 C.F.R.

§16.22 prevented petitioners from effect-

ively disputing the affidavit proffered

by the government did not lessen their

burden to demonstrate, without discovery,

the existence of a disputed question of

fact.

Under ordinary summary judgment rules,

the failure of the government to have

come forth with the date when the case

against petitioners was "logged in" at

the United States Attorney's office would

have prevented a grant of summary judg-

ment to the government. E.g., Adickes

v. Kress, 398 U.S. 144 (1970); Askew v.

Hargrave, 401 U.S. 476 (1971). But under

the "expansion of the record” procedures

sanctioned by the court below, the govern-

ment need not disprove the facts placed

in issue in the §2255 motion, and there

is no presumption arising from the govern-

ment's failure to produce evidence solely

within its control. Compare 2 Wigmore,

Evidence §285 (3d ed 1940).

Under the rule of United States v-. Die-

bold, 369 U.S. 654 (1962), the affidavits

would have been viewed in the light most

-18<

favorable to petitioners, as the party

opposing the grant of summary judgment.

Petitioners' affidavits indicated that,

prior to the start of the "Annes investi-

gation" in May of 1972, other FBI agents

had been conducting an identical investi-

gation, and had been seeking to link at

least two of the petitioners in this

case with the type of acts alleged in

the subsequent indictment. (See A21-A22)

The affidavit of Judge Bauer indicated

that he considered his recusal, but

elected not to disqualify himself on

the basis of ex parte representations by

the government. (Al18)

At the very least, these affidavits

Supported an inference that the affidavit

of Agent Annes was less than complete,

if not untruthful. But under the

"expansion of the record" procedures

sanctioned by the court below, these

affidavits were viewed in the light

most favorable to the government, and

rejected as lacking in credibility (Al0),

Or as leaving "undisputed" (A21) the

government's affidavit.

The “expansion of the record" pro-

cedures sanctioned by the court below are

strictly one-sided, providing the govern-

ment with an opportunity to rebut the

-19-

allegations of a motion under 28 U.S.C.

§2255, without providing the §2255 movant

with a meaningful opportunity to rebut

affidavits filed by the government.

b. The “expansion of the record" pro-

cedures sanctioned by the court below

are contrary to prior decisions of

this Court

To allow affidavits, as in this case,

to replace a hearing is to depart from

the holdings of this Court in Walker v.

Johnson, 312 U.S. 275 (1949), Machibroda

v. United States, 368 U.S. 487 (1962),

Sanders v. United States, 373 U.S. l

(1963), and Fontaine v. United States,

411 U.S. 213 (1973).

Fontaine v. United States, supra,

should have laid to rest any lingering

doubts that §2255 required a hearing to

determine facts outside the record of

the criminal case. There, the govern-

ment had argued that when a “motion under

§2255 alleges only bald conclusions, the

motion may be properly denied without a

hearing." (Brief of United States at 32)

This argument was summarily rejected,

411 U.S. at 215:

-20-

It is equally clear that §2255 calls

for a hearing on such allegations

unless ‘the motion and the files and

records of the case conclusively show

that the prisoner is entitled to

no relief" ...

The Seventh Circuit recognized its

departure from prior decisions of this

Court (A26), but relied on a circuit rule

that a §2255 movant must be able to ex-

pand the record, without discovery, to

prove untruthful affidavits filed by the

government, in order to obtain the hear-

14/ A

"strict application" of this circuit

ing mandated by the statute.—

rule was justified to insulate a "high

government official" from "extensive

interrogation." (A27 n. 33) Although

the fears of the court below are mis-

14/ The circuit rule is based on United

States v. Spadafora, 200 F.2d 140 (7th

Cir. 1952), where a §2255 motion which

named government agents who would testify

that they had perjured themselves at trial

was held insufficient to require a hear-

ing, because the prisoner had failed to

obtain affidavits from the government

agents admitting their perjury, 200 F.2d

at 143. This rule evolved into its pre-

sent form in United States v. Mathieson,

256 F.2d 803, 805 (7th Cir. 1958), a case

relied upon in the opinion below (A26 n.32)

-2l1-

placed, +2/

this rationale would always

make the government's affidavits con-

clusive against a §2255 movant whenever

the affidavit came from a "high govern-

ment official," such as, apparently, an

FBI agent.

A conclusive presumption that "high

government officials" tell the whole

truth, and nothing but the truth, in

ex parte affidavits a a remnant from

a much earlier age.— i6/ Such a pre-

sumption is scarcely in accord with the

lessons of these post-Watergate years.

It is not even necessary to assume

that the FBI agent whose affidavit

resulted in dismissal of the case was

being perjurious in order to recognize

the unreliability of a fact-finding pro-

cess dependent solely on affidavits care-

fully drafted by government counsel.

The affidavit of agent Annes fails to

15/ Petitioners expected the proof of

their allegations to come from records

and documents maintained by the govern-

ment, the existence of which petitioners

sought to discover in their unanswered

interrogatories.

16/ At early common law, a controversy

could be settled by oath, and the word

of a bishop or a king, even if unsworn,

was incontrovertible. See Attenborough,

The Laws of the Earliest English Kings

(1922) at 27.

=22< -23-

establish that other agents were not in- 357 F.2d 743, 745 (6th Cir. 1966); Del

volved in the investigation prior to his Piano v. United States, 362 F.2d 931,

assignment to that investigation; as to 932 (3d Cir. 1966).

his averment that his investigation was

the basis for petitioners' indictment, c. Review is necessary to insure that

agent Annes might simply be mistaken -- the “expansion of the record" procedure

only a menber of the United states dove nat soanatuen, $6 9.0:0. S500 tase

Attorney's office could have firsthand

knowledge as to what information was the The newly promulgated Rules Governing

basis of an indictment. Section 2255 Proceedings authorize expan-

The affidavit of agent Annes sheds no sion of the record (Rule 7) and dispos-

light on the activities of other agents, ition on the expanded record without an

and provides no basis for assuming that, evidentiary hearing. (Rule 8) But if

prior to Annes, there was no investi- these rules are applied in the manner

gation. Nor does the affidavit indicate sanctioned by the Seventh Circuit, §2255

when the case was first “logged in" at will have been transformed into an

the United States Attorney's office. ineffective post-conviction remedy.

No other circuit has fashioned a con- Rule 7 allows affidavits to be con-

clusive presumption of veracity for affi- sidered as part of the expanded record.

davits submitted by "high government As originally proposed by the Advisory

officials." Aside from the Seventh Cir- , Committee, affidavits would only have

ciut, the general rule is that the been considered as a part of the expanded

government's affidavits are not con- record if they were not controverted.

clusive against the movant. E.g., This qualification is omitted in the final

United States v. Salerno, 290 F.2d 105, version of the rules, and this omission

106 (2d Cir. 1961); Romero v. United extends an invitation to the lower federal

States, 327 F.2d 711, 712 (5th Cir. courts, as here, to make credibility

1964); Schiebulhut v. United States, determinations from opposing affidavits.

"Trial by affidavit" is alien to the

-24-

accepted and ordinary manner of resolving

factual disputes. E.g. United States v.

Diebold, 369 U.S. 654 (1962); Poller v.

Columbia Broadcasting System, 368 U.S.

464 (1962). Cf. Moore v. Illinois,

423 U.S. 938 (1975) (Stewart, J., con-

curring in denial of certiorari)

With reasonable discovery, though, the

expanded record procedure of Rule 8 of

the Rules Governing Section 2255 Pro-

ceedings could be consistent with the

ultimate holding of Machibroda v. United

States, supra, that a district judge may

use his “common sense" in aetermining if

a hearing is required, 368 U.S. at 495.

If, for example, a district judge is

confronted with affidavits from five

government witnesses squarely disputing

the prisoner's assertions, examination of

documents and depositions of the witnesses

may indicate that a hearing would be fruit-

less, and, in the judge's "common sense"

could be dispensed with.

In this case, however, petitioners were

not afforded an opportunity to examine

the relevant documents in the exclusive

possession of the government, or to depose

the FBI agent whose affidavit was supplied

by the government. No claim of privilege

was asserted; nor did the government con-

tend at any time that responses to the

interrogatories would be unduly burden-

some.

The question of when the investigation

commenced was determined solely on the

basis of the affidavit of one FBI agent;

petitioners were not permitted to inquire

into the activities of other FBI agents,

or even to determine when the case was

"logged in" at the United States Attor-

ney's office.

Fair application of the expanded re-

cord procedures may well have demonstrated

to petitioners that they would be unable

to prove their allegations. Under such

circumstances, petitioners, who were

represented by counsel, could reasonably

be expected to have abandoned the action.

Cf. Federal Rule of Civil Procedure 11;

28 U.S.C. §1927; Code of Professional

Responsibility, Disciplinary Rule 2-110;

Anders v. California, 386 U.S. 738 (1967).

The expansion of the record in this

case, however, did not conclusively demon-

strate that petitioners' allegations

could not be proven: petitioners were

simply not provided with a fair oppor-

tunity to demonstrate that with full dis-

closure of the relevant facts they would

-26-

not have been able to prevail at a hear-

ing.

If allowed to stand, the decision below

would transform the expansion of the re-

cord procedure into a mechanism for dis-

posing of §2255 motions on the basis of

ex parte affidavits submitted by the

government, without the §2255 movant

being afforded a fair opportunity to dis-

pute those affidavits. Such a result

would do violence to this useful pro-

cedural device, and render ineffective

the remedy provided by 28 U.S.C. §2255.

See A.B.A. Standards Relating to the

Administration of Criminal Justice, Post-

Conviction Remedies, §3.4.

Certiorari should therefore be granted

to review the unreasonable departure by

the court below from prior decisions of

this Court, and to insure that the newly

promulgated Rules Governing Section 2255

Proceedings will not be applied to render

ineffective the remedy provided by §2255.

@2Fe

II. ACTIVE PARTICIPATION BY AN ATTORNEY

FOR THE GOVERNMENT WHO IS ELEVATED TO THE

BENCH: IMPORTANT AND UNRESOLVED QUESTIONS

Notwithstanding the unfair “expansion

of the record" procedures sanctioned by

the court below, petitioners were able

to demonstrate that, as an attorney for

the government, Judge Bauer had actively

participated in the preparation of the

case brought against petitioners. De-

parting from the view of the Sixth Cir-

ciut 2 the court below held that no

degree of active participation could

have required recusal, as long as -he

case against petitioners had not resulted

in the return of an indictment while

Judge Bauer served as an attorney for

the government. Review by this Court is

required, not merely because of the con-

flict between the circuits, but to re-

solve the questions identified by Mr.

Justice Rehnquist in his memorandum in

Laird v. Tatum, 409 U.S. 824 (1972),

questions which are still extant not-

withstanding the enactment of a new

disqualification statute, Act of Dec.

5, 1974, Pub. L. No. 93-512, 88 Stat.

1609.

17/ United States v. Wilson, 426 F.2d

628 (6th Cir. 1970)

-28-

a. The degree of active participation

Petitioners were prosecuted on what

the court below recognized was a "then

novel interpretation of the Hobbs Act,"

(Al8), 18 U.S.C. §1951. This inter-

pretation was "novel" for two reasons:

First, it read the Act as reaching con-

duct to which it had not formerly been

applied.+2/ Second, it represented a

major policy decision to apply the

federal prosecutorial power to what had

formerly been considered to be only

violations of local law. 22/

The attorney for the government re-

sponsible for this “novel interpretation,"

and for the major policy decision under-

lying that “novel interpretation" is

the Honorable William J. Bauer, who, as

judge, presided at petitioner's trial,

18/ The Hobbs Act is the successor to

the Anti-Racketeering Act of June 18,

1934, 48 Stat. 979, enacted "to close

gaps in existing Federal laws and to

render more difficult the activities of

predatory criminal gangs of the Kelly

and Dillinger types." See United States

Vv. ante 807, I.B.T., 315 U.S. 521, 530

(1942).

L\9/ The deposition of Thomas Foran,

Judge Bauer's predecessor as United

States Attorney, revealed that prior to

the time Judge Bauer became United States

Attorney, the prosecutorial philosophy of

that office was that there was no federal

crime to prosecute if a municipal police

officer was “shaking down" local taverns.

where his novel interpretation cf an

old statute was being tested and applied.

As the architect of the case before him,

it is difficult to accept that Judge

Bauer did not have "the interest that

any lawyer has in pushing his case to

a successful conclusion. 22/

20/

b. The need for more explicit standards

That due process of law requires a

judge in a criminal trial to be "fair

and impartial" is well settled. This

Court has held a judge to be of less than

the requixed impartiality when he had a

monetary interest in the outcome of a

case ,22/ where he had served as a "one

man grand jury ,"23/

had been intimately involved with the

and where the judge

proceedings giving rise to the case be-

20/ Using testimony from another trial,

petitioners were able to indisputably

demonstrate that the "Hobbs Act" policy

decision was iade while Judge Bauer was

United States Attorney.

21/ Adams v. United States, 302 F.2d

307, 310 (Sth Cir. 1962)

22/ Tumey v. Ohio, 273 U.S. 510 (1927);

Ward v. Village of Monroeville, 409 U.S.

57 (1972)

23/ In re Murchison, 349 U.S. 133 (1955)

-30-

fore him. 24/

The “underlying premise" was set out

in Coatings Corp. v. Continental Cas. Co.,

393 U.S. 145, 150 (1968):

- + any tribunal permitted by law

to try cases and controversies not

only must be unbiased but also must

avoid even the appearance of bias.

The question of what degree of prior

involvement in the planning of a case as

an attorney for the government requires

disqualification has never been resolved

by this Court. In his memorandum in

Laird v. Tatum, 409 U.S. 824 (1972), Mr.

Justice Rehnquist read the recusal

standard as requiring disqualification

whenever the judge, as an attorney for

the government, had actively partici-

pated in the preparation of a case. 409

U.S. at 828. Application of this

standard would appear to have required

Judge Bauer's disqualification, but the

court below read the opinion of Mr.

Justice Rehnguist as supporting its

result (A26). This is somewhat inex-

plicable, as Mr. Justice Rehnquist stated

24/ Johnson v. Mississippi, 403 U.S.

12 (1971); Bloom v. Illinois, 391 U.S.

94 (1968)

-il-

unequivocally that he had had no involve-

ment with the planning of the government's

defense in Laird, having served merely as

a conduit for the views of the adminis-

tration in an appearance before a con-

gressional committee. 409 U.S. 826-828.

In contrast, in this case, Judge Bauer

had apparently been actively involved

in the major policy decisions underlying

the decision to prosecute petitioners,

policy decisions which were untested at

the time of trial. 2>/

This Court has yet to squarely confront

the question of what degree, if any, of

prior involvement in the preparation of

a case requires disqualification when

that case comes before the former govern-

25/ In United States v. DeMet, 486 F.2d

816 (7th Cir. 1973), the Court of Appeals

accepted for the first time the theory

that 18 U.S.C. §1951 applied to extor-

tionate acts having a de minimus effect

on interstate commerce. In United States

v. Staszchuk, 502 F.2d 875 (7th Cir. 1974),

rev'd in part on rehearing, 517 F.2d 53

(7th Cir. 1975), the Court of Appeals

held for the first time that the type of

extortion made punishable by 18 U.S.C.

§1951 included extortion "under color of

official right," i.e., absent any force

or threat of force. The decisions in

both of these cases came subsequent to

petitioners’ trial.

26/

ment attorney as judge.—

Court have reached varying and often un-

explained answers to this question. While

allowing recusal to be the decision of

each justice individually may be appro-

priate for this Court, one consequence

is the absence of clear standards for the

lower federal courts. Government service

is a very common form of employment for

attorneys who become federal judges, and

the questions presented in this case are

likely to recur. To provide more dis-

cernible standards for federal judges,

therefore, certiorari should be granted

to review the decision of the court

below that the active participation did

not require disqualification.

26/ The disqualification question pre-

sented in this case has not been resolved

by the 1974 amendment to 28 U.S.C. §455,

Act of Dec. 5, 1974, Pub. L. No. 93-512,

88 Stat. 1609. Section (a)3 of the new

act requires disqualification whenever

the judge, as an attorney for the govern-

ment, had “participated as counsel, ad-

viser, or material witness concerning

the proceeding or expressed an opinion

concerning the merits of the particular

case in controversy." "Proceeding" is

defined in section (d)l to include "pre-

trial, trial, appellate review, or other

stages of litigation."

Under the view of the court below, it

appears that the new statute would not

require disqualification if the "pro-

ceeding" had not reached a stage of liti-

gation attempting "to bring named alleged

offender{s]} before the court." (A22)

Members of this

-33-

III. THE DECISION BELOW SANCTIONS

UNCONSCIONABLE JUDGE SHOPPING PRACTICES

After Judge Bauer's affidavit had been

filed in the district court, it was

apparent for the first time that, upon

being assigned the criminal case, he had

seriously considered ‘isqualification,

and that on the basis of the ex parte

presentation of the Annes affidavit, he

had elected not to disqualify himself.

A reasonable inference arising from

petitioners' affidavits -- which indicated

the existence of an investigation while

Judge Bauer was United States Attorney --

is that the government made less than a

complete presentation to Judge Bauer in

order to prevent his recusal, and that

the intent of the government was to

obtain a judge with a known favorable

predisposition.

Petitioners argued this inference to

the district court, asserting that the

government's misrepresentation was pro-

secutorial misconduct requiring relief

under 28 U.S.C. §2255.22/ This claim was

27/ See Petitioners' Memorandum, filed

July 7, 1975, at 1-2, 14-15.

reasserted on appeal. (See Al19)

Inexplicably, the Court of Appeals held

that this claim had not been raised in the

district court. (A25) Alternatively, the

court below held that the misrepresen-

tation was “harmless error." (Ibid)

This “harmless error" determination was

made without recourse to the trial court

record; if allowed to stand the decision

of the court below sanctions unconscion-

able judge shopping practices.

The criminal case had initially been

assigned to Judge Hoffman of the district

court. Apparently, the government was

dissatisfied with Judge Hoffman, and

convinced the Executive Committee of the

district court to re-assign the case to

Judge Bauer. This itself is deplorable --

our system does not allow either defense

or the prosecution to choose the judge

before whom a case will be tried.

As the architect of the theory under-

lying the prosecution, Judge Bauer --

even if he could appear fair -- had a

known favorable predisposition to the

prosecution. Obviously, the prosecution

wanted to keep the case with Judge Bauer,

and apparently misrepresented to him

facts bearing on his recusal decision.

In United States v. Parker, 447 F.2d

-35-

826 (7th Cir. 1971), Justice (then judge)

Stevens indicated that when the prose-

cution manipulates assignment procedures

to have a case assigned to a judge with

a known favorable predisposition, at the

least a stricter standard of review of

the sufficiency of the evidence and the

prejudicial effect of alleged error is

required. The manipulation of the assign-

ment procedures in this case is far

more egregious than in Parker -- rather

than relying on a district court rule,

tne prosecution here misrepresented facts

to insure that Judge Bauer would not re-

cuse himself. To hold this conduct

"harmless error" is to encourage the

government to deceive district court

judges, a vast departure from the accepted

and ordinary standards of disclosure,

requiring review by this Court.

-36-

CONCLUSION

For the reasons above stated, the

petition for a writ of certiorari should

be granted.

Respectfully submitted,

Kenneth N. Flaxman

5549 North Clark Street

Chicago, Illinois 60640

Attorney for Petitioners

May 1976

APPENDIX

ee ere ve

oAlqo

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

EDWARD J. BARRY, et al.,

Petitioners,

-vs- No. 74 C 3432

UNITED STATES OF AMERICA,

Respondent.

MEMORANDUM OPINION AND ORDER

On November 26, 1974, petitioners

moved this Court to vacate judgments

entered concerning them in case No.

72 Cr 979, and to grant a new trial.

This motion was filed under the pro-

visions of 28 U.S.C. §2255. Petition-

ers also sought leave to take discovery

in support of their petition. The

government responded thereto with a

motion to dismiss.

On March 13, 1975, after hearing,

this Court denied the motion of the

plaintiffs for discovery and the

motion of the government to dismiss,

without prejudice to their renewal and

-A2< -A3-

reconsideration after the determination

by the United States Supreme Court of a |

petition for certiorari then pending. |

The petition for certiorari then pend- resolution of the issues may be deter-

ined.

ing has been denied, and this Court has mined

assumed jurisdiction over the §2255 motion

; ENTER:

for a new trial.

Leave is hereby given to petitioners fs Frank 7 McGarr yuge

to commence discovery for the purpose of

inquiring into the facts and circum- DATED: ApEss 23, 1975

stances surrounding their allegations

in support of their motion for a new

trial.

The question has been raised whether

leave should be given petitioners to de-

pose or otherwise take discovery of the

Honorable William J. Bauer, of the United

States Court of Appeals for the Seventh

Circuit, who was the trial judge in this

case. The affidavits on file raise

factual issues concerning which Judge

~ a

Bauer might have information- Per- |

~~

mission to take discovery of Judge Bauer,

however, and the determination of the

form that discovery should take, is

deferred until the balance of the

petitioners' discovery is complete and

the question of whether Judge Bauer can

make a factual contribution to the

re lt mn

-A4-

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

EDWARD J. BARRY, THOMAS D. BATASTINI,

NATALE R. CALE, JOHN CATALANO, MARTIN D.

ESH00O, EDWARD F. FINN, CARL FLAGG, JOHN

M. GERAGHTY, PHILIP R. GRANA, EDWARD

McGEE, HARRY R. SALVESEN. JOSEPH A. SCHIL-

LINGER, STEVE L, SENO, WILLIAM D. SWALLOW,

THOMAS D. WEST, MIKE ZAKOIAN and CLARENCE

E. BRAASCH,

Petitioners,

v.

THE UNITED STATES OF AMERICA,

Respondent.

No. 74 C 3432

MEMORANDUM OPINION AND ORDER

Petitioners have moved to vacate judgments of convic-

tion entered as to them in case No. 72 CR 979 and seek a

new trial. The basis of their claim is the allegation that

the trial judge in that ease, The Honorable William J.

Bauer, had an obligation to disqualify himself for the

reason that:

a. ‘*,.., the trial was the result of a substantial inves-

tigation which had been commenced or continued

within the Northern District of Llinois while the

judge served as the United States Attorney for that

district, had knowledge of the investigation, and

-A5-

had participated in the investigation in varions

manners, including but not limited to taking part

in the consideration of the major policy decisions

relevant to that investigation and the resulting

criminal proceedings.

b. The trial followed an indictment for which evidence

was formally presented to a grand jury within the

Northern District of Illinois during the tenure of

the trial judge as United States Attorney for the

Northern District of Illinois.’’

These sweeping allegations seem to rest principally if

not almost entirely on petitioners’ contention that the

invesiigation which resulted in petitioners’ indictment

commenced during the term of office of Thomas A. Foran

as United States Attorney for the Northern District of

Illinois. This, it is contended, mandates the conclusion

that the investigation was pending during the term of

Mr. Foran’s successor as United States Attorney, William

J. Bauer. Therefore, it is argued, Judge Bauer partici-

pated in policy decisions on this investigation and was

thus disqualified under 28 U.S.C. $455 from presiding at

petitioners’ trial.

The original motion to vacate sentence alleged the pen-

dency of the investigation during Judge Bauer’s term as

United States Attorney, his knowledge of the investiga-

tion and participation in it, and its presentation at least

in part to the Grand Jury during his term of office, all on

information and belief. The one factual allegation from

which all these inferences apparently followed was the

conclusion from an affidavit of Thomas Foran that if the

investigation was going forward during Mr. Foran’s term

of office, it must have necessarily continued through or at

least into the term of office of his successor as United

States Attorney, William Bauer.

-A6-

The affidavit of Thomas A. Foran stated in essence that

it was affiant’s opinion that during his term of office as

U.S. Attorney, he had acquired information concerning

tle case against one or more of the defendants in the in-

-tant case such that he had a conflict of interest prevent-

ing him from later undertaking their defense. Mr. Foran

felt unable to give further details without judicial authori-

zation.

Petitioners moved for leave, under 28 U.S.C. $2255, to

take «discovery and, in particular, to depose Thomas Foran.

The court approved this deposition which has been con-

cluded and filed with the court.

Based upon this deposition, the government has moved

for summary judgment.

‘he deposition of Mr. Foran reveals that he obtained

what is referred to as an ‘‘intelligence report’’ during

i970 from a senior officer of the FBI concerning, among

many other things, payoffs to police from a Club in the

1kth district to protect activities involving prostitution.

The report was presented to Mr. Foran in connection with

the then-pending appointment of a police official to a

higher post. It also incidentally named Commander

Braasch as being involved, The report as described was

clearly very preliminary. The information is characterized

as allegations and described by the witness as ‘‘.. . almost

in the rumor stage’’. The report was presented to U.S.

Attorney Foran for informational purposes, and was not

the presentation of an investigative report for prosecu-

tive decision. As an intelligence report, it was a gather-

ing of information from informants which served to focus

subsequent investigative activity. After reading and dis-

cussing the report, Mr. Foran returned it to the FBI.

. .

oe en ahd cael

-A7-

Mr. Foran testified that he did not take it as an investi-

gation of the violation of Federal laws, nor did he feel

that the FBI agent presenting it was thinking in those

terms. The witness was certain that there was no dis-

eussion with investigative agencies concerning the pos-

sible application ef the Hobbs Act to police activities.

There was no discussion of continuing the investigation

or of possible prosecution.

Mr. Foran testified that when he was later contacted to

discuss possible representation of Clarence Braasch in the

instant case, he had previously seen news stories about

the Cousins Club and these stories, plus the discussion with

Braasch, made him recall the mention of Braasch and his

possible involvement with the payoffs from the Cousins

Club in the intelligence report above referred to. This

recollection caused Mr. Foran to conclude that he should

not represent Braasch.

The witness testified that to begin a case in the United

States Attorney's office, a procedure known as “‘logging

in’’ was used. No case was logged in arising out of the

allegations in the report in question and no investigation

was commenced. U.S. Attorney Foran regarded the re-

port as speculative and general, and without sufficient in-

formation to conclude that there had been a violation of

Federal law.

Prior to Mr. Foran’s leaving the U.S. Attorney’s office,

he did not discuss this case with James Thompson, who

was to serve as William Bauer’s first assistant and who

joined the staff before Bauer to become acquainted with

the office and its cperations. Neither did Mr. Foran ever

diseuss the matter with his suecessor, U.S. Attorney Bauer.

When Clarence Braasch inquired of Mr. Foran con-

cerning representation, Foran inquired of the former

-A8-

Chief and Assistant Chief of the Criminal Division and

the former head of the Organized Crime, Special Prosecu-

tion Unit who had served wider him. None had any recol-

lection of the report in question or any pending case in-

volving Braasch.

This deposition mandates the conclusion that no case

involving the petitioners was opened in the United States

Attorney's office during the term of office of Thomas

Foran. A fortiori, no such case or investigation was pend-

ing in the office when United States Attorney Bauer as-

sumed his duties on July 13, 1970.

With a single exception, later to be diseussed, the record

before me reveals that the next subsequent activity in con-

nection with the petitioners begins on May 4, 1972 when,

as the affidavit of James J. Annes, Special Agent of the

BI relates, the investigation by the FBI which resulted

in the indictment involved here was commenced. At this

time, Judge Bauer was sitting on the United States Dis-

trict Court, having been sworn in on November 29, 1971.

The single evidentiary challenge to the contention that

the investigation leading to the instant indictment com-

menced in 1972, after Judge Bauer had left the office of

the United States Attorney, is the affidavit of one Steve

L. Seno offered by petitioners. Steve Seno is one of the

convicted defendants in this case, and one of the peti-

tioners moving the court to set aside the judgment and

vacate hi. sentence.

In Mr. Seno’s affidavit, dated June 5, 1975, he relates

that he was a police officer assigned to the Vice Unit of

the 18th District in the summer of 1970. He states that

at that time he was told by a tavern owner, whose identity

is not related, that Federal agents whose identity is not

-A9-

related, had questioned the tavern owner about payoffs

to Chicago police officers and had shown the tavern owner

pictures, among which were those of aftiant Seno and his

co-defendant Edward Finn.

It is the finding of this court that the evidence before

it establishes that no investigation involving petitioners,

or resulting in their indictment, was commenced in the

office of the United States Attorney during the term of

United States Attorney Thomas Foran. The court further

finds that the peripheral mention of petitioner Braasch

and the Cousins Club in a memorandum read by U.S.

Attorney Foran in connection with a matter unrelated to

the instant case, was not mentioned by Mr. Foran to his

suecessor in office, William Bauer.

The court finds that the investigation in the 18th Dis-

trict resulting in the instant indictment was commenced

after William Bauer left the office of United States Attor-

ney.

There remains for consideration only the narrow issue

of whether, despite the opening of the FBI investigation

at a later date, there was some activity relevant to the

case in the office of the United States Attorney while

Judge Bauer held that post.

Petitioners clearly and forcefully so allege. In their

memorandum in opposition to the renewed motion for sum-

mary judgment, petitioners summarize their position in

terms of the three claims they make, as follows:

1. Petitioners were indicted by the special February

1971 grand jury, and evidence upon which this in-

dictment was based was first presented to the grand

jury during the tenure of Judge Bauer as United

States Attorney (Petitioner, 25)

2. The decision to present such evidence to the grand

jury was the result of significant policy decisions in

-A10-

which Judge Bauer, while United States Attorney,

had participated. (Petition, £20)

3. While United States Attorney, Judge Bauer acquired

personal knowledge of disputed facts which were

later to be at issue at petitioners’ trial. (Petition,

§10-18)

The totality of the pleadings on this petition virtually

compel the conclusion that all of petitioners’ allegations

ut the outset rested upon the fragile foundation of the

l’oran affidavit. If this is so, and there is no reason to

suppose petitioners would not have disclosed more if they

lad more, the logic by which the factual contentions of

this limited affidavit support the broad sweep of peti-

tioners’ claims is incomprehensible. That affidavit, hav-

ing heen elucidated by Mr. Foran’s deposition, no longer

supports the claim that an investigation involving any of

the petitioners, or any aspect of this case, was underway

during Mr. Foran’s term of office. Thus, the serious

charges filed by petitioners, summarized in their words

above, stand supported by two props.

The first is the Seno affidavit. This is a sworn statement

by a felon with an interest in the outcome of a case, re-

citing hearsay information from an unidentified source.

The second is the contention that the facts necessary to

support petitioners’ position are uniquely within the con-

trol of the United States Attorney, who because of his

opposition to petitioners’ cause may be presumed to be

Withholding them. As to this contention, it should be noted

that even though petitioners’ allegations are based upon

information and belief, this phrase cannot be a cloak for

irresponsible accusations or groundless imaginings. The

phrase means what it says: that is the possession by the

pleader of some modicum of information sufficient to sup-

port a belief. It is difficult to imagine the Foran affidavit

supporting the beliefs the pleader apparently drew from it.

nell

-All-

It would be quite possible on the basis of the record

before me to dismiss the petitioners’, motion to vacate

sentence for the reason that the proof of the allegations

of petitioners is so negligible as to consist virtually =

unsupported assertions. Davis v. U "nited States, 311 ra

495, 496 (7th Cir. 1963) ; Moody v. United States, 497 F.2d

359, 362 (7th Cir. 1974); United States v. T rumblay, 256

F.2d 615 (7th Cir. 1958); United States ex rel. Swaggerty

vy. Knoch, 245 F.2d 229 (7th Cir, 1957).

But because these virtually unsupported assertions re-

flect unfavorably upon a judge of the Court of Appeals,

it would be a disservice to him not to allow the record to

reflect his response to the accusation that he failed to

recuse himself in an instance where he was obligated to

do so.

The cause is continued therefore, for the purpose of

allowing Judge Bauer to respond by affidavit to the con-

{entions of petitioners as quoted above on page eight of

this memorandum.

Upon receipt of Judge Bauer’s response to this invita-

tion, this court will, with a supplemental opinion, make

final disposition of the government’s motion for dismissal

or summary judgment.

If Judge Bauer files an affidavit with this court, peti-

tioners may take five days to comment upon it, if they

wish.

Enter:

/s/ Frank J. McGarr

United States District Judge

Dated: June 10, 1975

~Al2-

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

EBWARD J. BARRY, THOMAS D. BATASTINI,

NATALE R. CALE, JOHN CATALANO, MARTIN D.

ESHOO, EDWARD F. FINN, CARL FLAGG, JOHN

M. GERAGHTY, PHILIP GRANA, EDWARD

MceGEE, HARRY R. SALVESEN, JOSEPH A. SCHIL-

LINGER, STEVE L, SENO, WILLIAM D. SWALLOW,

THOMAS D. WEST, MIKE ZAKOIAN and CLARENCE

E. BRAASCH,

Petitioners,

Vv.

THE UNITED STATES OF AMERICA,

Respondent.

No. 74 C 3432

MEMORANDUM OPINION AND ORDER

Petitioners have moved to vacate judgments of convic-

tion entered as to them in Cause No. 72 CR 979, and seek

a new trial. Their contentions were considered and sub-

stantialiy disposed of in an earlier memorandum opinion

(June 10, 1975). That opinion left final resolution of pend-

ing government motions to dismiss or for summary judg-

ment open to allow Judge William Bauer (whose failure

to disqualify himself is the source of petitioners’ com-

plaint) to file an affidavit to complete the record in the

matter. Petitioners were given time te comment on this

affidavit.

-A13-

Petitioners having once briefed the issues raised by

their pleadings, were expected to limit their recently-filed

memorandum to matters contained in Judge Bauer’s aff.

davit. Instead they have filed, on July 7, 1975, a second

lengthy memorandum rearguing old issues and raising

new ones.

The pleading should be, and in other circumstances

would be, stricken. However, the issues involved are too

significant to be resolved by rulings based on the pro-

cedural improprieties of counsel. The Court therefore has

accepted and considered petitioners’ second memorandum.

Petitioners have contended in their earlier pleading

that their trial was the result of a ‘‘. . . substantial in-

vestigation . . .”’ conducted while Judge Bauer was U.S.

Attorney with his knowledge and participation and that

the matter was presented to the Grand Jury while Judge

Baner was U.S. Attorney.

In a memorandum dated June 10, these allegations were

found to be groundless by this Court. Petitioners in their

second memorandum raise the question again, this time

with two court reporter transcriptions of interviews, one

with a Raphael Deady, the other with Police Sergeant

John Rouzan. Both address themselves to the govern-

ment’s contention that the Federal investigation leading

to indictment No. 72 CR 979 commenced in May of 1972.

The interview with Raphael Deady reveals that he recalls

being questioned about payoffs to policemen by persons

identifying themselves as FBI agents and that this oc-

curred in late 1971. The interview with Sergeant John

Rouzan reveals his knowledge of an FBI contact of his

father and questions concerning payoffs to policemen.

Sergeant Rouzan overheard this conversation while he

was painting the ceiling. The witness had great difficulty

-A14-

fixing the time and has unsuccessfully searched for rec-

ords to assist him. He states that this was either late

summer of 1971 or late summer of 1972, and during the

course of the interview, coneludes that it had to be i971

because in 1972, he would have been too busy to paint.

The evidentiary impact of these two interviews is negli-

gible. It adds little to the minimal content of the Seno

affidavit discussed in this Court’s earlier opinion.

Whatever slight evidentiary value is found in the total-

ity of petitioner’s affidavits tends to establish the propo-

sition that at a date prior to May, 1972, FBI agents may

have questioned tavern owners in the 18th District on

extortion by policemen,

It is not necessary to conclude that the events described

in the petitioners’ affidavits are inconsistent with the affi-

davit of FBI Agent James J. Annes to the effect that the

Hobbs Act investigation resulting in this indictment was

officially opened in May of 1972. It was the thrust of this

affidavit that the earliest possible time when the United

States Attorney would have become aware of the existence

of the investigation was that May, 1972 date, which of

course was after Judge Bauer had left that office. Evi-

dence suggesting that FBI agents may have made inquiries

in the 18th District, even if it were convincing, is not

relevant to nor illuminative of the date on which Judge

Bauer might have learned of the case by virtue of its first

presentation to the office of the United States Attorney

by the FBI.

Petitioners, having failed to adduce any support for

what has been revealed to be the groundless and irrespon-

sible allegations of their first pleading, now fall back to a

second and newly asserted position, briefed at length in

-Al5-

their July 7 memorandum. The gist of this contention is

that Judge Bauer, while United States Attorney, partici-

pated in the decision to invoke, for the first time, the

Hobbs Act against Chicago police officers. This conclusion

is drawn only inferentially from the evidence argued by

petitioners, but this point need not be labored. Twenty-

eight U.S.C. $455 refers to ‘‘. .. any case ...’’ in which

a judge has had a substantial interest. A general policy

decision to interpret or apply a statute in a given way,

is not a case nor a decision made within the context of a

case. In re Testa, 486 F.2d 1013 (3d Cir. 1973), cert. denied,

417 U.S. 919 (1974). No view of petitioners’ evidence,

however indulgently favorable, supports the proposition

that then U.S. Attorney Bauer had any obligation under

28 U.S.C. $455 to disqualify himself.

In this Court’s memorandum opinion of June 10, 1975,

a finding was made that the investigation of the 18th

Police District resulting in the instant indictment was

commenced and first presented to the office of the United

States Attorney after Judge Bauer had left that office.

There was left open for further consideration the pos-

sibility that, despite this fact, the investigation might have

come to Judge Bauer’s attention prior to the logging in

of the case, at some time during his term as United States

Attorney. The Court recognized this possibility, not be-

cause petitioner had produced any evidence in support of

it, but only because the Annes affidavit, while inferentially

denying this assertion, did not expressly do so.

Judge Bauer’s affidavit is now of record denying any

discussions, decisions or knowledge of facts related to

this case. Petitioners’ contention that Judge Bauer’s dis-

claimer of factual knowledge is too narrow and avoids the

question of policy decisions on Hobbs Act prosecutions,

has been discussed earlier and is without merit.

-Al6-

The reliet sought by petitioners is not available on the

hasis of unsupported allegations. Petitioners stand before

the Court after some discovery, a great deal of time, sev-

eral affidavits and two memoranda, having failed to give

substance to their original serious, unfounded charges.

The tactic stands revealed as a series of unsupportable

factual allegations irresponsilly filed to achieve a_post-

ponement of imprisonment. No further discovery or hear-

ing ix warranted on these contentions. Davis v. United

States, 511 I.2d 495, 496 (7th Cir. 1963); Moody v. United

States, 497 F.2d 359, 362 (7th Cir. 1974); United States v.

Trumblay, 256 F.2d 615 (7th Cir. 1958); United States ex

rel. Swaqqerty v. Knoch, 245 F.2d 229 (7th Cir. 1957).

In the light of the foregoing observations, petitioners’

motions for further discovery, for a vacation of judgment,

or for a new trial are each denied. The motion of the

governinent for summary judgment on petitioners’ Sec-

tion 2255 petition is granted, and petitioners’ prayer for

relief under Title 28, Section 2255 is denied.

The stay of exeeution heretofore granted to all peti-

tioners pending the determination of these matters is

vacated, and petitioner-defendants are ordered to sur-

vender to the United States Marshal before 12 noon on

July 22. The several defendants may surrender directly

to the designated penal institutions if appropriate ar-

rangements therefor are timely made.

nter:

/s/ Frank J. McGarr

United States District Judge

Dated: July 11, 1975

.

“ ee ee ae

+ oe aretare *

-Al7-

In the

Gnited States Court of Appeals

Sor the Seventh Circuit

No. 75-1659

Mowarp J. Barry, Tuomas PD. Barastint, Natate R. Care.

Joux Cararano, Martix D. Estuoo, Epwarp P. Fix,

Cart Face, Joun M. Geracuty, Punap R. Granxa, Ep-

wakp McGesg, [larry R. Sa.vesen, .losern A. SCHILLIN-

ager, Sveve L. Sexo, Wituiam D. Swattow, Tuomas PD.

West, Mike Zakoran, and CLanence Braascu,

Petitioners-A ppellants,

Vv.

4

Unirep STATES oF AMERICA,

Respondent-Appeller.

Appeal from the United States District Court for the

Northern District of [Mlinois, Eastern Division

No. 74 € 3432

Frank J. McGarr, Judge.

Arcvep NovempBer 7, 1975 — Decipep Janxvary 18, 1976

. Wy ° ,_*

Before Farrcurp, Chief Judge, Avams, Cirewit Judae,

and Camppeii, Senior District Judqe.**

Apams, Circuit Judge. In this appeal, we are asked to

decide whether the district judge who presided at_ the

petitioners’ criminal trial contravened the mandatory dis-

qualification statute,) whether there was prosecutorial mis-

* The Honorable Arlin M. Adams, Circuit Judge of the United States

Court of Appeals for the Third Circuit, is sitting by designation

** The Honorable William J. Campbell, Senior District Judge for the

Northern District of Ulinois, is sitting by designation.

‘28 USC. § 455 (1970).

~Al18-

75-1659 2

conduct warranting reversal in connection with the judge’s

decision not to reense himself, and whether the scope of

the proceedings held in the district court in this col-

lateral attack on the convictions was improperly restricted.

I.

The prosecutions that led to the petition for habeas

corpus presently before us arose out of a pervasive scheme

of extortion involving the viee squad of Chieago’s 18th

Police Distriet2 Federal jurisdiction over the erimes, which

consisted of periodic payoffs from bar and tavern owners

to the defendant police officers. was obtained throngh a

then-novel interpretation of the Hobbs Act.’

When the ease was ready for trial, it was assigned to

Jndge William J. Bauer.t Because he had served from

July 1970 until November 1971 as United States Attorney

for the district in which the prosecution was brought,

Judee Bauer requested that offiee to advise him of the date

when the investigation underlying the case had begun, In

response, he received an affidavit from James J. Annes, a

Special Agent with the FBI, stating that the investigation

had formally commenced in May 1972—several months

after Judge Bauer had left the office of the U.S. Attorney.

As a result of this information, Judge Bauer decided not

to disqualify himself from presiding at the trial. The trial

and eonvietions followed.

After affirmance of the convictions by this Court,’ peti-

tions were filed under 28 U.S.C. §2255. The distriet eourt

granted the government's motion for summary judgment

and denied relief. We affirm.

2An exposition of the distressing factual background of the criminal

conspiracy is presented in considerable detail in an opinion by Justice

Tom Clark, sitting by designation, which affirmed the convictions. United

States v. Braasch, 505 F.2d 139, 141-44 (7th Cir. 1974), cert. denied sub

nom Barry v. United States, 421 U.S. 910 (1975).

*18 U.S.C. § 1951 (1970). The contention that the shakedown racket

did not affect interstate commerce, as required by the statute, was

flatly rejected by this Court. United States v. Braasch, 505 F.2d 139,

147 (7th Cir. 1974), cert. denied sub nom. Barry v. United States, 421

US. 910 (1975). See a&o United States v. DeMet, 486 F.2d 816, 821-22

(7th Cir. 1973), cert. denied, 416 US. 969 (1974).

+ Judge Bauer has subsequently been appointed to this Court.

5 United States v. Braasch, 505 F.2d 139 (7th Cir. 1974), cert. denied

sub. nom Barry v. United States, 421 U.S. 910 (1975).

b> sete

eet

-~Al19-

3 75-1659

TT.

Petitioners have raised three primary arguments in

this Court. The first is that under the circumstances: here,

the provisions of 2S TLS.CL $455° required Judge Bauer

to disqualify himself from presiding at the criminal trial.

This is so, it is asserted, for two reasons. First. the poliey

decision to employ the Hobbs Act to combat the police

extortion ring, a use to which it had not previously been

put, was allegedly made by U.S. Attorney Baner. It. is

maintained that this made him “of counsel” to the United

Mates Government and also eave him a “substantial in-

terest” in prosecutions that rely upon that theory; dis-

qualification was thus required. Seeond, U.S. Attorney

Baner allegedly appeared before and encouraged the grand

jury that indicted the members of the 18th District’s vice

squad. It is urged that sueh condnet also mandated dis-

qualification under section 455,

The next contention set forth hy petitioners is that when

Jndge Baner asked the office of the U.S. Attorney the date

When the investigation liad begun, in order to determine

Whether disqualifieation was called for, the answer was an

Intentional misrepresentation of the facets. The petitioners

assert that the investigation had in fact commenced during

the tenure of U.S. Attorney Bauer, and that he did not

disqualify himself because he was improperly told it had |

bevnn after his appointment to the bench. The argument

continues that the government was thus able, as a fruit of

its alleged impropriety, to present its case to a judge who

was already favorably disposed to its proseentorial theory.

Finally, petitioners claim that their section 2255 action

Was invalidly restricted in the district court. They contend

that discovery was unduly limited, and that the district

court erroncously granted summary judgment to the gov-

ernment on the basis of conflicting affidavits. They further

resent that althoneh section 2255 requires a herring unless

“the motion and the files and records of the case eon-

*28 USC. § 455 (1970) provides:

Any justice or judge of the United States shal! disqualify him-

self in any case in which he has a substantial interest, has been of

counsel, is or has been a material witness, or is so related to or

connected with any party or his attorney as to render it improper,

in his opinion, for him to sit on the tri:

ing therein, e trial, appeal, or other proceed.

-A20-

ae

75-1659 2 4

clusively show the prisoner is entitled to no relief,” and

although this was not conclusively shown, no hearing was

vranted them.

Meeting the claims advanced by the petitioners, the

government contends, first, that this “case” did not get

under way until the tenure of William Bauer as U.S.

Attorney had ended. It further submits that the policy

decision to use the Hobbs Act was not made by U. S.

Attorney Bauer, and that even if it were, disqualification

was not required. Finaliy, it is maintained that ample

discovery was atiowed; that the affidavits did not conflict

in any material way; and that no hearing was required,

since the claim raised by petitioners was not a substantial

one,

Qur analysis of the applicability of 28 U.S.C. §455 in

ihe cireumstances present here leads to the conclusion

that Judge Bauer’s disqualification was not mandated by

the statute.’

’The possibility that Judge Bauer’s disqualification was mandated by

§ 455 was not raised until the § 2255 petition was filed in November

1974, more than 15 months after the trial began and 13 months after

the verdicts of guilty were rendered by the jury. In similar circum-

stances, some courts have found a waiver of any § 455 objections. See,

eg., Zovluck v. United States, 448 F.2d 339, 343 (2d Cir. 1971), cert.

denied, 405 U.S. 1043 (1972); Adams v. United States, 302 F.2d 307, 310

(Sth Cir. 1962); Ramirez v. United States, 294 F.2d 277, 283 (9th Cir.

1961). It was particularly common for courts to find waiver before the

statute was amended in 1948. Until that year, disqualification was re-

quired only after “application by either party. . . .” Act of Mar. 3,

1911, ch. 231, § 20, 36 Stat. 1090. See, eg., In re Fox West Coast Theatres,

25 F. Supp. 250, 259 (S.D. Cal. 1936), aff'd, 88 F.2d 212 (9th Cir.), cert.

denied sub. nom Talley v. Fox Film Corp., 301 U.S. 710 (1937); Borough

of Hasbrouck Heights v. Agrios, 10 F. Supp. 371, 374 (D.NJ. 1935).

Although the statute is now written in mandatory terms, without the

need for a motion by the parties, some courts nonetheless have allowed

the statute’s requirements to be waived by express consent of the par-

ties. Thomas v. United States, 363 F.2d 849, 851 (9th Cir. 1966); Harris

v. United States, 338 F.2d 75, 79 (9th Cir. 1964); Neil v. United States,

205 F.2d 121, 125 (9th Cir. 1953); Neiman-Marcus Co. v. Lait, 107 F.

Supp. 96, 102 (S.D.N.Y. 1952); cf. Comment, Disqualification for Interest

of Lower Federal Court Judges, 71 Mich. L. Rev. 538, 543 (1973).

Only one court has held that the 1948 amendment precludes a waiver

of the § 455 objection. United States v. Amerine, 411 F.2d 1130, 1134

(6th Cir. 1969). See Note, Disqualification of Judges and Justices in the

Federal Courts, 86 Harv. L. Rev. 736, 738 n. 14 (1973). We believe that

this is the more informed view, and thus reach the merits of the peti-

tioners’ § 455 claim.

ee

~

-A21-

a 75-1659

Section 455 refers only to particular relationships by

the judge “in any case... .”* This limitation is a signi-

ficant one. The two courts of appeals that have constrned

the phrase “in any case” have given it a rather strict

meaning, one which we follow. In United States v. Wilson,

426 F.2d 268, 269 (6th Cir. 1970), the Sixth Circuit inter-

preted it as follows:

“A ‘case’ does not, of course, necessarily come into

being with the happening of the offense. The critical

point for mandatory disqualification is, we think, the

initiation of the prosecution. For purposes of 28 U.S.C,

£455, we believe that a ‘ease’ begins with the first

formal prosecutorial proceedings (arrest, complaint or

indictment) which is designed to bring a named alleged

offender hefore the court.”

The Third Cireuit has taken the same approach, holding

that there is no criminal “ease” when there has not yet

been an “arrest or indictment... .” In re Grand Jury

Investigation, 486 F.2d 1013, 1015-16 (3d Cir. 1973), cert.

denied sub nom. Testa v. United States, 417 U.S. 919

(1974).°

The aflidavits filed in the district court in this proceeding

show that no “case” against the petitioners existed until

after Mr. Bauer had left the office of the U.S. Attorney.

The allidavit by James J. Annes, the I'BI Special Agent,

averred that the investigation had not begun until May

1972, about five months after Judge Bauer had resigned

as U.S. Attorney. This affidavit was undisputed, Petitioners

proffered testimony from four individuals indicating that

FBI agents had, in 1970 and 1971, asked questions of

several persons about payoffs to policemen by tavern

owners. But mere questioning of a few individuals does

®When the statute was amended once again in 1974, the “case” re-

quirement was eliminated and the standards for disqualification were

modified. Act of Dee. 5, 1974, Pub. L. No. 93-512, § 1, 88 Stat. 1609.

The 1974 amendment does not affect the trial of the petitioners, how-

ever, because the trial occurred prior to the effective date of the new

statute. Id. § 3; Duplan Corp. v. Deering Milliken, Inc. 400 F. Supp.

497, 505 (DS.C. 1975); United States v. Clark, 398 F. Supp. 341, 362

a. 13 (E.D. Pa. 1975).

*Cf. Gravenmier v. United States, 469 F.2d 66, 67 (9h Cir. 1972).

Congressman Kastenmeier, the sponsor of the 1974 amendment to § 455,

views the “case” requirement of the pre-1974 version of the statute in

the same way as do the Third and Sixth Circuits. 120 Cong. Rec. H

10731 (daily ed. Nov. 18, 1974).

| BEST GOPY AVAILABLE

-~A22-

75-1659 6

not meet the Wilson standard of attempting “to bring a

mimed alleged defender before the court,”'’ nor does it

constitute the formal opening of the prosecution required

hy both Woelson and Grand Jiry.? No other evidence was

presented to the district court that even tended to show

that the prosecntion either began or continued during the

tenure of ULS, Attorney Dauner!

Thus, Judge Bauer did not sit in a “ease” in which he

aud been “of counsel" or in which he had a “substan.

tial interest." the congressional standards for mandatory

'» 426 F.2d at 269 (emphasis added).

‘Id

-486 F.2d at 1015.

' Petitioners note that Thomas Foran, the previous U. S. Attorney,

refused to represent some of them in their defense to this prosecution,

on the basis that when he was the U. S. Attorney he had seen a docu-

ment regarding payoffs to one of the petitioners. They contend that

this shows that the investigation began during the Foran term in oftice

and continued while Mr. Bauer occupied the office. However, Mr.

Foran had seen the document in connection with a totally unrelated

concern, und no office file relating to the payoff scheme was opened

when he was U. S. Attorney. We thus reject the argument that the

“ease” began before, and continued during, U. S. Attorney Bauer's term.

‘this interpretation of the documents presented to the district court

also resolves the pctitioners’ claim that it was improper for the district

court to grunt summary judgment. In our view of the case, there was

no dispute over any material factual issue, the standard established

in Rule 56(c) of the Federal Rules of Civil Procedure. Kiess v. Eason,

442 Fed 712, 713 (7th Cir. 1971).

''There is no doubt that the U. S. Attorney is “of counsel” to the

United States in all criminal prosecutions brought within his district.

This has been the rule for almost 30 years, since the decisions in

United States v. Vasilick, 160 F.2d 631, 632 (3d Cir. 1947), and United

States v. Maher, 88 F. Supp. 1007, 1008 (D. Me. 1950). Courts uniformly

follow that rule today. See, eg, in re Grand Jury Investigation, 486

F.2d 1013, 1015 (3d Cir. 1973), cert. denied sub. nom Testa v. United

States, 417 US. 919 (1974); United States v. Amerine, 411 F.2d 1130,

1133 (6th Cir. 1969); Adams v. United States, 302 F.2d 307, 310 (5th

Cir. 1962).

'“The “substantial interest” contemplated by § 455 is usually con-

strued as a financial interest. See, eg., In re Grand Jury Investigation,

486 F.2d 1013, 1016 (3d Cir. 1973), cert. denied sub. nom Testa v. United

States, 417 US. 919 (1974); United States v. Bell, 351 F.2d 868, 878 (6th

Cir. 1965), cert. denied, 383 US. 947 (1966); Kinnear-Weed Corp. v.

Humble Oil & Retining Co, 324 F. Supp. 1371, 1385 (S.D. Tex. 1969),

affd, 441 F.2d 631(5th Cir.), cert. dened, 404 US. 941 (1971); Note,

supra note 7, at 740; Cormment, supra note 7, at 553.

The Fifth Cireuit has taken the broader view that a “substantial

interest” is not only financial, but encompasses “the interest that any

lawyer has in pushing his case to a successful conclusion.” Adams v.

United States, 302 F.2d 307, 310 (Sth Cir. 1962); accord, Roberson v.

United States, 249 F.2d 737, 741 (Sth Cir. 1957). cert. denied. 356 US.

919 (1958).

Because we conclude that there was no relationship to a § 455 “case,”

we need not address this con“ict.

.

ee a ee

and

eke

-A23-

7 75-1659

disqualification. There was therefore no violation of the

statute.”* .

Nor did Judge Bauer’s decision to preside at ‘he trial

lead to a constitutional violation. The Supreme Court

has held that the due process clause prohibits a criminal

trial in which the judge “has a direct, personal, substan-

tial, pecuniary interest in reaching a conclusion against

{the defendant] in his case.” But it is not alleged that

Judge Bauer had any financial stake in the outcome ot

the prosecutions here. More broadly, the Supreme Court

has ruled that “|ejvery procedure which would offer a

possible temptation to the average ian as a judge to

forget the burden of proof required to convict the de-

fendant, or which might lead him not to hold the balance

nice, clear and true between the state and the accused,

denies the latter due process of law.”"* The conflicts of

interest present in the eases in which this standard was

enunciated were, however, much more extreme than tlie

lack of impartiality suggested here.’

Furthermore, any error was harmless.*° At the end of

the trial, the defendants stated to Judge Bauer that he

had heen impeccably fair and just in presiding over the

proceedings. The Judge’s ruling of law that the [Hobbs

Act applied to the activities of the police in this case can-

not even be considered error, since the same conclusion

was reached independently by this Court on appeal.*'

16 Cf. United States v. Ming, 466 F.2d 1000, 1004 (7th Cir.), cert.

denied, 409 US. 915 (1972) (duty to sit). No evidence whatever was

proffered in support of the allegation that U. S. Attorney Bauer ap-

peared before the grand jury ‘at investigated the extortion ring and

indicted the petitioners.

17Tumey v. Ohio, 273 U.S. 510, 523 (1927). Accord, Ward v. Village

of Monroeville, 409 US. 57, 60 (1072).

18 Ward v. Village of Monroeville, 409 U.S. 57, 60 (1972); In re Mur-

chison, 349 U.S. 133, 136 (1955); Tumey v. Ohio, 273 US. 510, 532 (1927).

1% Ward involved a trial for traffic offenses held before a village mayor

who had responsibilities for revenue production and law enforcement.

The judge in Murchison had served as a “one-man grand jury” that

indicted the defendant. And the judge in Tumey was a village mayor

who could raise money for the village's treasury and recover his own

costs only when he found defendants guilty.

20 See Chapman v. California, 386 U.S. 18 (1967).

2: See United States v. Braasch, 505 F.2d 139, 147 (7th Cir. 1974),

cert. denied sub. nom Barry v. United States, 421 US. 910 (1975). We

also observe that the considerations present in a collateral attack on

a conviction, such as that here, may differ from those in a direct —-.

Cf. Schneckloth v. Bustamonte, 412 U.S. 250-75 (1973) (Powell, J

concurring).

-A24-

75-1659 8

inally, several Supreme Court Justiees lave sat in

eases in Which their relationship to the issues involved

was at least as close as was Judge Bauer's in this case.

The most recent example is Justice Relinguist, who de-

clined to disqualify himeelf from sitting in Laird vy.

Tatum? even though he had appeared as the Justice De-

partment’s expert witness before a Congressional sub-

committee to give testimony about some of the issues

raised in Laods' In lis memorandum opinion on the dis-

qualification ossne, Justice Rehnquist mentioned other

evumples of Justices who had sat in cases despite an ap-

parent contlict greater than Judges Bauer’s was here :**

as a Senator, Lugo Black was a primary author of the

hair Labor Standards Aet; yet as a Justice he sat in the

case upholding its constitutionality and in later cases con-

struing it. As a law professor, Felix Frankfurter was a

co-author of The Labor Injunction and a principal draft-

er of the Norris-LaGuardia Act; vet as a Justice he de-

livered the opinion of the Court in the //utcheson case,

which determined the seope of that statute. There are

other examples as well.*?

Aceordingly, we hold that Judge Bauer violated neith-

er section 455 nor contemporary constitutional standards

by presiding at the trial in this case?

IV.

It is alleged that when Judge Bauer asked the U. %.

Attorney’s office when the investigation of the petitioners

had begun, he was intentionally misled into believing that

it had commenced after his departure from that office.

In fact, petitioners state, it began before U. S. Attorney

aner took the bench. They proceed to argue that the

intentional misrepresentation was a _ prosecutorial im-

propricty that requires reversal. We reject that argument.

“2408 US. 1 (1972).

“5409 US. 824, 824-28 (1972) (memorandum of Rehnquist, J.).

*4Id. at 831-32.

*5 See id. at 832-33. For another variant of the problem, see Penn-

sylvania v. Operating Eng’rs Local 542, 388 F. Supp. 155 (E.D. Pa. 1974)

(Higginbotham, J.).

_** For a discussion of the delicate question whether a judge should

sit or disqualify himself, see Note, Disqualification of Judges and Jus-

tices in the Federal Courts, 86 Harv. L. Rev. 736, 746-47 (1973).

-~A25-

9 75-1659

First, this claim was neither set forth in the section

455 petition nor discussed in the two memorandum opin-

ions by the district court. Such an issue may not be

raised for the first time in this Court.”

Second, we have already determined that it was not

constitutional error for Judge Bauer to preside at the

trial of this case. ‘Thus, assuming arguendo that the

communication was erroneous, it would not be unconsti-

tutional under the facts in this case for him to have re-

lied upon it in deciding whether te sit.

V.

Petitioners’ final argument in this appeal is that the

provedures used by the district court in determining the

section 2255 motion were deficient in two respects: the

scope of discovery allowed by the court was impermis-

sibly narrow, and the denial of an evidentiary hearing

violated the precepts of section 2255. We reject both

arguments.

The Supreme Court’s decision in Harris v. Nelson, 394

U.S. 286 (1969), makes clear that the scope of discovery

to be allowed in a collateral attack upon a conviction

lies in the discretion of the district court. Rejecting the

contention that the Federal Rules of Civil Procedure

should apply directly to habeas corpus proceedings, the

Supreme Court held that certain federal procedural rules

could be applied “by analogy or otherwise, where ap-

propriate.” Through the power granted by the All Writs

Act, district courts may order such discovery, in this

fashion, as they deem necessary to determine the facts

adequately.”

In the proceedings held in the district court, deposi-

tions and affidavits were considered. Although it is under-

standable that petitioners may have desired a chance for

27Hamilton Die Cast, Inc. v. United States Fidelity & Guaranty Co.,

508 F.2d 417, 420 (7th Cir. 1975). In Ohio Casualty Ins. Co. v. Rynear-

son, 507 F.2d 573, 582 (7th Cir. 1974), this Court stated that “[t}he

principle that new issues . . . may not be raised for the first time on

appeal is too well known to require citation.”

26394 US. at 294 (footnote omitted)

“97d. at 300. Harris arose in the context of a state habeas corpus

petition, but its principles have been applied directly to federal pro-

ceedings governed by § 2255, as well. Argo v. United States, 473 F.2d

1315, 1317 (9th Cir.), cert. denied, 412 US. 906 (1973).

~A26-

75-1659 10

greater discovery than that, we certainly cannot say

that the scope of discovery allowed. by the district court

constituted an abuse of its discretion.

The assertion that the district court should have held

a hearing is based upon the language of section 2255°°

and the construction given it in Machibroda v. United

States, 368 U.S. 487 (1962). However, it is the rule of

this Court that, in order for a hearing to be granted, the

petition must be accompanied by a detailed and specific

affidavit" which shows that the petitioner has actual proof

of the allegations going beyond mere unsupported asser-

tions.** The petitioners failed to meet this burden. Thomas

Foran’s affidavit, the only one filed with the petition, was

not specifically detailed, nor did it demonstrate that peti-

tioners had actual proof of the allegations they had made.

The affidavit sek only that Mr. Foran had refused to

represent several of the petitioners in their criminal de-

fense at the original trial because he “recalled that facts

relevant to {the case] had been called to [his] attention

while [he] was United States Attorney ....” This by itself

was not sufficient to require a hearing, and its alleged

relevance to the case was weakened by Mr. Foran’s depo-

sition, when he stated that the “facts” he had learned had

heen brought to his attention in a totally unrelated context.

‘Thus, the petition that was employed to support the claim

that petitioners were entitled to a hearing was essentially

3° The statute provides in part that “[u]nless the motion and the files

and records of the case conclusievly show that the prisoner is entitled

to no relief, the court shall . . . grant a prompt hearing thereon... .”

31 Moody v. United States, 497 F.2d 359, 362 (7th Cir. 1974); Burris v.

United States, 430 F.2d 399, 401 (7th Cir. 1970), cert. denied, 401 U.S.

921 (1971); Stetson v. United States, 417 F.2d 1250, 1252-53 (7th Cir.

1969); United States v. Martinez, 413 F.2d 61, 64 (7th Cir. 1969).

32 United States v. Lowe, 367 F.2d 44, 45-46 (7th Cir. 1966); Mitchell

v. United States, 359 F.2d 833, 837 (7th Cir. 1966); Davis v. United

States, 311 F.2d 495, 496 (7th Cir.), cert. denied 374 US. 846 (1963);

United States v. Mathison, 256 F.2d 803, 805 (7th Cir.), cert. denied,

358 U.S. 857 (1958); United States v. Trumblay, 256 F.2d 615, 617 (7th

Cir. 1958), cert. denied, 358 US. 947 (1959).

theta nein: Dies ara sinentonnineetien

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11 75-1659

VI.

predicated on conjecture and speculation.” This is patently

insufticient.

Accordingly, the judgment of the district court is

AFFIRMED.

A true Copy:

Teste:

POTEET RETR EEE EERE EEE EEE EE EEE EE EEE HEHE HEHE EERE Hee EEE

Clerk of the United States Court of

Appeals for the Seventh Circuit

** For an example of factual support of a petition clearly calling for

a hearing, see Teague v. United States, 499 F.2d 1381 (7th Cir. 1974).

A hearing was ordered in Sanders v. United States, 373 US. 1, 19-20

(1963), on the basis of allegations alone. However, the hearing there

required testimony only from the petitioner himself. Where a high

governmental official would have to be extensively interrogated, different

considerations are appropriate, and the requirement of factual support

for the allegations, established in this Court's prior decisions, will be

read strictly.

USCA 4159—The Scheffer Press, Inc., Chicago, Illinois—1-13-76—250

-A28-

28 U.S.C. §455 (1970):

Any justice or judge of the United

States shall disqualify himself in any

case in which he has a substantial

interest, has been of counsel, is or

has been a material witness, or is so

related to or connected with any party

or his attorney as to render it im-

proper, in his opinion, for him to sit

on the trial, appeal, or other pro-

ceeding therein. |

28 U.S.C. §2255:

A prisoner in custody under sentence

of a court established by Act of Congress

claiming the right to be released upon

the ground that the sentence was imposed

in violation of the Constitution or laws

of the United States, or that the court

was without jurisdiction to impose such

sentence, or that the sentence was in

excess of the maximum authorized by law,

or is otherwise subject to collateral

attack, may move the court which imposed

the sentence to vacate, set aside or

correct the sentence.

28 C.F.R. §16.22:

No employee of former employee of the

Department of Justice shall, in response

to a demand of a court or other authority,

produce any material contained in the

files of the Department or disclose any

information relating to material con-

tained in the files of the Department,

Or disclose any information or produce

any material acquired as part of the per-

formance of his official duties or be-

cause of his official status without prior

approval of the appropriate Department

official or the Attorney General in

accordance with §16.24.

Rule 7 of the Rules Governing Section

2255 Proceedings for the United States

District Courts (effective August l,

1976):

Expansion of record

(a) Direction for expansion. If the

motion is not dismissed summarily, the

judge may direct that the record be ex-

panded by the parties by the inclusion

of additional materials relevant to the

determination of the merits of the motion.

(b) Materials to be added. The ex-

panded record may include, without limi-

tation, letters predating the filing of

the motion in the district court, docu-

ments, exhibits, and answers under oath,

if so directed, to written interroga-

tories propounded by the judge. Affi-

davits may be submitted and considered

as a part of the record.

(c) Submission to opposing party. In

any case in which an expanded record is

directed, copies of the letters, docu-

ments, exhibits, and affidavits pro-

posed to be included shall be submitted

to the party against whom they are to

be offered, and he shall be afforded an

opportunity to admit or deny their

correctness.

(d) Authentication. The court may

require the authentication of any

material under subdivision (b) or (c).