Appendix — Harrington v. United States

OCT

MIC | ow

No. %8 -973 tka

In the

Supreme Court of the United States

OCTOBER TERM, 1978

DENNE M. HARRINGTON and GARY D. RONDEAU

Joint Petitioners,

vs.

UNITED STATES OF AMERICA,

Respondent.

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

CRAIG HAYES of

McCUSH, KINGSBURY, O’CONNOR,

LUDWIGSON, THOMPSON & HAYES

Attorney for Joint Petitioners

P. O. ADDRESS:

P. O. Box 399

220 Champion, Suite 206

Bellingham, Washington 98225

Tel. AC 206-734-2000

“Supreme Court, U. ry

FILED

o 1978

fi K, JR, CLERK

+ a npr

United States Court of Appeals

F or the Ninth Circuit

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VS.

WILBUR N. OLANDER, Nos. 77-3794

WILLIAM DOLMAN, 77-3925

DENNE M. HARRINGTON, 78-1239

GARY D. RONDEAU, 78-1240

GERALD L. MINNICH, 78-1310

ARTHUR SCHRUDER, and 78-1311

ROY D. WILSON, 78-1312

Defendants-Appellants. OPINION

Appeal from the United States District Court

for the Western District of Washington

Before: DUNIWAY and CHOY, Circuit Judges,

and GRANT,®* District Judge

DUNIWAY, Circuit Judge:

These seven appeals have been consolidated and were

all heard on the same day, although some were separately

argued. We dispose of all of them in this opinion. In each

case except that of Olander, we affirm. In Olander’s case,

we reverse.

*The Honorable Robert A. Grant, Senior United States District

Judge of the United States District Court for the Northern District

of Indiana, sitting by designation.

App. 2

I. BACKGROUND APPLICABLE TO ALL APPEALS.

All of these cases arise from the efforts of the United

States District Court for the Western District of Washing-

ton to enforce its decree in United States v. Washington,

W.D. Wash., 1974, 384 F. Supp. 312, aff'd, 9 Cir., 1975,

520 F.2d 676, cert. denied, 423 U.S. 1086. The district

court, finding its decree opposed and frustrated by the

executive and judicial departments of the State of Wash-

ington, and by the organized and vocal defiance of the

commercial fishermen in the State of Washington, felt

compelled to implement its judgment by the issuance of

an injunction. That injunction regulates fishing for sal-

mon in Puget Sound and certain other areas by non-Indian

(‘‘non-treaty”) commercial fishermen for the purpose of

assuring to Indian (‘‘treaty’’) fishermen the opportunity

to catch their share of salmon as determined in the

court’s original judgment.

The court’s injunction, issued September 27, 1977,

provides in material part:

1. All Puget Sound and other marine waters east-

erly of Donilla Point-Tatoosh line and their water-

sheds, all Olympic Peninsula watersheds, and all

Grays Harbor and its watersheds are hereby closed

to all net salmon fishing except during such times

and such specific waters as are opened by State or

tribal regulations or regulations of the United States

conforming to the orders of this Court in this case.

2. All reef net, gill net and purse seine fishermen

licensed by the State of Washington, all other persons

who attempt to net or assist in netting salmon in the

waters described in paragraph 1, the Puget Sound

Gillnetters Association, the Purse Seine Vessel Own-

ers Association, the Grays Harbor Gillnetters Associa-

tion and all persons in active concert or participation

with them are hereby enjoined and prohibited from

engaging in taking, possessing, or selling salmon of

App. 3

any species taken from such waters, unless such

rson has first ascertained from the Washington

Department of Fisheries telephone ‘‘hot-line’’, 1-800-

562-5672 or 1-800-562-5673, that the area to be

fished is open for fishing by non-treaty fishermen at

the time the individual intends to fish, provided, that

this provision shall not apply to persons exercisin

treaty fishing rights in accordance with the orders o

this court.

3. The defendant State of Washington is directed

to maintain a continuous telephone hot-line service

free of charge to any caller from within the State of

Washington to provide information on areas within

the waters described in paragraph | of this order

that are open to net salmon fishing by non-treaty

fishermen in conformity with the orders of this Court.

The defendant shall furnish to this Court and to the

United States Attorney a transcript of the daily hot-

line messages.

In Puget Sound Giilnetters Association v. United States

District Court, 9 Cir., 1978, 573 F.2d 1123, the Gill-

netters Association, by petition for a writ of mandamus,

and the State of Washington, by appeal, attacked this

injunction. We upheld it against all of the attacks there

presented to us.

The cases now at bar arise from the attempts of the

United States to enforce the injunction by means of crim-

inal contempt proceedings. In each case, the appellant, a

commercial fisherman, was found fishing for salmon by

the use of a gill net, in an area which, at the time, had been

declared to be closed on the “‘hot-line’’ mentioned in the

injunction. Each appellant had been previously found

in an area similarly declared to be closed and had then

been personally served with a copy of the injunction and

told that he must comply with paragraph 2. Each was

charged, in an order to show cause procured by the United

App. 4

States attorney and signed by the judge, with violating

18 U.S.C. § 401(3), found guilty in a trial to the court,

and sentenced to 60 days in jail. Each is free on personal

recognizance.

With the foregoing as background, we proceed to

consider the appeals that are before us. We consider the

appeals in the chronological order in which the convic-

tions occurred.

II. DOLMAN — No. 77-3925.

Dolman was found fishing with a gill net in a closed

area on September 30, 1977, three days after the injunc-

tion was issued. A National Marine Fisheries officer

served a copy of the injunction on him, read paragraph 2

to him, was told by Dolman that he understood it, and

warned Dolman that if he again fished in a closed area

as ascertained from the hot-line, he could be cited for

contempt of court. On October 4, Dolman was again

found fishing with a gill net in such a closed area and was

served with a citation. Thereafter, an order was issued

requiring him to show cause why he should not be

punished for criminal contempt. After a full hearing, he

was found guilty and sentenced to serve 60 days in jail,

on November 22, 1977. We consider his six claims of

error.

A. Claims governed by prior decisions of this court.

1. That the treaties with the Indians are not self

executing and cannot be enforced by the District

Court.

This notion was rejected by us in United States v.

Washington, supra, 520 F.2d at 684-85, 687, which we

reaffirmed in our Puget Sound Gillnetters case, supra,

573 F.2d at 1126-27, 1130 n.9.

App. 5

2. That the injunction cannot be enforced against

Dolman because he was not a party to United

States v. Washington.

This argument was rejected by us in our Puget Sound

Gillnetters case, supra, 573 F.2d at 1132-33.

B. The claim that due process was denied in that there

was non-compliance with Rule 65, F.R. Civ. P. and

the injunction is not specific enough.

The applicable portion of Rule 65 is 65(d):

(d) Form and Scope of Injunction or Restrainin

Order. Every order granting an injunction an

every restraining order shall set forth the reasons for

its issuance; shall be specific in terms, shall describe

in reasonable detail, and not by reference to the

complaint or other document, the act or acts sought

to be restrained; ...

Dolman argues that the injunction, the operative por-

tions of which are quoted at page 2, supra, incorporates

by reference other documents, namely, Washington De-

partment of Fisheries Regulations, Tribal Regulations,

U.S. Regulations, Department of Fisheries Hotline, and a

court order issued in United States v. Washington. We

find no such incorporation, and counsel does not tell us

where he finds it.

All that the injunction requires a fisherman to do is to

call the hot-line before going fishing, and then to refrain

from fishing in any area which the hot-line tells him is

closed. We find paragraph 2 clear, concise, and compre-

hensible. That is the only paragraph that Dolman was

required to obey. We find nothing in paragraph | that

conflicts with paragraph 2. Paragraph | does not purport

to authorize fishing in waters declared open by state or

tribal or United States regulations. It merely declares

that all relevant waters are closed except those opened

by such regulations. But it does not do what counsel says

App. 6

it does, that is, require fishermen to know those regula-

tions and follow them. Instead, all it requires is, in para-

graph 2, that the fishermen comply with what the hot-line

tells him about open or closed waters. If the hot-line

tells him that an area is closed, he is not to fish there; if

it tells him that an area is open, he may fish there.

The injunction is as specific as the nature of the

subject matter—regulation of fishing in Puget Sound—

permits. See Puget Sound Gillnetters, supra, 573 F.2d at

1133, n.16; McComb v. Jacksonville Paper Co., 1949,

336 U.S. 187, 191-92; Gulf King Shrimp Co. v. Wirtz,

5 Cir., 1969, 407 F.2d 508, 517; Seagram-Distillers

Corp. v. New Cut Rate Liquors, Inc., 7 Cir., 1955, 221

F.2d 815, 820-21.

The notion that non-Indian commercial fishermen de-

rive their fishing rights from the treaties, and so are all

within the proviso of paragraph 2 is, to say the least,

far-fetched. As we pointed out in Puget Sound Gillnetters,

supra, 573 F.2d at 1128: ‘The treaty fishers [i.e., the

Indians] derive their rights from one of the cotenants, the

tribes. The non-treaty fishers derive their rights from the

other, the state as the successor to the United States.”’

Again, at page 1132, we said: “[U]nder Washington Law

the citizen's right to take fish is purely derivative of the

state’s power to regulate rights in the fish.” And we

made it clear that the state’s power is subject to the

Indian’s treaty rights.

The suggestion that a non-Indian fisherman who vio-

lates paragraph 2 may think that he is excercising treaty

rights, “in accordance with the orders of this court,”

under the proviso at the end of paragraph 2, is too

far-fetched to warrant serious consideration.

App. 7

C. The claim that the evidence is insufficient to sustain

the conviction.

This claim borders on the frivolous. It is first asserted

that the government failed to prove that Dolman was

not a person exercising treaty fishing rights within the

proviso to paragraph 2 of the injunction. The government

had no such burden. It was Dolman’s burden to bring

himself within the proviso if he could. Hockenberry v.

United States, 9 Cir., 1970, 422 F.2d 171; United

States v. Barrios, 9 Cir., 1972, 457 F.2d 680, 681. He

made no effort to do so.

Counsel’s endeavor to turn Dolman’s defiant statement

to the Fisheries officer, ‘1 will be out here fishing any

night that the Indians can fish,” into evidence that

Dolman was an Indian and entitled to fish is a bit of

pettifogyery.

The contention that there is no evidence that Dolman

knew that he was violating the injunction is equally

fallacious. A copy was handed to him on September 30;

paragraph 2 was read to him; he said that he understood

it. He made no claim, on October 4, that he was not

violating the injunction, or that he did not know that he

was violating it. There is ample evidence from which to

infer that he did know. It shows that if he had called

the hot-line he would have learned that the area was

closed. And if he had not called the hot-line, that, too,

would be a violation of paragraph 2.

D. The claim that Dolman was entitled to a jury trial.

The charge was violating 18 U.S.C. § 401(3), which

authorizes imprisonment, but does not prescribe any

specific term of imprisonment. Under these circum-

stances, a jury trial is required only if the actual sentence

exceeds six months. Frank v. United States, 1969, 395 U.S.

147. Dolman’s reliance upon 18 U.S.C. § 3691, which

App. 8

provides for a jury trial in certain contempt cases is

misplaced. That section does not apply to ‘‘disobedience

of any writ... entered in any suit . . . brought or

prosecuted in the name of, or on behalf of, the United

States.’’ United States v. Washington, supra, in which

the injunction was entered, is such a case. The United

States brought that action; it was no mere nominal party.

e. The claim that the judge should have disqualified

himself.

Dolman filed a motion to disqualify Judge Boldt ‘‘pur-

suant to 28 U.S.C. 455,”" together with an affidavit of

his counsel which has attached to it an article that

appeared in the Seattle Post-Intelligencer of September

20, 1977.

28 U.S.C. § 455 was amended in relevant part in

1974 to provide:

(a) Any... judge... shall disqualify himself in

any proceeding in which his impartiality might

reasonably be questioned.

(b) He shall also disqualify himself in the following

circumstances:

(1) Where he has a personal bias or prejudice

concerning a party...

The 1974 amendments to § 455, with minor changes,

effectively enacted Canon 3C of the American Bar Assoc-

iation Code of Judicial Conduct into law. When the ABA

adopted the Code in 1972, it incorporated the language

of 28 U.S.C. § 144 requiring recusal whenever a judge

“has a personal bias or prejudice’’ against a party into

Canon 3C, “Disqualification,” (1) (a), “personal bias or

prejudice concerning a party.”” The 1974 amendments

to § 455 simply repeated this language. Accordingly,

the decisions interpreting this language in § 144 are

App. 9

controlling in the interpretation of § 455(b) (1). See

United States v. Hall, N.D. Okla., 1975, 424 F. Supp,

508, 533, affd, 10 Cir., 1976, 536 F.2d 313; 13 C.

Wright, A. Miller & E. Cooper, Federal Practice &

Procedure § 3542, at 345-46 (1975); see generally United

States v. Azhocar, 9 Cir., 1978, __ f.2d __ (June 16, 1978).

The similarity of § 455 to Canon 3C also extends to

subsection (a) of § 455. Both Canon 3C(1) and § 455 (a)

provide for a judge’s disqualification in any proceeding

“in which his impartiality might reasonably be ques-

tioned.” In Canon 3C(1) (a) this language explicitly

includes, but is not limited to, cases of personal bias and

prejudice. It is less clear that the language of § 455(b) (1)

was intended to be resumed in § 455(a), for subsection

(b) (1) is prefaced by the phrase “‘[a judge] shall also

disqualify himself in the following circumstances: . . .”

(emphasis added). But the addition of this phrase is

described in the legislative history as ‘‘a technical

change,’ and § 455(a) is characterized as a ‘“‘general, or

catch-all, provision.” H.R.Rep. No. 93-1453, 93d Cong.,

2d Sess., reprinted in [1974] U.S. Code Cong. & Ad. News

6351, 6354. In view of this, and because subsection (b) (1)

expressly deals with disqualification for bias or prejudice,

it would be incorrect as a matter of statutory construction

to interpret § 455(a) as setting up a different test for

disqualification for bias or prejudice from that in § 455(b)

(1). This is especially so because both the drafters of the

Code and the Congress in adopting subsection (b) (1)

were careful to follow the language of § 144. See Frank,

Commentary on Disqualification of Judges—Canon 3C,

1972, Utah L. Rev. 377, 380 (section 144 has “been

construed so narrowly as to require the clearest sort of

direct personal bias against a party. The new Canon

gingerly enters this field [and] makes no waves’’),

App. 10

We agree with the Fifth Circuit that there is ‘‘no

suggestion in the legislative history’ that by the 1974

amendment of § 455, the decisions interpreting the bias

and prejudice language of § 144 “were being overruled

or in anywise eroded,” and with that court's conclusion

that the test for bias or prejudice is the same under both

statutes. Davis v. Board of Commissioners, 5 Cir., 1975,

517 F.2d 1044, 1052.

Dolman’s § 455 motion asserts that the injunction he

was charged with violating “has been identified in the

public mind as the result of actions taken by Judge Boldt

as the ‘Boldt Decision.’ ** This ground is so obviously

lacking in merit as not to warrant further consideration.

The newspaper article attached to defense counsel's

affidavit, with the byline of Fred Brack, is headed

“Federal Agents Carry Burden of Enforcing Boldt De-

cision.” In it, the writer states that although the judge had

ordered both state and federal agents to enforce his

judgment, only federal agents were doing so. The article

then continued:

“The state is going to have to establish their

enforcement credibility with the fishing community,”

said Wayne Lewis, chief enforcement officer in this

area,for the National Marine Fisheries Service.

“they lost it last year. This was a perfect time for

them to get it back. The state was saying it couldn't

get a conviction in state court for a violation, Judge

Boldt said, okay, you set the je pong ty (protectin

treaty rights) and bring the violators before me an

I'll convict them.

‘All of us in the federal government are extremely

disappointed that the state is not helping in this

enforcement effort.”’ (emphasis added)

App. 11

The balance of the article discussed reasons why the state

was not enforcing the regulations.

Counsel for Dolman based his argument for disqauli-

fication on the emphasized sentence, and argues that it

shows, at least prima facie, that Judge Boldt is disposed

to convict anyone who is accused of violating the injunc-

tion. The language, however, in context, appears to be

merely a layman's way of saying that Judge Boldt had

decided that if the state would not enforce his decree, he

would enforce it himself.

Counsel for Dolman subpoenaed the reporter, Mr.

Brack. In an affidavit, he stated that ‘‘the quote of Mr.

Lewis in the news article is accurate, and it was not

understood by me to be a quote of Judge Boldt. Rather,

the statement counsel attributes to Judge Boldt quite

simply is a figurative interpretation by Mr. Lewis of what

any judge might do if his orders were violated.’’ On cross-

examination, he testified that the language quoted was an

accurate report of what Mr. Lewis had said, but that he,

Brack, was not quoting or purporting to quote Judge

Boldt, as the lack of inner quotations indicated. His testi-

mony is:

If I had understood that Mr. Lewis was actually,

literally quoting Judge Boldt, that would have been

the lead sentence in the paragraph. And the story

would have been on page one and probably would

have been the lead story in the newspaper.

[A]s I wrote the sentence after talking with Mr. Lewis,

there was no understanding on my part at all that in

the article I was quoting Mr. Lewis as quoting Judge

‘Boldt. There are no interior quotations.

Mr. Lewis was called by the government. He testified

that he had never met Judge Boldt, had never had any

conversation with Judge Boldt, and that he had only seen

App. 12

him once, about a year and a half or two years before,

when he was in the courtroom as an observer. Finally, he

testified:

Q Mr. Lewis, have you ever heard Judge Boldt say

to bring the violators before him and he would

convict them?

A No.

© Have you ever heard anyone else say that Judge

Boldt said that?

A No.

It was not improper for Judge Boldt to pass on the

motion to disqualify. The law is clear that he must

determine whether the affidavit is sufficient, if true, to

require that he excuse himself. Only if he finds it thus

sufficient is he required to have another judge hear the

motion. See United States v. Azhocar, 9 Cir., 1978, __ f.2d

—. at __ (June 16, 1978, slip op. 1893 at 1894). The

affidavit in this case was not sufficient.

In Azhocar, we said:

And as observed in United States v. Mitchell, 377 F.

Supp. 1312, 1315-16 (D.D.C. 1974), “‘[o]nly the

individual judge knows fully his own thoughts and

feelings and the complete context of facts alleged.”

This is a valid Prone. wor since inquiry into the

circumstances surrounding the presumptively true

allegations is often appropriate in determing whether

they are such as would prevent a fair decision on the

merits. See, e.g., Los Angeles Trust Deed & Mortgage

Exchange v. SEC, 285 F.2d 162, 176 (9th Cir. 1961)

("a thorough reading of the record’’ did not sub-

stantiate the affiant’s position).

(___F.2d at (slip op. at 1896-97) ).

App. 13

These considerations are applicable here. Moreover,

counsel did not ask that another judge hear his motion.

Instead, he subpoenaed the author of the article, whose

testimony sustains our view that the article does not

purport to quote Judge Boldt. This conclusion is further

strengthened by the testimony of Mr. Lewis, who flatly

denied ever hearing Judge Boldt say what the article

says he said.

In the light of the foregoing, we find counsel’s pious

argument about what Judge Boldt should have done

somewhat offensive.

The judgment of conviction of Dolman should be

affirmed.

Ill, OLANDER — No. 77-3794.

Olander’s only argument is that the evidence is not

sufficient to sustain the conviction, which occurred on

November 18, 1977. We therefore state the evidence in

some detail.

On Saturday, October 8, 1977, at 12:30 p.m. message

53 was placed on the hot-line. It reads in pertinent part:

Area . . . 13A (Carr Inlet) [is] open to gill nets

Sunday through Wednesday nights.

This remained in effect until it was replaced by

message 54 at 5:30 p.m. Sunday, October 9. That

message says, in pertinent part:

In accordance with a federal court order received

by the Fisheries Department October 8, we caution

all fishermen that any non-treaty fishermen who

fishes for salmon in any area... except for areas

7, 7A, and 7B, shall be subject to the contemp powers

of the United States District Court.

Message 55 came on the hot-line at 9:00 a.m. Tuesday,

October 11, and contained essentially the same message.

So did message 56, which came on the hot-line at 1:00

p.m. Tuesday, October 11.

App. +14

On the'morning of October 4, 1977, federal Fisheries

Agent Breese found Olander fishing in area 10-A. His

vessel carried nothing identifying it as a treaty Indian

vessel. Olander was using a gill net. Breese and another

agent went on board and served a copy of the injunction

on Olander, who did not, in response to a question, claim

to be a treaty Indian fisherman. Early on the morning of

October 13, 1977, at about 1:00 a.m., Fisheries Agent

Gibler found Olander fishing with a gill net in Area 13-A.

He had eight salmon on board. Gibler then testified, in

response to a question as to what Olander told him

“with regard to the hot-line,’’ as follows:

Well, this was on a Thursday morning, October the

13th. And after ascertaining that Mr. Olander had

been boarded by our agent, previously, had been

served with a copy of the preliminary injunction

dated September 27th, asked Mr. Olander why he

was out fishing in a closed area in a_ closed

SS. And he stated that he had called the

ot-line on Sunday, which was October the 9th, at

9:30 A.M. And at that time the hot-line had indicated

the area was open. And he had since had not con-

tacted the hot-line since that Sunday morning.

Gibler then testified that it was his experience that the

messages on the hot-line changed frequently—“‘I have seen

them change twice in the same day. I couldn't give you the

dates, but they are constantly changing from day to day.”’

Gibler gave Olander a citation, and Olander signed

it, writing above his signature “Guilty of being non-

Indian.”’ Olander made no effort to hide the fish that he

had caught, He made no efforts to prevent the agents from

boarding. He admitted having been served with the

injunction, He told the agents that he had not had an

opportunity since Sunday morning te contact the hot-line

again. He said that he had been staying on the boat, and

App. 15

that was the only reason that he gave why he hadn't

contacted the hot-line in the additional time since

Sunday. When the agents tried to photograph him, he

objected, turned his back, and pulled his stocking cap

down over his face. He did not otherwise interfere with

the agents when they were taking photographs.

When exercising his right of allocution, Olander

repeated, in more detail, what he told agent Gibler. He

also, in response to the judge’s questions, said that he

had had a number of years experience in fishing in

Puget Sound, and detailed that experience. The judge

then said:

[I]t has been my impression of you since you first

appeared here and responded to questions, that you

are a very intelligent man, unusually so for one in

that particular field of endeavor. So that you would

be very well aware of a situation that should have

alerted you to making a call while you were able to.

And you didn’t do that.

You have not taken the witness stand, so, of course,

your statement is not testimony. It is just your state-

ment. And frankly, I find it very difficult to believe,

that with all that background of experience, the

length of time that you have been a commercial

fisherman, that you could have possibly have made

the effort that you should have made to be sure that

you were fishing lawfully,

And for that reason, I have found you guilty.

The judge did not have to believe Olander, whether

he was under oath or not. Disbelief, however, does not

always supply evidence of guilt. The foregoing statement

of the judge, we think, is based on a miscontstruction of

the injunction. All that it requires is that a fisherman

call the hot-line before he goes fishing, and ascertain

whether the hot-line message says that the area where he

App. 16

proposes to fish is open. It is understood that Olander did

this, and that the message on the hot-line told him that

area 13-A would be open through Wednesday night. He

was caught fishing there on Wednesday night. He was

thus in compliance with the injunction, The injunction

did not tell him that he must re-check the hot-line, much

less that he must do so every day, or every 12 hours.

We hold that the evidence does not support the

conviction, and that the conviction must be reversed.

IV. HARRINGTON — No, 78-1239

RONDEAU — No, 78-1240

Harrington and Rondeau were tried together, although

they had been served with separate citations and orders to

show cause and their cases were separately numbered.

The evidence is undisputed that, on September 28, 1977,

they were fishing on Harrington's boat and were each

served with a copy of the injunction, and that on

November 2 they were again fishing, on the same boat,

in Area 7, which was then, according to the latest hot-line

message, closed to commercial gill net fishing by non-

Indians. Harrington was ordered to appear and show

cause on January 12, Rondeau on January 17. On

January 4, the court, on its own motion, continued

‘Harrington's case until January 17, On January 17, the

court tried the two of them together, and found them

guilty. Only one of these applicants’ claims of error goes

to the merits of their convictions. We consider their claims

of error seriatim,

A. Consolidation of the Cases and Deniz! uf a Motion

to Sever.

It was not error for the court to continue the case of

Harrington from the 12th to the 17th of January. The

court has control of its own calendar, and no prejudice

App. 17

appears. Counsel received prompt notice, and Harrington

and his counsel were present when his case was called.

It was not error to try the two charges together.

Rules 8(b) and 13, F.R. Crim. P., fit these cases exactly,

Harrington and Rondeau “participated in the same act or

transaction’’—they were together, fishing on Harrington's

boat, when caught.

It was not error to deny defendant's motion to sever.

This is a matter as to which the judge has considerable

discretion. United States v. Ellsworth, 9 Cir., 1973, 481

F.2d 864, 870. There was no showing of prejudice made

in support of the motion, The testimony of Fisheries

agent Langvehn that Harrington said that he was fishing

where he was because fishing wasn’t very good in the

open area, that Rondeau was his assistant, and commonly

went fishing with him, that when “they’’ (he and Ron-

deau) saw “us” (the Coast Guard boat) coming “they

just rolled up the fish net and the whole works on the

reel,’ and that “those fish were caught right there as we

were approaching,’’ was not unduly prejudicial to Ron-

deau. It was obviously admissable against Harrington,

Harrington took the stand and admitted that on

October 7 the lights were off on his boat because he

didn’t want to be seen where he was fishing, in a closed

area. He also testified that Rondeau “works on his boat

once in a while,” was ‘not a full time employee,” and

that Harrington, not Rondeau, decides where he will

fish. Although no such claim was made below, counsel

now says that he had anticipated that, if the trials were

separate, Harrington would testify at Rondeau’s trial that

Rondeau had no control over where they would fish.

The point need not be considered, not having been raised

below, Thomason v. Klinger, 9 Cir., 1965, 349 F.2d

940. Moreover, Harrington did so testify,

App. 18

Harrington was not forced to take the stand to testify

for Rondeau; that was his choice. Moreover, this argu-

ment was not presented to the trial judge, either.

Finally, any claim of violation of the Rule in Bruton v.

United States, 1968, 391 U.S. 123, disappeared when

Harrington took the stand, Nelson v. O'Neil, 1971, 402

U.S, 622, 627.

The court did not abuse its considerable discretion in

denying the motion to sever, See United States v. Adams,

9 Cir., 1978, _. F.2d at (June 14, 1978, slip

op. at 1854-55; United States v. Brady, 9 Cir., 1978

F.2d at (June 20, 1978, slip op. at 1941-42),

B. Disqualification of the Judge.

The affidavits supporting the defendants’ motions to

disqualify the judge were each made by the attorney, not

the defendant, and stated only:

That his client believes that the Honorable George H.

Boldt cannot be fair and impartial in a criminal

contempt action against a non-treaty fisherman such

as himself when the allegedly contemptuous acts of

the Defendant, i.e., violation as having been done in

open defiance of orders of Judge Boldt and as

constituting a personal attack upon the dignity, and

authority of fala Boldt,

This is plainly insufficient. See Part Il. E, supra.

C. Sufficiency of the Evidence.

The argument that the evidence is insufficient is

frivolous.

The judgments of conviction must be affirmed.

V. MINNICH — No. 78-1310

SCHRUDER — No. 78-1311

WILSON) — No. 78-1312

These three appellants were represented by the same

attorney at trial and are also represented by him on

App. 19

appeal. He filed a single brief. We therefore consider

their appeals together.

A. Facts.

1. Minnich.,

On October 9, 1977, Minnich was found inside a

closed area, and was served with the injunction. He said

that he had also received a copy in the mail, On

November 3, he was found fishing in an area designated

as closed on the hot-line, and was given a citation, He was

tried and found guilty on January 19, 1978.

2. Schruder.

On October 12, 1977, Schruder was served with a

copy of the injunction, On November 8, he was found

fishing in a closed area, He denied that he had been served

with the injunction, and was given another copy, along

with a citation, He was tried and found guilty on January

24, 1978.

3. Wilson,

On November 8, 1978, Wilson was served with a copy

of the injunction. On November 19, he was found fishing

in a closed area and given a citation. He was tried and

found guilty on January 17, 1978.

Other facts as to each appellant will be stated where

necessary as we consider the various arguments made by

the appellants.

B. The Issues.

The appellants are represented by the same attorney

who represented Dolman. Most of his claims of error are

those urged on Dolman’s behalf. These we have disposed

of in Part Il., A. 1, 2., B, D, E. We reject them again.

Only three claims of error merit further discussion.

App. 20

1. The Claim that ee Should Have

Disqualified Himself.

In each case, counsel filed a motion, his own affidavit,

and an affidavit of his client. The client. affidavits are

identical, except for the client’s name. Counsel's motion

asserts that United States v. Washington, supra, has

become identified in the public mind as the Boldt

decision. His affidavit again cites the September 20, 1977

article in the Post Intelligencer that we have described

in Part II. E, supra. He then adds a part of what the judge

said to Olander when he sentenced him, as follows:

It has been my impression that you are a very

intelligent man, unusually so for one in that par-

ticular endeavor (commercial fishing).

This is a partial quotation of a newspaper article about the

convictions of Dolman and Olander. The full paragraph

reads;

“It has been my impression,”’ Boldt told Olander,

“that you are a very intelligent man, unusually so

for one in that particular endeavor,” and awkward

attempt, it appeared, to compliment Olander rather

than insult other fishermen.

In each client affidavit, counsel has his client say, under

oath:

The Honorable George Boldt has stated with refer-

ence to the orders he has issued attempting to prohibit

commercial fishermen from fishing that the violators

of those orders should be brought before him and

that he will convict them. I know that Judge Boldt

has made such a statement because it was attributed

to him in an article published in the Seattle Post-

Intelligencer on the 20th of September, 1977, on

Page A-3. Pa

Despite the fact that there was no evidence to

support a finding of guilty, the Honorable George

App. 21

Boldt found Mr. Olander guilty, stating that he

knew he was guilty. Judge Boldt also indicated in the

trial of Mr. Olander that commercial fishermen are

generally not very intelligent people.

Apparently, counsel does not hesitate to have his client

swear to things that he does not and cannot know.

We are particularly disturbed by these affidavits

because, as we have shown in Part II. E, supra, a witness

called by the same counsel in Dolman’s case, in Novem-

ber, 1977, testified that his article was not a quotation

of Judge Boldt, and the person quoted in the article

testified in that case that he never heard Judge Boldt say,

or anyone else say that he said, ‘‘to bring the violators

before him and he would convict them.”’ The affidavits

were subscribed and sworn to in January, 1978. Judge

Boldt made no comment on this bit of monkey business

by counsel, but we feel free to express our strong

disapproval of it.

Judge Boldt’s comment to Olander, quoted in Part

III., supra, at page 12, does not indicate any prejudice

toward any of these defendants, any more than does the

inaccurate quotation in the newspapers and in the

affidavits set out above.

In Schruder’s case there is an additional affidavit. It

recites that Schruder had been involved in and been a

leader in public attempts to have Judge Boldt impeached

because of his “improper conduct” in United States v.

Washington, that in these efforts Schruder had appeared

in newspapers and on T.V., that there had been wide

publicity and news coverage about the petitions for

impeachment, that he is confident that Judge Boldt must

know about them, and that Schruder does not believe

he can get a fair trial.

App: 22

This affidavit was not filed before trial. Counsel made

an oral statement about it when the trial began, and

Judge Boldt told him to prepare and file an affidavit

that day, which was done. The affidavit purports to have

been made pursuant to 28 U.S.C. § 144. It clearly was

not timely, and Judge Boldt could have disregarded it for

that reason. We also conclude, however, that, if timely, it

is still not sufficient. It does not show the probability of

the kind of personal prejudice of the Judge toward

Schruder that would require disqualification. The affi-

davit does show that Schruder, because he does not like

the decision in United States v. Washington, has lost his

objectivity toward Judge Boldt. It does not show a

comparable loss of impartiality on Judge Boldt’s part.

United States v. Wolfson, 2 Cir., 1977, 558 F.2d 59,

61-63. In that case, the showing in support of dis-

qualification was stronger than that made here, and the

court rejected it. We reject Schruder’s showing here.

The claim that, because Olander’s conviction must be

reversed, Judge Boldt must be prejudiced against all

commercial fishermen, is patently without merit. There

was considerable evidence to make a prima facie case

against Olander, but the case falls only because of the

‘ot-line message upon which Olander said he relied, and

our giving a somewhat more strict construction to the

injunction than Judge Boldt gave it.

2. The Claimed Denial of Discovery.

Counsel’s motion for discovery is the same in each

case, and is broader than Rule 16, F.R. Crim. P.,

requires. The government moved to strike it, and the court

granted the motion. We need not decide whether the court

was technically correct in doing so, but we do find in the

government’s motion an offer to disclose most of the

matters mentioned, upon request by the defendant. No

App. 23

such request was made. Be that as it may, counsel is

unable to point to anything that happened, to his client's

prejudice, as the result of the striking of his discovery

motions.

Counsel’s claim that the court delegated to the prose-

cutor the right to decide whether to grant discovery is

nonsense. All that he can point to is a statement by the

court, in response to counsel’s remark that the prosecu-

tor’s method of practicing law was substantially different

from counsel’s, that the court was relying on the

prosecutor's viewpoint. Courts normally look to counsel

to present their views as to the law, and rely on the

presentation that the court thinks correct. The court's

caution to the prosecutor that, if there were a portion of

the rules of special significance, the prosecutor should tell

him, because he was relying on what the prosecution said

about them, was perfectly proper.

3. The Claim that the Boarding of the Defendants’

Vessels to Serve the Injunction Violated the

Defendants’ Rights under the Fourth Amend-

ment.

This claim is made on behalf of each defendant. It

is made only about the first boardings, when the

injunction was served; it is not made about the second

boardings, when the defendants were found fishing in

violation of the injunction. It is without merit.

There is a material difference between boarding a

boat for the purpose of searching it and proceeding to do

so, which did not happen here, and boarding to serve civil

process, which did happen here. There is no violation of

the Fourth Amendment when an officer comes upon

private property to serve legal process, so long as there

is no breaking or entering of a dwelling or other

building of a type protected by the Amendment. There is

App, 24

no search or seizure in such a case. So here, merely

boarding to serve process is neither a search nor a

seizure, and no search or seizure occurred after the

boarding. Coming onto the deck of the boats is like

coming onto a lot where a house is situated, or onto

the porch or landing of the house. Nothing in the

Fourth Amendment prohibits handing process to a man,

in a peaceable manner, on his property, including his

boat. To hold that it does would be an extravagant

extension of the Fourth Amendment.

The judgments in each of the three cases must be

affirmed.

In No. 77-3925, Dolman; No. 78-1239, Harrington;

No. 78-1240, Rondeau; No. 78-1310, Minnich; No.

78-1311, Schruder; and No. 78-1312, Wilson, the judg-

ments are affirmed.

In No. 77-3794, Olander, the judgment is reversed.