Petition — William T. Dolman v. United States

IN THE

Supreme Court of the United States

OCTOBER TERM 1978

WILLIAM T. DOLMAN and ROY D. WILSON,

Petitioners,

UNITED

Vv.

STATES OF AMERICA,

Respondents,

PETITION FO

THE NINTH C

R WRIT OF CERTIORARI 70

IRCULT COURT OF APPEALS

Cffice & Post

Office Adaress:

3300 Seattle-First

Nat] Bank Bldg.

Seattle, WA 98154

MORIARTY, MIKKELBORG,

BROZ, WELLS & FRYER

By CHARLES E. YATES

Attorneys for Puget Sound

Gillnetters Association

i

SUBJECT INDEX

Petition For Writ Of Certiorari

| Opinions Below...

II. Jurisdiction...

III. Issues .

IV. Constitutional Provisions, Treaties

and Statutes Involved ....

V. Statement Of Facts .

VI. Reasons For Granting Writ of Certiorari

VII. Conclusion

APPENDICES:

Ree ee a a ce se we Ge

Appendix B

TABLES OF AUTHORITY

Table of Cases

Chase National Bank v. Norwalk, 291 U.S.

et EE ee ce ree

Golden State Bottling Company v. NLRB,

51-03, 108 T97) —.

Longshoreman's Association v. Marine Trade,

389 U.S. 64, 19 L. Ed. 2d 236 (1976)

12

13

13

13

ii

Longshoreman's Association v. Marine Trade,

785 U.S. 64, 19 L. Ed. 2d 236 (1976)... . 13

Offutt v. United States, 348 U.S. 11,

hae Ms Cee MMR EEE. 5 cave we on ee 20

Puget Sound Gillnetters Association v. Moos,

38 Wn.2d 677, 565 P.2d 1151 (1977)... . 7,9

Puget Sound Gillnetters Association v.

United States District Court, 573 F.2d 1123

) . - - - 7 . . - a a on eo a 9,10

United States v. Ritter, 540 F.2d 459

Reeenene+s SE Sw ok es 4k es ec es

United States v. Washington, 384 F. Supp.

312, 520 F.2d 676 (9th Cir. 1975) ot speek

Walker v. City of Birmingham, 388 U.S. 307

ROMER SMO URIR GS rete o balk tac ens o's hd, 34

Willimbring v. United States, 306 F.2d 944

(Seth Cir., 1962)... om, eo ae

Constitutional Provisions’

U.S. Consts., amend. V Suede sar, Be 5

Statutes

a0 Cid 6. 4. LRA SS ee es 0: w, Paaee oke

20 Dies. OWES. ta be de ese - 5,15,18,19,20

28 U.S.C. § 1254 0: ay hates boa Moe 2

Other Authority

PUR. He GEG. Rs es es eee aoe es ere 3

OES RRR I a re

os PRT OE ST ee e - ge

gO A EEE II LI EEL TT II =

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1978

WILLIAM T. DOLMAN and ROY D. WILSON,

Petitioners,

v.

UNITED STATES OF AMERICA,

Respondents,

PETITION FOR WRIT OF CERTIORARI TO

THE NINTH CIRCUIT COURT OF APPEALS

PETITION FOR WRIT OF CERTIORARI

Petitioners William Dolman and Roy D. Wilson

pray that a Writ of Certiorari issue to review the

opinion and judgment of the United States Court of

Appeals for the Ninth Circuit entered in United

States of America V. William Dolman and Roy D.

Wilson, consolidated cause numbers 77-3925 and

78-1312.

2

I,

OPINIONS BELOW

The opinions of the United States Court of

Appeals for the Ninth Circuit in United States v.

William Dolman and Roy Wilson as recorded in

___ F.2d ss (1978), appears in Appendix B, and

will hereinafter be referred to as Dolman.

4 o

JURISDICTION

The decision of the United States Court of

Appeals for the Ninth Circuit in Dolman was issued

on September 7, 1978. A Petition for Rehearing and

Suggestion for Hearing En Banc was denied and

mandate was issued on November 7, 1978. A Motion

to Recall Mandate and Stay Execution of Sentence

was denied November 16, 1978. The jurisdiction of ©

this Court is evoked under 28 U.S.C. § 1254.

ger = eat

3

III.

ISSUES

1. Is an individual who was not a party to

the action in which an injunction was issued, and

who had no notice or right to participate in a

hearing prior to issuance of the injunction, bound

by the injunction once he has received notice of

it?

2. Does due process require than an indi-

vidual have notice of hearing on the issuance of an

injunction and an opportunity to participate in

that hearing before being bound by the injunction?

3. Does Federal Rule of Civil Procedure

65 restrict the application of injunctions only to

parties to the action, their officers, servants,

employees, and attorneys and persons in active

concert or participation with them who receive

actual notice of the injunction by personal service

or otherwise?

4

4. In a suit brought by the United States

on behalf of various Indian tribes against the

State of Washington to prevent the State from

interferring with Indians exercising treaty fishing

rights, is an individual who is licensed by the

State of Washington to fish, in such privity to the

State that he is bound by the decisions of the

court even though he was never a party to or a

participant in the suit?

5. In a suit charging criminal contempt

for violating a court injunction, where the trier

of facts is to be the same court that issued the

injunction and where the defendants have alleged

that:

(a) The suit in which the injunction

has been issued is so closely linked in the

public's eye with the judge that rendered the

decision, that it is identified by the public

as "the Judge Boldt decision" with a resulting

public attitude that those who oppose the

decision will not receive a fair hearing be-

fore Judge Boldt;

(b) The court was quoted before the

trial of the defendants as having said "bring

the violators before me and I'11 convict

them;"

ELS TT a —

5

(c) Following the above statement,

the court found an individual in circumstances

similar to the Defendants’ quilty of contempt

even though the evidence did not support the

convict ion;

is the trier of fact required by 28 U.S.C. § 144

and 28 U.S.C. § 455 to refer to another judge the

determination of whether the alleged facts are

true?

IV.

CONSTITUTIONAL PROVISIONS, TREATIES AND

STATUTES INVOLVED

Constitutional Provisions, treaties, and

statutes involved are as follows and are reproduced

in Appendix A, infra, page A-1 to A-5.

(1) Constitutional Provisions of the

United States.

(a) Amendment V, Due Process

(2) Statutory Provisions.

(a) United States Code title 28.

§ 144, Bias or Prejudice of Judge

§ 455, Disqualification of Justice,

Judge, Magistrate, or Referee in

Bankruptcy

STATEMENT OF FACTS

In 1974 the Federal District Court for the

Western District of Washington in United States

v. Washington, 384 F. Supp. 312, 520 F.2d 676

(9th Cir. 1975) found that treaties entered into

with various tribes in the state of Washington,

entitled tribal fishermen to an allocation of the

salmon resource harvested in Puget Sound,

Washington. At the time of the decision, the state

of Washington and the Washington Reefnetter Owners

Association, representing reefnet harvesters of

salmon at specific locat ion in Puget Sound, were

effectively the only defendants to the action.

Following that decision the federal district

court attempted to effect its allocation of fish to

Indian tribes by requiring the state of Washington

to use its regulatory powers to preclude fishing by

the commercial harvesters of salmon in Puget

Sound. These harvesters are primarily gillnet and

purse seine fishermen. These commercial fishermen

a

en re ee ee - =. ee

On ee =

7

through their associations, the Puget Sound Gill-

netters Association and Purse Seine Vessel Owners

Association, sought and obtained from the

Washington State Supreme Court a prohibition on the

use of the State regulatory authority to allocate

salmon to tribal fishermen. Puget Sound Gill-

netters Association v. Moos, 88 Wn.2d 677, 565

P.2d 1151 (1977). The State of Washington filed

a Petition of Certiorari from this decision of the

Washington State Supreme Court, the petition has

been granted and is pending before the U.S. Supreme

Court. United States Supreme Court Cause No.

77-983.

The lower district court, being unable to

enforce its decision through the use of the State

regulatory agencies, moved directly against com-

mercial fishermen, eveh though they were not

parties to the action. On August 31 the federal

district court issued a temporary restraining order

prohibiting, among other things, gillnet fishermen

from harvesting salmon in Puget Sound in violation

8

of the court's previous orders allocating fish. It

further ordered the United States to utilize its

agencies and officers in the management of the

harvest of salmon in Puget Sound. See Petition

of Puget Sound Gillnetters Association For Writ

of Certiorari to the Ninth Circuit Court of

Appeals, puget sound Gillnetters Association

v. United States District Court for the Western

District of Washington, No. 78-139, Appendix E.

On September 27, 1977 the federal district

court in United States v. Washington, issued

a preliminary injunction prohibiting, among other

things, harvesting by gillnet fishermen of salmon

in Puget Sound unless a “hot line" indicated that

fishing was open. See Appendix B-3,4. The

injunction was issued with no notice to the f isher-

men, or opportunity to participate in a hearing

prior to the issuance of the injunction.

As a result of these orders, the commercial

net fishermen's associations on behalf of the

commercial nontreaty fishermen sought a Writ of

9

Mandamus in the Ninth Circuit Court of Appeals

prohibiting the lower court from acting against the

commercial net fishermen until they had had an

opportunity to participate as parties in any

hearing for the issuance of an order issued against

them. The Ninth Circuit Court of Appeals denied

the Petition, Puget Sound Gillnetters Association

v. United States District Court, 573 F.2d 1123

(1978) and a Petition was filed seeking relief from

the United States Supreme Court. That Petition for

Writ of Certiorari has been granted and the matter

is presently pending before this Court. United

States Supreme Court Petition No. 78-139. At issue

in that matter are basically two questions:

1. Was the lower court interpretation of

treaty rights correct; and

2. Are the enforcement mechanisms which

the lower court has chosen to use in compliance

with due process requirements.

10

Petitioners Roy Wilson and William Dolman

are commercial gillnet fishermen who subsequent to

the issuance of the injunction on the 27th of

September, 1977 were found fishing in Puget Sound

at a time not authorized by the court. A citation

was issued to each of them. They were brought

before the lower district court who had issued the

injunction, charged with criminal contempt, tried

by the court, found guilty, and sentenced to 60

days in jail. An appeal was filed on their behalf

to the Ninth Circuit Court of Appeals in which the

authority of the court to extend the applications

of its orders to nonparties was challenged. The

court of appeals denied their appeal, relying on

Puget Sound Gillnetters Association v. United

States District Court, supra.

Additionally, the defendants had moved for

the recusal of Federal District Court Judge George

Boldt from the hearing of their criminal contempt

matters on several grounds, including the allega-

tions that:

ee

generic

_ ee ee eles =

ee =

11

1. The decision of United States v.

Washington, supra has been linked in the

public attitude that those who oppose the

decision will not receive a fair hearing

before Judge Boldt;

2. Judge Boldt was quoted before

the trial of the petitioners as having said

"bring the violators before me and I'1]

convict then;"

3. Following the above statement, the

court found a commercial nontreaty fisherman

guilty of contempt even though, the evidence

did not support the conviction. 1

On appeal the petitioner challenged the failure of

Judge Boldt to refer to another judge the determin-

ation of whether the facts alleged were true. This

was also rejected by the court of appeals, Appendix

B-8-13. The appellate court also denied a motion

for reconsideration, and a motion to stay issuance

of the mandate pending determination by the Supreme

Court of the United States of the petitions pre-

sently pending before it. As a result of these

denials, Petitioner William Dolman was placed

IThe conviction was subsequently reversed be-

cause the evidence did not support the convic-

viction. See United States v. Olander, Appendix

B.

12

in jail on November 6, 1978 and is presently

serving the 60 day term imposed on him. Petitioner

Wilson was placed in jail on November 20, 1978 and

is also serving a 60 day term. A motion for their

release pending determination of this petition has

been made to the court.

VI.

REASONS FOR GRANTING WRIT OF CERTIORARI

A. Introduction

As indicated in the Statement of Facts,

this petition is spawned by an injunction issued

in United States v. Washington, 384 F. Supp. 312

(1974), a case which is pending before this court,

2 and in which some of the same issues of the

application of an injunction against nonparties is

raised.

Ordinarily a successful civil challenge to

a court order will not consitute a defense to

2Puget Sound Gillnetters Association v. United

States Western District Court, et al; 78-119,

78-139.

te

EOI >

13

contempt proceedings brought as a result of

disobedience of that order. See Walker v. City

of Birmingham, 388 U.S. 307 (1967). However, that

general principle does not apply in this case

because the civil challenge to the order includes

not only a substantive challenge to the content of

the order but, also a challenge to the court's

juridiction and the procedure that it followed in

attempting to impose its decision on nonparties to

the underlying action.

The Supreme Court has long recognized that

failure to comply with due process requirements,

defeats a court's attempt to impose its injunctive

powers and consequentiy its contempt powers over an

individual. Longshoreman's Association v. Marine

Trade, 389 U.S. 64, 19 L. Ed. 2d 236 (1976). The

Supreme Court has also recognized the lack of power

of the court to impose its injunctive and contempt

powers against an individual who is a nonparty to

the underlying suit. Chase National Bank v.

Norwalk, 291 U.S. 431 (1934); Golden State

Bottling Company v. NLRB, 414 U.S. 168 (1973).

14

Even in Walker v. Birmingham, supra, this

court recognized the need to establish jurisdic-

tion when it stated at page 315:

Without question the State court that

issued the injunction has as a court of equity

jurisdiction over the petitioners and over the

subject matter of the controversy .

Also in Walker the court noted at page 318:

This case would arise in quite a different

constitutional posture if petitioners before

disobeying the injunction had challenged it in

the Alabama courts and had been met with delay

or frustration of their constitutional claim.

The petitioners in this matter are nontreaty

commercial fishermen who through their associations

immediately undertook a civil challenge to the

correctness of the injunction which is the basis

for their criminal contempt conviction. That

challenge has resulted in this court's considering

the validity of that injunction. But this court

will pass on the validity of that order almost two

years and more than two fishing seasons after its

issuance. No court nor parties to the challenge of

those orders has attempted to delay judicial

consideration of it and all have, in fact, under-

taken to expedite the consideration of it. But

2 RR PE ee re ee re oe

ES ere

15

this cooperation is of little consequence to a

commercial fisherman with expenses to be met,

families to care for, and employees to be paid. An

elimination from full participation in his normal

fisheries for two years can be economically disas-

trous to a commercial fisherman. The delay has

occurred and perhaps this is the “different .

posture" to which the court was referring.

Because the decision of this court in

petitions 77-983, 78-119, 78-139 deal with some of

the identical issues raised in this petition, no

extensive repeat of the reasons for this court

considering those issues will be presented. It

would be appropriate, and is requested by the

petitioners that this court grant this petition and

if the calendars of the Supreme Court permit,

schedule consideration of this matter in tandum

with petition 77-983, 78-119 and 78-139.

The one issue which is presented by this

petition and which is not before this court in the

above-cited petitions is the question of the

applicability of 28 U.S.C. 144 and 28 U.S.C. 455 to

16

the facts in this case, and- the procedures to be

followed by the court in applying these statutes.

The reasons for the court to review these issues

are set forth following.

1. The Court of Appeals Has Rendered a

Decision in Conflict with the Decisions of this

Court

The Court of Appeals in its decision allowed

to stand the implied factual determination by the

lower court that the allegations of fact made by

the petitioners were not true. In fact the Court

of Appeals itself indulged in some factual deter-

minations when it concluded that:

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.

Appendix B-1l.

The Court of Appeals throughout its justi-

fication of the lower court's failure to refer the

matter to another judge for consideration makes

implicit and explicit conclusions about the alleged

17

facts. It describes them as “inaccurate quote-

tions". See Appendix B-22, it indicates that it

is disturbed by the facts contained in the affi-

davit because "a witness . . . testified that his

article was not a quotation of Judge Boldt, and the

person quoted in the article testified .. . that

he never heard Judge Boldt say... ‘to bring the

violators before him and he would convict them.'

Appendix B-21.

The Court of Appeals approves of and engages

in fact finding actions specifically precluded by

this court in its decision in Burger v. United

States, 255 U.S. 22 (1921). 28 U.S.C. 144 re-

quires that when a party files a timely and

sufficient affidavit that a jusge Was” personal bias

or prejudice, "such judge shall proceed no further

therein, but another judge shall be assigned to

hear such proceedings." In Burger, supra, this

court concluded that that language meant exactly

what it said and required the referral of the

matter to another judge.

18

The petitioners recognize that the chal-

lenged judge is entitled to determine whether thar

is legal sufficiency in the affidavit to meet the

criteria of the statute. United States v.

Ritter, 540 F.2d 459 (10th Cir., 1976). But the

court is restricted to an assumption that all facts

presented are true. Willimbring v. United States,

306 F.2d 944 (9th Cir., 1962).

Certainly, the legal sufficiency requirement

is met when it alleged by affidavit that a court

indicated he was going to convict every violator

brought before him and then proceeds to convict an

alleged violator when the evidence does not support

it.

2. The Court of Appeals has Rendered a

Decision In Conflict aTth the Decision of the 5th

Circuit Court of Appeals

The Ninth Circuit Court of Appeals incredibly

found that the language of 28 U.S.C. 455 which

provided:

(a) Any justice, judge, magistrate,

or referee in bankruptcy of the United

ce hy — =

19

States shall disqualify himself in any

proceedings in which his impartiality might

reasonably be questioned.

was a mere restatement of the language contained

in 28 U.S.C. 144 that required a court to recuse

itself when there exists "personal bias or pre-

judice." See Appendix B-9. This conclusion is

in direct conflict with the findings of the Fifth

Circuit Court of Appeals in Fredonia Broadcasting

Corporation, Inc. v. RCA Corporation, 569 F.2d 251

(5th Cir., 1978) wherein that Circuit found:

Section 455(a) is a general safeguard

of the appearance of impartiality and

establishes a ‘reasonable factual basis -

reasonable man' standard. Parish 524 F.2d

at 103. We hold that a reasonable man

viewing the facts as they stood at the time

of RCA's motion, would reasonably question

this trial judge's impartiality and the

integrity of the judicial system.

Far from the subjective standard to which

the Ninth Circuit would wish to limit § 455(a), the

Fifth Circuit recognizes it as an attempt by

Congress to require a public appearance on the part

of a court of impartiality. The judiciary must

convey to the public this appearance of impar-

tiality not only to maintain its public image, but

20

also to maintain its effectiveness. the public

will tolerate a wrong decision of a fair government

much more than it will tolerate an unjust govern-

ment even in its qood decisions. When The Congress

adopted the language of 28 U.S.C. 455(a), it

recognized the neec for not only power within the

judiciary to effect its decisions, but also a need

for public confidence in those decisions. This

court has long recognized that “justice must

satisfy the appearance of justice." Offutt v.

United States, 348 U.S. 11, 14, 75 Sup. Ct. 1l,

13 (1954).

This petition provides a vehicle for this

court to reemphasize the place in our judicial

system of not only justice, but the appearance of

justice.

21

VII.

CONCLUSION

For the above reasons, a writ of certiorari

should issue to review the opinion of the Court of

Appeals.

Respectfully submitted,

MORIARTY, MIKKELBORG, LONG

BROZ, WELLS & FRYER

By CHARLES E. YATES

Attorneys for Petitioners

APPENDIX A-1

Amend. 5 CONSTITUTION

AMENDMENT V-CAPITAL CRIMES; DOUBLE JEOPAR-

DY; SELF-INCRIMINATION, DUE PROCESS; JUST

COMPENSATION FOR PROPERTY

No person shall be held to answer for a

capital, or otherwise infamous crime, unless

on a presentment or indictment of a Grand Jury,

Except in cases arising in the land or naval

forces, or in the Militia, when in actual ser-

vice in time ov War or public danger; nor shall

any person be subject for the same offence to

be twice put in jeopardy of life or limb; nor

shall be compelled in any criminal case to be

a witness against himself, nor be deprived of

life, liberty, or property, without due process

of law; nor shall private property be taken

for public use, without just compensation.

<_< TT

if

APPENDIX A-2

§ 144. Bias or prejudice of judge

Whenever a party to any proceeding in a

district court makes and files a timely and |

sufficient affidavit that the judge before whom [

the matter is pending has a personal bias or

prejudice either against him or in favor of any

adverse party, such judge shall proceed no further

therein, but another judge shall be assigned to

here such proceeding.

The affidavit shall state the facts and the

reasons for the belief that bias or prejudice

exists, and shall be filed not less than ten days

before the beginning of the term at which the

proceeding is to be heard, or good cause shall be

shown for failure to file it within such time. A

party may file only one such affidavit in any

case. It shall be accompanied by a certificate of

cousel of record stating that it is made in good

faith.

As amended May 24, 1949, c. 139, § 65, 63 Stat. 99. :

. Tn ee ere rey eee we re

APPENDIX A-3

28 § 455 JUDICIARY-PROCEDURE

§ 455. Disqualification of justice, judge,

magistrate, or referee in bankruptcy

(a) Any Justice, judge, magistrate, or

referee in bankruptcy of the United States 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, or personal

knowledge of disputed evidentiary facts

concerning the proceeding;

(2) Where in private practice he

served as a lawyer in the matter in contro-

versy, or a lawyer with whom he previously

practiced law served during such association

as a lawyer concerning the matter, or the

judge or such lawyer has been a ma’ erial

witness concerning it;

(3) Where he has served in govern-

mental employment’ and in such capacity partic-

ipated as counsel, adviser or material witness

concerning the proceeding Or expressed an

opinion concerning the merits of the partic-

ular case in controversy;

(4) He knows that he, individually or

as a fiduciary, or his spouse or minor child

residing in his household, has a financial

interest in the subject matter in controversy

or in a party to the proceeding, or any other

interest that could be substantially affected

by the outcome of the proceeding;

(5) He or his spouse, or a person with-

in the third degree or relationship to either

of them, or the spouse of such a person:

APPENDIX A-4

(i) Is a party to the proceeding,

or an officer, director, or trustee

of a party;

(ii) Is acting as a lawyer in

the proceeding;

(iii) Is known by the judge to

have an interest that could be sub-

stantially affected by the outcome of

the proceeding;

(iv) Is to the judge's knowledge

likely to be a material witness in the

proceeding.

(c) A judge should inform himself about

his personal and fiduciary financial interests, and

make a reasonable effort to inform himself about

the personal financial interests of his spouse

and minor children residing in his household.

(d) For the purposes of this section the

following words or phrases shall have the mean-

ing indicated:

(1) “proceeding” includes pretrial,

trial, appellate review, or other stages

of litigation;

(2) the degree of relationship is

calculated according to the civil law system;

(3) "fiduciary" includes such relation-

ships as executor, administrator, trustee,

and guardian;

(4) "financial interest" means own-

ership of a legal or equitable interest,

however small, or a relationship as director,

adviser, or other active participant in the

affairs of a party, except thet:

(i) Ownership in a mutual or

common investment fund that holds

2 I OIE Ee NT oe

ER NTS RE

(e)

APPENDIX A-5

securities is not a "financial interest"

in such securities unless the judge

participates in the management of the

fund;

(ii) An office in an educational,

religious, charitable, fraternal, or

civic organization is not a "financial

interest" in securities held by the

organization;

(iii) The proprietary interest

of a policyholder in a mutual insur-

ance company, of a depositor in a mtual

savings association, or a similar propri-

etary interest, is a "financial interest"

in the organization only if the outcome

of the proceeding could substantially

affect the value of the interest;

(iv) Ownership of government

securities is a "financial interest"

in the issuer only if the outcome of the

proceeding could substantially affect the

value of the securities.

No justice, judge, magistrate, or

referee in bankruptcy shall accept from the parties

to the proceeding a waiver of any ground for

disqualification enumerated in subsection (b).

Where the ground for disqualification arises only

under subsection (a), waiver may be accepted

provided it is preceded by a full disclosure on the

record of the basis for disqualificaton.

APPENDIX B-1

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, )

Plaintiff-Appellee, )

vs.

Nos. 77-3794

77-3925

WILBER N. OLANDER, )

WILLIAM DOLMAN , )

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.

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 Washington to enforce its decree in

*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.

B-2

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 Washington, 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 salmon 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:

l. All Puget Sound and other marine

waters easterly of Donilla Point~-Tatoosh

line and their watersheds, all Olympic

Peninsula watersheds, and all Grays Harbor

and its watersheds ere 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 Owners Association, the Grays

Harbor Gillnetters Association and all

persons in active concert or participa-

tion with them are hereby enjoined and

prohibited from engaging in taking, pos-

sessing, or selling salmon of any species

taken from such waters, unless such per-

son has first ascertained from the Wash-

ington Department of Fisheries telephone

ro sa ae

B-3

"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 exercising treaty fish-

ing rights in accordance with the orders

of this court.

30 The defendant State of Washing-

ton 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

1 of this order that are open to net sal-

mon 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 trans~

script of the daily hot-line messages.

In Puget Sound Gillnetters Association v.

United States District Court, 9 Cir., 1978,

F. , the Gillnetters 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 at~-

tempts of the United States to enforce the injunc-

tion by means of criminal contempt proceedings. In

each case, the appellant, a commercial fisherman,

was found fishing for salmon by the use of a gill

net, in an aréa 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 States attorney and

signed by the judge, with violating 18 U.S.C. Sec.

401(3), found guilty in a trial to the court, and

sentenced to 60 days in jail. Each is free on

personal recognizance.

B-4

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 confictions 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 injunction 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.

l. 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

-85, » which we reaffirmed in our

Puget Sound Gillnetters case, supra, 573

Fa at 1126-27, 1130 n.9.

2. That the injunction cannot be en-

forced against Dolman because he

was not a party to United States.

v. Washington.

B-5

This argument was rejected by us in

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 injunc-

tion 1s not specific enough.

The applicable portion of Rule 65 is

65(d):

(d) Form and Scope of Injunction

or Restraining Order. Every order

granting an injunction and every restrain-

ing 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 opera-

tive portions of which are quoted at page 2, supra,

incorporates by reference other documents, namely,

Washington Department 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 comprehensible. That is the

only paragraph that Dolman was required to obey.

We find nothing in paragraph 1 that conflicts with

paragraph 2. Paragraph 1 does not purport to

authorize fishing in waters declared open by state

or tribal or United States regulations. It merely

declares

-

B~6

that all relevant waters are closed except those

opened by such regulatgions. But it does not do

what counsel says it does, that is, require fisher-

men to know those regulations and follow them,

Instead, all it requires is, in paragraph 2, that

the fisherman 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--permit See Puget Sound Gillnet-

ters, supra, 573 F.2d at l ,» n.16; McComb v.

Tecksoast ite Paper Co., 1949, 336 U.S. 187,

191-9, Gulf King Shrimp Co. v. Wirtz, 5 Cir.,

1969, 407 F.2d 508, ser Seagram-Distillers

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

135s, 221 F.2d 615, 620-21,

The notion that non-Indian commercial fishermen

derive 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

meget 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 Indians' treaty

rights.

The suggestion that a non-Indian fisherman who

violates paragraph 2 may think that he is exercising

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.

B-7

C. The claim that the evidence is insuf-

ficient 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 para-

graph 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, 173; 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, "I 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 pettifoggery.

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 injunc-

tion, 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. Sec.

401(3), which authorizes imprisonment, but does not

prescribe any specific term of imprisonment. Under

these circumstances, 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. Sec. 3691, which

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 “pursuant 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. Sec. 455 was amended in relevant

part in 1974 to provide:

(a) Any... judge... . shall dis-

qualify himself in any proceeding in

which his impartiality might reasonably

be questioned.

(b) He shall also disqualify himself

in the following circumstances:

(1) Where is has a personal bias

or prejudice concerning a party. .. .

The 1974 amendments to Sec. 455, with minor

changes, effectively enacted Canon 3C of the

American Bar Association Code of Judicial Conduct

into law. When the ABA adopted the Code in 1972,

it incorporated the language of 28 U.S.C. Sec. 144

requiring recusal whenever a judge "has a personal

_———— ee ee

B-9

bias or prejudice" against a party into Canon 3C,

"Disqualification," (1)(a), "personal bias or

prejudice concerning a party." The 1974 amendments

to Sec. 455 simply repeated this language. Accord- |

ingly, the decisions interpreting this language in

Sec. 144 are controlling in the interpretation of

Sec, 455(b)(1). See United States v. Hall, N.D.

Okla., 1975, 424 F. Supp. 508, 533, aff'd, 10

Cir., 1976, 536 F.2d 313; 13 C. Wright, A. Miller &

E. Cooper, Federal Practice & Procedure Sec. 3542,

at 345-46 (1975); see generally United States

v. Azhocar, 9 Cir., 1978, F.2d (June

T6, ;

The similiarity of Sec. 455 to Canon 3¢

also extends to subsection (a) of Sec. 455. Both

Canon 3C(1) and Sec, 455(a) provide for a judge's

disqualification in any proceeding "in which his

impartiality might reasonably be questioned." 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

Sec. 455(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 legis-

lative history as "a technical change," and Sec.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 cL 6354. In view of this, and because

subsection (b) (1) expressly deals with disqualifi-

cation for bias or prejudice, it would be incorrect

as a matter of statutory construction to interpret

Sec. 455(a) as setting up a different test for

disqualification for bias or prejudice from that in

Sec. 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 Sec. 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").

B-10

We agree with the Fifth Circuit that there

is "no suggestion in the legislative history" that

by the 1974 amendment of Sec. 455, the decisions

interpreting the bias and prejudice language of

Sec. 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. David s. Board of Commissioners, 5

Cir., 1975 517 F.2d 1044, 1052.

Dolman's Sec. 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 Decision." 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 estab-

lish their enforcement credibility with

the fishing community,” said Wayne Lewis,

chief enforcement officer in this area

for the National Ma.ine 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 con-

viction in state court for a violation.

Judge Boldt said, okay, you set the reg~

ulations (protecting treaty rights) and

bring the violators before me and 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)

B-11

The balance of the article discussed reasons why

the state was not enforcing the regulations.

Counsel for Dolman based his argument for

disqualification 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 injunction. The Language,

however, in context, appears to be merely a lay-

man'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 attri-

butes to Judge Boldt quite simply is a figurative

inte:.2etation by Mr. Lewis of what any might do if

his order 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 testimony 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 talk-

ing with Mr. Lewis, there was no un-

derstanding 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

B-12

that he had only seen 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 say to bring the violators

before him and he would convict

them?

A. No.

Q. 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 recuse

himself. Only if he finds it thus sufficient is he

required to have another judge hear the motion.

See United States V. Axhocar, 9 Cir., 1978, 581

F.2d 735 at (June 16, 1978, slip op. 1893 at

1894). The affidavit in this case was not suffi-

cient.

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

consideration, since inquiry into the

circumstances surrounding the presump-

tively true allegations is often ap-

propriate in determining whether they

are such as would prevent a fair de-

cision on the merits. See, e.g.,

Los Angeles Trust Deed & Mortgage

Exchange v. SEC, 285 F.2d 162, 176

B-13

(9th Cir. 1961) ("a thorough reading

of the record" did not substantiate

the affiant's position). ( F.2d

at (slip op. at 1896-97)).

These considerations are applicable here. More-

over, 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 confiction of Dolman should

be affirmed.

III. 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 De-

partment October 8, we caution all

fishermen that any non-treaty fisher-

man who fishes for salmon in any area

B-14

‘ except for areas 7, 7A, and 7B,

shall be subject to the contempt pow-

ers 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 ll.

On the morning of October 4, 1977, federal

Fisherie 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 respone 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 ia a closed area in a

closed period. And he stated that he had

called the hot 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

contacted the hot line since that Sunday

morning.

Gibler then testified that it was his experience

that the messages on the hot-line changed frequent-

ly-- “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."

B-15

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 to contact the hot-line again. He

said that he had been staying on the boat, and that

was the only reason that he gave why he hadn's

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.

B-16

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 misconstruction 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 proposes to fish is open. It is undis-

puted 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 recheck 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 cita~

tions 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 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 appellants’ claims

B-17

of error goes to the merits of their convictions.

We consider their claims of error seriatim.

A. Consolidation of the Cases and Denial

of 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 calen-

dar, and no prejudice appears. Counsel received

prompt notice, and Harrington and his counsel were

present when his case was called.

y 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 defendants' 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

Rondeau) 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 Rondeau. It was obviously

admissible 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

B-18

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.

Harrington was not forced to take the stand

to testify for Rondeau; that was his choice.

Moreover, this argument was not presented to the

trial judge, either. Finally, any claim of viola~

tion 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-

G2).

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 Honor-

able George H. Boldt cannot be fair and

impar tial in a criminal contempt action

against a non-treaty fisherman such as

himself when the allegedly contemptuous

acts of the defendant, i.e., violation

dated November 2, 1977, could be consid-

ered as having been done in open defiance

of orders of Judge Boldt and as con-~

stituting a personal attack upon the

dignity, and authority of Judge Boldt.

This is plainly insufficient. See Part II. E,

supra .

B-19

C. Sufficiency of the Evidence.

The argument that the evidence is insuf-

ficient is frivolous.

The judgments of conviction must be af-

firmed.

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 repre-

sented by him on appeal. He filed a single brief.

We therefore consider their appeals together.

A. Facts.

ee 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.

ae 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.

as 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.

B-20

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 II., A.l., 2., B,

D, E. We reject them again. Only three claims of

error merit further discussion.

1. The Claim that the Judge 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 particular 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 intelli-

gent man, unusually so for one in that

particular endeavor," an awkward attempt,

it appeared, to compliment Olander

rather than insult other fishermen.

a

B21

In each client affidavit, counsel has his

client say, under oath:

The Honorable George Boldt has stated

with reference to the orders he has

issued attempting to prohibit commer-

cial 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-Intel-

ligencer on the 20th of September,

1977, on Page A-3.

k*kxekk

Despite the fact that that there was

no evidence to support a finding of

guilty, the Honorable George Boldt

found Mr. Olander guilty, stating

that he*knew he was guilty. Judge

Boldt also indicated in the trial of

Mr. Olander that commercial fisher-

men are generally not very intelli-

gent 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 af-

fidavits because, as we have shown in Part II. E,

Supra, a witness called by the same counsel in

Dolman's case, in November, 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

B~22

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 newspaper

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.

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. Sec. 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 affidavit 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 Fe a

558 F.2d 59, 61-63. In that case, the showing in

‘support of disqualification was stronger than that

made here, and the court rejected it. We reject

Schruder's showing here.

B-23

The claim that, because Olander's conviction

must be reversed, Judge Boldt must be prejudiced

against all commerical 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 hot-line mes sage

upon which Olandez 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 mentions,

upon request by the defendant. No such request was

made. Be that as it may, counsel is unable to

point to anything that happened, to his clients’

prejudice, as the result of the striking of his

discovery motions.

Counsel's claim that the court delegated

to the prosecutor 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 prosecutor'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.

B-24

a The Claim that the Boarding of the

Defendants’ Vessels to Serve the In-

junction Violated the Defendants’

Rights under the Fourth Amendment.

This claim is made on behalf of each defen-

dant. 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 board-

ing 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 break-

ing or entering of a dwelling or other building of

a type protected by the Amendment. There is 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 »orch or landing of the house. Nothing

in the Fou -h 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, Har-

rington, No. 78-1240, Rondeau, No. 78-1310,

Minnich, No. 78-1311, Schruder, and No. 78-1312,

Wilson, the judgments are affirmed.

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

reversed.

oe

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