# Petition — MINNICH v. UNITED STATES (Nos. 78-1212, 78-973, 987)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1979

## Text

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Supreme Court of the United Sfates©8 5 i979

AN

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j MICHAL an

——_HODAK, JR. CLERK
OCTOBER TERM 1978 A»

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€8-1212 Wy

GERALD L. MINNICH and ARTHUR SCHRUDER,

Petitioners,

v.
UNITED STATES OF AMERICA,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO
THE NINTH CIRCUIT COURT OF APPEALS

Office & Post MORIARTY, MIKKELBORG,
Office Address: BROZ, WELLS & FRYER

By CHARLES E. YATES
3300 Seattle-First

Natl Bank Bldg. Attorneys for
Seattle, WA 98154 Gerald L. Minnich
1500 Park Place TRETHEWEY & BRINK

Seattle, WA 98101
By DANIEL BRINK

Attorneys for
Arthur Schruder

CRAFTSMAN PRESS SEATTLE, WASHINGTON

i

SUBJECT INDEX

Petition For Writ Of Certiorari
I. Opinions Below .

II. Jurisdiction .

III. Issues .

IV. Constitutional Provisions, Treaties
and Statutes Involved

Vv. Statement Of Facts .

VI. Reasons For Granting Writ of Certiorari
VII. Conclusion

APPENDICES:

Appendix A

Appendix B

TABLES OF AUTHORITY

Table of Cases

Chase National Bank v. Norwalk, 291 U.S.
431 (1934)

Golden State Bottlin company. v. NLRB,
“414 U.S. CST

Longshoreman's Association v. Marine Trade,
383 S.5. Oe, 89 &. Be. 28 236 (1976).

12

13

13

13

ee

ii
Longshoreman's Association v. Marine Trade, '
385 U.S. 64, 19 L. Ed. 2d 236 (1976). . . 13

Offutt v. United States, 348 U.S. eB ‘
Cm ee WWE SEG WENERD 5. 6 aka se wen es

Puget Sound Gillnetters Association v. Moos,
3 Wn.2d 677, 565 P.2d 1I5I (1977)... . . 7,9

Puget Sound Gillnetters Association v.
United States District Court, 573 F.2d 1123
(1978) ie ae a eae ek <

9,10 p

United States v. Ritter, 540 F.2d 459
ee GS BOOED 6b oe de ce obs a ee

United States v. Washin ton, 384 F. Supp.
312, 520 F.2d 676 (9th cir. 4 ) ene 7,12

Walker v. City of Birmingham, 388 U.S. 307
ee aed ak Cg ate Wa

Willimbring v. United States, 306 F.2d 944
[nue WOniy BeeEE 6 4 Ge eh e. e P

- 13,14

18

Constitutional Provisions’

Pane Geneeed, , eee. Foc ee Fe aks a 5

Statutes
ee se ee ee eo © p oe) Spawentene
2s © 2 ef . . i oo © © « SebaeghO, 19,20

Pe Ns RM gt og ds ae e8 2

Other Authority

Pes ee Date OS ee to he ace wa, “Al a aria 3

IN THE
Supreme Court of the United States

OCTOBER TERM 1978

GERALD L. MINNICH and ARTHUR SCHRUDER ,

Petitioners,

Vv.
UNITED STATES OF AMERICA,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO
THE NINTH CIRCUIT COURT OF APPEALS

PETITION FOR WRIT OF CERTIORARI

Petitioners Gerald L. Minnich and Arthur
Schruder 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. Gerald L.
Minnich and Arthur Schruder, consolidated Cause

numbers 78-1310 and 78-1311.

2
I.
OPINIONS BELOW

The opinions of the United States Court of
Appeals for the Ninth Circuit in United States v.
Gerald L. Minnich and Arthur Schruder as recorded
in F.2d ————s« (1978), appears in Appendix B,
and will hereinafter be referred to as Minnich.

Il.
JURISDICTION

The decision of the United States Court of
Appeals for the Ninth Circuit in Minnich 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 Execut.on of Sentence
was denied November 16, 1978. The jurisdiction of
this Court is evoked under 28 U.S.C. § 1254.

3
IIl.
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;"

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

conviction;
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 location 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

7
through their associations, the Puget Sound Gil}-
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.2@d 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, even though they were not
parties to the action. On August 31 the federal
district court issued a temporary restraining order
prohibiting, anong 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.

On September 27), 1977 the federal district

court in United States v. Washington, issued

a preliminary injunction prohibiting, anong other
things, harvesting by gillnet fishermen of salmon
in Puget Sound unless a “hot line" indicated that
fishing was open. See Appendix B-2-3. 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 seek ing 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

Petitivsers Gerald Minnich and Arthur Schruder
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:

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'11]
convict them;"

3. Following the above statement, the
court found a commercial nontreaty fisherman
guilty of contempt even though. the evidence
did not support the conviction.

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, Petitioners were placed in jail on

Ithe conviction was subsequently reversed be-
cause the evidence did not support the convic-
viction. See United States v. Olander, Appendix
B

12
November 20, 1978 and are presently serving the 60
day term imposed on them. A motion for their
release pending determination of this petition has

been made to the Ninth Circuit Court of Appeals.

V3.

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,

13
contempt proceedings brought as a result of

disobedience of that order. See Walker v. City

of Birminghan, 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 consequently 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

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 Appeais 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 then as “inaccurate quota-
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 tie 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 has 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 there
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 with 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

19

States shall disqualify himself in any

proceedings in which his impartiality might

reasonably be questioned.
was a mere restatement ofthe 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 good decisions. When The Congress
adopted the language of 28 U.S.C. 455(a), it
recognized the need 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. 11,
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.

eo!

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 Petitioner
Minnich

TRETHWAY & BRINK
By DANIEL BRINK

Attorneys for Petitioner
Schr uder

adi teh.
on m Clad
rs

APPENDIX A-1l

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.

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.

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 material
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) “f£iduciary" 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 that:

(i) Ownership in a mutual or
common investment fund that holds

(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 mutual
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-1l

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, )
Plaintiff-Appellee, )
vs.

WILBER N. OLANDER,
WILLIAM DOLMAN,

DENNE M. HARRINGTON, 78-1239
GARY D. RONDEAU, 78-1240

) Nos. 77-3794

)

)

)
GERALD L. MINNICH, ) 78-1310

)

)

)

)

77-3925

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:

R. 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 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 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

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.

aa 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,
5 F.2d » 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 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 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
684-85, 687, which we reaffirmed in our
Puget Sound Gillnetters case, supra, 573
F.2d 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 is 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, name ly,
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 1133, n.16; McComb v.
Jacksonville Paper Co., 1949, 336 U.S. 187,
191-9, Gulf King Shrimp Co. v. Wirtz, 5 Cir.,
1969, 407 F.2d 508, aT; 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
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
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 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

B-8

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, 1s 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:

(eo) Bee. ss Geedee . .. « Shaki 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

o B-9

bias or prejudice" against a party into Canon 3c,
"Disqualification," (1)(a), "personal bias or
prejudice concerning a party." The 1974 amendment s
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 3333 13 C. Wright, A. Miller &
E. Cooper, Federal Practice & Procedure Sec. 3542,
at 345-46 (1975); see generally United States
Vv. Azhocar, 9 Cir., 1978, F.2d (June
16, 1978).

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 6351, 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 anvwise
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 cont inued:

"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 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 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
interpretation 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, 58l

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. a

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 lI, 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 in 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 seriatin.

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.

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. [t 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,
mot 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-
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 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

Cc. 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.
| Minnich.

On October 9, 1977, Minnich was found
inside a closed area, and was served with the
injutiction. 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.

; a 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.

: 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.

B-21

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.

kek *

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 Cir., 1977,
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 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 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 vrosecution
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 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, 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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2436%3A1. Public record. Not legal advice.