Petition — Mead Corp. v. Adams Extract Co.
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FILED
JUN 30 1980
CMMCHMEEFODAK, JR. CLERR
IN THE
Supreme Court of the United States
OCTOBER TERM, 1979
Ne. || 79-2080
THE MEAD CORPORATION and WESTVACO CORPORATION,
*. Petitioners,
ADAMS EXTRACT COMPANY, et al.,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
FLETCHER H. ETHERIDGE HAROLD F. BAKER
BUTLER, BINION, RICE, ALAN M. WISEMAN
Cook & KNAPP HOwWREY & SIMON
1100 Esperson Building 1730 Pennsylvania Avenue, N.W.
Houston, Texas 77002 Washington, D.C. 20006
(713) 237-3219 (202) 783-0800
Attorneys for Petitioner
THE MEAD CORPORATION
LESLIE H. ARPS
SKADDEN, ARPS, SLATE, MEAGHER
& FLOM
919 Third Avenue
New York, New York 10022
(212) 371-6000
Attorneys for Petitioner
WESTVACO CORPORATION
WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON. D.C. 20001
TABLE OF CONTENTS
ee OR A ge ty yt) 4c |. Se
I I ic initial tase ccin ca stedbgnipesiinsdinslirarniretiosoncene
NESS RN Ee ae Or nC
BUBSTIONS PRESENTED 3 .n.n neces ennsens snes
SOE I I acc iancsecoricnswnsennennsesveabsccebiasnnsenne
I. History of the Proceeding ......................................
Il.
III.
ne ee
i a a ctucumtileinhonmaiioi
The Decisions Below in the District Court and
I 8 eecwidsininanie
A. Motions by Petitioners ................................
B. The District Court’s Decision ........................
C. Appeals to and Decisions of the Fifth Cir-
ERS A eNO acaiceh teakansaiaeiaeuaia sine
The District Court’s Conduct Indicating an Ap-
Bo |.) See earn
A. Judge Singleton’s Factual Findings as to
the Existence of a Conspiracy .....................-.-
B. Judge Singleton’s Out-of-Court Statements
a EL ee a
REASONS FOR GRANTING THE WRIT .....................
I. The Same Judge Should not be Permitted to
Preside Over the Trial of Civil Antitrust Con-
spiracy Cases When in a Related Criminal Cas¢
He Has Previously Found by a Preponderancé
of the Evidence that the Alleged Conspiracy
Existed De ete, TPN, MO cack. Smee oe OM
A")
ra
©
ee
—e
eo
ar WOwWowow ns Wd WD
10
ii
TABLE OF CONTENTS—Continued
Page
II. Out-of-Court Statements as to The Guilt of
Defendants Require Disqualification .................... 20
III. The Record as a Whole Requires Disqualification
to Prevent Manifest Unfairness to Petitioners... 22
CONCLUSION ...-.......--------0--c0--ccecsesnncenssnseseceecnnonenseessensensee 22
APPENDICES ......................---.---- ai ctesoncanens A-1
iii
TABLE OF AUTHORITIES
CASES:
Berger v. United States, 255 U.S. 22 (1921) ...........
Buckhead Theatre Co. v. Atlanta Enterprises,
Inc., 8327 F.2d 365 (5th Cir.), cert. denied, 379
ee Me I earch tacenacsc haus seenuciucdasbeciianl othe
Corona Construction Co. v. Ampress Brick Co., 376
eB ORG ORR |} Renn eae
Dart Drug Corp. v. Parke, Davis & Co., 344 F.2d
Pe as. Se BPE cris stacasiciacdnniesnaaasenicssmdansiacs
Dienstag v. Bronsen, 49 F.R.D. 327 (S.D.N.Y.
I <scuchcscceabeusaeanks cabcitibsedealketinunaaoiwbvaithadndaas
D’Ippolito v. American Oil Co., 272 F. Supp. 310
38 SR. y RRO eeu iG ond SAE Py ee Bei
Emich Motors v. General Motors Corp., 340 U.S.
St EL Dae A IIS ROR NR ae
Fred Weber, Inc. v. Shell Oil Co., No. 75-1115C (2)
4M lee REE a ALL At
Halliday v. United States, 380 F.2d 270 (1st Cir.
tL a re 2 SSE AES SR ee ee SON a
Harper & Row Publishers, Inc. v. Decker, 423
F.2d 487 (7th Cir. 1970), aff'd by an equally
divided court, 400 U.S. 348 (1971) -....00200 2.
Holley v. Lavine, 553 F.2d 845 (2d Cir. 1977), cert.
Gated, GD TT Tas Re CGD nasi sick scstedsecticosis
Illinois v. Harper & Row Publishers, Inc., 1969
Trade Cas. {| 72,784 (N.D. Ill. 1968), cert. de-
Me ils Rh hs Se bree ee
In re Corrugated Container Antitrust Litigation,
i EE hs ID aceerenteaviescicc teense
In re Corrugated Container Antitrust Litigation,
80 F.R.D. 244 (S.D. Tex), mandamus denied,
No. 78-3684 (5th Cir. Dec. 29, 1978) ....0000000.000...
In re Corrugated Container Antitrust Litigation,
441 F. Supp. 921 (J.P.M.L. 1977) .........................
In re Corrugated Container Antitrust Litigation,
614 F.2d 966 (Gth Cir. 1960) .................................
In re Folding Carton Antitrust Litigation, M.D.L.
Se CN FED Shentsvsdccetestncrictsiseseahariie abccaen
2,13
iv
TABLE OF AUTHORITIES—Continved
International Salt Co. v. Ohio Turnpike Commis-
sion, 892 F.2d 579 (8th Cir.), cert. dismissed,
Re Trac ease ccna dScecsenine
Lewis Vv. Dixie-Portland Flour Mills, Inc., 356 F.2d
a I ch si occa sctienccdlicasenmisnnrictnnccainnin
Loew’s Inc. v. Cinema Amusements, Inc., 210 F.2d
86 (10th Cir.), cert. denied, 347 U.S. 976
| ORR Ae Cel eerste MENTED MCU ere
Monticello Tobacco Co. v. American Tobacco Co.,
197 F.2d 629 (2d Cir.), cert. denied, 344 U.S.
I ea aide
Overseas Motors, Inc. v. Import Motors Ltd., 375
F. Supp. 499 (E.D. Mich. 1974), aff'd, 519 F.2d
119 (6th Cir.), cert. denied, 423 U.S. 987
II cckuticscedidckcscabutbaihcadencaPewamahunsshascmiechuisivinies
Paramount Film Distributing Corp. v. Village
Theatre, Inc., 228 F.2d 721 (10th Cir. 1955)...
Partmar Corp. v. Paramount Pictures Theatres
Mae ik SS Be |: eRe eenenneeee
Paster v. Pennsylvania R.R., 48 F.2d 908 (2d Cir.
a
Peacock Records, Inc. v. Checker Records, Inc.,
430 F.2d 85 (7th Cir. 1970), cert. denied, 401
es a a
Philadelphia Electric Co. v. Anaconda American
Brass Co., 41 F.R.D. 518 (E.D. Pa. 1967) ...........
Reichenback v. Smith, 528 F.2d 1072 (5th Cir.
I ee igh eeaiencteainh ceamaninteaiaitertenens
Texaco, Inc. Vv. Borda, 383 F.2d 607 (3d Cir. 1967) ..
Triangle Industries, Inc. v. Kennecott Copper
Corp., 402 F. Supp. 210 (S.D.N.Y. 1975) ............
United States v. American Radiator & Standard
Sanitary Corp., 388 F.2d 201 (3d Cir. 1967),
cert. denied, 8390 U.S. 922 (1968) .........................
United States v. Andrews, 585 F.2d 961 (10th Cir.
WPI Macctiascddeccencaides eainah aioe tabcapdibdebeonncenidsiamenieauetaiepoes
Page
11
21
11
11
Vv
TABLE OF AUTHORITIES—Continued
Page
United States v. Avila-Macias, 577 F.2d 1884 (9th
| EEE ND ASS eer hee A AeA Oe 16
United States v. Bell, 573 F.2d 1040 (8th Cir.
ASS EE a Nene NRTA OD MM RE Fae 13, 14, 15
United States v. Bryan, 393 F.2d 90 (2d Cir.
RII ahcnssebcendbgacei retin Ree ee, ee 18, 19
United States v. Columbia Broadcasting System,
Inc., 497 F.2d 107 (5th Cir. 1974) 200 18
United States v. Enright, 579 F.2d 980 (6th Cir.
MIT Wiliadctsoisisnitestnecbclabatancispeeien el eee eee ae 13, 14, 15
United States v. Gantt, 617 F.2d 831 (D.C. Cir.
en RE ASS FPN Rien Ne 14
United States v. Geaney, 417 F.2d 1116 (2d Cir.
1969), cert. denied, 397 U.S. 1028 (1970)... 14
United States v. Halley, 240 F.2d 418 (2d Cir.),
cert. denied, 353 U.S. 967 (1957) ......................... 18
United States v. Hoffa, 349 F.2d 20 (6th Cir.
1965), aff'd on other grounds, 385 U.S. 293
RECESS rte eae aaa Mee 15
United States v. Jackson, No. 77-1768 (D.C. Cir.
i ae, 14
United States v. James, 576 F.2d 1121 (5th Cir.
1978), modified, 590 F.2d 575 (5th Cir.) (en
banc), cert. denied, 442 U.S. 917 (1979) ..7, 8, 9, 13, 14,
16, 17
United States v. Lawrenson, 334 F.2d 468 (4th
Ic hk ee 19
United States v. Martorano, 557 F.2d 1 (1st Cir.
1977), cert. denied, 485 U.S. 922 (1978)... 14
United States v. Morton, 483 F.2d 573 (8th Cir.
RRR eres BE Tt 8 ee 15
United States v. Nixon, 418 U.S. 683 (1974)... 17
United States v. Petrozziello, 548 F.2d 20 (1st Cir.
aT SR LEN Oe TANI BRAC Ey SN 13
United States v. Ritter, 540 F.2d 459 (10th Cir.),
cert. denied, 429 U.S. 951 (1976)... 22
United States v. Robin, 558 F.2d 8 (2d Cir.
I se 18
vl
TABLE OF AUTHORITIES—Continued
Page
United States v. Rosales, 584 F.2d 870 (9th Cir.
EERE TE EE PP Dann eRe eo Se UNUM RE ie BE 14, 16
United States v. Santiago, 582 F.2d 1128 (7th Cir.
I a dake cerita hehe ania edhe cgehashdacchianditaaltdieas 13, 14, 15
United States v. Santos, 385 F.2d 48 (7th Cir.
1967), cert. denied, 390 U.S. 954 (1968) ............. 15
United States v. Stanchich, 550 F.2d 1294 (2d Cir.
SI iosistbnceiechbceceesitenleteinschcenbschin dig htacearnnicaadiaieaaaaiaiods 13
United States v. Stroupe, 588 F.2d 1063 (4th Cir.
BUI cess coshscgh peitconsnh casaneissedenacsbonistanioeteliensictiadtidntarinatisel 18, 14
United States v. Testa, 548 F.2d 847 (9th Cir.
RTE ERROR PPE Reree ROSe A PRIOR 2 RAND ESN 13, 14, 16
United States v. Trowery, 542 F.2d 623 (8d Cir.
1976), cert. denied, 429 U.S. 1104 (1977) ......00..... 18, 14
United States v. Vaught, 485 F.2d 320 (4th Cir.
TI se cdans cists tdasencdocenecniainshanenig-semsnanlibhen peupstiaateealebdonte vanes 14
United States v. Womack, 454 F.2d 1387 (5th Cir.
1972), cert. denied, 414 U.S. 1025 (19738)......... 18, 19, 21
Webster Rosewood Corp. v. Schine Chain Theatres
Inc., 263 F.2d 533 (2d Cir.), cert. denied, 360
Fe A —__, RAR RTTE ey deereremson rere Hwee er 11
STATUTES:
I 2 eal Dacula ans 5
GBF aa GS | RIEU OCTET ORO AEER HNN, Lowa ow 12
Fos ef ener neee 3, 10, 12, 18, 15, 20, 21, 22
oii cs cousosheny s-wmcypvoeocammanaedannnseninians 2
28 U.S.C. § 1407 .......... bas sats cas Oe Nae ag 4
FEDERAL RULES OF EVIDENCE:
a RRR eer WCE IIIT 21
Fed. R. Evid. 801(d) (2) (B) ........................... 8, 13, 14, 16
RULES OF COURT:
United States Court of Appeals for the Seventh
I TI a ho allencacam 17
Connecticut District Court Rule 22.20.0000... 18
vii
TABLE OF AUTHORITIES—Continued
Page
Kansas District Court Rule 27 ................................... 18
Massachusetts District Court Rule 8(i) ....0000000000000.. 17
New York District Court Rule 2(d) (8) (E.D.
a a eupmipsuenixaiiontn 18
New York District Court Rule 34 (S.D.N.Y.)......... 18
Rhode Island District Court Rule 7 (g) ......0000000000.. 17
MISCELLANEOUS:
McCormick, Evidence, 794 (2d ed. 1972) .......00000..... 16
Wright, Federal Practice & Procedures: Criminal
I EN calcein 18
DED Clee, FROG, BOO CTO TBD onsen cecnccccccecseccacecces..0000:-- 12
H.R. Rep. No. 938-1453, 98d Cong., 2d Sess., re-
printed in [1974] U.S. Code Cong. & Ad. News
Nee abaledioeuieuawieas 12
IN THE
Supreme Court of the United States
OCTOBER TERM, 1979
No.
THE MEAD CORPORATION and WESTVACO CORPORATION,
Petitioners,
Vv.
ADAMS EXTRACT COMPANY, et al.,
Respondents."
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Petitioners, The Mead Corporation (“Mead”) and
Westvaco Corporation (“Westvaco”), respectfully pray
that a writ of certiorari issue to review the judgment
of the United States Court of Appeals for the Fifth
Circuit entered March 31, 1980.
1 The 106 plaintiffs-appellees-respondents are listed in Ap-
pendix A hereto. In addition to The Mead Corporation and
Westvaco Corporation, Georgia-Pacific Corporation and
Crown Zellerbach Corporation were appellants in the Fifth
Circuit.
2
OPINIONS BELOW
The opinion of the Court of Appeals for the Fifth
Circuit,? appears in Appendix B hereto,’ and that of the
United States District Court for the Southern District
of Texas, appears in Appendix C hereto.*
JURISDICTION
The judgment of the Court of Appeals for the Fifth
Circuit was entered on March 31, 1980, and this petition
was filed within 90 days thereafter. This Court’s juris-
diction is invoked under 28 U.S.C. § 1254(1).
QUESTIONS PRESENTED
1. Whether the same judge should be permitted to
preside over the trials of both criminal and related civil
antitrust conspiracy cases?
2. Whether disqualification of a presiding district
court judge, because of an appearance of partiality, is
required in a civil antitrust conspiracy case when the
judge in a companion criminal case involving many of the
same issues, parties and evidence ruled that the alleged
conspiracy exists by a preponderance of the evidence and
when that judge has prejudged critical factual and evi-
2 In re Corrugated Container Antitrust Litigation, 614 F.2d
958 (5th Cir. 1980).
In the Court of Appeals, this case was styled In re Cor-
rugated Container Antitrust Litigation: Steering Committee,
et al., Plaintiffs-Appellees v. The Mead Corporation, et al.,
Defendants-Appellants; In Re The ™-~4 Corporation, Peti-
tioner, Nos. 79-3369, 79-3653.
4 In the District Court, this case was styic d Jn re Corrugated
Container Antitrust Litigation, M.D.L. 310.
8
dentiary determinations which he will be required to
make again in the civil trial?
3. Whether disqualification of a presiding district
court judge, because of an appearance of partiality, is
required when the judge makes out-of-court statements
that it is his belief that the defendants are guilty?
STATUTE INVOLVED
Sections 455(a) and (b) (1) of Title 28 of the United
States Code provide:
(a) Any justice, judge, magistrate, or referee in
bankruptcy of the United States shall disqualify
himself in any proceeding in which his impar-
tiality might reasonably be questioned.
(b) He shall also disqualify himself in the following
circumstances:
(1) Where he has a personal bias or preju-
dice concerning a party, or personal knowledge
of dispuied evidentiary facts concerning the
proceeding.
STATEMENT OF THE CASE
I. History of the Proceeding
A. The Civil Cases
Petitioners are two of 37 corrugated container manu-
facturers named as defendants in one or more of 55
treble damage antitrust actions alleging an eighteen-
year nationwide conspiracy to fix, raise, maintain and
stabilize the prices of corrugated containers and sheets.°
These various civil cases were consolidated for pretrial
5 In re Corrugated Container Antitrust Litigation, M.D.L.
310 (S.D. Tex.) (“M.D.L. 310’).
4
proceedings, pursuant to 28 U.S.C. § 1407, and assigned
to the Honorable John V. Singleton, Jr.°
On September 6, 1978, the district court certified a
class of all purchasers of corrugated containers or cor-
rugated sheets from defendants during January 1, 1960,
to January 25, 1978, estimated to include 300,000 mem-
bers.’
The pressures created by the enormous damage ex-
posure and settlement tactics of plaintiffs resulted in set-
tlements by all but 3 defendants, totalling over $300
million.
B. The Criminal Cases
The civil lawsuits were precipitated by a federal grand
jury investigation of the corrugated industry which cul-
minated in price-fixing indictments. One indictment
charged nine corporations and nine individuals with
felony violations.* The second indictment charged five
corporations and seventeen individuals with misdemeanor
violations. The indictments alleged that the defendant
manufacturers and numerous co-conspirators participated
in a single, almost nationwide conspiracy to raise, fix,
maintain and stabilize prices of corrugated containers
6In re Corrugated Container Antitrust Litigation, 441
F. Supp. 921 (J.P.M.L. 1977).
7 In re Corrugated Container Antitrust Litigation, 80 F.R.D.
244 (S.D. Tex.), mandamus denied, No. 78-3684 (5th Cir.
December 29, 1978).
8 United States v. International Paper Co., Crim. No. H-78-
11 (S.D. Tex. filed January 25, 1978).
® United States v. Boise Cascade Corp., Crim. No. H-78-12
(S.D. Tex. filed January 25, 1978).
and corrugated sheets in violation of Section 1 of the
Sherman Act, 15 U.S.C. § 1.
Petitioner Mead was named as a defendant in the
felony indictment. Mead, one other corporation, and
seven individual defendants elected to stand trial, which
commenced on January 22, 1979 before Judge Single-
ton. On April 27, 1979, those defendants were acquitted
by unanimous jury verdict.
Petitioner Westvaco was not named in either indictment.
C. Offenses Charged
The allegations of the criminal indictments and civil
complaints are virtually identical :*°
Beginning sometime prior to 1960, . . . and con-
tinuing thereafter until the date of the return of
this indictment (January 25, 1978), the defendants
and co-conspirators have engaged in a combination
and conspiracy in unreasonable restraint of the afore-
said interstate trade and commerce in violation of
Section 1 of the Sherman Act (15 U.S.C. § 1). Felony
Indictment, J] 9; Civil Complaint, {| 18.
The aforesaid combination and conspiracy con-
sisted of a continuing agreement, understanding, and
concert of action among~the defendants and co-con-
spirators, the substantial terms of which were to fix,
raise, maintain and stabilize the prices of corrugated
containers and corrugated sheets. Felony Indictment,
1 10; Civil Complaint, { 19.
10 All three documents contain sections entitled ““Trade and
Commerce” in which the language is word-for-word identi-
cal, with the exception of the geographic scope of sales of de-
fendants (Unified and Consolidated Complaint, {| 14, 15, 16,
17; Felony Indictment, {| 5, 6, 7, 8; Misdemeanor Indictment,
11 4, 5, 6, 7).
6
In formulating and effectuating the aforesaid
combination and conspiracy, the defendants and co-
conspirators did those things which they combined
and conspired to do, including, among other things,
the following:
(a)
(b)
(c)
(d)
disclosed to other members of the conspiracy
prices charged or quoted or the price to be
charged or quoted to buyers of corrugated con-
tainers and corrugated sheets, as well as other
information relevant to the pricing of corru-
gated containers and corrugated sheets;
received from other members of the conspiracy
prices charged or quoted or the price to be
charged or quoted to buyers of corrugated con-
tainers and corrugated sheets, as well as other
information relevant to the pricing of corru-
gated containers and corrugated sheets;
submitted noncompetitive bids or quotations or
no bids or quotations to buyers of corrugated
containers and corrugated sheets; and
took steps to enforce compliance with the afore-
said combination and conspiracy. Felony In-
dictment, 719, 10, 11; Civil Complaint, {7 18,
19, 20."
Thus, the Unified and Consolidated Complaint, in its
critical allegations, is a carbon copy of the criminal
indictments.
11 The misdemeanor indictment is identical except that those
defendants’ alleged participation in the alleged conspiracy
ended December 21, 1974. Misdemeanor Indictment, {|{ 8, 9,
10.
T
II. The Decisions Below in the District Court and the
Fifth Circuit
A. Motions by Petitioners
On August 30, 1979, long before the commencement of
the civil trial, petitioner Mead moved that Judge Single-
ton recuse himself from further presiding in M.D.L.
310. Westvaco Corporation, Georgia-Pacific Corporation
and Crown Zellerbach Corporation ” joined in the motion.
B. The District Court’s Decision
At a pretrial hearing on September 5, 1979, Judge
Singleton, rather than assign the disqualification matter
to another judge for resolution, orally denied petitioners’
motion without argument, and denied a motion to stay
proceedings in M.D.L. 310 pending appeal."
On September 11, 1979, Judge Singleton filed a Memo-
randum and Order in support of his denial of defend-
ants’ motion for recusal in which he admitted the key
operative facts which formed the basis of the motion.
C. Appeals To and Decisions of the Fifth Circuit
All petitioners appealed from denial of their motions
to recuse.* On March 31, 1980, a panel of the Fifth
Circuit denied petitioners’ appeal and request for a
writ of mandamus.
The Fifth Circuit determined that the district court’s
evidentiary findings during the criminal trial, pursuant
to United States v. James, 576 F.2d 1121 (5th Cir.
Georgia-Pacific and Crown Zellerbach have subsequently
settled claims with plaintiffs.
In re Corrugated Container Antitrust Litigation, M.D.L.
310, September 5, 1979, Pretrial Hearing Tr. at 1.
14 Petitioners also requested a writ of mandamus.
8
1978), modified, 590 F.2d 575 (5th Cir.) (en banc), cert.
denied, 442 U.S. 917 (1979), that a conspiracy existed
as a precondition for admitting hearsay statements of
co-conspirators under Rule 801 (d) (2) (E), Fed. R. Evid.,
did not indicate bias or prejudgment under 28 U.S.C.
§ 455 sufficient to require disqualification from presiding
over the civil trial. The Fifth Circuit also ruled that
Judge Singeton’s out-of-court statements concerning de-
fendants’ guilt were not extra-judicial facts indicating
bias as purportedly required by the statute.
Ill. The District Court’s Conduct Indicating an Appear-
ance of Partiality
A. Judge Singleton’s Factual Findings as to the
Existence of a Conspiracy
During the criminal trial, Judge Singleton twice
found as a matter of fact that (a) the conspiracy alleged
in the indictments did in fact exist, (b) defendants in
the criminal trial generally were members of that con-
spiracy, and (c) petitioner Mead specifically was a
member.
In ruling that hearsay statements of alleged co-con-
spirators offered by the government would be admitted
into evidence under Rule 801(d) (2) (E), Fed. R. Evid.,
Judge Singleton, on February 20, 1979, determined
“that there is substantial evidence in the record of the
existence of the conspiracy” and the “membership of each
of the defendants” in such conspiracy.
15 United States v. International Paper Co., Crim. No. H-78-
11 (S.D. Tex. February 20, 1979), Tr. Vol. 33 at 6-10. The
court applied the prevailing standard in the Fifth Circuit for
determining the admissibility of hearsay statements of co-
conspirators, United States v. James, 576 F.2d 1121 (5th Cir.
1978), modified, 590 F.2d 575 (5th Cir.) (en banc), cert.
denied, 442 U.S. 917 (1979).
9
Then, at the close of all the evidence at the criminal
trial, Judge Singleton found:
... by a preponderance of the evidence, independent
of any out-of-court statements by any co-conspirator
that the conspiracy existed, that the co-conspirators
and the defendants were members of the conspiracy,
and that any out-of-court statements that were of-
fered into evidence were made during the course of
and in furtherance of the conspiracy ... ."°
Thus, in the criminal trial, Judge Singleton made
findings which are precisely the issue at stake in the
civil trial.
B. Judge Singleton’s Out-of-Court Statements of
Defendants’ Guilt
Notwithstanding the Court’s evidentiary rulings, the
jury acquitted all defendants in the crimical case. Pre-
viously, the vast majority of defendants in the civil cases
had settled plaintiffs’ claims. Following the jury verdict,
Judge Singleton made out-of-court statements concerning
defendants’ guilt which demonstrate that his impar-
tiality might reasonably be questioned. Judge Singleton
stated to counsel for one of the criminal defendants, at
a golf outing after the verdict, that
the acquittals were just a quirk because the govern-
ment had much more damaging evidence it could
have introduced but that the jury did not hear. . .,
that
the lawyers for the civil plaintiffs are sharp and
that the evidence which was not introduced in the
criminal case would come out in the civil cases. . .,
16 United States v. International Paper Co., Crim. No. H-78-
11 (S.D. Tex. April 25, 1979), Tr. Vol. 105 at 7 (emphasis
added). In so holding, the court once again applied the test
of United States v. James, supra.
cgi 10
and that
the defendants must be guilty since they paid $300
million in settlements because smart people did not
pay that kind of money unless there was more evi-
dence than what the jury in the criminal case heard.
On the basis of these remarks by Judge Singleton, it
was “clear” to the defense counsel to whom they were
addressed that
there was no question in the Judge’s mind concern-
ing the criminal defendants’ guilt and that the Judge
blamed the verdict on the inadequacy of the govern-
ment attorneys... ."
Thus, the appearance of partiality against the civil de
fendants certainly exists in such circumstances.
REASONS FOR GRANTING THE WRIT
The writ should be granted because the issue of ju-
dicial disqualification under 28 U.S.C. § 455 raises im-
portant questions of federal law and judicial administra-
tion which have not been, but should be, settled by this
Court.
I. The Same Judge Should not be Permitted to Preside
Over the Trial of Civil Antitrust Conspiracy Cases
When in a Related Crimina! Case He Has Previously
Found by a Preponderance of the Evidence that the
Alleged Conspiracy Existed.
In recent years it has become commonplace in the
antitrust field for private class action civil antitrust con-
spiracy cases to be filed on the heels of a related govern-
17 These statements are taken from affidavits of counsel for
we nana. Mead reflecting Judge Singleton’s statements to defense coun-
« sel as related to counsel for Mead. On appeal, these statements
are required to be taken as true. Berger v. United States,
255 U.S. 22, 36 (1921).
11
ment criminal antitrust conspiracy case.’* Courts in dif-
ferent districts have handled the assignment of such
cases differently. In the Folding Carton Antitrust I itiga-
tion, M.D.L. 250, the Northern District of Illinois judges
assigned the civil class action cases to a different judge
than the judge who had been assigned the criminal case.
In contrast, in the Corrugated Container Antitrust Liti-
gation, M.D.L. 310, the criminal and civil cases were as-
signed by the Southern District of Texas to the same
judge—Judge Singleton. To our knowledge, the corru-
gated container class action cases represent the first na-
18 See, e.g., Partmar Corp. Vv. Paramount Pictures Theatres
Corp., 347 U.S. 89 (1954); Emich Motors v. General Motors
Corp., 340 U.S. 558 (1951) ; Monticello Tobacco Co. v. Ameri-
can Tobacco Co., 197 F.2d 629 (2d Cir.), cert. denied, 344 U.S.
875 (1952) ; International Salt Co. v. Ohio Turnpike Commis-
sion, 392 F.2d 579 (8th Cir.), cert. dismissed, 398 U.S. 947
(1968) ; Buckhead Theatre Co. v. Atlanta Enterprises, Inc.,
327 F.2d 365 (5th Cir.), cert. denied, 379 U.S. 888 (1964);
Webster Rosewood Corp. v. Schine Chain Theatres, Inc., 263 —
F.2d 533 (2d Cir.), cert. denied, 8360 U.S. 912 (1959); Dart
Drug Corp. Vv. Parke, Davis & Co., 344 F.2d 173 (D.C. Cir.
1965) ; Paramount Film Distributing Corp. v. Village Theatre,
Inc., 228 F.2d 721 (10th Cir. 1955); Loew’s Inc. v. Cinema
Amusements, Inc., 210 F.2d 86 (10th Cir.), cert. denied, 347
U.S. 976 (1954) ; Harper & Row Publishers, Inc. v. Decker,
423 F.2d 487 (7th Cir. 1970), aff'd by an equally divided
court, 400 U.S. 348 (1971) ; United States v. American Radi-
ator & Standard Sanitary Corp., 388 F.2d 201 (3d Cir. 1967),
cert. denied, 390 U.S. 922 (1968) ; Texaco, Inc. v. Borda, 383
F.2d 607 (3d Cir. 1967) ; Dienstag v. Bronsen, 49 F.R.D. 327
(S.D.N.Y. 1970); D’Ippolito v. American Oil Co., 272 F.
Supp. 310 (S.D.N.Y. 1967) ; Corona Construction Co. v. Am-
press Brick Co., 376 F. Supp. 598 (N.D. Ill. 1974) ; Illinois v.
Harper & Row Publishers, Inc., 1969 Trade Cas. {| 72,784
(N.D. Ill. 1968), cert. denied, 394 U.S. 944 (1969) ; Philadel-
phia Electric Co. v. Anaconda American Brass Co., 41 F.R.D.
518 (E.D. Pa. 1967).
12
tional class action antitrust case to be tried before the
same judge who presided over the trial of the companion
criminal trial. The result has created a situation where
the appearance of partiality of the judge might reason-
ably be questioned under 28 U.S.C. § 455.
Section 455 of Title 28 of the United States Code gov-
erns disqualification of federal judges on the basis of
the appearance of partiality, and in pertinent part pro-
vides that:
(a) Any... judge... 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 pro-
ceeding.’®
Section 455(a) contains a general, broad provision that
a judge shall disqualify himself in any proceeding in
which “his impartiality might reasonably be questioned.”
Its legislative purpose is “to promote the public confi-
dence in the impartiality of the judicial process,” and to
eliminate the “so-called ‘duty to sit’... .” * Disqualifi-
cation is now mandated if “there is a reasonable factual
basis for doubting the judge’s impartiality ... .”7
19 The statute was amended in 1974 to conform federal
statutory grounds for disqualification with the Code of Ju-
dicial Conduct and to “broaden and clarify the grounds for
disqualification.” 119 Cong. Rec. 33029 (1973). The Fifth
Circuit, however, erroneously interpreted § 455 to have the
game narrow construction as 28 U.S.C. § 144.
20 H.R. Rep. No. 98-1453, 98d Cong., 2d Sess., reprinted in
[1974] U.S. Code Cong. & Ad. News 6351, 6355.
21 H.R. Rep. No. 98-1453, 98d Cong., 2d Sess., reprinted in
[1974] U.S. Code Cong. & Ad. News 6351, 6355.
13
This Court has not yet decided, but should decide in
this case, whether, under § 455, as amended, a judge
must disqualify himself when he has predetermined by a
preponderance of the evidence the ultimate issue in a
civil case by evidentiary findings made in a related case.
Whether, under these circumstances, a trial judge is dis-
qualified is a question which should be settled by this
Court in the exercise of its responsibility to supervise
lower federal courts. The proper construction of § 455,
as amended, should be determined by this Court because
of its wide impact on the federal judiciary.
This petition raises an issue of first impression.” In
order to preserve the appearance of impartiality under
28 U.S.C. § 455, the same judge should not preside over
related criminal and civil antitrust conspiracy cases.
The issue of admissibility of co-conspirator hearsay
statements arises in virtually every antitrust conspiracy
case that goes to trial, thereby creating a “partiality”
issue if the same judge presides over the trial of com-
panion civil cases. All circuits require an evidentiary
determination as a precondition to admitting hearsay
statements of alleged co-conspirators pursuant to Rule
801 (d) (2) (E), Fed. R. Evid.” The majority—the First,
22 In re Corrugated Container Antitrust Litigation, 614
F.2d 958, 964 (5th Cir. 1980).
*8 United States v. Petrozziello, 548 F.2d 20 (1st Cir. 1977) ;
United States v. Stanchich, 550 F.2d 1294 (2d Cir. 1977) ;
United States v. Trowery, 542 F.2d 623 (3d Cir. 1976), cert.
denied, 429 U.S. 1104 (1977) ; United States v. Strowpe, 588
F.2d 1063 (4th Cir. 1976) ; United States v. James, 576 F.2d
1121 (5th Cir. 1978), modified, 590 F.2d 575 (5th Cir.) (en
banc), cert. denied, 442 U.S. 917 (1979); United States v.
Enright, 579 F.2d 980 (6th Cir. 1978) ; United States v. San-
tiago, 582 F.2d 1128 (7th Cir. 1978) ; United States v. Bell,
573 F.2d 1040 (8th Cir. 1978) ; United States v. Testa, 548
14
Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth and
Tenth—require such a determination by a “preponder-
ance of the evidence,’ which is the same burden of proof
in civil consp.cacy cases.**
The need for review by this Court has now become
more acute with the recent adoption by several circuits—
the Fourth, Sixth, Seventh and Eighth—of the preponder-
ance of the evidence standard and the abandonment of
the prima facie test to judge the admissibility of hearsay
statements of co-conspirators under Rule 801(d) (2) (E),
Fed. R. Evid.”> The issue of disqualification of a judge
F.2d 847 (9th Cir. 1977); United States v. Andrews, 585
F.2d 961 (10th Cir. 1978) ; United States v. Jackson, No. 77-
1768 (D.C. Cir. January 29, 1980).
24 United States v. Martorano, 557 F.2d 1 (1st Cir. 1977),
cert. denied, 435 U.S. 922 (1978) ; United States v. Geaney,
417 F.2d 1116 (2d Cir. 1969), cert. denied, 397 U.S. 1028
(1970); United States v. Trowery, 542 F.2d 623 (8d Cir.
1976), cert. denied, 429 U.S. 1104 (1977) ; United States v.
Stroupe, 588 F.2d 10386 (4th Cir. 1976); United States v.
James, 576 F.2d 1121 (5th Cir. 1978), modified, 590 F.2d
575 (5th Cir.) (en banc), cert. denied, 442 U.S. 917 (1979) ;
United States v. Enright, 579 F.2d 980 (6th Cir. 1978);
United States v. Santiago, 582 F.2d 1128 (7th Cir. 1978) ;
United States v. Bell, 573 F.2d 1040 (8th Cir. 1978) ; United
States v. Andrews, 585 F.2d 961 (10th Cir. 1978). The Ninth
Circuit has retained a prima facie test to determine admis-
sibility of co-conspirator hearsay statements. United States v.
Rosales, 584 F.2d 870 (9th Cir. 1978). In the District of
Columbia Circuit, the trial judge admits co-conspirator hear-
say statements upon finding substantial, independent evidence
of a conspiracy. United States v. Gantt, 617 F.2d 831 (D.C.
Cir. 1980).
25 Fourth Circuit: compare, United States v. Vaught, 485
F.2d 320 (4th Cir. 1973) with United States v. Stroupe, 588
F.2d 1086 (4th Cir. 1976); Sixth Cirouit: compare United
15
who has predetermined by a preponderance of the evi-
dence the ultimate issue in a civil antitrust conspiracy
trial compels review by this Court.
Under current standards for the admissibility of co-
conspirator hearsay statements, the trial judge’s decision
“calls for the exercise of judicial fact-finding responsibili-
ties . . . which require him to evaluate both credibility
and the weight of the evidence.” United States v. En-
right, 579 F.2d 980, 985 (6th Cir. 1978). Thus, the trial
judge, because of his role in the earlier criminal trial,
has now prejudged the guilt of the defendants by apply-
ing the precise standard which the jury must utilize in
the companion civil conspiracy trial. Having previously
answered the ultimate question to be decided by the jury
in the civil trial, it would be difficult, if not impossible,
for the trial judge to divorce his previous ruling from
his conduct in the companion civil trial. This is precisely
the appearance of partiality which 28 U.S.C. $ 455 was
designed to avoid. Indeed, a more compelling appearance
of partiality is difficult to conceive.
Although trial judges frequently rule on the admissi-
bility of evidence and on its sufficiency for submission
to a jury, none of these other evidentiary rulings places
the judge in the position of ultimate fact-finder, applying
precisely the same standard to the identical, ultimate
fact question to be decided by a jury in a companion
States v. Hoffa, 349 F.2d 20 (6th Cir. 1965), aff’d on other
grounds, 385 U.S. 298 (1966) with United States v. Enright,
579 F.2d 980 (6th Cir. 197°); Seventh Circuit: compare
United States v. Santos, 38! i°.2d 43 (7th Cir. 1967), cert.
denied, 390 U.S. 954 (19€ with United States v. Santiago,
582 F.2d 1128 (7th Cir. 1978); Eighth Circuit: compare
United States v. Morton, 488 F.2d 578 (8th Cir. 1973) with
United States v. Bell, 578 F.2d 1040 (8th Cir. 1978).
16
proceeding over which he presides.”* At no other time,
does a trial judge in one proceeding determine under the
preponderance of evidence standard the ultimate issue to
be decided by a jury in a related or companion case, and
then presides over that proceeding. Accordingly, in the
limited circumstances when a judge rules on admissibility
of hearsay statements of co-conspirators, he must recuse
himself from a companion case to assure a fair and
impartial trial and, moreover, to prevent the unavoidable
appearance of partiality.
In the criminal trial Judge Singleton applied the Fifth
Circuit test applicable to the admissibility of co-conspira-
tor hearsay statements as set forth in United States v.
James, 576 F.2d 1121 (5th Cir. 1978), modified, 590
F.2d 575, 580-82 (5th Cir.) (en banc), cert. denied, 442
U.S. 917 (1979). Under James, the trial court must
twice find as a matter of fact that:
1. the alleged conspiracy existed ;
2. the alleged co-conspirators were members of that
conspiracy ; and
3. the hearsay statements were in furtherance of
the alleged conspiracy. Id.
26 For example, on a directed verdict motion, the trial judge
must decide only whether plaintiff has presented a prima facie
case, not whether plaintiff has met its burden by a preponder-
ance of the evidence. Indeed, in the Ninth Circuit, the trial
judge merely applies a prima facie test in ruling on admis-
sibility of hearsay statements under Rule 801(d) (2) (BE).
United States v. Rosales, 584 F.2d 870 (9th Cir. 1978) ; United
States v. Avila-Macias, 577 F.2d 1884 (9th Cir. 1978) ;
United States v. Testa, 548 F.2d 847 (9th Cir. 1970). The
requirement of prima facie proof is less stringent than that of
a preponderance of the evidence. The former requires only
enough evidence to take the question to the jury, whereas the
latter requires “proof which leads the jury to find that the
existence of the contested fact is more probable than its non-
existence.” McCormick, Evidence, 794 (2d ed. 1972).
17
During the course of the trial, the court is required to
make all three fact findings by “substantial, independent
evidence.” United States v. James, supra, 590 F.2d at
581.°" Moreover, at the conclusion of all the evidence, the
court must make these same findings on the basis of a
“preponderance of the evidence” (id. at 582) ; that is to
say, on the basis of the standard burden of proof in all
civil cases.
Here, Judge Singleton, in the criminal trial, concluded,
on the basis of “a preponderance of the evidence,” that
a conspiracy existed to fix the price of corrugated con-
tainers and that Mead was a participant in that con-
spiracy. Although the jury acquitted Mead in the crimi-
nal case, Mead now finds itself in a civil trial before the
same judge who previously found against it under the
civil standard of proof. It is hard to conceive of a situa-
tion in which the court’s “impartiality might reasonably
be questioned” with any greater force than here.
It is precisely to avoid just this type of appearance of
partiality that some courts require a remanded case to
be assigned to a new judge,” random case
assignment procedur n the likelihood that the
*? Admissibility of co-conspirator hearsay statements re-
quires, as a preliminary matter, that there be “substantial,
independent evidence of the conspiracy, at least enough to take
the question to the jury.” United States v. Nixon, 418 U.S.
683, 701 n.14 (1974).
*8 For example, the Seventh Circuit rule provides:
Whenever a case tried in a district court is remanded
by this court for a new trial, it shall be assigned by the
district court for trial before a judge other than the
judge who heard the prior trial... .
Seventh Circuit Rule 18. See also Massachusetts District
Court Rule 8(i) ; Rhode Island District Court Rule 7(g).
18
same judge will preside over the retrial,” or recommend
recusal whenever a judge would be required to review
the evidence of a prior trial conducted by him or to re-
view rulings he made during a prior trial.”
Finally, the Fifth Circuit’s decision not to disqualify
Judge Singleton from presiding over the companion civil
case is inconsistent with decisions of other circuit courts
of appeals *' and with another panel decision of the Fifth
Circuit.” In Halliday v. United States, 380 F.2d 270
(1st Cir. 1967), the First Circuit disqualified a judge
from presiding over a subsequent related proceeding
which would have involved his reviewing the correctness
of rulings which he made in an earlier proceeding. In
ruling that the judge must withdraw from the second
evidentiary hearing concerned with the same facts, the
2° See Connecticut District Court Rule 22; Kansas District
Court Rule 27; New York District Court Rule 34 (S.D.N.Y.) ;
New York District Court Rule 2(d) (8) (E.D.N.Y.). See also,
United States v. Robin, 553 F.2d 8, 9 n.1 (2d Cir. 1977).
30 Holley v. Lavine, 558 F.2d 845, 851 (2d Cir. 1977), cert.
denied, 485 U.S. 947 (1978); United States v. Robin, 553
F.2d 8, 11 (2d Cir. 1978) ; United States v. Columbia Broad-
casting System, Inc., 497 F.2d 107, 109-10 (5th Cir. 1974) ;
Peacock Records, Inc. v. Checker Records, Inc., 430 F.2d 85,
89 (7th Cir. 1970), cert. denied, 401 U.S. 975 (1971) ; United
States v. Bryan, 393 F.2d 90 (2d Cir. 1968); Halliday v.
United States, 380 F.2d 270, 274 (1st Cir. 1967) ; United
States v. Halley, 240 F.2d 418, 419 (2d Cir.), cert. denied, 353
U.S. 967 (1957) ; Fred Weber, Inc. v. Shell Oil Co., No. 75-
1115C (2) (E.D. Mo 1976). See Wright, Federal Practice &
Procedure: Criminal § 600 at 631-32 (1969 ed.).
% Halliday v. United States, 380 F.2d 270 (1st Cir. 1967) ;
United States v. Bryan, 398 F.2d 90 (2d Cir. 1968).
2 [nited States v. Womack, 454 F.2d 1337 (5th Cir. 1972),
cert. denied, 414 U.S. 1025 (1973).
19
First Circuit stated that disqualification is even more
compelling “when the court is reweighing factual in-
ferences and credibility, as distinguished from applying
rulings on issues of law.” Jd. at 272-73. (Emphasis
added. )
The Second Circuit is in full accord with the First
Circuit. In United States v. Bryan, 393 F.2d 90 (2d
Cir. 1968), the Second Circuit held that the danger that
a judge will be influenced in a later proceeding by factual
findings he made in an earlier one alone requires dis-
qualification, “especially as it minimizes even a suspicion
of partiality.” Id. at 91.*
Furthermore, a different panel of the Fifth Circuit has
ruled that a judge who has prejudged a defendant’s guilt
upon evidence he heard in a prior trial must withdraw
from a later trial because it demonstrated “personal bias
and prejudice.” United States v. Womack, 454 F.2d 1337,
1341 (5th Cir. 1972), cert. denied, 414 U.S. 1025 (1972).
Since Judge Singleton, in connection with his James
ruling, found “by a preponderance of the evidence” that
appellants had engaged in a national conspiracy to fix
prices of corrugated containers, there can be no ques-
tion that Judge Singleton has predetermined appellants’
liability in the companion civil action. Moreover, not
only has Judge Singleton expressly concluded that ap-
pellants participated in the alleged conspiracy—the ulti-
mate issue to be decided by the jury—but also he made
his finding based upon “a preponderance of the evidence”
—the legal standard to be applied by the jury in the civil
38 See also United States v. Lawrenson, 334 F.2d 468 (4th
Cir. 1964). Judge Thomsen, who was assigned related criminal
and civil cases, recused himself upon being presented an
affidavit of prejudice in the civil action “for the reason that
his participation in the criminal case made it inadvisable for
him to try the civil action. .. .” Jd. at 468.
20
conspiracy trial. A more exacting predetermination of
guilt by a trial judge could not be articulated.
Il. Out-of-Court Statements as to the Guilt of Defend-
ants Require Disqualification
The James determinations do not stand alone. Shortly
after the verdict in the criminal case, Judge Singleton
made statements outside of the courtroom which clearly
create an appearance of partiality under 28 U.S.C. § 459.
Regarding the criminal case, the judge stated, in sub-
stance, that there was a lot of incriminating documentary
evidence which the government did not use, that the gov-
ernment mishandled the case, that the defendants must
be guilty since a number of them had paid a total of
about $300 million to settle the civil cases, and that the
acquittals were just a quirk.
These out-of-court statements show that Judge Single-
ton has prejudged not only the evidence, but also the
ultimate issue of liability. Such prejudicial statements
form an indisputable basis from which the court’s “im-
partiality might reasonably be questioned.”
Judge Singleton’s reliance on the fact of settlements
by a number of defendants is particularly prejudicial to
petitioners, which have not settled. Cases are settled for
any number of reasons which have nothing to do with
guilt or innocence, as the district court itself recognized
in another context.** Accordingly, the fact of settlement
44 Denying a motion by Westvaco to assert a right of contri-
bution against other defendants, the district court said:
It appears that Westvaco seeks contribution primarily
to avoid the coercive impact to it, as a late-settling or
non-settling defendant, of the possibility of enormous
damages being assessed against it. That this possibility is
inherently coercive is undisputable. ... Even a defend-
21
is no evidence of guilt, and Rule 408, Fed. R. Evid.,
expressly states that evidence of settlement “is not ad-
missible to prove liability for or invalidity of the claim
or its amount.” * Nevertheless, this is exactly what the
district. court did. Engaging in the rankest form of
speculation as to the motives of defendants in settling
claims with plaintiffs, the district court simply concluded
that they must be guilty and that a nationwide price
fixing conspiracy existed.
This is not a case of an informed judicial opinion based
on matters of record evidence, as the Court of Appeals
found. It is, clearly and simply, a personal and unin-
formed judgment by Judge Singleton as to the guilt of
defendants based in part on the fact of settlement. This
is precisely the sort of personalized bias or, at the very
least, appearance of partiality against which 28 U.S.C.
§ 455 was aimed. See United States v. Womack, 454 F.2d
1337 (5th Cir.), cert. denied, 414 U.S. 1025 (1972).
ant relatively certain of a judgment in his favor must
have serious doubts about risking such exposure by going
to trial. In re Corrugated Container Antitrust Litigation
(Memorandum filed May 30, 1979) (Emphasis added).
This Court has just granted certiorari on the issue of the
existence of rights of contribution among antitrust defend-
ants.
85 See also Reichenback v. Smith, 528 F.2d 1072, 1074 (5th
Cir. 1976) ; Lewis v. Dixie-Portland Flour Mills, Inc., 856 F.2d
54, 56 (6th Cir. 1966) ; Paster v. Pennsylvania R.R., 48 F.2d
908, 911 (2d Cir. 1980) (L. Hand, J.); Triangle Industries,
Inc. V. Kennecott Copper Corp., 402 F. Supp. 210 (S.D.N.Y.
1975) ; Overseas Motors, Inc. v. Import Motors Ltd., 375
F. Supp. 499, 586-38 (E.D. Mich. 1974), aff’d, 519 F.2d 119
(6th Cir.), cert. denied, 423 U.S. 987 (1975).
22
Ill. The Record as a Whole Requires Disqualification to
Prevent Manifest Unfairness to Petitioners
The cumulative effect of Judge Singleton’s rulings
in the prior related criminal trial and his out-of-court
statements concerning the guilt of defendants in M.D.L.
310 require disqualification under 28 U.S.C. § 455. See,
United States v. Ritter, 540 F.2d 459 (10th Cir.) cert.
denied, 429 U.S. 951 (1976). In a case in which plain-
tiffs claim damages in the millions of dollars, defendants
are entitled to a trial which is absolutely free of any
taint of partiality by the court. A fair trial in a fair
tribunal is a basic requirement of due process. Our sys-
tem of law has always endeavored to prevent even the
possibility of unfairness. No less is required here.
CONCLUSION
For the foregoing reasons, the petition for a writ of
certiorari should be granted.
Respectfully submitted,
FLETCHER H. ETHERIDGE HAROLD F. BAKER
BUTLER, BINION, RICE, ALAN M. WISEMAN
Cook & KNAPP Howrey & SIMON
1100 Esperson Building 1730 Pennsylvania Avenue, N.W.
Houston, Texas 77002 Washington, D.C. 20006
(718) 287-8219 (202) 783-0800
Attorneys for Petitioner
THE MEAD CORPORATION
LESLIE H. ARPS
SKADDEN, ARPS, SLATE, MEAGHER
& FLOM
919 Third Avenue
New York, New York 10022
(212) 371-6000
Attorneys for Petitioner
WESTVACO CORPORATION
June 30, 1980
APPENDIX
A-1
APPENDIX A
List of Respondents
Plaintiffs-Appellees-Respondents:
Accurate Metal Weatherstrip Company, Inc.
Adams Extract Company
After Six, Inc.
Al Barker Publishing Co.
The Amberley Greeting Card Co.
Andre-Boudin Bakeries, Inc.
Arcadia Furniture Corp.
Atlas Container Co., Inc.
Austin Products Co.
Bateman Canning Co.
The Beaumont Co.
Bert Paley, Ltd.
Bodines, Inc.
Bookout & Mitchell Supply, Inc.
Bowman Dairy Company, Inc.
Burger King Corp.
Cantrell & Cochrane, Inc.
Carron Manufacturing Co., Inc.
Continental Nut Co.
Cook Distributing Co.
Cook Produce Ince.
Co-Ordinated Industries, Inc.
Covington Fabrics Corp.
Dean Foods Co.
Dean Foods Products Company
Dean Milk Company, Ine.
Denver Meat Co.
District Hotel Supply, Inc.
Doranne of California d/b/a Embassy Giftwares
Douglas Furniture Corp.
Draper Canning Co., Ine.
Draper-King Cole, Inc.
~ es
A-2
Plaintiffs-Appellees-Respondents :
Dulaney Foods, Inc.
Erie Seating Co.
Falstaff Brewing Company
Fox Deluxe Pizza Co.
Furniture Plastics, Inc.
Gandy’s Dairies, Inc.
Gateway Farms, Inc.
General Brewing Co.
Golden Quality Ice Cream Co.
Grace Brewing Co.
Great Northern Packaging Corp.
Green Bay Foods
Griffin & Brand Sales Agency, Inc.
Grist Mill Co.
Haeger Potteries, Inc.
Huron Packaging Corp.
I. Kaplan, Ine.
Ilikon Corporation
International Frozen Foods, Inc.
Iowa Beef Processors, Inc.
ITT Continental Baking Co.
ITT Gwaltney, Inc.
Jefferson Orchards, Inc.
John Inglis Frozen Foods Co.
Keller Street Development Co.
Land O’Lakes, Inc.
Levee Furniture Co.
Liberty Dairy Company
Macomb Pottery Co., Inc.
Maier Brewing Co.
Marathon Enterprises, Inc.
Metro Molding Corporation
Mid-Valley Packing Co., Inc.
Mister B. Greeting Card Co., Inc.
Narragansett Brewing Company
Northland Aluminum Products, Inc.
Nutritional Food Products, Inc.
A-3
Plaintiffs-Appellees-Respondents:
The Paniplus Co.
Pearl Brewing Company
Pearson Candy Co.
Penthouse Furniture Ltd.
The Pillsbury Co.
Poppin Fresh Pies, Inc.
Red Wing Industries, Inc.
Renown, Inc.
Rollins Container, Inc.
Ressville Packing Co., Inc.
S & P Company
Salsburg Meats, Inc.
Sambo’s Restaurants, Inc.
Seneca Industries, Inc.
Shell-Tex Fisheries, Ltd.
Sky View Cooling Co.
Snyder-Craft Co., Inc.
Speas Co.
Steak and Ale Restaurants of America
Sunmark, Inc.
Tierra Royal Potteries, Inc.
Town House Furniture Ltd.
Trappe Frozen Foods Corp.
United Farmers Cooperative, Inc.
United Food Services, Inc.
United Foods, Inc.
Universal Cooperatives, Inc.
Valley Avocado Sales, Inc.
Valley Farms, Inc.
Valley Plastics, Inc.
Walters Brewing Company
West Publishing Co.
Westside Paper Co.
Williams Manufacturing Co.
Winona Industries
Winter Garden, Inc.
Wittek Golf Supply Co., Inc.
B-1
APPENDIX B
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Nos. 79-3369, 79-3653
IN RE CORRUGATED CONTAINER ANTITRUST LITIGATION
STEERING COMMITTEE, et al.,
Plaintiffs-A ppellees,
v.
MEAD CORPORATION, et al.,
Defendants-A ppellants.
IN RE THE MEAD CORPORATION,
Petitioner.
Appeals from the United States District Court
for the Southern District of Texas
On Petition for Writ of Mandamus to the
United States District Court for the
Southern District of Texas”
(March 31, 1980)
a)
B-2
Before TJOFLAT, FAY and FRANK M. JOHNSON,
Jr., Circuit Judges.
FRANK M. JOHNSON, Jr., Circuit Judge:
For the third time this Court is called upon to de-
termine the appropriateness of a trial court ruling in this
multidistrict civil antitrust litigation. See In re Cor-
rugated Container Antitrust Litigation, 606 F.2d 319
(5th Cir. 1979) (appeal dismissed without published
opinion), petition for cert. filed, 48 U.S.L.W. 3500 (U.S.
Dec. 21, 1979) (No. 79-972) (Corrugated I) ; In re Cor-
rugated Container Antitrust Litigation, 611 F.2d 86 (5th
Cir. 1980) (Corrugated II). As in the other two circum-
stances, the district court decision—and our considera-
tion of the matter—precedes trial of the litigation, the
scope of which defendants appropriately characterize as
“gargantuan.” The fact that the parties have once more
sought the involvement of this Court in the litigation
further supports our prediction in Corrugated II that
“Tblefore the litigation is completed, the case will un-
doubtedly present numerous opportunities for parties
dissatisfied with some aspect of a court ruling to claim
entitlement to appellate review.” 611 F.2d at 89. The
case, not yet tried and far from completion, has ap-
parently already presented those “numerous opportun-
ities.” See also In re Int’)l Bus. Machines Corp., No.
79-8070, ——-F.2d : n.2, (2d Cir. Feb. 25,
1980) (IBM). |
The present controversy arises out of the refusal of
the district judge, upon motion, to disqualify himself
from further participation in the litigation. In No. 79-
3369 defendants seek review of the district court’s de-
termination on appeal; in No. 79-3653 they request this
Court to exercise its power to issue a writ of mandamus.
Guided by the principles we found controlling in Cor-
rugated II, we dismiss the appeal for want of an appeal-
B-3
able order. Further, we deny the request for a writ of
mandamus. Alternatively, we hold that under applicable
statutory and case law the district judge’s refusal to dis-
qualify himself was fully justified.
I. APPEALABILITY: No. 79-3369
In the present situation defendants-appellants urge, as
they did in Corrugated II, that the district court decision
of which they complain is an appealable final order under
28 U.S.C. § 1291 within the meaning of the doctrine of
Cohen v. Beneficial Indus, Loan Corp., 387 U.S. 541, 69
S.Ct. 1221, 93 L.Ed. 1528 (1949). Once again, their re-
liance on Cohen is misplaced.
To determine under the rule of Cohen the appealability
of a district judge’s denial of a motion for disqualifi-
cation, little discussion beyond that in Corrugated II is
necessary.” Disqualification questions are fully review-
1 To dispose of the present matter solely on the issues of
appealability and entitlement to a writ of mandamus might
put to rest questions concerning the propriety of further in-
volvement in the case by the district judge. Nevertheless, the
extraordinary stakes involved (the proposed partial settle-
ment totals nearly $300 million, see Corrugated II, swpra, 611
F.2d at 89) and our experience with the progress of the liti-
gation thus far convince us that ultimately appellate consider-
ation of the issue of disqualification will likely be necessary.
For those reasons we reach the merits of the contentions
raised here. See part III, infra.
* The Cohen doctrine should be strictly construed. North
Am. Acceptance Corp. Securities v. Arnall, Golden &
Gregory, 593 F.2d 642, 645 (5th Cir. 1979); see Litton
Systems, Inc. v. Southwestern Bell Tel. Co., 539 F.2d 418,
425 (5th Cir. 1976) ; Weit v. Continental Ill. Nat’l Bank
& Trust Co., 585 F.2d 1010, 1014 (7th Cir. 1976) ; Inter-
national Bus. Mach. Corp. v. United States, 480 F.2d 298,
298 (2d Cir. 1973) (en banc), cert. denied, 416 U.S. 979,
B-4
able on appeal from final judgment. Davis v. Board of
School Comm’rs, 517 F.2d 1044, 1051 (5th Cir. 1975),
cert. denied, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188
(1976) ; 18 C. Wright, A. Miller, and E. Cooper, Federal
Practice and Procedure § 3558 at 384; see, e.g., Potash-
nick v. Port City Constr. Co., 609 F.2d 1101, 1107-15
(5th Cir. 1980); United States v. Clark, 605 F.2d 9389,
941-42 (5th Cir. 1979) ; Whitehurst v. Wright, 592 F.2d
834, 837-38 (5th Cir. 1979); King v. United States, 576
F.2d 482, 436-37 (2d Cir.), cert. denied, 439 U.S. 850,
99 S.Ct. 155 (1978); United States ex rel. Weinberger
v. Equifax, Inc., 557 F.2d 456, 463-64 (5th Cir. 1977) ;
United States v. Partin, 552 F.2d 621, 636-40 (5th Cir.),
cert. denied, 434 U.S. 908, 98 S.Ct. 298, 54 L.Ed.2d 189
(1977). Precisely because disqualification issues are re-
viewable following entry of judgment, as a threshold
matter the Cohen doctrine is unavailing. In Coopers &
Lybrand v. Livesay, 487 U.S. 463, 468, 98 S.Ct. 2454,
2458, 57 L.Ed.2d 351 (1978), the Supreme Court ex-
plained that, as a prerequisite to appealability under the
Cohen rule, “the order must . . . be effectively unreview-
able on appeal from a final judgment.” See Corrugated
94 S.Ct. 2418, 40 L.Ed.2d 776 (1974) ; Weight Watchers
of Philadelphia, Inc. v. Weight Watchers Int'l, Inc., 455
F.2d 770, 773 (2d Cir. 1972). ... [I]t is important to
remember that ‘“‘we must be parsimonious in our analysis
of appealability.” North Am. Acceptance Corp. Securities,
supra, 5983 F.2d at 645. We emphasize that we must con-
sider “the hazard that piecemeal appeals will burden the
efficacious administration of justice and unnecessarily
protract litigation . . ..” Nissan Motor Corp. Antitrust
Litigation, 552 F.2d 1088, 1094 (5th Cir. 1977).
611 F.2d at 89. In Ruiz v. Estelle, 609 F.2d 118, 119 (5th Cir.
1980), this Court noted the recent tendency of appellate
courts “toward less interlocutory cossetting.”
B-5
II, supra, 611 F.2d at 88; Ruiz v. Estelle, 609 F.2d 118,
119 (5th Cir. 1980) .®
II. MANDAMUS: No. 79-3653
In addition to their claim that the decision of the
district court is immediately appealable under the Cohen
doctrine, defendants “out of an abundance of caution”
also petition for a writ of mandamus. The contention
does not merit extended discussion. We refuse issuance
of the writ.*
8’ Defendants urge that in light of the complex nature of the
case only immediate review of the district judge’s decision
will be effective. Potashnick v. Port City Constr. Co., supra,
refutes that contention. In Potashnick, this Court examined
disqualification issues on appeal from final judgment. Al-
though trial of the case lasted thirty-three days and “spawned”
a record of twenty-five volumes, the parties received complete
review of the matter. 609 F.2d at 1104, 1107-15.
Our determination that questions concerning disqualifica-
tion of judges are not immediately appealable under Cohen
is fully consistent with decisions of other courts. See United
States v. State of Washington, 578 F.2d 1121, 1122 (9th Cir.
1978) ; Scarrella v. Midwest Fed’l Savings & Loan, 586 F.2d
1207, 1210 (8th Cir.), cert. denied, 429 U.S. 885, 97 S.Ct. 237,
50 L.Ed.2d 166 (1976) ; Robinson v. Largent, 419 F.2d 1827,
1827 (8d Cir. 1970) ; Dubnoff v. Goldstein, 885 F.2d 717, 721
(2d Cir. 1967) ; Rosen v. Sugarman, 857 F.2d 794, 796 (2d
Cir. 1966) ; 18 Wright, Miller & Cooper, supra, § 8558 at 385.
4We do not deny our authority to review on mandamus
the question of disqualification. Courts not infrequently reach
the merits of disqualification issues on a consideration of
whether mandamus will issue. Davis v. Board of School
Comm'rs, supra, 517 F.2d at 1051-52; see IBM, supra,
F.2d — , at - ; Bell v. Chandler, 569 F.2d 556, 559-
60 (10th Cir. 1978); United States v. Ritter, 540 F.2d 459,
460-65 (10th Cir.), cert. denied, 429 U.S. 951, 97 S.Ct. 870,
B-6
As this Court recently stated in United States v. Den-
son, 603 F.2d 1148 (5th Cir. 1979) (en banc), “Count-
less expressions can be found in the jurisprudence to sup-
port the black-letter proposition that mandamus is an
extraordinary remedy for extraordinary causes.” 603
F.2d at 1146. “[O]nly exceptional circumstances amount-
ing to a judicial ‘usurpation of power’ will justify this
extraordinary remedy.” Will v. United States, 389 U.S.
90, 95, 88 S.Ct. 269, 273, 19 L.Ed.2d 305 (1967). More-
over, “(t]he Supreme Court has repeatedly stated... .
that issuance of a writ of mandamus lies in large part
within the discretion of the court.” United States v.
Denson, supra, 608 F.2d at 1146; see Helstoski v. Mea-
nor, 442 U.S. 500, 504, 99 S.Ct. 2445, 2447, 61 L.Ed.2d
80, 85 (1979) [quoting Kerr v. United States District
Court, 426 U.S. 894, 408, 96 S.Ct. 2119, 2124, 48 L.Ed.
2d 725 (1976)]. In the present case we decline to exer-
cise our discretion to issue the writ and we do so without
need of a comprehensive examination of the record.
For nearly one hundred years, it has been clear that
“‘lt]he general principle which governs proceedings by
mandamus is, that whatever can be done without the
employment of that extraordinary writ, may not be done
with it.” Helstoski v. Meanor, swpra, 442 U.S. at 505,
50 L.Ed.2d 819 (1976) ; In re Rodgers, 587 F.2d 1196, 1197-98
(4th Cir. 1976) ; Scarrella v. Midwest Fed’l Savings & Loan,
supra, 686 F.2d at 1210; Pfizer, Inc. v. Lord, 456 F.2d 582,
536-44 (8th Cir.), cert. denied, 406 U.S. 976, 92 S.Ct. 2411,
82 L.Ed.2d 676 (1972) ; Rosen v. Sugarman, supra, 357 F.2d
at 796-800; In re Union Leader Corp., 292 F.2d 381, 383-92
(1st Cir.), cert. denied, 868 U.S. 927, 82 S.Ct. 361, 7 L.Ed.2d
190 (1961); Henry v. Speer, 201 F. 869, 870-72 (5th Cir.
1913). Moreover, in exceptional circumstances the writ will
lie. See Bell v. Chandler, supra, 569 F.2d at 560; United
States v. Ritter, supra, 540 F.2d at 464-65; In re Rodgers,
supra, 587 F.2d at 1198.
B-7
99 S.Ct. at 2448, 61 L.Ed.2d at 35 [quoting Ex parte
Rowland, 104 U.S. 604, 617, 26 L.Ed. 861 (1882) (em-
phasis added by the court) ]. “[A]s a general rule ‘appel-
late review should be postponed . .. until after final
judgment ....’ Will v. United States, supra, 389 U.S.
at 96 [88 S.Ct. at ——]; Parr v. United States, 351 U.S.
518, 520-21 [76 S.Ct. 912, 917, 100 L.Ed. 1877] (1956).
... [T]he party seeking issuance of the writ [of man-
damus must] have no other adequate means to attain the
relief he desires ....” Kerr v. United States District
Court, supra, 426 U.S. at 408, 96 S.Ct. at 2124. As dis-
cussed above, full review awaits these defendants upon
appeal from final judgment.
On this ground alone we refuse to issue the writ.
Additionally, however, we note that the writ of manda-
mus “is an order directing a public official . . . to perform
a duty exacted by law,” United States v. Denson, supra,
603 F.2d at 1146, and “will not issue to correct a duty
that is to any degree debatable ....” Jd. at 1147 n.2.
The party seeking the writ carries the burden of proving
a “clear and indisputable” right to issuance of the writ.
Kerr v. United States District Court, supra, 426 U.S.
at 403, 96 S.Ct. at 2124; Bankers Life & Casualty Co.
v. Hoiland, 346 U.S. 379, 384, 74 S.Ct. 145, 148, 98 L.Ed.
106 (1953). As will become clear in the discussion that
follows, defendants manifestly cannot demonstrate a
“clear and indisputable” right to issuance of the writ.
The legal duty of the district judge to disqualify him-
self is not merely debatable—it is nonexistent.
Ill. DISQUALIFICATION—THE MERITS®*
Mead, Westvaco, Georgia-Pacific, and Crown Zeller-
bach, appellants-petitioners here, as manufacturers of
corrugated containers and corrugated sheets, are defend-
5 See note 1, supra, and accompanying text.
B-8
ants in one or more of forty-four class actions and
eleven non-class civil actions consolidated for pretrial
proceedings ° in the United States District Court for the
Southern District of Texas and assigned to the Honorable
John V. Singleton, Jr., now chief judge of that district.’
These four parties are among the few remaining that
have not settled out of the litigation.
Extensive scrutiny of the corrugated container indus-
try gave rise to the massive litigation of which a rela-
tively narrow controversy is herein considered. A two-
year grand jury investigation of the industry resulted in
criminal felony indictments against nine individuals and
nine corporations, including Mead, and misdemeanor in-
dictments against an additional seventeen individuals and
five corporations. Defendants Westvaco, Georgia-Pacific,
and Crown Zellerbach were not indicted. Judge Single-
ton, after having stayed further proceedings in the civil
litigation, presided over the criminal trials of those in-
dicted defendants who elected to stand trial. A jury
acquitted the criminal defendants of all charges on April
27, 1979. On August 30, 1979, Mead filed an affidavit
of bias and motion requesting Judge Singleton to recuse
himself from further presiding over the civil litigation.
The motion was denied.
Defendants challenge Judge Singleton’s decision and
ask this Court to find Judge Singleton disqualified under
the applicable legal standards.’ First, they contend that
6 The cases were consolidated under the caption Jn re Cor-
rugated Container Antitrust Litigation, M.D.L. 810 (S.D.
Tex.) pursuant to 28 U.S.C. § 1407. In re Corrugated Con-
tainer Antitrust Litigation, 441 F.Supp. 921, 924 (Jud.Pan.
Mult.Lit. 1977).
"Id.
®§ The relevant statutory provisions governing disqualifica-
tion of federal judges are 28 U.S.C. §§ 144, 455.
[Footnote continued on page B-9]
B-9
because of evidentiary findings made in the criminal trial
disqualification requirements have been met. Second,
they urge that certain out-of-court statements made by
8 [Continued]
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 there-
in, but another judge shall be assigned to hear such
proceeding.
The affidavit shall state the facts and the reasons for
the belief that bias or prejudice exists .... A party may
file only one such affidavit in any case. It shall be accom-
panied by a certificate of counsel of record stating that
it is made in good faith.
28 U.S.C. § 144.
(a) Any justice, judge, or magistrate 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 con-
cerning a party, or personal knowledge of disputed
evidentiary facts concerning the proceeding;
* 4 * * + *
(e) No justice, judge, or magistrate 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
@ full disclosure on the record of the basis for disqualifica-
tion
28 U.S.C. § 455 (as amended Dec. 5, 1974, Pub.L. 93-512, § 1,
88 Stat. 1609; Nov. 6, 1978, Pub.L. 95-598, tit. II § 214(a),
(b), tit. IV § 402(c), 92 Stat. 2661, 2682).
B-10
Judge Singleton following the criminal trial were of such
a nature to require his disqualification. Third, defend-
ants maintain that alleged out-of-court statements of
Judge Singleton’s law clerk and an interview with an in-
dustry magazine that she gave reflect on Judge Single-
ton in a manner that requires his disqualification. Each
of the contentions fails.° Judge Singleton most appro-
priately refused to recuse himself.
A. Evidentiary Rulings
Defendants’ main contention that Judge Singleton is
disqualified from presiding further in the civil litigation
rests upon his making of evidentiary rulings during the
® Westvaco, Georgia-Pacific, and Crown Zellerbach also urge
that Judge Singleton’s handling of the Mead motion consti-
tutes another reason for this Court to hold him disqualified
from presiding further in the litigation. The specifics of the
complaints will be detailed below but comment on one is
appropriate here. Defendants argue that to some extent Judge
Singleton’s failure to refer Mead’s motion for recusal to
another district judge “placed him[] in an adversary position
vis-a-vis ... the moving parties and by doing so accentuated
.. . the appearance of judicial partiality.” The contention
completely lacks merit. No case referred to by defendants or
located in an exhaustive search of the authority suggests any
negative inference that can be drawn from the fact that the
judge to whom a motion to recuse is directed rules on the
motion. “[I]t is for the judge who is the object of the affi-
davit [of bias] to pass on its sufficiency.” 18 Wright, Miller &
Cooper, supra, § 3551 at 375. “[W]hile the statute undoubt-
edly permits referring the disposition of an affidavit of bias
to another judge, .. . the adoption of such a procedure as a
general rule would be unwise.” United States v. Azhocar, 581
F.2d 735, 788 (9th Cir. 1978), cert. denied, 440 U.S. 907, 99
S.Ct. 1218, 59 L.Ed.2d 454 (1979) (citation omitted); see
United States v. Olander, 584 F.2d 876, 883 (9th Cir. 1978) ;
In re Union Leader Corp., supra, 292 F.2d at 384.
B-11
course of the criminal trial in which Mead was involved.
Pursuant to responsibilities imposed upon him by United
States v. James, 576 F.2d 1121 (5th Cir. 1978), modified,
590 F.2d 575 (5th Cir.) (en bane), cert. denied, 442
U.S. 917, 99 S.Ct. 2886, 61 L.Ed.2d 283 (1979), Judge
Singleton made factual findings as a predicate to the
jury’s evidentiary consideration of out-of-court state-
ments made by an alleged coconspirator.*° Defendants
urge, that, because Judge Singleton made the findings,”
he is disqualified from presiding in the future over pro-
ceedings in the civil litigation. We disagree.
No court has yet faced the precise issue presented
here—the effect of James rulings upon the legal propriety
of a judge presiding over subsequent related proceed-
ings. The issue, however, is not generically novel. We
10 Before admitting the statements of the alleged cocon-
spirator as evidence Judge Singleton found “ ‘substantial,
independent evidence of a conspiracy’” and of the criminal
defendants’ participation in that conspiracy. See United
States v. James, supra, 590 F.2d at 581 [quoting United States
v. Nixon, 418 U.S. 688, 701 n.14, 94 S.Ct. 3090, 3104 n.14, 41
L.Ed.2d 1039 (1974) (emphasis added by the James court) ]. |
At the close of the evidence, before he permitted the jury to
consider the statements in its deliberations, Judge Singleton
made the second of the James findings—that a preponderance
of the evidence supported the conclusion that the conspiracy
existed, that the defendants and the out-of-court declarant
were coconspirators, and that the statemens were made in fur-
herance of the conspiracy. See United States v. James, supra,
590 F.2d at 582.
1! Defendants argue that disqualification follows not be-
cause of the substance of Judge Singleton’s James findings
but rather because he was required by James to make the _
determinations. “Though not in agreement with [the] James
rulings in the criminal case, defendants do not question or
complain about those adverse rulings here.”
B-12
believe this situation not unlike countless others in which
district judges become thoroughly immersed in all aspects
of a case, rule on the admissibility of evidence and on its
sufficiency to permit a jury to determine the litigation’s
outcome, and even form conclusions on ultimate facts
involved and then later preside at trials involving the
same facts and/or the same parties. As long as judges
are not disqualified under these cireumstances—and over-
whelming authority indicates that they are not *—we
have no difficulty in holding that Judge Singleton’s James
rulings in the criminal trial do not require his disqualifi-
cation.
It is established beyond dispute that under Section
144 ** only allegations of “personal” bias of a judge are
sufficient to require disqualification. See United States v.
Grinnell Corp., 384 U.S. 568, 582-88, 86 S.Ct. 1698, 1709-
10, 16 L.Ed.2d 778 (1966) ; Berger v. United States, 255
U.S. 22, 32-38, 41 S.Ct. 230, 232-233 65 L.Ed. 481
(1921) ; United States v. Serrano, 607 F.2d 1145, 1150
(5th Cir. 1979). Moreover, for a bias to be personal, and
12 See, e.g., United States v. Clark, supra, 605 F.2d at 941-
42; Rice v. McKenzie, 581 F.2d 1114, 1118 (4th Cir. 1978) ;
Weber v. Garza, 570 F.2d 511, 512 n.1 (5th Cir. 1978) ; United
States v. Wolfson, 558 F.2d 59, 62-64 (2d Cir. 1977) ; United
States v. Archbold-Newball, 554 F.2d 665, 681-82 (5th Cir.),
cert. denied, 484 U.S. 1000, 98 S.Ct. 644, 54 L.Ed.2d 496
(1977) ; United States v. Partin, supra, 552 F.2d at 637-39;
United States v. Cowden, 545 F.2d 257, 265-66 (1st Cir.
1976), cert. denied, 430 U.S. 909, 97 S.Ct. 1181, 51 L.Ed.
2d 585 (1977) ; United States v. Harris, 542 F.2d 1283, 1303-
04 (7th Cir. 1976), cert. denied, 430 U.S. 934, 97 S.Ct. 1558,
51 L.Ed.2d 779 (1977); United States v. Jeffers, 532 F.2d
1101, 1111-12 (7th Cir. 1976), aff’d in part, vacated in part,
432 U.S. 187, 97 S.Ct. 2207, 53 L.Ed.2d 168, rehearing denied,
434 U.S. 880, 98 S.Ct. 241, 54 L.Ed.2d 164 (1977) ; 18 Wright,
Miller & Cooper, supra, § 3549 (1979 Supp. at 269).
18 See note 8, supra.
B-13
therefore disqualifying, it “must stem from, an extra-
judicial source ....” United States v. Grinnell Corp.,
supra, 384 U.S. at 588, 86 S.Ct. at 1710; Berger v.
United States, supra, 255 U.S. at 31, 41 S.Ct. at 232;
IBM, supra, —— F.2d at , slip op. at 1417; see
United States v. Serrano, supra, 607 F.2d at 1150;
United States v. Clark, supru, 605 F.2d at 942; Davis
v. Board of School Comm’rs, supra, 517 F.2d at 1051. In
the present case there can be no question but that the
James rulings in the criminal case were judicial in na-
ture. While defendants suggest that the rulings were
not correct, they do not hint that the rulings were in
the slightest degree based upon anything other than evi-
dence appropriately before Judge Singleton in a situa-
tion as fully judicial as any imaginable. Rather, defend-
ants rely on the 1974 amendment to Section 455. Section
455(a)’® now requires for disqualification only that a
judge’s “impartiality might reasonably be questioned.”
Defendants urge that, because Judge Singleton made the
James rulings and because Section 455(a) does not refer
to personal, extrajudicial bias, that provision requires
Judge Singleton’s disqualification. Defendants, however,
misunderstand Section 455 (a).
This Court in Davis v. Board of School Comm’rs,
supra, specifically held that even after the 1974 amend-
ment to Section 455 the disqualification statutes remain
to guard against personal, extrajudicial bias or the ap-
pearance of partiality arising out of such bias.
Construing §§ 144 and 455 in pari materia we be-
lieve that the test is the same under both. We thus
hold that an appellate court, in passing on questions
of disqualification of the type here presented, should
determine the disqualification on the basis of conduct
14 See note 11, supra.
15 See note 8, supra.
B-14
which shows bias or prejudice or lack of impartial-
ity . . [,] conduct extra-judicial in nature as dis-
tinguished from conduct within a judicial context.
This means that we give §§ 144 and 455 the same
meaning legally for these purposes, whether for pur-
poses of bias and prejudice or when the impartiality
of the judge might reasonably be questioned.
517 F.2d at 1052 (emphasis added).’* Since Davis, other
courts have enunciated the rule that Sections 144 and
455(a) reach the same sort of conduct. IBM, supra, ——
F.2d at ; United States v. Olander, supra, 584 F.2d
at 882; United States v. Haldeman, 181 U.S.App.D.C.
254, 356 n.297, 559 Fi2d 31, 1383 n.297 (D.C.Cir. 1976),
cert. denied, 431 U.S1933, 97 S.Ct. 2641, 53 L.Ed.2d
250 (1977); Hawaii-Pacific Venture Capital Corp. v.
Rothbard, 437 F.Supp. 230, 283 (D.Hawaii), appeal dis-
missed, 564 F.2d 1343, 1347 (9th Cir. 1977); see King
v. United States, supra, 576 F.2d at 437. Moreover, in
numerous cases since the enactment of Section 455 (a)
courts have held that familiarity with defendants and/
or the facts of a case that arises from earlier participa-
tion in judicial proceedings is not sufficient to disqualify
a judge from presiding at a later trial.”
16 The Davis court, however, recognized an exception to the
requirement where the circumstances are of such an extreme
nature that the judicial conduct demonstrates “pervasive”
bias and prejudice. 517 F.2d at 1051; see Whitehurst v.
Wright, supra, 592 F.2d at 838; United States v. Wolfson,
supra, 558 F.2d at 63. Indeed, such aggravated circumstances
have arisen. See Nicodemus v. Chrysler Corp., 596 F.2d 152,
155-56 (6th Cir. 1979); Bell v. Chandler, supra, 569 F.2d
at 559-60.
17 See authorities cited note 12, supra; see also Meeropol v.
Nizer, 429 U.S. 1337, 1338 n.2, 97 S.Ct. 687, 689 n.2, 50 L.Ed.
2d 729 (Marshall, Circuit Justice, 1977); United States v.
Montecalvo, on rehearing, 545 F.2d 684, 685 (9th Cir. 1976),
B-15
We have long disclaimed any notion of “ ‘no-deposit/
no-return judges, disposable after one use’”. United
States v. Partin, supra, 552 F.2d at 687 n.20 [quoting
United States v. Harris, 458 F.2d 670, 678 (5th Cir.),
cert. denied, 431 U.S. 918, 97 S.Ct. 2184, 53 L.Ed.2d 229
(1977) ; United States v. Dodge, 538 F.2d 770, 782 (8th Cir.
1976), cert. denied, 429 U.S. 1099, 97 S.Ct. 1118, 51 L.Ed.2d
547 (1977) ; United States v. Bernstein, 583 F.2d 775, 784-85
(2d Cir. 1976), cert. denied, 429 U.S. 998, 97 S.Ct. 523, 50
L.Ed.2d 608 (1977).
The Second Circuit, applying the same standards that gov-
ern here, stated in United States v. Wolfson, supra, that “a
defendant who has undergone two lengthy trials before the
same judge, both of which ended in guilty convictions, may
come to consider that judge as biased against him. These
suspicions are understandable, but ... they do not provide a
reasonable basis for questioning a judge’s impartiality.” 558
F.2d at 64. Similarly, in United States v. Partin, supra, this
Court held that a judge who had presided over six separate
trials arising from one indictment was not disqualified from
presiding at a retrial of two defendants following an appellate
reversal. 552 F.2d at 636, 639. In Partin, we rejected a per se
rule against a district court judge’s retrying a case after
mistrial or reversal. “[S]uch a rule is not the sine qua non
for either the substance or the appearance of justice... .
Altogether, we see little to commend such a rule.. ..” Jd. at
639 (emphasis added). Finally, in United States v. Archbold-
Newball, supra, we held a district judge’s comments at de-
fendants’ bail hearing not to disqualify him from trying the
defendants. The judge’s statements were to the effect that
(1) he had, on the basis of three earlier trials, concluded
that a conspiracy did exist; (2) he would consider the earlier
trials; (3) he believed a D.E.A. agent involved in the case to
be a credible witness; and (4) he thought that there was
abundant additional evidence of the defendants’ membership
in what he described as a “large-scale conspiracy composed
of the most vicious individuals that this court has ever seen.”
554 F.2d at 681-82.
B-16
cert. denied, 409 U.S. 888, 93 S.Ct. 195, 34 L.Ed.2d 145
(1972) ]; see Umted States v. Archbold-Newball, supra,
554 F.2d at 682. We do so again. Judge Singleton’s
James rulings in the criminal trial are not sufficient to
cause a reasonable third party to question his impar-
tiality in the civil litigation. Nothing to which defend-
ants point suggests anything but a “reasonable likeli-
hood that the cause will be tried with the impartiality
that litigants have a right to expect in a United States
district court.” United States v. Ritter, swpra, 540 F.2d
at 464,"*
18 The legislative history to Section 455(a) indicates that:
[I]n assessing the reasonableness of a challenge to his
impartiality, each judge must be alert to avoid the possi-
bility that those who would question his impartiality are
in fact seeking to avoid the consequences of his expected
adverse decision. Disqualification for lack of impartiality
must have a reasonable basis. Nothing in this proposed
legislation should be read to warrant the transformation
of a litigant’s fear that e judge may decide a question
against him into a “reasonable fear” that the judge will
not be impartial. Litigants ought not have to face a judge
where there is a reasonable question of impartiality, but
they are not entitled to judges of their own choice.
H.R.Rep. No. 1453, 98d Cong., 2d Sess., reprinted in [1974]
U.S.Code Cong. & Admin.News, pp. 6351, 6355 (emphasis in
original).
Despite defendants’ contention that their argument rests
on the fact of the James rulings rather than on the substance
of those rulings, see note 11, supra, we are highly skeptical
that if Judge Singleton’s James findings had been different,
any question of his disqualification would have been raised—
at least by defendants. To that extent, defendants are “seeking
to avoid the consequences of [an] expected adverse decision.”
H.R.Rep. No. 1453, supra, at 6355.
B-17
B. Judge Singleton’s Out-of-Court Comments
The second ground on which defendants urge the dis-
qualification of Judge Singleton involves a conversation
between him and an attorney for one of the acquitted
criminal defendants shortly after completion of the
criminal trial. The allegations concerning the conversa-
tion are contained in affidavits by two attorneys for
Mead.’* In essence, they state that, on the day after
1? Harold F. Baker, attorney for Mead, filed an affidavit in
support of Mead’s “motion for Judge Singleton to recuse
himself” on August 29, 1979. On September 14, 1979, Robert
L. Green, another Mead attorney, filed an affidavit in support
of a motion for Judge Singleton to reconsider his denial of
the original motion.
In pertinent part, Mr. Baker’s affidavit states as follows:
On or about June 14, 1979, I had a telephone conversa-
tion with Mr. William Maddux, who represented ... a
misdemeanor defendant [] in the trial of the criminal
case. During that conversation, Mr. Maddux confirmed to
me that he and Judge Singleton played golf on April 28,
1979, the day after the jury verdict acquitting the eight
remaining defendants in the criminal case. Mr. Maddux
stated that on this occasion Judge Singleton told Mr.
Maddux in substance that there was a lot of incriminat-
ing evidence in the document depository which the gov-
ernment did not use and that the government mishandled
the case against the defendants. Furthermore, Mr. Mad-
dux stated to me that Judge Singleton told him in sub-
stance that the civil defendants must be guilty or they
would not have paid $300 million to settle the civil cor-_
rugated class action suit.
With respect to the conversation, Mr. Green’s affidavit states:
On June 8, 1979, I had a telephone conversation with
William Maddux, an attorney who represented Mr. Nu-
man Garrison, a misdemeanor defendant in the trial of
the criminal case. I telephoned Mr. Maddux solely to ask
B-18
the jury in the criminal trial acquitted the defendants,
Judge Singleton played golf with William Maddux, an
attorney for one of the misdemeanor defendants. On
that date, according to the affidavits, Judge Singleton
stated that the government had mishandled the prosecu-
tion and had left incriminating evidence unused in the
document depository. Moreover, Judge Singleton was
alleged to have stated that the civil plaintiffs would
not make the mistakes that the government had made
and that the civil defendants would not have paid $300
million to settle the lawsuit unless they were guilty.
him to send me certain exhibits which he had introduced
in the criminal case, copies of which I did not have.
During the course of my conversation with Mr. Mad-
dux, Mr. Maddux stated to me, without any question
from, or suggestion by me, that Judge Singleton had
made a number of statements about the civil corrugated
container litigation. Maddox quoted Judge Singleton as
having stated that the acquittals were just a quirk be-
cause the government had much more damaging evidence
it could have introduced but that the jury did not hear.
Mr. Maddux also quoted Judge Singleton as having
stated that the lawyers for the civil plaintiffs are sharp
and that the evidence which was not introduced in the
criminal case would come out in the civil cases.
Mr. Maddux further stated that Judge Singleton made
it clear to him that there was no question in the Judge’s
mind concerning the criminal defendants’ guilt and that
the Judge blamed the verdict on the inadequacy of the
government attorneys.
Mr. Maddux also quoted Judge Singleton as stating
that the defendants must be guilty since they paid $300
million in settlements because smart people did not pay
that kind of money unless there was more evidence than
what the jury in the criminal case heard.
B-19
As we are required to do, we accept as true the al-
legations contained in the affidavits. Berger v. United
States, supra, 255 U.S. at 36, 41 S.Ct. at 234; United
States v. Serrano, supra, 607 F.2d at 1150; Davis v.
Board of School Comm'rs, supra, 517 F.2d at 1051; 13
Wright, Miller & Cooper, supra, § 3551 at 381. The
allegations, however, are insufficient to require Judge
Singleton’s disqualification.
The affidavits do not suggest any personal, extraju-
dicial bias; nor does a question of Judge Singleton’s
impartiality arise because of the danger of such bias.
Taken as alleged by the defendants, all of the state-
ments reflect comments on the evidence and, at most,
opinions developed through Judge Singleton’s participa-
tion in the case. As in United States v. Haldeman,
supra, “while these thoughts were voiced in an extra-
judicial setting . . . the informational source upon which
they drew—the judge’s experience as a judge—was dis-
tinctly judicial.” 181 U.S.App.D.C. at 359, 559 F.2d at
136. Such statements are not improper and do not re-
quire Judge Singleton’s disqualification. See United
States v. Clark, supra, 605 F.2d at 942; United States
v. Haldeman, supra, 181 U.S.App.D.C. at 359, 559 F.2d
at 1386; United States v. Montecalvo, supra, 545 F.2d
at 685; United States v. Bernstein, supra, 533 F.2d at
785.
C. Actions of Judge Singleton’s Law Clerk
Defendants’ final contention that Judge Singleton is
disqualified from presiding further in the litigation is
derivative in nature. Defendarts assert that the conduct
of Judge Singleton’s law clerk necessitates his disquali-
fication.” Since this Court has held that ordinarily a
20 Baker’s affidavit filed in support of this contention states
that:
[Footnote continued on page B-20]
B-20
20 [Continued]
It is my understanding that Judge Singleton’s law
clerk .. . was hired specifically to assist Judge Singleton
in the criminal corrugated cases and the related civil cor-
rugated cases.
[The clerk] on or about May 9, 1979, shortly after
the not guilty verdicts were returned April 27, 1979, told
an attorney representing Mead in substance that defend-
ants did not deserve to win the criminal trial and that
plaintiffs’ counsel in the civil cases would do a better
job than the government counsel did in the criminal cases.
At some time prior to June 6, 1979, [she] was re-
portedly interviewed by, or talked to a representative of,
a trade magazine for purchasing agents, a group which
includes employees of the named plaintiffs and class mem-
bers in the pending corrugated container proceedings.
[The clerk] was quoted in Purchasing magazine, pub-
lished on June 6, 1979, as saying that “Industrial buyers
may choose not to participate in the settlement and press
their own suit, seeking higher payment. If a large num-
ber of companies decide to file their own suits, then the
amount left of the $295 million for the others will be
higher.” . . . The statements attributed to [her] in this
trade magazine constitute a recommendation (or may be
reasonably so interpreted) that purchasers of corrugated —
containers opt out of the classes established for settlement
and file their own suits. These statements ... are par-
ticularly prejudicial in light of [her] expressed, and I
believe well known, bias against defendants .. .. Her
statements could have a substantial adverse impact on
the ultimate dollar liability of Mead and defendants
generally in ‘this civil litigation. This is especially so
since notices to the class are now being prepared and will,
in the normal course of events, be sent to prospective
class members.
The law clerk’s statements to counsel outside the court-
room, her interview and the substance of her remarks,
I believe, constitute bias on her part and taint the appear-
ance of impartiality required of Judge Singleton and his
B-21
judge’s bias, to be disqualifying, must run to a party
rather than merely to the attorney, Davis v. Board of
School Comm’rs, supra, 517 F.2d at 1050-51, we think
it fitting to restrict those situations in which the bias
of a law clerk wil! work to disqualify the clerk’s em-
ployer. Clearly, a law clerk’s views cannot be attributed
to the judge for whom the clerk works. Moreover, even
if law clerks’ opinions accurately reflected the views of
their employers, we could not hold Judge Singleton dis-
qualified in the present case because of actions and state-
ments attributed to his law clerk.
Defendants allege that the law clerk voiced her opin-
ions on the resolution of the criminal case to one of Mead’s
lawyers. Setting aside questions, of which we have
many, of the propriety of such comments, they are clearly
based upon her observations made in connection with the
case. If Judge Singelton cannot be found disqualified for
opinions he developed in the course of the litigation, it is
difficult to comprehend how he could be found disquali-
fied because of the opinions his law clerk developed in
a judicial setting.
The law clerk also allegedly gave a press interview
and, of course, defendants also urge that as a ground
for the disqualification. In giving an interview with the
press, the clerk most likely breached duties imposed upon
her by Canons 3 A(6),”" see United States v. Haldeman,
law clerk in this massive pending litigation. Whether or
not Judge Singleton assented to the interview or whether
or not [her] public statements reflect the judge’s view-
points, her comments raise serious questions concerning
the appearance of this Court’s impartiality in these civil
corrugated container proceedings.
21 Canon 3A (6) provides:
A judge should abstain from public comment about a
pending or impending proceeding in any court, and
B-22
supra, 181 U.S.App.D.C. at 357, 559 F.2d at 134, and
3 B(2),™ of the Code of Judicial Conduct for United
States Judges. Nevertheless, the statements attributed
to the clerk constitute no basis for disqualification of
Judge Singleton. Indeed the statements express no opin-
ion whatsoever. Rather, they merely state obvious fact:
if fewer members of the class elect to participate in the
settlement, each claimant’s share will increase. There
is no basis on which Judge Singleton shouldbe dis-
qualified.
No. 79-38369-—-APPEAL DISMISSED.
No. 79-83653—WRIT OF MANDAMUS DENIED.
should require similar abstention on the part of court
personnel subject to his direction and control. This sub-
section does not prohibit judges from making public
statements in the course of their official duties or from
explaining for public information the procedures of the
court.
22 Canon 8 B(2) provides:
A judge should require his staff and court officials subject
to his direction and control to observe the standards of
fidelity and diligence that apply to him.
C-1.
APPENDIX C
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
MDL No. 810
IN RE CORRUGATED CONTAINER
ANTITRUST LITIGATION
THIS DOCUMENT RELATES To:
ALL CASES
MEMORANDUM AND ORDER
The Mead Corporation, a defendant in these cases,’
has on August 29, 1979, filed a motion requesting that
the court recuse itself from this litigation.. Three other
defendants, Crown Zellerbach, Georgia-Pacific, and West-
vaco,? have now joined in the motion. Because this mo-
1 Mead is a plaintiff in two of the cases conditionally trans-
ferred to this court. In one, it seeks to continue its efforts
to establish a right to claim contribution from other defend-
ants in the main litigation in the event liability is established
against it, Mead Corp. v. Alton Box Board Co., et al.; in the
other it seeks injunctive and declaratory relief against plain-
tiffs who filed a claim similar to the claims in the main liti-
gation but under California state law, Alton Box Board Co.,
et al. v. Esprit de Corps.
2 These three defendants were not indicted and took no part
in the criminal proceedings.
C-2
tion is addressed to a claimed personal bias, I consider it
proper to answer it in the first person.
Mead seeks my disqualification under two statutes, 28
U.S.C. § 144 and 28 U.S.C. § 455. These statutes read,
in relevant part, as follows:
Section 144:
“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 hear 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 counsel of record stating that it is made
in good faith.”
Section 455 provides:
“(a) Any justice, judge, magistrate of the United
States shall disqualify himself in any proceeding in
which his impartiality might reasonably be ques-
tioned.
(b) He shall also disqualify himself in the fol-
lowing circumstances:
(1) Where he has a personal bias or prejudice
concerning a party, or personal knowledge of
disputed evidentiary facts concerning the pro-
ceeding.”
7
C-3
As the Fifth Circuit has recognized, the test is the
same under both, a reasonable factual basis—reasonable
man test. Davis v. Board of School Commissioners of
Mobile County, 517 F.2d 1044, 1052 (5th Cir. 1975).
Case law makes it clear that the trial judge is to de-
termine the legal sufficiency of the affidavit, although for
that purpose he accepts the factual allegations as true.
Berger v. United States, 255 U.S. 22 (1921).
The bias or prejudice must be “personal”—‘“an atti-
tude of extrajudicial origin, derived non coram judice.
... The statute never contemplated crippling our courts
by disqualifying a judge, solely on the basis of a bias (or
state of mind...) against wrongdoers, civil or criminal,
acquired from evidence presented in the course of judicial
proceedings before him.” Craven v. United States, 22
F.2d 605, 607-08 (1st Cir.), cert. denied, 276 U.S. 627
(1927). Opinions formed by judges in the course of pre-
siding over prior related proceedings have consistently
been held not to constitute grounds for disqualification.
Citing only recent Fifth Circuit cases, we have United
States v. Archbold-Newball, 554 F.2d 665, 681-82, (5th
Cir. 1977) ; United States v. Partin, 522 F.2d 621, 636-39
(5th Cir. 1977) ; United States v. Sutherland, 463 F.2d
641, 650 (5th Cir. 1972). An expression of belief in a
defendant’s guilt is not in itself grounds for disqualifi-
cation. United States v. Bolden, 355 F.2d 453 (7th Cir.),
cert. denied, 384 U.S. 1012 (1965); United States v.
Sutherland, supra. All of these cases, and the many,
many others which this court has consulted on the ques-
tion of recusation, support my belief that the allegations
contained in the motion and affidavits are insufficient as
a matter of law to raise in any reasonable person’s mind
a belief that I am prejudiced against Mead, or any other
litigant in this case, or that the rulings I have made and
may make in the future will be motivated by any other
desire than the desire to provide equal justice under the
law.
C-4
The gist of Mead’s motion is that during the trial of
Mead and others on charges of illegally conspiring to fix
prices in the corrugated container industry I formed an
opinion as to Mead’s guilt which renders me unable to
preside impartially over this related litigation. Grounds
for the motion are (1) the evidentiary findings required
to be made by me by James® in the course of the trial
of those indicted; (2) a conversation I had with an at-
torney for one of the individuals tried and acquitted in
those proceedings; and (8) two statements alleged to
have been made by my law clerk.
Mead has known since the indictments were returned
in January of 1978 that I was going to preside over both
the criminal trial and the civil proceedings, which had
been transferred to me by the Judicial Panel on Multi-
district Litigation on November 29, 1977, pursuant to 28
U.S.C. § 1407. The fact that T would have to make evi-
dentiary rulings of the type of which Mead now com-
plains must surely have been known to its counsel; in-
deed, the form which the James findings would take was
the subject of hours of discussion in the proceedings in-
volving those indicted. Mead does not complain of any
prejudice to it during the three-and-a-half month trial;
indeed it could hardly do so. Mead was permitted, over
strenuous government objection, to present a lengthy de-
fense based on its antitrust compliance program, a defense
which has never before been held to constitute a defense
to price fixing or to the criminal intent of a corporation.
The court embodied that defense in its instructions to
the jury. (The relevant portion of the jury charge is at-
tached to this opinion as Exhibit A.) The jury returned
a unanimous verdict of acquittal after less than one day’s
deliberations. No animus on my part could be alleged
against Attorney Baker, who filed the motion and affi-
davit. In fact, until this motion was filed I firmly be-
3 United States v. James, 590 F.2d 575 (5th Cir. 1979).
-C-5
lieved him to be house counsel for Mead and not counsel
of record. I was surprised to learn that he is a member
of % prestigious Washington, D.C. law firm. Throughout
the proceedings in both this litigation and the trial of
those indicted, I have allowed Attorney Baker to address
me on any point he desired, and I believe I have always
been courteous and fair to him.
Neither does Mead allege that any rulings in the civil
litigation have been affected by my supposed “prejudice”
against any party. Some rulin ; in this case have been in ©
favor of one group of litigants,,some of another, as must
be true in any normal litigation. In the comparatively
recent past, I have denied the motion of non-settling
defendants (among them Mead and the three other de-
fendants joining in this motion) for leave to amend their
answers to assert claims for contribution against the
settling defendants, who now comprise approximately
80% of the market and who have agreed to pay almost
$300 million to the plaintiffs’ class. That ruling, which
followed the great weight of federal case law, was certi-
fied as a final ruling under Rule 54, Fed. R. Civ. P., to
enable movants to appeal promptly and have the question
settled by the Court of Appeals. Other recent rulings as
to discovery, such as access by plaintiffs to grand jury
materials and the scope of discovery, can be construed
as favorable to Mead and the other non-settling de-
fendants. -
Mead’s, motion and accompanying affidavits clearly do
not present grounds for recusation by establishing either
actual prejudice or a reasonable appearance of prejudice.
If such a serious motion can ever be termed frivolous,
this motion can indeed be so labeled. Presiding over the
pretrial aspects of this massive litigation has not been a
sinecure. I have no personal interest in continuing to
preside; however, in my thirteen years on the bench I
have never avoided doing my judicial duty because it was
~~
C-6
complicated, burdensome, or unpleasant, and I do not
intend to do so now.
I will speak briefly about the three grounds Mead sug-
gests for its motion. United States v. James, 590 F.2d
(5th Cir. 1979), requires a trial court, before admitting
coconspirator hearsay under Rule 801(d) (2) (E), Fed. R.
Evid., to determine on the record and by a preponderance
of the evidence that a conspiracy existed and that both
the defendant against whom it is admitted and the de-
clarant were members of the conspiracy. The problems
raised by Rule 801(d) (2) (E) have been handled some-
what differently by different circuits, but all require some
determination by either a court or jury of the critical
issues of existence of, and participation in, a conspiracy
before considering coconspiracy hearsay. In this circuit
under United States v. Apollo* which was the controlling
law in this circuit during the trial of those indicted, it
was the jury who performed this function—a very diffi-
cult task for laymen in most cases and, in the long com-
plicated multi-defendant case in question, probably an
impossible one. The James rule is clearly more sensible
and more protective of the defendant than the Apollo
rule and was the approach taken by me in that trial.
Any suggestion that the James rule makes it impossible,
for example, for the same judge impartially to retry a
case which has been reversed and remanded to him would
be as absurd from the standpoint of judicial administra-
tion as a suggestion that a judge who rules on the sup-
pression of illegally obtained evidence cannot impartially
try the case from which he has excluded it. A fortiori,
where the second trial is a civil case, involving different
evidence, somewhat different allegations, different parties
and many different issues, the James determination stand-
ing alone cannot require assignment to a new judge to
insure impartiality to a defendant.
4476 F.2d 156 (5th Cir. 1973).
C-7
Mead cites as its second instance of prejudice a con-
versation between Mr. William Maddux and myself. The
conversation did take place, and arose as follows: Mr.
Maddux is a Chicago attorney who represented Mr. Nu-
man Garrison, one of the acquitted defendants. A friend
of mine informed me that Mr. Maddux would like to play
golf with me after the trial was over. I invited Mr. Mad-
dux at the conclusion of the trial to play golf with me.
Under the circumstances, our conversation naturally cen-
tered around the trial which had taken the lion’s share
of our time for the past several months. During that
conversation my recollection is that I did say that I
considered it odd that counsel for the United States should
have tried a case of that nature and that magnitude with
virtually no documentary evidence, especially in view of
the fact that the document depository had been said by
all parties to contain almost two million documents. The
civil plaintiffs had filed a selection of these documents
with the court in the civil litigation. My knowledge of
those documents is confined to my judicial experience in
the civil litigation.
I also agreed with Mr. Maddux that it seemed strange
that so many of the defendants in the civil case would
have paid so much money, nearly $300 million, to settle
a completely unfounded case. Even if this remark could
be stretched to constitute a statement that I thought the
settling defendants guilty, that would not apply to Mead
or any other defendant who has not entered into a settle-
ment agreement in this litigation.
While I was drafting this memorandum, I received a
call from Mr. Maddux, who expressed shock and indig-
nation at what he had learned was in Attorney Baker’s
affidavit. He requested leave to file his own affidavit,
which is attached as Exhibit B.
C-8
As the third instance of my alleged prejudice, Mead
cites two statements attributed to my law clerk. One
of them is taken from an article published in Purchasing
magazine, the relevant portion of which is as follows:
“Linda Marshall, law clerk for Judge Singleton, says
industrial buyers may choose not to participate in
the settlement and press their own suit, seeking
higher payment. If a large number of companies
decide to file their own suits, then the amount left
of the $298 million for the other will be higher, she
told Purchasing in an interview.”
Mead contends that this demonstrates a prejudice against
Mead and other non-settling defendants by encouraging
plaintiffs to opt out of the class. Such a reading of the
quoted statement is extremely strained; the statement
clearly reflects no more than a recognition that. class
members may opt out and pursue their own remedies
if they wish, an undisputed right of which all class mem-
bers will be informed by class notice this month. The
other statement attributed to my law clerk, when put
into context, was a response to the suggestion by one of
Mead’s counsel that a motion for summary judgment on
liability could lie in the civil litigation for the time period
covered by the acquittal in the trial of those indicted
and was apparently a question as to whether summary
judgment would be proper in the civil case, where the
allegations, burden of proof, evidence, parties, and at-
torneys were likely to be different from the trial of those
indicted.
Under any circumstances, the views of a law clerk, a
court reporter, docket clerk, or other court personnel are
not the views of the court and, contrary to some at-
torneys’ belief, have little or no influence on a judge’s
decisjons.
C-9
I have been on the federal bench for thirteen years. In
all that time, I have never been faced with a motion
seeking my disqualification. It would appear that the
very large amount of money on the table in this litiga-
tion, though in no conceivable way influencing my im-
partiality, provides a strong incentive to attorneys in the
case to leave no stone unturned, however unpromising or
unsavory. Indeed, a disproportionate number of the cases
I have viewed on this issue have arisen in expensive,
multidistrict antitrust or other business litigation. I have
spent almost two years of intensive work on this litiga-
tion, and the familiarity I have gained with the issues
and the industry could not quickly or inexpensively be
duplicated by another judge. Most of the defendants have
reached tentative settlement with the class, class notice
is scheduled to go out this month,® and an intensive dis-
covery schedule is under way. Delay may be in the in-
terest of some of the litigants, but is not in the interest
of justice.
Because I find both that I have no personal prejudice
against Mead or any other litigant, and also that no rea-
sonable person could reasonably question my impartiality,
Mead’s motion for my recusation is DENIED.
DONE and ENTERED this 11th day of September,
1979.
/s/ John V. Singleton
JOHN V. SINGLETON
United States District Judge
5 As pointed out in this opinion, Mead has known for
months of the grounds alleged in its affidavit and it knows
that a trial date is still many months away. It has chosen the
Thursday before Labor Day to file this motion, knowing that
on the Wednesday following the long weekend a final form
of notice would be approved for mailing September 15.
C-10
EXHIBIT A
A corporation is in law a person, but of course it
cannot act otherwise than through its directors, officers,
employees, or other agents. Authority to act for a cor-
poration in a particular matter, or in a particular way
or manner, may be inferred from the surrounding facts
and circumstances shown by the evidence in the case.
That is to say, authority to act for a corporation, like
any other fact at issue in this case, need not be estab-
lished by direct evidence. It must be established beyond
a reasonable doubt. Every act of every director or of-
ficer or employee or other agent on behalf of or in the
name of a corporation, if done within the scope of their
authority, is in law the act of the corporation itself.
However, the Government must prove beyond a rea-
sonable doubt that each corporation—Mead and Conti-
nental—possessed the required intent as defined in these
instructions. One of the factors you may consider in de-
termining the intent of each corporation, among other
evidence, is whether or not that corporation had an
antitrust compliance policy. In this regard, you are in-
structed that the mere existence of an antitrust com-
pliance policy does not automatically mean that a cor-
poration did not have the necessary intent. If, however,
you find that a corporation acted diligently in the pro-
mulgation, dissemination, and enforcement of an anti-
trust compliance program in an active good faith effort
to ensure that the employees would abide by the law,
you may take this fact into account in determining
whether or not the corporation had the required intent.
Some of these programs were intended to be more re-
strictive than the antitrust laws, and the compliance pro-
grams are not an accurate statement of the laws on ex-
change of price information. It is important that you
not confuse the terms of compliance programs with the
C-11
law, which I am giving you in these instructions. You
may consider such a compliance program only as to the
intent of the company which propounded it. You may not
consider it in determining the intent of any individual
defendant.
C-12
EXHIBIT B
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
MDL No. 310 (All Cases) = s§ sy
IN RE CORRUGATED CONTAINER
ANTITRUST LITIGATION
THIS DOCUMENT RELATES TO:
ALL ACTIONS
NOTICE
TO: SEE RIDER ATTACHED
PLEASE TAKE NOTICE THAT ON THE 7th DAY
OF SEPTEMBER, 1979, that we filed with the United
States District Court for the Southern District of Texas,
Houston Division, the Affidavit of William D. Maddux,
a copy of which is herewith served upon you.
/s/ William D. Maddux & Associates
WILLIAM D. MAppux & ASSOCIATES
One North LaSalle, Suite 1909
Chicago, Illinois 60602
312/782-2525
.
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STATE OF ILLINOIS )
) SS
COUNTY OF CooK )
Lola Kaduszkiewicz, being first duly sworn, deposes and
says that she mailed a copy of the foregoing Affidavit to
each attorney appearing of record in this cause by de-
positing a copy of the same in the United Mail Chute
located at 1 North LaSalle, properly addressed to said
attorneys with proper postage affixed thereto, on this
6th day of September, 1979.
/s/ LL. Kaduszkiewicz
L. KADUSZKIEWICZ
Subscribed and sworn to
before me this 6th day
of September, 1979.
/s/ Rebecca Anguhofer
REBECCA ANGUHOFER
Notary Public
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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
MDL No. 310 (All Cases)
IN RE CORRUGATED CONTAINER
ANTITRUST LITIGATION
THIS DOCUMENT RELATES TO:
ALL ACTIONS
AFFIDAVIT
I, WILLIAM D. MADDUX, being first duly sworn on
oath, depose and state that if called as a witness in this
cause, can testify competently to the following:
1. It has come to the attention of this Affiant that
an attorney, Mr. Hal Baker, has filed a Petition
requesting that the Honorable John V. Singleton
recuse himself from the trial of this cause based
in part on an alleged conversation between Affiant
and Judge Singleton, as a result of which it is
claimed that Judge Singleton is biased and preju-
diced towards Mr. Baker’s client.
2. By way of background, it should be recalled that
your affiant represented an individual defendant
in the criminal case tried before Judge John V.
Singleton with a jury from January 21, 1979 to
April 27, 1979.
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. That during the trial of said case, your affiant had
no occasion to discuss the case in any respect with
the Honorable John V. Singleton outside of the
contact in the courtroom.
. That during the course of said case, your Affiant
came to know that the Honorable John V. Single-
ton was an avid golfer and expressed an interest
in playing golf with Judge Singleton at the con-
clusion of the case. A mutual friend informed
Judge Singleton of this interest.
. That after the verdict of the jury was returned
finding all of the defendants not guilty, Judge
Singleton was kind enough to extend an invitation
to your Affiant to play golf, which was done the
following day, Saturday, April 28, 1979, during
which time your Affiant found Judge Singleton
to be an affable and congenial host.
. That during said game of golf, your Affiant ex-
pressed the opinion that the government in the
trial of the criminal case must have overlooked
evidence since it was difficult for your Affiant to
believe that such an extensive grand jury investi-
gation leading to the number of indictments re-
turned. An analysis of the evidence presented at
the trial in view of the fact that by the conclusion
of the trial, approximately three hundred million
dollars had been paid by various defendants in
the civil cases in order to settle the civil class
action led this Affiant to observe that there surely
must have been better evidence available to the
government.
. Judge Singleton relayed to your Affiant nothing
more than an observation that Affiant’s observation
probably had some merit. The observation to Af-
fiant was nothing more than a common sense ob-
10.
11.
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servation expressed by counsel for various of the
criminal defendants during and at the conclusion
of the criminal case.
During the informal contact at the conclusion of
the case, it was apparent that your Affiant would
have no further contact with Judge Singleton on
the criminal case nor the civil case and the con-
versation with Judge Singleton was in the context
of an informal lawyer-to-lawyer comment in a
relaxed atmosphere and no information was ob-
tained from Judge Singleton, which, in your Af-
fiant’s opinion, indicated any bias or prejudice to
anyone.
In fact, the entire context of a very brief exchange
of comments concerning the criminal case, at no
time indicated to your Affiant that Judge Single-
ton was opinionated and certainly did not indicate
to your Affiant nor would it indicate to any rea-
sonable observer, that he was in any way hiased
in favor of or against anyone in any of the mat-
ters pending before him or which had terminated.
It is the opinion of your Affiant from having ob-
served Judge Singleton’s conduct during the course
of the extensive trial of the criminal case, that he
is a man of extreme patience, possessing a high
degree of legal knowledge and judicial tempera-
ment. His conduct during the course of the com-
plicated and lengthy criminal trial was certainly
beyond reproach and his attitude towards the de-
fendants and defense counsel, both formally and
informally, could not reasonably lead any observer
with any sense of fairness to conclude that he
was in any way biased or prejudiced.
It is the intention of your Affiant, by this Af-
fidavit, to express in no uncertain terms, his feel-
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ings that the allegations made by Mr. Hal Baker,
are in no way based upon fact, are in the nature
of “scuttlebutt’”’ which was common amongst de-
fense counsel active in the defense of this criminal
case. This did not include Mr. Baker. The con-
clusions drawn from such scuttlebutt are at the
very best devoid of fairness or understanding.
FURTHER, AFFIANT SAYETH NOT.
/s/ William D. Maddux
WILLIAM D. MADDUX
STATE OF ILLINOIS )
) SS
COUNTY OF COOK )
William D. Maddux, being first duly sworn on oath,
deposes and says that he has read the above and fore-
going affidavit signed by him, and that the said Affidavit
is true.
/s3/ William D. Maddux
WILLIAM D, MADDUX
Subscribed and sworn to
before me this 6th day
of September, 1979.
/s/ Rebecca Anguhofer
REBECCA ANGUHOFER
Notary Public
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.