Opposition Brief — Frezzo v. United States

Office - Supreme Court, U

a FILED

No. 83-2014 OCT 15 1904

TLE & STEVA

CLERK

Iu the Supreme Court of the Anite States ——

OCTOBER TERM, 1984

GUIDO FREZZO, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

Rex E. LEE

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

JOHN F. DE PUE

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

I& Ang (| .

QUESTION PRESENTED

Whether the district judge should have recused himself

from presiding at petitioner’s trial because the judge had

sentenced petitioner for a prior offense four years earlier, at

which time the judge had read a presentence report concern-

ing petitioner.

(I)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Gregg v. United States, 394 U.S. 489 ......... 4,5

Smith vy. United States, 360 F.2d 590 ........... 7

United States v. Bunch, 730 F.2d 517 ........ 7,8

United States v. Carmichael, 726 F.2d

ee hs Vic's diene o's 8

United States v. Clark, 605 F.2d 939 ........... 7

United States v. Foddrell, 523 F.2d 86,

I Ee 7

United States v. Frezzo Bros., 461

PF. Supp. 266, aff'd, G02 F.2d 1123 ...... 2.000. 3

United States v. Grinnell Corp.,

i a a ad Lawns v 7,8

United States v. Harris, 542 F.2d 1283,

Cart, Gemied. 450 U.S. G54 2. ccc cccccccccccees 7

United States v. Kelley, 712 F.2d 884 .......... 7

United States v. Lyon, 588 F.2d 581,

Ce rr 7

(IIT)

IV

Page

Cases—Continued:

United States v. Martorano, 620 F.2d 912,

One ee, Ge Uh EE be vas bse k6e a 8

United States v. Montecalvo, 5¢* F.2d

RE ceo e eG Cue ew EOE eo. oe cui 7

United States v. Nelson, 718 F.2d

oat eee eA EAA Vaases 640% 7,8

United States v. Phillips, 664 F.2d 971,

OR, Ses Wee GE OE gs 6b 6 os 65500 Oona 8

United States v. Small, 472 F.2d

De csc ee ca cw usu ta hike 6 odd koe 4,7,8

United States v. Sonderup, 639 F.2d 294,

i ee ee EL ke a ene bue 7

Webster v. United States, 330 F. Supp.

ie eee bk’ 6

Statutes and rules:

Federal Water Pollution Control Act,

33 U.S.C. 1251 et seq. :

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28 U.S.C. 45a) .......2. eeeew ceases 1, 3,4, 7,8

V

Page

Statutes and rules—Continued:

Fed. R. Crim. P. :

EN 0 6k 54s ded vee eaweeneueeaeen 7,8

PE SPEED A cK uN acc éunsadedvecuan 2, 4, 5, 6

Rule 32 advisory committee note

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In the Supreme Court of the United States

OCTOBER TERM, 1984

No. 83-2014

Gurpe FREZZO, PETITIONER

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-4a) is

unreported. The opinion of the district court (Pet. App.

5a-16a) is reported at 563 F. Supp. 592.

JURISDICTION

The judgment of the court of appeals was entered on

April 6, 1984. The petition for a writ of certiorari was filed

on June 5, 1984. The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1).

STATUTE AND RULE INVOLVED

1. 28 U.S.C. 455(a) provides:

Any justice, judge, or magistrate of the United States

shall disqualify himself in any proceedings in which his

impartiality might reasonably be questioned.

(1)

2

2. Fed. R. Crim. P. 32(c)(1) provides:

The probation service of the court shall make a

presentence investigation and report to the court

before the imposition of sentence or the granting of

probation unless, with the permission of the court, the

defendant waives a presentence investigation and

report, or the court finds that there is in the record

information sufficient to enable the meaningful exer-

cise of sentencing discretion, and the court explains

this finding on the record.

The report shall not be submitted to the court or its

contents disclosed to anyone unless the defendant has

pleaded guilty or nolo contendere or has been found

guilty, except that a judge may, with the written con-

sent of the defendant, inspect a presentence report at

any time.

STATEMENT

Following a jury trial in the United States District Court

for the Eastern District of Pennsylvania, petitioner was

convicted of conspiracy to transport and receive stolen

property in interstate commerce, in violation of 18 U.S.C.

371, and of receiving stolen property that had been trans-

ported in interstate commerce, in violation of 18 U.S.C.

2315. He was sentenced to five years’ imprisonment and a

$10,000 fine on the conspiracy count, and five years’ proba-

tion and a $10,000 fine on the receipt of stolen property

count. The court of appeals affirmed (Pet. App. la-4a).

1. The evidence showed that in March 1982, co-defend-

ants Francis Matherly and William Porter stole fifteen

paintings, valued at approximately $626,000, from the

Pennsylvania home of Andrew Wyeth, the artist (C.A. App.

3

205-208, 221-226, 272-274).' In June 1982, petitioner agreed

to purchase several of the stolen paintings from Matherly

and co-defendant Benedict LaCorte in exchange for an

automobile and $2,000 in cash (C.A. App. 287-288). The

paintings were first transported to Matherly’s house in Del-

aware, and then delivered to petitioner by LaCorte, who

placed the paintings in petitioner’s attic and received pay-

ment of $2,000 (C.A. App. 471-472). LaCorte subsequently

took the paintings back from petitioner and resold them to

co-defendant Douglas Fuller (C.A. App. 476-479). The

existence of the conspiracy was discovered following

Matherly’s arrest on local charges in July 1982. Petitioner

was implicated in the scheme when he admitted during a

recorded conversation with Matherly’s wife that he had

purchased three of the stolen paintings from Matherly

(C.A. App. 646-651).

2. District Judge Raymond J. Broderick was assigned by

random selection to preside at petitioner’s jury trial (Pet.3).

Previously, in December 1978, Judge Broderick had pre-

sided at a jury trial in which petitioner was found guilty of

violating the Federal Water Pollution Control Act, 33

U.S.C. 1311(a), 1319(c) (Pet. App. 6a).2 After reviewing the

presentence report concerning petitioner, Judge Broderick

had sentenced him to 30 days’ imprisonment and imposed a

fine (ibid.).

Prior to trial in the instant case, petitioner filed a motion

requesting that Judge Broderick recuse himself from presid-

ing Over petitioner’s trial pursuant to 28 U.S.C. 455(a).

Petitioner argued that, because Judge Broderick had read

'“C.A. App.” refers to the appendix in the court of appeals. Our

citations to the appendix are based upon those contained in the

government's brief in that court.

2See United States v. Frezzo Bros., 461 F. Supp. 266(E.D. Pa. 1978),

aff'd, 602 F.2d 1123 (3d Cir. 1979).

4

the presentence report in the earlier case, his impartiality

might reasonably be questioned. In addition, petitioner

contended that language in Gregg v. United States, 394

U.S. 489 (1969), concerning the general prohibition in Fed.

R. Crim. P. 32(c)(1) against disclosure of a presentence

report to a trial judge prior to entry of a guilty plea or the

return of a guilty verdict, required recusal here.

Judge Broderick denied the motion (Pet. App. 5a-16a).

At the outset, the judge asserted that he had no recollection

of any prejudicial material in the presentence report (Pet.

App. 6a-7a). Relying on United States v. Small, 472 F.2d

818 (3d Cir. 1972), the judge held that this Court’s decision

in Gregg and Fed. R. Crim. P. 32(c)(1) are both inapplicable

to cases where the trial judge has properly read a presen-

tence report involving the same defendant in connection

with an earlier case (Pet. App. 7a-9a, | la-14a). Applying

the balancing analysis articulated in Small (472 F.2d at 822)

for determining whether recusal is appropriate in such

cases, Judge Broderick found that there was no possibility

of prejudice here because, unlike the situation involving

retrial of a defendant on the same charges, there was no

danger that the judge’s having read a presentence report ina

different case would have exposed him to facts adverse to

petitioner concerning the instant charges (Pet. App. 9a).

Furthermore, the judge noted that it was not reasonable to

believe that he would recollect any unfavorable information

that might have been contained in the report, which he had

read more than four years earlier (ibid.).

The district judge concluded that because there was no

appearance of partiality here, he was not required to recuse

himself under 28 U.S.C. 455(a) (Pet. App. 14a). Judge

Broderick also pointed out that most courts that have con-

sidered recusal motions under Section 455(a) “have held

that the determination whether a judge’s impartiality might

reasonably be questioned is to be made solely on the basis of

5

conduct extrajudicial in nature,” and, even where conduct

in a judicial context has been considered, recusal has been

required only in “ ‘exceptional circumstances’ ” — not

present here — “where the conduct reflects pervasive bias

and prejudice” (Pet. App. 14a-15a).

Finally, the judge noted that the administrative and other

burdens of transferring this particular case to another judge

would be considerable (Pet. App. 10a), and that, as a gen-

eral matter, “[s]evere burdens would be placed on the judi-

cial system if a judge had to withdraw from a case whenever

he or she had presided over proceedings in the same or a

related case thet provided non-evidentiary information

about a defenday:t” ‘id. at Ila).

3. In affirining retitioner’s convictions, the court of

appeals held that .!udge Broderick had “properly balanced

competing conside: ations” in denying petitioner’s recusal

motion, and it noted that petitioner had pointed “to no

prejudice resulting from [Judge Broderick’s] exposure to

the presentence investigation report [at the earlier] trial”

(Pet. App. 3a).

ARGUMENT

Relying upon this Court’s statement in Gregg v. United

States, 394 U.S. at 491-492, that a presentence report “must

not, under any circumstances, be ‘submitted to the court’

before the defendant pleads guilty or is convicted,” peti-

tioner contends (Pet. 6-11) that Fed. R. Crim. P. 32(c)(1)

requires recusal of the trial judge whenever he has read a

presentence report involving the same defendant in connec-

tion with prior proceedings. As the district court pointed

out (Pet. App. 8a, 14a), Gregg is plainly inapposite. There,

the Court addressed the propriety of the trial judge’s read-

ing the presentence report concerning the charges for which

the defendant was on trial prior to entry of the verdict. This

case presents the very different question whether it is

6

permissible for the judge to preside at a trial after having

examined a presentence report concerning the defendant in

an earlier, unrelated proceeding.

Indeed, the 1974 advisory committee note concerning

Rule 32(c)(1) makes it plain that prior exposure to a pre-

sentence report in an earlier case does not require the trial

judge to disqualify himself. The note expressly states that

“(there are instances involving prior convictions where a

judge may have seen a presentence report, yet can properly

try acase ona plea of not guilty.” To illustrate this point, the

note cites with approval Webster v. United States, 330 F.

Supp. 1080, 1088 (E.D. Va. 1971), where the court held that

a district judge was not compelled to recuse himself from

conducting a bench trial after having read a presentence

report concerning the defendant in connection with sen-

tencing the defendant in another case.

As the district judge observed in this case (Pet. App.

1 la-13a), the courts of appeals that have addressed the

question are in agreement that Rule 32(c)(1) does not

require a trial judge to disqualify himself from presiding at a

trial simply because he has read a presentence report involv-

ing the defendant in connection with earlier proceedings. As

two courts have explained:

The receipt by a trial judge of a presentence investiga-

tion report, in a manner not prohibited by Rule

32(c)(1), does not disqualify him from hearing evidence

on a reopening of a trial. To suggest otherwise would

suggest also that he thereby renders himself incompe-

tent to hear a retrial of the same case, should he be

reversed on appeal. It would suggest also that, there-

after, the Court would be disqualified to try the same

defendant on other offenses. That would be highly

untenable in light of the decisions that a trial judge,

who is familiar with the defendant’s background by

7

reason of having tried him in previous cases, is not

thereby disqualified to try the same defendant in sub-

sequent cases.

United States v. Clark, 605 F.2d 939, 941 (Sth Cir. 1979),

quoting Smith v. United States, 360 F.2d 590, 592 (Sth Cir.

1966). See, e.g., United States v. Bunch, 730 F.2d 517,

518-519 (7th Cir. 1984) (Fed. R. Crim. P. 32(c) does not

require a trial judge to disqualify himself from presiding at

the defendant’s trial after reading a presentence report in

connection with a tentative guilty plea agreement); United

States v. Sonderup, 639 F.2d 294, 296-297 (Sth Cir.), cert.

denied, 452 U.S. 920 (1981) (same); United States v. Mon-

tecalvo, 545 F.2d 684 (9th Cir. 1976) (presentence report

read in connection with subsequently aborted plea of

guilty); United States v. Harris, 542 F.2d 1283, 1303-1304

(7th Cir. 1976), cert. denied, 430 U.S. 934 (1977) (presen-

tence report read in connection with prior conviction on

other charges);> United States v. Foddrell, 523 F.2d 86, 87

(2d Cir.), cert. denied, 423 U.S. 950 (1975) (same); United

States v. Small, 472 F.2d at 820-822 (same).

Nor does 28 U.S.C. 455(a), which requires a trial judge’s

disqualification “in any proceeding in which his impartial-

ity might reasonably be questioned,” support petitioner’s

3Rule 18 of the Rules of the United States Court of Appeals for the

Seventh Circuit, cited by petitioner (Pet. 5, 8), does not compel a result

different from that court’s decision in Harris or from the other authori-

ties on which we rely. It merely provides, as a matter of local procedure,

that when the court of appeals remands a case for a new trial, the case

normally will be reassigned to a new district judge. Such a requirement

is plainly not mandated by principles of law governing judicial disquali-

fication. See, e.g., United States v. Grinnell Corp., 384 U.S. 563, 583

(1966); United States v. Nelson, 718 F.2d 315, 321 (9th Cir. 1983);

United States v. Kelley, 712 F.2d 884, 890 (1st Cir. 1983); United States

v. Lyon, 588 F.2d 581, 582-583 (8th Cir. 1978), cert. denied, 441 U.S.

910 (1979).

8

claim that Judge Broderick should have disqualified him-

self in this case. That statute contemplates “personal, extra-

judicial bias or the appearance of partiality arising out of

such bias.” United States v. Phillips, 664 F.2d 971, 1002

(Sth Cir. 1981), cert. denied, 457 U.S. 1136 (1982). It does

not extend to claims of partiality resulting from informa-

tion acquired during the course of judicial proceedings. /d.

at 1002-1003. See United States v. Grinnell Corp., 384 U.S.

563, 583 (1966); United States v. Carmichael, 726 F.2d 158,

160-161 (4th Cir. 1984); United States v. Nelson, 718 F.2d

315, 321 (9th Cir. 1983).

Furthermore, Judge Broderick asserted that he had no

actual recollection of the contents of petitioner’s earlier

presentence report, and petitioner has not shown that it

would be reasonable to conclude that a judge in Judge

Broderick’s position would have such a recollection or

would appear to be biased against petitioner even if he had

such a recollection. There is therefore no reason why “a

reasonable person with knowledge of all the facts would

conclude that the judge’s impartiality might reasonably be

questioned.” United States v. Nelson, 718 F.2d at 321. See

United States v. Martorano, 620 F.2d 912, 919 (Ist Cir.),

cert. denied, 449 U.S. 952 (1980).4

4Petitioner also argues (Pet. 11-12) that, even if Fed. R. Crim. P. 32(c)

and 28 U.S.C. 455(a) did not require Judge Broderick to recuse him.elf,

application of the court of appeals’ balancing approach articulated in

United States v. Small, supra, should nonetheless have resulted in the

judge’s disqualification. The fact-bound question whether the law of the

circuit concerning an essentially procedural matter was properly

applied in a particular case plainly does not warrant further review by

this Court. Moreover, in cases where disqualification is not absolutely

required, district judges have broad discretion in ruling on recusal

motions, particularly where the motion is based upon the judge’s prior

exposure to the defendant in a judicial context, such as review of a

presentence report. See United States v. Bunch, 730 F.2d at 519 n.3.

Here, because there is no basis for questioning Judge Broderick’s asser-

tion that he had no recollection of the contents of the four-year old

9

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

Rex E. LEE

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

JOHN F. DE PUE

Attorney

OCTOBER 1984

presentence report, prepared in connection with unrelated charges, the

judge plainly did not abuse his discretion in finding that reasons of

judicial economy militated against his disqualification.

DO}J-1984-10