# Opposition Brief — Frezzo v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2949%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1984
- **Citation:** 469 U.S. 979

## Text

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
| MEIN kv cst ee ccvccccissccvceteseceens I
ES EE ee re l
rr re i i ciweckbadicsccrecioe l
nee ee i aaa bea ea eek eee ek 2
EES Ee ee 5
EES UE gt nar ae 4
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. :
Pe a I is db chs bS uw eddesdscned 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2949%3A2. Public record. Not legal advice.