Opposition Brief — Murphy v. United States

t |. Gupreme Court, U.S.

y : ti. aw

JAN 87 1985

No. 85-924

2

ON eee

JOSEPH F. SPANTOu

CLiwKK

In the Supreme Court of the Hnited States

OCTOBER TERM, 1985

JOHN M. MURPHY, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

CHARLES FRIED

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

KAREN SKRIVSETH

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTIONS PRESENTED

1. Whether, in the absence of any prejudice to petitioner,

he is entitled to a new trial on the ground that the actions of

the district court gave rise to an appearance of impropriety,

for purposes of 28 U.S.C. 455(b), where petitioner did not

seek to recuse the district court judge until after trial and

sentencing.

2. Whether the Due Process Clause requires that peti-

tioner’s convictions on bribery-related offenses be reversed

on the ground that the government’s conduct of its investi-

gation of corruption in the local judicial system was

improper.

3. Whether petitioner’s convictions should be reversed

on the ground that the government’s introduction of hear-

say evidence before the grand jury deprived him of his right

to indictment by an unbiased grand jury.

(1)

TABLE OF CONTENTS

Page

EE ee eee |

a aS a aan ee |

eee ee sade ces kn 06 6454 K AA awh OOS |

BEL Sass ta re Snag er )

Ea er 17

TABLE OF AUTHORITIES

Cases:

Archer v. Commissioner of Corrections,

646 F.2d 44, cert. denied, 454 U.S.

Ee en SN ae 16

Berry v. United States, 528 F.2d 1094,

cert. dented, 4279 U.S. 826 on... ccc ccs e cece: 1]

Berger v. United States, 255 U.S. 22 .......... 1]

Fredonia Broadcasting Corp. v. RCA,

Corporation, 569 F.2d 251, cert. denied,

ye ee 12

See, HA OPER, TFS FH. TOD occ ccc ccnsccces 11

Se ee Sp ren 12, 13

Hampton v. United States, 425 U.S.

AOE nen ioe a rr 14

Home Placement Service, Inc. v. Providence

Journal Co., 739 F.2d 671, cert. denied,

ee a =) a 11

Lewis v. United States, 385 U.S. 206 .......... 14

(111)

IV

Page

Cases — Continued:

Marty's Floor Covering Co. v. GAF

Corp., 604 F.2d 266, cert. denied,

ee Ee coe od oe CaRGMR OCEAN Oa eake Cae 1]

Maryland v. Macon, No. 84-778

2 BORA ree ee ere 14

People v. Best, 97 lll. App. 3d 1083,

OR ee i 4

Potashnick v. Port City Construction

Co., 609 F.2d 1101, cert. denied,

ee as eo ae WRG c Ee aa a wae Sate be 11, 12

Roberts v. Bailar, 625 F.2d 125 .........ec0.. 12

Rogers v. United States, 422 U.S.35 .......... 12

Rosenberg v. United States, 360 U.S. 367 ...... 12

Sherman v. United States, 356 U.S. 369 ....... 14

Sorrels v. United States, 287 U.S. 435 ......... 14

United States v. Agurs, 427 U.S. 97 ........... 10

United States v. Alexandro, 675 F.2d 34,

cert. denied, 459 U.S. 835 ......... cc ccc eens 17

United States v. Archer, 486 F.2d 670 ......... 16

United Siates v. Balistrieri, No. 84-2001

a, 1° * Bos, See ree )

United States v. Carpentier, 689 F.2d 21,

cert. @emsnd, 459 U.S. TIGR ow cnn cccccncecss 17

United States v. Donovan, 429 U.S. 413 ....... 12

United States v. Jannotti, 729 F.2d 213.

cert. denied, No. 83-1891 (Oct. 9, 1984) ...... 13

Page

Cases —-Continued:

United States v. Jenretie, 744 F.2d 817,

cert. denied, No. 84-1171 (May 13, 1985) ..... 13

United States v. Kelly, 707 F.2d 1460,

CONt. QUMNNG, SOG US. FOS xc ns cccccsessésens 13

United States v. Myers, 692 F.2d 823,

Cort. Games, SGl Ue FOE. con tes kcnsdwesanes 14

United States v. Ritter, 540 F.2d 459 .......... 12

United States v. Russell, 411 U.S. 423 ......... 14

United States v. Silvestri, 719 F.2d 577 ........ 13

United States v. Smith, 331 U.S. 469 2.2.0.2... 10

United States v. Weisz, 718 F.2d 413,

cert. Gemeee, G65 U.S. S627 nce cccissncnte 13

United States v. Williams, 705 F.2d 603,

Gast. Gueed, S06 U.S. TOT oc vccccivcacsece 13

Constitution, statutes and rules:

U.S. Const. :

Art. I, $6 (Speech or Debate Clause) ........ 14

Amend. V (Due Process Clause) ... 13, 14, 15, 16

seewes Ast, SS U.S. Fie vio vk veenncedss ven 2

Jenne Aah, TS UB ok cvnxasdissaicauns 12

Racketeer Influenced and Corrupt Organizations

Aah, TS Wee. Te oS awdneesreeunesces

OS WR CPOE oss dndeciesscecs savkseieeeee 2

FES me Pe ee ee fee ne 11

Vi

Page

Constitution, statutes and rules Continued:

Be UB. Ge 6a acct caeenncenseusesnes 6, 12

Me UK. GRO 0 v.0006000cencccessvenbnnseise &

Be UIA. GHMEED 80 ches cneuccgesceessanusenas 8

Fed. R. Crim. P. :

elie SE. vcccxccxsewesss meth 5,7, 8, 10

Pe SD vce cccvcccevaccvisersesenseebes 12

PRMD TOD acc accncnccesesencscwacaseees 10

Miscellaneous:

3.C. Wright, Federal Practice and

PUOGRERIOCTOGED 6.0.0:0.00060400005006n08dens 10

Inu the Supreme Court of the Rnited States

OcTOBER TERM, 1985

No. &§-924

JOHN M. MURPHY, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. la-35a) is

reported at 768 F.2d ISI8.

JURISDICTION

The judgment of the court of appeals was entered on July

19, 1985. A petition for rehearing was denied on September

27, 1985 (Pet. App. 36a). The petition for a writ of certiorari

was filed on November 26, 1985. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District Court

for the Northern District of Illinois, petitioner was con-

victed on one count of conspiring to conduct and to partici-

pate in the affairs of an illegal enterprise through a pattern

of racketeering activity, in violation of the Racketeer Influ-

enced and Corrupt Organizations Act, 18 U.S.C. 1962(d),

(i)

>

«

on seven counts of extortion, in violation of the Hobbs Act,

18 U.S.C. 1951, and on 16 counts of mail fraud, in violation

of 18 U.S.C. 1341. Petitioner was sentenced to concurrent

terms of ten years’ imprisonment on the RICO and Hobbs

Act violations and five years’ imprisonment on the mail

fraud counts. Pet. App. 8a. The court of appeals affirmed

(Pet. App. la-35Sa).

1. The evidence adduced at trial, the sufficiency of which

is not in dispute, is fully described in the court of appeals’

opinion. Pet. App. 2a-8a. It showed that petitioner, a judge

of the Cook County courts from 1972 until 1984, took

bribes in three categories of cases: traffic court cases in

which petitioner was paid a bribe by defense counsel in

order to obtain a favorable disposition; criminal cases in

which defendants were represented by attorneys known as

members of the “Hustlers Club,” who paid petitioner for

referring cases to them; and criminal cases fixed by peti-

tioner in exchange for bribes. Some of the evidence that

related to the last two categories was derived from an

undercover investigation known as “Operation Greylord,”

an investigation of official corruption in the Cook County

courts involving judges, lawyers, police officers, sheriffs,

and clerks, and in which FBI agents posed as dishonest

lawyers and litigants in staged cases.'

‘Several paragraphs of the description of the mail fraud scheme are

based in part on Operation Greylord cases (Couni |, paragraphs Md),

(e), (1), (@), (2), (kK). Counts 6 and 7 charged Hustlers Club type offenses

involving Operation Grevlord cases, petitioner was acquitted on Count

6. Six of the 1? overt acts charged in the RICO conspiracy count

involved Operation Greylord (Count 18, paragraphs 48) 13)): peti-

toner was acquitted of the substantive offenses charged as two of the

overt acts. Six of the nine extortion counts charged involved Operation

Greylord cases (Counts 22-27), petitioner was acquitted on two of those

counts (Counts 22 and 23)

3

The traffic court cases involved petitioner's actions as a

judge assigned to Cook County traffic court from 1972 to

1981. Judge Richard LeFevour, the Supervising Judge of

the traffic court, was responsible for assigning judges to

individual cases. His cousin, James LeFevour, a Chicago

police officer assigned to police court, served as an interme-

diary between Judge LeFevour and the other participants in

the scheme, including petitioner. The scheme operated as

follows: Dishonest defense counsel who sought to ensure a

favorable outcome for their clients would tell James LeFe-

vour which major traffic cases were theirs, and James

LeFevour would pass the information on to Judge Leke-

vour. In turn, Judge LeFevour would assign these cases to

those judges, including petitioner, who were willing to “see”

James LeFevour (Pet. App. 3a), and these judges wou!d

then be notified by James LeFevour which cases should be

fixed. In the cases assigned to him, petitioner would enter

not guilty verdicts, regardless of the evidence, or he would

place the defendant on “supervision,” a form of deferral

favorable for defendants, since it allowed them to avoid a

judgment of conviction, Defense counsel would then pay

the LeFevours for their services. Although petitioner did

not share in the proceeds of these payments, Judge LeFe-

vour assigned petitioner to major traffic cases more often

than other judges, thereby placing him in a position to

receive his own bribes. Between 1975 and 1980, James

LeFevour and a second police officer, Joseph Trunzo,

accepted bribes for petitioner from lawyers known as “mur-

acle workers” because they never lost drunk driving cases.

Id. at 2a-3a.

In 1981, Judge LeFevour became Presiding Judge of the

Cook County First Municipal District, a court of general

jurisdiction, and he assigned petitioner to a branch of this

ce that handled non-jury misdemeanor cases. The

: stlers Club” charges against petitioner stemmed from

4

his actions during this period. Hustlers were lawyers who

solicited business in corridors from persons who were about

to enter a courtroom. The attorneys received their fee in

these cases by persuading their clients to sign over to them

the refund on the cash deposit necessary to post bail.? In

many cases, the charges against a defendant would be dis-

missed because the arresting officer failed to appear or

because the complaining witness decided not to prosecute.

Although the defendant did not need a lawyer in those

cases, because he would be discharged anyway, the Hustlers

unethically solicited these cases, and judges such as peti-

tioner allowed these lawyers to obtain the refund for their

presence during summary dispositions. The lawyers who

comprised the Hustlers Club paid the LeFevours $2500 on a

regular basis for permitting them to solicit cases. For his

cooperation in the scheme, petitioner was able to permit

hustling by other lawyers. For instance, petitioner was paid

by attorney Arthur Cirignani for each case in which peti-

tioner allowed Cirignani to receive the bail refund. Pet.

App. 5a-6a.

Petitioner also accepted bribes in exchange for fixing a

number of criminal cases. For example, in one case he

received $300 for agreeing to suppress evidence.’ Evidence

of six other cases fixed by petitioner in exchange for bribes

was also presented at trial. These cases were part of Opera-

tion Greylord. FBI agent Terrence Hake or David Ries

appeared as a dishonest defense attorney representing an

?Under Illinois law, a defendant required to post bail may deposit

10% of the bond amount in cash. When the defendant is discharged, the

clerk will refund the cash deposit to him. The payment, known as acash

bond refund (CBR), can also be paid to defense counsel with the

consent of his client and the court. Pet. App. 4a.

>The Illinois Court of Appeals reversed the suppression order. People

v. Best, 97 Ill. App. 3d 1083, 424 N.E.2d 29 (Ist Dist. 1981); see Pet

App. 6a.

5

FBI agent acting undercover as a criminal defendant

charged with a crime and scheduled to be tried in petition-

er’s court; the complaining witness in each case also was an

FBI agent acting undercover. In these cases, after petitioner

found the “defendant” not guilty or terminated his supervi-

sion, an FBI agent, posing as defense counsel, paid James

LeFevour or another police officer $200 or $300 to be

delivered to petitioner and an additional sum for the officer.

Pet. App. 6a-8a.

2. Petitioner was tried before United States District

Judge Charles Kocoras, and he was sentenced on August 8,

1984. Nearly six months later, on February 7, 1985, peti-

tioner filed a motion seeking the recusal of Judge Kocoras

and a new trial. Petitioner’s motion was supported by his

own affidavit and that of two of his three trial counsel. In

the motion, petitioner alleged that “newly discovered

information” became available on or about August 17,

1984, that the United States Attorney, Dan Webb, who had

served as the principal triai attorney for the government in

this case, Judge K ocoras, and their families had vacationed

together at the Calloway Gardens Resort in Pine Mountain,

Georgia, shortly after petitioner had been sentenced. Peti-

tioner’s motion also alleged that the U.S. Attorney and

Judge Kocoras were “close, personal friends,” and that, if

he had known that, ne would have asked the judge to recuse

himself and declare a mistrial (Pet. App. 24a-25a; Motion 2:

Murphy Affidavit 4-5). Relying on 28 U.S.C. 455(a) and

Fed. R. Crim. P. 33, petitioner argued that his due process

and equal protection rights were abridged and that he was

entitled to a new trial because Judge Kocoras’ impartiality

might reasonably be questioned.‘ Petitioner did not claim

*28 U.S.C. 455(a) provides that:

Any justice, judge, or magistrate of the United States shall

disqualify himself in any proceeding in which his impartiality

might reasonably be questioned.

6

that Judge Kocoras harbored any actual bias or prejudice

towards him.

The record reveals that in November 1983, before peti-

tioner was indicted, Webb and Judge Kocoras reserved

adjoining cottages at Calloway Gardens for themselves and

their families for mid-August 1984 (Murphy Affidavit 4).

On December 14, 1983, petitioner was first indicted and the

case was assigned by lot to Judge Kocoras. The case was

initially scheduled to be tried by an Assistant United States

Attorney, but on May 29, 1984, Webb became lead prose-

cutor. /d. at 1-2; see U.S. C.A. Br. 71. The jury’s verdict was

returned on June 14. Sentencing was originally scheduled

for August 31, but it was later advanced to August 8 so that

the case could be completed before Judge Kocoras left on

vacation. Thereafter, Webb and Kocoras took their vaca-

tions. Pet. App. 24a-2Sa.

Ata hearing on petitioner’s motion, Judge Kocoras made

the following findings, which petitioner has not challenged:

Judge Kocoras and petitioner’s chief trial attorney, Mat-

thias Lydon, attended law school together, where they were

enrolled in a number of the same classes (3/1/85 Tr. 3-4).

Judge Kocoras first met Dan Webb in 1971 when they

became Assistant United States Attorneys in the Chicago

office, where Lydon was already working as an attorney

(tbid.). There, Judge Kocoras, Webb, and Lydon developed

close professional and personal relationships (ibid.). Peti-

tioner had been advised by Lydon before trial that the three

men had been Assistant United States Attorneys in the

same office, that Lydon and Webb had been law partners

before Webb became the United States Attorney, and that

the three men “were still friends” (id. at 5). Judge Kocoras

also found that petitioner had acknowledged that he was

Petitioner does not raise any claim under 28 U.S.C. 455(b) in the

petition.

>

aware of this friendship in the presence of the probation

officer who prepared his pre-sentence report (/d. at 5).

Judge Kocoras stated that “[w]hether Judge Murphy was

pleased with those friendships or whether he thought they

- would benefit him, I cannot say. The record in this case is

abundantly clear, however, that he was not disquieted by

them” (ibid.). Finally, Judge Kocoras noted that the fami-

lies of several persons who had served the federal govern-

ment in the Chicago area had vacationed at Calloway

Gardens for years, and that Lydon, Webb, and he had once

vacationed there together with their families (id. at 4).

Following the hearing, Judge Kocoras denied petitioner's

motion (3/1/85 Tr. 6). Rather than decide whether the

motion was untimely under Fed. R. Crim. P. 33 or should

be treated as a motion for a new trial based on newly

discovered evidence, Judge Kocoras denied petitioner's

motion on the merits (3/1/85 Tr. 6). He explained that

petitioner had been convicted by an impartial jury on the

basis of the evidence presented at trial and that he had

imposed petitioner’s sentence on the same basis (ibid.).

3. The court of appeals affirmed (Pet. App. |a-35a). The

court found that, although there was no doubt that Judge

Kocoras had in fact been impartial, the judge’s vacation

plans gave rise to an appearance of partiality, because “an

objective observer reasonably would doubt the ability of a

judge to act with utter disinterest and aloofness when he was

such a close friend of the prosecutor that the families oi

both were just about to take a joint vacation” (id. at 27a-

28a). However, the court found that the fact that petition-

er’s chief trial counsel was also a close friend of Judge

K ocoras and had vacationed with him “removes some of the

sting from the revelation about the vacation plans of the

judge and the prosecutor” (id. at 29a). While the court

declined to rule that petitioner had waived his disqualifica-

tion claim by failing to raise it until after trial (/hid.), it held

S

that the nullification of an already-completed tria! was not

an appropriate remedy in this case because 18 U.S.C. 45S(a)

contemplates only prospective disqualification due to an

appearance ot bias (id. at 30a).

As the court explained, Section 455(e) allows the deten-

dant to waive disqualification because of an appearance ot

bias but not because of actual bias. That difference, the

court reasoned, demonstrates that an appearance of impro-

pricty does not undercut personal rights and injures only

the system as a Whole (Pet. App. 31a). Therefore, given the

substantial costs to the system from overturning an other-

wise valid conviction, an appearance ot bias is not a proper

basis for reversing a conviction where the claim ts raised for

the first time after trial (bid.). That result, the court noted,

was supported by the fact that petitioner could have filed a

pre-trial recusal motion, since he was aware of the friend-

ship that Judge Kocoras, Webb, and Lydon shared, but

chose not to raise this claim (id. at 32a).

In aconcurring opinion, Judge Swygert stated that, given

the close relationship between defense counsel and Judge

Kocoras, the evidence offered in support of the motion was

not newly discovered evidence under Fed. R. Crim. P. 33.

that petitioner could have learned the facts surrounding the

relationship between the judge and prosecutor with the

exercise of due diligence, and that the failure to exercise due

diligence constituted a waiver of the right to consideration

of the merits of his recusal motion. Pet. App. 34a-3Sa.

The court of appeals also rejected petitioner’s challenges

to Operation Greylord, finding that the FBI agents played

their roles in the manufactured cases without criminal

intent, and that “Operation Greylord harmed only the cor-

rupt” (Pet. App. Ila).

rt)

ARGUMENT

1. The court of appeals held that 28 U.S.C. 455(a) does

not require an appellate court to set aside a judgment where

a motion tor recusal is not filed until after trial and the basis

for the claim ts not the presence of actual bias but that the

judge’s actions gave rise to an appearance of partiality.°

Petitioner claims (Pet. 13-21) that the court’s decision is

it.consistent with the text of 28 U.S.C. 455(a) and conflicts

with rulings trom other circuits. For several reasons. how-

ever, petitioner’s claim does not warrant review by this

Court.

First, the unusual facts giving rise to petitioner's claim are

not likely to recur with the frequency necessary to justify

review by this Court. Petitioner does not argue that the

personal friendship among Judge Kocoras, the U.S. Attor-

ney, and petitioner's principal trial counsel by itself pro-

vides a sufficient ground for disqualifying Judge Kocoras

under Section 455(a). As the court of appeals observed (Pet.

App. 26a-27a), such relationships are neither unusual nor

disfavored. It would be unrealistic to require trial judges to

abandon friendships developed before they were elevated to

the bench or to enjoin them from acquiring new ones with

counsel who appear in their court. The day-to-day man-

agement of the judicial process demands that district court

judges be able to maintain a professional relationship with

the members of the bar in order to ensure the efficient

administration of the various aspects of the criminal pro-

cess, such as the conduct of grand jury proceedings. That

some of these relationships may also be ones of friendship

should not materially affect a judge’s ability to remain

‘In Onited States v. Balistrieri, No. 84-2601 (7th Cir, Nov. 12, 1985).

slip op. 21. the court held that mandamus provides the sole remedy tor a

district courts denial of a disqualification motion under Section 45S(a)

[hat issue is not presented in this case, howeve!

10

disinterested and unbiased. [he court of appeals was there-

fore correct in rétusing to treat the well-known relationship

among the three chiel trial participants by itself as a ground

for imputing bias to Judge Kocoras. It was only the coinei-

dental timing of Judge Kocoras’ and the U.S. Attorney's

joint Vacation plars that gave the court of appeals pause,

and that fortutty is unlikely to recur.

Second, as Judge Swygert explained in his concurring

opinion (Pet. App. 34a-35a), unless petitioner's recusal

motion, which was iiled nearly six months after sentencing,

is treated as a motion for a new trial on the basis of newly

discovered evidence, that motion is untimely under Fed. R.

Crim. P. 33 and cannot provide a basis for relief, because

the period established by that rule is jurisdictional. Fed. R.

Crim. P. 45(b); United States vy. Smith, 331 U.S. 469

(1947): 3. C. Wright, Federal Practice and Procedure § 558,

at 360-361 (1982). However, petitioner has failed to meet

the test tor obtaining a new trial on the basis of newly

discovered evidence. He does not suggest that Judge Koco-

ras was actually biased or that Section 455(a) imposes a

jurisdictional limitation upon a trial court’s authority to

conduct a trial, and there can be no serious claim that the

information concerning Judge Kocoras’ and the United

States Attorney's joint vacation plans would probably have

led to his acquittal at trial. See United States v. Agurs, 427

U.S. 97, 111 (1976); 3 C. Wright, supra. § 557, at 315.

Accordingly, petitioner has failed to state a claim for reliet

under Rule 33.

hy any event, the court of appeals’ decision is correct and

does not conflict with any decision of this Court or of any

other court of appeals. Section 455(a) itself is silent on the

issue of the appropriate remedy where a disqualification

motion is not filed until after trial, and petitioner has

oftered no sound reason why his trial should be nullified at

this point in the absence of prejudice. As the court ol

4

X 1

appeals explained (Pet. App. 30a-32a), retroactively upset

ting a judgment on the ground that the trial judge's actions

gave rise Lo an appearance of impropriety ts unnecessary to

saleguard any personal rights of the losing party and need-

lessly penalizes both a successtul party and the system as a

whole. Accord Home Placement Service, Inc. vy. Provi-

dence Journal Co., 729 &.2d 671, 677, 679 (Ist Cir. 1984),

cert. denied, No, 84-844 (Jan. 21, 1985) (retusing to invali-

date damages portion of trial where a recusal motion was

filed afterwards; reversing judgment only as to award of

attorneys’ fees, which followed the filing of the motion). In

fact, ordering a new trial would be particularly inapprop-

riate in this case, given petitioner’s knowledge of the long-

Standing and open {riendship between Judge Kocoras and

the U.S. Attorney. Cf. Potashnick vy. Port City Construc-

tion Co., 609 F.2d 1101, LETS (Sth Cir.), cert. denied, 449

U.S. 820 (1980) (“a litigant should not be permitted to

utilize a disqualification issue as part of his trial strategy”);

see also Barry v. United States, 528 F.2d 1094, 1100 (7th

Cir.), cert. denied, 429 U.S. 826 (1976) (any error in judge's

failure to recuse himself was harmless where defendant did

not question fairness of trial).

The court of appeals’ decision also does not “nullif]y] the

plain language of Section 455S(a),” as petitioner suggests

(Pet. 16). Under 28 U.S.C. 144, once an affidavit is filed

alleging that a judge is actually biased, the judge must cease

acting in the case, but the filing of the affidavit does not

nullity previous actions taken by the judge. See Mariy's

Floor Covering Co. v. GAF Corp., 604 F.2d 266, 268 (4th

Cir. 1979), cert. denied, 444 US. 1017 (1980) (disqualitica

tion under 28 U.S.C. 144 is prospective only; denying

motion tor a new trial): ct. Berger v. United States, 25$§

U.S. 22. 31-32, 35 (1921) (citing with approval Ax Parte

Glasgow, 19S F. 780 (ND. Ga. 1912), which held that the

predecessor to 28 U.S.C. 144 did not provide a remedy after

the completion of trial). It would thus make little sense to

12

nullify an entire trial when only a charge of an appearance

of impropriety is made.*

Petitioner errs in claiming (Pet. 13-16) that the court of

appeals’ decision in this case contlicts with rulings from

other circuits construing @8 U.S.C. 455(a). Only one deci-

sion cited by petitioner (Pet. 15) reversed a judgment under

Section 455(a) where the claim was not raised until after

trial, Hall vy. SBA,695 F.2d 175 (Sth Cir. 1983),’ and, as the

court of appeals noted (Pet. App. 30a n.3), Hail is best

viewed as an example of actual bias imputed to the court.

There, a magistrate’s law clerk had resigned from the

detendant agency efter complaining of gender discrimina-

tion, but assisted the magistrate in deciding a gender dis-

crimination class action suit, in which she was once a

member of the plaintiff class, brought against her former

employer. When this fact was brought to his attention

before trial, the magistrate declined to recuse himself or to

disqualify his law clerk, and he allowed his clerk to assist

him draft his opinion in the case, which she continued to do

In other settings as well, this Court has refused to adopt a per se rule

requiring a conviction to be reversed because of a statutory violation.

See Rosenberg v. United States, 360 U.S. 367, 370-371 (1959) (viola-

tion of the Jencks Act, 18 U.S.C. 3500); see also Rogers vy. United

States, 422 U.S. 35, 40 (1975) (violation of Fed. R. Crim. P. 43), cf.

United States vy. Donovan, 429 U.S. 413 (1977) (violation ot federal

wiretap laws does not automatically require suppression).

’ Potashnick vy. Port City Construction Co., 609 F.2d 1101, LLTS (Sth

Cir.) cert. denied, 449 U.S. 820 (1980), expressly reserved this issue; the

court vacated the judgment because of a violation of Section 455(b),

which is not at issue here. In both Roberts \. Bailar, 625 F.2d 125, 127

(6th Cir, 1980), and Fredonia Broadcasting Corp. \. RCA Corpora-

rion, S69 F.2d 251, 254 (Sth Cir. 1978), cert. denied, 439 U.S. 859 (1978),

a pretrial disqualification motion was filed. United States v. Rutter, S40

2d 459 (10th Cir, 1976), was a pretrial mandamus proceeding. The

remaining court of appeals decisions cited by petituoner either found no

violation (or a waiver) of Section 455(a) or were concerned with Section

4SSib)

13

after accepting a job offer from the plaintiffs’ law tirm. The

court of appeals found that the magistrate erred in part in

“tailing voluntarily to disqualify himself or to insulate him-

self trom his clerk on the facts known to him betore he

rendered judgment” (695 F.2d at 180). Hall was theretore

not merely a case in which the judge's impartiality might be

questioned.

2. Petitioner contends (Pet. 21-23) that the government's

conduct of Operation Greylord was so outrageous that the

Due Process Clause requires that his convictions be set

aside.* He argues that the government's conduct amounted

to a fraud on the courts that is offensive to principles of

fundamental fairness. However, as the court of appeals

recognized (Pet. App. 9a), the conduct of the government's

investigation in Operation Greylord is not materially differ-

ent from the type of undercover operation that the govern-

ment carried out in the Abscam investigation. There, the

courts of appeals uniformly rejected the contention that the

government's conduct violated the Due Process Clause, and

this Court consistently denied review. See, e.g., United

States v. Jenretie, 744 F.2d 817 (D.C. Cir. 1984), cert.

denied, No. 84-1171 (May 13, 1985); United States v. Jan-

notti, 729 F.2d 213 (3d Cir. 1984), cert. denied, No. 83-1891

(Oct. 9, 1984); United States v. Silvestri, 719 F.2d 577, 581

(2d Cir. 1983); United States v. Weisz, 718 F.2d 413, 440-

441 (D.C. Cir. 1983), cert. denied, 465 U.S. 1027 (1984);

United States vy. Kelly, 707 F.2d 1460 (D.C. Cir.), cert.

denied, 464 U.S. 908 (1983): United States vy. Williams, 705

F.2d 603 (2d Cir.), cert. denied, 464 U.S. 1007 (1983);

*Only tive of the 24 counts on which petitioner was convicted were

based solely on Operation Greylord cases, and the sentences he received

for those counts are in each instance concurrent with the sentences he

received in actual cases

14

United States \. Mvers, 692 & 2d 823 (2d Cir. 1982), cert.

denied, 461 U.S. 961 (1983). Petitioner's claim is equally

insubstantial. ®

As the court of appeals correctly noted (Pet. App. Ya-

Ila). the government's use of undercover officers is essen-

tial to the investigation of certain crimes, such as bribery.

See Marviand vy. Macon, No. 84-778 (June 17, 1985), slip

op. 6; Lewis v. United States, 385 U.S, 206, 210 n.6(1966).

While it is true that the undercover agents conceived and

executed important aspects of the scheme to uncover brib-

ery in the local judicial process, and that the crimes charged

against petitioner would not have occurred in this manner it

the government had not been so involved, that is also rou-

tinely true of undercover operations and has never been

thought sufficient to bar a prosecution of a willing partici-

pant. It as well settled that the government does not violate

the Due Process Clause merely by providing a predisposed

defendant with the means and the opportunity to commit a

crime. See Hampton \. United States, 425 U.S. 484 (1976),

United States vy. Russell, 411 U.S, 423, 435-436 (1973):

Sherman \. United States, 356 U.S. 369, 372 (1958), Sor-

rely v. United States, 287 U.S. 435, 441 (1932). That is all

the agents did here; by acting as participants in the judicial

process, the agents here simply reproduced circumstances

likely to arise and recur in the Cook County courts and

provided judges like petitioner who were willing to be cor-

rupted with an opportunity to reveal their true colors, As

the court of appeals put uw, “[thhe Government offered

Murphy opportunities to sell the powers of his office and

disgrace himselt. He accepted with alaerity.” Pet. App. 10a

(footnote omitted),

Moreover. the Speech or Debate Clause and separation of powers

claims advanced in the Abscam cases have no counterpart here

1S

Petitioner does not contend that undercover operations

are generally forbidden; rather, his argument hinges upon

the claim that the agents* participation in cases that were

artificially created for the purpose of discovering corrupt

judges constitutes a misuse of the judicial process to bring

about aconviction. However, petitioner has failed to offer a

principled distinction between the type of investigation that

was carried out here and that performed in other circum-

stances where bribery or extortion is the focus of inquiry.

The purpose of Operation Greylord was to investigate

allegations of corruption in the Cook County judicial sys-

tem. The government's need to use undercover agents in a

manner that made them appear to be actual parties in the

judicial process was therefore obvious and indisputable.

Just as an agent must often take part in the actual sale of

narcotics to identify persons who traffic in contraband, so

too an agent must engage in acts of bribery to investigate

official corruption. Because “[c]Jases are the daily work of

courts” (Pet. App. 10a), if corruption takes place in the

judicial process, agents must necessarily provide judges

with “an opportunity suitable to their calling” (ébid.). The

undercover agents’ participation in the “cases” put together

for the purpose of their investigation was therefore entirely

appropriate; indeed, given the nature of the investigation,

the agents could scarcely have done otherwise. Accord-

ingly, unless the Due Process Clause imposes standards for

the investigation of dishonest judges that differ from those

applied in other investigations of corrupt government offi-

cials, the fact that Operation Greylord required undercover

agents to become involved in the judicial process does not

provide a basis for treating this case in a unique fashion.

Nor does it matter that the agents gave fabricated testi-

mony in the cases in dispute. The “perjury” committed in

these cases is no more offensive to due process than the

“sale” of narcotics in Lewis. In each case, as the court of

16

appeals recognized (Pet. App. 10a), the ©a.ats’ conduct ts

an indispensible element of an undercoves Operation and

does not constitute a crime because the element of scienter ts

absent. In addition, given the fact that state and local ofti-

cials were notified of the investigation (id. at Uta), there can

be no claim that the Greylord investigation offended the

local judicial process (assuming that petitioner has standing

to assert any such claim).

Petitioner erroneously asserts (Pet, 22-23) that the court

of appeals’ decision contlicts with United States v. Archer

(Archer D, 486 F.2d 670 (2d Cir. 1973). There, the court

reversed the defendants’ convictions on the ground that the

federal agents had deliberately fabricated federai ,.\visdic-

tion by making and causing the defendants to make long-

distance telephone calls that served no purpose other than

to provide the jurisdictional basis for converting a state

offense into a federal crime. Here, by contrast, “{t}he pro-

secutors did not move a state crime to a federal court by

main force” (Pet. App. 9a). Petitioner's claim is thus mate-

rially different from the claim upon which the court rev-

ersed the convictions in Archer I, his claim is that the

government unlawtully “manufactured” the crime (Pet.

App. 9a). As explained above, that claim warants no further

review.

In this regard, petitioner relies (Pet, 22-23) on dicta in

Archer 1 criticizing the conduct involved in the investiga-

tion in that case. See 486 F.2d at 674-677. However, Archer

Zexpressly reserved the guestion whether that conduct was

so offensive that the defendants’ convictions must be set

aside (id. at 677), and in Archer V. Commissioner of Cor-

rection (Archer ID, 646 F.2d 44, 46-47 (2d Cir.), cert.

denied. 454 U.S. 8ST CI98T), a state prosecution stemming

from the same investigation, the court held that the conduct

criticized in Archer J was not so OUtTAgCOUS as TOS iolate the

Due Process Clause. Moreover, since Ar her Iwas decided

1?

the Second Circuit has never ruled that the Due Process

Clause torbids the criminal prosecution of aw iling partic

pant. See. e.g. f nited States V. Carpentier, 689 F.2d 21.

2-27 (2d Cir, 1982), cert, dened, 459 US. 1108 (1983),

United States \. Alexandr, 675 b.2d 34, 9-41 (2d Cir),

cert. denied, 459 US. 835 (1982).

3. Finally, petitioner apparently contends (Pet. 23-24)

that the prosecutor's use of the hearsay statements of James

lL eFevour before the grand jury deprived him ot the right to

an indictment by a fair and unbiased grand jury. The court

of appeals correctly reyected this insubstantial claim (Pet.

App. |8a-20a), which, petitioner coneedes, entails no con-

flict among the circuits.

CONCLUSION

The petition for a writ of certiorar should be denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

Srepuen S. Prot

Assistant Altorne\ General

KAREN SKRIVSETH

dtiornes

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