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May 9, 1958

John P. GILBOY, Jr., William J. Green, Jr., Joseph Rochez, Frederick J. Raff, Robert W. Brown, John B. Kemmel, Herbert J. McGlinchey

The opinion of the court was delivered by: MURPHY

Defendant, William J. Green. Jr., charged with conspiracy to defraud the United States, 18 U.S.C. § 371, *fn1" purporting to comply with 28 U.S.C. § 144, *fn2" made and filed an affidavit asserting his belief that the judge before whom the matter is pending is 'personally prejudiced against' him. Therewith was a certificate of counsel that the affidavit was made in good faith. Defendant moves that the judge proceed no further herein; that another judge be assigned to hear such proceeding.

The government moves to strike the affidavit as not timely or legally sufficient. Defendant contends (1) a motion to strike is not proper; that the motion to disqualify is an ex parte proceeding; (2) that there is no authorization for any party to move or request that any particular judge be assigned to hear such proceeding. *fn3"

 In this district we have only two full time judges. At Scranton we have a March and October term. The court is always open for business. July trials are held throughout the year. While the same judge was presiding: the grand jury returned the present indictment; *fn4" upon the court's order defendant was arrested; arraigned in open court, defendant plead not guilty *fn5" and moved to dismiss the indictment, for a bill of particulars, and for a severance of his trial from that of the other defendants, to transfer the place of trial from Scranton to Harrisburg, and for discovery and inspection. After hearing arguments on all of defendant's motions, *fn6" the court advised counsel that, once the motions were disposed of, all open cases would be listed for trial, and suggested the possibility of a pre-trial. February 6, 1958, by written opinion *fn7" and orders, all of defendant's motions were denied, except that a modus operandi as to discovery and inspection, within a defined area, was suggested with assurance that a definitive order would follow if a mutually satisfactory plan was not evolved. The case was otherwise ready for trial at the March term which would commence March 17, 1958.

 March 5, 1958, Attorney James E. O'Brien, of counsel for defendant, having inquired and being advised that the case would be listed for trial at the March term and that in all probability the same judge would preside, stated that he was authorized by his co-counsel and defendant to advise that they were contemplating challenging the capacity of the judge to preside at the trial of this case.

 During the afternoon of March 7, 1958, Attorney O'Brien informed the Clerk's office that he was expecting some papers from Philadelphia and asked if the office would remain open after the usual closing hour -- 5:00 P.M. -- so that the papers might be filed. At 4:46 P.M. Attorney O'Brien advised the court he had just filed an affidavit, a certificate and a brief; that only two complete copies and one rough incompleted copy were received by him, apparently only moments before; that there was no copy for the court except the file copy -- which being a public record should be available to all; and inquired whether the other copy should be served on the United States Attorney or the Attorney General, although the practice for years has been to serve a copy of all papers on each.

 The mere filing of such an affidavit does not automatically disqualify the judge. Behr v. Mine Safety Appliances Co., 3 Cir., 1956, 233 F.2d 371, 372, certiorari denied 352 U.S. 942, 77 S. Ct. 264, 1 L. Ed. 2d 237. The judge has a duty, In re Greene, 3 Cir., 1947, 160 F.2d 517, 518, to examine the affidavit and certificate to determine whether or not they are the affidavit and certificate specified and required by the statute -- timely and legally sufficient. Berger v. United States, 1921, 255 U.S. 22, 32, 41 S. Ct. 230, 65 L. Ed. 481; Ex parte N. K. Fairbank Co., D.C.M.D.Ala. N.D.1912, 194 F. 978, at page 990. If the requirements are fully met the judge must step aside and another judge be assigned. If, however, they are not fully met, the judge has a duty to continue to preside and not permit a party by sheer whim to select and judge before whom him case shall be tried. *fn8" Curtis v. United States, D.C.D.N.J.1950, 91 F.Supp. 206, 209; Allen v. Dupont, D.C.D.Del.1948, 75 F.Supp. 546; 548; United States v. Valenti, D.C.D.N.J.1954, 120 F.Supp. 80, at pages 84, 89; United States v. Pendergast, D.C.W.D.Mo.1940, 34 F.Supp. 269; Fieldcrest Dairies, Inc., v. City of Chicago, D.C.E.D.Ill.1939, 27 F.Supp. 258, at page 260; Benedict v. Seiberling, D.C.N.D.Ohio 1926, 17 F.2d 831, 841; Trucker v. Kerner, 7 Cir., 1950, 186 F.2d 79, at page 85, 23 A.L.R.2d 1027; Eisler v. United States, 1948, 83 U.S.App.D.C. 315, 170 F.2d 273, 278, certiorari dismissed 338 U.S. 883, 70 S. Ct. 181, 94 L. Ed. 542: Morse v. Lewis, 4 Cir., 1932, 54 F.2d 1027, 1031

 § 144 provides, 'The affidavit 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 * * *.' The Revisers Notes indicate that the words 'at which the proceeding is to be heard' were added to clarify the meaning of 'before the beginning of the term'. *fn9"

 A statute can rarely provide in express terms for all possible contingencies. Congress and the people must depend upon the courts to give statutes such interpretation as will express their spirit and tenor. Congress did not intend to make the right to disqualify unlimited and arbitrary. See and cf. Ex parte N. K. Fairbank Co., supra, 194 F. at page 1000. Although the statute is remedial, because of its nature and the possibilities of abuse, the orderly administration of justice requires that the affidavit and certificate be strictly construed and the terms of the statute strictly followed. Cole v. Loew's Inc., D.C.S.D.Cal.1948, 76 F.Supp. 872, at page 875, affirmed Loew's Inc. v. Cole, 9 Cir., 1950, 185 F.2d 641, 656, certiorari denied 340 U.S. 954, 71 S. Ct. 570, 95 L. Ed. 688; United States v. Parker, D.C.D.N.J.1938, 23 F.Supp. 880, at page 882, affirmed 3 Cir., 1939, 103 F.2d 857; United States v. Valenti, supra, 120 F.Supp. at page 83; Curtis v. Utah Fuel Co., D.C.D.N.J.1944, 59 F.Supp. 680, affirmed 3 Cir., 1944, 148 F.2d 340; United States v. Flegenheimer, D.C.D.N.J.1935, 14 F.Supp. 584, at page 592, affirmed 3 Cir., 1936, 110 F.2d 379; Marquette Cement Mfg. Co. v. Federal Trade Commission, 7 Cir., 1945, 147 F.2d 589, 592; Fieldcrest Dairies, Inc., v. City of Chicago, supra, 27 F.Supp. at page 259; Scott v. Beams, 10 Cir., 1941, 122 F.2d 777, at pages 787, 788, certiorari denied Brady v. Beams, 315 U.S. 809, 62 S. Ct. 794, 86 L. Ed. 1208; Skirvin v. Mesta, 10 Cir., 1944, 141 F.2d 668, 672; Newman v. Zerbst, 10 Cir., 1936, 83 F.2d 973, at page 974; Burall v. Johnston, D.C.N.D.Cal.1943, 53 F.Supp. 126, 128, affirmed 9 Cir., 1944, 146 F.2d 230, certiorari denied 325 U.S. 887, 65 S. Ct. 1567, 89 L. Ed. 2001; Craven v. United States, 1 Cir., 1927, 22 F.2d 605, 608; In re Federal Facilities Realty Trust, D.C.N.D.Ill.1956, 140 F.Supp. 522, 524; Cuddy v. Otis, 8 Cir., 1929, 33 F.2d 577, at page 578; Beland v. United States, 5 Cir., 1941, 117 F.2d 958, at page 960; United States v. 16,000 Acres of Land, etc., D.C.D.Kan.1942, 49 F.Supp. 645, 651, 653; Nations v. United States, 8 Cir., 1926, 14 F.2d 507, at page 509; see and cf. Allen v. Dupont, supra, 75 F.Supp. at page 549. While the result is in agreement with other federal cases, see Id., 75 F.Supp. 550, in this particular Allen v. Dupont stands alone.

 The indictment was returned and the arrest made in the October 1956 term; the arraignment and defendant's motions seeking affirmative relief and arguments thereon in the March 1957 term; the opinion and orders denying defendant's motions during the October 1957 term. It was not until after defendant failed to obtain favorable rulings on his motions, to receive special treatment or a 'sign of recognition' at the arraignment *fn10" that he decided to file the affidavit and certificate seeking disqualification based upon matters which allegedly had occurred and were known to the defendant some years before the return of the indictment. No cause was shown for the delay.

 Ex parte American Steel Barrel Co., 1913, 230 U.S. 35, at page 44, 33 S. Ct. 1007, at page 1010, 57 L. Ed. 1379, teaches that the section, applicable only in rare instances, '* * * was never intended to enable a discontented litigant to oust a judge because of adverse rulings made, for such rulings are reviewable otherwise, but to prevent his future action in the pending cause. Neither was it intended to paralyze the action of a judge who heard the case, or a question in it, by the interposition of a motion to disqualify him between a hearing and a determination of the matter heard * * *.' (Italics supplied).

 And see Berger v. United States, supra, 255 U.S. at page 31, 41 S. Ct. at page 232.

 'The statute, by its express terms, requires diligence in filing * * * and does not permit a litigant, after he has knowledge of the alleged bias or prejudice * * * without notice, to go forward in the cause before filing such affidavit after the facts of disqualification are known to him.' Refior v. Lansing Drop Forge Co., 6 Cir., 1942, 124 F.2d 440, at page 445. 'An affidavit filed long after the time fixed by the statute, and after the party * * * has participated in proceedings and has invoked or sought to invoke the affirmative action of the court in his behalf, without any cause being shown for the delay, does not comply with the exaction of the statute in respect of time.' Skirvin v. Mesta, supra, 141 at page 672, and see Chessman v. Teets, 9 Cir., 1956, 239 F.2d 205, at page 215; Callwood v. Callwood, D.C.D. Virgin Islands, 1954, 127 F.Supp. 179, at page 183; Tennessee Pub. Co. v. Carpenter, 6 Cir., 1938, 100 F.2d 728, at page 734, certiorari denied 306 U.S. 659, 59 S. Ct. 775, 83 L. Ed. 1056.

 'Any well functioning system * * * should * * * require immediate challenge to the eligibility of the judge as soon as the facts leading to apprehension of bias become known; strict compliance upon waiver in the absence of such protest is necessary to prevent last minute 'discovery' of bias * * *.' Note 15 Yale L. Jnl. 169 at 175, and see 30 Am.Jur. Judges, § 95, 48 C.J.S. Judges § 95b. 'Promptly on * * * discovery * * *' Id. 94c; 'with reasonable promptitude * * *' Scott v. Beams, supra, 122 F.2d at pages 788, 789; 'at the nearest available time * * *' Shea v. United States, 6 Cir., 1918, 251 F. 433, 435, certiorari denied 248 U.S. 581, 39 S. Ct. 132, 63 L. Ed. 431; Lipscomb v. United States, supra, 33 F.2d at page 34; Bommarito v. United States, 8 Cir., 1932, 61 F.2d 355, 356; Hibdon v. United States, 6 Cir., 1954, 213 F.2d 869; Chafin v. United States, supra, 5 F.2d at pages 594, 595, and see and cf. Agnew v. United States, 1897, 165 U.S. 36, at page 44, 17 S. Ct. 235, 238, 41 L. Ed. 624. '* * * defendant must take the first opportunity in his power to make the objection.'

 '* * * the circumstances were such as to justify belief that the affidavit was purposely held back, and its use on the eve of trial resorted to for the purpose of securing a postponement.' Shea v. United States, supra, 251 F. at page 435.

 Timeliness is a matter of substance not merely one of form. United States v. Parker, supra, 23 F.Supp. at page 885; United States v. 16,000 Acres of Land, etc., supra, 49 F.Supp. at page 656. The privilege is waived by failure to use due diligence. Kramer v. United States, 9 Cir., 1948, 166 F.2d 515, at page 518; Laughlin v. United States, 1945, 80 U.S.App.D.C. 101, 151 F.2d 281, at page 284; Taylor v. United States, 9 Cir., 1950, 179 F.2d 640, 642; Coltrane v. Templeton, 4 Cir., 1901, 106 F. 370, at pages 376, 377; Neil v. United States, 9 Cir., 1953, 205 F.2d 121, 125; Utz & Dunn Co. v. Regulator Co., 8 Cir., 1914, 213 F. 315, at page 319; 48 C.J.S. Judges § 95b, supra; 30 Am.Jur. Judges, § 95; cf. Borough of Hasbrough Heights, N.J. v. Agrios, D.C.D.N.J.1935, 10 F.Supp. 371, 374.

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