common with his brother man does not disqualify him from trying a case.' May v. May, 1912, 150 Ky. 522, 150 S.W. 685, 686, and see Wallace v. Jameson, 1897, 179 Pa. 98, at page 114, 36 A. 142.
'He must have neighbors, friends and acquaintances, business and social relations, and be a part of his day and generation. * * * the ordinary results of such associations and the impressions they create in the mind of the judge are not the 'personal bias or prejudice' to which the statute refers. The impressions, whether favorable or unfavorable, of men, which a judge receives, or his convictions about them growing out of his contact or acquaintance with them in the ordinary walks of life, cannot fall within the evil the statute designs to suppress, unless they are so strong that they result in personal bias or prejudice as to individual suitors, dominating the judge to such an extent that they beget a mental or moral condition which makes the judge willing to do wrong although he sees the right, regarding the justiciable matters brought before him, or else, though the judge's intentions be good, render him incapable of rightly seeing the justice of the cause, or impartially enforcing the right involved as between the parties to the suit.' Ex Parte N. K. Fairbank Co., supra, 194 F. at pages 989, 990.
'A defendant is easily persuaded of the prejudice of the judge. Adverse rulings convince him of the fact * * *' Craven v. United States, supra, 22 F.2d at page 608; N.L.R.B. v. Donnelly Garment Co., supra, 330 U.S. at page 237, 67 S. Ct. at page 765. Such a charge quickens the conscience of the judge and makes him more careful in discharging his duties. If there are any personal idiosyncrasies or any tendencies from the normal course of administering justice, frankly to admit such a situation is a part of wisdom. '* * * the sunlight of awareness has an antiseptic effect on prejudices.' In re J. P. Linahan, Inc., supra, 138 F.2d at page 653. 'A lively appreciation of the danger is the best assurance of escape from its threat * * *' United States v. American Trucking Ass'ns, Inc., 1940, 310 U.S. 534, at page 544, 60 S. Ct. 1059, at page 1064, 84 L. Ed. 1345, and see Cincinnati N.O. & T.P.R. Co. v. Commonwealth of Kentucky (Kentucky Railroad Tax Cases), 1885, 115 U.S. 321, at pages 334-335, 6 S. Ct. 57, 29 L. Ed. 414; and Stone J. dissenting in Morehead v. People of New York ex rel. Tipaldo, 1936, 298 U.S. 587, at page 633, 56 S. Ct. 918, 80 L. Ed. 1347, 103 A.L.R. 1445.
At best defendant's claim is a prophecy (but see Craven v. United States, supra, 22 F.2d at page 607; United States v. Valenti, supra, 120 F.Supp. at page 88; United States v. Parker, supra, 23 F.Supp. at page 883; United States v. Fujimoto, D.C.D.Hawaii 1951, 101 F.Supp. 293, 296) without basis in fact. What was said, supra, as to a ruling in the case applies with even greater force to an anticipated ruling. Allen v. Dupont, supra, 75 F.Supp. at page 549; Curtis v. United States, supra, 91 F.Supp. at page 208.
Defendant attempts to equate the foregoing incidents with the charge in the indictment, which charge, for present purposes, we must assume to be true, see footnote 13 supra, and states that he will be compelled to call the judge as a witness on his behalf. Aside from the lack of relevance and materiality, see 56 Yale L.Jnl. at 627, and the teachings contra of Borgia v. United States, 9 Cir., 1935, 78 F.2d 550, 554, certiorari denied 296 U.S. 615, 56 S. Ct. 135, 80 L. Ed. 436; Brown v. Bahl, 1934, 111 Pa.Super. 598, at pages 601-602, 170 A. 346; Commonwealth v. Musto, 1944, 348 Pa. 300, at page 304, 35 A.2d 307.
Apart from § 144, 2, U.S.C. § 455 provides, 'Any justice or judge of the United States shall disqualify himself in any case in which he has a substantial interest, has been of counsel, is or has been a material witness, or is so related to or connected with any party or his attorney as to render it improper, in his opinion, for him to sit on the trial, appeal, or other proceeding therein.' June 25, 1948, c. 646, 62 Stat. 908. See Revisers Notes, 'substantial interest' was substituted for 'concerned in interest'. See United States v. Vasilick, 3 Cir., 1947, 160 F.2d 631; Voltmann v. United Fruit Co., 2 Cir., 1945, 147 F.2d 514, 517. As to earlier provisions, see 56 Yale L.Jnl. 605, supra; Spencer v. Lapsley, 1857, 20 How. 264, at page 266, 61 U.S. 264, at page 266, 15 L. Ed. 902, Note 10 A.L.R.2d 1307.
There is nothing in the record or in the mind of the court to support any finding of a substantial interest, or that the judge could be considered a witness, material or otherwise
It has been estimated that the trial on the present indictment will take about three months. If we had additional judges such a problem would not arise. Judge Follmer has a heavy work load and has scheduled trials involving other military installations in the southern end of the district. While the judge has no desire to try any particular case or to enter upon additional onerous and burdensome duties, the only way the present case can be conveniently disposed of is for the presiding judge to try it, or request that some other judge leave his post of duty and come into the district for three or four months. The consequent overburdening of another judge should not ordinarily be countenanced. See Curtis v. United States, supra, 91 F.Supp. at page 209; Cole v. Loew's Inc., supra, 76 F.Supp. at page 877; United States v. Buck, D.C.W.D.Mo.1938, 23 F.Supp. 503, 505; United States v. Murphy, D.C.W.D.Mo.1937, 19 F.Supp. 987, at page 990; Fieldcrest Dairies, Inc., v. City of Chicago, supra, 27 F.Supp. at page 260; Benedict v. Seiberling, supra, 17 F.2d at page 841; United States v. Valenti, supra, 120 F.Supp. at page 92. As to the law of the case, see TCF Film Corp. v. Gourley, 3 Cir., 1957, 240 F.2d 711.
The protection of the rights of litigants and their confidence in the integrity of the court is both a delicate and important matter, of which this court is fully aware. The court would have no hesitancy to disqualify itself if any bias or prejudice existed whether or not alleged in any affidavit. On the other hand the court is called upon to perform a duty and should not shirk it. As Mr. Justice Douglas speaking of the judiciary said in 'We the Judges' at 445, 'Respect and prestige do not grow suddenly; they are the products of time and experience. But they flourish when judges are independent and courageous.' In another setting a great writer of our generation, speaking of certain men in the law, observed that they had that touch of hardness about their minds which would not consent to sacrificing principle for the sake of general peace and calm.
Defendant relying upon Berger v. United States, supra, 255 U.S at page 36, 41 S. Ct. at page 234, and we add Connelly v. United States, Dist. Ct. etc., 9 Cir., 1951, 191 F.2d 692, 693, Note 1, argues that failure of the judge to step aside may result in a writ of mandamus or prohibition, and we add, consequent delay, but see In re Chicago Rapid Transit Co., 7 Cir., 1953, 200 F.2d 341, at page 343, 33 A.L.R.2d 1360, discussing American Steel Barrel Co., supra, 230 U.S. at page 45, 33 S. Ct. 1010, and Skirvin v. Mesta, supra, 141 F.2d at page 671, and holding that denial of a motion to disqualify is not of itself an appealable order. In accord see Collier v. Picard, 6 Cir., 1956, 237 F.2d 234 and see Korer v. Hoffman, 7 Cir., 1954, 212 F.2d 211, 213, 45 A.L.R.2d 930, 'No logical reason appears why the refusal of a judge to disqualify falls into any different category than his refusal to dismiss a complaint for failure to state a cause upon which relief can be granted or to dismiss an indictment for failure to charge a criminal offense insofar as concerns the ability of an aggrieved party to obtain adequate relief upon appeal.' See Minnesota & Ontario Paper Co. v. Molyneaux, 8 Cir., 1934, 70 F.2d 545, 547; Cuddy v. Otis, supra, 33 F.2d at page 578; Hurd v. Letts, supra, D.C.Cir., 152 F.2d at page 122. The question was raised but undecided in In re Greene, supra, 160 F.2d at page 518, but see Gulf Research & Development Co. v. Leahy, 3 Cir., 1951, 193 F.2d 302, 303, 304, 305, affirmed by an equally divided court in 344 U.S. 861, 73 S. Ct. 102, 97 L. Ed. 668; see TCF Film Corp. v. Gourley, supra, 240 F.2d at page 714, Note 5, and LaBuy v. Howes Leather Co., 1957, 352 U.S. 249, at pages 254, 255 et seq., 77 S. Ct. 309, at page 313, 1 L. Ed. 2d 290, 'This is not to say that the conclusion we reach on the facts of this case is intended, or can be used, to authorize the indiscriminate use of prerogative writs as a means of reviewing interlocutory orders.' And see Gulf Research & Development Co. v. Harrison, 8 Cir., 1950, 185 F.2d 457, 459, and as to Connelly v. United States, Dist. Ct., supra, 191 F.2d 692, see Gladstein v. McLaughlin, 9 Cir., 1955, 230 F.2d 762, but see Pope J. at 764.
Based upon the foregoing we find that the affidavit and certificate were not timely or legally sufficient. Absent sufficient reason for disqualification, the affidavit and certificate and, because of statements therein, the brief of defendant's counsel (see Keown v. Hughes, supra, 265 F. at page 575; Green v. Elbert, 1891, 137 U.S. 615, 624, 11 S. Ct. 188, 34 L. Ed. 792; Flegenheimer v. United States, supra, 110 F.2d at page 381) will be stricken from the records of this court.
Defendant's motion will be denied.