APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Crim. No. 77-00158)
Before Seitz, Chief Judge, and Aldisert and Rosenn, Circuit Judges.
The major question for decision is whether the trial judge committed plain error in failing Sua sponte to recuse himself in a non-jury trial in which appellant, president of a motor carrier corporation, was adjudicated guilty of filing false and fraudulent statements with the Interstate Commerce Commission (ICC), in violation of 18 U.S.C. § 1001. The judge had previously presided over a jury trial in which the corporation and its general sales manager had been found guilty of similar charges. We find no plain error on the part of the trial judge, and we affirm the judgment of conviction.
Appellant Harry Schreiber, represented by privately retained counsel, requested a bench trial, fully aware that the same trial judge had presided two years earlier over a jury trial in which his company, Schreiber Freight Lines, and Joseph Bruzzese, its general sales manager, had been found guilty of filing false statements with the ICC and mail fraud. Corporate counsel had represented the defendants in the prior proceedings.
On appeal, Schreiber does not challenge the efficacy of his jury trial waiver. Nor does he argue that the trial judge was disqualified as a matter of law because he presided over the separate jury trial of related defendants. Indeed, at oral argument appellant conceded that he does not challenge the precept that a judge need not withdraw from a case merely because he or she has presided in a related or companion case. See, E.g., United States v. Cowden, 545 F.2d 257, 266 (1st Cir. 1976), Cert. denied, 430 U.S. 909, 97 S. Ct. 1181, 51 L. Ed. 2d 585 (1977). Lastly, inasmuch as none of the three issues before us on appeal was raised in the district court, appellant is not contending that the trial judge erred in any ruling below.
Rather, through new counsel, appellant now contends that the failure of the judge to recuse himself was so egregious as to come within the plain error rule. "In exceptional circumstances, especially in criminal cases, appellate courts, in the public interest, may, of their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity or public reputation of judicial proceedings." United States v. Atkinson, 297 U.S. 157, 160, 56 S. Ct. 391, 392, 80 L. Ed. 555 (1936). But a litigant cannot obtain a new trial because of alleged errors to which he assented during the first trial. "Any other course would not comport with the standards for the administration of criminal justice. We cannot permit an accused to elect to pursue one course at the trial and then, when that has proved to be unprofitable, to insist on appeal that the course which he rejected at the trial be reopened to him." Johnson v. United States, 318 U.S. 189, 201, 63 S. Ct. 549, 555, 87 L. Ed. 704 (1943).
This court has been hospitable to claims of plain error in direct criminal appeals when it has been convinced that the error is "grievous," United States v. Gray, 468 F.2d 257, 259 (3d Cir. 1972), or "so fundamental in nature as to deprive a party of fundamental justice," United States v. Moore, 453 F.2d 601, 604 (3d Cir. 1971), Cert. denied, 406 U.S. 925, 92 S. Ct. 1794, 32 L. Ed. 2d 126 (1972); United States v. Dolasco, 470 F.2d 1297, 1299 (3d Cir. 1972), Cert. denied, 411 U.S. 919, 93 S. Ct. 1558, 36 L. Ed. 2d 312 (1973); United States v. Bazzano, 570 F.2d 1120, 1128 (3d Cir. 1977), Cert. denied, 436 U.S. 917, 98 S. Ct. 2261, 56 L. Ed. 2d 757 (1978), or otherwise constitutes a "manifest miscarriage of justice," United States v. Provenzano, 334 F.2d 678, 690 (3d Cir.), Cert. denied, 379 U.S. 947, 85 S. Ct. 440, 13 L. Ed. 2d 544 (1964); United States v. Grasso, 437 F.2d 317, 319 (3d Cir. 1970), Cert. denied, 403 U.S. 920, 91 S. Ct. 2236, 29 L. Ed. 2d 698 (1971); United States v. Hines, 470 F.2d 225, 229-30 (3d Cir. 1972), Cert. denied, 410 U.S. 968, 93 S. Ct. 1452, 35 L. Ed. 2d 703 (1973). Fed.R.Crim.P. 52(b).
It therefore appears that appellant's burden on a direct criminal appeal, when asserting that the failure of the trial judge to disqualify himself is plain error, may be heavier than under the accepted standard for reviewing judicial disqualification cases when the claim has first been asserted in the district court. In the latter cases the "proper inquiry on appeal is whether the district judge abused his discretion." Mayberry v. Maroney, 558 F.2d 1159, 1162 (3d Cir. 1977). See United States v. Dansker, 565 F.2d 1262, 1266-67 (3d Cir. 1977), Cert. dismissed, 434 U.S. 1052, 98 S. Ct. 905, 54 L. Ed. 2d 805 (1978).*fn1
It is against the plain error standard that we examine the specific argument of the appellant a broad based contention that the trial judge was required to disqualify himself because he was plainly not an impartial jurist as required by 28 U.S.C. § 455:
(a) Any justice, judge, magistrate, or referee in bankruptcy of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
(e) No justice, judge, magistrate, or referee in bankruptcy shall accept from the parties to the proceeding a waiver of any ground for disqualification enumerated in subsection (b). Where the ground for disqualification arises only under subsection (a), waiver may be accepted provided it is preceded by a full disclosure on the record of the basis for disqualification.
To support his contention Schreiber first cites a passage from the memorandum opinion in the corporation's trial in which the district judge wrote, "The evidence of Wurzer particularly showed how the false communications were prepared and also showed knowledge on the part of Harry Schreiber, President of the defendant corporation of the preparation of the communications in question." Appellant's Brief at 7.
Schreiber says that "(this) prior finding by the judge that was to preside as a factfinder in a subsequent trial Clearly raises a reasonable question of impartiality . . . ." Id. (emphasis added). In a review for plain error, we cannot discover in the prior finding of the district court a reasonable basis for doubting the court's impartiality. If the statement should have raised a reasonable question of disqualification, it certainly did not occur to appellant or his counsel to raise it on December 12, 1977, when appellant requested that the judge who wrote these words about him in November 1976 should sit as fact finder in his criminal trial. Section 455(e) precludes waiver of a charge of personal bias under § 455(b). The conduct of appellant in requesting the non-jury trial is relevant, however, to the question, under § 455(a), of whether the judge's "impartiality might reasonably be questioned," because disqualification under § 455(a) may be waived after full disclosure. The House report accompanying § 455 emphasized:
Disqualification for lack of impartiality must have a Reasonable basis. Nothing in this proposed legislation should be read to warrant the transformation of a litigant's fear that a judge may decide a question against him into a "reasonable fear" that the judge will not be impartial. Litigants ought not have to face a judge where there is a ...