both Mr. Flora and his attorney how often Mr. Flora had visited India with Mr. Nolan. The defendant, Mr. Flora, answered by asserting the Fifth Amendment.
Based on this Court's question to Mr. Flora at that sentencing proceeding, Mr. Nolan has moved this Court to recuse for personal bias pursuant to 28 U.S.C.A. § 144. That motion has been denied. In questioning Mr. Flora, this Court was performing a judicial function: attempting to ascertain the truth of information contained in a presentence report which would be relevant to the imposition of sentence. It in no way reflects prejudgment of or a personal bias against Mr. Nolan.
It has repeatedly been held that the bias necessary to require recusal must be personal and not judicial. See, e.g., United States v. Archbold-Newball, 554 F.2d 665 (5th Cir. 1977) rehearing denied 559 F.2d 1217, cert. denied 434 U.S. 1000, 98 S. Ct. 644, 54 L. Ed. 2d 496. In articulating this distinction, the courts have noted that what a judge learns in an earlier stage in the proceeding is not a basis for recusal, United States v. Schmidt, 604 F.2d 236 (3rd Cir. 1979). Nor is what a judge hears at sentencing proceedings of co-defendants, Hanger v. United States, 398 F.2d 91 (8th Cir. 1968) cert. denied 393 U.S. 1119, 89 S. Ct. 995, 22 L. Ed. 2d 124 rehearing denied 395 U.S. 971, 89 S. Ct. 2106, 23 L. Ed. 2d 761 or from presentence reports, United States v. Montecalvo, 545 F.2d 684 (9th Cir. 1976), cert. denied 431 U.S. 918, 97 S. Ct. 2184, 53 L. Ed. 2d 229. A review of these precedents convinces this Court recusal under 28 U.S.C.A. § 144 would be inappropriate.
MOTION TO QUASH
The defendant has moved this Court to quash either Count I, conspiracy to import morphine, or Count II, conspiracy to possess morphine with intent to distribute, on the grounds that in substance this is but one offense and that by charging him with two counts there is a violation of principles of double jeopardy. Although the defendant has raised this issue he, with refreshing candor, concedes that the resolution of this motion is controlled by Albernez v. United States, 450 U.S. 333, 101 S. Ct. 1137, 67 L. Ed. 2d 275 (1981) which is adverse to his position. In reliance upon that decision, this motion has been denied.
MOTION FOR SEVERANCE
The defendant has also filed a motion for relief from prejudicial joinder. The defendant seeks to have Counts VI and VII charging possession of morphine with intent to distribute and possession of marihuana in September of 1980 respectively and Overt Act(s) in both Counts I and II which relate to the possession of morphine in September of 1980 severed from the remainder of the first five counts of the indictment. The defendant contends that there is no proof that the morphine in question came from India, or that the hashish was from India either. Instead the defendant urges, based on his own testimony, that the morphine was secured from unindicted co-conspirator Danko within the United States, and that joinder of these Counts and allegations will unduly inflame the jury upon the first five counts. The government has resisted the motion for severance contending that Counts I through VI all involve the same narcotic, morphine, and that even if there were a severance, then evidence concerning the events of September, 1980 would be admissible under a theory rooted in Rule 404(b) of the Federal Rules of Evidence. Without prejudging the admissibility of this evidence, this Court notes there appears to be some nexus between all the Counts in this indictment and holds that the defendant has failed to make a sufficient showing of prejudice to warrant a severance.
MOTION FOR PRETRIAL RELEASE OF JENCKS MATERIAL
The defendant has filed a motion to require the government to produce statements of prosecution witnesses prior to trial. The Jencks Act, 18 U.S.C.A. § 3500, provides that a defendant is not entitled to disclosure of such statements until a witness has testified at trial. The Jencks Act has been held to be the only procedural device for a defendant to obtain statements of government witnesses. Palermo v. United States, 360 U.S. 343, 79 S. Ct. 1217, 3 L. Ed. 2d 1287 (1959). The Jencks Act has also been held not to violate due process. Id. For these reasons, this motion has been denied.
MOTIONS IN LIMINE
The defendant has filed three motions in limine to seek pretrial rulings on the admissibility of evidence. The resolution of these motions will to a large extent depend on a determination of the relevance of the subject matter of the motion. Because determinations of relevance often hinge on the context of the offer, this Court prefers to consider these matters during trial rather than in advance. For this reason, the motions have been denied without prejudice to renewal at trial.
MOTION FOR DISCOVERY
The defendant requested in his pretrial motions the answers to certain questions and follow-up questions contained in nine paragraphs of the pretrial motion. After review of those questions, the Court ordered the government to answer some of the questions and denied the remainder of the request. The questions which the government was required to answer are analagous to a bill of particulars and important to preparing a defense. However, in denying the remainder of the requests the Court was being sensitive to the need to prevent unwarranted disclosure of either the theory of the government's case and/or government witnesses prior to trial. See, e.g., United States v. Mitchell, 540 F.2d 1163 (3rd Cir. 1976), cert. denied 429 U.S. 1099, 97 S. Ct. 1119, 51 L. Ed. 2d 547 (1977). The Court's rulings on the various questions are in accordance with these general considerations.
MOTION FOR USE IMMUNITY FOR PROSPECTIVE DEFENSE WITNESSES
The last motion the Court will address at this time is the defendant's motion for immunization of certain defense witnesses. It has been established that the defendant was wanted for violation of parole; that a warrant for his arrest was issued by the United States Parole Commission on October 3, 1978; and that the defendant remained at liberty until his arrest on September 9, 1980. Additionally, the defendant testified in support of this motion that he travelled internationally while a parole violator; that to avoid detection by parole authorities he made use of fictitious passports; that his travels were motivated by his desire to import legitimate merchandise and not to import narcotics illegally; that he did use drugs; that he was not involved in international drug trafficking for profit, although he was responsible for a limited volume of international shipments of drugs, but that on these occasions personal and not financial motives prompted his actions; and that he was constantly short of money. The defendant asserts that four people, his father and mother, Mr. Flora and Mr. Mills could corroborate various portions of this testimony but that each of them would probably assert the Fifth Amendment if called as a defense witness to avoid incriminating himself or herself for aiding the defendant in avoiding arrest as a parole violator. The defendant has requested this Court to grant use immunity to these four people.
The relevant case law in this Circuit indicates that prospective defense witnesses can be immunized on either of two theories. The first theory was established in United States v. Morrison, 535 F.2d 223 (3rd Cir. 1981). Morrison held that if a prosecutor acts in such a way as to distort the fact-finding process then the prosecution could be directed to seek use immunity for defense witnesses or suffer a judgment of acquittal. Id. at 229. In the instant case the defendant has made no allegation of prosecutorial misconduct and therefore, does not appear to rely on this theory to support his motion.
Instead defendant relies on the other theory explained initially in United States v. Herman, 589 F.2d 1191 (3rd Cir. 1978) cert. denied 441 U.S. 913, 99 S. Ct. 2014, 60 L. Ed. 2d 386 (1979) and more fully explained in Government of Virgin Islands v. Smith, 615 F.2d 964 (3rd Cir. 1980). Herman noted briefly that a court may have inherent judicial power to grant use immunity to a defense witness whose testimony is essential to an effective defense. Herman, 589 F.2d at 1207. In Government of Virgin Islands v. Smith, supra, the Court articulated the preconditions to granting immunity as:
1) immunity must be properly sought;