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UNITED STATES v. FREZZO

May 5, 1983

UNITED STATES OF AMERICA
v.
GUIDO FREZZO



The opinion of the court was delivered by: BRODERICK

 BRODERICK, District Judge.

 Defendant Guido Frezzo has moved this Judge to recuse himself from presiding over Frezzo's impending criminal jury trial in which he is charged with conspiracy and receiving stolen property. Defendant contends that this Judge's impartiality in the present case may reasonably be questioned since this Judge presided over a previous criminal jury trial of the defendant, which resulted in his conviction for violating the Federal Water Pollution Act. Prior to this Judge's sentencing of Mr. Frezzo on December 6, 1978, this Judge reviewed a presentence report and recommendation prepared by the probation office. Defendant was fined and sentenced to a 30-day period of incarceration. The defendant also contends that this Judge's exposure to adverse information about him, presented by the Government in opposition to his motion to reduce his sentence, creates an appearance of bias, as does the protracted nature of the post-trial proceedings in the prior case. *fn1" Consequently, defendant contends that this Judge must recuse himself pursuant to 28 U.S.C. § 455(a) which requires a judge of the United States to recuse himself "in any proceeding in which his impartiality might reasonably be questioned."

 We should state at the outset that defendant has not pointed to any extrajudicial conduct of this Judge in support of his motion for recusal. Nor indeed has defendant called this Judge's attention to any material in either the presentence report or in the proceedings subsequent to his prior conviction which could bias or prejudice this Judge. The Court does not recall any such information. Defendant also does not claim that any of this Judge's rulings or actions in the prior proceedings were the result of bias or prejudice, nor does defendant point to anything in those proceedings which could support a contention that this Judge has prejudged or will prejudge anything of issue in the current proceedings. The appearance of bias as claimed by the defendant is based solely upon the fact that this Judge, more than four years ago, reviewed a presentence report prior to the imposition of sentence upon defendant and presided over post-trial proceedings. This Judge has considered the contentions of the defendant, and the Government's response, and has also independently considered whether its recusal is warranted or desirable in the interests of justice. For the reasons stated below, we have determined that this Judge's impartiality cannot reasonably be questioned in this case, and that this Judge's review of the presentence report does not warrant recusal. Defendant's motion to recuse will therefore be denied.

 Although defendant has chosen to base his motion on 28 U.S.C. § 455(a), the Court does not believe that this section is applicable, since defendant has not alleged bias or prejudice resulting from any extrajudicial source. See slip op. at pp. 11-12, infra. Defendant has also, however, argued that the principles enunciated in Gregg v. United States, 394 U.S. 489, 89 S. Ct. 1134, 22 L. Ed. 2d 442 (1969), as interpreted by the Third Circuit in United States v. Small, 472 F.2d 818 (3d Cir. 1972), require recusal. Gregg and Small were both based on the prohibition, contained in Rule 32 of the Federal Rules of Criminal Procedure, of premature disclosure of presentence reports. Since the Court believes that Gregg and Small and their progeny provide the proper frame of reference for consideration of defendant's motion to recuse, we will begin with a discussion of the principles of these cases.

 In contending that recusal is required in this case, defendant places primary reliance on this Court's viewing of a presentence report concerning the defendant prior to sentencing him in December, 1978. Defendant does not contend that anything about the Court's review of the presentence report was improper or in violation of Fed.R.Crim.P. 32. Defendant contends, however, that the reasoning of dicta in Gregg v. United States supports recusal in the present case. In Gregg the Supreme Court stated that submission of a presentence report to the Court before a defendant pleads guilty or is convicted, in violation of Rule 32, "constitutes error of the clearest kind." 394 U.S. at 491-92, 89 S. Ct. at 1136. Since a presentence report may contain prejudicial non-evidentiary material presented to the judge ex parte, the Supreme Court added, strict compliance with the terms of Rule 32 is necessary to prevent "the possibility of prejudice which Rule 32 intended to avoid." Id.

 In United States v. Small, 472 F.2d 818 (3d Cir. 1972), the Third Circuit noted that the Supreme Court in Gregg was not considering circumstances, such as retrial, in which a judge would necessarily have seen a presentence report concerning the defendant before presiding over his trial. Nor, according to the Third Circuit, was the Supreme Court considering "other similar circumstances when a judge may see a presentence report on a defendant before proceeding to try him." 472 F.2d at 821. One such circumstance identified by the Third Circuit as not covered by Gregg was that in which a trial judge presides over the conviction of a defendant on one criminal offense, and sentences him, and shortly thereafter is assigned to try the same defendant on other charges. The Third Circuit suggested that in such a case the principles of Gregg require the trial judge to balance Rule 32's objective of preventing even the possibility of prejudice with the administrative convenience, simplicity of procedure and prevention of delay implicit in having a single judge preside over a defendant's court appearances. 472 F.2d at 821-22. See Advisory Comm. Notes, 1974 Amendment (decision is discretionary with the trial judge). Considering the present case in light of this test as set forth in Small, the Court has determined that the balance of competing considerations weighs against recusal.

 Any possibility of prejudice based upon a reading over four years ago of the defendant's presentence report, and the Court does not believe there is any, cannot be equated with the possibility of prejudice in the circumstances discussed by the Third Circuit in Small. Since this is not a retrial, there is no danger that the Court has learned facts from the prior proceeding involving the defendant regarding the current charges against him which might cause the Court to prejudge the issue of guilt. The Court could not, for example, have read in the presentence report any statement of the defendant's version of the events giving rise to the current charges, as might be true were this a retrial of the earlier case. In addition, over four years have elapsed since the defendant was sentenced following his conviction in the earlier trial. We do not think it reasonable to believe that the Court has retained any prejudicial information which might have been contained in the presentence report. In fact, as stated above, the Court cannot recall any adverse information that was presented about the defendant in the presentence report. This case involves fewer dangers of prejudice than does the situation identified by the Third Circuit in Small where the second trial of the defendant on unrelated charges occurs "shortly" after the first conviction and sentence. See Small, 472 F.2d at 821. While we have employed the balancing test suggested by Small, this may be more than even Small requires.

  Finally, the Court takes note of the fact that it will not be sitting as a fact-finder in the impending trial; nor has the Court made any factual findings which bear any relationship to the issues in the current proceedings. These factors also weigh against recusal. United States v. Robin, 553 F.2d 8, 10 (2d Cir. 1977); United States v. Scaccia, 514 F. Supp. 1353, 1356-57 (N.D. N.Y. 1981); United States v. Ferretti, 508 F. Supp. 913, 916 (E.D. Pa. 1981); United States v. Meinster, 488 F. Supp. 1342, 1348 (S.D. Fla. 1980) aff'd sub nom., United States v. Phillips, 664 F.2d 971 (5th Cir. 1981), cert. denied, 457 U.S. 1136, 102 S. Ct. 2965, 73 L. Ed. 2d 1354, and 459 U.S. 906, 103 S. Ct. 208, 74 L. Ed. 2d 166 (1982). As the District Court stated in Meinster :

 
During a criminal jury trial, this Court does not sit to determine the guilt or innocence of the defendants before it. That mission is the function of the jury. In contrast, the task of the Court is to answer those legal questions which arise during the course of the trial and to ensure that the trial is conducted in an orderly fashion which will protect the interests of all concerned: the defendants, the government and the community at large.

 488 F. Supp. at 1348.

 The Court also believes that the administrative and other burdens of a transfer of this case to another judge at this time would not be insubstantial. Although the case has not yet proceeded to trial on the merits, it is almost ready for trial, and a transfer could only serve to delay the proceedings. Further, the Court has already ruled on the severance motion of a co-defendant, has taken guilty pleas of three other co-defendants, and has had rather extensive involvement in the questions raised as to the competency of one of these co-defendants. The Court has also gained familiarity with the five-count indictment handed down in this case. The Court cannot, therefore, accept defendant's contention that recusal in this case would involve no delay or duplication of effort.

 In addition, administrative burdens are raised by the transfer itself, burdens which would be substantial for the court system as a whole if recusal were held to be justified on the basis of the allegations the defendant has made here. Severe burdens would be placed on the judicial system if a judge had to withdraw from a case whenever he or she had presided over proceedings in the same or a related case that provided non-evidentiary information about a defendant. United States v. Cowden, 545 F.2d 257, 265-66 (1st Cir.), cert. denied, 430 U.S. 909, 97 S. Ct. 1181, 51 L. Ed. 2d 585 (1976); United States v. Archbold-Newball, 554 F.2d 665, 682 (5th Cir. 1977), cert. denied, 434 U.S. 1000, 98 S. Ct. 644, 54 L. Ed. 2d 496 (1977). The reasoning supporting recusal in the present case could extend to require recusal where a judge heard evidence later suppressed, or presided over bail or probation revocation hearings. Such reassignment would impose unnecessary burdens, and could also, since recusal is often at the defendant's request, subvert the purpose of this Court's system of random assignment of judges to cases. See Markus v. United States, 545 F. Supp. 998, 1000 (S.D. N.Y. 1982) (condemning "judge-shopping"); United States v. Kelly, 519 F. Supp. 1029 (D. Mass. 1981). For all of the above reasons, the Court has determined that the balance of considerations in this case weighs in favor of denial of defendant's motion to recuse.

 The Court's decision not to recuse itself in the present case is supported by the holdings, and the reasoning, of virtually every case which has considered the question of recusal in similar circumstances. At least two courts have stated flatly that information contained in presentence reports properly brought to a judge's attention during the performance of his duties is not a basis for disqualifying the judge. United States v. Clark, 605 F.2d 939, 940-41 (5th Cir. 1979); United States v. Montecalvo, 545 F.2d 684, 685 (9th Cir. 1976), cert. denied, 431 U.S. 918, 53 L. Ed. 2d 229, 97 S. Ct. 2184 (1977). As the Court in Clark stated, quoting Smith v. United States, 360 F.2d 590, 592 (5th Cir. 1966), the suggestion that disqualification is proper because a judge has viewed a presentence report is "highly untenable in light of the decisions that a trial judge, who is familiar with the defendant's background by reason of having tried him in previous cases, is not thereby disqualified to try the same defendant in subsequent cases." 605 F.2d at 941. Courts have also explicitly held that where a judge is faced with a trial of a defendant whose presentence report he has read in a prior case refusal to recuse is proper. United States v. Harris, 542 F.2d 1283, 1303-04 (7th Cir. 1976); United States v. Foddrell, 523 F.2d 86, 87 (2d Cir. 1975), cert. denied, 423 U.S. 950, 46 L. Ed. 2d 286, 96 S. Ct. 370 (1976). A number of cases have also considered further proceedings in the same trial after a presentence report has been reviewed, without violation of Fed.R.Crim.P. 32, and have concluded that recusal was not required. See United States v. Clark, 605 F.2d at 942 (withdrawn guilty plea); United States v. Sonderup, 639 F.2d 294 (5th Cir. 1981), cert. denied, 452 U.S. 920, 69 L. Ed. 2d 426, 101 S. Ct. 3059 (1981), 453 U.S. 928, 102 S. Ct. 890, 69 L. Ed. 2d 1023 (1981) (same); United States v. Montecalvo, 545 F.2d at 685 (same); United States v. Lyon, 588 F.2d 581, 582-83 (8th Cir. 1978), cert. denied, 441 U.S. 910, 60 L. Ed. 2d 381, 99 S. Ct. 2005 (1979) (same, demonstrable prejudice must be shown); United States v. Bourque, 541 F.2d 290, 296 (1st Cir. 1976) (same, demonstrable prejudice must be shown); United States v. Hill, 550 F. Supp. 983, 986 n.6 (E.D. Pa. 1982) (retrial); United States v. Ferretti, 508 F. Supp. 913 (E.D. Pa. 1981) (retrial); United States v. Sepulveda, 512 F. Supp. 592 (E.D. Tenn. 1981) (retrial); United States v. Scaccia, 514 F. Supp. at 1355-56 (prior trial, judge also presided at probation revocation proceeding); But see United States v. LeFrere, 553 F. Supp. 133 (C.D. Ill. 1982) (rejected plea agreement; court exercises discretion to recuse). Finally, several cases, while not specifically discussing the problem of presentence reports, have held that prior judicial exposure to a defendant does not constitute grounds for recusal. United States v. Jackson, 201 U.S. App. D.C. 212, 627 F.2d 1198, 1207 n. 20 (D.C. Cir. 1980); United States v. Vasquez, 638 F.2d 507, 523 n.8 (2d Cir. 1980), cert. denied, 450 U.S. 970, 101 S. Ct. 1490, 67 L. Ed. 2d 620 (1981) (contention that judge should have disqualified himself ...


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