Petition for Writ of Mandamus, N.J. Civil No. 82-0689.
Hutchinson, Scirica, and Rosenn, Circuit Judges.
This complex appeal presents several novel questions arising out of a federal district court's continuing efforts to purge Local 560 of the International Brotherhood of Teamsters of a twenty-five year history of corruption and indignity. On December 17, 1987, the United States sought an order from Judge Harold A. Ackerman of the United States District Court for the District of New Jersey compelling the petitioners, Michael Sciarra and Joseph Sheridan, to give testimony by oral examination. The petitioners thereafter filed a cross-motion demanding Judge Ackerman's recusal pursuant to 28 U.S.C. § 455. By order dated February 8, 1988, the district court granted the Government's application, and denied petitioners' cross-motion. Sheridan and Sciarra now appeal. We affirm the district court's order compelling the petitioners to submit to oral depositions. We additionally vacate the district court's denial of petitioners' cross-motion and dismiss their appeal without prejudice.
We begin our disposition of the present appeal with an excursion into the history of its controversial antecedents. On March 9, 1982, the Government filed a civil complaint against Local 560 and twelve individual defendants alleging violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § § 1961 et seq.*fn1 See United States v. Local 560, International Brotherhood of Teamsters Chauffeurs, Warehousemen, and Helpers of America, et al., 581 F. Supp. 279 (D.N.J. 1984). Among the named individual defendants were the petitioners who at the time of suit, were members of Local 560's executive board. After a fifty-one day bench trial, the district court held that members of the Provenzano crime family, aided and abetted by Local 560's executive board, acquired an interest in and control of the union through a pattern of racketeering activity in contravention of 18 U.S.C. § 1962(b), (c) and (d).
Relying upon the expansive provisions of 18 U.S.C. § 1964, the district court proceeded to fashion an equitable remedy unprecedented in scope and in imagination. See id. at 337-38. Recognizing the likelihood of future RICO violations, the court enjoined Provenzano group defendants Stephen Andretta and Gabriel Briguglio from any subsequent affiliation with Local 560.*fn2 It additionally directed the removal of the Local's entire executive board in favor of a trusteeship designed to "foster the conditions under which reasonably free supervised elections can be held . . . ."*fn3 Id. at 337. Upon the completion of free elections, the trusteeship was to be dissolved.*fn4 Id. To further effectuate its remedy, the court retained jurisdiction over Local 560 as a nominal defendant. Id. The Local's Welfare Fund and Severance Pay Plan were, however, explicitly dismissed from the action. Finally, the court stayed the implementation of its injunctive relief pending appeal.
On December 12, 1985, we affirmed the district court's opinion in its entirety, United States v. Local 560, 780 F.2d 267 (3d Cir. 1985), and subsequently denied petitioners' applications for panel rehearing and for rehearing in banc.*fn5 Thus, on June 23, 1986, some two years after the issuance of its final judgment, the district court vacated the stay and appointed Joel R. Jacobson trustee. As a result, Sciarra relinquished his position as executive board president, an appointment he had held since October 29, 1984. Sheridan correspondingly resigned the board's vice-presidency.
In the succeeding months, the trustee acted in conformity with the district court's 1984 judgment: Peter DeCarlo was permanently enjoined from entering Local 560's premises, and Teamster Joint Council 73 was compelled to recognize the trusteeship as the functional equivalent of the Local's former executive board. On May 12, 1987, however, the court replaced Jacobson with Edwin Steir.*fn6
On December 17, 1987, the Government, relying upon 18 U.S.C. § 1964, 28 U.S.C. § 1651, and upon the 1984 judgment, applied to Judge Ackerman for an order directing Sciarra, Sheridan, and former defendant Stanley Jaronko to show cause why they should not be compelled to submit to oral depositions at the Newark, New Jersey offices of the United States Attorney. Specifically, the Government sought information regarding Local 560's operations during the two year stay period, including Sciarra's role in the de-unionization of New England Motor Freight Company, his post-1984 communications with Stephen Andretta and Matthew Ianniello concerning the continued influence of the Provenzano group on Local 560, his employment of the DiBiasi law firm*fn7 to manage Local 560's Prepaid Legal Services Plan, and his failure to institute safeguards against corrupt union practices during his two year term as president of the executive board. The Government additionally intended to depose Sheridan regarding his participation in Sciarra's appointment as president and his failure, as vice-president of the executive board, to institute safeguards against abuses by employers and by employee representatives. The Government concluded its application by acknowledging that the petitioners' testimony might indeed form the predicate "for additional relief . . . necessary in order to prevent future racketeering violations involving the continued domination . . . and exploitation . . . of Local 560."
In response to the Government's discovery request, the petitioners filed a cross-motion seeking Judge Ackerman's disqualification pursuant to 28 U.S.C. § 455(a) and (b)(1). Sheridan and Sciarra predicated their motion, in part, upon an affidavit submitted by Joel Jacobson which averred*fn8 that during the winter of 1986-1987, Judge Ackerman directed the former trustee to terminate two members of Local 560's Pension and Welfare Funds. When Jacobson expressed reluctance, the judge allegedly replied: "Joel, when it comes to members of Local 560, they're guilty until proven innocent." Jacobson added that Judge Ackerman repeated the phrase at a second meeting several days later. Jacobson's affidavit concluded by asserting that his discharge was based upon his "refusal to support [Judge Ackerman's] abandonment of the presumption of innocence for the officers and members of Local 560."*fn9
Petitioners additionally relied upon statements made by Judge Ackerman to several newspapers. In the October 8, 1987, edition of the "Bergen Record," Jacobson asserted that Judge Ackerman had directed him "to go get something on [Sciarra]." Moreover, an article appearing in the "Wall Street Journal" on February 10, 1987, quoted the judge as stating that:
Elements of the old regime are plotting to regain power. They're there, I know it . . . . It's like squeezing water out of a wash rag . . . . There's still a lot of dirty water in that rag . . . .
Finally, Sheridan and Sciarra based their motion upon a recent nationally televised CBS "60 Minutes" broadcast in which Judge Ackerman made extensive comments regarding the Local 560 litigation. For example, the judge asserted that:
Mikey Sciarra testified that he was praying for the return of Tony Pro Provenzano. Can you imagine? Here's a man who's president of a local union who knows that another individual, Anthony Provenzano, killed a fellow member of the union -- had him strangled -- was convicted of that charge -- stands convicted today of an extortion -- yet he's praying that Provenzano should return? What does it say for his character? . . . You had a police state in effect here in which democracy in this local union was just -- uh -- non-existent. They'd like to have an election which is similar to that conducted in the Soviet Union today -- one candidate, that's it.
In addition to alleging grounds for recusal based upon the appearance of partiality,*fn10 the petitioners contended that Judge Ackerman had "personal knowledge of disputed evidentiary facts" in violation of § 455(b)(1), and was related to a potential material witness in violation of § 455(b)(5)(iv). Specifically, Sheridan and Sciarra contended that the judge had extrajudicial knowledge of Local 560's Prepaid Legal Services Plan, and that he was related to Gerald Glassman, a former attorney of New England Motor Freight, whose testimony might be necessary to future litigation.
On January 28, 1988, Judge Ackerman heard oral argument on the respective motions. The judge initially considered the appropriate substantive standard for recusal under section 455(a). Relying upon our decision in United States v. Dalfonso, 707 F.2d 757, 760 (3d Cir. 1983), he noted that disqualification is mandated "when a reasonable man knowing all the circumstances would harbor doubts concerning the judge's impartiality." The judge added that evidence of impartiality must relate to extrajudicial events or sources of information, "what a judge learns through proceedings in the case from which recusal is sought does not give rise to bias . . . ." See Johnson v. Trueblood, 629 F.2d 287, 290-291 (3d Cir. 1980), cert. denied, 450 U.S. 999, 68 L. Ed. 2d 200, 101 S. Ct. 1704 (1981). Judge Ackerman next observed that section 455(a) specifies no procedural guidelines for deciding a recusal motion. Therefore, he turned to 28 U.S.C. § 144,*fn11 and in conformity with it, accepted the truth of the allegations contained in the relevant affidavits.*fn12
Considering the merits of the petitioners' cross-motion, the judge decided that the contents of the February 10, 1987, "Wall Street Journal" article failed to demonstrate the requisite extrajudicial bias. He concluded that his statements asserting "that the 'old regime' still plotted to regain power, or that more 'squeezing' was required," constituted nothing more than restatements of his earlier trial findings recognizing the need to insulate Local 560 against the continuing influence of the Provenzano group. He similarly asserted that his alleged remark instructing Jacobson "to get something on [Sciarra]" also failed to support a finding of extrajudicial bias. Judge Ackerman relied upon his prior adjudication of Sciarra's RICO liability to justify his directive to the trustee "to focus part of his energies on Mr. Sciarra in working to ensure that the Provenzano Group was out and staying out."*fn13
The judge next evaluated the prejudicial implications of his alleged statement concerning the application of a presumption of guilt to Local 560's members. Judge Ackerman found that an examination of the context in which the comment was made precluded any inference of bias. Specifically, he noted that although the alleged comment appeared to concern a discussion between Jacobson and the court about criminal trials, "the case at hand is a civil case, in which civil liability, not guilt, is ultimately at stake." The judge concluded that the comment would therefore make "no sense to a reasonable, informed person . . . ."*fn14 Finally, the judge rejected the petitioners' allegations that he had extrajudicial knowledge of a disputed fact, and that he was related to a potential material witness within the meaning of § 455(b)(iv).
Having denied petitioners' cross-motion, the district court next considered whether it had authority to compel Sheridan and Sciarra to submit to oral depositions notwithstanding their compliance with the 1984 judgment.*fn15 Initially, the court held that the Government had standing to apply for discovery without the trustee's approval. Relying upon the petitioners' continuing status as defendants to the 1984 action, and the broad authority granted by the RICO statute to effectuate appropriate relief, the court concluded that Sheridan and Sciarra could indeed be required to give testimony. An order memorializing the court's respective dispositions was executed on February 8, 1988.
On February 9, 1988, the petitioners sought a stay of the court's order pending appeal. Observing that the importance of effectuating the objectives contained in the 1984 judgment outweighed any harm that petitioners might suffer by giving testimony, the court denied the application. Sheridan and Sciarra filed a notice of appeal on February 10, 1988. On February 16, the petitioners again applied for a stay and for a writ of mandamus, this time to the court of appeals.*fn16 On February 18, we denied petitioners' application and referred all subsequent motions to a merits panel.
On February 19, the petitioners, citing Judge Ackerman's bias against them, refused to comply with the district court's discovery order. After a hearing, Judge Ackerman held both Sheridan and Sciarra in contempt, but deferred the issue of sanctions for three days. On February 22, Sheridan agreed to testify, but upon Sciarra's continued refusal to obey the order, Judge Ackerman imposed a civil sanction of $500 per day which he stayed for twenty-four hours. On February 23, Sciarra also agreed to testify and the judge vacated the contempt order. This appeal followed.
The Government raises an initial challenge to our appellate jurisdiction, arguing that the February 8 order is not appealable within the meaning of 28 U.S.C. § 1291 or any of its statutory exceptions.*fn17 The Government additionally contends that the petitioners are not entitled to a writ of mandamus based upon their failure to establish an irreparable injury, or a clear error of law. We ...