United States Court of Appeals for the District of Columbia Circuit

“ Under section 144, the judge must determine the legal sufficiency of the affidavit required by that section accepting as true the facts stated with particularity therein. If those facts demonstrate bias, the judge must recuse himself. Section 455, since it imposes a duty directly upon the judge to evaluate his own conduct, requires no affidavit, and as noted supra, appellants did not file one in the district court. Their motion was accompanied by a memorandum of law, which contained allegations of fact that were verified by one of the defense counsel. ”

“ We choose to retain jurisdiction with the virtual certainty that a simple remand would result in a second appeal regardless of the trial judge's ultimate decision. Our purpose is twofold. First, we hope to obviate the proliferation of motions and collateral proceedings which has characterized the litigation of this and other issues related to these criminal proceedings, a profusion of paper which has sorely tried the patience of this court and the district court. Second, we seek to ensure that the documents remain under seal until the matter is again before this court. ”

“ This statement was made during discussion concerning whether statements made by some of the agents who participated in the search to government lawyers in preparation for their defense in the civil action should be made available to the appellants.
Under some circumstances, the conflict of interest will be so strong that error might result if the trial court fails to disqualify a prosecutor from participation in a case when it learns of the facts giving rise to a conflicting interest. ”

“ B. Appellant's Right to the Effective Assistance of Counsel Related to their concern that the prosecutor may use their immunized testimony in violation of their Fifth Amendment privilege, appellants forcefully argue that if the prosecutor is permitted to examine them now, their Sixth Amendment right to the effective assistance of counsel will be undermined. They fear revelation of the strategy they have worked out with their attorneys for use in any future proceedings directed against them. ”

“ To avoid incarceration, they need not persuade the district judge that any accusation against them is false; they need only abandon their unlawful resistence and testify before the grand jury. See Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 828 (1994) .
The better analogy is R. Enterprises, where the Supreme Court approved of ex parte proceedings to determine the reasonableness of grand jury subpoenas. ”

“ If appellants testify, the evidence they supply may furnish the Government with no insights into possible defense strategies beyond those that documents now in the Government's possession suggest. Nor would appellants be bound by any testimony they give in the Kember-Budlong prosecution. That testimony would not be admissible against them in any subsequent proceeding. The possibility that appellants may respond differently on another day further undercuts the Government's ability to divine later strategy from current testimony. ”

“ Defendants Kember and Budlong moved, prior to the start of their trial, to divest the federal court of jurisdiction. The District Court denied that motion, finding that federal and local counts had been properly joined in the original indictment and that, since the court had already invested substantial time in the case and the prosecution involved significant federal interests, the United Kingdom's failure to extradite Kember and Budlong on any federal offenses should not impair the court's jurisdiction. ”

“ The trial judge's conclusion that defendants were tardy in bringing their motion to recuse does not lack support in the record. Their claim that several incidents suddenly took on a different light once they learned that the trial judge had misled them concerning the reasons for the security in Los Angeles appears somewhat disingenuous. Even if we assume that those incidents are probative of prejudice or bias, we cannot believe that the dim light shed upon these matters by the discovery of an alleged falsehood perpetrated by the judge is sufficient to make the innocent appear evil. ”

“ Judicial jurisdiction denotes the political entity's power to subject a given person, thing or occurrence to its judicial processes. [4] There is in this case no absence of jurisdiction in any of these basic meanings. Congress has the undisputed power under the Constitution [5] to define the crimes involved in the pending prosecution, the U.S. Attorney's Office has undisputed authority to conduct the prosecution, and the United States (Congress) , beyond doubt, has power to commit the case to adjudication in a court of its creation. ”

“ Although en banc review is “not favored,” Fed. R. App. P. 35 (a) , and although all three panel members agreed on the result in this case—i.e., that two subpoenaed reporters can be compelled to give grand jury testimony—petitioners seek reconsideration of three issues: their assertion of a common law privilege under Federal Rule of Evidence 501; their claim to First Amendment protection; and their due process challenge to the district court’s use of ex parte evidence. ”

“ PER CURIAM Appellants, subpoenaed by the prosecution to testify in a criminal trial currently in progress in the District Court and granted use immunity for that purpose, refused to testify and were held by the District Court to be in civil contempt. They appeal that judgment and challenge its validity on a number of grounds. ”

“ Second, they contend that the court violated the Anglo-American Extradition Treaty of 1977 by admitting "evidence of facts not submitted to the British courts during the extradition proceedings" and "evidence of facts which were not the 'facts in respect of which extradition has been granted.' " Third, they argue that the district judge erred by refusing to disqualify the United States Attorneys Office, or in the alternative, members of that Office, for bias and conflict of interest. Finally, they say the court should have sustained their motion to suppress. We consider each issue in turn. ”

“ Similarly, a federal court ordinarily does not abuse its discretion when federal civil claims drop from a case after the start of trial and the court proceeds with the pendent state claims. Gibbs, 383 U.S. at 726-27, 86 S.Ct. at 1139-40.↑ While a witness may challenge a court's authority to compel his testimony and may assert testimonial privileges, we know of no case permitting a witness, on appeal from a contempt citation, to attack mere errors by the trial court. This is so even if, but for the trial court's error, the witness would not have been called to testify. ”

“ From all the circumstances it appears that a reasonable explanation of the judge's statement is that it was an inartful attempt to tell appellants that the security measures were a matter for the court and the Marshal to determine. The court also may have been motivated to protect the defendants from the damaging publicity that might have resulted from a statement by the court as to their numerous illegal acts as disclosed by the court file. In any event, in our judgment appellants have not carried their burden of establishing the appearance of prejudice. ”

“ Shepard and Jackson were clear cases; those panels had no need to distinguish between the possession of power under D.C.Code s 11-502 (3) and the discretionary exercise of that power. We, however, deal with a novel situation. Witnesses, not defendants, appear before us requesting a ruling that would halt the prosecution. [p1361] We do not embrace the assertion made by the Government at oral argument that under no circumstances may a witness held in contempt for refusing to testify question a court's power to entertain the prosecution. ”

“ Initially, we note that many of these arguments are more appropriately raised by appellants in attacking their own convictions. Similarly, any impropriety by the Government affecting the fairness of the trial of defendants Kember and Budlong may be raised by those defendants in their own right. We express no view as to the likelihood of success of such arguments should they be raised by appellants or by Kember and Budlong as defendants.
Courts have long recognized that grants of immunity are largely made at the discretion of the executive and legislative branches of the Government. ”

“ We see no justification for holding that Congress in accomplishing an end admittedly within its power is restricted to those means which are most cumbersome and burdensome to a defendant. Since it may provide the District citizen with a federal forum in which to sue the citizens of one of the states, it is hard to imagine a fairer or less prejudiced one than the regular federal courts sitting in the defendant's own state. ”

“ The record of a trial is no less a part of the proceeding than the actual examination of witnesses. Where, as here, the controversy presented to the court was limited to a single major issue the validity of the search and where the defendants contended that their claim of invalidity was proven by all the documents they caused to be admitted into evidence, making the documents available in the public record becomes even more important. Absent such access, the public's opportunity to assess the validity of the courts ruling as applied to these criminal defendants would be virtually nonexistent. ”

“ Unless these circumstances are identified and applied, any warrant authorizing a search for a particular document might, in conjunction with the plain view exception, permit "a government official to use a seemingly precise and legal warrant only as a ticket to get into a man's home, and, once inside, to launch forth upon unconfined searches and indiscriminate seizures as if armed with all the unbridled and illegal power of a general warrant." ”

“ The effect of the Fourth Amendment is to put the courts of the United States and Federal officials, in the exercise of their power and authority, under limitations and restraints as to the exercise of such power and authority, and to forever secure the people, their persons, houses, papers and effects against all unreasonable searches and seizures under the guise of law. ”

“ Granting "use" immunity thus increases the potential burden of proof the government must bear. If defendants could obtain testimonial immunity for other defendants to testify, it would inevitably snarl criminal proceedings. The imagination of defense counsel could run riot and, with the government being unable to control the extent of the witness' testimony, immunity and claims of immunity for the codefendant witness would be sprouting with every answer. ”

“ Since the right to a judgment from more than one court is a matter of grace and not a necessary ingredient of justice, Congress from the very beginning has, by forbidding piecemeal disposition on appeal of what for practical purposes is a single controversy, set itself against enfeebling judicial administration. Thereby is avoided the obstruction to just claims that would come from permitting the harassment and cost of a succession of separate appeals from the various rulings to which a litigation may give rise, from its initiation to entry of judgment. ”

“ Nothing is demanded from the State. No claim against it of any description is asserted or prosecuted. The party is not to be restored to the possession of any thing. Essentially, it is an appeal on a single point; and the defendant who appeals from a judgment rendered against him, is never said to commence or prosecute a suit against the plaintiff who has obtained the judgment. The writ of error is given rather than an appeal, because it is the more usual mode of removing suits at common law ”

“ After the court has ordered a recusant witness to testify before the Commission, there remains nothing for it to do. Not only is this true with respect to the particular witness whose testimony is sought; there is not, as in the case of a grand jury or trial, any further judicial inquiry which would be halted were the offending witness permitted to appeal. The proceeding before the district court is not ancillary to any judicial proceeding. So far as the court is concerned, it is complete in itself.
We deem it unnecessary to say more in sustaining the Circuit Court of Appeals. ”