The opinion of the court was delivered by: PALMIERI
By its decision in United States v. Wolfson, 558 F.2d 59 (2d Cir. 1977), the Court of Appeals affirmed the decision of this Court denying an extensive coram nobis petition filed by Louis E. Wolfson.Wolfson, petitioner herein, stands twice convicted of felonies under the federal securities laws, first as a result of a jury verdict and later by his plea of nolo contendere to a felony under a separate indictment. As some familiarity with these convictions and the seemingly endless parade of post-conviction proceedings that has followed them is essential to an understanding of this opinion, a brief review of the history of the case is set forth in a footnote.
Three motions are presently before this Court for decision. In the first, petitioner seeks leave to take the depositions of Messrs. Milton S. Gould and Seymour Glanzer, both members of the bar, for the purpose of perpetuating their testimony pursuant to Rule 27 of the Federal Rules of Civil Procedure and 28 U.S.C. § 1651. (Mr. Gould served as trial counsel for Wolfson in the Continental case. Mr. Glanzer had been employed as an attorney with the Securities and Exchange Commission.) The second motion seeks an order, under Rule 6(e) of the Federal Rules of Criminal Procedure, disclosing the testimony given by Joseph M. Glickstein, a close friend, business associate, and attorney of Wolfson's, before the grand jury which indicted petitioner in United States v. Wolfson, No. 66 Cr. 720 (the Continental case). The stated purpose of these applications is to obtain evidence upon which to base a renewed petition for writ of error coram nobis. Lastly, petitioner, having earlier informally suggested recusal, at a later date formally moved that this Court disqualify itself from these proceedings on the ground that "the impartiality of the presiding Judge... might reasonably be questioned." 28 U.S.C. § 455. These motions are considered separately below.
As appears from the foregoing, this is not the first time that this Court has had the painful duty of having to confront and resolve a suggestion of recusal in this case. Indeed, the conscientious discharge of that responsibility in the past has subjected this Court to an almost continuous barrage of attacks mounted by petitioner through a succession of attorneys from New York and Washington over a period of some eleven years. As a querulous accompaniment to his untiring efforts to overturn his conviction, petitioner has waged a campaign of vilification against this Court and the integrity of its processes
/ - a tactic only too frequent among convicted persons who prefer to blind themselves to jury verdicts and the evidence upon which their convictions rest and to make the prosecutors and the trial court appear to be their personal enemies. While the more preposterous of his assertions have been confined to the extrajudicial forum, their spirit has surfaced in the many motions for recusal that have been made, all of the allegations in support of which have been uniformly determined to be legally insufficient by this Court, the Court of Appeals, or both.
With respect to petitioner's public charges, this Court has consistently avoided any joinder of issue, despite petitioner's invitation to stand financially responsible if unable to prove them.
/ As he undoubtedly realizes, the Court cannot involve itself in civil litigation with him. Moreover, this Court lacks the support provided by the jurisprudence of other countries whose laws provide for the imposition of penal sanctions for offensive conduct or language which tend to impair judicial authority or its official standing.
With respect to the charges contained in the repeated motions for recusal, this Court has given them careful consideration and found them insufficient on several occasions to warrant the doubtful expedient of disqualification. The Court of Appeals' affirmance of the last such decision would seem to have put the matter finally to rest, were it not for a footnote contained in that Court's opinion, to wit:
Moreover, it is always open to a judge, as we pointed out in Wolfson v. Palmieri, supra, 396 F.2d at 125, to step out voluntarily. This advice is even more practical now, since the duty to sit notion has been removed from the statute... and no opprobrium should result from a judge who in good conscience chooses not to sit, even though the claim of bias is legally insufficient. ...We do not suggest that there should be further proceedings in this case, but if they do occur, the preceding advice should apply.
Any one familiar with the proceedings in this case over the past decade would have been led ineluctably to interpret this footnote as an invitation to Wolfson to undertake yet another round in his vexatious post-conviction litigation, encouraged, perhaps, by the hope that this Court would abdicate in favor of a judge unfamiliar with the distressing history of this case. He has not been slow to accept the invitation. His papers and arguments ever since the publication of this footnote demonstrate his conviction that, notwithstanding the affirmance of the dismissal of his petition, everything stated in the text of the opinion has been emasculated by this footnote and that an appellate court has now discerned the "merits" of his position.
The present motion for recusal, however, must be denied. Without attempting to write an apologia pro vita sua, this Court remains confident that it has dealt with all aspects of this litigation fairly and circumspectly. No new grounds for disqualification have been advanced, with the exception of the alleged "harassment" by the Court in directing counsel to inform Messrs. Gould and Glanzer of these proceedings and to invite their participation as amici curiae. Beyond noting the obvious and significant interest these gentlemen have in the instant motions as the intended subjects of the requested depositions, this latter charge requires little comment. The perceived threat that this "relatively simple motion may escalate into a complex multi-party litigation" is illustrative only of the hyperbole with which petitioner has routinely seen fit to embellish his papers.
One of the grounds for recusal unsuccessfully urged before the Court of Appeals, and reiterated in petitioner's most recent motion, relates to the circumstances of the imposition of sentence in the Meritt-Chapman case. These circumstances had been explained by this Court in footnote 8 of its July 23, 1975 opinion.
/ Wolfson's brief on appeal sought to make it appear that the Court forced him to leave his wife's deathbed after refusing to postpone the date of his sentence by an inconsiderate, peremptory exercise of its authority. While finding no merit to the claim, the Court of Appeals nevertheless quoted the abusive telegram sent to the court by Wolfson (and set out in full in his appellate brief), despite its absence from the litigated record; and in its recitation of facts
/ - unsupported by any reference to this Court's findings - lent an unfortunate air of credulity to Wolfson's allegations. No reference was made to any formal motion for postponement, nor to the minutes of the sentencing proceedings. Nor could any have been made. The jury verdict was returned on August 8, 1968; sentence was not imposed until December 6, 1968. When one considers that Rule 32(a)(1) of the Federal Rules of Criminal Procedure requires that "sentence shall be imposed without unreasonable delay", these dates, without more, demonstrate that the sentence was indeed postponed. In point of fact, Wolfson first complained of the December 6 sentence date only after the death of his wife and has sedulously sought to exploit their unfortunate temporal proximity ever since. This Court rests upon the explanation provided in its opinion of July 23, 1975 and can only express its dismay that its recitation of the facts was ignored in contravention of the spirit, if not the letter, of the rule that "findings of fact shall not be set aside unless clearly erroneous." F.R.Civ.P. 52(a).
Petitioner's exhaustive post-conviction efforts have caused a considerable expenditure of judicial resources, to say nothing of the time and expense inflicted upon the United States Attorney and related agencies. He has left in his wake massive and complex records which would impose a heavy burden on any judge of this court assigned to the case. All of the Assistant United States Attorneys familiar with these proceedings have resigned and the Court understands that this is largely true with respect to the personnel of the Securities and Exchange Commission. The efficient administration of justice would have been frustrated by a decision to disqualify.
The Court is aware that the so-called "duty to sit" notion has been eliminated from the disqualification statute and has not based its decision on that notion. See this Court's Memorandum Opinion of September 16, 1975, at 4-5.
/ In any event, the absence of a duty to sit does not permit this Court to countenance judge-shopping or allow itself to be driven from the case. The Supreme Court has made it clear that the standing of a ...