D.C. Misc. No. 73-169 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Seitz, Chief Judge, Hunter and Weis, Circuit Judges.
This is an appeal from an order issued September 12, 1973 by Judge John Morgan Davis of the District Court, Eastern District of Pennsylvania, which holds the appellant in civil contempt for refusing to answer questions before a grand jury after he had been given immunity under 18 U.S.C. §§ 6002, 6003 (Supp. 1973). The order has committed him to prison without bail until he agrees to testify before the grand jury. An application for release on bail pending determination of this appeal was denied by this court on September 14, 1973.
The appellant raises several objections to the civil contempt order. His most substantial claims are: first, that the immunity order, issued August 22, 1973, is ineffective because the judge who issued it was not impartial and should have disqualified himself; and second, that the appellant had the right to refuse to answer the questions propounded because they were based on wiretaps by the government which were admittedly illegal. We have concluded that these claims are not meritorious and affirm the order of the district court.
The appellant appeared before the grand jury on August 22, 1973 and refused to answer all questions (other than his name and address) invoking his rights under the Fourth and Fifth Amendments of the Constitution. He was immediately brought before District Judge Louis C. Bechtle*fn1 who, pursuant to a petition of the government, signed an order granting him immunity. The appellant was then directed to make another appearance before the grand jury, where he once again refused, on constitutional grounds, to answer any questions other than his name and address. The government's successful petition for an order of civil contempt was brought before Judge Davis as a result of this second refusal to testify.
The appellant's first contention is that the order of Judge Bechtle granting him immunity should be held ineffective, because the judge was not impartial. As a result, the appellant claims he was within his rights when he continued to refuse to answer the questions on constitutional grounds. This claim is based on the fact that prior to Judge Bechtle's appointment to the bench he was United States Attorney for the Eastern District of Pennsylvania. During his tenure, the office conducted several investigations of the appellant and brought at least one prosecution against him.
The statutory basis for disqualification is 28 U.S.C. § 455 (1970)*fn2 and under that section a federal judge must disqualify himself in any case in which he has been "of counsel". Included within the term "of counsel" is the United States Attorney for any criminal prosecution in his district. United States v. Amerine, 411 F.2d 1130, 1133 (6th Cir. 1969); United States v. Vasilick, 160 F.2d 631 (3d Cir. 1947). However, the clause is applicable only if the judge is asked to hear the same case in which he has been of counsel, Gravenmier v. United States, 469 F.2d 66 (9th Cir. 1972); United States v. Vasilick, supra, and that is not the situation before us now.
The earlier prosecution of the appellant and any investigations which were related to them are clearly different cases. Moreover, if any of the prior investigations to which appellant refers were unrelated to his earlier prosecutions, they did not result in any arrest or indictment during Judge Bechtle's tenure as United States Attorney (nor have they since). Therefore, they were not related to any "case" as that term is used in § 455. United States v. Wilson, 426 F.2d 268 (6th Cir. 1970). As a result, Judge Bechtle was never "of counsel" in this case and mandatory disqualification on this basis is not required.
Nor do we believe that the judge need necessarily have disqualified himself under the "substantial interest" clause of 28 U.S.C. § 455 (1970). First, this clause is concerned primarily with pecuniary and beneficial interest, United States v. Bell, 351 F.2d 868, 878 (6th Cir. 1965); Adams v. United States, 302 F.2d 307, 310 (5th Cir. 1962), so that at the outset it has only arguable relevance to Judge Bechtle's purported interest.
Second, the appellant contends no more than that Judge Bechtle was United States Attorney during a period in which he was prosecuted and investigated. He does not contend that, as a result, the Judge has a special interest in the outcome of this case. We agree with the Ninth Circuit that the mere fact that a judge was United States Attorney when an unrelated prosecution or investigation occurred does not by itself establish a "substantial interest" under § 455. Gravenmier v. United States, 469 F.2d 66 (9th Cir. 1972). We refuse to adopt such a per se, mandatory disqualification rule in this area.
Finally, we should point out that the only function performed in this case by Judge Bechtle was to issue the immunity order under 18 U.S.C. § 6003 (Supp. 1973). Under the language of this section the judge is required to issue the order when it is properly requested by the United States Attorney. He is given no discretion to deny it. See Licata v. United States, 429 F.2d 1177, 1179 (9th Cir. 1970) (interpreting 18 U.S.C. § 2514, an analogous immunity statute). As a result, even if we were to assume that Judge Bechtle had a special interest in these proceedings, he could not in fact ...