On Appeal from the United States District Court for the Eastern District of Pennsylvania (Criminal Action Nos. 88-00150-01, 88-00150-02, and 88-00150-03).
Seitz, Stapleton, and Cowen, Circuit Judges.
This appeal seeks review of an order of the district court dismissing six counts of a ten-count indictment. The government contends that the district court erred in dismissing four of these counts: Counts 3, 6, and 9, charging the defendants with obstructing the due administration of justice, and Count 10, charging the defendants with conspiring to defraud the United States. We agree and reverse.
On September 19, 1983, defendant Kevin Rankin and 13 other individuals were indicted and charged with conspiracies to distribute large quantities of heroin, cocaine, quaaludes, and marijuana as well as with unlawful use of a communication facility. After a jury trial, Rankin was convicted on all counts and was sentenced by Judge Hannum to the maximum term of 54 years in prison. Rankin appealed, arguing that the district court had erred in not granting him a continuance in order to allow counsel of his choice to participate in the trial. This court subsequently vacated Rankin's conviction on that ground and remanded the case for a new trial.
Prior to the commencement of the second trial, Rankin filed a motion pursuant to 28 U.S.C. §§ 144 & 455(a) requesting that Judge Hannum be recused from presiding over the second trial. In support of this motion, Rankin and appellees John Rankin, and Maureen Farrell, Kevin Rankin's brother and sister respectively, filed affidavits. These affidavits stated that during the first trial Judge Hannum, inter alia, chased Kevin Rankin around parts of the courtroom, as well as poked, shoved, and struck him, and interrupted, belittled, and humiliated defense witnesses.
Judge Hannum denied Rankin's motion pursuant to Section 455(a) and partially granted his motion pursuant to Section 144. Judge Hannum addressed the Section 455(a) aspect of Rankin's motion first and denied it on the ground that a reasonable person looking at the available information would conclude that the judge did not assault the defendant or chase him around the courtroom.*fn1 The court then considered the Section 144 motion. Although the court held that the affidavit was timely filed and was legally sufficient under Section 144, it found that the section's language precluded it from examining the veracity of the specific factual allegations contained in the defendant's affidavit. Consequently, the court concluded that the factual allegations in Rankin's affidavit, attesting to Judge Hannum's assaults on Rankin, were legally sufficient under Section 144 to prevent that court from proceeding further in the case until another judge had ascertained their veracity. As a result, the remaining aspects of the motion pertaining to Section 144 were referred to the Chief Judge for the Eastern District of Pennsylvania. Chief Judge Fullam, however, stating that he was bound by statute and Supreme Court precedent to accept Rankin's factual allegations as true, granted Rankin's motion without a hearing and reassigned his second trial to Judge Cahn.
The second trial commenced on October 20, 1986, and following a guilty verdict on three counts of unlawful use of a communications facility, Rankin was sentenced to ten years in prison. Subsequently, following a motion pursuant to Fed.R.Crim.P. 35, Rankin's sentence was reduced by Judge Cahn to 40 months, or time served.
On April 13, 1988, Rankin, John Rankin, and Maureen Farrell ("the defendants") were named in an indictment charging perjury arising out of statements made in their affidavits filed in support of Kevin Rankin's motion to recuse Judge Hannum. A superseding indictment was filed on May 11, 1988. Counts 3, 6, and 9 of the superseding indictment charged Kevin Rankin, John Rankin, and Maureen Farrell, respectively, with endeavoring to obstruct the due administration of justice in violation of 18 U.S.C. § 1503 (1982) (obstruction of justice) & 2 (1982) (aiding and abetting in the obstruction of justice). Count 10 charged the defendants with conspiring to defraud the United States by obstructing the lawful function of a district court through making false and deceitful representations and statements. The indictment alleged that the object of the conspiracy was to cause the issuance of a judicial order disqualifying Judge Hannum from presiding over further proceedings in U.S. v. Kevin Rankin and directing that the case be assigned to a different judge. In furtherance of the conspiracy, the three defendants were charged with signing their respective affidavits and the attachment of these affidavits to Kevin Rankin's motion pursuant to 28 U.S.C. §§ 144 & 455(a).
The defendants filed several pre-trial motions requesting either that several of the counts be dismissed or that the indictment as a whole be dismissed. The district court, in a July 26, 1988 order, granted the motions to dismiss counts 1, 3, 6, 7, 9, and 10. Counts 1 and 7, charging Kevin Rankin and Maureen Farrell with perjury, were dismissed without prejudice on the ground that the alleged perjurious acts (i.e., the signing of false affidavits) occurred in New York and the Eastern District of Pennsylvania accordingly lacked venue. Counts 3, 6, and 9, charging obstruction of justice, were dismissed because the court concluded that they did not state an offense. Finally, Count 10 was dismissed because the district court concluded that it did not contain a "plain, concise and definite statement of the essential facts constituting the offense" purported to be charged.
The texts of the three obstruction of justice counts, 3, 6, and 9, are essentially the same except for the name of the alleged perpetrator of ...