Waterman and Feinberg, Circuit Judges, and Bartels, District Judge.*fn*
Appellant Birnbaum was convicted upon two counts, the only counts in which he was named, of a four-count indictment charging him with having conspired with others to bribe, and with having bribed, an Internal Revenue Agent. He was sentenced to serve one year on each count, the terms to run concurrently. Upon appeal to our court the conviction was affirmed, United States v. Birnbaum, 373 F.2d 250 (2 Cir.), rehearing denied, 375 F.2d 232 (2 Cir.), cert. denied, 389 U.S. 837, 88 S. Ct. 53, 19 L. Ed. 2d 99 (1967).
At the time of the imposition of the sentence on April 1, 1966, the trial judge, Judge Irving Ben Cooper, knowing that Birnbaum would seek a reversal of his conviction, as he had successfully done after a prior conviction upon the same indictment, see United States v. Birnbaum, 337 F.2d 490 (2 Cir. 1964), addressed the following remarks to him.
I feel compelled to make the observation that you have had only a nodding acquaintance with charity and communal affairs. * * * You amassed a fortune * * * Yet, you gave back nothing; nothing, other than a token contribution. You gave nothing back to your school, to your community, to your country.
For the present, then, in the light of your fame [sic] of mind, let me just add that if your conviction is sustained, this Court might, and I emphasize might, upon an impressively convincing showing that you have realized, or rather realigned, your sights and devoutly wish to give a hunk of yourself as well as your wealth in doing with constancy those acts which will really help your fellow Americans and at the same time enhance you [sic] personal well-being immeasurably, I say this Court might consider * * * a program of rehabilitation without confinement as provided for by 18 United States Code, Section 3651. (Emphasis supplied.)
So for all these reasons, in mitigation of sentence, and especially in light of the additional period of anguish to you since the verdict on the first trial, this Court adjudges you guilty as charged and convicted, and it is adjudged that [the defendant is hereby committed to the custody of] the Attorney General or his authorized representative for imprisonment for a period of one year on each count to run concurrently with each other.
Birnbaum's attorneys interpreted the court's remarks to mean that if the conviction was sustained Birnbaum could, by following the guidelines contained in the court's remarks, avoid imprisonment and receive probation.
Judge Cooper's reference to Justice Heller prompted Birnbaum to seek out Justice Heller and ask for advice on how best to follow the course seemingly suggested by Judge Cooper's remarks. Justice Heller*fn1 then approached Judge Cooper at a charity dinner and mentioned Birnbaum's case and the fact that Birnbaum was troubled because he did not know what to do in light of what Judge Cooper had said at the sentencing. Judge Cooper told Justice Heller that Justice Heller could, if he wished, provide guidance for Birnbaum. Justice Heller then suggested three charities in which Birnbaum might become active, and Judge Cooper indicated that he had no objection.
Thereafter, Birnbaum, while his appeal was pending, contributed large amounts of money*fn2 to the charities and devoted one or two days a week to their work. This fact was mentioned when Justice Heller happened later to meet Judge Cooper at the theater. According to Justice Heller, Judge Cooper said: "That is fine, that is good."*fn3
After Birnbaum's conviction had been affirmed and certiorari to the United States Supreme Court from the Court of Appeals had been denied, Birnbaum, represented by counsel, moved Judge Cooper pursuant to Rule 35, Fed.R.Crim.P. for a reduction of the one year imprisonment term and for a suspension of the imprisonment sentence. The motion was argued at length on November 15, 1967. Decision was reserved, and Judge Cooper called for an updated probation report.*fn4 On December 6, 1967, Judge Cooper filed an opinion denying Birnbaum's application. He stated that he had "given long and careful consideration to all of the facts and circumstances of this case, including the defendant's background, the nature and gravity of the offense of which he stands convicted, the probation report from which we have obtained the greatest possible assistance, the papers on which this application is predicated and the presentations of learned and able counsel," and was "satisfied that the sentence imposed on April 1, 1966, should not be disturbed."
Birnbaum then moved for a reargument of this motion. Judge Cooper considered this new motion and, on January 4, 1968, denied it after "estimating the extent of defendant's activities since imposition of sentence and weighing the justice due community and defendant alike * * *." Birnbaum timely appealed from this order.
On January 23, 1968, Birnbaum applied to the district court for an order to show cause why a writ of coram nobis should not be granted, to review and correct the sentence so as to place Birnbaum on probation, and, in any event, why, inasmuch as Birnbaum was challenging the legality of Judge Cooper's act, a hearing should not be had at which Judge Cooper would be a summoned witness, to present the relevant facts to the court. This application was heard on January 27 by Judge Inzer Wyatt who promptly denied it after extensive oral argument. This order has been appealed to this court.
The two appeals have been consolidated, several stays of execution have been granted, and appellant has not yet commenced to ...