Louis E. Wolfson and Elkin B. Gerbert v. Honorable Edmund L. Palmieri, United States District Judge for the Southern District of New York

394 F.2d 7

Louis E. WOLFSON and Elkin B. Gerbert, Petitioners,
v.
Honorable Edmund L. PALMIERI, United States district Judge
for the Southern District of New York, Respondent.

Docket 32305

United States Court of Appeals Second Circuit.

Argued May 1, 1968.
Decided May 2, 1968.

William O. Bittman, Austin S. Mittler, Hogan & Hartson, Edgar H. Brenner, Arnold & Porter, Washington, D.C., Chester Bedell, Bedell, Bedell, Dittmar & Smith, Jacksonville, Fla., for defendants-appellants, Wolfson and Gerbert.

Paul R. Grand, Asst. U.S. Atty., Robert M. Morgenthau, U.S. Atty., for appellee, United States.

Before WATERMAN, FRIENDLY and KAUFMAN, Circuit Judges.

PER CURIAM:

1

A petition for a writ of mandamus and/or prohibition having been filed herein by counsel for the petitioners and argument having been had thereon,

Upon consideration thereof, it is

2

Ordered that said petition be and it hereby is dismissed for lack of jurisdiction.

3

In United States v. Simon, 2 Cir., 393 F.2d 90, cited as a precedent for the relief sought here, the court had the power to issue a writ of mandamus (although it never became necessary for the court to do so because the district judge complied with the court's suggestion that he voluntarily recuse himself), since that application was accompanied by an affidavit of bias and prejudice. No such affidavit accompanied the instant application. Accordingly we hold that we do not have jurisdiction to entertain the application.