This is an appeal from the denial by the trial court in a Section 2255 proceeding of a motion to set aside a verdict and sentence of the two appellants who were convicted of perjury in connection with a trial in which Z. A. Adams had previously been indicted and tried for a liquor violation. The ground of the motion for setting aside the conviction and sentence under Section 2255 is that the trial judge who presided at the perjury trial as the result of which the appellants are now serving a sentence was, at the time of the trial of the liquor violation case, the United States Attorney for the district in which the earlier trial was being conducted. Thus it is that the perjury of which the jury in the present case found Adams and his wife guilty was committed during a trial commenced by the United States at a time when the District Judge, Honorable G. Harrold Carswell, was the duly named and acting United States Attorney.
On April 10, 1958, Z. A. Adams was put on trial for a liquor violation. In the course of the trial he testified to certain facts tending to establish an alibi. The jury was unable to agree and a mistrial was subsequently entered. On the date of this trial, Honorable G. Harrold Cars-well was the duly qualified and acting United States Attorney for the Northern District of Florida, the District in which the trial took place. For the purpose of this appeal it may be conceded that Judge Carswell did not, at the time of the trial on April 10th, or thereafter pri- or to his becoming United States Judge, have any personal knowledge of the facts which subsequently caused the United States to seek and obtain an indictment against Adams and his wife for perjury committed on April 10th. Judge Cars-well resigned as United States Attorney on April 17, 1958, and on April 18th, the following day, he was appointed United States District Judge. The file touching on an investigation into the testimony *309given by Adams and his wife on the earlier trial was opened subsequent to April 18th. A report of investigation was made later and the case against Adams and his wife was presented to the Grand Jury in September, 1958, at which time the couple were both indicted for perjury -committed on the April 10th trial.
The perjury indictment duly came on for trial before Judge Carswell; no motion was made by the defendants touching on Judge Carswell’s prior occupancy of the position of United States Attorney; the matter was not brought to his attention, nor was it in any way alluded to during the trial which resulted in the conviction of Adams and his wife for perjury, and his being sentenced to three years and her being sentenced to one year in the penitentiary. An appeal from these convictions was duly prosecuted and the convictions were affirmed by this Court, and it was not until after the commencement of the sentences that counsel for the appellants filed the present motion to set aside the judgment of conviction and sentence on the ground that the trial judge was disqualified.
The disqualification statute, relied on by the appellants, is 28 U.S.C.A. § 455, which provides:
“Any justice or judge of the United States shall disqualify himself in any case in which he has a substantial interest, has been of counsel, is or has been a material witness, or is so related to or connected with any party or his attorney as to render it improper, in his opinion, for him to sit on the trial, appeal, or other proceeding therein.”
Appellants then point to the Section of the Code that makes it the duty of the United States Attorney “* * * to prosecute for all offenses against the United States * * 28 U.S.C.A., § 507, and counsel argues from this that the present prosecution for perjury is either a case in which Judge Carswell “has a substantial interest,” or it is a case in which Judge Carswell “has been of counsel.”
It may well be, as contended for by appellants, that if there has been an absolute technical disqualification, that is a disqualification that follows as a matter of course, a disqualification of a trial judge raised only after conviction and sentence might still be the basis of a motion to set aside a conviction under Section 2255, even though knowledge of the disqualification had been brought to the moving party and he had failed to bring it to the attention of the Court. In this connection see William Cramp & Sons Ship & Engine Building Co. v. International Curtiss Marine Turbine Co., 228 U.S. 645, 33 S.Ct. 722, 57 L.Ed. 1003, dealing with the statutory disqualification of an appellate judge. However that may be, we think it clear that a disqualification that depends upon proof that the judge had a “substantial interest” in the case before him could be waived by the parties if not made the basis of a timely motion. Here appellants seek to avoid the effect of a waiver by asserting in their motion:
“11. That the Petitioner, a resident of Bainbridge, Georgia, was not aware that the trial judge in Marianna Criminal Number 1467 was the United States Attorney on February 7, 1958 and on April 10, 1958 and was not aware of the significance of these facts during the trial of Marianna Criminal Number 1467 on December 7, 8, 1959 and/or during the period of her appeal subsequent thereto. The Petitioner first became aware of these facts and significance thereof on June 9, 1961.” (Emphasis added.)
It will be noted that the only basis for appellants now asserting that they did not waive any possible disqualification of Judge Carswell at the time of the trial on December 7 and 8, 1959, is the statement that the petitioner “* * * was not aware of the significance of these facts during the trial of Marianna Criminal Number 1467 on December 7, 8, 1959 * * #» of course, counsel for the appellants at the time of the perjury trial have not denied, and they doubtless *310are unable to do so, that they knew of the fact that the judge then sitting had been United States Attorney at the time that the alleged perjury had been committed. There is no showing of any kind as to why counsel who represented the appellants on this trial did not at the time of trial challenge the right of the district judge to sit, other than the statement in the motion to set aside the judgment, prepared and signed by other counsel to the effect that appellants were not aware of the significance of the facts at the time of trial.
It is plain, we think, that there was no absolute disqualification arising from the fact that the district judge had been “of counsel” in the perjury case before he became a district judge. This follows as a matter of course because this case was not commenced until months after he had resigned as United States Attorney. Thus it is clear, we think, that the judge was not disqualified on the ground of having “been of counsel in” the case which he was then trying.
This, of course, does not dispose of the case, for the trial judge is still subject to disqualification if he had “a substantial interest” in the case which he was then trying. Although it is doubtless true that the term “substantial interest” normally refers to a pecuniary or beneficial interest of some kind, we construe the language broadly enough to comprehend the interest that any lawyer has in pushing his case to a successful conclusion. However, for this “interest” to arise, there must, as a minimum, be knowledge on behalf of the judge that the ease is one that fits within the category. In the interest of making absolutely certain that the trial judge acts with complete impartiality, we might well hold, if such a record were before us, and we have little doubt but that the distinguished trial judge himself might have held, on such a record, that if he had known at the time he tried the Adams case for perjury Adams had previously been prosecuted by his office in the case in which the alleged perjury occurred, it would be appropriate for the-district judge to bow out of the case. This would be such a case, we think, as Roberson v. United States, 5 Cir., 249 F.2d 737, where this Court stated a test to be “a prior knowledge of the facts, or a prior interest in an issue arising out of them * * Here there was-neither prior knowledge of the facts nor prior interest in an issue arising out of the fact, since it is taken as conceded on this record that Judge Carswell knew nothing about having had any prior connection with either Adams or his wife at the time he presided over the perjury trial as to which this motion is now presented.
Even if this were not the case, we do-not think justice would be served were-we to hold that the appellants’ trial counsel who, so far as this record is concerned, had full knowledge of what is now charged to be the inconsistent position of the trial judge, could simply ignore this matter and fail to cull it to the attention of the trial court until after conviction and sentence, and thus set the stage for a motion to set aside the conviction on the ground that the trial judge should have disqualified himself on the-basis of facts of which he was not aware, or that his failure to do so nullifies the trial on a motion under Section 2255.
Affirmed.