(D.C. Criminal No. 72-433) APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Before SEITZ, Chief Judge, ALDISERT and ADAMS, Circuit Judges
Defendant appeals his conviction by a jury and a resulting thirty month sentence for violations of the Selective Service Act.
About a month before trial, the defendant filed an affidavit under 28 U.S.C. § 144 (1971) seeking to disqualify the district judge for personal bias against him. In his affidavit, he characterized himself as a black militant. He stated his refusal to cooperate with the Selective Service System was because as a black man, he viewed the Armed Forces as the racist arm of an imperialistic nation. Additionally, he attached to his affidavit a copy of another affidavit filed by an attorney in a separate Selective Service case tried before the same judge. That attorney's affidavit recited:
[During] a conversation with the [judge] in his chambers, that [judge] stated that in cases of Selective Service violation, it is his policy to sentence all violators to thirty (30) months in prison if they are good people. [The judge] also stated that the only time that he sentenced to a greater period of time was in the case of a black militant and that he sentenced him to four and one-half (4 1/2) years.
The defendant's motion to disqualify was denied from the bench.
This court recently determined this same judge committed error in refusing to disqualify himself in a case involving a conscientious objector. United States v. Townsend, F.2d, (3d Cir., Filed 4/10/73). Since defendant does not contend he is a conscientious objector, Townsend is not directly controlling. We must, therefore, turn to a consideration of whether this defendant's affidavit is sufficient under the statute.
In an affidavit of bias, the affiant has the burden of making a threefold showing:
1. The facts must be material and stated with particularity;
2. The facts must be such that, if true they would convince a reasonable man that a bias exists.*fn1
3. The facts must show the bias is personal, as opposed to judicial, in nature.
We think defendant's affidavit alleges the material facts with the requisite particularity. Indeed, the Government ...