United States v. Evan Alexander Thompson

OPINION OF THE COURT

SEITZ, Chief Judge.

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 (1970) 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:

[D]uring 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 (4j4) 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, 478 F.2d 1072, (3d Cir. 1973). 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.¹

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 does not contend to the contrary.

We next must examine the facts alleged in this affidavit to determine if they are sufficient to convince a reasonable man that the judge had a relevant bias. After evaluating this affidavit, we believe a reasonable man would conclude on the facts stated therein that the district judge had a special bias against defendant as one of those convicted of violating the Selective Service laws. The affidavit alleges the judge has stated he sentences all those convicted of violations of those laws to at least thirty months in jail no matter how “good” they are. This is despite the fact that a prison sentence upon conviction is not mandatory.

We do not mean to suggest that the allegations, if true, had the potential of affecting the fairness of the proceeding up until the rendering of the verdict. However, under § 144 a defendant is entitled to trial before a judge who is not biased against him at any point of the trial and, indeed, most importantly, at sentencing.

The district judge is vested with considerable discretion in the sentencing of convicted defendants. In order that he may make an informed use of this discretion, Fed.R.Crim.P. 32(c) (1971) requires a presentenee report in each case. Further, Fed.R.Crim.P. 32(a) requires the court, before imposing sentence, to permit a defendant to make a statement on his own behalf and to present information which might give cause for mitigation of punishment. A fixed view as to sentencing is thus inconsistent with the discretion vested in the trial judge that he may fulfill his mandate to tailor the sentence imposed to the circumstances surrounding each individual defendant,² and frustrates the operation of those rules set up to effect such a result.

Finally, we are satisfied that the facts show that the allegations of bias was personal in the sense that it was directed against appellant as a member of a class charged with violation of Selective Service laws. It was not an allegation of judicial bias in favor of a particular legal principle. Neither was it an allegation of judicial bias based upon legal rulings by the judge adverse to defendant. See Ex Parte American Steel Barrel Co., 230 U.S. 35, 33 S.Ct. 1007, 57 L. Ed. 1379 (1913).

The distinction is important, for an allegation of “personal” bias is a proper basis for disqualification; an allegation of “judicial” bias is not. Defendant does not suggest that the personal bias of the judge arose from a prejudgment of the facts in the case before him. Rather, the alleged bias was directed against a class. We think the personal bias alleged was of such a nature and intensity to prevent the defendant, when convicted, from obtaining a sentence uninfluenced by the court’s prejudgment concerning Selective Service violators generally. Such an allegation against a class is sufficient under the statute. See Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed.2d 481 (1921). Therefore, we conclude that the judge should not have presided at defendant’s trial.

We need not consider whether the allegation of prejudice against black militants was sufficient for disqualification of the judge under the statute. Nor, in view of our ruling, need we rule on the other issues posed.

The judgment of conviction will be reversed and the case remanded for assignment to a different judge for a new trial.

1 . Under tlie statute, the judge must accept for purposes of the motion that all facts stated in the affidavit are true. Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481 (1921). Therefore, for purposes of this opinion, we similarly must treat all the facts alleged as true. However, in so doing, we do not intend to express any opinion as to the actual truth of the facts alleged.

2 . See United States v. Daniels, 446 F.2d 967 (6th Cir. 1971) ; cf. Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949).