(D.C. Criminal No. 71-45) On Appeal from the United States District Court for the Eastern District of Pennsylvania
Before STALEY, GIBBONS and ROSEN,*fn* Circuit Judges.
William Allen Townsend appeals a conviction by a jury in the United States District Court for willful failure to submit to induction in violation of 50 U.S.C. App. § 462. The pivotal question in this case is whether the trial judge erred by refusing to recuse himself from presiding over the appellant's trial. Arguments which raise other questions are made on appeal. We find a discussion of them unnecessary however, since we reverse on the recusal issue.
On May 13, 1970, the appellant was classified I-A by his local draft board in Bristol, Pennsylvania. On July 24, 1970, he was mailed notice to report for induction on August 19, 1970. Townsend appeared at the induction center as ordered but did not step forward for induction. Instead, he submitted to the officer in charge a statement which indicated for the first time that he was a conscientious objector.
As the trial began, the appellant presented an affidavit to disqualify the trial judge under 28 U.S.C. § 144 on the basis of statements allegedly made by the judge five days before at a pretrial conference. The following portions of the affidavit attributed to the judge remarks concerning the sentencing of selective service violators.
"The judge stated that the defendant's sentence would be thirty months in prison irrespective of whether a plea would be entered or defendant would be found guilty after trial.
"The judge stated that he sentences all selective service violators to thirty months in prison if they are 'good people.'
"The judge stated that he felt a duty to pressure conscientious objectors into submitting to induction and that a uniform thirty months sentence was the best way to effectuate that policy." The district judge held the affidavit to be insufficient, refused to disqualify himself, and presided over the trial.
28 U.S.C. § 144 provides:
"Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.
"The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith."
The mere filing of an affidavit under this section does not automatically disqualify a judge. Behr v. Mine Safety Appliances Co., 233 F.2d 371 (C.A.3), cert. denied, 352 U.S. 942, 1 L. Ed. 2d 237, 77 S. Ct. 264 (1956). Disqualification results only from the filing of a timely and sufficient affidavit. Brotherhood of Locomotive Firemen and Enginemen v. Bangor and Aroostook R. Co., 127 U.S. App. D.C. 23, ...