United States v. Beneke, No. 71-1027.

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Citation449 F.2d 1259
Docket NumberNo. 71-1027.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Brad K. BENEKE et al., Defendants Appellants.
Decision Date22 October 1971

449 F.2d 1259 (1971)

UNITED STATES of America, Plaintiff-Appellee,
v.
Brad K. BENEKE et al., Defendants Appellants.

No. 71-1027.

United States Court of Appeals, Eighth Circuit.

October 22, 1971.


Kenneth E. Tilsen, St. Paul, Minn., for appellants.

Robert G. Renner, U. S. Atty., Minneapolis, Minn., for appellee.

449 F.2d 1260

Before VAN OOSTERHOUT, MEHAFFY and ROSS, Circuit Judges.

ROSS, Circuit Judge.

This is an appeal from the convictions of Brad K. Beneke, Donald Henry Olson, and Peter Allen Simmons for violation of 50 U.S.C.A. App. § 462(a)1 under indictments charging that they "did wilfully and knowingly attempt to hinder and interfere by force, violence, and otherwise, with the administration of the Military Selective Service Act of 1967 * * * by entering the Selective Service Headquarters for the County of Winona, * * * Winona, Minnesota, to remove and destroy official records contained therein and thus disrupt the official activities at said location." We affirm the judgments of conviction.

The facts in this case are very similar to the facts in United States v. Turchick, 451 F.2d 333 (8th Cir. 1971); and the issues raised on appeal are almost identical with those raised in that case. The defendants in this case were apprehended in the draft board office in Winona, Minnesota on the same night but a short time before the defendants in the Turchick case were apprehended in the draft board office in Alexandria, Minnesota.

Briefly, the evidence in this case shows that the FBI, acting on the tip of an informant, positioned some of its agents in a room adjacent to the Selective Service Office in Winona late on July 10, 1970. At about midnight, Beneke, Olson, and Simmons entered the Selective Service Office by cutting the glass on the door to the office. The FBI agents waited about eight minutes and then entered the Selective Service Office and arrested the three defendants. At the time of their arrest, some papers, which had been on the clerk's desk, were on the floor. A lock on one file cabinet was "punched in"; and the defendants had in their possession pliers, hammers, a pry bar, screw drivers, glass cutter, flashlight, small butane micro torch, extra butane cylinders, a butane sparker, a can of black paint, and two small mesh laundry bags.

In view of the fact that the major issues raised by the defendants in the Turchick case, supra, were almost identical with the major issues raised on appeal here, we will not comment further on these issues, except to adopt the Turchick opinion as controlling the same issues in this case. This panel of the Court will limit its comments in this opinion to issues raised here which were not discussed in Turchick.

I. ALLEGED DISQUALIFICATION

Appellants claim that the trial judge should have removed himself from the case upon the filing of an affidavit of Beneke alleging bias or prejudice on the part of the trial judge by reason of the trial judge's prior sentencing of Beneke for contempt during an earlier Selective Service criminal trial at which Beneke was a spectator. The trial judge's order denying Beneke's motion under 28 U.S.C. § 144 is reported at 317 F.Supp. 1326.

This contention is without merit since the bias or prejudice alleged did not stem from an extrajudicial source, but rather from what the judge learned in his judicial capacity. 28 U.S.C. § 144 requires that the bias necessary to disqualify must "stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation

449 F.2d 1261
in the case." United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S. Ct. 1698, 1710, 16 L.Ed.2d 778 (1966) (7-2). See also Berger v. United States, 255 U.S. 22, 31, 41 S.Ct. 230, 65 L.Ed. 481 (1921)
"Merely because a trial judge is familiar with a party and his legal difficulties through prior judicial hearings, or has found it necessary to cite a party for contempt, does not automatically or inferentially raise the issue of bias. As stated by the court in Lyons v. United States, 9 Cir. 1963, 325 F.2d 370, 376, cert. den. 377 U.S. 969, 84 S.Ct. 1650, 12 L.Ed.2d 738 which ruled that affidavits filed under § 144 were legally insufficient: `The section 144 is directed to personal bias, which means an attitude of extrajudicial origin. A mere showing of prior judicial exposure to the present parties or questions will not invoke the section.\' See also Cox v. United States, 8 Cir.
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32 practice notes
  • U.S. v. Jackson, No. 78-1768
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 8 Febrero 1980
    ...trial. A showing of prior judicial exposure to the same parties does not suffice to demonstrate personal bias. United States v. Beneke, 449 F.2d 1259, 1261 (8th Cir. 1971). It follows that a prior judicial exposure to the same type of case brought by the same law enforcement officers but in......
  • Duplan Corporation v. Deering Milliken, Inc., Civ. A. No. 71-306
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • 12 Junio 1975
    ...United States v. Nehas, 368 F.Supp. 435, 437 (W. D.Pa.1973); United States v. Beneke, 317 F.Supp. 1326 (D.Minn.1970), aff'd, 449 F. 2d 1259 (8th Cir. 1971); United States v. Thomas, 299 F.Supp. 494, 499 (E.D.Mo. 1968); United States v. Hanrahan, 248 F. Supp. 471, 476 (D.D.C.1965); United St......
  • U.S. v. Busic, Nos. 383
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 30 Octubre 1978
    ...had a broken window and a locked door did not require an instruction on the lesser offense of unlawful entry); United States v. Beneke,449 F.2d 1259 (8th Cir. 1971) (instruction on lesser offense of malicious mischief not required in prosecution for entering draft board office to remove and......
  • U.S. v. Haldeman, Nos. 75-1381
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 8 Diciembre 1976
    ...*. "A mere showing of prior judicial exposure to the present parties or questions will not invoke the section." United States v. Beneke, 449 F.2d 1259 (8th Cir. 1971), quoting Barry v. Sigler, 373 F.2d 835, 836 (8th Cir. 1967), in turn quoting Lyons v. United States, 325 F.2d 370, 376 (9th ......
  • Request a trial to view additional results
32 cases
  • U.S. v. Jackson, No. 78-1768
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 8 Febrero 1980
    ...trial. A showing of prior judicial exposure to the same parties does not suffice to demonstrate personal bias. United States v. Beneke, 449 F.2d 1259, 1261 (8th Cir. 1971). It follows that a prior judicial exposure to the same type of case brought by the same law enforcement officers but in......
  • Duplan Corporation v. Deering Milliken, Inc., Civ. A. No. 71-306
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • 12 Junio 1975
    ...United States v. Nehas, 368 F.Supp. 435, 437 (W. D.Pa.1973); United States v. Beneke, 317 F.Supp. 1326 (D.Minn.1970), aff'd, 449 F. 2d 1259 (8th Cir. 1971); United States v. Thomas, 299 F.Supp. 494, 499 (E.D.Mo. 1968); United States v. Hanrahan, 248 F. Supp. 471, 476 (D.D.C.1965); United St......
  • U.S. v. Busic, Nos. 383
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 30 Octubre 1978
    ...had a broken window and a locked door did not require an instruction on the lesser offense of unlawful entry); United States v. Beneke,449 F.2d 1259 (8th Cir. 1971) (instruction on lesser offense of malicious mischief not required in prosecution for entering draft board office to remove and......
  • U.S. v. Haldeman, Nos. 75-1381
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 8 Diciembre 1976
    ...*. "A mere showing of prior judicial exposure to the present parties or questions will not invoke the section." United States v. Beneke, 449 F.2d 1259 (8th Cir. 1971), quoting Barry v. Sigler, 373 F.2d 835, 836 (8th Cir. 1967), in turn quoting Lyons v. United States, 325 F.2d 370, 376 (9th ......
  • Request a trial to view additional results

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