United States v. Townsend, No. 72-1240.

CourtU.S. Court of Appeals — Third Circuit
Writing for the CourtSTALEY, GIBBONS and ROSEN, Circuit
Citation478 F.2d 1072
PartiesUNITED STATES of America v. William Alan TOWNSEND, Appellant.
Decision Date10 April 1973
Docket NumberNo. 72-1240.

478 F.2d 1072 (1973)

UNITED STATES of America
v.
William Alan TOWNSEND, Appellant.

No. 72-1240.

United States Court of Appeals, Third Circuit.

Argued October 19, 1972.

Decided April 10, 1973.


Steven A. Cotlar, Cotlar & Mantz, Doylestown, Pa., for appellant.

Carl J. Melone, U. S. Atty., Richard M. Meltzer, Asst. U. S. Atty., Philadelphia, Pa., for appellee.

Before STALEY, GIBBONS and ROSEN*, Circuit Judges.

OPINION OF THE COURT

STALEY, Circuit Judge.

William Alan 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

478 F.2d 1073
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
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76 practice notes
  • United States v. Boffa, Crim. A. No. 80-36.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Delaware)
    • February 19, 1981
    ...must pass on the legal sufficiency of the facts alleged in the 513 F. Supp. 509 affidavit and its timeliness. United States v. Townsend, 478 F.2d 1072, 1073 (C.A.3, 1973); Behr v. Mine Safety Appliances Co., 233 F.2d 371, 372 (C.A.3, 1956). In passing on the recusal affidavit on the grounds......
  • Commonwealth of Pa. v. Local U. 542, Int. U. of Op. Eng., Civ. A. No. 71-2698.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • December 4, 1974
    ...conclusions with facts to an extraordinary degree. Conclusions, of course, are not relevant to this inquiry. United States v. Townsend, 478 F.2d 1072, 1074 (3d Cir. 1973); Inland Freight Lines v. United States, 202 F.2d 169, 171 (10th Cir. 1953). Even if they were, it is difficult to ascert......
  • U.S. v. Haldeman, Nos. 75-1381
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • December 8, 1976
    ...1275, 1278 (W.D.Pa.1975). 311 Hodgson v. Liquor Salesmen's Local 2, 444 F.2d 1344, 1348 (2d Cir. 1971); United States v. Townsend, 478 F.2d 1072, 1074 (3d Cir. 1973). See also Berger v. United States, supra note 287, 255 U.S. at 34, 41 S.Ct. 312 Action Realty Co. v. Will, 427 F.2d 843, 844 ......
  • United States v. Hall, Crim. No. 75-8.
    • United States
    • United States District Courts. 10th Circuit. Western District of Oklahoma
    • April 24, 1975
    ...a moving defendant's motion and affidavit does not automatically require a judge to disqualify himself. United States v. Townsend, 478 F.2d 1072 (Third Cir. 1973); Deal v. Warner, 369 F.Supp. 174 (W.D.Mo.1973), Third, although the contents of the affidavit are to be taken as true, the affid......
  • Request a trial to view additional results
76 cases
  • United States v. Boffa, Crim. A. No. 80-36.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Delaware)
    • February 19, 1981
    ...must pass on the legal sufficiency of the facts alleged in the 513 F. Supp. 509 affidavit and its timeliness. United States v. Townsend, 478 F.2d 1072, 1073 (C.A.3, 1973); Behr v. Mine Safety Appliances Co., 233 F.2d 371, 372 (C.A.3, 1956). In passing on the recusal affidavit on the grounds......
  • Commonwealth of Pa. v. Local U. 542, Int. U. of Op. Eng., Civ. A. No. 71-2698.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • December 4, 1974
    ...conclusions with facts to an extraordinary degree. Conclusions, of course, are not relevant to this inquiry. United States v. Townsend, 478 F.2d 1072, 1074 (3d Cir. 1973); Inland Freight Lines v. United States, 202 F.2d 169, 171 (10th Cir. 1953). Even if they were, it is difficult to ascert......
  • U.S. v. Haldeman, Nos. 75-1381
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • December 8, 1976
    ...1275, 1278 (W.D.Pa.1975). 311 Hodgson v. Liquor Salesmen's Local 2, 444 F.2d 1344, 1348 (2d Cir. 1971); United States v. Townsend, 478 F.2d 1072, 1074 (3d Cir. 1973). See also Berger v. United States, supra note 287, 255 U.S. at 34, 41 S.Ct. 312 Action Realty Co. v. Will, 427 F.2d 843, 844 ......
  • United States v. Hall, Crim. No. 75-8.
    • United States
    • United States District Courts. 10th Circuit. Western District of Oklahoma
    • April 24, 1975
    ...a moving defendant's motion and affidavit does not automatically require a judge to disqualify himself. United States v. Townsend, 478 F.2d 1072 (Third Cir. 1973); Deal v. Warner, 369 F.Supp. 174 (W.D.Mo.1973), Third, although the contents of the affidavit are to be taken as true, the affid......
  • Request a trial to view additional results

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