*1 delinquency to order notice and arbitra- argument tion. Evaluation of this re- logical reading

quires I.B. of clauses agreement. argu- and 14 of the particularly

ment well have merit 14(a) states that

because clause

grievance procedures Article V do-not parties

apply dispute to a “between nonpayment

concerning payment due the Trust Funds. monies ” argument . asserts parties only union and the

employers’ the suit association. Since employer and the trustees

involves proce- grievance Funds, of the Trust may then available.

dures

Therefore, the motion I believe granted.

stay should be of America

UNITED STATES THOMPSON, Alexander

Evan Appellant.

No. 72-2024. Appeals,

United States Court Third Circuit. 12(6)

Submitted Under Third Rule March

Decided June Egnal Egnal, Egnal, David & John Pa., appellant.

Philadelphia, *2 Atty., Curran, disqualify involving S. to himself in Robert E. J. U. Car- a case Nasuti, Atty., objector. men Phila- C. Asst. U. S. a conscientious United States Pa., delphia, appellee. Townsend, for v. F.2d 478 defendant does not con- Since SEITZ, Judge and AL- Before Chief objector, tend he is a conscientious Judges. ADAMS, DISERT directly controlling. Townsend not is We must, therefore, turn to a consideration of whether this defendant’s affidavit THE COURT OPINION OF sufficient under the statute. Judge. bias, In an of SEITZ, affidavit the af Chief making fiant has the burden of a three appeals Defendant his conviction showing: fold resulting jury thirty month and a sen- tence for violations Selective 1. The facts must be material and Service Act. particularity; stated with trial, About a month the de- before that, 2. The facts must such if fendant filed an affidavit under 28 they U.S. true would convince a reasonable ,to seeking (1970) disqualify C. 144 man § that a bias exists.1 personal the district for 3. The facts must bias is against affidavit, him. In his he char- judicial, to in na- acterized himself as a militant. black ture. cooperate He stated his refusal to System Service was be- Selective alleges We think defendant’s affidavit man, cause as a he viewed requisite material facts with the Armed Forces as the imperialistic arm of an racist particularity. Indeed, the Government Additionally, nation. he contrary. does not contend to the copy attached to his affidavit a of an- We next must examine the facts al- attorney other filed affidavit an leged in this affidavit to determine if separate Selective Service case tried be- they are sufficient to a reason- convince attorney’s fore the same That able man that the had a relevant affidavit recited: evaluating affidavit, bias. After this we [D]uring a conversation with believe a reasonable man would conclude [judge] chambers, [judge] in his on the facts stated therein that the dis- stated that in cases of Serv- Selective special against trict had a de- violation, ice it is his to sen- fendant as one of those of vio- convicted thirty (30) tence all violators to lating the laws. prison they good peo- if months in are alleges he affidavit has stated ple. judge) also that the stated [The sentences all those convicted of viola- great- only time that he to a sentenced thirty tions those laws to at least period er of time was case jail “good” months no matter how black militant and that he sentenced despite the that a are. This is fact years. him to four (4j4) and one-half prison upon sentence conviction is not disqualify motion defendant’s mandatory. was denied from the bench. do not mean to recently We court This determined this allegations, true, potential same committed error accept similarly statute, purposes opinion, 1. Under tlie must we purposes alleged of the motion all facts treat the facts as true. must However, all doing, stated we do not intend true. so States, any opinion express United actual (1921). Therefore, alleged. 65 L.Ed. 481 truth facts against affecting proceed- rected a class. We think the the fairness rendering ing up such a na- until ver- intensity prevent However, ture and the defend- dict. under a defendant ant, convicted, obtaining from when who is entitled trial before pre- any point of sentence uninfluenced him at court’s not biased concerning judgment indeed, and, importantly, most Selective Service sentencing. generally. an violators Such at *3 against a is sufficient the class under judge is con- The district vested with States, See statute. v. United sentencing in the of siderable discretion 22, 230, 41 255 U.S. 65 L.Ed.2d 481 he convicted defendants. In order that (1921). Therefore, we conclude that the may informed use of this dis- make an judge presided should not de- have at cretion, (1971) 32(c) re- Fed.R.Crim.P. trial. fendant’s presentenee report quires in a each case. needWe not consider whether the al- Further, 32(a) requires Fed.R.Crim.P. prejudice against legation of mili- court, imposing sentence, to the before disqualification tants was sufficient for permit to make a a defendant statement Nor, under the statute. in present infor- his to on own behalf and ruling, of our view need we rule on the give might miti- mation for which cause posed. other issues gation punishment. A fixed as of view judgment The of conviction re- will be sentencing with is thus inconsistent and versed the case remanded for as- in the discretion the trial vested signment ato different for newa may he fulfill his mandate to tailor that trial. imposed sentence to the circum- the surrounding individual each stances operation defendant,2 ADAMS, Judge and frustrates the (dissenting)'. up re- of to effect such a those rules set opinion majority The states that an sult. alleging part on affidavit the of Finally, show, alia, we the facts are satisfied that trial inter that must allegations judi- the of bias was “the bias is My prompted cial, direct- sense was dissent is nature.” appellant ed as member the what I to be believe charged misapplication misinterpretation of class violation of with or allegation not Service laws. It was an that standard. judicial particular of of bias in favor not in this case The central facts legal principle. it an alle- Neither was dispute. was indicted Defendant legal gation judicial upon of bias based report wilfully for induction. rulings by adverse to defend- convicted, jury, and tried to a He was See Ex Bar- ant. Parte American Steel thirty judge to the trial sentenced Co., 1007, 57 L. rel 230 33 S.Ct. U.S. point imprisonment. At no months’ (1913). Ed. 1379 alleged that proceeding it been has sought denied had been defendant important, The distinction is objector More- status.1 conscientious “personal” is a for an of over, does not contend the defendant disqualification; proper al basis an any prejudice to- judge showed legation “judicial” not. De bias is conduct him in the actual wards per does fendant not trial. pre from a sonal bias arose judgment trial, of the facts the case before un- defendant had Prior to his alleged trial successfully to have the Rather, him. di- moved bias was Townsend, Compare No. v. Daniels, United States See v. 446 F.2d United States ; 1971) 72-1240, (6th Cir. cf. New 478 F.2d 1072 Williams v. York, 69 S.Ct. (1949). L.Ed. 1337 ly types allegations judge disqualify himself on the basis which motion, support justify prejudice. disqualifica- In of his deemed sufficient pursu- tion, party may by go an lest a defendant submitted affidavit an affidavit “judge-shopping,” practice ap- 144. The ant to 28 U.S.C. proved judicial defendant had learned in modern administra- attorney preju- majority tion. The from his has set forth a tri- judge. partite attempts accomplish The information dice of the test that trial narrowing. Though upon agree this assertion was based test, in an earlier an affidavit submitted verbalization the third case, Townsend,2 interpreted heard element of the United States standard majority does, alle- the same trial basic fear test would gation purpose. is that fail its of these several affidavits stated, chambers, majority states: that: *4 “3. The the is facts must show bias viola- “in cases of Service Selective judicial, in na- policy tion, it his to sentence all vi- ture.” thirty (30) pris- in olators to months they good people. on if [The personal To the show that bias judge] only time also stated that the judicial, majority the holds that the bias greater period of he sentenced to a against comprised must be a class mili- in the time was case black me, violators. To this Selective Service him to he sentenced tant and that misapprehension seems a of the terms years.” (4%) and one-half four personal judicial and The bias bias. common the which characteristic of class in motion to Defendant contended his the includes defendant is its involvement Court, appeal disqualify, and on this with and conviction for violation of the allegation personal this sets forth a that very Selective defini- Service laws. against by the de- held the bias legal. judicial tion of the class is vio- fendant both a Selective Service Against this be contrasted a class lator and as a militant. The ma- black unifying whose trait is extraneous holding jority, the statement judicial process. Examples abound: as a sentences all Selec- against prejudice women, a bias thirty months tive Service violators against long-haired youths, a bent personal bias, the case showed remands against orientals. for a trial before a different new Indeed the case most relied on does not believe that the affidavit , majority States, 255 v. United personal show bias and therefore dissent 22, 65 L.Ed. majority’s from the decision. type (1921), clearly illustrates recusation, The statute addressed to against Berger, In several class. pattern prescribes U.S.C. of the born either defendants were party’s Germany prejudice, which of immedi or Austria or were sufficient, legally accepted The trial must be ate extraction. German opportunity presumably inspired by anti- without the virulent dispute during atmosphere War facts contest German World party may wrap I, innuendo in had made statements which defamed disloyal procedure the facts. Under set and condemned as German- statute, Supreme forth must Americans. The held Court power reciting stand mute. With so much thus facts these placed party, personal in the hands of a it be- was sufficient necessary requiring comes to circumscribe careful- recusal. 72-1240,

2. No. 478 F.2d 1072 personal

To within the term include only whose common charac- bias a class America, UNITED STATES of adjudged teristic is that have been Appellant, ob- of a law is to distort or violation majority has distinction literate the LAND, 373.10 ACRES OF articulated enunciation MORE OR LESS, Situated IN CRITTENDEN AND three-pronged test.3 COUNTIES, ARKANSAS, POINSETT allega- majority, holding that the al., Appellees. et sentencing, thirty-month tion of uniform No. 72-1714. against is indicative violators, not ad- does Appeals, United States Court of assertion dress the defendant’s second Eighth Circuit. is biased April 13, Submitted thirty-month militants. In view of the defendant, sentence received Aug. Decided sentencing, hardly argued that, in can way fairly any dealt less the defend- with this defendant because might

ant be considered a black

militant.4 reasons, respectfully dis- For these holding

sent from *5 trial entitled to a new the defendant is original judge erred in trial

because the recusing himself.5 disagreement

Having my stated nevertheless, majority, I, must ex- my

press disquiet result with the

would reach this Selective

case, type remains as a of case which

troubling vestige Vietnam War. uni-

I am not convinced that a

formly imprisoning have those who report is neces-

refused to sarily for induction However, optimal course. cannot be allowed

these considerations proper of this resolution deflect Therefore, affirm would

case.

conviction. correct, only disadvantage application ment A limited any appropriate especially in a before this trial defendant test seems sentence. faces is that of a “biased” in -which the facts situation Therefore, disqualification appropriate supporting limit hearsay. sentencing proceedings. triple focus to the are double appeal, argues, majority opinion 5. The defendant on this indicates 4. The danger only danger perceived erred both was the sentencing. trial and in conduct of the do not mean to “We unfair true, allegations, date find that the defendant’s induction Upon illegally affecting review of potential accelerated. the fairness contentions, rendering up these I would hold proceeding until Assuming merit. without this state- the verdict.”