United States Circuit Court of Appeals

“ Certainly we recognize, though, that there might be cases where the circumstances are so compelling that for the court to countenance the government's insistence on a jury trial over the defendant's request to be tried by a judge alone would deny the defendant a fair trial. See Singer v. United States, 380 U.S. at 37, 85 S.Ct. at 791. This is not such a case. Compelling circumstances are not demonstrated simply by claims of an atmosphere poisoned by a negative press. The validity of such claims is properly shown upon a voir dire of prospective jurors. ”

“ Nothing in the Constitution guarantees one the right to select his own tribunal or the right to a speedy and public trial by a fair and impartial judge. The right to trial by jury is a benefit granted an accused, see Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 380, 99 S.Ct. 2898, 2905, 61 L.Ed.2d 608 (1979) , which a defendant has the power to waive. But before a waiver can be effective, the consent of the prosecutor and the sanction of the court must be obtained. See Patton v. United States, 281 U.S. 276, 312, 50 S.Ct. ”

“ Upon a proper showing a Court of Appeals has a duty to displace a District Court's certification. Moreover, a Court of Appeals must, under Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, afford one who challenges that certification the aid of counsel unless he insists on being his own. Finally, either the defendant or his assigned counsel must be enabled to show that the grounds for seeking an appeal from the judgment of conviction are not frivolous and do not justify the finding that the appeal is not sought in good faith. ”

“ We construe the Criminal Appeals Act as confining the Government's right to appeal-except for motions in arrest of judgment-to situations in which a jury has not been impaneled, even though there are cases in which a defendant might constitutionally be retried if appeals were allowed after jeopardy had attached. Because the court below rendered its decision here after the trial began, and because that decision was not, as we have shown, an arrest of judgment, we therefore conclude there can be no appeal under the other provisions of § 3731. ”

“ Appellants correctly note, however, that section 455 does not require the filing of an affidavit, and, since recusal can be sustained under that section on the same ground that exists in 144, appellants have lost little by dropping their section 144 claim.
Section 455, as amended in 1974, contains two provisions pertinent to this case. Subsection (a) states:
Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. ”

“ Under that decision petitioners could not appeal to the Court of Appeals from an adverse decision in the District Court. Whether they could appeal from an adverse ruling of the Court of Appeals is a question we have not adjudicated. ”

“ Whether 'appeal' includes proceedings before the Supreme Court was not addressed by the Advisory Committee's Note and was until now an academic question since the rule became effective after the implementation of the Criminal Justice Act under which courts of appeals have uniformly adopted procedures routinely to extend appointed counsel's duty to preparation of certiorari petitions desired by their clients. ”

“ Meanwhile, appellees served damage interrogatories called for by the discovery plan. In 1992, when the defendants had received no responses and none appeared forthcoming, defendants filed motions to dismiss, which the master converted into motions to compel, ordering appellants to respond to both sets of interrogatories. Appellants were warned repeatedly by both the court and the master that failure to comply would result in dismissal. ”