Diego GONZALEZ, Defendant, Appellant, v. UNITED STATES of America, Appellee.
No. 4882.
United States Court of Appeals First Circuit.
July 6, 1955.
Rehearing Denied Aug. 8, 1955.
223 F.2d 431
In this case, however, it has not been shown that the “reasonable tendency” of the activities of the investigator service was to intimidate. Its purpose was not to pressure jurors but to inform lawyers. Litigants are given the right to challenge jurors. In order to exercise that right intelligently in densely populated areas where the realm of one‘s own acquaintances is necessarily limited, a reasonable investigation of jurors is helpful, and consequently such investigatory procedures are widely used. It has not been demonstrated that such investigations, whereby a prospective juror may know that someone working for lawyers has asked questions about him, would normally have a tendency to intimidate the juror, even if it could be assumed that the knowledge by a juror of such an investigation would work for the benefit of one party rather than another in a case such as this. And it has not been shown in this case that the effect of these procedures was to intimidate or to “pressure” jurors. There is an obvious and determinative difference between the investigations conducted here and the constant surveillance of jurors in the course of trial that took place in the Sinclair case.
Other grounds asserted as a challenge to the array do not require discussion. We find no merit in the challenge.
Accordingly, the judgment of the court below will be affirmed.
Ruben Rodriguez Antongiorgi, U. S. Atty., San Juan, P. R. for appellee.
Before MAGRUDER, Chief Judge, and BIGGS* and WOODBURY, Circuit Judges.
BIGGS, Circuit Judge.
This is an appeal from an order of the United States District Court for the District of Puerto Rico denying the defendant‘s motion under Rule 35,
On February 12, 1952, Gonzalez, the defendant, pleaded guilty at No. 6649, Criminal, having withdrawn an earlier plea of not guilty, to an indictment charging violations of the narcotics laws.
At various times between May 23rd and June 25th, 1952, while the defendant was on bail at No. 6649, Criminal, he committed other crimes against the narcotic laws. On September 19, 1952, an information was filed against him which contained eight counts pertaining to these offenses, alleging violations of
The substantial issue presented by the case at bar is whether the court below possessed the power to sentence the offender as a second offender under the Act of November 2, 1951,
In determining whether under the statute before us the prior conviction must occur before the commissions of the subsequent offenses we must consider the purpose to be achieved by the statute.
In reviewing statutes fixing the penalties for criminal conduct, the Supreme Court has recognized that a variety of purposes may be served by imposing criminal sanctions. In Commonwealth of Pennsylvania ex rel. Sullivan v. Ashe, 1937, 302 U.S. 51, 55, 58 S.Ct. 59, 82 L.Ed. 43, the Supreme Court said that a State “* * * may inflict a deserved penalty merely to vindicate the law or to deter or to reform the offender, or for all these purposes.” If the purpose of subsequent offender statutes is to deter criminal conduct, we can see no reason why the increased penalties should not be applied to any subsequent offense whether or not there has been an intervening conviction and sentence since presumably a greater penalty would be required to deter a repetition of criminal activity by an offender who has not been convicted previously than to deter repetition by the offender who has been subjected to the corrective impact of conviction and sentence. If, on the other hand, subsequent offender statutes are intended to reform the offender and deprive him by reason of his incarceration of the opportunity for continued criminal conduct, then such statutes would seem to apply properly only to offenders convicted prior to the subsequent offense, for the repetition of criminal activity after conviction would show the inadequacy of a first-offender penalty to perform this function and the need of increased penalties. If the purpose be “to vindicate the law“, as the Supreme Court put it, such statutes apparently would be applicable only to those convicted prior to the later offense because the social demand for increased penal sanctions would be directed primarily at the recidivist and not at an individual who had repeatedly committed offenses condemned by the statute but who had never been brought to the bar of justice.
In upholding the constitutionality of subsequent offender legislation, the Supreme Court has recognized the reformation and retribution theories of punishment as the primary reasons for imposing greater penalties on the repeater. In Moore v. State of Missouri, 1895, 159 U.S. 673, 677, 16 S.Ct. 179, 181, 40 L. Ed. 301, the Supreme Court said, quoting Mr. Chief Justice Shaw in Plumbly v. Commonwealth, 1841, 2 Metc., Mass., 413, 415, that the greater penalties are
In construing subsequent offender statutes to determine whether they apply to any subsequent offender or only to an offender convicted and sentenced prior to his current offense, the decisions of the courts have varied depending upon the particular statute involved. In State v. McCormick, 1928, 104 N.J.L. 288, 290, 140 A. 297, 298, where it was held that under the New Jersey statute there did not have to be a prior conviction in order to invoke the increased penalties of the second offender statute, the court ruled the statute operative so long as the “conviction or plea of guilty [for the first offense] took place before the return of the indictment charging a similar offense as a second offense.” Conversely, in State v. Christup, 1935, 337 Mo. 776, 85 S.W.2d 1024, where the defendant had escaped from imprisonment on his first offense and committed another offense, it was held that no second offense could occur under the Missouri statute until the defendant‘s sentence for the first offense had been completely served. Most subsequent offender statutes have been construed to operate between these two extremes so that any offense committed subsequent to a conviction calls for the increased penalty. See Annotation, 58 A.L.R. 20, 41, and 24 C.J.S. Criminal Law, § 1960, p. 1153.
In the United States courts uniformly this has been held to be the rule. In Singer v. United States, 1922, 278 F. 415, the Court of Appeals for the Third Circuit considered a substantially similar statute to that presently before us and held that a second offense within the meaning of the statute could occur only after a conviction for the first offense. See, e. g., United States v. Lindquist, D.C.W.D.Wash.1921, 285 F. 447, and Biddle v. Thiele, 8 Cir., 1926, 11 F. 2d 235. The Court of Appeals for the Fifth Circuit said in Holst v. Owens, 1928, 24 F.2d 100, 101: “It cannot legally be known that an offense has been committed until there has been a conviction. A second offense, as used in the criminal statutes, is one that has been committed after conviction for a first offense. Likewise, a third or any subsequent offense implies a repetition of crime after each previous conviction.” Similarly, in Smith v. United States, 9 Cir., 1930, 41 F.2d 215, 217, the court stated: “In order that a conviction shall affect the penalty for subsequent offenses, it must be prior to the commission of the offense.”
These precedents, although involving different statutes than that at bar, are helpful in construing the pertinent provision of the statute at bar. That statute, the Act of November 2, 1951, increased the prison terms and fines for narcotics violations in order to deter more effectively such violations and in order to remove those responsible for the illegal drug traffic from their fields of operations for longer periods of time. See Senate Report No. 1051, Oct. 19, 1951, 2 U.S.Code Congressional and Administrative Service 2602, 82nd Cong., 1st Sess.1951. The language defining subsequent offenders was also changed. The prior statute,
Because of the purposes generally to be served by second offender legislation, the judicial interpretation of similar statutes, and the legislative history of this particular statute, we hold that the subsequent offender provision of the Act of November 2, 1951, applies only to narcotics offenders who commit subsequent offenses after convictions. In this case Gonzalez committed his subsequent offenses after the filing of the indictment and the entry by him of a guilty plea. It is necessary, therefore, to determine whether the filing of an indictment and a plea of guilty to its counts constitute a “conviction” within the meaning of the Act.
In defining “conviction” it is necessary to note the considerations involved in choosing the event after which increased penalties can be imposed for further criminal conduct. The event utilized should of course serve the underlying purposes of the subsequent offender statutes themselves. Since a greater feeling of reprehension for a repetition of serious crimes usually follows after there has been a previous determination of guilt, the critical event should encompass a determination of guilt. Since more severe sanctions to prevent a repetition of criminal acts and to attempt a reform of the individual are warranted only after the sanctions for earlier offenses have failed, the event should extend to the acquisition of power by a court to impose sanctions. Consequently, the event utilized as determinative should encompass both the determination of guilt and the acquisition of power to invoke penal sanctions. In criminal proceedings, both of these occur by the time of the court‘s adjudication of guilt. The event to be workable should also be clearly and easily ascertainable, and an adjudication of guilt, being a traditional legal event, satisfies this requirement. It follows, we think, that an adjudication of guilt should be required in order to constitute a “conviction” within the meaning of the statute.
In construing subsequent offender legislation, it has been said that “A statute providing for severer punishment on conviction for second offense is highly penal, and must be strictly construed.” United States v. Lindquist, supra, 285 F. at page 448. Consequently, it has generally been observed that “a conviction within the meaning of the habitual criminal statutes * * * imports the element of finality with respect to the judgment or sentence.” Annotation, 5 A.L.R.2d 1080, 1083. As to United States courts, in Singer v. United States, supra, 278 F. at page 420, it was said: “The authorities overwhelmingly establish, first, that in the legal sense a conviction is a judgment on a plea or verdict of guilty; [and] second, a second offense, carrying with it a more severe sentence, cannot be committed in law until there has been a judgment on the first“. In Schooley v. United States, 8 Cir., 1925, 4 F.2d 767, 769, where it
It is our conclusion, therefore, that under the provisions of the Act of November 2, 1951, a person must at least have been judicially adjudicated guilty of one of the enumerated offenses prior to the commission of a second offense before he can be subjected to the increased penalty for a “second or subsequent offense.”1
The sentence imposed on Gonzalez at No. 7039, Criminal, was illegally imposed. The order of the court below denying Gonzalez’ motion to correct sentence pursuant to
The order of the District Court is vacated and the case is remanded to that Court for further proceedings not inconsistent with this opinion.
MAGRUDER, Chief Judge (concurring).
As regards the first point considered in the opinion of the court, I agree that the second offender provisions of the Act of November 2, 1951, require that the accused must have been “convicted” of an earlier offense prior to the date of the commission of the subsequent offense.
In regard to the second point of the court‘s opinion, I am more doubtful; it could be plausibly contended that the plea of guilty to the earlier offense, made on February 12, 1952, and accepted by the court as disclosed by the journal
I shall only add that as I understand the mandate of this court, appellant‘s victory may turn out to be a hollow one indeed. In No. 7039, Criminal, the information filed against the accused contained eight counts, each charging a separate offense, to all of which the accused entered a plea of guilty. Thereupon the district court imposed a sentence of ten years on the first count and eight years each on the seven other counts, all of the eight-year sentences to run concurrently with the sentence on the first count. Of course it was a matter of grace that the district court did not choose to impose consecutive sentences. We are vacating the judgment of conviction in No. 7039, Criminal, for lack of power in the district court to impose a second offender penalty in excess of five years’ imprisonment. The case therefore goes back to the district court for resentence within the limits provided by law as applicable to a first offender. These limits are that, for each of the eight offenses charged in the information, the accused “shall be fined not more than $2,000 and imprisoned not less than two or more than five years.” Within these limits, determining the matter of the appropriate sentences de novo, it will be within the discretion of the district court to decide whether the sentences shall run concurrently or consecutively.