*1 complaint. it think her We substitute power no had clear the district court that motion, stage grant at that late Co., Mfg. Newbury see v. United States though Cir., 1941, 453, 454, 123 F.2d power presumably still have court did 60, F.R.C.P., its under Rule to vacate
judgment any dismissal grounds if 60(b). But in Rule available had district assumed
power fur- discretion to allow complaint
ther amendment January urged plaintiff’s motion of 7, 1958, obliged to hold still we would be no abuse committed denying In
discretion motion.
that connection court said: deny “I motion to amend ground complaint substitute the—on entered, already judgment has ground and on case has this long been in this so so Court and given
much plaintiff, has advice Ap-
both the Court of
peals Court, which she disregard,
chose to that it would reopen
most now to the mat- unfair
ter.” affirming judgment
A be entered judgment District Court. CUNNINGHAM, Bernard
Donald Appellant, America,
UNITED STATES Appellee.
No. 17028. Appeals Court
United States Fifth Circuit.
June
Rehearing July 9,1958. Denied *2 pro. per., Cunningham,
Donald B.
appellant.
Fitzhugh
Atty.,
Wilson, U. S.
T.
White,
Shreveport, La.,
Asst.
W. Wilson
Atty.,
Atty. Gen.,
Greene,
Isa-
Harold H.
Atty., Washington, C.,
Blair,
L.
D.
bel
appellee.
Judge,
HUTCHESON,
Before
Chief
CAMERON, Circuit
and
Judges.
RIVES
Judge.
HUTCHESON, Chief
appeal presents for our deter-
This
whether,
found and declared
mination
by
as
the Federal
the district
5005-5020,
Act,
18 U.S.C. §§
and the commitment en-
is constitutional
in this case is valid
tered under it
against appellant’s
upon
attack
the Act
applied
unconstitutional as
here to
carrying
conviction for a misdemeanor
year.
punishment
maximum
of one
way:
up
question comes
1956, appellant
was convicted
On Oct.
plea of
information
on his
charging
violation of Sec.
18 U.S.
government
C.A.,
on a
reserva-
the theft
clock of a value
of a radio
less than
tion
dollars,
pro-
hundred
a misdemeanor
one
viding for a maximum sentence
one
custody
year and was “committed
Attorney
or his authoriz-
General
representative for treatment and
ed
su-
pervision Cor-
the Federal Youth
U.S.C.A.,
5010(b),
Sec.
rections
begin
October
thereof
execution
29, 1957, precisely
On October
1956”.
“ * * *
sentencing
was in error
year later,
filed
ordering
un-
his commitment
Sentence
“Motion to Correct
(6)
(4)
period of from four
to six
Rules of Criminal
Rule
Federal
der
years, under
*3
Youth Corrections
28
the
Title
and
U.S.C.A.]
Procedure
[18
Act, when
for which he
the offense
U.S.C., Sec. 2255.”
misdemeanor,
stands convicted
awas
Putting
sole
its
as
forward
punishable by imprisonment
and is
ground:
year.”
(1)
for not more than one
imposed
ex-
was in
“The sentence
citing
Lynch, Cir.,
United
States
7
Stat-
the
cess of
authorized
198, 199,1
159 F.2d
he attacks
com-
his
under
defendant
ute
which
mitment
the
Corrections
convicted.”
Act
con-
violation
fundamental
amending
sought an
the
order
motion
provisions.
stitutional
imprison-
judgment
provide “for
the
taking
The district
period
con-
time to
for a
of not more than
ment
2
Contending
sider the record made
the time
<1) year”.
at
motion:
1.
-was read
-advice of
.your own
n charge?”
volves
.stances?”
thingspreviously.
cess of that authorized
n self,
(cid:127)radio-clock at Barksdale. We
under
in
United States
the United
excess.”
before
this
necessary.”
went to the
bers
broke,
there
Government reservation.”
On
“A sentence
Mr.
The Court:
Mr. Wilson:
The Court:
The Court:
The Court:
The defendant:
The Court:
The Court:
The defendant:
The Court:
The defendant:
The Court:
The Defendant:
The defendant:
(At
formally arraign him.”
charge?”
is a
the
Oct.
from the Base
which
entirety
was a
defendant:
Wilson:
the court:
a misdemeanor committed
Shreveport
following proceedings
free
16, 1956, with
point,
States,
the United
me
lawyer,
Base,
guilt
couple
entered for
will?”
but is void
“All
“How do
“You are entitled to
“Do
Attorney, appearing for
“What
“What
“You are
“Is
“It
and this other
the Bill
“If
“Yes, sir.”
the defendant
was found is not
“Yes, sir.”
“Guilty.”
He
“It isn’t
“Yes,
and one of
right.”
Division
“Well, your Honor,
you
stated
of us and we were
if
is the theft
the
suggested
were
is the nature of
States
you
you plead?”
understand that
sir.”
a
only
doing
necessary.”
Mr.
term
feel that
case.
Information
the cireum-
the statute
Attorney.)
truth?”
would like
had taken
were
it,
Wilson,
that of
please,
person
in ex
mem-
on a
him
void
had
the
in-
I
same
plea and let him be continued
didn’t
as he
nesday at 1:30.”
get
defendant
hundred
printed?”
trouble
you
still
formation
considerably
received.”
ment.
have
too serious.
you
rested before?”
lawyer?”
statement
sentencing.”
plea of
The Court:
The
The defendant:
The Marshal:
The Court:
The Court:
Mr.
The Court:
The Court:
The defendant: “No sir.”
The Court:
The
The defendant:
The defendant:
The Court: “Do
(The following proceedings were had
property
#
into this? Were
also are in
ought
been in
willing
bond. You come
was,
Wilson:
Court:
defendant:
object
U.S.C.
Same
above-entitled action
guilty?”
dollars. He is
hope you
charging
pleaded guilty
to the Court?”
and we
$
mixed
some trouble
appearances).
you
valued
have toward
§
Apparently,
“Mr.
“Have
“How
“I
need of
“If
“Do
661 which is
“Has he been
“Mr.
“No returns
it;
“No,
is that
go ahead
will let
“No,
“Yes,
“Yes,
got
him with the violation
the Court
up
you
$
Cunningham,
will take
you
did
at
and was
you
sir.”
as to the attitude
Cunningham,
this clock.”
you drinking?”
wish to make
psychiatric
sir.”
back next Wed-
sir.”
sir.”
less
now
you happen
stand on
before,
you
him
ever
I
life.
[*]
a bill of
without
please,
have
have been
advantage
than one
ready
the theft
enter his
been
principal
Oct.
are
I think
but
on
finger-
treat-
[*]
your
you
you.
any
the
ar-
in-
prepared brief,
entry
plea
order
Here with
a well
thus
and of
law,
putting
questions
en-
state of
for decision:
commitment
following
tered
order:
First:
“Is
the Federal Youth
U.S.C.A.,
foregoing
“Having
considered
seq. applicable
et
to conviction
only
legal
motion,
presents
which
misdemeanors ?”
having
question,
studied
“May Congress
Second:
author-
Congressional History
enactment
imposition
ize the
of sentences more-
of the Federal Youth Corrections
upon youth
severe
offenders
being
Act;
opinion that
may
imposed upon
more mature
constitutional
*4
offenders for
violation of
same
legal
imposed
sentence
was
offense?”
valid;
is
be and
the motion must
hereby
Appellant
impose,
denied.”
insists
to
here, upon
person
court did
a
under
twenty-one years
age,
of
appealing
who has been
Movant
order and
from this
carrying
seeking
convicted of a
a
appeal
pauper-
misdemeanor
leave to
in forma
only
year,
stating:
maximum
is,
ap-
of
a
sentence
one
the district
“It
years
legal
pearing
sentence of from four
question
to six
in the
raised
custody
Attorney General,
by appellant
to
is
is
not
insubstantial
impose
ought
punishment.
cruel
authoritatively
and unusual
to be decided
Appeals”;
granted
of
Court
mov-
Quoting
statutes,
the several
on which
request.
ant’s
point,3
queries:
he relies for his
he
“How
you.
of
things
the treatment
afforded
All
(1) Any
punishable by
offense
death
having
considered, and
imprisonment
received
exceeding
or
for a term
only yesterday
young
notice
year
men
felony;
one
is a
your age
can
Any
be handled now for
(2)
other offense is a misde-
first time under the Federal Youth Cor-
meanor; appellant continues:
Act,
going
rections
clare
the Court
to de-
is
pro-
“Section
Title 18 U.S.Oode
you
youthful offender,
to be a
with-
vides :
“ ‘ *
*
meaning
*
of the Federal Youth
A sentence for an offense
Act,
penal-
Corrections
and in lieu of the
punishable by imprisonment
year
for one
ty
imprisonment
provided
otherwise
peniten-
or
shall
a
less
not be served in
by law,
going
you
we are
to
tiary
sentence
to
without the consent of the defend-
custody
Attorney
General for
ant.’
supervision, pursuant
n
treatment and
to
pro-
“Section
Title 18 U.S.Oode
Act,
the Federal Youth Corrections
:
vides
U.S.C.,
you
5005. That means
will be
“
*
* *
buys, receives,
‘Whoever
or
sent
to
first
a classification center at
* * *
any
things
conceals
other
Englewood, Colorado,
'you
where
will be
*
* *
may
larceny
subject
which
be
to
examined,
days
thirty
and within
a re-
thing
taken,
if the amount or value of
so
port
be
will
made
the Federal Di-
$100,
stolen or embezzled does not exceed
probably
rector of Prisons. Then he
will
$l,CO0
he shall
fined
more than
be.
you
place
psychiatrist
send
to a
where a
imprisoned
year,
or
not more than one
or
you. Probably, you
will work with
will
both.’
givén
part
also be
a chance to take
Federal Youth
“The
Corrections
activities,
recreational
and the other ad-
Sec, 5010(b)
provides:
Title
TJ.S.Code
vantages that
from
come
this Act.
“ ‘If the court
find that a
shall
convicted
you
go
you
“Where
after
leave
youth
person
offender,
of-
center,
the classification
That will be
Parole.
I do not know.
by imprisonment
punishable
fense is
un-
up
.entirely
to the Board of
applicable provisions
der
lawof
other
helpful
it
I believe will be
subsection,
may,
than this
the court
you.
certainly hope you cooperate
penalty
imprisonment
lieu of the
other-
your ability,
you
to the best of
and when
provided
law,
youth
wise
offender
General
pursuant
sentence the
you
self-respecting,
come out
will be a
custody
Attorney
to the
God-fearing, upright young man.”
supervision
treatment and
chapter
Pointing
discharged
out that Sec. Title 18
to this
until
U.S.C.
provided
lists offenses
them:
Division as
classifies
section
chapter;
5017(c) of this
argues
empowered
possibly
he
on its
L.Ed.
can a
custody
guilty
face a
accept plea
offense when
to an
commitment
Attorney
knowingly
enters such
General for a term of from four
the defendant
plea
years
punish-
offense,
to six
when the offense of which
maximum
year
he
provides
was
one
convicted
a maximum
ment allowed
which
punishment
year
only
suddenly
receives
one
is cruel and
then
year
power
impose
deprives
process
sen-
excessive and
him
four
six
of due
urges upon us of law.
querying, he
tence?” So
question
must
that on
it
first
briefly
For
the reasons hereafter
that,
held
since he was found
apply
equal
stated which
force to
could be sen-
an offense
which he
questions posed by him,
both
we think
year
tenced
serve more than
no
clear that both of them
be an-
must
penitentiary, and
and in no event in the
against
swered
his contentions and for
for a
committed
nevertheless
affirmance.
years,
from
under
term of
four to six
any
put
kind of
which he could be
custody including
pointed
As
out
the Govern
penitentiary,
brief,4
ment’s
the Youth
sought
imposed upon him
*5
sentence
to be
applies
persons
to convicted
under the
year
over
he has
and above
the
age
twenty-two years
of
of
at the time
is void
re-
served
and he is entitled to
designed
provide
the conviction and is
to
lease.
persons
such
with correctional treatment
looking
complete
invoking
to
question,
their
rehabilitation
the second
the
On
Eighth
citing
punishment,
pre
in lieu of
and
O’Neil v.
that is with
Amendment
guidance
Vermont,
323,
training,
12
ventive
and
of
State of
U.S.
S.Ct.
and
all
provides:
Oong.
(hereinafter
5017(c),
supra,
81st
1st Sess.
re-
“Section
“
youth
‘Hearing's’), p.
'A
under
ferred to as
offender committed
sec-
62.
5010(b)
chapter
tion
of
shall
this
be re-
Report,
“As stated in the House
condiiionally
supervision
leased
designed
statute
to
is
make available for
exjnration
years
of
or before the
four
discretionary
use of
federal
from
date of his conviction and shall
judges
system
sentencing
a
for the
and
discharged unconditionally
on or be-
youth
treatment
of
offenders
that will
years
six
fore
from the
of
date
Ms con-
promote the rehabilitation
of those who
”
viction.’
promise
becoming
show
of
useful citizens
degenerative
and so will avoid the
and
grew
study
statute
“The
out of a
con
many
needless transformation
of
of those
by
ducted
a subcommittee of a committee
persons
into habitual criminals. To that
Judicial
of
Conference
the United
provides
system
end,
analysis,
of
for
States,
consisting
Judge
of Chief
Orrio
treatment,
cure,
and release
that will
Phillips,
Judge
Collet,
L.
John C.
and
rather
accentuate
anti-social
Judge Carroll
Chief
C. Ilincks. Recom
led to
tendencies
that have
the commis-
adopted by
mendations
committee
by permit-
sion of
This is done
crime.
approved by the Judicial Confer
were
ting
of
the substitution
correctional
re-
Sept., 1949,
in
and were
ence
embodied
punishment.
habilitation
retributive
ultimately
bill which
in
became
departure
punitive
from
It marks a
objectives
Youth
Act.
dealing
idea of
criminals and looks
with
by
Act have been endorsed
a num
objective
primarily
idea of
re-
by
conferences,
majority
Circuit
of
ber
Il.Report
2979,
habilitation.
No.
81st
Judges,
District
the American
Cong.,
p.
2d
Sess.
Institute,
organiza
and
other
Law
upon
aims,
“In
these
based
Report
1180,
See Senate
No.
81st
tions.
developed
principles
procedures
and
un-
accompany
Cong.,
2609,
1st Sess.
to
S.
der
known
Bor-
what has become
as the
Report
3-4;
pp
No.
House
81st
system,
stal
in
which lias been
success-
accompany
2609, pp
Cong. 2d Sess.
S.
England
operation
ful
in
since 1894.
It
testimony
Judge
2-8;
and the
of Chief
youth authority
also borrows
from
stat-
hearings
Phillips
during the
before
California, Minnesota,
in
Wiscon-
utes
Judiciary
of
sin,
Texas,
the Senate
Massachusetts,
Subcommittee
and
and from
System
proposed
on a ‘Correctional
Committee
a model act
the American
Offenders’,
and
S. 1114
S.
Law Institute
in 1941.”
by law”;
provided
designed,
defendant
provisions
otherwise
are
enacted and
its
tacitly
object
did
assented there-
end in view.
not
but
enforced with that
to.
because the
unfounded
law
has been
federal case
While no
upon
improved
act is based
modern and
us,
con
found
cited
and we have
none
penological
methods, mere-
views and
not
dealing
struing
or otherwise
the act
ly
punishment
crime and its
but
presented,
precise questions
with the
here
also,
correction and rehabilitation
includ-
many
cases have
well reasoned state
ing
application,
and new
extension
may
holding
respect to
cited
with
and
youth
penology,
field
corrective
directly contrary
appellant’s con
them
theory of,
provisions
in-
and the
dealing
precisely
tentions. Cases
long
sentences,
determinate
in force and
contrary
deciding
authoritatively
accepted
nearly
It,
all of the states.
contention,
Correc
the Youth
therefore, provides
youth-
for and affords
applicable
convic
tions
Act is
offenders,
ful
in the discretion of the
misdemeanor,
v.
are State
tion for a
penalties
punish-
not heavier
Heitman,
181 P.
105 Kan.
imposed upon
ment than are
fenders,
of-
adult
Scherbing,
People
A.L.R.
opportunity
escape
but
Cal.App.2d736,
In each
circumstances more than That was neces- deprive sary think, prerequisite, so I his de- tion liberty longer period. appellant of his for more than I would tention my opinion, is, deprived year unconstitu- he has been hold that application. liberty for the maximum time tional Liddell, parte leading Ex Cal. 6. Cf. Cal.2d P.2d ease 251; Herrera, 1943, 29 P. In re Correction field. apprehended time' at the could have guilty, plea of his waiver of counsel dis- entitled to he is therefore
charged. application A further unconstitutional hearing by the Act is evidenced a ma- a record this Court on before
' appellant is portion terial of which the my In book denied access. process. both
procedural On due
grounds, respectfully dissent. Rehearing RIVES, Circuit denied: dissenting.
Judge, Appellant, BRASIER,
George H. Ash, Erick- JEARY, David L. Pat
Clark Mehser, George son, Harry Brehm, A. Schlegel, Schneider, Wel- Conrad Jack Society, Inc., America Forward As- fare Unknown, sociation, Inc., and Others Appellees.
No. 15937. Appeals
United States Court Eighth Circuit. 23, 1958.
June
Rehearing 21,1958. July Denied