*1 point 194. Eastern’s Commission’s Posen, v. grant although charter, dif- impressed of a new on to One cannot fail' defense, gave terms, deprived ferent it of this the Commission attention which larger government consequently charging should desirability be held which charter. We can- percentages reasons and to the regard per- this However, believe that the Commission’s it. motivated mitting Eastern to make a subcharter unnecessary our decision. enlargement was intended as an of East- aspect second The rights. ern’s Eastern’s contention that the Commis Judgment will be entered power change no sion had the basis judgment of the District Court. accounting, posi worsen its hence charter, September 1947, by terminating the charter
granting a new one.9 Since the charter
change
will,
was
this
terminable at
right.
normally the
Geb
Commission’s
Royce
Corp., Cir.,
hard v
Aluminum
complaint
1961,
Eastern takes pre 709(a), tive of section this assent terminating from the Commission vented modifying respect to the charter with voyages until had two vessels these these completed. provision requiring assent inserted for the Commission’s government’s benefit, not for East agrees Indeed, Eastern ern’s. might have terminated the Commission outright spite September charter assent. case Eastern of this obligation under no have been would agree because their subeharterers releasing provision contained ments “frustration,” in case of and an Eastern outright the charter termination obvious frustration. have been says makes no reality matter the Commission the substance 9. Eastern present difference. the charter. Whether rewrote *2 custody
was committed to the Attorney pursuant General to 18 U.S.C.A. 4208(b).1 The Bureau Prisons granted day day and a extension study period of the three month for Judge, Knoch, dissented. petitioner complete a in order to psychiatric examination. June On having after received and consid- study report ered the Bureau’s its petitioner, Court entered the District judg- modifying previous an order providing period ment and “that the imprisonment imposed be heretofore
years”. (5) reduced to Five
Thereafter, petitioner filed a mo- tion to vacate sentence. Jurisdiction was predicated on 28 U.S.C.A. 2255. The District Court denied the pe- motion and appealed. titioner Petitioner’s main contentions on are that the District Court’s denial of his oral motion for a mental examination constituted a denial process of due petitioner absence of and his counsel at the time the court modified petitioner’s commitment makes the re- subject duced sentence to collateral at- process tack for want of due in its im- position. We find no error in the District rejection Court’s of the denial of the Young, petitioner’s Indianapolis, Ind., L. Aribert motion for a mental exami appellant. affording for nation as a basis for relief It was an oral Stein, motion Atty., Richard P. U. S. David made commencement of the trial Mernitz, Atty., Indianap- Asst. U. S. W. jury and after the sworn, had appellee. but olis, Ind., for presence. out of its 18 U.S.C.A. 4244 DUFFY, KNOCH Before and contemplates that a motion on behalf of Judges. CASTLE, Circuit judicial an accused for a determination competency mental stand trial shall Judge. CASTLE, Circuit ground set forth the for belief that such Leroy Behrens, petitioner- capacity lacking. Kenneth mental The oral guilty jury appellant, found this, although failed to do intent to murder in violation assault the trial court did entertain the motion Judgment 113(a). merits, of 18 U.S.C.A. § and ing consider it no show petitioner on the verdict and the entered was made which that a order 4208(e), and commitment 1. The described in Title 18 U.S.O. alia, provided, study inter that: results such to be furnished the adjudged (3) months, the defendant “It Court within Three where- custody hereby upon imprisonment committed the sentence of shall repre- Attorney subject or his authorized General to modification in accordance 4208(b).” for a with Title 18 sentative U.S.C. years, study Twenty (20) More- sion law. term the ordered. sen- mental examination stat- tence shall run from over, petitioner’s court counsel date trial opinion, was, his commitment under this section”. petitioner ed that understand, charges fully able to report And made *3 against defense. in his him and assist following 4208(c) data: relates to the support the only showing adduced prisoner’s previous delin- “[T]he statement counsel’s motion was defense perti- quency experience, criminal or . revealed petitioner’s record medical that circumstances his social nent background, of “[A]ny and himself cut he had once that capabilities, his his fairly cutting serious”. self is of one’s health, physical mental and and such presented here circumstances Under the may considered other factors as be due deprival of error or a it was not pertinent”. a mental deny process probation granted, If is not either an Krupnick v. United Cf. examination. affirmance of the maximum sentence of 213, States, 8 264 by prescribed for the law Although 4208(b) U.S.C.A. au- 18 (which offense maximum sentence the de- thorizes a commitment of a convicted imposed) been or statute to have deems study an aid fendant for to serve as a sentence, required. of that a reduction determining sentence be term as then That of sentence no final there is determination by run affirmance or reduction is to fixed until affirmative ac- the actual sentence date of the commitment from the reports and rec- tion is taken after the merely convicted serves to assure de- study resulting from the ommendations devoted fendant of credit for respect received. this have been 4208(b) study statute thus fixes —the provides: starting point of the sentence whenever it detailed determining court desires more punishment, “If the is utilized a basis for deter- information as mining must duration of the sentence but the imposed, to be the sentence determinative action final await may defend- commit the the court or the maximum term court in custody Attorney reducing ant to action occurs it. Until such General, which commitment shall be and final sentence has been no definite maximum be for the sen- deemed to imposed. imprisonment prescribed tence of law, States, 513, 351 U.S. v. United In Parr study a as in sub- described 1377, 912, 100 L.Ed. it was 76 S.Ct. (c) The results of section hereof. general, the rule that that observed together study, recom- such final it terminates when mendations which the Director of litigation parties on the between of Prisons the Bureau believes nothing case, and leaves merits of determining helpful in the dis-
be position enforce execution what but to done case, fur- shall be applies determined, in criminal the court three nished to within cases. civil well as grants time, months unless the court to exceed additional three an opinion appli that In our rule is study. months, for further After requirements and fundamental here cable receiving reports such and recom- process made it essential due mendations, the court in its dis- present at petitioner be the time of such (1) prisoner Place the cretion: right sentence, imposition and that his probation as authorized section present counsel his honored. to have (2) title, affirm Rules of Criminal Federal Pro Rule imprisonment originally U.S.C.A.) sentence (18 pres cedure imposed, recog or reduce the sentence defendant. Rule 44 ence right represented by imprisonment, and the of- commit his his nizes stage every proceed- any applicable provi- “at fender under counsel guarantee pose 4208(b) pro- ing” authorizes harmony that § sentencing, postponement of for a limited de- A vides the Sixth Amendment. study admittedly made and probation, invalid action until finitive even reports Pollard recommendations re- absence. in the defendant’s 354, 360, 77 S.Ct. ceived. The under States, action to be taken 352 U.S. United 481, 4208(b) Gen is unlike a reduction of The Solicitor sen- L.Ed.2d 393. in Gra tence made Rule Federal Rules submitted eral in memorandum 426, 82 S. States, Criminal Rule 35 admits Procedure. v. United bina discretionary ab of a 7 conceded of a 8 L.Ed.2d reduction Ct. definitively already imposed sen time of at the of defendant Rule sence tencing properly dispenses un error” and with the defendant’s “fundamental *4 presence But, purpose. are basic “there for such under such circumstances der v. 4208(b) Ellis in Cf. until the “affirmance” of § the sentence”.2 infirmities Wilfong 175; v. Ellisor, Cir., maximum 5 F.2d term of or its 239 Johnston, Cir., 507. 9 “reduction” no sentence 156 definitive imposed been no sentence. is —there haveWe considered United Dev. States And, at the it is time when the actual Blasis, F.Supp. (D.Md.1959); 177 484 definitive sentence to which is be served Blasis, F.Supp. De United States v. 206 imposed presence is of the de (D.Md.1962) 38 and United States v. right fendant and his advice of to counsel Johnson, F.Supp. (E.D.N.Y. 207 115 meaningful. is It then in 1962) in each of which it is held that intelligent many cases an decision as to presence of the defendant at the time appeal light can be made. Probation or a in maximum a reduction term im- may sentence well be a determinative in 4208(b) prisonment to is not § whether an fluence on is to be required. haveWe also considered the Moreover, right taken. of allocution placed 4208(b) Corey on construction § is more crucial when the court about States, 1 307 F.2d v. United 839 pronounce the to actual sentence the de Behrens, F.Supp. States 190 United is to so fendant serve—more than when Ind.1961).3 (S.D., But we are of the 799 merely permits the court the statute to rely heavily that these cases too view on automatically prescribe the maximum im terminology employed in the statute prisonment until court can more in used, which, in the context at am- best telligently appraise pertinent factors biguous. light more detailed information regard maximum term of im- To the actual and make determination as to “deemed” to have been im- prisonment the sentence shall what be. We do not 4208(b) States, as an 424, actual sen- read Hill v. United 368 U.S. tencing defendant, 417, where, 468, even as 7 82 L.Ed.2d S.Ct. Machi expressly States, here, maximum term 487, broda v. United 368 U.S. 82 judgment order, is, 473, placing into the 7 L.Ed.2d as written S.Ct. be judgment directly yond purview con- considered of relief 28 our U.S. express purpose trary intent a 2255 situation where to C.A. absence object The declared section. defendant shows the defendant 4208(b) affirmatively is to opportunity denied purpose enable was an detailed information speak obtain such at his actual to to the time sentence court determining may Hill, imposed. actual aid where it was defendant imposed. pur- present It is for this were and his at the sentence counsel time excerpt sentencing from Solicitor General’s to the court for returned fol- 2. See quoted 4208(b) lowing existing in Grabina commitment submitted a memorandum DeBlasis, D.C., among who had occasion States v. those have in United subject. F.Supp. express themselves Sem- 39-40. Disparity Institute inar & Sen- tences, several F.R.D. have also noted the different 3. We as to an offender must be views whether going grant personal probation, in- was imposed, the Court was sentence p. properly (368 struction point out careful press defendant with serious na- 471): p. S.Ct. grave probation ture of conse- and the not arewe noted that “It is to be violating quences provi- rules and dealing a where here sions. affirmatively denied was defendant during speak opportunity to an hearing However, question a mat- must be which his sentence Judge’s ter for Trial sound discre- * * * Indeed, no imposed. there is light tion in the of the circumstances of have defendant claim that the particular case. It is an essential say had anything if he at all to had process. for due speak. formally invited us, In the matter before the defendant avail- relief would be Whether and his counsel were usual afforded the 32(a) Rule if violation able right of allocution at the time that the ag- other in the context of occurred gravating imposed. That ques- circumstances is present opportunity defendant’s all consider.” therefore do not mitigation. matters in The fact Dis- conclude that therefore We might trial presenting, tactics be better served *5 denying petitioner’s erred in trict Court repeating, these matters But the sentence. vacate proce- at a later should not alter time not underlying judgment conviction Neither dures. should the fact that sentencing infirmity of the affected Judge may modify Trial later the sen- and, accordingly, reverse procedure originally imposed, tence after considera- judg- with directions and remand acquired tion information to be from vacated of June be ment order procedure under another source. The proceed to the District Court and that analogous 18, U.S.C., 4208(b) Title petitioner be- returned to be cause the under Rule Federal Rules of to that pro- further the court for bar of fore the Procedure. The can- Criminal jurisdiction ceedings in exercise of its only not increased. It can be left un- 4208(b), Title under Section or reduced. modified Code, herein ex- views consistent disposition pressed. us, matter before In the case, made of the while defendant was Young L. of the Indian- Aribert Mr. open open only court, present in left one ably petitioner served the apolis has bar question question. That re- appeal appointment as counsel in through examination, medical over solved express apprecia- our We this Court. time, by competent authorities services. those tion report findings their who were and remanded. Reversed was no need to There consult the Court. defendant; there was no need for the de- Judge KNOCH, (dissenting). present in court. This fendant Judge’s solely matter considera- majority agree with the I this Court expert medical advice he was tion of underlying in receive. am, however, I this case. conviction agree that the District Court unable to Unnecessary prisoners transfer denying petitioner’s motion to erred multiplies opportunities escape the sentence. vacate upon occasion created dan- serious charged only practice gers to those well be the better It prisoner public produce but to the at instances defendant care some away large. previously from Transfer when the sentence institu- court employed confinement should be be modifiedin accordance with is to rights important pris- provisions when of Title U.S.C. 4208 example, demand it. (b). For where Court oner correspondence which the flood With penal judges institu- from reaches it tions, every provocation, conceivable might appear a defendant by mail if there were communicate
particular which he wished matters to Judge’s in con- attention invite the Trial report knew which with the he nection being prepared. Corey majority, I find the Unlike ex- persuasive. I am convinced not con- time for tension templated statute. MOHLER, Lee Petitioner- Chester Appellant, *6 America, UNITED STATES of Respondent-Appellee. No. 13733. Appeals Court of United States Seventh Circuit. Jan. 1963. Rehearing Denied Feb. Moran, Chicago, 111., ap- B.
James pellant. Feickert, Atty., Carl W. U. S. Walter Williams, Atty., Asst. D. U. S. East St.
Louis, 111., appellee. HASTINGS, Judge, Before Chief KILEY, Judge, GRUBB, Judge. District