Robert E. Barnes v. United States
419 F.2d 753
D.C. Cir.
1970
Check Treatment

*1 nagging doubts raised least at disappeared.4 poll have first BARNES, Appellant, E. Robert away explain attémpts majority The America, UNITED STATES that Coleman Ansher’s statements Mrs. Appellee. count on the murder not was Nos. 21581-21584. majority relating to Bland. them may Appeals speculates Mrs. Ansher United States Court District Circuit. Columbia impression laboring under been when Argued asked about Bland was she Jan. guilty” “not as to Coleman. answered she Decided Oct. began, poll the Coleman she Rehearing Denied Petition Cole- it times that advised three 30, 1970. Jan. poll.5 circumstances Under the

man not speculation Mrs. Ansher did

really mean when she answered not

poll that Coleman was three times

guilty, permissible, credi- is not even if

ble. jury is

The unanimous verdict of a de- our law chosen

the vehicle guilt punishment authorize

termine this, Perhaps in a case like

for crime. agree jury failed to

in which days deliber-

another has out three been dissenting impatience

ating, some juror 11 are the other

or confused to their understand-

clear as verdict impatience But such should

able. verdict, particu-

be allowed to affect larly capital as this in a case as close Judge, Fahy, dissent- Circuit Senior one. part. ed in

Ill I and

Given result reached Parts majority opinion, I concur

II III.

Part 4. Rule Thus the sel, indicate, duty tion. Here taken, regardless failed to turned jury tion. any party “Poll of where 31(d), shall be * * * request tactical and before it order a such a Jury. or the interests Fed.R.Crim.P., polled ” one. has the of whether reasons When poll poll at should have power, or defense verdict recorded his own request justice otherwise, reads: own mo- and the is re- coun- been mo- so 5. The has now Ansher, as to Gerald Coleman. Williams. ant Coleman. May (Emphasis added.) THE DEPUTY THE MRS. ANSHER: THE MR. NOONS transcript [*] Gerald I ask COURT: what DEPUTY been [*] Coleman on Count 1? say reads: jury polled you Let the CLERK: [Defense be Innocent. CLERK: as as to the defend- polled [*] to Robert E. jury as Mr. counsel]: be Lillian # polled jury *2 754

ing judge imposed a sentence of five to 15 years concurrently to run with the land sentence. court This reversed grounds on conviction not relevant present appeal new and remanded remand, pleaded trial.1 On 869-64; guilty charges to all in Cr. No. at the he same time also entered separate in- to three other federal dictments. This time the District Court years imposed on sentences of five to 15 (including each of the indictments four 869-64) Cr. No. —the other, but with each Maryland jail consecutive to the term. challenges appeal, appellant On this constitutionality severity of the increased imposed on 869- Cr. No. following guilty plea 64 on remand his since the is sentence now consecutive Washing- Shafer, Jr., Hugh Mr. A. M. running the state currently of con sentence instead court), (appointed ton, this D. C. delayed decision it.2 We appellant. pending appeal Supreme this Jacobson, Court’s decisions North Carolina v. Asst. U. S. A. Mr. Clarence 3 Bress, Simpson Pearce and Rice.4 Atty., G. Messrs. David with whom Atty. time brief U. at the S. In Pearce and Rice the Court Atty. Q. Nebeker, filed, Asst. U. S. Frank held that when a criminal conviction filed, Har- and time the brief was at the appeal or trial set aside on and a new Atty., on Sullivan, U. were Asst. S. old J. dered, may not be harsher sentence brief, appellee. imposed upon retrial unless conviction on Judge, FAHY, Circuit Senior justified severity on increased TAMM, Circuit and and WRIGHT* Judges. part conduct on basis of “identifiable occurring time after the the defendant 5 original sentencing proceeding.” PER CURIAM: showing; case, In such this there was no presently incar- Appellant Barnes is fact, fully appellant cooperated Maryland penitentiary serv- cerated in a large breaking up a the Government 1965, early ing In a state ring. change burglary Thus the indict- a federal on Barnes was convicted housebreaking, concur from ment, sentence on Cr. No. 869-64 Cr. No. grand larceny sentenc- and assault. error violation rent to consecutive was Wright Judge lot drawn Circuit No. 869-64. We sentence in Cr. the new Burger upon Judge replace only ap- his Circuit ourselves therefore address Supreme Court, Ap- challenge pellant’s and elevation to that sentence. Judge Wright points pellant case on has considered this other also raises several recording. tape carefully appeal the briefs and which we have merit. sidered and find without U.S.App. States, 124 1. v. United (1966). 318, 2072, F.2d 509 D.C. 365 23 L.Ed. U.S. 395 (1969). 2d 656 brief, appellant he states his L.Ed. S.Ct. 23 4. 395 U.S. validity challenges the other three (1969). 2d 656 arguments well, and sentences as but validity 89 S.Ct. at 2081. 395 U.S. at citations concern are, course, clause, bound process that sen- of the due once rule that a valid sentence tence must be revised. cannot be increased.7 served Revision, however, presents problems. than other three federal sentences simply order This court could 869-64 one based Cr. No. un improperly increased appeal. valid and are affected *3 concurrently with run der No. 869-64 Cr. they are “an the sentence to Since which But for several rea sentence. the state Maryland jail chored” —the term —has may delay the start of sons such action begun by appellant, three to be served the federal sen three consecutive the valid may federal valid consecutive sentences time, thereby imposed at the tences same Owensby See not be increased. v. United First, increasing al those sentences.6 States, Cir., (1967).8 58 10 385 F.2d position a though to make are not in a we conclude that this case cannot therefore judgment point, on this we definitive brought harmony with into be might prejudice appellant’s chance for a changing simply by sentence in Cr. the Maryland parole the fed if order we now No. from one that is consecutive 869-64 to in No. 869-64 eral sentence Cr. Maryland to runs the sentence to that Maryland sentence. the concurrently with it. parole Second, de since state and federal circumstances, the we Under believe appel independently, if are made cisions appropriate disposition that is to re- the Maryland paroled sen from his lant were sentencing judge to mand this case the guarantee tence, federal there is resentencing light for in the relevant parole him from authorities also would principles herein discussed. constitutional these cir the 869-64 Under proceedings for consistent Remanded cumstances, to serve opinion. with this remaining on that sentence be the time sen federal fore the three consecutive FAHY, Judge (concur- began Finally, Senior Circuit the record run. tences to ring length dissenting part): part, as to the us unclear before is ap Maryland date and the sentence the judg- I concur affirmance any began serving If, rea pellant it. ments of conviction in all cases son, the sentence concurrent appeal.1 judgment Each was entered expires than the later No. 869-64 Cr. plea guilty, upon and I find no basis again Maryland sentence, start the or which to invalidate either may federal sentences three consecutive judgments entered conviction delayed. be thereon. if are increased com- 6. Consecutive the sentence increased there was they pletely originally. start is are to the date at which But invalid though length delayed, position is, even Deutschmann stated directly Owensly course, contrary See remains the same. itself to Cir., Owensby States, and, believe, 10 385 v. United we unwise. The Deutsch- judge (1967). logic F.2d 58 mann would in- allow a to long crease a valid consecutive sentence Benz, 304, U.S. States v. 282 United imposed. Apparently been after it had (1931); 354 S.Ct. 75 L.Ed. 51 subject prisoner would remain Sacco, Cir., 2 367 F.2d United States v. threat valid consecutive sentence States, Owensby (1966) ; v. United 368 increased he had could be until served supra Note 6. prison to which terms This, secutive sentence was anchored. States, Cir., United 9 Deutschmann course, policies would defeat all 490-491, denied, 254 F.2d cert. 357 forbidding behind the rule an increase in 1377, 2 L.Ed.2d 1374 U.S. begun be sentence after has to served. (1958), holds that a consecutive Annot., (1947). See 168 A.L.R. 709 though may be the sen increased even begun is I from tence to which it anchored understand footnote 2 of the ma clearly jority opinion be That ease dis to served. the court affirms present judgments tinguishable from the one since of conviction. My disagreement is with the court’s and Rice the sentence in No. 869-64 could decision that the three federal sentences by being not thus be increased made con- other than the one in No. 869-64 secutive sentence because valid as consecutive enlargement, following such an the re- sentence,2 notwithstanding land hold- conviction, its versal of an earlier would ing that such penalty consecutiveness not now amount to a possible having in No. appealed. holds, The court also other however, sentences were to be concurrent. that the other three federal sen- tences remain valid as consecutive to the Appellant originally was convicted and Maryland sentence. Yet it does not sim- February sentenced in No. 869-64 in ply direct that the sentence in No. 869-64 years, to fifteen five to run con- original status, revert its concurrent currently with a term of im- might delay fear that such a revision prisonment which the had been ad- effectiveness, invalidly *4 en- thus years. was for seventeen re- vised large, Instead, the other three sentences. May versed in No. 869-64 on resentencing.3 the court remands for States, U.S.App. Barnes United D.C. 365 F.2d 509. On December expressed The difficulties the court 16, 1966, Barnes was resenteneed a in its remand of No. 869-64 for resen- judge guilty different tencing of product his holding are the of its that case and in the other three cases that the other three sentences continue appeal. sentencing, now on the to be Maryland as valid consecutive to the judge was advised the of the experience Office sentence. I no such difficul- Attorney United had my opinion States that Barnes ties as it is that all fed- four begun cooperate to the with Government eral sentences should concurrent grand juries and with of the District with one another. Maryland. Columbia and It was revealed Supreme Court declared in Pearce that Barnes’ assistance resulted in vari- that, and Rice police investigations, ous return the In order to the assure absence of [a indictments, of numerous the initia- motivation, vindictive] we have others, recovery tion of and in the judge imposes cluded that whenever a $70,000 property. some Bear- stolen more severe sentence a defend- ing circumstances, in mind these trial, ant after a new for reasons judge imposed aggregate an term of im- doing his affirmatively ap- so must prisonment in the four to cases five pear. years, stating: fifteen Pearce, North Carolina v. 395 U.S. give you for Court will credit 2072, 2081, 23 L.Ed.2d 656. entering your pleas also and appeals The record on these fails to re- your cooperation for with Govern- any objective veal information concern- ** ment. ing the conduct of the occur- These four fif- sentences five to ring original sentencing after years concurrently teen each to justify enlargement would an of that sen- with each other run consecutive will Accordingly tence. that must to the in the State original to revert its status as concur- Maryland. Maryland rent with the sentence. On agree I with the court that under the hand, clearly the other the record demon- in Pearce Supreme decision of the Court strates the trial intended to challenged Appellant adequately question obliged tial that we would be four federal He did so in his sentences. to consider it. pro se Motion to Vacate and Set Sen- remanding resentencing tences and later in his brief before Aside In for the court Moreover, appear guidance whether a sentence court. does not to offer to the begin long is to sentence or after state District as to how Court to solve the problems suggests. is such therewith a substan- guilty pleas sentence, destroying the scheme of give thus credit scheme, cooperation consecutiveness. The concurrent the Government with however, by Pearce and unaffected three other federal he made justification Ño. 869-64. Rice and I can see no with concurrent sentences recognize possibility that this this court to disturb it. I While might been conditioned intent have sum, my In view serve Barnes should in all four the consecutiveness years the federal five to fifteen under sentence, no reason I see sentences, he time as credit for such view, adopt condition such might Maryland case, in the serve law, expressed, required isor subject parole and other of course to such my by the circumstances. warranted rights under federal as he have judge would of the record trial view only just, as result is not statutes. This concurrency have maintained sentencing consistent with the had he each other four sentences with recognition mitigating circum- re- No. 869-64 should decided that combine into stances which led him to rather than consecu- mained concurrent sentences, but tive gives meaning result which unifying By applied four sen- concurrent all as and Rice decision as their these tences consecutiveness cases. sentence, merely in No. land subject constitu- became *5 objection in Pearce and enunciated tional supports the trial

Rice. The record

judge’s four sentences conclusion similarly, and there

should be treated by explanation,

no as necessitated Rice, why only ELECTRIC ASSOCIATION MUNICIPAL .but, of their No. 869-64 reason al., et OF MASSACHUSETTS currency it, three other Petitioners, enlarged being made sentences were v. disregarding concur- consecutive. AND COM SECURITIES EXCHANGE treating rency sentences, and of the four MISSION, Respondent, independent, the court three them as Corp., Yankee Power Vermont Nuclear protection denies the accused re- Intervenor. quired is not Pearce and Rice. He given protection this MUNICIPAL ELECTRIC ASSOCIATION al., et OF MASSACHUSETTS prevented from Petitioners, consecutive sentence; the total leaves unaffected,

term of confinement SECURITIES AND EXCHANGE COM- MISSION, Respondent, why explanation the trial added the of No. Co., consecutiveness after the reversal Maine Yankee Atomic Power danger Accordingly, Intervenor. 869-64. penalized the accused have been Nos. having appealed, in Pearce and Appeals United States Court there, Rice led to decision attaches District of Columbia Circuit. here four combined sentences. Argued Sept. I reach another the same result Decided Nov. disrupted route. Pearce and Rice sentences, consecutiveness of the federal concurrency. not their deci- Under that

sion the can no No. 869-64

longer be consecutive to the