Robert W. FLINT, Jr., Petitioner, Appellee, v. James MULLEN, Warden, etc., Respondent, Appellant.
No. 74-1061
United States Court of Appeals, First Circuit
June 25, 1974
Argued May 9, 1974.
The company‘s vice president, who was also the general manager of the plant where Young worked, testified that in selecting inside salesmen the company sought people who displayed diplomacy, intelligence, patience, initiative, attention to detail, and ability to work under stress. Additionally, the witness emphasized that an inside salesman must have concern for the welfare of the customer, while remaining loyal to the company. The company, however, has no written job description for the position and it has not established any formal educational requirements. The ability to write and speak effectively may indeed be essential, but the record does not disclose what level of competence the company normally required in this respect. Nor does the evidence establish whether presently employed salesmen write and speak more fluently than Young. Moreover, several years ago, the company rated Young‘s job performance on a par with a white co-worker who was subsequently promoted to inside salesman. Of course, satisfactory performance of one task does not always foretell ability to perform another task, but Young‘s excellent rating provides further indication that he should now be reevaluated by the company in a lawful manner.
That part of the court‘s decree which denies Young relief is reversed; in all other respects the judgment is affirmed. The case is remanded to the district court with directions for the entry of a decree requiring the employer to reevaluate Young‘s qualifications for filling the next vacancy in the inside sales force using nondiscriminatory, objective, job related standards. If a probationary period has been used to test other inside salesmen, Young should have the same opportunity to demonstrate his qualifica-
tions since he has already shown ability in his present job comparable to that of a white employee who was previously promoted. The district court should determine what provisions are appropriate for seniority and job retention in the event Young is transferred from the warehouse to inside sales.11 In due course, the district court should also rule on Young‘s claim for back pay.12 Young shall recover his costs.
Ralph J. Gonnella, Providence, R. I., with whom Hodosh, Spinella, Hodosh & Angelone, Providence, R. I., was on brief, for appellee.
Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.
PER CURIAM.
This is an appeal by the State of Rhode Island from a decision by the district court, 372 F.Supp. 213, which granted an application for a writ of habeas corpus, pursuant to
Petitioner was on probation, pursuant to a deferred sentencing procedure authorized by
A violation hearing was held before the Superior Court at which time the petitioner had the right to be heard personally, Harris v. Langlois, 98 R.I. 387, 202 A.2d 288 (1964), and the state had to present factual material proving that it was reasonable to believe Flint had failed to comply with the terms of his probation. Tillinghast v. Howard, 109 R.I. 497, 287 A.2d 749 (1972). Petitioner personally, as well as through his appointed counsel, again protested the holding of a revocation hearing before the trial. His motion for deferral was again denied. Petitioner‘s counsel then stated that there were facts favorable to the defense which should be presented at the hearing and that, in his opinion, the defendant should take the stand and testify. Calling five witnesses, all of whom were cross-examined by petitioner or by his counsel, the state presented evidence that defendant‘s brother, John, had robbed a bank and that defendant had participated by driving the getaway car in which he and his brother were arrested shortly after the robbery in the vicinity of the bank. Petitioner then informed the court that he and his counsel were in disagreement. Counsel was permitted to withdraw, and new counsel was appointed. At the close of the presentation of the state‘s evidence, the newly appointed counsel informed the court that petitioner chose neither to present evidence nor to take the stand because he did not wish to disclose his defense, planned for the upcoming trial. The Superior Court found petitioner in violation of his deferred sentence agreement and sentenced him to twelve years. The court emphasized that its finding was not just because an indictment was returned; it summarized the evidence and noted “we have given [defendant] the opportunity of being faced by his accusers.” Petitioner was subsequently tried and acquitted on the robbery charge which had been at issue in the deferred sentence violation hearing.3
The district court concluded that petitioner was denied due process at his deferred sentence revocation hearing, in violation of the standards enunciated in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), and Palmigiano v. Baxter, 487 F.2d 1280 (1st Cir. 1973), insofar as he was not provided with use immunity for statements he might have made in his defense. We believe, however, that the right not to speak embodied in the
Neither Simmons nor Palmigiano is directly applicable to a deferred sentence violation hearing. Unlike the defendant in Simmons, petitioner was never faced with a choice between raising one constitutional right and foregoing another. The choice whether or not to exercise one‘s
In McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971), which involved a defendant in a unitary trial faced with the difficult choice of speaking out for a lenient sentence and risking self-incrimination, or remaining silent and risking a harsh sentence, the Court held the choice did not unconstitutionally burden the defendant‘s
We would view the choice as less strategic were an adverse finding to be based on the fact of defendant‘s silence, rather than independent evidence, as here. In Palmigiano, supra, the defendant‘s silence in the prison disciplinary hearing could not be viewed merely as a strategic alternative, since he was advised that it would be held against him. Moreover, he had no right to appointed counsel, the role of retained counsel was limited, the right to call witnesses and cross-examine them was undermined by the possibility that the disciplinary board would rely upon informants, and the proceeding was conducted and the facts ultimately determined by correctional officials. Petitioner, however, was provided with counsel, and both petitioner and his counsel had full opportunity to cross-examine every adverse witness and could have called their own. O‘Neill v. Sharkey, 107 R.I. 524, 268 A.2d 720 (1970). The violation hearing was conducted before the State Superior Court. Although the burden of proof was less than that required in a criminal trial, Tillinghast v. Howard, supra, it was not so low that, as in Palmigiano, supra, a mere allegation of wrongdoing,
Petitioner urges upon us a broader analogy than Palmigiano, and likens his plight to that of the defendants in Lefkowitz v. Turley, 414 U.S. 70, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973), Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967), and Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967), where the Court held unconstitutional various penalties (disqualification from public bidding, removal from office, and disbarment) which attached to the valid exercise of the privilege against self-incrimination. Petitioner would have us view the risk of an adverse judgment in the violation hearing as a penalty upon petitioner‘s right to remain silent in his subsequent criminal trial, stemming from the same incident.
Yet not every undesirable consequence which may follow from the exercise of the privilege against self-incrimination can be characterized as a penalty. For example, it is unlikely that a state‘s refusal to issue a driver‘s license unless an applicant‘s name, address, and previous driving record were provided, would be viewed as a penalty upon the applicant‘s
More importantly, the trilogy of Supreme Court employment cases on which petitioner relies all involved instances where the government was attempting to collect information for the express purpose of supplying evidence in subsequent criminal trials. Lefkowitz, supra at 81. Under these circumstances, the Court recognized that the
To the extent that petitioner‘s argument is based upon what seems to be an unfair consequence of holding the violation hearing before the criminal trial—that petitioner could be convicted of violating his deferred sentence agreement, only to be acquitted, pursuant to a higher burden of proof, at his criminal trial—we sympathize.5 In the ordinary
This would be a different case if the penalty for violating the deferred sentence agreement—institution of the deferred sentence—were really a penalty for committing the very offense which had violated the agreement, since we would then have to consider whether the violation hearing met all the constitutional requirements for a criminal trial. The subsequent criminal trial, under these circumstances, might also raise problems of double jeopardy. But the record is silent on this point and it was not raised below. Petitioner was sentenced to twelve years in prison for violating his deferred sentence agreement. The agreement had been in lieu of a prison sentence for conviction on one count of robbery. Although the other two counts had resulted in a six year concurrent sentence, robbery carries a maximum penalty of life imprisonment,
Perhaps it would be preferable had the deferred sentence agreement stipulated the maximum sentence to be imposed if the agreement were violated, just as it would be preferable for the state to have held the violation hearing after the criminal trial. The Constitution, however, does not require the state, in every case, to adopt what appear to be preferable procedures. On the record before us, we are unable to find any basis for saying that the occasional unfairness which results from the state‘s ordering of the two proceedings, and convicting at the violation hearing while acquitting at the subsequent criminal trial, reaches unconstitutional proportions.
Reversed.
COFFIN, Chief Judge (dissenting).
As I read Simmons, supra, and the employment cases, Lefkowitz, Garrity, and Spevack, a principle emerges which, in my opinion, should control the instant case: the government should not be in a position where it might be tempted by potentially coercive means to short-cut its broad investigatory responsibilities and its obligation, if it wishes to punish an individual, to “produce the evidence against him by its own independent labors“. Miranda v. Arizona, 384 U.S. 436, 460, 86 S.Ct. 1602, 1620, 16 L.Ed.2d 694 (1966). Regardless of the government‘s good intentions in requiring a defendant to establish standing under the
In the instant case, the government‘s ability to time the violation hearing, with its lower burden of proof, so that it comes before the criminal trial on the same charge, enables the government to gain evidence for the criminal trial the easy way. The right to be heard personally in the deferred sentence violation proceeding—the right to explain one‘s “side of the story“—has been thought so important to an alleged violator that Rhode Island elevated it to a constitutional requirement a decade ago, Harris v. Langlois, 98 R.I. 387, 202 A.2d 288 (1964). Yet, with the government in control of the timing of the two proceedings, an alleged violator can explain his “side of the story” only by opening him-
The pressures on the parolee, the latent possibility of manipulation of timing, and the minimal inconvenience placed on the state are such that I would affirm the opinion of the district court, with the proviso that the state be given the choice of providing use immunity or postponing the violation hearing until after the criminal trial.
UNITED STATES of America, Plaintiff-Appellee, v. Carl FIORITO, Defendant-Appellant.
No. 73-1617
United States Court of Appeals, Seventh Circuit
June 28, 1974
Heard April 1, 1974.