*1 420 probation the facts of past, had lant in the informant had been gross of discretion.3 past, abuse was a and case addict narcotics
been
makes clear
the record
made On
promise
had been
or threat
no
given full lati-
testimony
to
that defense
favorable
to induce
government.
mitigation of
present
to
tude
Cross-examination
find
punishment. We
ques
offense and
except
the one
his
vigorous,
and affirm
government
discretion4
herein,
no
abuse
tion discussed
district
and sentence
objections.
interposed
Under
circumstances,
contention court.
cross-exam
effective
he
denied
totally
United
merit.
ination is
(7th
Teller,
Cir.
United 1022, denied, 1969), U.S. 396 cert. Cir. (1970); 595, 515 24 L.Ed.2d 90 S.Ct. cf. UNITED STATES Alston, F.2d 48 460 v. 871, denied, (5th Cir.), cert. v. (1972); Unit L.Ed.2d 122 S.Ct. Twomey, ANDERSON, v. rel. Abbott Defendant- ed States ex Appellant. (7th F.2d 400 Cir.
No. 74-1021. II “ Sixth Circuit. imposed sentence [A] Argued judge, June if statuto- 1974. federal district ry limits, generally subject re- Sept. 24, Tucker, 404 U.S. view.” United States 443, L.Ed.2d S.Ct. allocution, At time Judge is no “There Meredith stated: anybody going put this court is period.” probation, who sells narcotics judge ei- contends that or failed to
ther abused his discretion refusing any exercise discretion possible probation.
consider him for
However, failed to demonstrate Nick has judge mechanically
that the trial had a denying probation practice inflexible grant appel- refusal to his points Indeed, offender; out tlie Clopton, 46(1) 73 Or. 5¡s ¡i: (Aug. 17, 1973), recently Meredith (iii) unduly depreciate it would the seri- placed plead- two of six defendants who had ousness of the offense a sentence charges ed probation. narcotics probation imposed. were Woosley States, 4. See F.2d 139 Project holding, 3. See ABA on Standards Crimi- In of our view Justice, Relating unnecessary nal Standards Probation what for us to consider 1.3(a) (App. 1970) distinguished probation, : Draft extent a denial subject probation, Probation should be the sentence unless from a revocation of judicial States, finds that: review. Burns v. United Cf. (i) necessary protect confinement L.Ed. 266 public activity from further criminal *2 Hanni, Don Youngstown, Ohio, L. for McCree, Judge, Circuit dissented defendant-appellant. opinion. an and filed Coleman, Atty., Frederick M. U. S.
Cleveland, Ohio, plaintiff-appellee. for EDWARDS, Before and McCREE Judges. ENGEL, PER CURIAM.
Appellant in
jury
this case
a
waived
tried before a
District
the United States District Court for the
Northern District of
Eastern Divi-
attempted
manslaughter,
sion
in vio-
1472(k)
lation of 49
(1) (1970),
U.S.C. §
and 18 U.S.C. 1113
She was
found
years
and sentenced to two
4208(a)(2)
U.S.C. §
produced
The events which
this sad
story may
and macabre
be recited brief-
ly,
only appellate
sig-
since
issue of
pertains
nificance
a
boarded United Airlines
plane scheduled between Pittsburgh,
Pennsylvania
Ohio.
(she
Some time
Pittsburgh)
fied 15
after it
left
went to
of where she remained until
plane
minutes after the
had landed in
Youngstown.
appellant
After
airplane,
crew had left
ground
charge
cleaning
crew in
plane
baby in
noticed a
the bottom
help
the toilet and called for
to cut a
hole
side of
toilet
box.
refuse
baby
was full term and lived.
Federal
is defined
1301(32) (1970),
which defines
include:
United States to
“(a)
aircraft of the
civil
*
**
States;
purpose
For
definition,
consid-
flight from
ered to be in
moment
applied
when
voluntary
until the moment when
of takeoff
other than
ignorant
run ends.”
of the federal
standard when he entered
testimony at trial indicat-
Defendant’s
into it.
well
baby
dropped in
toi-
ed that the
counsel,
her
trial
sen-
receptacle,
least
two
let
tence, preferred
take
contemporaneously
liquid
it,
inches
in a federal
state forum.
rather
*3
with its birth.
Supreme
As the United
Court
States
parties
stipulated:
At trial the
early
held in an
case:
stipulated by and be-
“No.
is
give
parties
of
cannot
the
“Consent
tween the Government
jurisdic-
of
Betty
courts
the
defendant,
Jean
and the
may
tion,
parties
but
the
admit
the
Anderson,
Anderson
existence of facts which show
gave
the
birth to a child
judi-
diction,
may
courts
699 between Pitts-
Aircraft No.
of
cially upon
burgh, Pennsylvania
an admission.”
such
Rail-
Ramsey,
(22 Wall.)
19th,
February
Co. v.
on
1973.”
(1874).
not asked birth air, she
aircraft
fied, contradiction, that she was had delivered a
not even aware baby. evidence shows Other departed at m.; p. fifteen 8:35 p. m. she walked
minutes later at 8:50 lavatory; aircraft ar- into the m.; Youngstown p.
rived at 9:02 deplaned
that she left the
approximately fifteen later at p. These do not establish m.
9:17 unlawfully wil-
that the offense commit
fully spe- occurred within jurisdiction
cial Accordingly, I would hold
States. jurisdiction was not court’s
the district*