United States v. Carl M. Reed, United States of America v. Curtis Hoston

1145 rеceipt of February- opinion. After II are satisfied that 15 We will de- supplementary record this court appellant’s letter of trial counsel remaining parte issues. an ex submis- cide judge. The sion of the issue to the trial ordered. So the March matter was raised at request 1972 calendar call because yet

had not acted on. The attend- been participation prosecutor of the

ance and appellant’s request

at the require- violation the statute’s

ments. not, object Trial counsel did of America STATES UNITED presence prose-

at the time to the of v. cutor, prosecutor’s repeated or to the REED, Appellant. Carl M. tervention in a matter which plain language of the defi- statute was of America UNITED STATES nitely However, none of his business. v. above, yet noted we do not know HOSTON, Appellant. Curtis extent, any, aрpellant preju- if 23044, 23661. Nos. psy- appoint a diced the failure to degree ‍‌​‌‌‌​‌‌​‌​‌‌‌​​‌​​​‌‌‌‌​​​‌‌​​​​​​​​‌​​​‌‌​‌​‌​‍likely ciatrist. It seems that the Appeals, United States Court rights appellant’s District to which were affected of Columbia Circuit. parte by the to conduct an ex failure Argued Feb. 1971. hearing may closely de- related to the Decided March 1973. gree prejudice the failure caused appoint рsychiatrist 3006A. under § We, therefore, reach no conclusion holding

make no on this issue at this

time. Dangerous Weapon Assault with a

IV. charged con intent

victed of “assault with both “assault with a

rob while armed” and dangerous weapon.” It recent has been

ly assault established in this dangerous weapon in is a lesser with

cluded offense of assault with intent we

rob while armed.15 At this time appellant’s conviction

therefore vacate dangerous weapon.

for assault with a

V. Conclusion

Appellant’s conviction assault dangerous weapon hereby vacated. express opinion

We at this time validity the re- convictions

maining three counts. The record District

this case is remanded to the supplementary evidentiary

Court

inquiry on the matters discussed Part U.S.App.D.C. ‍‌​‌‌‌​‌‌​‌​‌‌‌​​‌​​​‌‌‌‌​​​‌‌​​​​​​​​‌​​​‌‌​‌​‌​‍_, (1972). Benn, F.2d 1127 United States

1146

Marilyn Cohen, Washington, C.,D. for appеllant 23,044. Spie- Paul J. gelman, Washington, (appointed D. C. argued court) this also for Harding, Henry James L. Kurtz and F. Washington, (both appointed by D. C. court) appel- were on the for brief lant. Barbara Bowman and John Pera- zich, Washington, ap- C.,D. also entered pearances appellant 23,044. in No. Marilyn Cohen, Washington, C., for D. 23,661. in No. Nathan L. Sil- berberg, Washington, (appointed D. C. court) argued also 23,661. in No. Shaughnessy,

Brian W. Asst. U. S. Atty., Flannery, with whom Thomas A. Atty. U. S. at the time the brief was filed, Terry Woll, John A. and David C. Attys., U. brief, Asst. S. were on the appellees. Roger Spaeder, C. Asst. S.U. Atty., appearance ap- also entered an pellee 23,044. in No. BAZELON, Judge, Before Chief WRIGHT, McGOWAN, TAMM, LEV ENTHAL, ROBINSON, MacKINNON, WILKEY, Judges, ROBB and sitting en banc. Judge: McGOWAN,Circuit appeals These two criminal were con 24,085, solidated with a third —No. Unit U.S.App.D.C. ed States v. _, February 476 F.2d 1973, heаring disposition by — for the court en banc. The reason for this grouping of for en the cases banc treat- pro 1, 1969, appellant’s challenge On November that each involved ment was guilty plea se motion to withdraw imposition adult sentence of an granted. under then tried distinguished He was from commitment original jury, indictment before the Federal Youth who different from the one seq.; with a еt U.S.C. § guilty plea. He was con- thought important had taken his defini- to resolve robbery, with a recurring victed of armed assault tively problem which dangerous carrying weapon, a dan- of that the administration characterized gerous Despite spoken weapon. his counsel’s to court has now statute. The youth plea leniency light Coefield; his of it remains this end in record, presen- appeals despite companion a second two decide these report recommending tence light principles enunciated youth institution, court, without we affirm that As in decision. comment, from case,1 sentenced in each vacate the convictions years penal pro- nine in a institu- sentences, three to for further and remand portion of cеedings opinion. entire substantive this tion. consistent with sentencing proceedings is as follows: I . [DEFENSE ATTORNEY:] say I behalf of would like to on very young man. Mr. Reed he ais Apparently no involvements he had Appellant initially Reed was juvenile it is with the law as a provi indicted in 1968 under D.C.Code surprising rather and rather some- robbery, robbery, sions for armed as shocking get in- that he should dangerous weapon, sault with a type did of a case. I volved this dangerous weapon, in con informa- have some contact or some holdup nection with the of a tavern. On respecting employment while tion his September 9, guilty 1969, pleaded he he out on bond and it would seem robbery count. of a On basis good. Apparently some pre-sentence report which noted that highly people him. think somеwhat eighteen years old, Reed was had no unfortunately, particular as This case prior record, criminal the cross “at knows, enter a Honor he did roads of life and what is done to him at plea he withdrew for what reason particular likely time will most de plea, I have an that I don’t know. going way termine he maybe upon perhaps learn- idea future,” the court committеd him to arrested the fellow that was supervision youth treatment and fa him, juvenile ar- that was cility 5010(b) with under Section got him, over Juvenile Corrections Act. rested Appellant presented discretion, 1. Reed in the circumstances shown character wit trial, record, argues refusal in his defense at in the trial court’s nesses indefinitely appeal interrupt in order reversible error flowed frоm the appellant try jury- find a wit- the court’s failure to instruct to enable significance testi- were that on the to be attached to such ness. The indications request mony have been evidence. There was such witness would no defense worst, best, and, objection contra- for such instruction and no cumulative omission, but, given by pretermitting dictory to its quite unlikely question point properly wit- of whether also seemed cognizable appeal, found. we find that no ness could be challenge rights Appellant his substantial affected in the Hoston’s strong proofs guilt conviction, from as distinct ad judge prosecution intervened the trial duced and the is a claim insub actively questioning wit- in the stantial character of the testi too character transcript mony. reading States, Kotteakos v. nesses. Our United point wholly lack- U.S. S.Ct. 90 L.Ed. 1557 establishes (1946). Neither find in merit. do we abuse of chologist him Court have motivated of the Offender Rehabilitation get maybe he think that thing could some- in all I similar. All ask Your came you Honor feel that to be as lenient on December you can under circumstances. proceedings entirety Those in their are Reed, you Mr. THE do follows: COURT: anything have bеfore ‍‌​‌‌‌​‌‌​‌​‌‌‌​​‌​​​‌‌‌‌​​​‌‌​​​​​​​​‌​​​‌‌​‌​‌​‍the Court (Defense THE Mr. Coun- COURT: imposes your case ? sentence sel), arranged my I chambers to No, you THE I don’t. make DEFENDANT: available to the Youth Center. Have had a THE In Criminal Case COURT: chance to see it ? the Court 545-68 sentences the defend- ant M. to be have, Carl Reed incarcerated [DEFENSE COUNSEL]: period for a less than three nor Your Honor. penal years in more than nine a insti- THE COURT: I have also before designated by tution to be the Attor- me, that, to addition the Offender ney repre- General or his authorized Report psycho- Rehabilitation and a days sentative. You have ten within logical study by Grant, as well as the appeal. which to note an presentence report. I have been over [DEFENSE Thank ATTORNEY:] these matters with some care. you, Your Honor. anything you say Is there wish to to imposed me before sentence ? is was, July 30, your Hoston on No, [DEFENSE COUNSEL]: guilty jury Honor, again found just of armed to stress that once dangerous robbery, weap- assault with a this was the first Defendant’s serious on, dangerous weapon— understanding my offense and that is charges growing robbery fully out of a cooperate of an that he did with the Following conviction, A P getting together & Store.2 authorities in these 22, 1969, reports. was on October com- judge, mitted under Section THE What is the COURT: status Act, of the Youth Corrections robbery of his other armed case ? 60-day period observation, study, report. Earlier, in the month I under- [DEFENSE COUNSEL]: my conviction, appellant stand, Honor, after his Your conversa- had sought authority case, tion with received his counsel psychological being District Court fоr a down for trial and evalu- is set Grant, Psy- ation Mr. near future. Harold Staff will be tried alleged accomplice Well, have, you crime, 2. One I THE COURT: Winestock, pleaded robbery; you guilty know, the Youth Center for had another, Shade, study 5010(e). tried with under was an evaluation guilty help, you making robbery and found are of armed You need some dangerous weapon. progress you working good assault with а appeal are Shade’s to this court raised no it. issue, going you and his to sentence conviction affirmed The Court (No. 23,660, January 5010(c) 11, 1971). eight years the Youth under When Now I want to make Winestock came before the court Act. sentencing, following you colloquy the nature of that sure understand occurred: That allows Mr. Winestock. period you longer Winestock, THE Mr. than COURT: them to hold dо you necessary, anything you 5010(b), say have want if it but it still depends me? on the is indeterminate. progress you Yes, I THE You work at it. DEFENDANT: make. appreciate you making progress. Honor. think That would if I are They sent back the Court. to the Youth Center. is the sentence of me, you have a lot there to offer know. Hoston, posed THE Mr. COURT: course there anything you wish Its conclusion stated terms: these Court? oрinion “The staff is of the No, DEFENDANT HOSTON: sir. Mr. should be Curtis Hoston sentenced Well, I THE have studied COURT: Act, Youth Corrections material, Hoston, Mr. with some 5010b, and to the Youth Cen- returned you care. think do not training ter for and treatment.” give going the Youth Center. I am This court is not informed as to na- you an adult sentence: Three to six- study prepared ture of the 7; years teen on Counts by Mr. Grant of the Offender Rehabili- years 3, 6, three 10, nine Counts tation 16; 13; year 11 and one on Count all of concur- these sentences run II rently. imagine Now I will be held In this court en banc pending your

here other trial at the comprehensive character described the jail. local Youth Corrections That the sentence of the Court. purpose part patent it exhibited everything possible do Thank [DEFENSE COUNSEL]: youthful you, from offenders lives of save hopeless criminality. Honor. It noted that this presentence report The was be- sharpest in purpose focus came into its fore the court showed as hav- 5010(d) that the admonition of Section juvenile convictions; no or arrests sentencing may impose an court the two minor tions; arrests but no adult convic- only shall the court adult sentence ‍‌​‌‌‌​‌‌​‌​‌‌‌​​‌​​​‌‌‌‌​​​‌‌​​​​​​​​‌​​​‌‌​‌​‌​‍“[I]f and one a arrest youth de will not find that the offender dangerous weapon disposi- as “no shown rive benefit from having reported tion.” He a as (b) (c) . or . .” We subsection habit; narcotics and recom- the concluded, building upon this court’s mendation was as follows: in v. Wa- earlier decisions United States brings “This individual to the Court ters, U.S.App.D.C. 437 F.2d 722 prior community record free law Ward, (1970), and States United community adequatе violation and cir- (1971), U.S.App.D.C. 149, F.2d 992 high cumstances, completion of school may statutory finding requisite that this graduation requirements, minimal em- bp implication,” must “left to but ployment experience and narcot- mild sentencing appear explicitly in the perceived ics He is an as addition. as an essential condition record possessed community individual legality sen- precеdent of an adult to the given personal resources, guid- proper tence. support, ance if ab- if rupt change attitude occur premises went From these Coefield very the within near future.” enough for it not be that would sentencing simply to track the statutory court The included a full language.3 its The basis pro- examination no unqualified derive would defendant 3. The character lan- any unquestionably kind from guage benefit of has created difficul- conceivable Coefield, in sentencing We noted alternative. ties for courts. Its literal- language require dispo- in occurs ness be taken every case, virtually in which a statute in a con- context sition since judge, intention foreclose manifested no who has wrestled with scientious by absolutely discretion exercise the information available himto sentencing judge. in regretfully And inclines the view who variety may recognizing course, of factors the infinite the better an adult sentence is opposite may frequently in honestly look he make a find- feel that cannot finding appear Congressional objectives. must statement relation against why rationality present reasons has decided a Where that visible, Youth Corrections Act its function commitment is at an end. punishment. in favor of adult We were III pains recognize some Coefield that election remains within sentencing circumstances range discretionary judge’s sen- very case Reed are like tencing but, function court said involved those the sense Waters, it is a “circum- discretion sentencing that the made no refer court findings scribed of fact in the ence whatsoever Correc Judge dividual case which District despite tions Act This alternative. required to make. . .” the fact that there before presentence reports two which were We also were careful to note Coe- prosp that, respect favorable Reed’s rehabilitation of the statement of field giving Indeed, the second and later finding, reasons rise to the ects.4 reports expressly of such seeking “. recommended . we are not to elicit youth of Reed litany formula”; offender. prescribed or true counsel in his defense we enumerated what we conceived plea leniency specific no made refer the essential elements of the exercise sentencing ence the Youth Corrections alterna function when a defend- tive, appear eligible it does not age ant reason of his alone given record possible disposition whether he been had access under the Youth presentence report or knew what stands before bar its recommendation was. the court. Given con- conscious and scientious attention We cannot tell record elements, to these we saw rea- case us whether the trial court envisage son “large ap- number of had the Youth Corrections Act in mind peals calling for review of sentences all, reasons, any, much its if less what which call of consideration the electing impose an sen- adult Youth Corrections Act.” preference in tence to a YCA commit- is, any event, There ment. in a com- The awesome and task difficult plete the absence—even in statuto- bare sentencing continues to be vested in ry language finding required the—of the one man who is best circumstanced precedent giv- asAct a condition discharge wisely, say, it is to analy- Reed an adult sentence. Our judge. The Youth Act Corrections therefore, Cоefield, impera- sis in makes change that, does not nor it does con tive the vacation of sentence in No. template appellate wholesale intrusion 23,044, and the remand the case for process. into What resentencing in due which heed will be done, urgent out of its concern sav analysis. of that taken young time, while there is still require sentencing of the in one court IV highly important limited but area of sentencing exposure Hoston, appellant the record of In the case of shaped the factors which informed and there was no want of awareness of the particular sentencing exercise of its discretion. Youth The Corrections Act. appellate An only promptly court can upon concerned be court conviction invoked rationality with the 5010(e) 60-day of those factors in Section and made a com- case, Despite fact, directions in the same we disclaimed clusion. we felt ob- any purpose spell grounds liged “to out all the to vacate sentence since the adult nothing form basis an affirmative the court said to the Youth finding.” ‘no benefit’ Act. Corrections presentenee report 4. The the court not favorable in its con- Coefield

H51 study. ob- is more of reasons tailed statement for observation mitment complete vious.” that was When immediately it received, made court principle laid think We latter When counsel. to defense available here. determinative down Coefield hearing, the court on for came matter handling instancе of study re- to its careful referred Youth Act alternative was report, presentence port, enlightened proce- model of correct and study made Offend- point up uninforma- dure of its The court’s er Rehabilitation inevitably alone tive termination. That simply was, stated conclusion gave appeal point founded rise (Hoston) do not think that “I be statute, requirements аnd one to the Center.” position dispose of in no which we are Accordingly, on this record. every There is reason believe although Hoston, appreciably dif- give did seri- this record from those ferent circumstances possibility of a consideration ous sentencing characterized terms, not commitment. did Reed, is entitled to the same statutory however, purport to make the appeal. 5010(d), finding required ex- Section 23,661, In convic- Nos. unamplified cept statement affirmed, vacat- tions are the sentences may to do be what it had decided ed, the eases for new sen- remanded finding. There is such a claimed tencing proceedings herewith. consistent this record to us from available impelled It is so ordered. indication of the reasоns which the court to its conclusion. Judge ROBB, (concurring): no not to there were This is propriety questioning Without reasons,5 that we have such imposed by the district the sentences knowing they way were. In judges acquiesce in the remand we said that where these cases. and, get report, court acts to considering of such after Judge (concur- MacKINNON, Circuit may be before data as relevant ring part dissenting part): recommendation, him, a fur- its follows my dis set forth For reasons may well be un- ther recital of reasons 24,085 States in No. sent — United necessary. also that But we said U.S.App.D.C. , 476 F.2d imposes judge “. [where] February 6, I concur decided contrary to the recommendation sentence (No. disposition in the of Reed’s case following a referral 23,044) from the and dissent 23,661). (No. de- 5010(е), more the need for Hoston’s case section by a trial different fenced 5. At the time of (Hoston’s) presided quired us in the case before “the status of one who as to robbery case,” served con- sentence to be told to an adult armed imposed currently the sentence to be tried counsel that defense appeal An of ‍‌​‌‌‌​‌‌​‌​‌‌‌​​‌​​​‌‌‌‌​​​‌‌​​​​​​​​‌​​​‌‌​‌​‌​‍that conviction reference future. this case. near affirmance presumably in an resulted an indictment returned to this court is to September (No. 71-1860, 10, 1969, charging an offense on June 1972). appeal April 14, In that no issue have been committed per- respect raised with Hoston —at a time when haps awaiting was con- at the time Hoston case on because in the out on bond ineligible for he was appeal in that case to trial victed us. Hoston went age. May 5, charge reason of commitment latter on this jury and was sen- convicted He was

Case Details

Case Name: United States v. Carl M. Reed, United States of America v. Curtis Hoston

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Mar 9, 1973

Citation: 476 F.2d 1145

Docket Number: 23044, 23661

Court Abbreviation: D.C. Cir.