United States v. George Michael Gwaltney

case for a remand the determination * period.

length the amortization party shall bear its own costs on

Each appeal. America,

UNITED STATES

Plaintiff-Appellee,

George GWALTNEY, Michael

Defendant-Appellant.

No. 84-5173. Appeals, Court

Ninth Circuit.

Argued and Submitted Jan. 1986.

Decided June Kendall, Atty.,

Richard B. Asst. U.S. Los Cal., Angeles, plaintiff-appellee. Sevilla, Cleary, Cleary John J. & San Cal., Diego, defendant-appellant. WALLACE, FARRIS, Before and NOR- RIS, Judges. Circuit FARRIS, Judge: Circuit p.m. At about January 5:00 twenty-three-year-old Bishop depart- Robin Angeles driving ed Los alone her home Vegas. p.m. in Las At 9:23 on the same date, George Gwaltney, defendant Michael High- then an officer with California Patrol, way reported by radio that he had body discovered a woman’s beside a front- age just road off Interstate 15 some Barstow, miles northeast of California. single Bishop Robin had been killed her head. bullet that entered the back of Bruises on wrists indicated that she her twenty had been handcuffed ten to minutes Autopsy before she died. revealed fresh vaginal cavity. in her semen Two state-court murder trials in which patrol the back seat of the According car. undisputed was defendant culminated in to expert testimony, the occur- hung A juries. enzyme federal indictment was rence of this independent charging type thereafter returned that Gwalt- blood and secretor status. Analysis law, ney, acting willfully sample under color of of a semen taken from Gwaltney Bishop, thereby causing assaulted and shot revealed that type he is a A secretor exhib- violating her her constitutionally iting death and enzyme. PGM Additional- 1+1+ deprived protected right ly, Blake, not to be of life or Dr. Edward prosecution’s liberty process serologist, without due of law. 18 forensic using testified that Gwaltney pleaded guilty relatively procedure U.S.C. new known as an im- § proceeded and the matter to trial. May On munobead assay, he anti-sperm detected 10, 1984, after six weeks of trial and one sample antibodies Gwaltney’s se- deliberation, men, day jury found as well as in the semen stains found guilty 25, charged. as On June Bishop’s jeans 1984 the on and on the back seat of judgment district court entered on patrol the ver- car. According testimony to the Gwaltney trial, dict prison and committed anti-sperm at antibodies occur less period ninety years, of “the defendant to than of the population. 5% male parole pursuant become to 18 Gwaltney contends that no evidence con- 4205(b)(1) serving U.S.C. a minimum [after] cerning anti-sperm detection of antibodies years.” Gwaltney term of 30 timely filed a should have been admitted for purpose 2, appeal July notice of on 1984. Fed.R. government as the failed to demonstrate 4(b). App.P. challenges He the conviction principle upon which such evidence “ and the sentence. was based ‘sufficiently was established to The original jurisdic- district court had gained general have acceptance in par- ” pursuant tion to 18 U.S.C. 3231. Juris- ticular field belongs.’ to which it § United diction in this court is based on 28 508, (9th U.S.C. v. Kilgus, 571 F.2d 510 Cir.1978), States, quoting Frye § v. United 1013, (D.C.Cir.1923). 293 F. 1014 Addition- THE CONVICTION ally, he contends that the trial court erred in admitting concerning statistical evidence I. percentage population sharing government At trial the adduced consid- Gwaltney’s seminal characteristics as such concerning erable evidence the characteris- confusing jury evidence was to the semen, tics of defendant’s the semen re- unduly prejudicial. Bishop’s vaginal moved from cavity during autopsy, semen stains found on the back A. patrol

seat of car driven night murder, on the of the general semen regarding test the ad jeans stains found on the blue by missibility expert worn testimony is whether Bishop night on the of her Analysis jury death. “appreciable help” can receive Bishop’s vagi- the semen removed from testimony. from such cavity Solomon, nal type (9th revealed the donor had 753 F.2d 1525 Cir. A typing antigen 1985). blood and secreted his Awkard, See also United States v. undisputed (9th Cir.), into his semen. It is denied, that some 597 F.2d 669 cert. population type of the male are A 29% 444 U.S. 100 S.Ct. 62 L.Ed.2d 116 (1979) secretors. Dried semen found on the back and 444 U.S. 100 S.Ct. 62 patrol (1979); seat of the car was also found to L.Ed.2d 383 United States v. by type secretor, Amaral, 1148, 1152(9th Cir.1973). have been A donated 488 F.2d Bishop’s Testimony concerning was the dried semen found on results of a fun jeans. enzyme damentally procedure blue An found in the semen is of unreliable test 1+1+, population, of the PGM a jury. generally was scant value to Unit 40% See 1224, 1237- also identified in the semen on F.2d Downing, stain found ed States v. 753 1382 Cir.1985). (3d The trial cedure. To the Gwaltney complains

39 “has wide extent determining particu whether discretion application procedure of the in this sufficiently lar tests are reliable scientific instance, wrong he does so in the forum. testimony upon permit expert based application Criticism of the of a valid test Bowers, their results.” United States v. particular weight, instance bears (9th Cir.), n. 7 193 cert. Bowers, admissibility. 534 F.2d at denied, 97 S.Ct. ample 193-94. had opportunity (1976). Solomon, See also L.Ed.2d government’s experts to cross-examine the (“The necessary balancing F.2d at 1525 concerning employed controls Dr. against probative value evidence present Blake and to conflicting expert tes- prejudicial its effect committed to the timony. jury properly was instructed court.”). trial discretion of the Her deci give expert testimony weight such concerning sion to evidence admit anti- as it deserved. sperm antibodies will not be disturbed un “manifestly less erroneous.” See Salem v. Co., 31, 35, United States Lines U.S. B. 1119, 1122, 82 S.Ct. Gwaltney’s contention that States, Hamling v.

See also government impermissibly established his 2887, 2903, 41 L.Ed.2d identity “by formula,” mathematical (1974); Falsia, United States v. quarrel without merit. He no “has with (9th Cir.1983). F.2d part statistical evidence that he was of population Type the the are A 29% who agree that as the We immunobead plus secretors or that his 1 1 PGM [sic] gain assay yet general judicial has to rec group constitutes population.” of the 40% ognition, proponent “the of such evidence Instead, he contends that the court erred in laying proper has the burden of founda admitting testimony independent that these showing underlying tion the scientific basis reliability expert’s together in testimony.” only of the characteristics occur 12% Marshall, 1349, v. population. United States 526 F.2d of the male While “the inter (9th Cir.1975), denied, 1360 cert. 426 U.S. jection process into the criminal trial of (1976). 49 L.Ed.2d 376 sophisticated theories of mathematical Falsia, (“The 724 F.2d See also at 1341 probability raises a number of serious con laying proper burden of foundation show cerns,” United rel. States ex DiGiacomo v. underlying scientific the basis and relia Franzen, (7th Cir.1982), 680 518 F.2d bility expert testimony propo is on the Gwaltney suggested simple has not how evidence.”). Having nent of such reviewed multiplication percentages of the of the transcripts in meticulous detail the of the population sharing the seminal characteris pretrial hearing Gwaltney’s on motion to poten by Gwaltney tics exhibited was so government’s lengthy and the of exclude tially confusing misleading require as to or trial, proof fer of at we conclude that the exclusion. is not inad Statistical evidence government presented ample evidence that See, per missible se. v. e.g., United States assay sufficiently the reli immunobead (9th Cir.1983), Kennedy, 714 F.2d 971 able to warrant admission Dr. Blake’s denied, cert. 465 U.S. S.Ct. concerning testimony the detection of anti- (1984); Perini, 662 Scott v. sperm antibodies. (6th denied, Cir.1981), F.2d cert. 909,102 S.Ct. 72 L.Ed.2d Gwaltney did not contest the validi (1982). Any potential prejudice was not so ty antibody theory expounded by of the the pronounced to render admission of the government’s experts. The testimony discretion, testimony particu an abuse of Blake, together Dr. with that of Dr. Rich given by the Bronson, larly light of the instruction ard established the scientific ba permissible use underlying assay pro- judge concerning sis the the immunobead trial Nor is there record II. this evidence.1 Gwaltney’s implication support for that the day Bishop murdered, On the after was employed government the statistics Graham, dispatcher Victoria with the Cal- assign proba attempt a number to the “to Patrol, Highway ifornia asked Gwaltney People bility guilt innocence.” v. body the whether woman whose he had 33, 40, Collins, 68 Cal.2d 438 P.2d previous night discovered was “cute.” prosecu Cal.Rptr. Gwaltney’s objection Graham Over testi- argue, obliquely sug or even tion did not “No, Gwaltney responded: fied that she gest, percentage population dog.” argues was a sharing the seminal exhibit characteristics highly remark was irrelevant and preju- by Gwaltney any way ed could in be used challenge specifi- dicial. While he fails to predict to the “odds” that was cally admission we infer such a its chal- guilty. lenge concerning from his comments rele- vancy. Gwaltney further contends that the Gwaltney further contends re court its failing abused discretion prosecutor, versal is warranted because the prevent prosecutor referring from instructions, in violation of the trial court’s argument, remark in “dog” closing de- figure multiplied 12% 5% spite contemporaneous the absence of a population to have anti antisperm believed objection. thereby limiting bodies further class of could have individuals who contributed need not We decide whether the tri patrol semen found the seat of car. al court abused its in admitting discretion argument, During closing prosecutor concerning testimony Graham’s Gwaltney’s suggested multiplication jury, to the Bishop “dog.” reference as a It is more though perform explicitly: he did it probable than not that the admission of percent is in a group The defendant of 12 testimony concerning “dog” remark population you when take materially “did not affect verdict.” Type plus A plus blood the PGM 1 Rubio, responsible that could semen be for the (9th Cir.1983), citing United States v. seat, on car in patrol that and he is 5 Valle-Valdez, (9th Cir.1977). 554 F.2d 911 percent percent of that that have 103(a) (“Error Fed.R.Evid. See also antibodies, antisperm inde and those are upon ruling predicated be which ad variables, pendent you as learned. mits or excludes evidence unless a substan suggestion misleading The is neither nor affected”); right party tial is and confusing. betray does Nor the context an 52(a) error, defect, (“Any Fed.R.Crim.P. ir attempt by government to reduce the regularity or variance does which not af question guilt ultimate of innocence or to rights disregard fect be substantial shall probabilities. one of mathematical Wheth- ed”). prosecutor er the in- explicit violated an judge objection struction from trial matter In by is a the absence of an judge prosecutor. counsel, between prosecutor’s and It does not in defense remarks argument infect the It er- plain closing only conviction. was not are reviewed — argu- ror plain for the trial to Young, allow error. United v. objection. U.S. -, ment in the of a absence defense 105 S.Ct. 84 L.Ed.2d show, jury January 1. The court instructed as follows: on and to defendant does, you gentlemen, find it there you if that whether is about Ladies and are to antibodies, testimony anti-sperm hear about between the found on the association stains being purpose. which received for a patrol limited car on seat and the stain Rohin Bish- show, you purpose however, That limited to if find op’s jeans. You shall not consider does, that it whether certain classes of individ- anti-sperm showing of as evidence antibodies have uals could not contributed the semen necessity was of defendant’s semen in that it Bishop’s jeans found on Robin or the seat location. either Highway by Patrol unit driven 52(b) fabrication, authorizes of recent Fed.R.Evid. (1985). Fed.R.Crim.P. only “par- 801(d)(1)(B),if the to correct statement was made be- appeals courts of errors,” ticularly egregious United States fore the witness had a motive to fabricate. 152, 163, Rohrer, Frady, 456 U.S. F.2d v. (1982), 1592, 71 those errors (9th Cir.1983). L.Ed.2d Gwaltney contends that fairness, integri- “seriously that affect permitted Landrum should not have been judicial proceed- public reputation ty testify he comments overheard as Atkinson, 297 ings.” States v. Addington make because the statements 391, 392, 157, 160, 56 80 L.Ed. S.Ct. fabrication, prior were not made to the prosecutor’s The references Gwaltney incongruously asserts was which of the victim defendant’s characterization January Addington’s denial of 1982 that injudicious, dog, if were not as a even gun shop come his seek- had into egregious” within the mean- “particularly ing replacement barrel. Young, 105 at Frady. See S.Ct. speaks the rule fabrication which 1046-49. alleged underlying the is the fabrication testimony, witness’s trial not some fabrica- III. resulting prior tion in a inconsistent out-of- January days five after the On statement, Gwaltney suggests. court murder, Lynn Waggoner of Detective Stuart, States v. See United County Sheriff’s Office vis- San Bernardino (9th Cir.1983). trial court did not gun shops in Barstow ited numerous admitting abuse its discretion Land- anyone had at- area to determine whether Addington’s rum’s account of out-of-court purchase parts for a tempted to Smith statement. revolver, by appar- then Wesson Model 19 ently type weapon believed to be Bishop had killed. IV.

with which Robin been time, Addington, At that owner William persuade attempted to Shop Horn operator of the Powder Gun person broke jury unidentified Barstow, anyone had visited denied that in an gun and stole his into his house shop parts. such his search of attempt to frame him for the murder trial, Bishop. Despite testimony of Addington At testified Gwalt- Robin Gwaltney’s shop police officers that ney gun day had visited his after certain burglarized, the trial Bishop in search of a barrel house had not been homicide testimony by Gwalt Model 19 court excluded offered for a Smith and Wesson revolver. entry his home ney signs he of forced into Addington admitted that had withheld during investigator defense through- authorities detected this information from (cid:127) Adding- trial. proceedings. the state-court the second out 1983, May in in ton further testified that rulings evidentiary will be A court’s conversation in the course of an informal of discretion. only for abuse overturned entry FBI shop concerning his of the Rohrer, F.2d at 432. As we do not 708 case, Bishop he that into the revealed a firm and definite conviction have gun” during his Gwaltney had lied “about judg- error of trial court committed a clear proceedings. Over Gwalt- the state-court States, 679 ment, Corp. Potlatch v. United ney’s hearsay objection, John Landrum tes- Cir.1982), excluding 153, (9th in F.2d 157 Addington state tified that he overheard murder that 15 months after evidence day following the death of Miss “that sliding glass door Gwalt- the lock on highway patrolman came in Bishop, ... a entry, signs of forced ney’s home showed inquired concerning the barrel to fit a abused say that the trial court we cannot pistol.” model and Wesson 19 Smith case, reversal would In its discretion. find it were to unless we statement is ad be unwarranted prior A consistent alleged not that probable more than a witness accused missible to rehabilitate

1385 error affected the verdict. proceeding.” Id. The record Young, 105 S.Ct. at 1045. precludes Rather, such a conclusion. “the remarks must be examined within the context of the trial to determine

V. prosecutor’s whether the behavior amount response In to a defense summation prejudicial ed to error.” Id. See also characterized the district court as “a Birges, 666, 723 F.2d very (9th Cir.) considerable and hard attack on the (“Improprieties in argu counsel’s integrity government prose- and the jury ments to the do not constitute reversi cutor,” prosecutor opened his rebuttal error they ble ‘unless gross prob are so argument with a series of references to prejudice ably defendant....’”), what he termed misrepresentations denied, 943, cert. 466 U.S. 104 S.Ct. defense counsel. objected Defense counsel (1984), 80 L.Ed.2d 472 quoting, United “personal to this attack” prosecu- and the Parker, (9th States v. 549 F.2d agreed tor to soften his rhetoric. Gwalt- Cir.), denied, cert. 430 U.S. 97 S.Ct. ney argues prosecutor’s com- 1659, (1977). The “invited ments, both before and after the defense reply” response” or “invited rule has been objection, amounted to misconduct war- invoked to ensure inquiry into the fairness ranting reversal. of the trial as a whole. Young, See 1044-46; S.Ct. at States, Lawn v. United are necessarily permit “[C]ounsel U.S. 359 n. 78 S.Ct. 323 n. degree ted a presentation latitude 15, 2 (1958). L.Ed.2d 321 closing their summations.” United reviewing court must only not Prantil, [T]he (9th States v. 764 F.2d weigh impact prosecutor’s Cir.1985), re- quoting Potter, United States v. marks, but must also take into (9th account Cir.1979), 616 F.2d cert. de defense opening counsel’s salvo. nied, Thus 449 U.S. 101 S.Ct. import of the evaluation has been (1980). L.Ed.2d 37 While courts must al prosecutor’s if the remarks were prosecution low the to strike “hard blows” “invited,” and did no more respond than based on the presented evidence and all substantially in “right order therefrom, they reasonable inferences scale,” such comments would not war- permit Prantil, not “foul blows.” reversing rant the conviction. at 555. See also United States v. Young, — -, 1038, 1042, 105 S.Ct. 85 Young, 105 S.Ct. at 1045. (1985); States, L.Ed.2d 1 Berger v. United prosecutor did overstep 78, 88, 79 L.Ed. proper advocacy bounds of in address Given the necessarily wide perceived what he to be defense coun summation, latitude accorded counsel “misrepresentations” sel’s of the record. distinguishing the foul from the fair “will Viewed within the context of the entire invariably question degree, be and trial, particularly light equally easy precise therefore not an task for mea- counsel, forceful remarks of defense Prantil, surement.” 764 F.2d at 555. range remarks were well within the Supreme Court has admonished proper advocacy. Further, the record counsel to from refrain “unfounded and support would not a conclusion that it is inflammatory opposing attacks on the ad probable more than not that the remarks Young, vocate.” 105 S.Ct. at 1043. See materially affected the verdict. See Pran also ABA Standards for Criminal Justice til, 764 F.2d at 556. (“A personal 4-7.8 at 4.99 attack prosecutor on improp Referring defense counsel is government to certain er.”). Still, witnesses, “[inappropriate prosecutorial prosecutor “[Tjhese stated: comments, alone, standing justi here, would not men gentle who testified ladies and fy reviewing men, a court to professionals they reverse a criminal are and will have conviction obtained in an otherwise fair to tell the truth.” Defendant contends that

1386 government Having stipulated to characterization of wit- the admission of evi- credibility concerning familiarity the issue of dence his nesses “removed with the jury,” spot,” Gwaltney from the thus warrant- “secluded assessment will not now be suggest prejudicial reversal. heard to effect outweighed of the probative statement its prosecutor com recognize that We “[a] value. jury reasonably if the can mits misconduct indicating personal he ‘was a believe that Gwaltney police Had a called offi ” credibility.’ belief the witness’s Unit testify reputation cer to to his for non 855, (9th Tham, 665 F.2d 862 ed States v. violence, government proposed to rebut Cir.1981), denied, 944, 102 cert. 456 U.S. testimony concerning Gwaltney’s with al (1982), quoting 72 L.Ed.2d 466 S.Ct. legedly lascivious search of a female mo Roberts, 618 F.2d 537 United States v. expressed torist. the district court When (9th Cir.1980). Gwaltney failed to enter a rebuttal, an inclination to allow such de contemporaneous objection, depriving thus If, fendant elected not to call the officer. opportunity to take the trial court Gwaltney asserts, “important, credible only therefore review remedial action. We thereby defense character witnesses” 52(b). plain error. Fed.R.Crim.P. See testify, failed to it was as a result of coun 1046-47; Young, Birges, 105 S.Ct. at 723 sel’s tactical decision. The district court for the defense F.2d at 672. “[C]ounsel ruling made no reviewable on the admissi silent, interpose a rule remain no cannot as bility proposed testimony. rebuttal objections, and after a has verdict been returned seize for the first time on the challenged Finally, jury in [prosecutor’s] point that the comments to structions, “in viewed the context of the jury improper prejudicial.” were and Park, charge,” overall v. 421 United States Co., Socony-Vacuum United States v. Oil 1903, 1912, U.S. 95 S.Ct. 150, 238-39, 811, 851-52, 60 S.Ct. (1975), quoting Cupp L.Ed.2d 489 v. (1940). Evaluating the chal- 84 L.Ed. 141, 146-47, Naughten, 414 U.S. S.Ct. lenged “vouching” against backdrop 396, 400-01, (1973), fairly record, the entire Young, see 105 S.Ct. at adequately present covered the issues prosecutor’s comment fails to rise Marabelles, ed. v. United States statement, plain to the level of error. The (9th Cir.1984). (1) 1382-83 As the inappropriate, if even was not “such as to instructed, necessary court “it undermine the fundamental fairness of the government prove defendant was miscarriage trial and contribute to a thinking in terms at the time constitutional justice.” Young, 105 S.Ct. at 1047. incident, disregard for a reckless person’s rights constitutional is evidence VI. deprive person of specific intent to Gwaltney’s remaining assignments of er- rights.” e.g., those See United States ror are without merit. (3d Cir.), Ellis, 595 F.2d 161-62 cert. denied, Gwaltney Evidence that and a (1979). (2) spot” The use of an exam

woman friend had visited a “secluded L.Ed.2d engaged in under color of upon ple near the scene admitted of conduct murder was usurped function of the stipulation by Gwaltney. Stipula neither offered law suggested nor that one who wears freely voluntarily jury tions entered into in necessarily binding and carries a firearm criminal trials are as and enforce uniform instruction, into in acts under color of law. able as those entered civil actions. whole, attention properly focused Campbell, 453 F.2d read as United States v. (10th Cir.1972). purported acted or That offered on whether assaulting or of law in stipulation possible act under color avoid admission Bishop. shooting damaging of the evidence in more form Robin Cf. Screws, involuntary. 325 U.S. stipulation does not render the v. (1945). (3) court instructed scribe a term minimum of

L.Ed. incarceration. obliged However, jury government 4205(b) that the was plainly provides the the § deprived Bishop of prove Gwaltney that sentencing to judge alternatives to the auto- by the right protected a secured or Consti- 4205(a): eligibility matic of § States; that tution or laws of the United Upon judgment entering conviction, a of right of life or deprived not to be jurisdiction the court having to impose liberty of process without due law is such a sentence, opinion in its when of ends right liberty right; to includes the justice and the best interest of public person may principle physically that no be require that the defendant be sentenced assaulted, intimidated, or otherwise abused imprisonment to exceeding for a term intentionally justification by and without a year, (1) one may designate in the sen- law; acting of person under color state and imprisonment imposed tence of mini- a right deprived that not to be of life mum expiration term at the of which the process prohibits po- without due of law prisoner eligible shall become parole, for acting color of lice officer under law from which term bemay less than but shall any person justification. killing without not be more than one-third of the maxi- Gwaltney object did not to this instruction. mum imposed by court, sentence or plainly It was erroneous. The record (2) may the court fix the maximum sen- any danger jury precludes would tence imprisonment of to be served Gwaltney violating convict for state rules which may event the court specify that O’Dell, procedure. of prisoner may parole be released on at (6th Cir.1972), inapplicable. F.2d 224 is such time as the de- may Commissioner conviction is affirmed. termine. THE SENTENCE conjunction, Read in 4205(a) sections The district court sentenced Gwalt 4205(b) provide prisoner that a federal sen- ney “imprisonment a maximum for term year’s tenced to more than incarceration years” of 90 and ordered that automatically eligible becomes parole eligible parole under “become serving after one-third of his or sentence Code, 4205(b)(1) upon Section serving a less, ten years, is unless whichever term years.” Gwaltney minimum of 30 1) sentencing judge specifies in the sen- by that he requiring contends serve 30 incarceration, tence period a minimum of years becoming eligible before for parole, which minimum not exceed one-third court sentencing the trial exceeded its au 2) of imposed, the maximum sentence or thority. sets a period maximum of incarceration eligibility governed by Parole 18 and specifically all commits consideration 4205(a) provides: U.S.C. Section § appropriate of release date to the discretion serving confined Whenever defi- parole Gwaltney’s commissioner. nite term or terms of more than one 4205(b)(1) permits contention that § year, prisoner eligible shall be for re- sentencing judge to advance the of date parole serving on after lease one-third of parole eligibility otherwise un- established serving such term or terms after ten or 4205(a) der does not but authorize § years a life sentence or of a sentence postpone eligibility the date of thirty except years, of over to the extent beyond years ten thus inconsistent with provided law. otherwise plain language of the statute. Section 4205(a) 4205(a) provides eligibility for automatic prisoner serving a federal Under § designated after service one-third year automatically a term of more than a shorter, years, sentence or ten whichever is becomes release after except provided serving prescribed as otherwise law. Sec- one-third sen- 4205(b)(1) otherwise, years, provides tion does tence ten is less. but whichever 4205(a) distinguish contends delimits not between advancement and that § sentencing judge pre- postponement parole eligibility. power 1388 Act, 4205(b), of the by provision Another history relied on legislative § the district courts the discretion grants There is at best. inconclusive Gwaltney is determine, sentencing, the time of at of the comments Senator no indication prisoner imprisoned for more when a Representative Danielson3 Hruska2 and eligible year shall become for than They appear us. before concern the issue 4205(b) permits the dis- parole. Section operation of the automatic to describe any point that time at trict courts to set granted sen- authority 4205(a), not the § prison third of the sen- during the first 4205(b)(1). Incon- tencing judges under § not exer- tence. If the district court does history is insufficient to legislative clusive power, prisoner will become cise that meaning of the statute. plain overcome 4205(a), pursuant to parole, for § 643, Oregon, 366 U.S. v. United

See States prison of his after service of one-third 1280, 1278, 648, 6 L.Ed.2d 575 81 S.Ct. sentence. (1961).4 689, Pry, v. 625 F.2d 692 United States O’Driscoll, 761 F.2d v. In United States denied, 925, (5th Cir.1980), cert. — denied, (10th Cir.1985), cert. U.S. 589 (1981). 1379, 101 See S.Ct. 1207, (1986), -, L.Ed.2d 320 89 106 S.Ct. Addonizio, 442 v. also United States for the Tenth Circuit Appeals of the Court 15, 178, 15, 2235, n. 2242 n. 60 189 99 S.Ct. 4205(b)(1) sentencing under held that § (1979) (“[t]he may trial L.Ed.2d 805 court period of a minimum prescribe court eligibility parole at set a defendant’s long years, of ten so incarceration in excess point up of the maximum any to one-third not exceed one-third minimum does as that v. imposed”); sentence United States imposed: (E.D.Mich. the maximum sentence 24 Whitley, F.Supp. “[T]he 473 4205(b)(1)specially 4205(b) enacting 1979) Congress, (through provisions § § wishes, bypass sentencing judge, the Pa if he/she trial courts to “the allowed the (Vs) (10) bypass the or ten can one-third justice ‘ends of if the role Commission 4205(a)”).5 year requirement of public’ require.” § so interests of best O’Driscoll, 596. While no oth 761 F.2d at meaning of light plain In of the § directly reached the appeals er court of has interpretation, the in- prior judicial its history, the Fifth Circuit question, legislative dictum from conclusive nature of the would obtain court did not exceed that a like result we hold that the trial suggests by providing that authority its there: Director, Cir.1984); (9th Workers' Cong.Rec. 2. 122 4862 Office of Inc., Cargill, Programs F.2d Compensation v. 709 15,703 (1975). Cong.Rec. 121 3. banc); (9th Cir.1983) (en Transpor Pinetree 619 Cir.1982). NLRB, (9th F.2d 746 tation Co. v. 686 por Judge his dissent from this Norris bases language plain ause Bec opinion interpretation of this tion of our on his legislative history, statute and the inconclusive prefer legislative history. to follow the We inappropriate for us to create it would be language plain statute rather than to this case. intercircuit conflict in ambiguous legislative attempt to discover from say. Congress history meant but did not what by reinforced conclusion to do so is Our Appeals the Seventh the Court of 5. While holding States prior the 10th Circuit in United dictum, appar suggested, Circuit has O'Driscoll, (10th Cir.1985), cert. v. denied, 761 F.2d 589 4205(b)(1) purpose “is to allow release of § ent — U.S. -, 89 L.Ed.2d date allowed before the earliest cited, (1986). Gwaltney have has not nor 320 (a)” postpone the date not “to subsection found, any interpret circuit we case from Fountain, eligibility parole,” v. inconsistent with the § 4205 in a manner Cir.1985), (7th that court 768 F.2d interpretation adopted Circuit. the 10th light opinion in supplemented its Fountain urged by interpretation adopt Were we to of its emphasize the narrowness O'Driscoll Gwaltney, con we would create an intercircuit not “take holding that it does and to make clear Unnecessary among the circuits flict. conflicts controversy over ... has become sides what See, e.g., States v. be avoided. United are to 4205(b)(1).” scope of section (9th Cir.), cert. Appoloney, F.2d Cir.1985). Fountain, (7th 777 F.2d — U.S. -, denied, S.Ct. 88 L.Ed.2d Rank, (1985); Lynch v. must years 90-year serve 30 of his 4205(b) sentence of expresses section an equally becoming eligible before parole.6 for Congressional clear give intent to sentenc- ing judges option setting the of parole eligi- AFFIRMED. bility dates earlier prescribed than those in 4205(a), NORRIS, section Judge, but not later.2 concurring Circuit in This does mean, course, part dissenting and part: in of that prisoner has a right to be released when he eligi- becomes I in judgment concur the court’s affirm- parole; ble for it only means that he will be ing Gwaltney’s I disagree, conviction. considered for release the Parole Com- however, majority’s with the conclusion mission. that district had statutory au- thority to render Gwaltney ineligible for recognize I that interpretation of parole years. for a term of 30 I believe 4205(a) section must account for the limit- 4205(a) that 18 U.S.C. reflects clearly § ing phrase “except to the extent otherwise firmly expressed Congressional man- provided by law.” The majority relies that, barring specific date statutory excep- heavily on “except” clause, reading tions, prisoner no federal shall remain Congressional into it a intent to refer to the up longer locked years for than ten without very next statute, subsection of receiving parole hearing. 4205(b). words, In other the majority takes position (a) A that in reading common sense subsection statutory Congress language legislative ten-year mandated a history parole and the limit on ineligi- refutes bility, the majority’s interpretation then turned (b) of the statute. around in subsection language 4205(a) The of section authorized individual judges that “a to circum- prisoner eligible shall be vent anytime for release on that limitation they imposed a parole serving years ... after ten maximum of a life sentence in years. excess of 30 ...,” years sentence of expresses Surely over 30 if Congress had intended to confer Congressional a clear prisoners upon intent that individual sentencing judges such un- eligible shall parole become for after serv- bridled discretion disregard to the com- years. words, at most ten In other 4205(a), mand of section it would have said 4205(a) section provides a maximum mini- explicitly. so It highly strikes me as im- years. mum sentence of ten language probable Congress, using unspe- in imposed, 6. Under prisoner the terms of the eligible sentence de- parole, shall become for eligible parole upon fendant will may become which term be less than but shall not be serving years 90-year of his term of incarcer- more than one-third of the maximum sen- court, Accordingly, ation. effect, imposed by (2) we need not address the tence or the court 4206(d) any, if of § 18 U.S.C. on a imprison- sen- fix the maximum sentence of purporting require tence to a convicted felon to ment to be served in which event the court years prior becoming may specify serve more than 30 prisoner may to that the be released eligible parole. parole at such time as the Commission may determine. provides pertinent part 1. Section 4205 as fol- interpretation parole eligi- 2. This of current lows: bility provisions hardly is novel. See Federal (a) serving Whenever confined and a definite Center, Sentencing Options Judicial Fed- year, pris- term or terms of more than one of (1983): Judges eral District eligible parole oner shall be for release on serving after one-third of such term or terms In the of case a life sentence or a sentence of serving years thirty years, after ten prisoner eligible a life sentence or more than is years, except 4205(a). years. a sentence of over 30 to the after ten 18 U.S.C. section As provided by provision interpreted by extent otherwise law. this Commission, is the Parole (b) conviction, Upon entering judgment consecutive sentences do not de- having jurisdiction impose lay eligibility beyond years. the court tence, to a sen- ten Commission, opinion justice when in its the ends of Parole Procedures Manual 121 public (sec. M-01(a), (Jan. 1986). require (c)(1)) and best interest that the sentence, imprisonment judge may designate defendant be sentenced to for a In the (1) exceeding year, may designate parole eligibility term one specify earlier date or imprisonment imposed immediately eligible. prisoner sentence of a min- added). expiration 4205(b)(1), (2). (Emphasis imum term at the of which the U.S.C. sec. “except provid- quirky otherwise language, reading cific statute allows his con- law”, very intended refer to the ed viction rights under the civil statute to re- of the statute. If that had next subsection sult a 30-year parole for a wait hearing. intent, expect I Congress’ been would There are other bizarre ramifications (b) language such as find in subsection majority’s reading of the statute. For ex- 4205(a).” “notwithstanding section ample, degree while a first murderer who is not sentenced to death must be import language, sentenced to I submit a life term law,” and become provided by “except as otherwise to Congress that intended refer to other years, after ten degree a second murderer specifically precluding or restrict statutes could greater be sentenced to a term than ing example, exception For parole. years 30 required longer and to wait be than 4205(a) phrase in has to section been used years ten parole hearing. for a 18 U.S.C. § preclude District parole for of Columbia 1111(b)(1982). jurisdiction when that federal offenders legislative majority The off the brushes statutory specific prohibition pa had a history of section 4205 as “inconclusive.” degree eligibility role for first murder. Supra at contrary, 1388. To the legis- Civiletti, (D.C. F.2d Bryant 292 strongly supports my history reading lative Cir.1981); Frady v. U.S. Bureau Pris parole eligibility provi- statute. ons, (D.C.Cir.1978). 570 F.2d in sions the Parole Commission Reor- 848(c), example Another U.S.C. § ganization essentially Act of 1976 recodi- explicitly prohibits parole certain which for fied the in the scheme set forth Federal drug offenders. See United v. Va Sentencing S.Rep. Act of 1958. See No. (9th Cir.1980). lenzuela, 646 F.2d Sess., 22, Cong., reprinted 94th 1st Moreover, majority’s expansive read Cong. Ad.News U.S.Code & 343: “except” produces logi clause statutory eligibility “The pa- basis for for anomaly. majority’s cal Under inter prisoners role for ... federal remains un- pretation, prisoner sentenced to a term 4205(a) changed.” section derives Current longer years rights for a civil than 30 viola provided from former section which Gwaltney’s case, may, tion re be prisoner eligible for parole would be quired longer to serve a minimum sentence such serving “after one-third of term or years becoming eligible than ten before for serving years parole. terms or fifteen of a Yet had after been sentenced term, to forty- a life he life of over automatically would sentence or of a sentence be eligible parole years.” come for after ch. years. ten Sec five Act of June 4205(b)(1) empowers 13,1951, tion sentencing 854; ch. July 62 Stat. 65 Stat. impose 1976). “a minimum (repealed to term at the ex Current section piration prisoner 4205(b) 4208(a). which shall become replicates former section parole, for which may 25,1958, term be less Aug. (repealed Act of 72 Stat. 845 than 1976). 4208(a) but-shall not be more than one-third of 4202 and under the Sections imposed maximum sentence by the 1958 Act into current sec- were combined court....” impossible Because it to 4205 by tion the 1976 Act. prisoner know when a will have served one- Act the 1958 legislative history of term, (b) third of a life obviously subsection provide to intended Congress shows life apply cannot to a term. Thus had authorizing options parole for flexible convicted been under the federal hearing parole set a sentencing to judges death, murder statute and sentenced to of one-third the lesser than date earlier he mandatory would have received a life years: term or 15 (18 1111(b) (1982);

term U.S.C. § Fountain, States v. the court authorize This is to a bill amended, (7th Cir.1985)), F.2d 345 earlier sentencing prisoner fix would have been automatically eligible for become eli- shall prisoner date when parole years. Yet majority’s after ten except prison- such or to gible parole for sentence], serving one-third of his or fix statutory limitation as er from judg- in the parole when the maximum term of the sentence and eligibility reasonably might (1) it be prisoner eligi- the court shall ment of direct be the rehabilitation expected to facilitate up at time ble one-third prisoner. maximum, law, provided by as now setting parole (2) flexibility in specify that the Board of Parole The additional also received substantial eligibility prisoner dates shall decide when the will be according judges, from Federal support words, parole. considered for In other if Through survey. it to Chairman Celler’s disposed, may give is so it the court discretion in given would wider judges be par- greater Parole Board latitude in a and could of sentences the formulation or, inclined, ticular case it is not so if determining responsibility share present sentencing sys- follow This would parole eligibility. the date tem. choice which has judges with a provide Report, Conference Statement of the Man- sen- indeterminate features of an some agers part on the of the House on H.R.J. to Fed- now is not available tence which 424, reprinted Res. in 1958 U.S.Code except for those offenders judges, eral 3891, Cong. (emphasis Ad.News & under the Youth Corrections committed added).3 Thus, Congress intended that a Act. sentencing judge could increase the Parole 2, 2013, Cong., 2d 85th Sess. S.Rep. No. by advancing, Commission’s latitude not Cong. & Ad. 1958 U.S.Code reprinted in postponing, parole eligibility date. added). (emphasis 3896-97 News intent, Contrary majority’s to this inter- language was carried into the This same pretation judges of the allows statute Report on the amend- House Conference by post- latitude reduce the Commission’s concerning for- by the Senate ments made statutory eligibility poning the date. of sec- predecessor mer section Act, Congress enacting the 1976 incor- In 4205(b): tion porated sentencing alternatives of the principal purpose The of the Senate Act, merely reducing the maximum 3) (sec. provide the is to amendment possible parole ineligibility term from 15 to procedures will optional which court with ten-year parole limit on years. ten The impose indeter- it to sentences enable clearly ineligibility seems to have been a permit in nature. will minate This legislation. of the For understood feature discretion, court, with at its to share Danielson, Representative a mem- example, for responsibility branch the executive Judiciary Committee and of the House ber determining long period prisoner a how a managers, said: the bill’s floor one of actually serve. The court will be should important fea- I think one of the most imprison- impose a term of authorized provides that a is the section which tures existing definite ment either under length certain prisoner has served a sentencing system prisoner a which [in time, the sentence in the one-third of eligible parole only after be for would response into consideration does not take to Senator James Eastland In letter by prisoner July individual to the rehabil- Judiciary made Committee on Senate programs carried on in our Federal Department the Senator itation the Justice informed engendered is be added to relieve the institutions. Much bitterness that section 4208 should parole eligibility many prisoners admi- standard in who have otherwise harshness of the programs rably responded former section 4202: to rehabilitation knowledge they be incarcerated must Department is of the view that The of Justice provided purely arbitrary period as now for a 4208, which was inclusion of section of section Act. The enactment the Parole version, highly is from the House stricken practical effect of autho- have the statute, 4208 would present section desirable. rizing imposition indeterminate sen- Code, provides which title by Federal courts. parole tences prisoner con- is not that a Cong, and Ad.News U.S.Code he has served one-third sideration until arbitrary imposed, purely 3904-05. is sentence (footnotes omitted) case, (em- years ten in the case of an U.S. at 188-89 usual sentence, added). long phasis he shall be exceptionally hearing. parole That does not given a majority sys seems oblivious to the necessarily he be released. mean that will Congress tem of checks and balances that 15,703 (1975). Thus, parole process. Though into the built Cong.Rec. responsible imposing judiciary sen interpretation of section 4205 majority’s tences, through support legis- executive only derives no from the not branch — Parole Commission—takes a second look at history, Congress’ antithetical to it is lative that, prisoner legislative and makes the “final determina expressed histo- intent as precisely tion of how much time an offend ry. S.Rep. er must serve....” No. 94th interpreting parole eligibility Courts Cong., reprinted 1st Sess. in 1976 U.S. repeatedly the 1958 Act ob scheme of Cong. & Ad.News 337. The Pa Code that former section 4208 was intend served weigh role must Commission number parole option strictly early as an ed decision, complex making factors in its sentencing judges. See the least of which is “the that an likelihood (9th Cir.1973) Price, 474 F.2d offender will refrain from future acts.” (referring 4208 and 4209 to former sections The Parole Id. Commission’s exercise of provisions”). “early parole As then Cir because, hindsight necessary at the time Judge cuit Blackmun stated in United sentencing, lay cannot claim to (8th Jones, 419 F.2d States v. Thus, complete prescience. “parole pro- Cir.1969): 4208(a)(1) “Section [now releasing vides a means of those inmates 4205(b)(1) sentencing authorizes the ... ] citizens, ready responsible who are to be an earlier time for court to set incarceration, in and when continued terms eligibility than would otherwise be the case enforcement, repre- needs law the one-third-of-the-term measure es under misapplication sents a of tax dollars.” 4205(a)].” by section 4202 tablished [now S.Rep. Cong., No. 94th 1st Sess. added). Moreover, (Emphasis in United Cong. reprinted in 1976 U.S.Code & Ad. Addonizio, 99 S.Ct. States v. equal importance, the News 338. Of (1979), Supreme 60 L.Ed.2d 805 engaged Parole is in “bal- Commission recognized in Court that both the 1976 Act ancing sentencing policies differences in Act, Congress judges the 1958 and allowed practices judges courts in and between and parole eligibility, plac to accelerate while system that is as and diverse as the wide power the ultimate of release with system.” S.Rep. justice Federal criminal parole authority: Cong., reprinted No. 94th 1st Sess. lawfully The decision as to when a sen- Cong. Ad.News in U.S.Code & actually tenced defendant shall be re- Congress patently intended to reduce by Congress, leased has been committed sentencing in that will the wide variations limitations, with certain to the discretion inevitably dis- result from the exercise of of the Parole Commission. Whether by feder- cretion hundreds individualistic not, wisely Congress has decided that judges. al district position the Commission is in the best point. At The instant case illustrates the appropriate, determine when release is sentencing hearing Judge Rymer stat- so, doing dispari- and in to moderate the ed: sentencing practices in ties of individ- it, therefore, sentencing I judges. authority ual As see sentenc- under precise choice is either a life sentence

ing judges to select release dates contrast, 4205(a), defendant is, in which case the by narrowly limited: years in 10 early parole eligi- would be judge select an long he date, how only and the decision about bility guarantees but that Pa- in the should serve would be vested will be considered at that the defendant now, or a years from role Commission that time the Parole Commission. 4205(b)(1) specified sentencing of a maximum and sentence allows a ig- 4105(b)(1), years 4205(a) term of under minimum nore section “bypass and the Parole up designate in case it is to me to which if justice Commission the ‘ends of and the long time how the defendant shall at this public’ best interest of the require.” so I that it is incumbent serve. believe Ironically, 761 F.2d at 596. piece in upon me to make that decision legislative history primarily upon by relied appropriate Normally it is to sen- case. the Tenth phrase Circuit is the from the leaving flexibly, tence discretion to the Report concerning 1958 Senate “the shar- Commission, Parole because release from ing power” by sentencing judge and prison part in a function of how the the executive branch. Id. The sentence in However, in prisoner progresses. years, parole eligibil- O’Driscoll—300 with Gwaltney, Mr. case of rehabilitation ity years after 99 inimical to such —is Moreover, not a factor. there is no rea- “sharing” because it nullified the role of suspect prison in son to he will not the Parole Commission in that case.4 In proper in behave fashion. There is view, my the Tenth interpret Circuit did not thus, view, my nothing anticipa- to be 4205; section it amended it. years ted over the of the next 10 course most, At ambiguous, section 4205 is which could inform the Parole Commis- bring which play would into the rule of sion’s discretion other than what is now lenity. provides That rule that courts will to me. known ambiguities not resolve in statutes in favor Reporter’s Transcript at 4051-52. Thus increasing penalties criminal absent Judge 4205(b)(1) Rymer interpreted section support interpretation clear for such an vesting authority by-pass in her the legislative history. v. United Bifulco 4205(a) ten-year of section limitation States, imposing years a maximum sentence of 90 But I do not requiring Gwaltney to serve a mini- believe that there is need to invoke the question I years. mum term of 30 do not lenity rule of legis- this case because the Judge Rymer’s judgment considered history lative of section 4205 its ante- parole. is unsuitable for What I Congressional cedents manifests a clear in- question interpretation do is her provide sentencing judges tent to with the Congress statute. I believe that intended option fixing early parole eligibility that the Parole Commission would review date, postpone beyond not to that date Gwaltney’s suitability parole for after he statutory limit. prison. years empower serves ten To sentencing judges prisoners to warehouse interpretation of section 4205 es- years longer possibility without here, poused by majority by empower is to them to render the O’Driscoll, Tenth Circuit in eviscerates the impotent play Parole Commission its Congressional authority scheme of shared statutory “balancing role of differences in in making parole decisions. Apparently, the sentencing policies practices.” See majority misperceives what is at stake page 1385,supra. case. Parole eligibility equal does not re- lease, and intent, expressed views following Congress’ Instead of sentencing judges given are consideration majority follows United States v. and respect O’Driscoll, (10th Cir.1985), by the Parole Commission. v. 761 F.2d 589 Williams — Commission, denied, U.S. -, Parole cert. case, (9th Cir.1983). judiciary should In that respect Tenth role of the Circuit decided section afford similar to the years, 4. There is no question bility would not that the crime in O'Dris- after ten the defendant particularly long coll and merited actually paroled was heinous strict after that have been until punishment. that, every There is reason to believe point, if ever. O’Driscollshows that sometimes correctly even had the Tenth Circuit inter- easy cases make bad law. preted provide parole eligi- section 4205 as envisioned Con- Parole Commission

gress. Gwaltney’s

I vacate sentence and would to the district court

remand the case

resentencing. TOLLIVER, L.

Andrew

Plaintiff-Appellant, DENIRO, Director of Ad-

James Veterans Center, Alto, Medical

ministration Palo

California, Defendant-Appellee. 85-1849,

Nos. 85-1892. Appeals,

United States Court

Ninth Circuit.

Argued and Submitted Feb. 1986.

Decided June

Mary Dryovage, Mary Law Offices of Francisco, Cal., Dryovage, plaintiff- San appellant. Schirle,

Stephen Atty., L. Asst. U.S. San Francisco, Cal., defendant-appellee.

Case Details

Case Name: United States v. George Michael Gwaltney

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jun 2, 1986

Citation: 790 F.2d 1378

Docket Number: 84-5173

Court Abbreviation: 9th Cir.