UNITED STATES of America, Plaintiff-Appellee, v. Karel PLISEK, Defendant-Appellant.
No. 80-1293.
United States Court of Appeals, Seventh Circuit.
Argued Oct. 27, 1980. Decided Aug. 17, 1981.
657 F.2d 920
Sirena attempts to distinguish New York Gaslight Club by stressing that here, plaintiff was not a “prevailing party” in the state administrative or judicial proceedings. Sirena‘s logic is not compelling. First, we agree with the District Court for the District of Columbia that:
In Title VII litigation “prevailing party” refers to the party who has successfully maintained a claim and does not depend upon the degrees of success at any particular stage of its prosecution.
Marshall v. Communications Workers of America, 21 EPD (CCH) ¶ 30,318 at 12,723 (D.D.C.1979).
Second, we believe the Supreme Court implicitly rejected Sirena‘s reasoning in New York Gaslight Club. In concluding that a Title VII complainant could bring a civil suit in federal court solely to recover attorneys’ fees for work in state proceedings wherein complainant had prevailed on the merits, the Court stated:
It would be anomalous to award fees to the complainant who is unsuccessful or only partially successful in obtaining state or local remedies, but to deny an award to the complainant who is successful in fulfilling Congress’ plan that federal policies be vindicated at the state or local level.
447 U.S. at 66, 100 S.Ct. at 2032. We believe the Court meant that plaintiffs who ultimately prevail in fedеral court are entitled to recover attorneys’ fees for work in state proceedings which Title VII required and encouraged them to pursue, without respect to the success or failure on the merits of the state proceedings. To hold otherwise would discourage resolution of discrimination claims in state proceedings, would be inconsistent with Title VII‘s scheme of coordinated state and federal enforcement, and would contradict the clear meaning of
VI
For the foregoing reasons, the judgment of the district cоurt finding Sirena liable for violations of
Affirmed In Part. Reversed And Remanded In Part.
James L. Sanders, Asst. U. S. Atty., Robert W. Tarun, Deputy Chief, Crim. Receiving and Appellate Div., Chicago, Ill., for plaintiff-appellee.
Before CUMMINGS, Chief Judge, SWYGERT, Senior Circuit Judge, and PELL, Circuit Judge.
PELL, Circuit Judge.
The defendant-appellant, Karel Plisek, appeals from a judgment which imposed a sentence of imprisonment of four years with mandatory special parole of four years to follow. The sentence followed a plea of guilty to one count of importing cocaine into the United States in violаtion of
I. Introduction.
On October 21, 1979, the defendant was arrested at the O‘Hare Airport International Terminal as he debarked from a flight from the Netherlands, when a search of the defendant‘s clothing during customs processing revealed that he was carrying approximately eight ounces (200.26 grams) of cocaine. The Drug Enforcement Agency (DEA) tested the drug and found that it was approximately eighty percent pure. The DEA estimated that the value of that amount of such high purity cocaine was approximately $32,000, and that the street value would be considerably higher as it would be diluted before sale or use.
On November 20, 1979, a two count indictment was returned against the defendant. Count one charged him with knowingly and intentionally importing 200.26 grams of cocaine into the United States in violation of
On November 27, 1979, Plisek pleaded not guilty to both counts. Sometime thereafter the attorney for the Government and defense counsel reached a plea agreement whereby the defendant agreed to plead guilty to both counts of the indictment, and the Government agreed to recommend incarceration without specifying any particular period of time, and to limit its statement in aggravation to pointing out a 1971 misdemeanor conviction.
On January 21, 1980, the defendant appeared before the trial court and entered a plea of guilty to count one of the indictment. The defendant then attempted to plead guilty to count two of the indictment, at which time in a colloquy with the judge, the defendant denied he had any intention of distributing the cocaine, which he was going to keep for himself. The trial court then determined that there was an insufficient factual basis for a guilty plea, and decided to proceed as if count two would be dismissed.
On February 25, 1980, the defendant appeared for sentencing on count one of the indictment. The trial court turned a copy of the presentence report over to defense counsel, and afforded him an opportunity to review it with the defendant. The court then asked the defense counsel, “Do you see anything in the presentence report that you find inaccurate or that you want to elaborate on?” The defendant‘s attorney questioned an allegation that his client had traveled to Peru but stated that, “[o]ther than that it seems to be--the facts seem to be accurate.”
The court then asked the Government for its statement. The Government made brief remarks noting (1) the high degree of puri-
The defense then introduced testimony and argument in mitigation, claiming that the defendant‘s drug use was induced by the stress caused by his involvement in a prior trial in which he was accused of murder and acquitted by a jury on a plea of self-defense. The Government responded that none of the defense character witnesses were aware of the defendant‘s alleged use of cocaine to alleviate stress, and that the defendant‘s story--that he purchased the cocaine with money he had planned to use to purchase antiques in Amsterdam--was inconsistent with the defendant‘s financial background and self-proclaimed “frugal lifestyle.” The Government concluded by recommending incarceration.
The trial court then conducted a wide-ranging review of the presentence report, commenting on matters he found pertinent, and allowing defense counsel to respond to each item considered. The court first noted that the Government considered the plea agreement to have been breached by the defendant‘s refusal to plead to the facts underlying count two of the indictment, which had caused the court to reject that plea. The Government stated that had the defendant complied it would have rested on the presentence report and made no recommendations, but in the circumstances was recommending incarceration although not specifying any particular time.
The trial court then noted several factors, particularly (1) the serious nature of the offense; (2) the defendant‘s difficulties with the Immigration and Naturalization Service; (3) the defendant‘s special status as a grantee of political asylum in this country; (4) the defendant‘s two recent misdemeanor convictions for shoplifting; and, (5) the circumstances of the defendant‘s arrest and acquittal on the prior homicide charge. Defense counsel had full opportunity to respond to the court‘s concerns in each of those areas, and attempted to explain the defendant‘s involvement in each of the prior offenses. At no time did defense counsel object to the accuracy of the information which the court considered in the report. The court then sentenced the defendant to five years incarceration and four years mandatory special parole. Defense counsel made further arguments in mitigation, emphasizing the defendant‘s reliance on the failed plea agreement. The trial court reconsidered the sentence in light of those arguments and the presentence report‘s indication that the average prison sentence for this offense was just under four years. The court therefore reduced the five year period of incarceration to four years. The Government then moved to dismiss count two and the trial court granted that motion.
The defendant appeals from the sentence imposed by the district cоurt contending that the court abused its discretion by placing undue emphasis on the arguments of the Government while placing little weight on the defendant‘s reliance on the plea agreement. The defendant also contends that the court erred by first “misinterpreting” the presentence report, and then by giving improper weight to certain matters contained in the report. Finally, the defendant claims the sentence was simply too harsh in light of sentencing statistics, the nature of the drug involved, and the defendant‘s good character.
II. The District Court Did Not Abuse Its Discretion By Considering The Government‘s Argument In Aggravation In Sentencing The Defendant.
The defendant contends that the trial court abused its discretion by “placing a heavy emphasis on the arguments of thе government while placing little weight on the reliance of the Defendant on the government‘s prior agreement not to present such arguments.” The defendant argues that the terms of a plea agreement limited the Government‘s right to make such argument, and that the court erred by hearing and giving credence to the Government‘s statements.
As this court recently noted in United States v. Hedman, 630 F.2d 1184, 1201 (7th Cir. 1980), cert. denied, 450 U.S. 965 (1981), “[t]he sentencing function has traditionally been considered to be within the exclusive province of the trial court, and the exercise of that discretion ‘will not be disturbed on appeal except on a plain showing of gross abuse.’ United States v. Willard, 445 F.2d 814, 816 (7th Cir. 1971) (citations omitted).” An examination of the brief remarks in aggravation the Government offered, and the trial court‘s response to those remarks, fails to reveal any such abuse.
The only statements by the Government noted (1) the large amount and high degree of purity of the drug; (2) the defendant‘s prior record as revealed in the presentence report, without mentioning the details or even the numbеr of prior arrests and convictions; and (3) that the defendant‘s statements in mitigation were implausible. The Government‘s recommendation of incarceration without specifying any period of time was precisely that envisioned by the plea agreement. The defendant has not alleged that consideration of any of these matters was improper absent the existence of a plea agreement, and under the standards of United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), and its progeny, we find that consideration of these matters is well within the proper bounds of the trial court‘s sentencing determination.
Furthermore, even a casual reading of the transcript of the sentencing proceeding makes it clear that the contents of the presentence report were the predominant factors influencing the trial court‘s sentencing decision, and that the impact of the Government‘s statements was minimal. We therefore find no abuse of discretion in the trial court‘s consideration of the Government‘s arguments in aggravation.
III. The Trial Court Did Not Err In Its Consideration Of The Presentence Report.
A. The Defendant Waived Any Challenge to the Factual Accuracy of the Presentence Report.
The defendant also claims that the district court “misinterpreted” the presentence report by believing that the defendant had been arrested and convicted on two separate misdemeanor charges in 1979, and in believing that the defendant had been found in violation of the United States immigration laws.
As to the 1979 misdemeanor convictions, the defendant now contends that he was only convicted of one misdemeanor, but that somehow it was erroneously entered twice on the defendant‘s “criminal history sheet,” a document which was not part of the record before this court or the trial court. Defense counsel did not point out
In an apparent attempt to avoid the holding of Leonard, the defendant contends he does not allege inaccuracies in the report, but rather challenges only the trial court‘s interpretation of the report. This attempted semantic distinction cannot disguise the nature of appellant‘s argument, which is that the presentence report said that there were two convictions while the defendant says that documents outside the record indicate that there was only one. The defendant had a full and fair opportunity to comment on the presentence report‘s discussion of the 1979 convictions at sentencing. He failed to do so, and has thereby waived any objection to the accuracy of the report. Leonard, 589 F.2d at 472. We therefore must decline to review the circumstances surrounding the 1979 misdemeanor convictions. If we were to do so, however, our reading of the presentence report, which was made part of the record in this court in camera, supports the reading of the trial court.
The defendant also contends that the trial court “erroneously considered [the defendant] to be in violation of the Immigration laws at the time of sentencing.” This contention is without foundation in the record. The trial court noted in reviewing the presentence report, “[the defendant] has had some difficulty with the Immigration and Naturalization authorities. He is here, I think, now legally, but that is because of special dispensation that he got....” (Emphasis added.) This statement makes it clear that the trial court was aware of the defendant‘s actual immigration status, but did not believe he was in this country illegally. Furthermore, defense counsel had full opportunity to explain the nature of the defendant‘s immigration “difficulty,” and, indeed, does nоt contend that consideration of such problems is outside the broad scope of judicial consideration in determining sentence length. We therefore find no merit in the defendant‘s assignment of error in regard to the trial court‘s understanding of his immigration status.
B. The Trial Court Did Not Give Improper Weight to Matters Contained in the Presentence Report.
The defendant‘s next contention is that the trial court gave improper weight to two matters contained in the presentence report: (1) the defendant‘s 1975 arrest and acquittal on a homicide charge; and (2) a 1979 misdemeanor conviction in which the defendant had been placed on supervision. Before examining each of the defendant‘s claims, we turn to the general principlеs governing the information a sentencing court may properly consider.1
1. The Court Did Not Give Improper Consideration to a Prior Homicide Charge of which the Defendant was Acquitted.
The defendant contends that the trial judge abused his discretiоn by improperly referring to information in the presentence report concerning the defendant‘s arrest and acquittal on a 1975 murder charge. The presentence report revealed that the defendant had been arrested for the murder of the former husband of the woman with whom the defendant was then living. The report detailed the circumstances leading up to the charge, including that the victim and the defendant had a history of fights, and that the fatal incident occurred when the victim became “abusive and threatening” and attacked the defendant when returning his young son after visitation. The presentence report is clear that the defendant was acquitted of the murder charge.
In the course of his oral, in-court review of the presentence report, the trial judge made reference to the report‘s discussion of the murder charge, as he had with each prior offense, giving defense counsel full opportunity to elaborate upon or explain the report.2 The defendant contends that
As we noted above, the scope of a sentencing judge‘s discretion is wide, and in making the sentencing determination, “a judge may approрriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come.” United States v. Tucker, 404 U.S. 443, 446 (1972). While it has been suggested that consideration of mere arrests or pending charges be prohibited in reaching the sentencing determination, United States v. Johnson, 507 F.2d 826, 832 (7th Cir. 1974), cert. denied, 421 U.S. 949 (1975) (concurring and dissenting opinion) (Swygert, C. J.), the legislature has chosen to permit a far broader inquiry into “the background, character and conduct” of a convicted defendant,
A sentencing judge ... is not confined to the narrow issue of guilt. His task within fixed statutory or constitutional limits is to determine the type and extent of punishment after the issue of guilt has been determined. Highly relevant--if not essential--to his selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant‘s life and characteristics.
Id. at 247, 69 S.Ct. at 1083 (footnote omitted). It is clear that the Williams court intended that full knowledge of the defendant‘s entire background should be available to the sentencing court: “of course in the smaller communities sentencing judges naturally have in mind their knowledge of the personalities and backgrounds of convicted offenders.” Id. at 246, 69 S.Ct. at 1082. We believe that under this broad grant of sentencing discretion the trial court did not err in referring to information in the presentence report concerning the circumstances surrounding a prior acquittal, particularly in view of the wide latitude of response to the information permitted to the defendant.
Furthermore, additional comments of the court make it clear that he did not impose or enhance the sentence on the basis of his evaluation of the merits of the prior acquittal. For example he remarked, “I, of
We believe that the record thus reflects the trial court‘s awareness of the impropriety of enhancing a sentence on the basis of a prior acquittal, and that the sentence was clearly based on (1) the serious nature of the оffense, and (2) the entire background, characteristics, and life of the defendant without placing any undue reliance on the prior acquittal. We therefore find that the trial court did not abuse its discretion in referring to the circumstances pertaining to the defendant‘s arrest and acquittal on a prior charge.
2. The Trial Court Did Not Give Improper Consideration to a 1979 Misdemeanor Conviction for which the Defendant Received a Sentence of Supervision.
The defendant‘s next contention is that the court erred in considering a 1979 misdemeanor conviction for which the defendant was placed on supervision. The defendant asserts that under Illinois law a sentence of supervision is not equal to a conviction. Without examining thе merits of that proposition, we note only that, as is established above, a sentencing court may consider all prior criminal activity of a defendant, not just that which results in a conviction. See Smith v. United States, 551 F.2d 1193, 1196 (10th Cir. 1977), cert. denied, 434 U.S. 830 (1977). This argument is, therefore, without merit.
For these reasons we find that the trial court did not err in its consideration of the presentence report.
IV. The Court Did Not Err By Imposing An “Excessive” Sentence.
The defendant‘s final contention is that the trial court imposed a sentence which was unduly harsh in light of sentencing statistics, the nature of the drug involved, and the defendant‘s good character. As we recently reaffirmed in United States v. Ford, 627 F.2d 807 (7th Cir. 1980), cert. denied, 449 U.S. 923 (1980), it is well settled as a general proposition that once it is determined that a sentence is within the statutorily prescribed limits, appellate review of the severity of the sеntence is at an end. Id. at 813. See Gore v. United States, 357 U.S. 386, 393, 78 S.Ct. 1280, 1284, 2 L.Ed.2d 1405 (1958). The defendant here was sentenced to four years incarceration to be followed by four years mandatory special parole. The sentence was imposed pursuant to
For the aforementioned reasons, the judgment of conviction appealed from is affirmed.
SWYGERT, Senior Circuit Judge, dissenting.
I respectfully dissent from the majority‘s conclusion that the district court did not improperly rely on defendant‘s previous acquittal in imposing a sentence on the cocaine smuggling charge. Although I recognize that a sentencing judge has broad discretion in making a sentencing determination and that his inquiry is “largely unlimited either as to the kind of information he may consider, or the source from which it may come,” United States v. Tucker, 404 U.S. 443, 446, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972), I believe that there are limits to the type of information a sentencing judge may consider. Further, unlike the majority I cannot conclude that the district judge did not enhance the sentence based on his evaluation of the merits of defendant‘s prior acquittal.
This court has never expressly decided the issue before us today, i. e., whether a trial judge may properly rеly upon his own evaluation of the merits of a defendant‘s prior acquittal in making a sentencing determination. In United States v. Cardi, 519 F.2d 309 (7th Cir. 1975), this court stated that “[an] acquittal does not preclude the district court from considering the information concerning [the defendant‘s] association with these activities.” Id. at 314 n.3 (citing United States v. Haygood, 502 F.2d 166, 171-72 n.16 (7th Cir. 1974), cert. denied, 419 U.S. 1114 (1975)).1 In Cardi, however, the district court relied upon independent evidence2 of defendant‘s activities that were related to the prior indictment and acquittal. Further, unlike the case at bar, the court found that there was no indication that the district court based his sentencing decision on the information surrounding the prior acquittal. Id. at 314.
Other circuits have, however, expressly held that a sentencing judge may properly rely upon defendant‘s prior acquittals. See United States v. Sweig, 454 F.2d 181, 184 (2d Cir. 1972); Billiteri v. United States Board of Parole, 541 F.2d 938, 944 (2d Cir. 1976); United States v. Bowdach, 561 F.2d 1160, 1175 (5th Cir. 1977); United States v. Morgan, 595 F.2d 1134, 1137 (9th Cir. 1979). Nevertheless, I believe that such a rule conflicts with well-established principles of due process and also with the analysis of the Supreme Court in Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948).
In Townsend v. Burke, supra, the trial court questioned the defendant at the sentencing hearing regarding his criminal record. The defendant stated that he had been found not guilty on one of the charges mentioned by the trial judge. Two of the other charges noted by the trial judge also resulted in acquittals, but no one provided the trial court with that information. The Supreme Court reversed the conviction on the ground that the defendant “was sentenced on the basis of assumptions concerning his criminal record which were materially untrue.” 334 U.S. at 741, 68 S.Ct. at 1255.
The trial judge went on to state that, “I am not thoroughly satisfied that [self-defense] is complete exoneration when a person is stabbed repeatedly about the face and body during a fight.” Such a statement is an insult to our criminal justice system. A jury in that case heard the testimony of the witnesses, saw the evidence, and returned a verdict of not guilty; it is not for the sentencing court in another unrelated case to reassess the evidence presented in a prior prosecution.3
In United States v. Johnson, 507 F.2d 826, 832 (7th Cir. 1974) (Swygert, J., concurring in part and dissenting in part), cert. denied, 421 U.S. 949 (1975), I argued that a pending charge should not be considered by a sentencing judge:
To do otherwise is to infringe upon the basic rights and safeguards we provide a defendant in a criminal cаse. A defendant is entitled to a jury determination if he so desires. We should not permit a procedure that could result in allowing a judge‘s broad sentencing discretion to be used by prosecutors as a means for increasing a defendant‘s sentence on the basis of a factual determination as to other alleged criminal activity for which a jury conviction might not be possible.
A fortiori, we should not allow a charge of which the defendant was acquitted by a jury to be used by the sentencing court to enhance his sentence in a later unrelated case.
I recognize that it is not improper for a presentence report to contain information regarding the defendant‘s criminal record, including prior acquittals, pending charges, and arrests that did not reach the adjudication stage, see
The district judge‘s error in the instant case was not in possessing or even considering the information about defendant‘s prior acquittal. Rather, his error was in attempting to make his own evaluation of defendant‘s culpability in that earlier case and disregarding at least in part the verdict of the jury. I believe that to allow a sentencing judge to enhance a sentence based on the facts surrounding a prior acquittal, or even to reassess the facts presented in that case, violates constitutional guarantees of due process. Accordingly, I would remand the case for resentencing.
Notes
The Court: I think because of the severity of the offense and for various other reasons, I will have to agree with the government, Mr. Blair. I do not believe that this is a case where straight probation would be justified in view of the prior difficulties the defendant has been in, as you are aware from the presentence report. They haven‘t been serious offenses except for the death charge which he was acquitted of, but, nevertheless, the individual victim died. And the other offenses indicate that he has some lack of moral fiber because when he gets in difficulties he commits some kind of crime or maybe a misdemeanor.
The Court: Well, he has two other misdemeanor offenses of relatively recent origin, one in North Riverside--both in North Riverside. Even though you were able to successfully defend him in the murder charge, the fact that a person even gets into that situation, I think, is some evidence that he has some instability if not some proclivity to commit crimes.
I, of course, can‘t say that merely being indicted for a crime is a reason for putting someone in jail for sоme other crime.
Mr. Blair: Yes, sir.
The Court: But there are many ways to solve these domestic problems other than by killing the person that is pursuing the person you are living with.
Mr. Blair: Except in one instance, your Honor.
The Court: Pardon me?
Mr. Blair: Except in one instance and that is the instance that was involved here, self-defense.
The Court: Are you talking about self-defense?
Mr. Blair: Loss of your own life. I believe the courts and the law provide that you should be given the right to defend until death if you are threatened.
The Court: Right. And obviously you were able to persuade a jury or a judge that that was the defense.
Mr. Blair: I don‘t think there is a dispute about the facts, Judge.
The Court: Well, I am not thoroughly satisfied that that is complete exoneration when a person is stabbed repeatedly about the face and body during a fight. Maybe it is. I can‘t try that case. He was found not guilty. I really can‘t go into the merits of it.
Mr. Blair: Yes, sir.
The Court: I will have to say, in all honesty, that that together with the two offenses in Riverside and the fact that I think he is here under--well, because he has political asylum, which is a grant of special status, makes it difficult to excuse the crime that he has committed.
So, I am going to sentence you, Mr. Plisek, to a period of 5 years in the federal penitentiary and impose a period of 4 years’ mandatory special parole following that, ...
The trial court in Cardi had before it the affidavit of an FBI agent and the testimony in open court of the director of the Illinois Investigating Commission.