545 F.2d 775 | 2d Cir. | 1976
Lead Opinion
Raymond Robin, age forty-eight at the time of sentence, a former and then retired police officer and a licensed bailbondsman, appeals from a jail sentence of thirty (30) years plus fines and probation imposed upon him after his plea of guilty to a three count indictment (June 1974) against him, charging (1) conspiring to distribute narcotics in violation of Title 21, U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(A), and (2) illegally possessing and distributing heroin on two separate occasions in March, 1974, in viola
After being fully warned of his constitutional rights, appellant waived arraignment on both indictments on the understanding that he would cooperate with the federal authorities (the Government) and perhaps reach an agreement on the disposition of his case. The federal indictment
In November, appellant petitioned in the Federal District Court before District Judge Motley to withdraw his previously entered plea of not guilty and to plead guilty as charged. The guilty plea was accepted by the court over the objection of the Government, which wished to nolle prosequi the case.
Appellant was sentenced on January 9, 1976, to fifteen years in prison on each count, with the sentences in Counts One and Two to run concurrently and the sen-
fence on Count Three to run consecutively, totalling thirty (30) years’ incarceration. Fines totalling $75,000 were also imposed, and a special three'year special parole term was ordered to follow the thirty-year term of imprisonment.
Prior to sentencing, a State Assistant District Attorney (Cunningham), who had investigated State charges against appellant, submitted a letter to the Federal District Judge on the subject of the state investigation.
The sentencing proceeding was marked by repeated disputes between the Government and the appellant on the underlying facts of the case. Appellant offered a tape and certain State Court exhibits to the Court to rebut the Government’s version of the facts surrounding the case, but the Court refused to consider them.
The Government’s posture at sentencing was that appellant was a major heroin trafficker. The Government did not rest this
“Mr. Robin, as I have indicated, the Court is convinced that your involvement in narcotics was on a major scale, and that this crime was committed after the very severe penalties enacted by the New York State Legislature went into effect which means that anybody involved in the narcotics traffic after that date is involved on a major scale because he is taking a major risk which you obviously were willing to take in view of the large sums of money involved in narcotics traffic.” Tr. at 60.
Appellant filed a timely notice of appeal challenging the sentence. Following oral argument, we ordered that the presentence report be made part of the record on appeal.
“Misinformation or misunderstanding that is materially untrue regarding a pri- or criminal record, or material false assumptions as to any facts relevant to sentencing, renders the entire sentencing procedure invalid as a violation of due process.” Townsend v. Burke, 334 U.S. 736 at 740-1, 68 S.Ct. 1252, 92 L.Ed. 1690. United States v. Malcolm, 432 F.2d 809, 816 (2d Cir. 1970).
Accord, United States v. Herndon, 525 F.2d 208 (2d Cir. 1975); United States v. Needles, 472 F.2d 652, 657 (2d Cir. 1973).
Rule 32(a)(1) of the Federal Rules of Criminal Procedure (Rule) provides in pertinent part that:
“Before imposing sentence the court shall afford counsel an opportunity to speak on behalf of the defendant and shall address the defendant personally and ask him if he wishes to make a statement in his own behalf and to present any information in mitigation of punishment.”
We have held that a defendant must be permitted to state his version of the facts to the court; where the possibility of reliance on misinformation is shown, this right must be extended to permit that presentation by the defendant which will enable the sentencing judge to grasp the relevant facts correctly. United States v. Needles, 472 F.2d 652, 658 (2d Cir. 1973); see also, United States v. Rollerson, 491 F.2d 1209, 1213 (5th Cir. 1974); United States v. Powell, 487 F.2d 325, 329 (4th Cir. 1974). In appropriate circumstances, this may mean that a defendant will be permitted to submit affidavits or documents,
Presentence reports, prepared by probation officers for use at sentencing,
To enable a defendant to effectively present his version of the facts to the court by pointing out inaccuracies in the presentence report, we have held that a defendant must be given adequate time to prepare and present a rebuttal to information which he contests.
“[The] morning [of sentencing] when . chief defense counsel . was shown the prosecutor’s memorandum, he asked for an adjournment so that he could have ‘an opportunity to answer them.’ Although defense counsel had had no time to review or possibly even to absorb seventeen separate incidents hitherto unfamiliar to him, the request for an adjournment of sentence was denied. The Assistant United States Attorney then made a strong plea that ‘Mr. Rosner be dealt with in the harshest possible terms’.”
“Here the defendant did have able and conscientious counsel, but unless counsel was given adequate opportunity to correct any misinformation in the prosecutor’s memorandum, we doubt that his spontaneous comment before sentence was adequate to afford the defendant his due.” 485 F.2d at 1229, 1230 (quotation marks in original).
Much the same can be said in the present case with respect to the presentence report itself. The Government and prosecuting state authorities were urging that appellant be treated as harshly as the law permits,
The importance of the presentence report and the Cunningham memorandum in this particular case cannot be overemphasized in view of appellant’s plea of guilty. The absence of a trial prevented the judge from acquiring that familiarity with the case and the defendant which frequently aids immeasurably at sentencing. Moreover, the judge was also deprived of the benefit of
Without the benefit of a trial, the sentencing judge necessarily leaned heavily on the presentence report and the Cunningham letter as sources of information concerning the appellant’s behavior and alleged criminal acts. This is borne out by the court’s conclusions concerning appellant’s major involvement in narcotics trafficking
There can be no question that the time allotted to appellant’s counsel was insufficient to permit adequate study of the presentence report, particularly in view of the fact that counsel was not permitted to show the report to his client. Had the sentencing been preceded by a trial on the merits, this error might have been waived
by counsel’s failure to seek an adjournment of sentencing.
The court presumably was in possession of the presentence report at the time that appellant’s counsel requested an adjournment on the basis of the Cunningham letter. Appellant maintains that the court refused to discuss the matter with his counsel and instead denied the request summarily.
The conclusion is inescapable that the appellant was severely impaired at sentencing by inadequate preparation that was wholly beyond his control. Moreover, it is clear from appellant’s repeated and unequivocal objections (both personally and through counsel) to the veracity of the sentencing data that a serious question respecting accuracy was raised. For these reasons the sentence must be vacated, and a remand for resentencing ordered. Following the preferred practice in such cases, resentencing will be before a different judge.
Since the sentence imposed was within the statutory maximum, we cannot entertain a serious question as to its legality
Vacated and remanded.
. All references hereafter to the “indictment” are to the federal indictment, unless otherwise noted.
. The Government apparently wished to permit prosecution of the appellant in State Court, proceedings which would be barred under state law if appellant were tried in federal court on charges relating to the same transactions or incidents which were the subject of the state court indictment.
. The appellant maintains that the letter was dated December 9, 1975. The Government does not offer any conflicting date.
. Appellant’s trial counsel maintains that this letter was not received by his office until December 26, and that he did not see it until he returned from a vacation on January 6, 1976. Sentencing took place on January 9.
. There is some confusion as to the precise hour when this occurred; however, the Government apparently does not dispute that defense counsel was permitted to examine the report only for a brief period of time immediately preceding the sentencing proceeding.
. The grounds for this refusal are not clearly stated in the record.
“MR. COHEN [Appellant’s Counsel]: . . I think your Honor ought to have this before you . . .
THE COURT: What are you referring to?
MR. COHEN: A tape that was made when this defendant was arrested, and an exhibit in the case held before Judge Denzer.
THE COURT: What about it?
MR. COHEN: It indicates that before there was any thought of this defendant being sentenced, that officers of the Drug Administration indicated that this defendant had a very small part in the drug traffic in New York.
*778 MR. AMOROSA [Government]: Judge, I object to this procedure. We have not had an opportunity to look at this.
THE COURT: I have not seen it either.
MR. COHEN: I want your Honor to see what they said then. At the time he was arrested — this is a transcript of the Police Department of New York. This was produced at hearings held under the New York indictment.
MR. AMOROSA: To show what, this man’s culpability? What does that have to do with our knowledge now with respect to that defendant?
MR. COHEN: I will show your Honor if that is the question.
MR. AMOROSA: Judge, this is in the nature of a summation, I ask before your Honor consider it that the government be allowed to look at it.
THE COURT: I think that is right, Mr. Cohen. I do not know what this document is, and I am not going to read it now, so you can take it back.
MR. COHEN: But I tell your Honor that that transcript indicates that this defendant was told at the time of his arrest that he was not being arrested for his part in the drug traffic.
THE COURT: That has to do with these charges?
MR. COHEN: It does, ma’am, absolutely. And it has to do with his posture within the drug traffic about which so much has been made in the memorandum.
MR. AMOROSA: I am compelled to ask your Honor to disregard this unless the government is given a full opportunity to explain it, assuming it is so.
THE COURT: Move on to something else, Mr. Cohen.
MR. COHEN: Of course, your Honor.” Transcript of proceedings of January 9, 1976 (hereinafter cited as “Tr.”), at 8-10.
. “THE COURT: It is your contention that he actually possessed the heroin, is that it?
MR. AMOROSA: A major trafficker in heroin.
THE COURT: That is shown by his plea to counts 2 and 3.
MR. AMOROSA: He did not admit he was a major dealer.
THE COURT: You don’t think selling a half a kilo of heroin is major?
MR. AMOROSA: Judge, it is relative. We have people that have sold 130, 140 kilos of heroin, and we consider those violators. The defendant to have [sic] admitted in substance to selling or facilitating a kilo of heroin, and this defendant facilitated the sale of multikilos—
THE COURT: I cannot sentence him for matters he has not been convicted of.
MR. AMOROSA: We understand that, but we would like your Honor to take into consideration what we have to say also.”
Tr. at 28.
. Note 7, supra.
. Tr. at 31.
. See, United States v. Delaney, 142 U.S.App. D.C. 372, 442 F.2d 120, 122-3 (1971). Since the report was not disclosed to appellant personally, we have examined it in camera to preserve confidentiality. We express no opinion, however, respecting the district court’s refusal to permit appellant to examine it.
. See, e. g., Counts v. United States, 527 F.2d 542 (2d Cir. 1975); McGee v. United States, 462 F.2d 243, 248 (2d Cir. 1972).
. Actual reliance need not be shown:
“Here it is impossible to determine from the judge’s remarks in imposing sentence . whether he was at least in part influenced by the [vacated] conviction under count 1 in setting sentence on counts 2 through 4. However, certain factors indicate that this is quite probable.
s}; * * * * *
[Accordingly], we have determined that it is not improbable that the initial sentencing process with respect to the valid counts was to some extent affected by the conviction on the far more serious count 1, which was illegally brought. To purge this possible taint after the fact . . the order is vacated and the cause remanded.” McGee v. United States, supra, at 462 F.2d 245-6, 247.
. United States v. Needles, supra, at 472 F.2d 658.
. Ibid.
. In United States v. Rosner, 485 F.2d 1213, 1231 (2d Cir. 1973), this Court declined to order an evidentiary hearing upon resentencing but implicitly acknowledged the availability of such a procedure. See, also Shelton v. United States, 497 F.2d 156, 159 (5th Cir. 1974); United States v. Gorden, 495 F.2d 308, 310 (7th Cir. 1974).
. United States v. Needles, supra, at 472 F.2d 658.
. See, F.R.Crim.P. 32(c).
. See, Gregg v. United States, 394 U.S. 489, 89 S.Ct. 1134, 22 L.Ed.2d 442 (1969), reh. denied, 395 U.S. 917, 89 S.Ct. 1738, 23 L.Ed.2d 232; Farrow v. United States, 373 F.Supp. 113 (S.D. Cal. 1974).
. See, United States v. Malcolm, supra, at 432 F.2d 818.
. Compare, e. g., F.R.Crim.P. 32(c)(3) as amended in 1966, and as amended in 1974.
. United States v. Rosner, supra at 485 F.2d 1230; United States v. Hermann, supra, 2 Cir., at 524 F.2d 1103; Shelton v. United States, supra at 497 F.2d 159-160.
. See, e. g., Tr. at 41.
. Affidavit of defendant’s trial counsel, Mr. Cohen, submitted as appellant’s reply brief.
. “Williams’ second argument is that the court failed to provide ‘a meaningful chance to test the reliability of the information which is to be used in sentencing’ because there was no evidentiary hearing. But his counsel had earlier cross-examined two of the government’s trial witnesses, and Williams’ failure to request a hearing gave the court no reason to suspect that he wished such an opportunity.” United States v. Williams, 499 F.2d 52, 55 (1st Cir. 1974) (footnotes omitted).
“Regarding the allegation that the unexpected sentence resulted from erroneous information in the presentence report, the Trial Court’s findings of fact affirmatively establish that the District Court was ‘well aware before sentencing of the errors in the presentence investigation report, and the Court knew that the defendant was not a “kingpin” in the narcotics trade.’ Any suggestion that the sentence was based on incorrect facts is therefore clearly rebutted.” United States v. Battle, 467 F.2d 569, 570 (5th Cir. 1972) (emphasis supplied).
. See this opinion at 777-778, supra.
. Note 7, supra.
. Ibid.
. See, United States v. Green, 483 F.2d 469, 471 (10th Cir. 1973).
. United States v. Brown, supra, at 470 F.2d 288. Compare, United States v. Murphy, 497 F.2d 126, 128 (5th Cir. 1974); United States v. Rollerson, 491 F.2d 1209, 1213 (5th Cir. 1974). See, also, United States v. Needles, supra, at 472 F.2d 658-659.
. This is not denied by the Government.
. United States v. Rosner, supra, at 485 F.2d 1231; United States v. Brown, 470 F.2d 285, 288-9 (2d Cir. 1972).
. United States v. Tramunti, 513 F.2d 1087, 1120 (2d Cir. 1975); United States v. Driscoll, supra; McGee v. United States, supra.
. See United States v. Driscoll, supra, at 496 F.2d 254; United States v. Moody, 371 F.2d 688, 693-694 (6th Cir. 1967).
. See Partridge, The Second Circuit Sentencing Study (1974) at A-18; Orland, Justice in Sentencing (1974) at 157-198.
Dissenting Opinion
(dissenting):
Sentence review is none of our appellate business.
Today’s majority decision is the most unwarranted interference with a conscientious district judge’s imposition of sentence within the limits prescribed by Congress that I have seen in more than sixteen years on the federal bench.
Raymond Robin — whose underworld code name is “Railroad” or “RR” — was caught red-handed selling one-half kilograms of heroin on two occasions during a six day period in March 1974. A retired New York City police officer and bail bondsman, he pleaded guilty to three counts of violation of the federal narcotics laws. He has never said or suggested that he did not commit the offenses. He has never indicated a scintilla of remorse. After a day-long sentence hearing,
The majority candidly concedes that it does not like “the particular severity of the sentence which was imposed in this case.” 545 F.2d at 782. Reaching deep down into its bag for a rationalization to justify its vacating a sentence imposed within statutory limits,
The record is squarely to the contrary.
In the first place, no objection was made before Judge Motley of insufficient time to examine the presentence report and no request for an adjournment of sentencing was made for the purpose of examining it.
In short, the ground upon which the majority’s decision is based must be viewed precisely for what it is: a ground never claimed by appellant or his counsel in the district court or on appeal; a ground totally devoid of any support in the record; but a ground nevertheless relied on by the majority as a vehicle not only for expressing its “concern” for “the particular severity of the sentence” but for vacating it.
If this were not enough to compel me to dissent, there is one other matter. Without the slightest basis in the record to justify it, the majority has directed that “resentencing will be before a different judge”. 545 F.2d at 782. The majority characterizes this as “the preferred practice in such cases”. Id. What is “preferred” of course is a subjective judgment. I had supposed that the extraordinary remedy of directing that proceedings on remand take place before another judge should be reserved for the extraordinary case. In my view, this is not such a case. In the context of imposition of sentence, one would expect, before ordering the extraordinary remedy of re-sentencing before a different judge, that such order be based upon a showing in the record of such bias or prejudice against the defendant as to render it difficult or impossible for the judge fairly and impartially to perform the duty which she took the oath more than ten years ago to perform. There is not a scintilla of a showing in this record of any such bias or prejudice, and the majority points to none.
The conclusion therefore is inescapable that the direction that appellant be resentenced before a different judge further confirms my belief stated above that the true reason for the majority's decision vacating this sentence is that the majority simply does not like “the particular severity of the sentence which was imposed”. With deference, that strikes me as precisely the sort of sentence review which is none of our appellate business.
I therefore respectfully but most emphatically dissent.
. The sentence hearing began at 10 A.M. on January 9, 1976. It continued until the noon recess. It resumed at 2 P.M. and continued until sentence was imposed later in the afternoon.
Both sides were given a full opportunity to be heard. There was no curtailment of the presentation by either side. Both Robin and his attorney were heard at length. On the government side, in addition to the Assistant United States Attorney, the judge briefly heard from David F. Cunningham, Esq. and Sterling Johnson, Esq., the two prosecutors who had been in charge of the New York State prosecution of Robin for the same narcotics offenses for which he was indicted in the federal court.
. The majority, although giving lip service to it, then proceeds totally to ignore the rule which is deeply rooted in public policy and has been uniformly adhered to by the Supreme Court and ours that “a sentence imposed by a federal district judge, if within statutory limits, is generally not subject to review.” United States v. Tucker, 404 U.S. 443, 447 (1972); accord, Dorszynski v. United States, 418 U.S. 424, 441 (1974); Gore v. United States, 357 U.S. 386,
. Indeed the majority states only that “defense counsel unsuccessfully sought an adjournment of sentencing in order to prepare a rebuttal” to the Cunningham letter.
Even this request for an adjournment does not appear in the 'record certified to this Court. It appears only in an affidavit by Robin’s district court counsel attached to Robin’s reply brief in which he states that “My purpose is to make clear herein that I did not have enough time and opportunity to adequately meet the many conclusiory (sic) and hearsay statements contained in Mr. Cunningham’s letter." (emphasis added). Counsel never complained of insufficient time to examine the presentence report.
As for the Cunningham letter, Robin’s counsel concedes that it was received in his office two weeks before the date of sentencing.
And of course Cunningham himself appeared at the sentence hearing where he was available for questioning by defense counsel who chose not to question him.
. The repeated references in the majority opinion to the fact that the presentence report was given to defense counsel but not “to his client”, 545 F,2d at 777, 781, appear to suggest that there was something wrong with that procedure. Amended Fed.R.Crim.P. 32(c)(3), however, which governs disclosure of the presentence report and which became effective on December 1, 1975, just one month before the instant sentence was imposed, expressly states no less than five times that the presentence report shall be made available to “the defendant or his counsel”, (emphasis added).
. With respect to defense counsel’s use of the presentence report at the sentence hearing, the record shows the following:
“MR. COHEN [Robin’s attorney]: If your Honor please, to begin with I would like to address myself to some of the matters in the presentence report. I had an opportunity to see that this morning (Tr. 2-3).
* * *
On an individual basis the presentence report has shown you this man at the age of seventeen and not under any compulsion but voluntarily enlisted in the United States Navy. On his eighteenth birthday he was in the fields of the Philippines, and served his country throughout that time with honor, and received an honorable discharge.
Thereafter, as the probation report shows, your Honor, the man was a policeman and worked for the city and state of New York. Despite various suggestions again in the presentence memorandum, your Honor will note that the probation officer from the official record has indicated and tells your Honor and informs your Honor that during his years of service not once but twice he performed meritoriously enough for commendation. We are dealing with that kind of man in public service. I am not going to detail the family background. Your Honor has all of that, but that is the kind of man we are talking about. A man who has never been convicted of anything, not even getting a traffic ticket.” (Tr. 11).
Of course defense counsel understandably made selective use of the presentence report. But that itself belies the assertion of the majority that “the time allotted to appellant’s counsel was insufficient to permit adequate study of the presentence report . . 545 F.2d 781. Appellant’s counsel never, at any time, in any court, made any such claim.
. Judge Motley’s ruling that in imposing sentence she would confine herself to the charges
