United States v. Robert L. Pinkney

BAZELON, Chiеf Judge: Appellant was convicted possession phenmetrazine intent to distribute,1 possession phenmetrazine,2 possession After sub- methadone.3 finding court of report4 mission to the him under the unsuitable treatment Narcotics Addict Rehabilitation Act (NARA),5appellant prison was sentenced (with a years terms of from one to three special parole years) term of two possession with intent count to distribute count, run each all to year and one other concurrently. * Sitting by designation pursuant prepared report 28 U.S.C. Fed- staff at the 294(d). Danbury, § eral Institution at Con- Correctional necticut, appellant to which for a was referred 841(a) (1970). § 1. 21 U.S.C. study pursuant 60-day period 18 U.S.C. (1966). § §

2. 33 D.C.Code seq. (1966). ei 5. 18 U.S.C. § § 3. 33 D.C.Code money have in do we much bank? appellant’s сlaim Finding merit to dollars, meaning four or illustrating the five erred in hundred that; its something like phrase “reasonable doubt” the children have to convic- reverse the charge jury, school this fall and go to need new phenmetrazine possession of and all that tion for books business. clothes dis- For the reasons to distribute. intent haven’t had a vacation for five And we below, the we affirm convictions cussed see, starts you listening and she years, possession counts and remand two think says, you don’t we could he and resentencing. purpose some money for other this spend day? rainy it for a save or see, hesitating, talking they You reading jury the standard After it, pausing. says: The husband about instruction,6 proof burden automobile, Look, have it’s run- a nice meaning doubt” “reasonаble illustrated the course, we would ning pretty well. Of following example: have new car but let’s think a like working, young couple a who are Take this. about they and have or three children they two hesitating, see, communi- they are You They or home. apartment a have little It is a cating with each other. reasonable bank, in the money much don’t too they You can take that have. doubt is run- an automobile that they have through examples, a thousand whether day well. One a salesman ning pretty trip not, you get a or whether a take you man young wife of this finds out the job or not. new in a new automobile. be.interested Tr.T. 147-149. up her number and calls gets he her So you like to have drive says I would and of this illustra- propriety We evaluate Chevrolet, might be you I hear new this reasonable in- mindful that the doubt car. a new prime interested “is a instrument for reduc- struction resting on factu- Well, ing around house and the risk convictions he came provides a ride she fell standard concrete went out for error. they al ready inno- presumption is for the this automobile. She love substance away, husband buy right it but the ‘axiomatic and elemen- bedrock cence—that night having and while home at lies at principle comes whose ‘enforcement tary’ dinner, talking she tells they start our of the administration of foundation ”7 about this automobile she had driven him in- law.’ The reasonable doubt criminal go right get would like to it it impresses “is indispensable, struction just crazy about it. away. reaching She necessity of trier of fact the on the of the facts subjective state of certitude says: listens to The husband her and a ” issue[,]’ and minute, sweetheart, How because “command[s] a listen. wait guilt. charged abiding defendant’s that: of the 6. The court conviction cause a reasona- as would such doubt It is upon always the Govern- The burden is pause graver person or to hesitate ble prove beyond guilty ment a defendant important life. more transactions or Unless reasonable doubt. the Government Tr.T.). (hereinafter Transcript proves beyond at 146-147 a rea- sustains burden and Trial States, Scurry has com- sonable the defendant doubt See denied, every or of- U.S. mitted element the offense cert. charged (1967). him not fenses must find 19 L.Ed.2d guilty. Holland also implies Now as reasonable doubt the name reh. L.Ed. 75 S.Ct. reasоn, is a doubt which is based on a doubt L.Ed. 75 S.Ct. U.S. you give yourself. for which can a reason to 358, 363, Winship, U.S. 90 S.Ct. In re juror is such a as It doubt would cause (1970), citing Coffin 25 L.Ed.2d impartial after careful and candid consid- eration all the evidence to be so undecided say he or 39 L.Ed. she canw1 have an prosecution generated community in criminal to the doubt confidence of buying of the by consideration wisdom of the criminal law.”8 applications car, clearly the illus- unnecessary new clarify attempts Judicial denigrate “graver, tends tration doubt” phrase “reasonable meaning of con- important transactions of life” more illustration, elaboration or explanation, Moreover, stereotyped portrayal its cept.11 here, not tend employed more often than practical at- patronizing husband’s Thus, jurors mislead.9 to confuse wife, tempt flighty talk sense into his believe the defendant might well that for the entire matter of conviction.12 trivializes strong a case he must make out as prevail object against trial counsel failed to conviction as there was Since against instruction,13 faulty the car. We the instruc we must decide buying think error uncertainty plain the the matter degree of whether constitutes overstates tion meaning 52(b)14 of the by And the of Rule required for reasonable doubt.10 within required level in a Rules of Procedure.15 comparing the of doubt Federal 364, 7, Winship, supra, Alvero, U.S. at 90 In re 397 8. 470 F.2d 981 See United States v. 10. 1068. S.Ct. (5th Cir. 6, States, supra, 348 In Holland 9. Supra, n. 6. 11. 140, (1954), 75 the Court at S.Ct. at 138 U.S. “ ‘[attempts explain the to admonished 7, Winship, supra, usually 12. In In re result “reasonable doubt” do not term 1072, 364, [1068], Supreme any making of the 90 S.Ct. the it clearer to the minds jury,’ against “watering United U.S. Miles v. 103 the cautioned down” Court . . .” See 481] [1881] L.Ed. . [26 “It critical that doubt standard: is reasonable 296, (2d Anglada, Cir. v. 524 F.2d 300 States 1975) force of the criminal law not be the moral (“The in heart of reasonable doubt [the peo- proof that leaves a standard of diluted appropriate enough, the struction] somewhat being ple in doubt whether men are innocent confusing parable the father and condemned.” twigs apparent a bundle of and the character quantitative of the rather ization standard as 51, party provides Rule F.R.Crim.P. that a qualitative might both have been than omitted.”); better make “known the action to the court Shaffner, Stаtes v. objec- he desires court to take or his which 1021, (7th 1975) (“It opinion 1023 Cir. is our grounds any of the court and the defining to the action use of an reasona instruction presents equivalent provides that a to . . .” Rule 30 ble situation therefor doubt playing problem assign with fire. that such an any portion The is party error “[n]o generally employed is one instruction side.”); to favor charge or omission unless he therefrom 610, Cassino, v. jury objects before retires to con- thereto 928, (2d Cir.), cert. 93 S.Ct. 619 denied 410 U.S. verdict, distinctly stating the matter to its sider 1363, (1973) (“. hypo 590 35 L.Ed.2d . . objects objec- grounds and the which he illustrations because thetical should be avoided tion.” they may jury likelihood that of the divert the .”); People Mich.App. Shepherd, v. . 63 52(b) reviewing allows courts to take Rule 502, 316, (1975) (“. N.W.2d 234 506 . . affecting “[p]lain errors or defects notice likely give jury weight examples, is undue rights.” substantial comprehend, are easier since it may simply compare the defendant’s conduct Morrison, example.”); Wiggins, See, g., State v. 174 United States v. e. 144, 554, (1903) (“As Kan. 72 P. 166, has been (1976); U.S.App.D.C. 530 F.2d 1018 Unit court, often said ‘reasonable term Martin, ed States attempts best defines doubt’ itself. All at defi Powell, (1973); United States v. F.2d likely prove confusing danger nition are (1971); F.2d 994 ous.”); Robinson, State 117 Mo. 23 S.W. Moore, (2d 1893) (“It Div. is difficult denied, cert. simple explain terms so like ‘reasonable doubt’ 28 L.Ed.2d 647 McGill v. United plainer. Every ‍‌‌‌​​‌​​‌​​‌​‌​‌​​​‌​‌​‌​​‌‌‌​​‌​‌​​‌‌​‌​‌​​​​‌‌‍make them as to tempt . at 348 F.2d 791 explain explanation them renders an Jacobs, U.S.App. explanation necessary.”). Unit See also (1969); Scurry 413 F.2d 1105 v. Unit Lawson, 442-443 ed States, supra, n. 6. ed Cir.), (7th cert. 43 L.Ed.2d 762 Moreover, (1) retired.23 requires likely determination considera- This whole,16 jurors (2) might given weight instructions as a have undue tion of the record, graphic example,24 such a “strong of the entire since which because of a review length nonlegal its character supports finding preju- of no evidence easily comprehended . been-more proof And because the dice.” burden of instruction, standard remembered than the a reasonable beyond doubt is “one of the 18 “resonatpng] room as a standard components process,” fundamental of due responsibility.”25 function and of their able any we must be to declare a belief that beyond was harmless error reasonable (2) Our review of the evidence con doubt.19 prejudicial vinces us that the error was only (1) Viewing the instructiоn in context of- possession respect with intent appellant fers little assurance that was not count, appellant freely sell since admitted seriously prejudiced by the illustration. Al- phenmetrazine of both the possession tabl though the prefaced the story with a and the methadone.27 With ets26 correct statement concerning govern- possession count, with intent to sell ment’s burden proof,20 example com- however, largely disputed, the facts were prises major portion of the reasonable equivocal.28 govern evidence doubt instruction.21 Nor was the error testimony ment’s case revolved around “ subsequent ‘cured charge’ plainclothes of three police officers who had illustration was the final mention made neighbor riding through appellant’s been proof standard jury Pope before hood in an unmarked car. Officer Wiggins, supra, 16. United States v. Scott, n. 15 at supra, 23. See United States v. n. 16 1021; Scott, United States v. 341. 96, 338, 529 F.2d United States v. Shaffner, supra, 1023; n. 9 at United States v. Jacobs, 15, supra, in States v. 24. See United Martin, supra, cases); (compiling n. 15 at 947 jury advising an instruction to con- which States, Howard v. United light “experi- the evidence in sider of their own 336, 287, 389 F.2d community” citizens was criti- ences Martin, supra, 17. jurors See United v. at15 The court there noted cized. that while 948; States, supra, Howard v. United n. 16 at required try shake off their own “not 291; States, Cooper U.S.App. v. United observations,” knowledge, experiences and 83, 274, (1966); Scurry unintended, instruction, “though particular States, supra, n. 6 at 470. jury judge lead the the evi- upon partiсular personal the basis of dence Martin, supra, 18. United States v. n. 15 at 948. [proper] experiences rather than under Winship, supra, See In re 397 U.S. at ... set forth standards 90 S.Ct. 1068. . . . .” Id. at 1107. Chapman California, 19. 386 U.S. S.Ct. L.Ed.2d reh. States, supra, n. 15 at 797. 25. McGill 18 L.Ed.2d 241 See People Shepherd, and other cases cited Martin, supra, United States v. n. 15 at 949. supra, n. 9. Scott, supra, See also United States v. n. 16 at 340. Appellant thrown the testified that he had 26. Supra, 20. n. 6. ground. phenmetrazine tablets onto the Tr.T. his, asked whether the 79. When tablets were 21. The reasonable in doubt instruction its en- “Yes,” explaining replied that he was appellant 146-149; tirety appears at Tr.T. the illustration Tr.T. 80. of narcotics.” “a user spans pages Compare, g., 147-149. e. Jacobs, supra, (“The n. 15 at 1106 reported got language Appellant that he the metha- quoted part 27. is but a small of a com- clinic,” prehensive regarding province and that he instruction “from the methadone done using dope.” of the to the evidence. Its it to “cure Tr.T. [himself] used possible upon jury accordingly effect was 81. diluted.”). Shaffner, Compare supra, 28. United States v. 22. Howard United n. 16 at at 1024. n. 9 citing Souza, Southern Pac. Co. v. (9th Cir. doubt,35 place jury’s that the decision was sale29 took sonable aborted testified stopped negotiated swayed car and the erroneous instruction.36 he not after appellant call having Accordingly, possession heard the conviction for appellant, report, re- police In his crime to sell is “pink.”30 with intent phenmetrazine out he however, wrote that “ob- affirm the оfficer the convictions versed. subject three, later as defendant identified there was served for which two counts something inaudible waved stated guilt, who and on these evidence of conclusive McCluney Scott me.”31 Officers resentencing.37 for remand counts yell someone testified heard also subsequent II but neither heard the “pink,” and Officer appellant between conversation transcript of appellant’s making any offer Pope.32 Appellant denied which hearing questions raises substantial of sale.33 discussion, especially in merit we believe resentencing. remand As Thus, for the sale count view evidence on above,38 best, balanced, appellant referred was, credibility closely indicated at Dan- cir Correctional Institution being primary issue.34 Under these Federal cumstances, we a rea- to deter- say, beyond bury, cannot Connecticut examination Pope appellant prejudice testified that had does not 29. Officer caused a defendant error pills agreed simply him He relat- evaporate $20. to sell three be- or diminish somehow just place, any exchange before object.” took ed has failed to his counsel cause bill, put pocket $20 “took the it back Sarvis, [his] v. Leonard grabbed [appellant’s] hand J., and statpng] (1974) (Bazelon, C. appellant placing ‘Police’ under ap- concurring part dissenting part), arrest. Tr.T. remand, peal after (1975). Recognizing con- that “[a] phenme- Tr.T. 7. “Pink” a street term for equivocal ought di- not to rest on an viction trazine, Preludin. also referred to as “bam” or issue,” jury on a basic Bollen- rection 607, 613, 66 bach v. (emphasis supplied). 31. Tr.T. (1946), we are L.Ed. 350 40-41, 48-49, teaching 32. Tr.T. Kot- in our result confirmed 764, 66 teakos 33. Tr.T. 81. (1946), L.Ed. that serious 90 1557 preju- as to whether a was defendant doubts U.S.App. Millings, 34. See United States v. 175 trial defects be resolved diced 293, 296, 124 F.2d favor. defendant’s U.S. 35. See Glasser United only 62 S.Ct. L.Ed. reh. appellate specu- court could 37. Where (1942): 86 L.Ed. to what trial court would sentence the late safeguards imposed In all cases constitutional absent of a count have consideration preserved jealously to be for the benefit of upon is later which conviction sentence accused, especially is this true where vacated, resentencing for the re- a remand justice may delicately poised the ‍‌‌‌​​‌​​‌​​‌​‌​‌​​​‌​‌​‌​​‌‌‌​​‌​‌​​‌‌​‌​‌​​​​‌‌‍scales of maining, appropriate. See Unit- valid counts error, guilt and Then between innocence. Moore, States ed some which under circumstances would not (1976), and cases cited F.2d reversal, ground for be brushed cannot therein, 22. immaterial, real aside as since there is a disposition in this case note also that our slight provided it chance that have problem the dual sen- created obviates impetus swung guilt. which toward the scales tencing federal and D.C. statutes under both Judge opinion as Leventhal reads our two) essentially (counts the same for one “claim[ing] the as to what is was confused Moore, States offense. J., (Leventhal, reasonable meant concurring doubt[.]” Apр.D.C. 540 F.2d 1088 part dissenting part, Bryant, 817(1975); v. Jones point is Nowhere do we so state. Shepard, way impact knowing have no that we what potentially misleading had instruction Knight, F.2d 354 jurors, unwilling minds of the and are conjecture that it had no substantial effect. willing non-preju- p. Supra, p.-of U.S.App.D.C., Nor are to find the error solely because dicial of counsel’s silence—“the F.2d. of 551 sentencing, At eligible reported mine whether he was trial counsel NARA gone over presentence In a letter he had report treatment. addressed to the court, Danbury staff discussed matter with the recommended Proba- representative.39 tion Office reads, He against such treatment. The letter devoted the remainder of his statement pertinent part: an ac- knowledgment parties what to all Pinkney] was introduced to heroin [Mr. apparent appellant’s seemed addic- —that through peer group association and has tion caused him to be before the court40 drugs used other including cocaine and plea place —and to a the court Investigative bam. reports indicate probation.41 client on amphetamines recent use of during the When asked whether he had read the February month of and March of 1975. report, replied, “I have NARA not Mr. Pinkney has been motivated to ob- it, Your proceed- read Honor.”42 The court therapeutic drug program. serve our He portions Appellant ed to read of it aloud. participate indicates no desire to in such a then attempted exрlain why himself drug program and indicates that treatment did not suit him: NARA group counseling sessions are too intense Honor, I had program Your turned that for him. Our staff has observed his lim- program geared because the down participation program ited in our and it is high intensity hooping and hol- —with finding Pinkney drug our that Mr. ais know, you lering, my messed defined by addict as law. It is also found up. I nerves bad nervous condi- Pinkney likely that Mr. is not to be reha- tion, you which can check. I have never through bilitated treatment because of nothing around like that. I tried to been his limited participate motivation to ain explain it to the man.43 drug program at this time. He admits Counsel, apparently unaware of these con- drug that he is a having addict used regimen, flicts over the treatment offered drugs years. for several We recommend nothing appellant’s more on behalf before you consider sentencing him aas imposed. sentence was regular adult offender with the recom- mendation that he participate drug Finding upon in a these facts substantial program. abuse questions representation as to the afforded do, Sentencing Transcript (hereinafter many reports very thing S.T.). difficult is a record, therefore, particularly on from one’s own. It is clear report that the S.T. 4. was made available to counsel. acknowledgment also came from the Such “Now, judge, agree who noted: counsel. recognized reality 40. Counsel is that “[t]he narcotics, [Pinkney’s] problem is use I think he needs brought it is his narcotic addiction which has ” treatmеnt. . S.T. 6. [Pinkney] here before this Court.” S.T. 2. informed the court that Counsel Appellant explained: himself Honor, Pinkney coming I Your have been back and Mr. feels he will able to deal own, problem long forth before this his narcotics on his sub- court for a with time for ject of course to a structured environment drugs crimes and most of it was due to am a little tired of and I provided using drugs be if the Court would see because I place probation. him on He under- fit to up if I know continue to use Iit will in wind stands, course, dead, that he would jail have to be anyone and don’t wish to be supervision agency of an such as under the Bureau of Rehabilitation or places. of these [sic] something S.T. 3. subjected comparable, that he would be to government Counsel for the offered the fol- surveillance, intensive urine have to maintain that he would lowing: employment and that also, community appears, it would certainly stay any have would to out of fur- right have a to insist that the defendant make trouble. ther effort, perhaps an effort an which he un- S.T. 3. appear able to make on his own. It would there are facilities available for individuals to S.T. they really attempt work if in want an to cut from habit which all indications and from 43. S.T. 6. acknowledged repeatedly appellate counsel asked we appellant, constitutionally enti defendants record reveals suffi whether consider sen to the effective assistance of counsel46 counsel at tled of ineffective cient indicia articu sentencing,47 rec have neither remanding the at we our tencing warrant by specific owed counsel procedure lated duties supplementation, ord for proceedings at this nor v. DeCoster.44 stage client United States in adopted right.48 While the contours of that pretrial defined dealt counsel’s While DeCoster resentencing for here renders per than his the remand preparation, rather trial and in unnecessary sentencing, we further consideration of formance issue,49 of counsel rule, “[cjounsel assistance general effective as a held that appropriate, As exercise our guided American Bar think by be should power over the administration supervisory Function.” for sociation Standards Defense justice circuit,50 chart in this criminal 45 аny guidelines for we offer 1204- cases did 487 F.2d these 44. 159 performance sentencing. (1973) at But see counsels’ Martin, supra, n. 15 at 954-956 States v. DeCoster, supra n. 44 at v. J., 45. United States dissenting). (Bazelon, C. 1203, referring Associa- to the American Bar Justice, Project on Standards DeCoster, supra, at United States v. n. 44 49. In Relating Defense Function Standards (App. appeal “po- we stated that record on See also Draft preparation questions counsel’s about ses more Johnson, investigation According- than it answers.” and Martin, supra n. supplemental ly, the record for a we remanded J., (Bazelon, dissenting). 15 at 945 C. preparation investiga- hearing counsel’s enunciating general rule In addition to this tion, gave appellate to file leave DeCoster, specified сertain duties owed we also trial on a motion a new remand. alia, “[cjounsel client. Inter counsel to context, however, sentencing Within the delay his client without confer with should as often of defense . may unduly procedure be cumbersome. There- necessary respect matters to] as [with fore, cases whenever future the record fully poten- should discuss presents question appeal of counsel’s con- strategies and tactical choices with tial adopted standards formance promptly ad- . client. . [c]ounsel his herein, In the a remand should be ordered. rights actions and take all vise his client of necessary administration, preferred interest course preserve them. . . [coun- entirely to then an the trial cоurt hold is for new appropriate investigations, must sel conduct sentencing hearing. complete A new legal, mat- to determine what both factual ters of defense resentencing, assuring coun- record developed.” be can preparation performance met the sel’s DeCoster, supra n. 43 1203-1204. States v. standards, adopted would course be re- e., is entitled to the reason- 46. I. defendant “[a] instances, however, quired. In where the those attorney ably competent act- assistance an judge believes that overall interest ing diligent Id. as his conscientious advocate.” administration, justice, including judicial would (footnote omitted). at 1202 conducting hearing instead furthered originally probe the defense efforts made Lucas, 47. United States v. with the in connection initial sentenc- counsel ing 251, Johnson, hearing, procedure employed. 1300; Unit- Gadsden v. Supreme recognized the su- 50. The Court has of the federal ed courts, power appeals pervisory Mempa Rhay, 630 88 S.Ct. Wingo, Barker see 19 L.Ed.2d 336 (1972), See, L.Ed.2d 101 as well above, Fay supervisory power. g., v. cited e. 48. Two of the cases own its 1613, States, York, 261, 287, supra, v. 332 v. Lucas and Gadsden United U.S. 67 S.Ct. New 784, 2043, denied, 47, 1627, representation reh. U.S. involved the insufficient 91 L.Ed. 332 n. 27, (1947) (“Over 92 federal at afforded substitute counsel. L.Ed. 367 68 S.Ct. proceedings third, Johnson, may supervisory power exert a In the United States v. we addressed, 45, deciding, greater of without the issue of freedom to reflect our notions we with good policy may constitutionally exert where remained than ineffective assistance counsel courts, improperly proceedings in state ex- silent while the defendant was sen- and these over pressions tenced, explaining mistakenly policy necessarily that be- of are not embod- after he concept process”); v. lieved that his client wished have different in the of due McNabb ied States, 608, 332, 340, represent point. him at that In none of 318 U.S. 63 S.Ct.

1249 part remand, the entire proceeding. follow on course counsel should As American Bar necessary Association implant specificity observed: “It unfortunately too often the case to in that content to the standards adverted give attorney defense job considers his complet- doing, inten- DeCoster. In so it is not our ed once has assisted the defendant necessаrily to indicate that the defend- guilt through phase of the proceedings. unconstitutionally representation ant’s ” 51 In properly . order to fulfill his inadequate under established minimum responsibilities, energies counsel’s and re- believe mar- But we that when standards. sources fully directed as problems implicit are in remanded ginal dispositional phase of proceedings as to our supervisory aim should cases preparation pretrial and courtroom advoca- leaves no room for close performance cy- questions. The suggests record here52 also step the outset We note at the first that counsel should: assuring proper protection for the toward rights to which defendants are entitled (1) Familiarize himself with all reports sentencing is recognition by defense counsel serving as a foundation for sentence suffi be the important well most ciently in advance of the sentencing hear 613, 819, denied, 784, dures, Commentary 5.3(a), p. (App. 87 L.Ed. reh. 319 U.S. 63 to § 241 1322, (1943) (“Judicial 1968). 87 1727 su- L.Ed. Draft pervision jus- of the administration of criminal inadequate For similar comments on the at implies duty tice in the federal courts sentencing by devoted to tention defense attor establishing maintaining stan- civilized expanded neys the need for an view of procedure evidence.”) dards of responsibilities see, g., counsel’s role e. power For cases in this circuit in which such al., Right et Krantz Counsel Criminal exercised, see has been United States v. Thom- Argersinger The Mandate Cases: v. Hamlin as, 101, 146 449 F.2d (1976); Amsterdam, Segal Miller, 186-187 & (1971); States, 1187 Tate Manual thе Defense Criminal Trial Cases 261, 245, App.D.C. (1966). 359 F.2d See 252 (3d 1974); Advisory 460 — 471 Ed. National §§ Wiley, also United States 382, on Criminal Justice Commission Standards and 1212, (1975) (“In 517 F.2d addition Goals, Corrections, Report Commentary on commands, appellate constitutional the federal 5.18, (1973); Frankel, p. 193 § Criminal Sen governed decisionmaking by courts are in their (1972); Kuh, Law tences: Without Order statutory the they directive of 28 § U.S.C. 2106 Meaningful Right For a to Counsel at Sentenc dispose appeals shall the interest (1971); Portman, ing, 57 A.B.A.J. 1096 The justice. permits pro- This and indeed counsels Lawyer’s Sentencing New Defense Process, Role tection sound and substantial interests (1970); Miller, 34 Fed.Prob. 3 The even when do accused not rise to the level Process, Sentencing Role of Counsel in the in 2 protections.”) (footnote of constitutional omit- Techniques (Cipes Defense § 40.05 ed. ted); Floyd, United States v. Steffes, 1969); Fully Achieved,” “Advocacy 337, (1976) (statement Symposium: The Role of Counsel at Sentenc Bazelon, J., why grant C. as he would Legal ing, (1965); Aid Brief Case rehearing banc). en Commission Law Enforcement President’s on power recognizing supervisory For cases Justice, and Administration of Task Force Re sentencing procedures, sentences and over see also, port: Courts 19 States, 363, 366-367, v. United Yates Martin, supra, (Bazelon, 15 at 956 78 S.Ct. L.Ed.2d J., dissenting). C. Wiley, (7th States v. Cir. Holder, 1960). See also United States v. Imposition of these derives from our duties (2d 1969); performance F.2d Russell v. United Cir. of counsel’s reflected in review States, Cir.), (9th 524-525 cert. sentencing transcript They before us. standards, 9 L.Ed.2d purport to be neither minimum Thomas comprehensive nor exhaustive. (5th 946-947 Cf. United Cir. DeCoster, supra, n. 43 Cf. United Hopkins, 531 F.2d 576 where we noted that duties “[t]he U.S.App. (1976); Scott v. United starting point herein are as a meant articulated 419 F.2d 264 develop, a case case for the basis, guidelines lawyers Project for courts and American Bar Association Mini- ‍‌‌‌​​‌​​‌​​‌​‌​‌​​​‌​‌​‌​​‌‌‌​​‌​‌​​‌‌​‌​‌​​​​‌‌‍clearer Justice, meaning of effective mum Standards for Criminal Relating Standards as to assistance.” Sentencing supplied.) (Emphasis to Alternatives and Proce- report the NARA here reading A reports at this assuming access to such

ing, appellant’s have alerted to would counsel attempt verify the informa An to time.53 of, unreceptiveness and related perception then enable therein would contained being to, “too in Danbury program as when in the reports the suрplement to counsel him.” with such knowl tense for Armed challenge them when inaccur complete, and to con edge, would have been able duty recognized by the This is ate.54 exploration proper of alternative Bar its Standards duct Association in American needs, appellant’s more suited to programs Function:55 the Defense products the of his search at present and to the present should to Defense counsel sentencing hearing.58 the in any ground which will assist to reaching proper disposition favorable (2) with his client Counsel should confer or presentence report If the accused. presentence him period, keeping during summary is made available to the defense fully dispositional informed of the altеrna lawyer, verify the infor should seek tives, implications, their and ascertain pre contained in it should be mation ing 8.1(a) of the client’s views. Section challenge supplement if pared American Bar Association Standards necessary.56 specifically requires Function the Defense dis consequences of the various duty extends It is axiomatic “[t]he explained fully all reports upon positions available should be familiarization which lawyer to his client.”59 disposition may be based.57 Counsel’s favoring parts presumptive fencing proceeding A the disclosure to be 53. rule which seem reports presentence attorney inadequate. now effect. The should take also 32(c)(3)(A), (effective Dec. Rule F.R.Crim.P. any proper steps to controvert inaccuracies 1975). Proper preparation requires that coun- report. adequate De- sel time. United States v. Miller, supra, 40.05[1], See also n. § Coster, Although supra, n. n. 43 31. 4252; reports, g., § 57. E. NARA 18 U.S.C. Fed- presentence report before us case reports, Act 18 U.S.C. eral Youth Corrections the court several before sen- filed with tencing, months Delinquency proceedings 5010(e); Juvenile § reports, before, days report and the NARA 5034; reports § on mental U.S.C. ability recognize prepare that counsel’s prior imposition incompetency submitted sufficiently in advance of the hear- sentence, 4244. § 18 U.S.C. depend reports ing may on when these submitted the court. argument, appellate counsel was 58. At oral Tucker, 54. See United States v. identify drug at lеast two such rehabili- able 30 L.Ed.2d 592 Townsend S.Ct. programs in the of Columbia— tation District Burke, 334 U.S. 92 L.Ed. For Genesis. Last Rennaissance Second Bass, (1948); United States v. see Government of the Dis- other alternatives App.D.C. Columbia, Justice trict of Office Analysis, Analysis, DeCoster, adopted Plans Office of Crime in United States v. 55. As Washington Metropol- supra, Offender Services n. Area itan Function, Standards for the Defense 56. ABA 8.1(b). Similarly, supra, the ABA Stan- § n. Likewise, Relating to the ABA Standards Relating Sentencing dards Alternatives and Procedures, supra, Sentencing Alternatives Procedures, supra, 5.3(f)(iii) provides: n. §49 provides: 5.3(f)(ii) §49 attorney satisfy (iii) The should himself attorney explain the conse- should The for the that the factual basis sentence will likely quences of the sentences to the defend- accurate, adequate and and that both himself the defendant and assure ant sentencing proceedings ac- of the will record sentencing pro- nature of understands curately reflect relevant circumstances ceeding. attorney ascertain the and characteristics of defendant offense of his client once such information has views during guilt were not disclosed which conveyed[.] been phase of the case: Miller, 40.07; 40.01[3], 49 §§ pre- See also (A) attorney If the has access Enforcement duty Law report, President’s Commission mini- should at a sentence Justice, supra, 49 at bas- and Administration involve verification the essential mum report amplification at es the sen-

1251 by attorneys consult his client in other formance duty represent- to contexts whо are established;60 knowledgeable ing is well defendants in criminal cases in their of participation the defendant with courts.”64 sentencing certainly is less

to no critical.61 So ordered. circumstances, light ap- of all the In LEVENTHAL, Judge (concurring Circuit pears that counsel sufficiently doubtful con- dissenting part, part): in in with his sulted client otherwise knew enough to raise for consideration alterna- in II join majority I Part opinion, facilities, any, tive services or if to suit remanding for resentencing on counts 2 and appellant’s needs. 3:

[*] ^{[*] [*] [*] [*] [*]} On count I would remand for resen- tencing, and dissent from reversal for a responsi Counsel’s functions and new trial. at easily bilities not defined —it has been said that in “nowhere not believe the difficulty do justice process

the criminal is there more charge war- plain reasonable doubt is error specific confusion as to what role counsel ranting objection reversal absence is qualified has or to in play than sentenc opinion jury at trial. The claims the 62 ing.” clear, however, It is at least confused as to what is meant reasonable prepared present be to message judges Its to doubt. to trial is court all factors and circumstances nec a few parrot abstractions that are well and essary reasonably ensure “a meaningful good appellate opinions really not hearing sentence.”63 ‍‌‌‌​​‌​​‌​​‌​‌​‌​​​‌​‌​‌​​‌‌‌​​‌​‌​​‌‌​‌​‌​​​​‌‌‍This essential Every enlightening jurors. time a judges discharge order for trial gives examples their own judge of what cause act, duty proper maintain per- possi- “to standards of men to hesitate to it is reasonable recognized generally Relating Sentencing It is that the decisions and the ABA Standards plead guilty, forego Procedures, waive a trial and supra, Alternatives n. 49 require appeal participation al., accused. 5.3(f)(i), 5.3(f)(v). See Krantz also et §§ Comment, Require Criminal Waiver: The 186; Amsterdam, Segal supra, n. 49 Mil- & Participation, Competence ments of Personal 463; ler, supra, Advisory n. 49 National Com- § Legitimate Interest, 54 State Calif.L.Rev. Justice Standards and mission Goals, 1262, and cases and cited statutes therein Miller, supra, 5.18(3)(b); supra, 49 § (1966). require participation 1268 We also 40.06[2]; President’s Commission on § n. 49 of the defendant where counsel seeks to waive Enforcement and Administration of Jus- Law except insanity, all trial on issues tice, supra, at 19-20. n. 49 Brown, 138 428 F.2d 1100 recognize the difficulties that (1970); right present where at trial is endeavoring defense counsel confronted forfeited, States, U.S.App. Cross v. United 117 client, expressed wishes reconcile (1963); 325 F.2d 629 where counsel unworkable, with sound rehabilitative however stipulates prior felony that his client had a difficulty practices. also We are mindful conviction, the effect of which would be to making a record the details and nuances imprisonment, increase the maximum Jackson attorney-client of must, however, discussions. record States, enough more contain to afford right and where a waiver of meaningful presentence collabora- assurance testify stake, is at Poe v. United than is here. evident aff’d, F.Supp. (D.D.C.), (1965). 352 F.2d 639 See also United Miller, supra, n. 49 § 40.01 See also [1]. Moore, U.S.App.D.C. 113, States Kadish, Expert “The Advocate and the —Coun- (1976). Cf. Haziel v. United Process,” Peno-Correctional Minn. sel v. Mar- L.Rev. (Bazelon, tin, n. 15 at 956 C. J. dissent- ing). properly discharge In order for counsel to duty keep fully informed, his must, his client Dinapoli, 63. United course, first educate himself as to the (6th Cir. duty alternative sentences. Counsel’s to ex- plore sentencing dispositions alternative is em- Richardson, phasized in both the ABA Standards 64. McMann v. Function, supra, 8.1(a), 8.1(b) Defense n. 44 L.Ed.2d §§ a of doubt convict if there was kind that coun certainly appellate ble for someone — hesitate to act a cause them to specific instance does would that sel —to show they considered..important. im of matter define the аdequately not universe be readier I would transactions. portant Judge Pell’s adopted majority if the join thing to do the best

suggestion that government has the

merely to- state rea guilt beyond a proving of burden

the adding doubt, another without

sonable Lawson, 507 F.2d

word. United denied, 1974), (7th cert. Cir. L.Ed.2d S.Ct. of STATES America UNITED objectiona not as charge us is before case, Scurry in the as that where ble et al. John MITCHELL enough for judge instructed it was trial willing if would be conviction Appeal of NATIONAL BROADCASTING important af such evidence in INC., act COMPANY, al. et plain life. Yet that was held not fairs STATES America UNITED warranting reversal the absence error objection. Scurry v. United trial cert. John et al. MITCHELL 389 U.S.- S.Ct. ¡if anything Here L.Ed.2d Appeal of WARNER COMMUNICA- judge even more favorable to was trial TIONS, INC. requires, a mat than the law as defendant Nos. 75-1409 and 75-1410. logic syntax. For his instruction ter Appeals, Court of impression communicated overall of Columbia Circuit. District was rеasonable doubt if there was there prompt enough doubt about a matter Argued Feb. discussion, law whereas the hesitation 26, 1976. Decided Oct. wor situation is well is that even where discussion, Rehearing Denied Dec. thy pause there guilt beyond a reasonable conclusion Granted March Certiorari doubt, jurors such if after discussion not to act. would hesitate charge impact is the What counts plain not do think it

taken as whole. resonated the courtroom ‍‌‌‌​​‌​​‌​​‌​‌​‌​​​‌​‌​‌​​‌‌‌​​‌​‌​​‌‌​‌​‌​​​​‌‌‍charge permitting a conviction even

overall

though act jurors would have hesitated to important If affairs life. defense presented objection, trial had an

counsel mat- promptly have' clarified

judge would possible any ambiguity. If

ters avoid majority

problems —had —discerned perceived by defense been judge they could have been avoided. unlikely to me that

It seems steered message explicit from the jury away judge impressing the trial defendant, and not

jury to fair

Case Details

Case Name: United States v. Robert L. Pinkney

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

Date Published: Aug 10, 1976

Citation: 551 F.2d 1241

Docket Number: 75-2223

Court Abbreviation: D.C. Cir.