United States v. Simeon Jessamy Coke

America, Appellee, UNITED STATES COKE, Jessamy Appellant.

Simeon 529, Docket 32241. No. Appeals United States Circuit. Second Argued June banc, considered in to be Ordered 17, 1968. Oct. 27, 1968. Decided Nov. Moore, Judge, dissented. Circuit Nashville, Kamenshine, Robert D. Legal (Anthony Marra, F.

Tenn. Aid Society, City), appellant. New York Sofaer, Atty., Abraham D. Asst. U. S. (Robert Morgenthau, Atty. M. U. S. York, for the District of New Southern Leval, Sprizzo John E. N. Pierre ap- Attys., counsel), Asst. U. S. pellee. LUMBARD, Judge, Before Chief

WATERMAN, MOORE, FRIENDLY, SMITH, KAUFMAN, HAYS, ANDER- FEINBERG, Judges. Circuit SON

Judge: FRIENDLY, Circuit Jessamy Coke indicted

Simeon Dis- the District for the Southern April trict of York in 1963 for New three sales of narcotics in violation of 173-174. trial before U.S.C. A §§ Judge May jury MacMahon and a disagreement. 1963 resulted in a On a Judge before late jury Dawson and a in June Coke On was convicted on all three counts. awaiting pre- day, same without Judge report, sen- Dawson him tenced concurrent six terms years. We reversed the be- conviction cause of comments which reflecting could have taken as been Coke, the defendant. United States following acquittal, (2) (2 1964). offense A third the same 339 F.2d 183 jury reprosecution fol- Cooper for the same offense trial before and a (3) conviction, multiple again lowing January in con resulted punishment offense.” for the same on all counts. viction three With “rule,” investiga pre-sentence speedily the second benefit of a full can dismiss long report, held in coun- tion since it has his view try Jeopardy year Clause showed the six sentence to have Double following lenient, Judge Cooper been too not forbid a retrial does year setting conviction. United five sentences Counts 1 and aside Ball, consecutively, to be served and a five year (1896); United Count 3 to L.Ed. 300 be served concurrently, Tateo, 463, 84 credit for 377 S.Ct. time al States v. U.S. 1587, ready (1964). appealed It is un- served. 12 L.Ed.2d 448 Coke his con necessary principle complaint predicate viction but no to made as to the affirmed, or on sentence. either the fiction a “waiver” United satisfactory Coke, (2 nearly v. the States 364 F.2d more basis 484 Cir. 1966), denied, Mayers 918, “continuing jeopardy,” cert. 386 U.S. see 87 877, Yarbrough, (1967). S.Ct. Bis Trials 17 L.Ed.2d 789 Vexari: New 1967, Prosecutions, petition March he filed Harv.L.Rev. under 28 Successive 74 1, challenging (1960); freedom U.S.C. 5-8 it suffices that the increased § Judge Cooper disproportionate sentence. for ap reward denied would be the plication, Fisher, Jeop- appeal trial error. Double and this followed. It See Summarized, initially by ardy: panel consisting was heard Boners Six Common Judges 81, (1967). Friendly Circuit Moore 83-84 U.C.L.A.L.Rev. Judge Bryan, and District who had “multiple The fountainhead the joined opinion substantially in an Lange, punishment” parte rule is Ex written; here subsequently, by vote of (1873). (18 Wall.) 163, 21 L.Ed. 872 judges, all active it was determined that imprisonment permitting Under a statute upon be considered in banc year of not more or a fine not than already the briefs filed. then the Since Lange $200, more had been sen- than Supreme granted Court has certiorari He of both. tenced to the maximum presenting two cases the constitutional began serving paid his sen- the fine and issue here considered. North Carolina tence, immediately out a writ sued but Pearce, 922, v. 258, 393 U.S. 89 S.Ct. corpus. The sentenced of habeas (Oct. 29, 1968); L.Ed.2d Simpson year’s imprisonment and dis- him to a Rice, 932, v. 292, 393 U.S. 89 S.Ct. apparently to fine missed the writ —the (Nov. 12, L.Ed.2d 1968). repaid. this was second writ On a Jeopardy held to violate the Double I. reasoning Miller’s Clause. Mr. Justice prose- straightforward. A was second Coke first in attacks prohibited cution for the same offense is creased under the Double simply against protect to not order Jeopardy Clause of the Fifth Amend against annoyance trial but ment. This person instructs that no government punishment. second subject shall “be offense same it achieves stands when no better put be twice jeopardy of life or punishment a second without second limb,” protection long expanded since opinion However, was at trial. to include other criminal sanctions. As recognize pains is a class that “there well said Sobeloff in Patton v. is had trial a second cases Carolina, North 381 F.2d 643-644 principle. As violating without (4 1967), denied, cert. agree no jury ver- fail when (1968), 19 L.Ed.2d 871 rendered, or verdict Clause dict has separate embraces three accused, rules “prohibiting (1) or on reprosecution on motion of set aside despite that, by him, United claim prosecuted or voted writ of error wording Ball, supra, of- the literal no to describe found indictment was Jeopardy (18 of any Clause forbade Double the law.” 85 U.S. fense known case, capital 173-174, retrial of a brief While Wall.) 21 L.Ed. 872. argued be, said, the former verdict was also nothing had was charge species “acquittal whether warranting punishment,” p. first, capital 89.2 might that on the exceed Although put argument bridge Murphy crossed that precise it acquit, terms of Massachusetts, 177 U.S. autrefois including (1900),1 Jus- incredible that a Court 44 L.Ed. 711 prisoner tices Holmes Brandéis would not that when a where successfully said contention’s have been not have aware should claimed jeopardy implications. ef- double act not in under an been sentenced acquittal” opinion “implied overruled the his crime under fect but at the date sufficiently: briefly statutes, but “The the second sentence antecedent mitigate jury may longer fact that period thus “might out to be for a turn imprisonment punishment did life imprisonment.” less than render the conviction one sharply more even That issue was 18, degree for first 251 U.S. at murder.” States, presented United in Stroud v. 40 S.Ct. at 51. 50, 15, 64 L.Ed. 103 251 U.S. (1919), attack after successful where nothing in We find Green v. finding guilty upon of Stroud verdict 184, United 78 S.Ct. capital degree murder “without first 221, (1957), 2 L.Ed.2d 199 indicate punishment,” in a new trial resulted has the views as Court altered containing that recommenda- verdict not jeopardy to double in Stroud. followed imposed. of death was tion and sentence holding there that when was a de not A held this was unanimous Court felony fendant for was tried murder and Jeopardy Double forbidden degree was convicted mur for second parte Lange, Ex 251 of Clause. Citation der, prevent jeopardy the double clause 50, 18, sufficiently in- 40 U.S. S.Ct. at felony ed retrial murder after for re rejection any idea of dicates the Court’s degree versal the second murder “multiple punishment” rule conviction because of lack evidence of higher on new trial forbade intent to the kill. In answer Gov ap- of the obtained as a result peal. accused’s argument up ernment’s had Stroud higher retrial, punishment held a on a opinion Mr. a re- Justice Black characterized that also reflects Stroud distinguishable” jection argument “clearly case against as of the in- since punishment “a for for the same of- defendant retried creased was degree successfully he constructed on the murder after had fense that has been remaining jeopardy, appellate asked an element of double court set aside a prior namely, prohibiting reprosecution conviction for that same offense.” following acquittal. 355 for U.S. at 194-195 n. the same offense S.Ct. at 227.3 case was different While much Stroud’s brief was de- Green’s since Ripley represented question guilty Murphy been 1. Ezra retried was the guilty.” Thayer, Law not later Dean the Harvard Brandeis, School, Louis D. and Edward opin- 3. Coke’s contention that the Green F. McClennen. punish- ion’s failure to mention the p. passage ment retrial “verifies 93: “But even Stroud’s See also the yet aside, interpretation Fourth verdict been of Stroud had the former set Circuit’s affirmatively dealing multiple pun- acquitted as a ishment,” case not as it variety scarcely of the offense reconcilable with the heinous descrip- pointed capital punishment have been Mr. could Justice Frankfurter’s which “rejecting issue which could have tion of Stroud as conten- retrying him for sufficient out of Green. Government was take case jury Carolina, supra, In North which the Patton an offense of naturally properly convicted, result of court a fiction the which described as complained. Green notion that a sentence for a term less had not While implied “ac- facts the maximum is an have been more difficult on its than assumed, term, liability greater quittal” of than the Mayers Indeed, Yarbrough, supra, 74 F.2d at 645. the Stroud see case, 22-27, prosecu- punishment the lesser Harv.L.Rev. successive where previous not re- from tion the same offense where trial had resulted action sulting jury, com- from the would have a better one defendant’s own been theory where, plaint indubitably evils in Hender- one for that than as against Jeopardy here, Double son or the lower sentence was protect. a verdict Clause aimed handiwork But, punishment. on the issue of silent respect Despite our enormous indicated, already follow cannot we opinion People Hend author of distinguished Patton author what erson, Cal.Rptr. 60 Cal.2d characterized an alternate (1963), we can P.2d thus aspect based “a somewhat different agree Traynor with Justice jeopardy prohibition double —the Green “vitiated” rationale Stroud. against punishment,” multiple face Indiana, Moreover, Cichos v. Lange, parte of Ex of Stroud’s citation (1966), L.Ed.2d 175 supra, unimpeached authority of and the supports the view that Stroud survives Murphy v. Massachusetts. Cichos, Green. defendant had charging tried affidavit two-count if we not bound Even were manslaughter involuntary him with are, Supreme these Court decisions homicide, jury reckless returned No same. our conclusion would be the reciting only guilty a verdict that was jeopardy is policy of the double clause Following appeal of reckless homicide. when, consequence a as a of offended reversal, again tried defendant was resulting from retrial of offense the same counts, jury on both re second the by proceedings to cor taken accused the turned the first. same verdict the error, higher punishment is a rect Supreme After the af of Court Indiana being imposed. denied neither the He is conviction, firmed this certiorari was being acquittal, “vex of a former benefit granted in whether rule determine the by prosecution for the same a second ed” applied Green should be to reverse this given punish offense, being nor a second ground state conviction on the the that against proceeding his ment in a initiated reproseeution involuntary on man will. slaughter placed count defendant briefing jeopardy. double After full II. argument of oral improvidently The idea some other constitution- that dismissed the writ granted principle ground a al forbids heavier sentence that in Indiana not, statutorily retrial, charged jeopardy if even double does offenses “are origin. King exceedingly of recent In is treated as one with differ more offense 10, States, App.D.C. penalties viewing 69 F.2d reck v. United 98 ent than rather (1938) (Edgerton, J.), 291 con- less homicide as an included offense rights Thus, spicuous involuntary manslaughter.” al devotion civil though Stroud, pun- kind sustained an increase in of the Court not mention did jury authority Murphy and it did ishment hold that the fact Hayes States, opted punishment Stroud. v. 102 for a rather lower United degree U.S.App.D.C. 1, (1957), was 249 516 than for a lower offense jeopardy.” pun- imposition greater 213, 355 U.S. 78 tion that S.Ct. (dissenting opinion). placed twice at 237 ishment had 842 denied, 672, 914, (1967). conduct, 356 cert. U.S. 78 S.Ct. by Such said (1958), Fahy, Starrier, 2 L.Ed.2d 586 writ supra, Third Circuit would ing Judges “unworthy Bazelon and judge.” also Wash be of the name of ington, thought that, if it “clear the sen 378 F.2d at 811. Denial of credit already suc “good-time” invalid and defendant tence were time served or allow- validly it, cessfully strong attacked he could be ances would be a indication though perversity.5 in resentence resentenced such It hard to is think punishment.” any proper action; brief for creased the basis for such as said Wainwright, petitioner by Judge Edgerton in Gideon v. King v. United 792, 335, L.Ed.2d argu- supra, 293, 98 F.2d at (1963), For written Mr. Justice ment time served under tas, bar, sought fears to still disregarded while at the sentence must be because gaol delivery by noting a de void is “in vein may Mikado,” who obtains a reversal fendant no such cases possible bearing and “it even retried is real on the issue here. Lewis Cf. originally Commonwealth, 445, more than that severe sentence 447- 329 Mass. 922, 923, at the conclusion levied 108 N.E.2d A.L.R.2d recently (1952). suggestion trial.” Still more But is no there anything Third a claim happened Circuit denied such sort Russell, case, ex United States rel. Starner cannot of its conceive denied, happening any judges 378 F.2d cert. 389 U.S. of the district (1967). The point 19 L.Ed.2d 189 S.Ct. in this circuit. Such as there panel argument improper court that decided United to the motivation Ellenbogen, demonstrating States v. 365 F.2d difficulty is that (1966), denied, 923, 87 cert. this in the rare case where it exists re- (1967), quires prophylactic 17 L.Ed.2d 795 did outlawing in- rule point, discuss see 390 F.2d any creased sentences in case —a consid- (1968) having n. 13 eration which we will later return. — the jeopardy been cast terms double pause types also note some rather than of some other constitutional why judge may of reasons conclude that principle enunciat or of a standard required reviewing respect ed court with retrial. One is that First noted federal sentences. in Circuit Marano v. United 374 say pause point (1967), namely, We at F.2d 583 de where the any if case engaged that there were evidence in fendant ac has anti-social judge pun increased

that had exacted tivities after situa his first sentence —a hav frequently ishment because the defendant’s tion encountered in narcotics of ing prosecuted appeal or prosecutions a successful but not in others. unknown remedy, post-conviction no one other Another where trial reveals new of could doubt there had been a denial dastardly the crime or to have been more examples process of law. due See larg played the defendant to have a much Relating Ass’n, American Bar Standards supposed. This er role than 95-96 Post-Conviction Remedies may variety occur for a of reasons. One any 4. of be- P. We this not out 44. cite creased Sentence and Denial Credit on of judge fairly can held to lief that a be Retrial Sustained under Traditional an advocate made as statements earlier Theory, 395, Waiver 1965 Duke L.J. 399 the statement the Fortas but because Simpson Rice, n. 25. v. 396 F.2d 499 correctly notions cur- brief reflected so (5 1968), Supreme now before the rently bench and bar. entertained Court, the state court on had resentence Carolina, denied credit time served under v. The court in Patton North original sentence, may supra, what sentences have been influenced regarded pattern aggregating years that effect. as a 25 instead of 10. 8, Note, In- F.2d at 639 n. See 381 liberty,” Connecticut, Palko v. on a the first conviction was is where 325, 319, 149, guilty, ex rel 58 S.Ct. 82 L.Ed. plea United as in 808, developed (1937), Alstyne Russell, supra, Professor Van v. Starner argument un- may an based on doctrine of judge a bare and the have argument constitutional conditions. The Another instance outline of the offense.6 proposition starts from that “[E]n- defendant takes the where the would be may joyment governmental produces benefits trial and stand the second contrary upon guilt impression that conditioned waiver or be an as to rights, pre- relinquishment of constitutional A where intended. third is evidence compelling viously prosecution least to the absence unavailable being justify sub- instead societal interests which that the defendant shows mastermind; rights cog the cir- ordination such under a minor was the cumstances,” might allow at 614. well disinclined to Yale L.J. consequent escape sen- do find course such a entirely times, argument plain. given fit- to others At lower than that tence ting quoted, simply proposition have Instances who were his tools. that, enjoyment article contends such these suffice demonstrate repose” ipse dixits, despite contrary benefit of cannot state “sentence upon imposi- important constitu- waiver of the an conditioned interest appears just right which is to a “fair trial” tion of tional appeal light an or other information. assumed to include of the latest and best remedy. post-conviction At other times origin alleged constitu- new argument put in seems to be reverse: right quite def- assigned, can be tional right to a Assertion of constitutional initely, 1965, Professor March when post- through appeal fair or other Alstyne published a William W. Van remedy conviction cannot conditioned article, In learned and Gideon’s effective express implied— “upon the waiver — Wake: Harsher Penalties “Suc- against protection harsher sentenc- Appellant, L.J. cessful” 74 Yale Criminal ing entitled if one would be to which “right” rapidly; its 606. The matured right.” upon he did not insist counsel, acting assigned progenitor, Yale L.J. at 615. recognition by secured the Fourth its Carolina, in Patton North su- Circuit problem form One with either pra, only years two birth. See its repeated state Holmes, also 161 N.W.2d 650 State is no the Justices ments (Sup.Ct.Minn.1968). even constitutional Douglas sensing v. Califor Apparently criminal cases. See the weakness of nia, 83 S.Ct. claim retrial U.S. heavier sentence on (1963) (dissenting opinion); violating simply L.Ed.2d 811 was unconstitutional Illinois, “principle justice Griffin v. so rooted (concurring opinions), people our traditions and conscience Snyder opinion) (dissenting fundamental,” 100 L.Ed. 891 as to be ranked as Massachusetts, (1956); Durston, U.S. v. McKane v. 684, 687-688, (1934), 38 L.Ed. Ct. 78 L.Ed. 674 or run S. respect concept (1894).7 ning the case stands ordered In this counter to “the of by imposed People imprisonment previously in life situation 6. This also guilty plea. Henderson, supra, a a Cal.2d 35 Cal. revolting Rptr. 77, 386 P.2d 677. Alstyne suggests exceptionally “it brutal sex 7. Professor Van details of an nauseating arguable, however, process murder, is due of sexual as well as adequate requires opportunity attack, kill, law an earlier made with a threat hearing impartial woman, by af for at one least of another the defendant on being prison why jury ample explanation in de claim that one is held in ford rights, against penalty violation of his constitutional on the death cided differently light justified v. Jack ever from United States sentence is all son, appearing. 20 L.Ed. the facts then (1968), held where the 2d 138 re Rather similar considerations Federal so much of unconstitutional quire rejection “equal protection” of the 1201(a), Act, Kidnapping 18 U.S.C. § argument developed “epilogue” to in an availing subjected person himself Alstyne article, the Van at 74 Yale L.J. right jury to a Amendment his Sixth 636-39, adopted Patton, and m penalty not of a death risk at 641-643. it in This asserts is an guilty pleaded or who borne those vidious discrimination for the state Quite apart by jury. from waived trial who sentences increase those taking however, this, account successfully appeal or resorted to an govern possible variation —that third post-conviction remedy other when there “benefit” of condition ment cannot good equally reasons for increas remedy appeal post-conviction an or other not; ing the sentences of who have those right” “constitutional on waiver of the is it said that class “The vulnerable repose fal fundamental of sentence —the appears quite equivalent to be to a class argument lacy mistakes is that righthandedness, race, in described It latter. is misuse nature of the digence, equally or factor ir some other “right” language speak of a of the any proper relevant determination imposed at the the sentence might appropriately those who sentences Rather, dis trial. as shown reviewed,” 642, quoting 381 F.2d at Lange, opinion parte in Ex cussion of counsel. Massachusetts, Pro Murphy only glanc Alstyne fessor Van treats language quite seems ex mention, ingly Patton does not even aggerated analogy false. the asserted Stroud, is rather and the decision trial, To the extent that a at new having immunity a sentence from an appellant, the instance of the successful state. instance increased light adequacy has shed new perceive “unconstitutional thus no previous sentence, his is a suffi saying if condition” the state’s allowing cient basis a classification pro nothing defendant sets but the does appropriate sentence to be ceedings voiding conviction upon requiring him without the state himself, subjects motion, pe undertake the enormous burden subsequent reviewing of reversal riodically event all sentences offense, prisoners. argu- important, what- for the More conviction same ap- hearing supplied by so, another sort. If tlie limitation would whether remedy post-conviction practical importance. peal, not be of Almost some other state, habeas cor- all claims of error in criminal within the trials federal placed mould; pus.” 613-14 n. 25. 74 Yale L.J. now in a constitutional containing limited whether the criminal It is not clear con- rarity. Thus, al- tribunal where the initial stitutional claim is to cases while prejudiced leged Alstyne or includes to have been Professor Van cites erroneous disposi- more; hearsay something of our view admission of evidence as an ex- unnecessary ample ruling we find it tion case erroneous under state hand, point. law, to decide the On the other such claims are now cast as viola- of “fair trial” is a trial con- if the notion tions of the Amendment Sixth law, existing Conversely rules of sistent with all confrontation. the claim sus- Alstyne’s appeal, how Van do not see Professor tained on Coke’s first “that judge can of suc- thesis be restricted cases comments of the trial were of such that, of a constitutional claim. cessful assertion a nature in the context in which very they made, they improp- Yale at At the See 74 L.J. 615-16. were must have least, suppose, erly prejudiced would it would have one the defense the minds any jurors,” where a substantial to include case would been treated have asserted, days even claim was trial constitutional former as error rather than

though process. reversal on a claim of was as a denial due jeopardy III. ignores that where double ment may be protection this is effect —and Our belief that the Constitu rel. everywhere, ex cf. United pro tion does not a mandate universal (2 Wilkins, Hetenyi Cir. F.2d 844 hibition of re sentences after a 1965), sen- cannot increase the the state for obtained at trial same offense challenge prisoners who do not tences that defendant’s does not mean instance It them, become final. have these subject completely at should be left equal protection for is a denial large. appellate A court federal has — n policy proper effectuate a the state to but, duty view, our just imposing sen- a what seems here lay standards on this matter down light those facts —on tence in of all the application in federal trials. While sen simply can, constitutionally on whom it tencing normally is within the discretion it on are others whom there because judge, subject is raises constitutionally Nav. Matson cannot. See general principle such a sues that Equalization, 297 Co. v. Board of State established, practice uniform should be 80 L.Ed. Wiley, compare United States v. (1936). argued at Indeed could be (7 1960); Thomas v. United Cir. prohibit- persuasively a least that rule States, (5 1966), 368 F.2d ing penalty imposition most severe prospect of an increased sentence Kaye Hender- on a like Ronald murderer sufficiently threatening retrial is son, 6, in con- absence of a fn. see rights assertion of defendants’ barrier, capital punish- stitutional while strictly possibil practice should limit killers brutal ment was less ity truly of such call a sentence to cases lighter set sentence who had not had a ing for it. instance, aside would violate at their was This the course followed equal protection as to the latter. Wheth- by the Circuit in Marano v. United First equal protection er the would supra, 374 F.2d a decision have in a no force case where reason cited, that has think with du been we assigned, we the increased was correctness, bious both in United States need not decide. here Russell, supra, 378 ex rel. Starner v. What remains for consideration 810-811, F.2d at and Patton v. North lay aspect Carolina, is supra, the constitutional case 381 F.2d at ing constitutional noted, down argument, previously doctrine. Aldrich's accord with Chief inflicting punish since increased view that after a retrial the defend penalty ment attack successful instance, may permissibly ant’s the court process would of due but denial sentence, may just reduce increase as it nothing only rarely established, could one, light of his since sentence conduct prohibition A but universal will do. initially passed. af was conduct Such constitutional should some doctrine fords evidence that the first sentence stronger underpinning than fear purpose of not sufficient to serve its judges unworthy will trust. their deterrence, if is answer and it no require We would of abuse more evidence subsequent conduct ais crime proffered than has would before enough proof it, to establish some that, very federal, may government, prosec decide with the interest real state state sometimes have ourselves in dis ute.8 Where we find sentence, prophy agreement increased so drastic a its Circuit with the First required. ruling testimony laxis is out new any We assume in the event of convic- in the into account increase first, crime, impos- tion of the second for the ing sentence the crime take would 846 justifying prior the initial than the as a factor more severe to sentence did entirely punishment. could have While it true first. The Government is danger government that asked Dawson to defer Coke’s that “the the damaging may obtaining pend- in sentence after the first conviction succeed more report just ing preparation pre-sentence as as on a retrial evidence real danger, judge developed example, this could the addi- have significance reconsider, facts, may questionable on his own wish to un- tional any view, Judge Cooper

favorably defendant, to to the factors led original disposition,” In situa- increase sentence.11 these which led to his 585, why important appeals tions the interest 374 F.2d at do not see we outweighs danger against former one which the be deterred Govern- slight protection. ment’s an in- to He rather interest in is entitled participation creased sentence because of facts that knows full well what his brought was; government’s in- were or have before crime if could been trial, judge. ability first These considerations to establish this at higher apply own when the sen- often as a result of the defendant’s fortiori lighter phi- actions, simply reflects a different resulted tence has judge. losophy part require, on the of the second than true facts would question way improper Hence if had raised as to in no that he should Coke seems his sentence on the from his in deter- take into account conviction, mining appeal.9 second we would have been whether to A defendant disposed inadequate rec- to sustain him. has no vested ord, inadequacy least when results beyond prosecution’s from factors IV. why perceive no reason control. We However, not, he did and we * * * repose must be as “there question confronted with the whether 585, crime,” severity of the- 374 F.2d such relief is now available. United shattered is the defendant who when it Sobell, 314, F.2d 320-323 v. 314 States agree repose; with the as to we denied, 857, (2 Cir.), 83 cert. 374 U.S. contrary view of the Third Circuit (1963), 10 L.Ed.2d 1077 S.Ct. Russell,

United States ex rel. Starner v. attempted parse 28 U.S.C. § supra, that in We hold 378 at 811. filed, application was under which Coke’s such circumstances without much result from that endeavor lawfully imposed, provided beyond that, held in Hill a conclusion judge specifies on the rec- the reasons v. United 368 U.S. ord.10 (1962), L.Ed.2d statute regard despite much more letter not authorize re it as its does sentence is has some doubtful whether a heavier lief whenever there vio here, because, justified simply lation of “laws United States.” pains Citing in in “the statement in Hill went more legislation vestigating general simply pro- behavior was intended defendant’s differing Perhaps, concedes, Remedies, p. also the 9. 96. See the Government White, exception F. should be an when the views United denied, punishment (7 1967), cert. decreed at the sec 2d increased penalty “gris L.Ed.2d 846 S.Ct. ond trial is the death —the Noia, ly Fay (1968). choice” referred 391, 440, L.Ed. contend that 11. The does not Government (1963). 2d 837 participation evidence of Coke’s any go third trial was dif- We thus would not far as the the crime at the so second, or that than at of the American Bar Associa- ferent report Advisory Sentencing pre-sentence showed continued tion’s Committee Sobeloff, activity. Review, by Judge seems In fact Coke chaired anti-social jail although minority, from the date of farther than the see have been Relating Standards Post-Conviction first sentence.

847 remedy sentencing accomplish court a a ministerial act will in the vide correction, sustaining that which needed than exactly with where commensurate point require habeas would a new trial. But previously been available had present where corpus district Coke’s case does not an isolated in court of the confined,” problem, in prisoner 368 U.S. individual United was as States Lewis, 471, (4 1968), 427, examined v. 392 F.2d 440 82 S.Ct. notably cases, corpus cited, application and cases there rule habeas 174, Large, prescribe proceed- 67 S.Ct. rule we here in a v. 332 U.S. Sunal (1947), ing 1588, corpus13 and con- in the 1982 nature of habeas 91 L.Ed. scope danger, maximum would create a real cluded that as Gov- prisoner argues, “Any relief to a ernment to allow 2255 was § significant (1) appeal denial who has “if failed to he has shown conviction though right, conceivably application even could file constitutional point appeal relief under he could raised 2255' Section based on allegation reason there no sufficient that he to was failed exercise his * * *; or(2)a appeal doing defect not so because feared the im- trial, though affecting position seriously even sentence on retrial” magnitude, prohibit. if it not which our rule of constitutional would Al- appeal though, was not correctible as indicated in United v. Jackson, ‘exceptional supra, 25, circumstances’ excus- were 390 U.S. at 583 n. 88 1209, ing appeal.” 314 F.2d at S.Ct. such an failure assertion not would accepted proved, that Coke’s have to 322-323. We have concluded but must be (1). within As case does come burden on the'courts —and the dif- (2), ficulty challenge eor- the error would have of successful to such appeal, v. see United States claim—would rectible be substantial. 500; Wiley, supra, F.2d Thomas v. 278 different, The situation is 941, States, supra, F.2d United however, regard proceeding if we “exceptional think there we do not were correction of sentence one F.R. under excusing circumstances” the failure Although application Cr.P. 35. Coke’s appeal argued point raise the on the 2255, was labelled under 28 U.S.C. § op- just much June 1966. Coke had Judge Cooper, liberality proper with argue portunity point court dealing pro motions, se treated as Maraño did in the First Circuit some alternatively it as a motion under Rule nine months Professor Van later.12 States, 35. Cf. Heflin v. United Alstyne’s article, powerful most 415, 418, 422, 451, U.S. 79 S.Ct. 3 L.Ed. subject, appeared on the (1959); year 2d 407 over a before. His counsel on this Hill v. United supra, 430, contends that even under 2255 a U.S. at 82 S.Ct. 468 § (1962). provides perti more should be taken lenient view when Rule part: nent where court issue relates “The correct an (1964), been deterred 11 L.Ed.2d 12. could not have Coke hence a suc Ellenbogen, supra, appellant corpus v. cessful habeas United States can 982, 989, profit pro since that case not be allowed to from a new September spective 1966. until rule. This is decided well illustrated rulings trilogy, the identification appeal, While, gave in cases decided on where the Court the benefit of its possible prospective Supreme it new has felt rule to Wade and Gil bert, give particular appellant ap the benefit whose cases were before it on procedure peal, Wade, de- new rules of criminal United States v. 388 U.S. prospective applica- 218, signed generally 1149; 87 S.Ct. 18 L.Ed.2d Gil tions, apparently California, that when bert considers 388 U.S. 87 S.Ct. (1967), a new doctrine on col- L.Ed it has laid down .2d 1178 but not ap- attack, Stovall, uniform retroactive lateral whose case was habeas see, e.g., Doughty plication demanded, corpus, Denno, Stovall v. Maxwell, (1967). L.Ed.2d 1199 * * Judge any LUMBARD, (concur- illegal time at sentence Chief ring) portion that The “narrow function” of : permit correction at of the Rule “is to purpose The new an- of rules illegal sentence, any not of time guard today nounced the court is to occurring the trial reexamine errors against possibility that the second prior im proceedings to the or other judge, imposing a more severe sen- position Hill v. United of sentence.” might tence, degree doing to some be States, at 472. having penalize so to the defendant so, sentence would increased Even Coke’s right and, any appeal, exercised his lay “illegal” here under the rule we be event, guard against appearance down, violate in the sense that would might penalty of such a as it deter others power to our enunciated under standard exercising appeal. from their supervise of federal the administration agreement I am in full need justice. prevent for a which will the im- rule that nevertheless We assume position any more of severe ap solely rule could we frame retrial there is an affirma- after unless plication There future sentences. showing tive the sentence reflects doing appropriateness occurring be would some conduct sub- purpose principal is to avoid sequent so since a sentencing to the facts ap appeals past the deterrence of to the first were unknown sen- manifestly pellants not deterred. tencing judge were because of some action Against seeming unfairness chargeable this is to the defendant. This leaves denying victory to him of the fruits of the second trial with some discre- and the the heat of the battle who bore tion. To this extent I would advocate larger different treatment unfairness of proposals the modification of the dissimilarity persons Advisory whose Committee Sentence correc Association, the date of their sentence when Review of Bar the American easily afforded. do Delegates, tion can be so adopted the House of applying the August, think burden of 1968. fn. See new standard to all federal defendants opinion. con were who after successful agree Judge IWhile with what Moore longer given a sentence would victed and says dissenting opinion in his about year In the ended substantial.14 desirability adopting complete more 30, 1967, only 12 crim June we reversed period standards after suitable Cong.2d Sess., convictions, inal see 90th study, delay I see need to The no here. I, figure Sen.Rep. p. we Table American Bar Association Standards suppose much would to have been promulgated approved. have been prior years. number exceeded The today’s By merely give decision ef- cases which a fect to a modification suitable such imposed conviction on retrial along standards the lines which

may require reexamination must thus be Moore himself seems favor. exceedingly small. holding I also concur with the appreciation expresses its given ap- the rule should retroactive Kamenshine, Esq., Robert D. plication, since this can done without Law, University Vanderbilt School disruption serious in the administration presentation a learned and effective justice. Cf. Mirra v. United Coke’s behalf. Cir., 1968. 2d November course, any judgment disposition direc- Of is reversed with before subsequent under Rule 35 seek- tions to reduce Coke’s sentence to motions ing today’s imposed prior application of after his conviction. a retroactive prior date of the record at sentences to the cation of reasons on As to specifi- inapplicable. requirement opinion, our time of sentence should be sentencing judge married, obligation had “an as to a three- the second decision year-old given opportunity make child.” should be more of his reasons record Judge Dawson, believing “The not do so at did if he severe sentence very narcotic in New York is a traffic This, I sentence. time situation,” stamped bad which “must be import 14 of it, the footnote take is out,” “Congress years and which a few * * * opinion. majority the ago decided was so serious that they away judges the Ameri- that took noted it from the [sic] It also should power give Association, by suspend its or action sentence can Bar 1968,1 February, Delegates sentences,” reduced sentenced Coke House Appel- years jail. proposed six approved standards would which Review Sentences late Judge Cooper The Trial before power to in- give appellate courts Judge The Dawson conviction before adop- crease or decrease sentences. solely appellate because of was reversed Congress by tion of such a measure disparaging belief remarks ap- naturally empower court of would prejudicial conduct of upon im- pass sentence peals to a second deprived had of a fair trial. United Coke posed to those similar circumstances (2 Cir.). Coke, 339 F.2d States v. confronting us case. in this again retrial, jury On convicted. Judge concurs separate Circuit FRIENDLY’S opinion Judge Chief ^[*] IRVING Judge LUMBARD’S ^[*] well as opinion. ^[*] R. KAUFMAN Circuit investigation” deal tence Before ing Coke, “read and report] imposing thought.” he found hardly anything, and had reread sentence, Judge Cooper On “in sentence, “given it [the pre-sentence it Coke, address- pre-sen- great on ledger your creditable side of (dissenting): Judge MOORE, Circuit shiftless, life. indifferent You have background the relevant facts Some responsibilities, you fathered have passing usually on is desirable in children three Most different women. legal supplement this de- issues. To them, children, of those if not all of have opinion, ficiency majority a more in the * * * years. I been on welfare complete required. statement factual you overwhelmingly am convinced that Judge Dawson The Trial large supplier before have been a of cocaine ”* * * City the New York area. had been Coke After sentence, Judge Cooper imposing said: guilty violations found of narcotics put myself Judge “I find to an hard to come jury, “For sen- said: Dawson agreement Judge tence, you sentence or the sentence now do want ” Dawson out was or be to- replied: meted would To counsel later ? which * * day appropriate says sentence no he has reason “The defendant years Consecutive terms were five it be now.” if the Court decides should ordered Thus, Judge pre- counts and a five- Dawson did year concurrent term as to count 3. probation report. sentence Thereupon, disclosed This the Government court affirmed conviction. involving nar- criminal record 484. No claim made in a Cuban charges ten-year theft cotics and “about five urged infringed rights, counsel Cuba.” Defendant’s Coke’s constitutional or although Coke, leniency never on the motion to reduce because otherwise. Even Draft, 1967), ABA, Summary (Tentative April, Action House of Del- 1. 3.1-3.3 Comm, 1968, p. Special February 19-20, amended, egates, 6. ABA Administra Minimum Standards Sentencing Proposed Justice, Advisory tion of ABA Revisions Comm. Review, Relating Ap Relating Appellate Review Standards Standards Sentences, III, (1967). pellate Pt. §§ Review of Sentences present sentence, appellants permissible not assert did cessful throughout are Coke claim, a section is now raised courts federal petition or reduce to correct vast Con States.15” existing law, fronted with out to he sets sentence. change by having “the burden of for the ten- rationale basis and article” that harsher sentences establish clearly in the year disclosed are asserts that unconstitutional and opinion denying reduction. Coke provisions prin three constitutional F.Supp. (D.C. United 1968.) ciples centering jeopardy double around equal protection support con petitioner penalizing 1.' As to Underlying argu clusion- the entire appeal, exercising assumption ment 18 of an that fear thought Cooper re- itself said: “The “creased con sentence is deterrent to a quality pugnant. of the Such is pressing ap endants from an justice prevailing here.” vlc1;eddf _ _ , ,. , , peal. recognizes author that some The ^ o°per u ' ’ ro se rePor support may required authoritative a10.n. studying revelations, Its after it: said tQ hig make effeetive law he new because committed, the the the of offense nature remedy “Hopefully the will occurring in- trial the third events eluding petitioners Qwn ^ situation of their accord b there, deportment legislative appropriate judicial or ac deterrent, necessity and the a 45„_ thug 624) (H tion the heedi dangerousness com to the of his estimate Qf g modern trend te but ^ large mumty were considered , rg divigiong to both of Gov. report trial pre-sentence the third after court.interpreted ernment under ^ non-sup including three revealed more judiciary Constituthn with the ever , , para- ported by „ ready three different children v mours and a n , ,. willing , (possibly to . . assume r [narcotics] L.J peddler high . . of J ^ usurp) primary legislative „ even func danger community. to tions Judge Cooper that “sentenc- believed ° , ,, j. background authority With of . . and, ., ing judges , at- not hesitate to should . . . , „. , ,, , , treatise, (cid:127) step this (cid:127) the next to take it was . , ,. , „ firmatively place , the basis on the record . „ j-j j a„a practical mto the forum for a test run. tt He did so and i ^ concluded their of action. infor- or additional Opportunity presented new quickly “Where was significant aspect of who, to person mation relates Patton Eddie conduct, af- life Carolina, pleaded defendant’s habits con- North nolo society, danger fecting potential to robbery his re- tendere to armed and had legal capacity twenty-year his norms, to live within its ceived sentence. Gideon g., pro- change (e. from form had afforded Patton a new trial. On imprisonment) retrial, or increase to bation all an increased sentence for g., years) (e. namely, practical imposed, sentence from six ten purposes was twenty years is warranted.” without allowance already four-years-plus A served. Alstyne The Van Law brought proceeding corpus habeas was court, being repre- federal thesis current interest .Patton Alstyne. The no sen sented Professor of the same case Van re-trial greater court question” that “the heart of believed tence shall be ap original be found in sus- sentence was duration than (1) judge picion parently article a law review stems from Alstyne penalizing temerity his defendant for Professor Van March 1965 rights seeking by ap- entitled, in pealing, Harsher vindicate “In Wake: Gideon’s (2) judge] “would [the Criminal Penalties and ‘Successful’ enough likely to so Appellant,” be candid state in 606. Professor Yale L.J. Carolina, Patton Alstyne the record.” v. North that “Harsher concedes Van F.Supp. (D.C.). sue 256 Because of following re-conviction sentences improper proving endorse- their consideration and “of the difficulties court, (Preface, Draft, April motivation,” in ment.” Tentative judge trial 1967). Sobeloff, presented proof the writer effect, justifying Chief absent opinion, of the showing is the which ra- Patton Chairman facts imposition the State Sentencing Advisory Committee tionally supported the misleading 8,000 copies report and Review. such as heavier of his committee to the defendant’s were be distributed “Through procedure possibly inter- [and prior record criminal consideration”], “wide it is vening facts, there was and careful concluded hoped record achieve formulation evidence not a “scintilla of rationally imposition support standards which can be recommended ** throughout p. application penalty Id. the United harsher Alstyne surprising It is not appeal, States.” view Professor Van On background court-assigned represented Pat- find Professor Van counsel Sobeloff, Alstyne’s Judge) Judge (now views featured a basis ton. Chief thesis, proposal Alstyne adopting con- the Committee’s re- “On a the Van resentencing “impossible, purpose mand it is for the that since cluded offender, sentencing distasteful, to an for federal courts no should court most pry sentencing judge’s empowered impose motiva- into sentence which vindictiveness in an tion to ascertain whether results increase over “improper originally imposed.” part” (3.4(b), played a and because Tentative characteristically Draft). a force motivation is prevent visibility,” “In to order of low many thorough A review of the laws abuses, policy necessar- the must fixed subject of the on the is to be States ily shall not new sentence the be appendix found in to Draft. p. At this Id. 641. exceed old.” permit increase, do Some an some disagreement, point, as I must note might expected, not. As have been colleagues my dis- I believe views of the Committee not unani- were agree, in Patton the statement Equally expected may mous. to be be pun- avoiding danger that “the added unanimity lack of Board of Gov- the defend- reaction to ishment was in Delegates, ernors, the House of the Ju- original temerity attacking the ant’s Conference, Congress, dicial or the p. not im- I will conviction.” Id. Supreme Court. Judge Coop- pute any to such motivation Pragmatically, dif- it will make little (or any to trial er Circuit) other ference on the as what law is enacted spread meticulously on who has subject; my opinion but it makes reasons his the record sound factual great it is deal of difference as how action.) Particularly important enacted. is field, in this un- this situation because support for the Van Al- Additional many others, possible like so it should styne be the tenta- thesis to be found in is application on Advisory draft a law definite Committee tive drafts of basis, is, acceptable if (American a national Sentencing and Review on possibly Project States —or even if not. Minimum Bar Association Justice). This Standards for Criminal dealing future, a Before with the the framework serves within Committee glance present may helpful. at the be Special which Chief of the Judge Committee system sentencing by Our now calls and Lumbard is Chairman judge. procedure Under this responsible for the which Committee “is duty “prerogative” the sen- is his and supervision coordination of overall and tence on his is “conscience.” Some Special Project.” Committee “The sentencing panels courts have in which eventually recommend the standards will imposed sentence is discussed. be Sections, the Board and to judges heed, to those Some are and influenced Delegates by, discussion; they the House others do as and Governors Majority Opinion in- The gross promotes system please. This injustices fosters and equalities, creates majority opinion effectively and any every district judge-shopping. convincingly “No demonstrates neces- maneuvers lawyer knows trial jeopardy policy is clause double “right” judge. get the sary taken when, consequence offended own possess their necessity judges resulting Of offense retrial the same predilec- characteristics individual proceedings from taken the accused to Bar to the quickly They reveal tions. higher punishment error, correct they are on which types of crime imposed.” they are on which those “hard” Accurate, too, opinion’s is the state- must Disparities sentence “soft.” con- ment that some other that “The idea long judges con- exist continue principle stitutional forbids a heavier beings. human to be tinue retrial, jeop- even if double indicate decisions1 current not, ardy exceedingly does is of recent future draftsmen. problems origin.” Indeed it is. imposed Should Again, opinion correctly concludes the sen- report? probation Should no constitutional condi- record tencing on the judge have to state prevent imposition upon tions particular sentence? for the his reasons subsequent conviction of “whatever sen- subject to collateral his reasons Should light justified tence of all Where appellate review? attack appearing” facts then and that “To the re-trial, should there is a * * * trial, extent has that a new deprived of his sentencing judge be light adequacy shed his new ? “conscience” “prerogative” previous sentence, there is sufficient ba- intervening such events he consider Can allowing appro- sis for a classification record, on the he state as here? Should * * priate sentence to be review, again for collateral attack “equal protection” Nor does the clause in- impel him to those reasons which bar such a sentence. appellate Should crease the sentence? through the appellate However, argu- be presenting review courts after sound (An interesting body? situ- sentencing ments for its conclusion that Con- “the imposi- might in revealed the ation be stitution does not mandate a universal by 20-year prohibition higher a vote sentence a tion of sentences after a years, voting 4 for 5 4, for 20 conceding 5 to 5 retrial” and after that “sen- years highly supposititious case. tencing normally is the within discre- —a result judge,” sentence not fairer tion of Would the the trial the sud- years by denly total change 9 from a division their role and take unto months?) years 4 powers which, and my opinion, or of 13 a sentence in themselves questions by can should many be be exercised other either the Con- Doubtless gress, certainty Conference, the conjured up exists —a Judicial the but one give upon to all American Bar Association the which will can be enacted law procedure appropriate to judges the recommendations of its com- some idea as considering by problem, mittees re-trial sen- now the or them on be followed Supreme they con- the tencing. Equally be Court. certain will the Instead decree injustice appellate comparative that “A federal which court not has fusion and by only right but, view, developing duty the the law in our will result from lay process piecemeal manner. down standards on this decisional matter States, White, (7th 1967); F.2d 583 F.2d 374 382 445 Cir. Marano v. United Russell, 1967); (1st v. North Caro United States ex v. Patton rel. Starner Cir. (3d (W.D.N.C.1966), Cir.), denied, F.Supp. lina, cert. 225 378 808 389 256 889, (4th 1967), 166, aff’d, cert. U.S. 88 S.Ct. 19 L.Ed.2d F.2d 636 189 818, (1967). 905, denied, U.S. (1968); v. United States L.Ed.2d They frequently justify assertion rec- application trials.” federal being normally supremacy, “sentencing into came ognize federal is original judge” result of the Constitutional Con- the trial discretion of within the only spirited I) debates and (as vention uniform do “a believe and compromise established”; on federal the limitation but then practice be should powers effect, reservation States’ they, reads enact law rights. fifty peoples may of our higher that on re-trial no aborigines, not-yet- are not resident except cir- “[two] be They emerged intervening areas. should entitled [apparently, con- cumstances pass express public own their development facts laws of additional duct every policies. every may If man in State law- re-trial] vote, should provided judge entitled to own this vote fully imposed, by federal be nullified some specifies record.” reasons who, may by which, happen to or a court decisions, I of recent am unmindful disagree policy. public with the State’s Cir., (4th May Peyton, v. 398 F.2d 476 Thus, right have each State should 1968); Holmes, 26, June State its own criminal and to fix enact code Court, Supreme N.W.2d Minnesota penalties its laws. infractions 6, 1968; Supreme September There be substantial variations granting in North Court’s of certiorari proscribed penalties the crimes and in the Pearce, Carolina v. S. variations, attaching thereto. These 29, 1968, Ct. 21 L.Ed.2d October however, only can avoided uni- Rice, Simpson code, voluntarily (as form criminal 21 L.Ed.2d November Code) case Uniform Commercial 13, 1968, the resen all of involve adopted by foisted and or tencing However, problem. deci these upon forced the federal them courts stepping present mere sions for the guise “equal protection.” under alignment starting stones. on the the) process depends not (or democratic line of law this race to enact expression by highest upon subject freedom court of are the but, upon people importantly, State, re- more Appeals, a federal spect Court, Supreme them. actions taken American Bar’s sentencing When, and, and if a Special uniform inten Committee unless they them, presented tionally scratched, Congress code should accept reject legislative with- It is far bodies. State rejection out pick fear would over- easier than the winners to losers rough by federal courts. My only shod ridden concern at this this race. my colleagues’ feeling time is with present In of the status of view compunction “lay they should down prospects and the Committee drafts * * * application standards adoption possible dis- and free full would, effect, They federal trials.” doing by cussion, I refrain from would to undertake to do in one decision that they by decision seek do which many legal of the minds in which best code. I believe that restraint is the country devoting their at have been democracy and that exercise essence years. Orderly procedure tention for juncture restraint this would requires in the future immediate good any Nor rea- advisable. is there steps Pref outlined Committee’s sentencing allowing son for the first race, hypothetical I ace. In this would and for to follow his “conscience” try cut ahead the courts depriving sentencing judge of the second put of the it out Committee judges following his Both “conscience.” race. oath; constitutional have taken same pay respect respective I each his in our State fills niche would also some legislative judicial system. courts. Because action bodies State Constitution, probably compara- all, After used to be taken in the now so my therefore, opinion, by record.” In tively the winner of this near future race, my inevitable that his sentence conclusion is hypothetical views here ex- judgment upheld pressed should academic doubtless be but will Judge Cooper’s present de- should be affirmed. I find the better law as cision consistent with re-sentencing. fact, it relates rely Cooper was entitled to our much-appealed Ellen- in the

decisions Ellenbogen, bogen (United case 893, Cir., 1965; Id. 365 F.2d 341 F.2d (1968) (1966); Id. 390 F.2d 537 NATIONAL LABOR RELATIONS Although 543). p. footnote 13 at BOARD, Petitioner, appeal disposed court latest jurisdictional grounds expressed no LOCAL UNION MUSKINGUM VAL- grounds opinion other as to the merits of LEY COUNCIL OF the DISTRICT raised, say way the Court did UNITED OF CAR- BROTHERHOOD suggested respect footnote with AND PENTERS OF AMER- JOINERS illegality greater on re- ICA, AFL-CIO, Agent, and its Harold trial : Respondents. Jackson, “Ellenbogen argues No. 18539. that his sentence illegal year day is of one and one be- Appeals United States Court of greater cause than Sixth Circuit. days imposed of 60 after his Dec. and conviction. He raised same to this disposed court in 1966 and we of it

then, along with numerous other

points raised, final sen- opinion. tence of the United States v. Ellenbogen, (2 365 F.2d 1966).”

Lastly, any change in the law should operate prospectively retroac- tively. If the Committee’s recommenda- (whatever they may

tions be after “wide and careful consideration” con- templated) Congress codified or Judicial Conference or made into law Court, Supreme it would not be presumptuous predict they would

apply only arise situations their enactment.

However, assuming creating circuit, new law for this I Judge Cooper’s find that decision com- plies every particular. present, “two circumstances” both Sherman, N.L.R.B., Lawrence J. Wash

intervening conduct and additional facts ington, C., for petitioner, D. Arnold Ord upon “provided re-trial. that” con- man, Counsel, Manoli, Gen. Dominick L. dition as the has also met Counsel, Assoc. Gen. Marcel Mallet- “specifie[d] Prevost, Counsel, on the reasons Asst. Gen. [his] Glen M.

Case Details

Case Name: United States v. Simeon Jessamy Coke

Court Name: Court of Appeals for the Second Circuit

Date Published: Nov 27, 1968

Citation: 404 F.2d 836

Docket Number: 32241_1

Court Abbreviation: 2d Cir.