United States v. Winfield L. Roberts A/K/A Win

WRIGHT, Judge and BA- Chief Before JUDGMENT TAMM, McGOWAN, ZELON, LEVEN- MacKINNON, THAL, ROBINSON, ROBB, PER CURIAM. WILKEY, Judges. Circuit heard on the cause came This the United States appeal record ORDER Columbia, District of for the Court District by counsel. was argued PER CURIAM. It is ordered thereof On consideration rehearing for en banc suggestion judgment adjudged by this Court Winfield L. hav- appellant filed appealed from in of the District to the full Court ing been transmitted hereby affirmed. regular is cause of the Court in majority judges voted in favor having active service discharged fully counsel duty of thereof, it is rehearing en suggestion filing Court, banc, ORDERED, en by the rigid stan- the case meets banc unless for rehear- suggestion appellant’s aforesaid Appellate Proce- Rule dards of Federal ing en banc denied. 35(a). dure BAZELON, Judge, Circuit Statement ORDER rehearing en banc. why as to he voted PER CURIAM. Circuit Separate Statement Court, ORDERED, sua by the IS IT MacKINNON. en- Judgment previously sponte, BAZELON, Judge, Circuit September proceeding on Statement tered rehearing en banc. hereby, why as to voted be, vacated. and it * 292(a). designation pursuant Sitting by 28 U.S.C. imposed attempts

The District Court in this case After several unsuccessful upon substantial consecutive sentences disqualify original judge trial from the appellant because he refused to name the remand,3 pleaded appellant persons who which supplied had narcotics of the two four counts of use of a unlawful panel he distributed. A of this court af- telephone. sentencing, appellant Prior to appellant’s firmed conviction and sentence a requesting filed motion that the sentences opinion ap- without or memorandum. This concurrently, on the two run counts which peal a presents question whether trial customary practice apparently in the judge may properly consider a defendant’s prosecutor District Court.4 The in his allo- cooperate failure to law enforcement cution, however, sentencing asked the as an aggravating officials circumstance consecutive sentences of substan- warranting imposition of an sen- enhanced weight. judge responded by tial The im- tence. Because panel failed to address posing consecutive sentences of to four this difficult issue which critical count, plus year on each a three term justice, fair administration of criminal The special parole.5 penalty maximum voted to rehear this case en banc. provided imprison- in the relevant statute is $30,000, for years,

ment four a fine of or I. present appeal, In the panel both.6 a by petition this court order. affirmed This Appellant was count indicted a five rehearing for en banc followed. indictment including conspir- one count of acy charging and four counts unlawful use telephone a facilitate distribution II. In pleaded guilty heroin.1 primary appeal simply issue the conspiracy count and received sen- judge may properly whether trial rely years imprisonment, tence of four to fifteen upon the fact defendant refused to year term, special three parole an justification become informer as a $5,000 fine. This court vacated appellant’s imposing a more severe sentence. In our

guilty plea and 1977 because the own circuit we upon have touched this issue fully Government had not de- disclosed the squarely confronting tails it on at least agreement to the District occasions, Court.2 two prior differing re- 841(a), (1976); 1. plea bargaining process. 12-14, See 21 U.S.C. id. §§ See id. at 16. 843(b). § both the Given thrust the Government’s allo- judge’s specific cution admonish- U.S.App.D.C. 2. United States v. during sentencing (“you ment from the bench 570 F.2d 999 opportunity cooperate and failed to Government,” 19), id. at record Appellant 3. filed a motion for in the recusal appeal clearly demonstrates the defend- petition District Court and a for writ of manda- cooperate significant ant’s failure to was a fac- mus in this court. affecting imposed. tor the sentence Whether it question was the sole factor is irrelevant. The n.6; Appellant at 21 See Brief Brief for permissible is whether it is a factor. Appellee During at 26 & n.15. proceedings, defense counsel indicated that he three-year spe- 5. The District Court could find no case in other circuit in parole by cial term not authorized which a defendant had received consecutive statute, 843(b). multiple U.S.C. Govern- sentences use counts of unlawful part appellant’s telephone. 4-5, conceded that Sentencing of a See Tr. at Ap- reproduced sentence should part Appendix, be vacated. See Brief for infra. The pellee panel prosecutor at 24 rarity n.13. The vacated the unau- conceded the of consecutive February 23, order thorized condition dated emphasized sentences on these counts extraordinary the Government’s re- somewhat quest primarily upon was based the defend- during identify suppliers 843(c) ant’s refusal 6. 21 U.S.C. § McCord,8 right to testify asserting ant s that there suits.7 United States suggested judge’s right testify untruthfully. consideration protected that a trial is no contrast, cooperate might by way appellant In this of defendant’s failure Only similarly antago- a Roberts’ conduct was not necessitate vacation sentence. later, Liddy9 Appellant time States v. nistic. did with au- short in United panel respect charged concluded that that same thorities to the crimes a different imposing properly by inculpating considered in in this indictment both him- factor present co-conspirator. case offers an his Appellant self and sentence. en banc consideration appropriate identify pow- forum for balked when asked to his suppliers, fearing issue. erful that to of this troublesome do so endanger possibly his life and incriminate urges that United The Government in conspiracies himself additional or crimi- 41, v. 438 U.S. 98 S.Ct. Grayson, States nal immunity activities without benefit of (1978), 2610, resolves prosecution. Whereas Grayson chose may sentencing judge question whether legal duty to lie when he to tell the to the defendant’s failure properly consider truth, Roberts simply chose to act in a officials. cooperate with law enforcement situation in he had no affirmative in that a Supreme Grayson The held Court duty to act.11 Grayson And whereas had no fixing within sentencing judge, in protected right perjury, to commit Roberts statutory limits, may properly consider constitutionally protected did have a privi- testimony false dur gave a defendant lege against privilege self-incrimination —a ing trial. The Court concluded that de Congress safeguard by intended to re- to willingness fendant’s commit the serious quiring grant immunity Government to “may probative be perjury crime of deemed compelling self-incriminating before testi- rehabilitation,” 52, prospects id. at of his mony. (1976). 18 6002 See U.S.C. § 2617, at thus was a relevant 98 S.Ct. sentencing panel’s factor under current reha The apparent extension of the Yet, at least Grayson bilitation model. without fur rationale further elabora- explanation, Grayson appear disturbing here, ther does not tion is particularly for the govern present permits the situation case. result the prosecution First, Supreme emphasized Court that a in the leverage “bargaining increase its defendant’s choice to commit process” by calling upon deliberate with the defendant ‘a perjury manipulative defiance of the the considerable influence of —“ ” accurately indicated judge. judge, law’ the likelihood whose impartiality trial 10— transgressions degree of future and the justice sys- is a cornerstone of our criminal “ tem, ‘at may which defendant was war with his tempted, guise be under 51, society’ join ”. at 98 at 2616. exercising Id. S.Ct. discretion Second, rejected consti Grayson’s securing prosecutor forces arguments “chilling” tutional about defend- cooperation. Although defendant’s disposition 388 7. Other circuits have addressed this or similar 49 L.Ed.2d This court’s questions unpublished and have differed in their conclu was set forth in an memorandum. Romos, Compare 572 sions. United States v. (2d 1978) (improper F.2d 360 factor Cir. 51, (quoting U.S. at at 10. 438 98 S.Ct. 2616 Garcia, sentencing); States v. 544 F.2d United Hendrix, 1233, United States 505 1237 v. F.2d 681, 1976) (same); (3d 684-86 United Cir. (2d 1974)). Cir. 1079, (5th Rogers, v. F.2d 1084 — 85 States 504 1974) (same); Cir. States Chai 11. Roberts’ case differs from that in which a dez-Castro, 766, (7th 770-71 Cir. 430 F.2d person duty testify. Compare has a In re 1970) (proper sentencing). factor in 1349, Jury Proceedings, Grand 509 F.2d 1350- (5th 1975) testimony (proper compel 51 Cir. n.35, 334, 1, U.S.App.D.C. 346 166 3 509 F.2d grand immunity), jury grant before after n.35 1079, Rogers, with United States v. 504 F.2d (5th 1974) (improper 1084-85 Cir. to enhance 1975), F.Supp. (D.D.C. aff'd without 9. 397 947 coop- sentence based on defendant’s failure to 242, opinion, U.S.App.D.C. F.2d 1094 174 530 prosecution). erate with 2652, denied, 937, (1976), cert. consideration of the co- extent judge’s defendant’s would be de- charges terminative of the which could be operation justifiable may on other brought against him.”12 When Roberts grounds, practice should be reconciled nonetheless his suppliers refused name pronouncement with this court’s earlier narcotics, he was arrested and indicted ac- participate “the trial should neither cordingly. After his indictment Roberts directly plea bargaining nor create incen- again cooperate. refused Govern- tives for pleas policy of differen- attempted ment could then have secure tial sentences Scott v. United . . . grand such through jury information in- U.S.App.D.C. F.2d vestigation, using statutorily prescribed (1969) (opinion Bazelon, J.); C. compelling testimony means for without vi- see id. (opinion Wright, J.). olating privilege against defendant’s self-in- formally arrested, Before he was Roberts following crimination.13 Rather than by was told prosecutor course, however, the “that prosecutor the nature the allocuted Office, Watergate Special Sentencing pub- the Government’s Memorandum on Prosecutor’s (filed 25, 1976). licly why at 6 in D.D.C. on disclosing Mar. how its and discretion given separate statement, Report Judge In his exercised in a case. See of the MacKinnon judges sentencing per- Watergate that Special punished for mous allocution in matter. We know silent. main during the course of this investigation phone tap there was this directed at Boo APPENDIX couple Thornton for a weeks. As a re- Transcript

Sentencing sult of that I believe six search warrants were gambling executed for and narcotics activities, peo- as a result of Mr. Thornton’s [pp. 4-6] arrested, et cetera. ple At that time no one MR. PALMER defendant]: [Counsel anybody knew Winfield Roberts from else. During I investigation, the course of the argument, Your legal Aside from green was Jaguar think on three occasions a experience in criminal Honor has a lot it, vicinity. girl seen in owned cases, I fair than do—I have a said, “Yes, Payne, it’s came in and Cecelia amount, my to say I think it fair also. car, my boyfriend. I it to He’s my loan experience that when have a boyfriend?” sitting outside.” “Who’s this, uniformly, Judges as two counts such “Winfield Roberts.” least, give my concurrent experience attorney I and the other course. In fact The Government sentences as a matter of there, courthouse, there was a bit policemen and I were know of case in this any good fortune. McSorley Mr. can disbelief over their think Mr. Connor in. error, Roberts comes Mr. Rob- if I contra- event Winfield corroborate this am or police it, to the at the ever made a statement dict which a of this erts gave phone sentences for two time. consecutive Carolina, 790, 809, by authorizing immunity, North

gress, grant Parker v. accord, (1970); provided compelling 25 L.Ed.2d 785 a means of the defendant’s 357, 362, Hayes, 98 sacrificing 434 Bordenkircher his constitu- Indeed, rights. might argue tional that the S.Ct. one immunity prescribes avenue statute sole compelling testimony, U.S.App.D.C. at such and that other 136 15. Scott v. United threatening means —such enhance 419 F.2d at cooperate— defendant’s sentence if he fails to impermissible. count, consecutively, mean, which would Now, alleged be- during the conversations course, a total of to 96 months. Because Thornton, the term man and tween this already the defendant has served 21 months were used “half street” rela- “street” and in prison, get and would credit for time right. They narcotics. All asked tive to served, result, the net if the Court were it, said, he Roberts about Mr. Winfield recommendation, accept our would be that statement, copy I of his “Yes.” have defendant, goes if he back to a federal given McSorley. me Mr. which was institution, have would to serve months They him if he knew what was meant asked today, generally speaking, before he street”, “street” “half be- by the term parole eligible. becomes tape, it was on the and he said that cause This sentence asking that we’re for is bag, meant a “half “street” $100 much less than severe the Court bag. street” meant He stated $50 years ago two it when he drugs when Boo was short on would meted out sentence of four make these deliveries to Boo in the amounts years. There the minimum time he would bags. and $100 have had to serve 48 months. In the target, Thornton, Mr. was indicted instant case if the Court adopt were to our think, gambling, and narcotic viola- recommendation because of the time served tions, pled which he some be 11. it would come So out to Government dismissed as to others. Mr. practically 16 months less time he McSorley files his well-known allocution. up serving would end if the sentence of two might if Judge don’t know Corcoran have years ago were be compared what, to it overreacted but in event sentence we today. ask the Court to Thornton, placed target, pro- bation in the matter. Honor, Palmer has more or less get Roberts. His Then we here to Mr. Government, found asking Court, they to him indicate case comes sentences, consecutive going Thornton, or-help us you testify against “If general usage, rule of of customary practice whatever, drugs, gave you who the with in this courthouse. To some extent that “I wasn’t you.” says, He go light we’ll correct, generally speaking because in the it,” up He winds in he refuses. involved pleas that I have handled in cases like this he, sentence, which Mr. with a substantial years, over always the I haven’t been as at, surprised con- was somewhat harsh asking particular in a for sentence as events. sidering the course of case, I am in this and I would like to explain why the has Government taken this

[pp. 11-19] reason, appear so as not as a Simon Legree. MR. McSORLEY Your [Prosecutor]: Honor, I would like reply to some of Mr. Many, many ago months when Palmer’s remarks. began first and we had idea case, The Government in this because we identity who it was using who was that previously had filed lengthy a allocu- green Jaguar ferry automobile to narcotics tion, felt supplement no need to it city, in, about subpoenaed we the owner pleadings. extended Consequently we filed and Payne, turned out to be Cecelia only two-page a document with our sen- girlfriend. Mr. Roberts’ came and She tencing recommendation the Court im- she confirmed in fact she was the sentences, pose consecutive on the basis of owner, only person and the she ever let pleas his factual to two counts of drive that car was her boyfriend, whose using telephone to facilitate a violation of Winfield, name was and she told us as a Controlled Substances Act. standing right matter fact he was out- short, we have asked Your Honor to side my waiting office in corridor for sentences of 16 to 48 months on each her. drugs, say, and Your to come to him dispatched an officer to ask to come Honor, into we would ask to take there, Right knowing the in. then and not extenuating mitigating and account some case, import knowing how full circumstances, coop- that the defendant has involved, he was deeply Government by providing us with certain infor- erated made an offer solicit his He has it. mation. stonewalled thought we because at that time we ironic for counsel So find somewhat Thornton, whom did that Charles “Boo” we behalf, ask plead on Mr. Roberts’ and to know, major figure was much probation, for when a defendant over trafficking city narcotics than was many, many years, knowing what course of transpired Mr. Roberts. As events later we faces, knowing he and that we desired the wrong, were shown to be didn’t information, still refuses to disclose it. know that at the time. this, cooperation to He We solicited Mr. Roberts’ old. did Roberts testify Jury discern, and at trial the Grand from what we’re able to promised We Jaguar Thornton. drugs deliver on call automo- coopera- his the nature and extent of bile, many worth thousands of dollars and it to tion would be made known. Suffice name, girlfriend’s titled his plea what we him was a bar- say offered avarice, interest, money. greed, gain he platter, on a silver from which way When arose back in this case emerged jail perhaps would have with some unmarried, he had end was time, to a certainly but with offer payments support, no children to no house much less serious offense than what make, girlfriend. he lived ultimately transpired in the case. name, her car in her lease was in was as Mr. cooperate, began he Thereafter many unemployed name. He been terms us what the He told noted. Palmer years prior to He had been unem- told He meant. “half street” “street” ployed many years gotten since he had girlfriend’s drugs in his he how delivered us Honor, the yet, out of Your Lorton. aus He told Mr. Thornton. Jaguar style leading, place life that he was him. incriminated things which number driving, he living, where he was the car was step further go we asked him when But wearing, the fact that the clothes he was persons identify person College as a going City to Federal drugs, and getting the he was whom student, Honor, instead things, these conspiracy location, out the lay extenuating account as being taken into in- who were co-conspirators identify other circumstances, we think are mitigating them, he balked. volved to considered as circum- appropriately be repeated entreaties despite point, At that enhancing stances the seriousness go that extra cooperation to to secure It of the offender. offense and seriousness of course adamantly And he refused. step, coming not a before the Court is defendant charging indictment was an what resulted Les Hugo novel Valjean like the Victor tele- and five conspiracy, with him Misc.ables, he stole because where he bread counts, were a maxi- though there phone that reason. had to eat. He did that for indicted could have of 13 calls we mum to opportunity Mr. Roberts an When for. circumstances, he get very good deal Throughout process oc- long that has up it in our face. threw June 1975 when he first curred from office, my up today, came into he still to Honor, that, he is not a More Your than cooperate. has refused to offender, neophyte. is not a he novice charged he in a was this courthouse prosecu- as stand today, So we here as multiple counts of 15 count indictment I am position tor not in as I would be to trial and was robbery, he went bank and cases, many dealing like with defendants pre- were all counts which convicted of Roberts, involving Mr. this cases like Well, MR. PALMER: as the evi- insofar count; concerned, they UUV, one dence is have him deliver- fed- ferred him: drugs Mr. counts; ing to Thornton on three occa- five local bank robbery, eral bank sions, $100, $50, whatever, street, half robbery, And he was sen- five counts. street, that’s the evidence. And the UUV, years tenced to one to five indicating they Government is are mad robbery charges. five to bank seeking they get at Mr. are all heard, And as the Court he served five has he this time because didn’t Lorton, years gets and a half then them, they what apparently that’s out. it, He therefore he de- wanted. didn’t do abiding Does he lead a law life then? Is get time serves the brunt anything today there the Court or make though target even investi- anyone else come to reasonable conclusion gation, Thornton, got probation. And man, background, this seems, well, essentially, they saying are likely abiding law today to be got fellow, get we’ve let’s what we so got forward than he was when he out of can from that’s the him. thrust ago? Lorton five and a half argument. the Government’s Honor, Your you when take into account Now, point, on the other the Government offense, the seriousness of this and we do came and about the first talked regard offense, it as a serious where he imposed. that Your was Honor That call, delivered heroin on where he himself very we reasons had filed these recusal addict, not an where he had been un- motions, difficult, because it employed, where he was young, strong, said, judge Second Circuit once employable, healthy being, human where he somebody, have which we did cite sentenced refused to assist the Government and there- Maynard case which Honor did Your by brought down on his head charges much that, change but the Circuit Chief Second more severe than would have brought been Kaufman said once the down, it’s feeling Government’s that the somebody tough get sentenced it is it out appropriate sentence in this case is as we change of their mind and the structure. suggested. we type plea. Here have a different Assuming impose the Court were what arguing The Government is to Your Hon- asking, we’re it is far less severe than what thing very sought to avoid. the Court years ago, two and there be- They saying are Your Honor did this been, have way thinking, counsel’s no fore, gave time, you him this amount of changed support circumstances looking now in this context it will be differ- Palmer’s probation. recommendation for ent, firmly your have mind. So recommendation, We think that our taking they impressing Your Honor with the offense, into account the the Government very sought am point we to avoid. Honor, efforts to cooperate, sure, have him lack hope Your or I Your Honor extenuating will mitigating circumstances, argument, avoid that which is motion, of the recusal appropriate one, basis and therefore we trapped something into did be- Honor ask the Court to it. it, fore and bound because the circum- THE COURT: Do want to make a changed stances have now. Mr. Roberts is response, Mr. Palmer? changed position, you why. in a and I’ll tell MR. Yes, PALMER: sir. The Govern- says things McSorley changed. haven’t ment, me, it seems pretty to is agreed well changed they dramatically, think have that Mr. essentially Roberts was an errand as I indicated we are not sense that boy in matter, they really are mad suppliant saying, here behalf of a at him because— break, Honor, give maybe man another THE COURT: I they say don’t think that committed another offense and has at all. put probation. wrong, done but cooperate with

failed to the Government. of the Accordingly, judgment it is the actually served almost two This man has two counts that on each these Court Atlanta is penitentiary. in a federal years to a term of one four you I think sentenced security prison. a maximum consecutive, me, very counts be really, years, he is that those these circumstances going been out at there shall be a frightened, and hasn’t and in addition life. straighten up his night, seeking special parole. is We three-year term of now would do more him back send fine. imposing are not a good. harm than My complete familiarity with the facts of and us will up mess Mr. Connor If he does having this entire case results from written here, Honor can and Your be back reversing the opinion first conviction. to, I think under the you want what is a The entire record reflects that Roberts circumstances, all the facts under very drug distributor. His sen- substantial view, we don’t broad looking at the years a very light tence 2 to 8 is being think we’re unreasonable. drug prior for a distributor with a convic- you. Thank Thus, robbery. tion for bank neither the Roberts, we have con- THE COURT: length nor of the sentence the court’s state- We have carefully. case your sidered ment at indicated that Roberts parole from a were again you noted obtained an “enhanced sentence.” He conviction, you which have robbery bank obtained á sentence that minimal for his In law. prior involvement type continuing egregious conduct which dealer, you had clearly a you were case prior involved a conviction for bank rob- cooperate failed opportunity and imagine bery. It is hard to what lesser is the Accordingly, the Government. sentence than 2 to 8 a court could of these that on each the Court judgment of for a robber who adjudge convicted bank term to a you be sentenced two counts being drug a subsequently convicted of counts be those years, to four distributor. there shall consecutive, and in addition Brady U.S. We special parole. term three-year abe (1970) 25 L.Ed.2d fine. imposing a Court observed that— you. Thank [surrounding “one of circumstances [the] Separate Statement Circuit plead guilty a where a decision MacKINNON: impose the jury could death sentence] premise foregoing 1. The state- a possibility was the heavier sentence ment is “a failure to coop- defendant’s following verdict after trial.” erate with law enforcement officials [was 90 S.Ct. at It aggravating as an considered court] significant that the Court made adverse warranting imposition circumstance of an respect to this situation comment transcript, enhanced sentence.” The how- sentence was authoriz- where a severe ever, support does not assertion that cooperate if did not to the ed the defendant Roberts obtained an “enhanced sentence for pleading guilty. extent with law enforce- failure compensating As co- defendant who respect record in this officials.” The operates with the Government states: plead guilty: also as to those who remarked Roberts, we THE COURT: Mr. have very carefully. hold that it is unconstitu- your considered We cannot “[W]e parole again you have noted were on for the to extend benefit tional State conviction, robbery from a bank a sub- who turn extends defendant you prior have had involvement benefit to the and who stantial State clearly law. ready In this case were he is by his demonstrates dealer, an opportunity willing admit his crime and system a the correctional frame

enter ASSOCIATED THIRD CLASS MAIL hope for success of mind that affords USERS, Appellant, period over a shorter rehabilitation v. might necessary.” time than otherwise be 753, at 90 S.Ct. at Cooperat 1471. UNITED STATES POSTAL SERVICE ing with the Government in law enforce al. et greater even benefit than mere No. 78-1065. ly pleading guilty. Congress recognized authorizing the Government Appeals, United States Court of grant up complete immunity for testimo District of Columbia Circuit. ny from those who refused to cooperate government. with the 6001 et U.S.C. § Argued 20, Nov. 1978. seq. Heaney wrote for the 9, Decided March 1979. Circuit, Eighth agreement pros not to “[a]n ecute an accomplice who is cooperating in Rehearing 3, April Denied 1979. the conviction of others is recognized as a proper authority. exercise of A.B.A. Stan Justice,

dards for Criminal The Prosecution 3.9(b)(vii)

Function (Approved Draft, 1971).” Librach, United States v. 536 F.2d 1228, (8th Cir.), denied, cert.

939,

Whether these situations are viewed fac

ing a more severe sentence coopera for not

ting or a more lenient coopera sentence for

ting, the merely situation is two sides of the

same coin. judges If longer permitted were no

consider cooperation defendant’s with law officials,

enforcement prosecutors then

would take that factor into account

pressing the charges more severe for those

who refuse cooperate reducing

charges of defendants cooperate. who do Dawson,

R. Sentencing: The Decision As Type, Length,

To Conditions Sen-

tence 177 It surprising also

court’s action in sentencing major drug

distributor, which merely referred to his

prior conviction robbery for bank and his

failure government, with the questioned. Cf.,

here States

McCord, 166 U.S.App.D.C. 1, 13-15, 509

F.2d (1974), 346-48 where the

during sentencing stated precisely that co-operation

“full prosecution

might lighter Id., result in sentences.”

U.S.App.D.C. 509 F.2d at 347. And referring prosecut-

ing others. notes if 34-49 Prosecution Force vein, (Oct. 1975). mitted to cooperation the consider extent of the defendant’s aIn similar this court has officials, with law emphasized enforcement that such as decisions whether and prosecutors simply then will charge take this factor with what crime to the defendant determining charges into account what sunlight, “should be made and not in [the] bring. however, In this the defendant’s prosecutorial unguided mist the shrouded of affecting failure to was a both factor States, supra, v. discretion.” Scott United U.S.App.D.C. 136 charges the of the indictment and the sentence. 391, (Opinion 419 F.2d at 278 judge’s extremely Just the trial sen- broad Bazelon, J.). Allison, Blackledge of C. Cf. v. tencing precipitated spate discretion has of 63, 76, 1621, 97 S.Ct. reform, proposals calling sentencing the prosecutor’s charging unbridled discretion in precise question by posed case this bargaining and the defendants has become whether, sentence, imposing judge increasing focus of concern and debate within may cooper- consider the defendant’s failure to justice the field of criminal administration. aggravating Judge ate as an circumstance. As suggested Several commentators have the notes, however, MacKinnon the decisions of prosecutorial breadth of discretion must be cur- prosecutor, judge, the may no less than those of the injustice engendered tailed order to avoid the disposition in fact control the ultimate of a generally unguided the and unfettered exer- Thus, coop- case. if the defendant’s failure to See, power. of g., cise that awesome e. K. impermissible erate is an in sen- consideration Davis, Discretionary Preliminary Justice: A In- tencing, question then the arises whether the quiry Miller, (1969); 188-214 F. Prosecution: prosecutor may properly invoke this considera- Suspect Charge The Decision to With a exercising charging tion in his discretion in and (1969); Alschuler, Sentencing Crime Reform bargaining dispositions. over Critique and Prosecutorial Power: A of Recent Proposals “Presumptive” for “Fixed" and Sen- 6002, 13. 18 U.S.C. 6003 §§ tencing, (1978); 126 U.Pa.L.Rev. 563-77 Judge implies grant MacKinnon that a Advisory National Commission on Criminal immunity seq. 18 under U.S.C. 6001 et Goals, Report Justice and Standards on Courts analogous plea bargain, to the in that both (1973); Atkins, Abolishing Pamas Bar- & Plea compensate exchange the defendant in for co- gaining: Proposal, A 101 14 Crim.L.Bull. operating with the State. But this character- (1978); Vorenberg, Narrowing the Discretion immunity ization of is inaccurate: unlike the Officials, of Criminal Justice L.J. Duke plea bargain, immunity is not a “reward” for voluntary cooperation with law enforcement 651, 681; White, Proposal A for Reform of the Process, Bargaining Plea (1971). 119 U.Pa.L.Rev. 439 Rather, immunity congres- officials. reflects recognition sional cannot that the Government proposals Recent have included demands compel cooperation unwilling the outright of an defend- plea legis- bargaining, the abolition of safeguards right ant unless it scope prosecutor’s his constitutional lative limits on the Brady authority situations, bargain self-incrimination. defendants in certain purely L.Ed.2d and the formulation advis- S.Ct. ory (1970), recognized prosecutor may guidelines pros- flexible internal 747 attempt that the the charging policy practices. voluntary ecution’s suggestions Other secure the defendant’s require prosecutor cooperation by bargaining the over indictments publish reports, however, pleas. fail, much like the issued If Con- these efforts once, the fact order counts. sentence in either for a substantial S., went Ramsey v. the Su- indict- U. after defendant’s induce Smith, Court, there the too on punish preme guilty, or plea counts, gave sen- phone sen- concurrent several noncooperation. defendant bench I have checked all advance tencing presentation tences. judge’s option sheets, many and I don’t know how dozens bargain-versus-retaliation “relatively read, equal including bar- Federal to threaten of cases I’ve seems cases, prosecution power” gaining Reporter. between I have found as a mat- fact, to the entire is crucial federal judge and defense in which ter “an- concept bargaining.14 This given consecutive sentences for two or ever sentencing”15 differential policy nounced phone counts. de- danger future raises serious that, policy I think based on based on the punished by the sentenc- may be fendants procedure courthouse, usual we or accept prosecu- they do not ing judge if fair, both under law “bargain- period of during the tor’s offer fact, that concurrent sentences be im- pleas. By allow- ing” over indictments and sincerely urge arid I that. posed, prose- to take sides ing Now, right. getting All into with a cutor, may leaving defendants issue, question now offer is accepting whatever choice between up, really get comes want into this talk, being them to presented to induce a bit because of Government’s now fa- re- right their exercising

Case Details

Case Name: United States v. Winfield L. Roberts A/K/A Win

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

Date Published: Apr 30, 1979

Citation: 600 F.2d 815

Docket Number: 78-1428

Court Abbreviation: D.C. Cir.