William R. Leach v. United States

expenditures they because exceeded the LEACH, Appellant, William R. example, needs of For restoration. covering reduced a floor bill v. per asphalt over 35 cent because tile was America, UNITED STATES of damaged replace Appellee. used linoleum floor. No. 18198. Appeals United States Court of (3) turn now to Lesmark’s We District of Columbia Circuit. contention that Charrons are not en- April 9, 1964.

titled to indemnification for counsel fees May 19, 1964. As Amended 11 and because their insurance carrier furnished appeared the counsel who them they obligated responsi- “are neither nor agree. ble for the fee.” We cannot The liability fact the Charrons carried

insurance covered the claims Pryce and Ash did not relieve Lesmark obligation indemify of its Char- against claims,

rons such and Lesmark Similarly,

does not contend otherwise.7 liability it was not relieved liti-

gation expenses arising from those claims, which were also covered insur- agreement ance.8 And the insurer’s provide legal representation rath- direct attorneys’ er than reimbursement merely fees reflects understandable preference of the insurer control the litigation.9 appeals judgments fa- Pryce 17739, vor of in No. and Ash in remaining No. 17740 are dismissed. The

judgments are affirmed. 6. This assertion it.” 94 N.Y.S.2d 820 Dept. trial. sonable Misc. Busch & Latta Paint Co. v. Woermann lieved from davit the fees allowed. ment out of the indemnitee’s counsel Const. County 1947), affirmed, S.W. already See, Lesmark also $75,000] [pre-accident the insurer ' e. Co., obtained agreed compensation if g., support 76 N.Y.S.2d 493 Clements v. liability 310 Mo. strengthens my opinion The indemnitor complains appears only [by is entitled to reimburse- value of the motion for new (Sup.Ct., App.Div. it was “fair and rea- However, (1925), the time of the resale either on the 419, 444-445, of] he is entitled to Rockefeller, of the amount of App.Div. 895, $80,000, (Sup.Ct.N.Y. or that “the recovery, in an affi- Lesmark’s is not re- theory sir.” 1st see 8. See General 9. See 750-51 346-347 253 F.2d 1959) ; List & Clark Const. Co. v. Mc 1958) Ala.L.Rev. 148 Liberty 581, 586, tract plaintiff,” defendant City Ct.App.1956). Rev. Glone, ance sponsibility (1949) ; ^[1964] U.S.App.D.C. 16, 18-20, Keeton, Corp. providently . 296 S.W.2d Mutual see Note, should not benefit from a con 77 A.L.R.2d 1134 v. Smith & Liability 124 n. Note, Acc., generally, 68 A.L.R.2d 868 ; Rayfield 63 Harv.L.Rev. made and Settlement, Cf. Hudson v. Ins. (1954); 77 Harv.L.Rev. Fire & Life Assur Insurance Co., Oby Co., Case paid cf. 217 F.2d Mass.Adv.Sh. v. (Mo., 67 Harv.L. 195 N.E 2d Magoun Lawrence, Note, (4th Lazarus, and Re Kansas Rehearing Banc and en Petition Rehearing by the Division

Petition 11, 1964. June Denied Kampelman and Ar- Messrs. Max M. Washington, Leibowitz, D. C.

nold H. Court), (both appointed appellant. motion for were Atty., Acheson, David Messrs. C. U. S. Q. Devlin, Frank Robert D. Nebeker and opposition Attys., Asst. U. S. on the were appellant’s motion. Judge, BAZELON, Before Chief Judg- WRIGHT, BASTIAN Circuit es. Judge.

BAZELON, Chief appeared for sen- When William Leach tencing robbery, his after conviction for judge him for he asked the refer prisoner mental examination. The said he had twice been care. lawyer His told the the last life, years, adult Leach’s entire days. prison out had been pre-sentence report characterized picture Leach “the classical psychopathic Yet the offender.” ignored request for an examination. Alleging errors, ap- Leach pealed. other errors This court held the conviction. and affirmed the harmless U.S.App.D.C. Leach But we re- 320 F.2d 670 judge to case to district manded the because reconsider the sentence the court “no indication was here * * * aids to made use of sentencing placed disposal at * * * Congress of the States. of the fact view response on the reflects no record request appellant’s of the court sentence, prior that re- examination quest considered.” U.S.App.D.C. remand, On power the trial (D.C.Code reconsid- he had 24-106), do ered the without in- further examination; Leach referred for mental vestigation any kind, particu- one; crime a serious the defend- lar, referring without repeated ant robberies; had record of judge a mental examination. The competent rein- and “there was no evidence of original any prior to, during stated the sentence.1 The de- kind or after though hearing, prior fendant no imposition had trial or of sen- sought one,2 tence, a on need for mental ex- the defendant Leach was suf- fering amination. of the sen- Reconsideration from mental illness.” absence, tence occurred in defendant’s support We think these do reasons though requires 43, F.R.Crim.P., Rule judge’s probation decision. That the presence every stage of “at the trial officer failed to refer Leach for exam an ** * including imposition of sen- judge, ination reason for the who also was not tence.” Leach’s counsel supervisory capacity is in a over the present at the reconsideration sen- officers, to fail also.4That the crime was tence, though important step this was an previous serious and that efforts at re against proceedings him. Com- collapsed habilitation had made this the pare Maryland, v. 373 U.S. White study sort of case which further was (1963). 1050, 10 L.Ed.2d 193 thought needed.5 That judge gave for competent four ad- reasons was no of “mental evidence hering pro- to the former sentence: precluded illness” should not have an max- sentencing bation officer had recommended the as examination an aid to himself, imum had not sentence treatment.6 F.Supp. Leach, v. 1. United States 5. Pronounced uni recidivism is almost (D.D.C.1963). agreed before us versally The case is upon as a re basis for summary ferring prisoner study. for psychiatric now on a motion reversal. a for See, g., (Ass’t e. C. E. Smith Di Medical Court, de- rector, Prisons), 2. After remand District Bur. of Observation Study filed a counsel June Sentencing, fense formal motion Prior to Defendants (June 1962): mental examination Fed.Prob. 6 under D.C.Code 24-106. unexplained “Persons with unusual and backgrounds recidivism, those 3. our in Leach After remand history prior a observation for mental original States, supra, could disorder, generally will be referred proceedings. not stand without further examination.” Schmidt, The reconsideration was therefore Governing Criteria the Selection proceedings which re of the criminal Examination, Internat’l of Offenders for quired presence. Cf. the defendant’s Wil 1953, p. Crim.Policy, Rev. of No. Jan. liamson F.2d 236 (U.N.Doc. p. 15 No. ST/SoA/Ser. denied, 1959), cert. U.S. M/3): (1959). 79 S.Ct. 3 L.Ed.2d 349 “The criminal af- career itself often Behrens, And see States v. good referring [for fords a prisoner criterion a L.Ed.2d 224 84 S.Ct. Thus, examination]. mental repetition special category of some crime, character the recidivism medical, incorporation psychia- 4. “The (for example, very frequent repeti- psychological tric and. services offence) tion of an or the reaction of the diagnosis program of and treatment previous punishment offender will greatest advance made in often direct attention to the offender —indeed in social all work —of the last way that will reveal the ex- need for thirty years.” amination.” Bell, Crime, Sehute & and Pro- Courts Nevertheless, judge thought raising If bation the United Leach was fully incompetency insanity, States Probation Service has not issue of psycho- sentencing, availed itself of even as late as it would have logical Pye, information. Shadoan & to order mental examination .well Preliminary Survey Snee, necessity A to avoid the of a later System, Federal Geo.U. motion. See Mock v. United Probation (6 Cir., 1964). Law Center 24 F.2d 496 “psychopathic personality, report, was: in this refusal The adamant unreliable, recidivistic, unstable, anti- prisoner mental ex for a case refer good adjust- poor prognosis social, of discretion. an abuse was amination might This psychological well ment if released.” eval make Three statutes prima exam- sufficient case available facie uation assuming arguendo But ination.8 sentencing of Co enough not, to make it was clear him to refer lumbia. The court psychological evalua- if “it the usefulness hospital for examination *** determining the sentence. court’s tion in appear shall prima facie or from observations own pro (D.C.Code) Section * * * accused that the evidence qualified psychiatrist “a and a vides mentally incom- mind or is of unsound * * * qualified psychologist” for the district pro- petent the to understand among officers, judges probation 24-301(a). and the This ceedings.” D.C.Code § carrying judge. others, He out in may the “to assist them have misled statute ** no evidence “was stated that leaves their duties.” The statute any ill- mental had judges’ defendant which the in cases the discretion thought implies the ness,” he Legal Psychiatric they which use should the always are 24-301 set pointed § conditions our for out in But we Services. pre-sentence examination. requisite for a opinion the mer herein allow 24-301 provisions recently employ other than § But to refused Court had and there such examinations to reflect This seems at all. service for order- in 24-301 than those § reasons failure to discretion. a exercise case ing In Leach’s such examinations.7 to service 51 cases were referred combined was extreme recidivism 3.9 In absence in 1962 probation aid, request and the change types major a indication investigated Leach’s officer, had courts, poor who or of cases before at background to him talked and had service, performance we were psychopathic length, offend- a called him for this sud the reason to discover a loss Jersey diagnosis the New drop The Leach could have er. in referrals. den pre-sentence Prison, this statute.10 under examined been State incompetent specific prisoner or of the found situation is cerned with the 7. If a may plead (a), incompetent mentally prisoner lie who desires to ill 24-301 under guilty. or even not restrict a basis statute did short-term But be treated spe- judges’ 24-301 to this the service until cured. Section use of committed applied Bather, generally (a) in but serv- it made the situation. cific insanity judges ba- in which on the same ice available to not limited to cases juvenile officers, in which the has failed as defense sis as to carrying pleaded guilty officers, etc., com in and his assist them “to defendant has prior sentencing undergo petency is is at fact is that duties.” The out their opinion here- of the section our first the discussion and since sue. See Lynch in, (1963), Supreme v. Over su- Leach v. United States Court using judges holser, pra, L. and are district were variety sentenc- the service to aid Ed.2d Judge ing problems. Ba- Letter to Chief recent, court, none 8. in this Pew eases Lanham, zelon from Dr. A. Chief David showing necessary have dealt with the Legal Psychiatric Services, dated (a)) (§ before under sentencing. the statute nothing in Thus March Apparently, defendants practice statute itself or the not the issue and this often raised prevented the from refer- statute to review the has not often had occasion Psychiatric ring Legal Serv- Leach to the judge. of the trial discretion course, ices. the abuse of discretion Of 673 n. 5. Legal Psy- was not the refusal to use the legislative argues particular, 10. The dissent chiatric Services but history prevents Leach’s re- §of 24—106 failure to order examination Legal making through it. which several fa- ferral under was available Psychiatric available to district cilities. Services judges, Congress apparently con- sentencing judge open ute calls for the collection of “data re Also sentencing prisoner, garding prisoner’s previous possibility delin quency pertinent referring prisoner experience, the cus- or criminal then background, tody Attorney of his General where the circumstances social complete may capabilities, physical his mental Bureau make his Prison may survey mental, health, social and and such other factors as emo- adjustment pertinent.” in a atmos- be considered 18 U.S.C. tional controlled Though 4208(c). phere.11 pro- period 6-month Fed.R.Crim.P., Rule may applicable a sen- D.C. offenses under the vides that “the court reduce Code, days opportunity after is im- sen within 60 reduce a [it] tence judge may posed.” Thus refer tence after evaluation is available study 60-day period13 for two months under Rule Fed.R. appears prognosis if for rehabilitation Crim.P. the sentence. then reduce 4208(b) of a was one Section acknowledged widely usefulness changes by statutory group Congress technique moved profound Congress interest showed opportunity [for “to make sentencing function the rehabilitative allowing by study]' a more certain”12 recognized potential of value the and judge prisoner for a a to refer Federal knowledge in psychological modern possible 2-month than legislation 6-month rather achieving re The aim.14 the 4208(b). by judges period. stat over The 18 U.S.C. from movement § sulted by study legislation process parts which was described 11. The 14. Otlier 85-752, (Pub.L. Bennett, passed Bu- Director same time V. at the James Sentencing Prisons, 845) Aug. were: before Stat. reau of provided in- on of Columbia in the District which § Institute January 30, 28 U.S.C. sentencing joint councils on 1960: and stitutes “(1) among to a The is committed other items defendant “[T]he to consider development having staff content the best for the of standards federal institution reports; diagnose presentence equipment A the case. and utilization and receipt upon (2) prisoner to be in the institution of factors the establishment study selecting special members of all of the cases for is interviewed used in diagnostic including doctor, prescribed staff, the case in observation and chap- psychiatrist, clinics; (3) worker, im- and the determination emotional, goes portance psychiatric, socio- before the full his ease lain and then logical physiological involved where it is dis- factors committee and classification bearing upon fully sentenc- recommendation and a staff in crime and their cussed special es; agreed upon. (4) sentenc- The case is then submitted the discussion again Washington ing problems in eases such where it unusual to us in trust, staff, public treason, subver- writ- our and a letter violation reviewed behavior, outlining involving sion, sex what seems or abnormal ten to the alcohol, points drugs pertinent and mental to be or he the addiction to to us to considered, handicaps; physical we the formula- kind of treatment or bring- sentencing principles criteria in and believe would be most effective tion of equi- promoting ing rehabilitation will assist about the offender’s which laws of the criminal and what we believe would be table administration sentence fitting.” of the United States.” most 4208(a), authorized § 18 U.S.O. sentencing prisoner S.Rep.No. 2013, Cong., 2d Sess. the courts in 85th may 10; News, p. Congressional become fix an earlier date when U.S.Code and eligible impose parole p. (1958). maxi- or to eligi- mum sentence and leave the time bility parole apparently discretion inter- within the It was felt that in the parole S.Rep. expanded period simplicity No. 85th board. est of hearings Cong., (1957). 2d The offenses. Sess. should be confined 'to Federal purpose testimony facili- make clear its No. the bill before Subcommittee assuring pa- the Ju- tate rehabilitation of the House Committee on possible diciary Cong., role when the 2d will be on H.J.Res. 85th stage appropriate Sess., 36, in his (1958). has reached rehabilitation. making improve disposition country sen cer- examine the tencing techniques.15 types cases; particularly ef The traditional tain medical, psychiatric, punishment fit crime where difficult to make fort sex, problem largely superseded to make or an effort rehabilitative be- pre S.Rep. fit the involved.” No. 85th treatment offender. Cong., report offi 2d in which a Sess. U.S.Code Con- sentence study gressional News, back social Administrative makes a cer history p. has ground offender recently re routine. become This apply to Since these considerations sentenced which a versed a case case, reject respectfully Leach’s we must immediately youthful after offenders two pp. 954, the dissent’s contention at awaiting pre-sentence re trial without (b) concerns of some § port. 113 U.S. Peters inapplicable. how Psy App.D.C. Legal through judge sentencing chiatric evaluation A for a D.C. through Psychiatric Services Code violation has two sources other than pre program, supra like p. 948,. Prison Bureau 24-301(a), D.C.Code report, for re tool useful from which obtain a eval sen Legal Psychiatric Services, retributive rather than habilitative uation: The not, tencing. does evaluation Such 24-106, two-month and the D.C.Code course, provide all answers study possible by Rule made Fed.R. Congress ex sentencing puzzle, but CRIM.P. But has into the first fallen criminology agree perts ignored judges desuetude process. place in the crucial even second after endorsement by Congress 4208(b). in 18 U.S.C. § appears and House plainly from This Against background neglect, (b): reports on 4208 Senate example Leach’s case a dramatic of' heavy Federal has “The Leach,, for If the need such services. caseload, and the time resources family his or had had the friends intel him available to in the determina- ability, he lectual and would financial extremely lim- are tion sentences present psychiatric been able to get frequently not ited. He does sep information directed pros- from the sufficient information Compare sentencing. arate issue of ecuting attorney, attor- the defense argu extensive evidence probation presen- ney, officer’s mitigate ment offered to report, him- tence the defendant wealthy Loeb- defendants formulate self to enable court Sellers, Leopold THE case. LOEB equitable both a sentence which is A be LEOPOLD CASE. wide difference public. and to the the defendant justice opportunities avail tween Cong., H.Rep. 1946, 2d No. 85th poor has often able to the rich and been (1958). Sess. 6 Griffin held “invidious discrimination.” diagnosis Illinois, “This observation and v. 351 100 76 extremely helpful (1956); would be L.Ed. 891 Greenwell v. United years Sentencing The last five have swelled Pilot Auspices Institutes literature, sentencing emphasis with the the Judicial Conference always study July 16-17, 1959, States, on the need to the individ the United 26 justice (1961); Special him. offender and ual mote Issue on F.R.D. 231 Bennett, Medico-Psychological See Count-Down Judicial Social Exami Sentencing, Ass’n, Offenders, 28 J. Bar 420 D.C. nation Internat’l Rev. (1961) ; Glueck, Crim.Policy, (U.N.Doc. Pre-sentence Examina 1953 No. Jan. Choosing M/3); generally, tion To Aid in No. see of Offenders ST/SoA/Ser. Treatment, bibliography Report Method 41 & J.Crim.B. excellent Criminology (1951); Kaufman, Judiciary, En 717 the House on the Committee lightened Through Improved Sentencing Procedures, Sentences Federal 85th ; Techniques, 1962) (Sept. Cong., Fed.Prob. 2d Sess. 162-65 Judge U.S.App.D.C. BASTIAN, (dissent- States, 317 F.2d Circuit ing). States, (1963); v. United Brown -, U.S.App.D.C. 331 F.2d April 25, 1963, On this court affirmed April 10, (decided robbery, conviction of Leach D.C. 22-2901, Code No. but Jones remanded the case sentence, U.S. reconsideration banc Dec. ob- decided en serving App.D.C. 169, 327 F.2d we reversed there was indication that the District Court had the trial “made use death sentence because sentencing placed of the aids to its had and considered not received the re Congress.” disposal v. before ex Leach sults a mental examination ercising U.S.App.D.C. statutory to reim discretion agreed pose capital F.2d 670 to affirmance sentence. Watson v. Cf. Cameron, U.S.App.D.C. 151, the conviction but dissented to the re- stating ju- mand, (1962).16 court has no sentencing risdiction over and that general question do not We rule certainly authority has no to direct the ordinarily appellate will not re specific in a Court exercise view within stat sentences power very which, terms, manner a utory only that maximum. hold We purely discretionary. sentencing judge should use some remand, On case reconsidered Congress provided has resources Judge Curran, originally who had sen- arbitrarily ignore and that he appellant. tenced the In a well reasoned thereby. properly the data obtained convincing opinion,1 Judge Curran Wiley, 267 F.2d 453 States v. permitted original sentence to remain Wiley, (7th 1959); United States appealed undisturbed. Leach 1960), in which 278 F.2d 500 this action and has in this filed court a appellate be first remanded Summary “Motion for Reversal.” This judge’s trial to hold cause refusal court, purporting to find abuse of dis- probation hearing, and, on second .a Court, cretion on the District hearing .appeal, had accord after now vacates that sentence. denied, ed and set aside majority opinion also United Inasmuch as too severe. See as the is so .sentence 284, (3d and, my legally Frank, mind, 288 245 F.2d broad to so incor- States v. Cir.), denied, rect, I cert. 355 78 S.Ct. feel some U.S. comment the views ; necessary. (1957) expressed 2 L.Ed.2d 35 United States therein is shall by Cosentino, v. 575 with deal each the statutes stated colleagues 1951). my authority to be for the granting evaluation, be set aside The sentence will they be an non-use of which hold abuse to grant directions to remanded with (cid:127)case the trial discretion judge.2 request for ex- a mental defendant’s 24-301. D.C.Code § re-sentencing, . animation before proceedings pertinent part further in ac- (cid:127)conduct this section reads: opinion. with this cordance “(a) person is arrest- Whenever a charged by ed, indicted, infor- So ordered. [or] a stat 16. In Watson the court confronted in need madle available a case where the leaving in the broadest discretion ute for their use is dear. judges. the trial D.C.Code Leach, F.Supp. States v. court in order to serve But this (D.D.C.1963). justice efficient ad “the ends of and its majority’s minimum ministration” established Leach was The dictum that application. present standard for the statute’s at the entitled to be with counsel Here, pursuit ends, we of the same time of tence, following of the sen the reconsideration though remand, has hold that the trial is untenable. sentencing, may Corey not broad discretion ignore Cf. 375 U.S. Congress facilities 11 L.Ed.2d 229 * * * report pre-sentence was not sufficient for or mation opinion imposition His not that of and, prior was evidence. to the offense opinion appear expert, and is settled that it shall it of sentence laya insufficient witness is own evidence from the court’s court prima prima that a defendant observations, facie to establish or from fade incompetent require court, mentally so as to that submitted evidence The fact mind or is commitment examination.3 of unsound the accused mentally incompetent probation be himself did not as to that the officer so proceed- that be referred recommend Leach to understand unable properly ings against to as- indicated his actual belief examination him incompe- mentally appellant defense, court was not his own sist Jersey Also, reports may tent. of the New committed accused oi*derthe Prison, compiled nine and twelve General of Columbia State the District hospital here, years prior appellant’s trial Hospital mental or other court, designated by such would be of or no value little may establishing purpose prima period as the reasonable fade showing ob- his condition at this. mental for examination determine ** analysis, time.4 final and as stated servation appellant the time of counsel for at effect, Judge held, District prima sentencing, no there was facie appear own to him from did thing was, showing there “the prima observation, nor was there facie According prior was recidivism.” appellant unsound showing, was holdings court, alone recidivism “mentally incompe- he was or that mind granting require is insufficient understand unable to tent so as examination.5 properly against proceedings him or defense,” therefore, statute, and the in his own to assist On the basis of Certainly finding justifiable of im- that view. record sustains can be proper officer trial of discretion comment exercise case, proce companion during pre-trial v. Beh United States criminal counsel rens, L.Ed. 84 S.Ct. of those cases The concern dures. Rosanc, (1963); rights protection v. United States an accused 2d 224 fearing (3rd case, capital F.2d 487 in a step every opinion “[The first stated: This court’s “counsel without proceedings *** against accused] remanded to the case] [the should be danger sen be Court reconsideration conviction he faces tence. It be that on reconsidera how to establish he does not know cause previously imposed [Emphasis supplied.] tion Ms innocence.” F.2d at 673. L.Ed. will be undisturbed.” U.S. at 82 S.Ct. Judge remand, [Emphasis supplied.] 114, quoting Alabama, On Powell 2d carefully 45, 69, 55, has 158 Curran stated: “This court S.Ct. 77 L.Ed. U.S. 53 imposed, where, apply (1932). reconsidered suggested as sentence cases not Those do already appellate here, court. as the accused imposed moreover, present and, [T]ho sentence heretofore convicted original this court will be disturbed.” 218 counsel at the time of sen with F.Supp. [Emphasis supplied.] seriously tencing. at 274. It cannot contend therefore, manifest, properly is the status of a It that one convicted crime ed right of the case remand was one of an has a to a sentence other than the subject modification; existing imposed course, (assuming, of sentence one original imposed va sentence had not been within the limits the sentence is cated, Judge’s by statute). and the decision allowable way imposi can in no be construed as an Neely States, U.S.App.D.C. 3. 80 United tion of a new sentence. 187, 977, denied, 150 cert. 326 U.S. (1945). 59, Maryland, Both White v. 373 U.S. 768, 166, 66 S.Ct. 90 L.Ed. 463 1050, (1963), 83 S.Ct. 10 193 L.Ed.2d Ibid. 52, Alabama, Hamilton v. 368 U.S. 157, (on (1961) States, U.S.App. 82 S.Ct. 7 L.Ed.2d 114 5. Williams v. United 114 premised), 135, (1962). which the White case was D.C. 312 F.2d 862 Com right pare States, dealt with an accused’s Blocker v. 110 U.S. United

953 judge,6 consequently clear, permit makes correction of an illegal grounds vacating sentence, provide im the sentence not to re-exam- posed. prior proceedings ination of other imposition fact, of sentence.7 In 35 Rule Fed.R.Crim.P. presupposes a valid conviction and af- provides: 35 Rule procedure bringing fords im- an illegal may “The court correct proper (e. g., sentence excess of one any The court sentence time. statutory maximum) conformity into 60 sentence within reduce a addition, law.8 In the rule imposed, days is after the sentence vests the trial court with broad discre- receipt by days or within 60 after tionary powers to with- reduce sentence upon the court of mandate issued days imposition.9 in 60 of its Inasmuch judgment or dis- affirmance imposing as the of a discretion appeal, or within 60 missal of the virtually long is so sentence unassailable days receipt of an order after statutory denying applica- is Supreme within the Court limits,10 of certiorari.” tion for writ use the discretion involved power or such non-use of the to reduce narrow It is well established wording is, equally as its function of 35 a sentence is at removed Rule least 41, specifically providing App.D.C. under statutes F.2d 853 (2) pre-sentence examinations, Penal Code 4.01 mental see also A.L.I. Model 1962, May Draft, 4, Hendricks, (Proposed United States ex rel. Elliott v. Official Meeting 922, adopted (3d Cir.), Annual 213 F.2d cert. the 39th 1962). Institute, May, 851, 77, denied 348 U.S. 75 S.Ct. 99 L.Ed. the American Law majority opinion, (1954); Patskin, states: Commonwealth v. judge gave 368, ad- four reasons for Pa. “The A.2d 472 pro- hering former sentence: 424, 430, States, 7. Hill v. United 368 U.S. maxi- had recommended bation officer rehearing 417, 82 S.Ct. 7 L.Ed.2d de himself and had not mum sentence nied, L.Ed. * * * Leach for a mental referred (1962); States, 2d 556 Redfield v. United n examination; a serious the crime was 1963); 315 F.2d 76 Cir. (cid:127)one; re- had a record the defendant Crosby, (2d States v. 1963); 314 F.2d 654 Cir. robberies; peated was no com- and ‘there States, Simmons v. F. petent any prior to, dur- evidence of hind (3d 1962); 2d 71 Cir. Green v. United ing prior im- after trial or States, (1st 1960). 274 F.2d 59 sentence, position defendant existing Rule 35 was a codification of suffering any ill- mental Leach was law and was intended to remove doubt ness.’ ruling created United States v. sup- reasons do not “We think those Mayer, 55, 67, 235 U.S. L. 35 S.Ct. port judge’s decision.” (1914), jurisdiction Ed. 129 about the majority saying words, illegal a district court to correct an sen justified Judge that a District is not expiration tence after the of the term at denying request examina- for mental which it was entered. Heflin v. United (1) a recidi- tion where 358 U.S. 79 S.Ct. crime, (2) the vist probation of a convicted serious (1959) (concurring, opinion). L.Ed.2d 407 a maximum officer recommends referring Morgan, him for a sentence without 8. United States v. 346 U.S. examination, (1954) ; the record 74 S.Ct. 98 L.Ed. 248 of evidence of mental illness. devoid Cook v. United majority (1st Holiday is incor- statement Cf. v. John ston, 1015, rect. 313 U.S. 61 85 (1940); L.Ed. 1392 Lockhart v. United States, 6. Cf. v. United Wheeler 82 U.S. States, 122, (6th 1943). F.2d 124 136 Cir. App.D.C. 363, 366, 225, 165 F.2d 228 (1947), 829, cert. denied 333 U.S. 68 S.Ct. States, 66, 9. See Yates v. United 355 U.S. 48, (1948). Accord, 4 92 L.Ed. 1115 72, 128, 78 S.Ct. 2 L.Ed.2d 95 Burdette, F.Supp. United States v. 161 (E.D.Mich.1957), Blockburger 10. 254 F.2d 610 aff’d (6th 1958); 299, Pescor, 305, 180, Cir. McIntosh v. 52 S.Ct. 76 L.Ed. 306 (1932) (quoted (6th Illustrating 25) ; the note Boern infra gen 326, broad discretion vested in the trial First, interference, opinion,, in if not as noted our earlier appellate more per- apply does not to U.S.C. § 4208 so. charged sons with or convicted of- of however, point majority, out The the Columbia- fenses of provided be period Rule 35 the having- that, It follows Leach Code.12 study pris- used for 22— under D.C.Code been convicted § purpose a informed of more for the oner application here. has resentencing, non-use hold that the and Second, analogy “technique” to contributes 4208' novel of this the between § part of the of discretion on the abuse which and the asserted force of Rule sentencing judge. statutory pro- incorporate to the said discretionary 60-day pro- into justify position, cedures the attempting its to Rule, is at best'.. vision of the tortured majority U.S.C. construes the wording legislative his- Both and (b)11 Con- anbe to “endorsement tory 4208 indicate of the entire section gress” of procedure the referral of primary the- its with pre-sentence concern prisoner exam- and', length sentences, disparity suggests Rule ination under of encourage clearly required uni- intended to “endorsement” force formity parole in sentencing judge determination meth- to follow this eligibility Putting at time of sentenc- dates matter od aside here. ing.13 (a), using trial Under subsection judge’s Rule discretion trial may designate- discretion, majority’s court, precludes feel period, position to the- holding point, a minimum exceed on this which; sentence, wholly at end majority maximum untenable. is otherwise 11. 72 Stat. 845 12. 22. judge tencing leaving parole eligibility Board of Parole. Thirdly, ity one-third maximum term ment. The and at 4-5, term present, eligibility the tory case histories and ous the committee that an examination Sess. 9 86-624, cate that S.Rep. trative HR. 320 F.2d at “Section 3 “This “The date would be parole eligibility U.S.Code limits. chronic maximum. Or he could set with alternative News, p. Rep. No. (1958): the same time convicted offenders procedure by fixing he could set set both proposed date specify widespread 1964) 13(c), of the bill would * offender No. Congressional falling up ** ; court-imposed that the July 12, the maximum term and the maximum cases cited in the case of a seri- n. 85th could sentence as amendment, court statistics ” determined 4; date disparities procedures in sen- would specify Cong., 85th Public Law at one-third statutory parole eligibil- the maximum and Adminis- : permit provide time the statu- infra maximum. Cong., imprison- term 2d 74 Stat. together eharac- parole up Sess. limit indi- note any No. 2d at Resolution many years prisoners ment often after termining nate administrative parities too should They release tinct apparent tered attitudes Sess. evenhandedness of wide amendment Prisons court with enable it to Prisoners must eral end of court, executive branch terize tbe sentences now H.R. “The “The respect these cases such ^[*****] long judges. threat they (1958) result at its actually dates are relatively Rep. purpose disparities conflict with the proposed nature. must be retained how optional 424, represent produces could be too short for their of impose discretion, (sec. 3) in sentences which pointed Conference No. * * groups they serve. provisions study long often reached. short law. justice This responsibility procedures amendment, casts doubt public still the time sentences hardened and embit- prolonged imprison- by safely * out and period terms when * principal will judicial imposed by represent 85th The Report released at the public interest. that such dis- share with the- safety. by * * released House provide discourages permit prison mandatory product Bureau of indetermi- which will' Cong., purposes.. upon existence law, ” together for de- may be- 2-3: Senate- a dis- Other Joint Fed- long per- it is and, the- 2d * * prisoner eligible parole. will be the [Empha- scribed law for alternative, court, again supplied.] the the sis may discretion, impose the maximum Under this subsection the is to specify prisoner’s the term furnished, be months, within three com- n eligibility parole will be determined plete report prisoner by on the the Direc- "by parole board. Prisons, tor of the Bureau of at which may, time the court in its discretion (c) provides Subsection if the “(1) prisoner prisoner proba- Place is of two on sentenced either ways provided (a), tion as the Di authorized section 3651 of subsection title, this or of completestudy rector the Bureau of Prisons will con affirm the sentence imprisonment prisoner originally imposed, duct of the parole imprison- sum reduce the .furnish board with a sentence of ment, findings. mary commit the words offender under any Bogart applicable provision of the court in Van De law. * # * (5th States, ff 1962): face, On its as well virtue of its study purpose of such [un- “[T]he legislative history, this subsection also is specifically 4208(c)] con- der § primarily length concerned with the suitability ‘determining fined parole sentences and the determination of ” parole.’ [Em- eligibility. is no While there indication phasis supplied.] congressional in the consideration of the juris- provisions, therefore, measures, Under these nor decided cases discuss- determining parole ing (cid:127)diction dates point, some writers and individ- n vested board, judges parole ual hav- sentence felt that under § (b), ing already prisoners pronounced.14 may Conse- also be referred for study any type quently, no order to “endorsement” determine whether n pre-sentence hospitalization ex- court-ordered rather than imprisonment major- can amination be derived indicated15 The ity here, however, state that the statute. virtue authority sentencing judge of a (b) provides: Subsection pre-sentence psychiatric to refer for eval- “If de- 4208(b), per- desires more uation also under Rule 35 fact, (in requires) tailed information as a basis de- pro- mits the same termining my im- mind, sentence be To cedures. inference is posed, sequitur. commit the Perhaps the court non charac- n defendantto the custody of At- teristic common to both Rule 4208(b) and § torney General, discretionary which commitment is their nature. Clearly suggesting shall for the maxi- many be deemed some dis- imprisonment pre- mum 4208(b) sentence tinctions between and Rule 35 fixed ¡served -of (cid:127)embody See also Federal Report cluding visions of average longer Testimony sons “It should be criminal system.” associated legislation to the House Committee under disparities. softening submitted justice ¡ft Senate than emphasized indeterminate proposed legislation, with the administration Sentencing Procedures, disclosed ¡:t of criminal amendments, do terms ¡f: * hearing problem under sentences penalties. do not terms ^[*] pro- in- on 14. Cf. Rivera v. pp. Disparity 1958). the United on Judiciary, auspices 92-94, 98-99, cussions of the Seventh and See, October 434-442. of the Judicial of Sentences example, 85th Eighth Seminar and Institute Cong., Judicial 30 F.R.D. (Committee 2d Sess. reports Conference Circuits, 401, esp. and dis 16-25, Sixth, Print held on judge Supreme language in in own behalf is of most his Court is the * * * ”16 importance. [Empha- Behrens, supra note United States supplied.] S.Ct., U.S., sis at 296 of 84 p. of 375 224: 11 L.Ed.2d agree 4208(b) and § cannot that in such a fashion Rule are related (b) using point § “The whole procedures of are attributa- that the one get language, is, to ‘more in its own other, to the that such infer- ble ence, nor as basis information detailed determining pro- logically proper, if could even im- to be the sentence finding for a of abuse vide a basis * * sup- (Emphasis posed *.’ discretion in this case. only plied.) after the Director It is his makes of Prisons Bureau D.C.Code § final report makes its the court that provides part “a This statute sentence to what decision qualified psychiatrist psy- qualified and a of the Federal Rule 43 will be. chologist shall avail- whose be services specifi- Procedure Rules of Criminal * * * cases, able to In criminal cally requires be defendant that the * * judges of the district court every stage present of the trial ‘at coxrrectly * * majority observes that including imposition of * * discretion of the statute leaves to the that is true *.’ It sentence judge trial shall when such be services provides a de- same rule majority However, posi- employed. required presence is not fendant’s judge’s of this tion that the txdal non-use is reduced under his when sentence consti- “available this case service” sen- a reduction 35. But Rule tuted an of discretion is unwar- abuse quite is tence Rule 35 under different contrary ranted, unpx*ecedented, and to determination final wording intent of the statute (b) is to what sentence § 4208 itself. power of Rule 35 refers be. originally enacted a sentence 24-106 was court to reduce Title every by Congress already re- final in of an om- become 195317 as finality of spect. is no such nibus bill for the District There crime preliminary initially 4208(b) enacted, sec- Columbia. As § 4208(b) psy- tion and made available § commitment. The use established postpones psychological final sen- to action as chiatric and services using “(1) px-obation ; by district section officers tence municipal studies to await court and the court decides background, to repoi’ts In 1954 section amended18 of a defendant’s etc., health, (originally physical to make intended services making up only offi- for the assistance assist cers, Department final sentence of Corrections mind as to what Parole) It then Dis- shall be. the Board of available judge's spoken judges19 cases final words trict Court those few pre- punishment is fixed. where a desires enter a the defendant’s defendant right guilty plea of the de- trial and the enter- It then that opportu- afforded tains some doubt fendant nity defendant competent mentally do to make statement so. That August Suggesting differences between 16. further 18. Act of 68 Stat. 4208(b) is the and Rule 35 18 U.S.C. ch. Corey v. decision in Court’s supra passed in re- note 19. Tho 1954 amendment was sponse request by com- a committee prised judges ch. 17. Act and other of June 67 Stat. of District Court officials, including responsible § 405. Attorney the District of Co- States lumbia. psy- this “Unless of the restrict- the services was enacted amendment psychologist unquestionable.20 Ironical- chiatrist and au- purpose the ed by part sparingly greatest of ly, on thorized section 405 hesitation the the by judges, Congress passage of this amend- used the district primary purpose psychiatric the the for which that the ment was concern upon personnel much section was will been too enacted would be called * * *” S.Rep. by judges that, a defeated. No. as conse- trial by Cong., provided quence, the 83d 2d Sess. the services unduly 1953 Act diverted would be Report And the House states: whom the Board and others Parole of members “Several originally words it was intended. that, if bill were committee felt Report: of the Senate language pro- to include the amended by posed assured attor- committee States “The judges might ney, would be some abuses. that the district judiciary personnel as author- of Co- of the District use the medical only by limited of a bill lumbia assured the members ized cases, provisions cases of this such as that of committee number accepting plea where, of with ex- would be before bill administered judge guilty, was in fairness This assurance feels treme caution. of House advised accused should be made the members by capacity ac- of the chairman Committee the mental District handled which of the subcommittee cused. Cong., got officer, Rep. probation Sess. which No. 2d to the H.R. 83d guilty plea (1954): of or con- would mean viction, himself, District of Co- on the that “The Committee if appeared lumbia, bill man be- referred the where a to whom was a case by (H.R.9077) it seem- 405 of him his action to amend section fore possibly he was Law Enforcement ed to indicate that District of Columbia exactly normal, to en- he wanted to make available Act of judges plea guilty than and rather of such District ter a having of through provided go psychological elab- services rather having couple having section, procedure considered orate such favorably appointed same, report psychiatrists without order thereon type case, court, bill in that amendment and recommend the judge psy- pass. call on the do himself would H. R. 9077 legislation provided purpose psychologist was of this “The chiatrist out, help Leo A. in rather Hon. act to forth a statement under this set attorney fairly simple Rover, for the examination States very hearing Columbia, man; tell before could then the Subcommittee, quicldy or not the man of this commit- whether the Crime plea tee, sufficiently herewith to enter a on which is normal June report. guilty. made a of this only purpose provides that the Com- is the “Section 405 “That psychia- appoint a it will not shall amendment. We feel that missioners psychologist Parole whose serv- know that the and a abused. We trist available, among other services of these would be Board needs the ices probation pretty badly, people, people officers of and it is gap just courts a little the District Columbia fill judges court, municipal happen certain to be and to felt —and Congress agents the Parole if the like committee—that other District good enough to amend would be Board. up saying simply the services “A was set headed committee court; judges Youngdahl Judge of the district be available to the would court, judges it were on and the 1 or 2 of the district they District, the mu- citizens and of our officer and some give court, nicipal would us a that it would to the conclusion came he sup- very [Emphasis very, helpful step in a certain little forward.” cases, if, plied.] instead number limited judges having until a case to wait psychiatric] bill, con- stated [a he read evaluation” to be in which sentencing “a to him available to a of a addressed letter tents actually ap- Dis- violation” not United States D.C.Code the a member propriate Co- the District of the mental examination Court trict H.R.Rep. 1816, majority 83d No. which the feels should have lumbia.” granted appellant. Cong., this As we 2d have Sess. seen, inapplicable Rule 35 is since it is intent, Contrary congressional to the acknowledged that the sentence was not complete disregard of the assur- and in illegal, judge’s and the trial discretion to Court and others ances the the not reduce was exercised. sentence implies Congress, now that court Furthermore, unambiguous purpose judge, request compels on a 24-106 § of the of D.C.Code enactment § defendant, him to refer aof convicted inappropriate. that renders statute prior to sen- for a mental examination directing tacitly tencing. fact, effect, admitted court is In of the In view act a manner prima majority District Court opinion, no that facie Legal certain to the efforts divert made, showing under 24-301 was there proper Psychiatric func- Service justification for the hold- no seems Congress not left tion. Not has ing to review here other than a desire personnel purposes for the Service which imposed in the District the sentence open District Court are available history Ignored 73-year is Court.21 speculation, intent it has indicated holding undeviating precedents federal overreaching flatly contrary view power appellate has that an court majority. modify of the ac- a sentence.22 view therefore, case, clear, It that in this the statement seems tual result ** general question rule that do not from which to obtain “We

“sources May 14, States, U.S.App. 1963, when tke trial 117 motion” on judge 21. Jones v. United original (1963), 169, sen- determined that F.2d 867 cited 327 D.C. majority, inappEeable here. not be disturbed. is tence would ease, presented narrow issue was that intervening congressional federal “If there is one rule the effect of firmly practice legislation prior mandatory estab death criminal on appellate lished, imposed court 22- that under D.C.Code reimposi is with no control over sentence which 2404. We that observed Emits a statute.” Gu tion of the aEowed death sentence 338, pend States, 340- rera v. United 40 F.2d “came without consideration of the (8th also, g., ing e. 341 Cir. motion for a mental examination. 2, Baysden, motion, F.2d 629 That file since States v. 326 on October United Anderson, complete 1964); 1962, (4th Epperson mental Cir. had ‘for v. asked n examination 122, U.S.App.D.C. sup 326 F.2d 665 time.’ It 117 at this States, ported by (1963); Ellis v. 321 F.2d unrefuted affidavit of United 1963); Rogers 931, (9th appellant’s It is our conclusion 933 Cir. v. sister. States, (5th stake, since life on 304 F.2d 520 Cir. was at United 1962); Sohnen, 19, not 280 October 1962 should have acted United States v. F.2d (cid:127)upon (2d 1960); reduction of sen 109 Cir. Roth v. United motion Cir.), adequate States, (2d de tence F.2d cert. without consideration 255 440 appellant’s nied, 819, 31, 3 information 358 U.S. S.Ct. L.Ed. as 79 n condition (1958); States, possible lack of mental com 2d 61 Flores v. United petency (9th 1956); Brown that date.” F.2d at F.2d 758 v. 327 238 872-873. United F.2d 293 Rosenberg, 1955); There is no death sentence involved United v. States 583, (2d present case, Cir.), denied, nor cert. statute intervening sentencing L.Ed. since the time U.S. S.Ct. indicating change L.Ed. 344 U.S. statute imposed. which the More- L.Ed. 652 sentence was 344 U.S. 73 S.Ct. n over, perhaps Berg critical, petition- (1952); more v. (9th Cir.), denied, (un- er’s motion 122 876, for mental cert. examination (cid:127)supported affidavit) by any (1949); was filed 70 S.Ct. 94 L.Ed. 537 n June Ward, (2d “pending was not 173 F.2d 628 States weigh ordinarily decide, appellate capacity will not re- must our are within the statu- appellate view permit sentences as an does tory redemptive maximum” has little judgment substitution our value. Congress given the trial court.25 has not colleagues agree my power sentences,26 I us the I to review sentencing not be of criminals should power. do not think we should wholly predicated on con retributive sentencing judge, who has heard cept, think that it not be but also should crime, details of the has observed the de purely to rehabilitative ends.23 limited range, fendant at who close is not including considerations, re Additional dependent printed record, on a mere is in protection formation, deterrence, and the position a better to of the matter public, must also of are factors which appellate however, than an It regarded.24 these, court. All of be trial which the are considerations should be also that the Dis- remembered States, 1949); York, Also, v. 84 Cir. Beckett United v. Williams New 337 U.S. (6th 1936); Scala v. Unit F.2d 731 Cir. n. 69 S.Ct. 93 L.Ed. States, (7th 1931); ed Cir. States, (9th 3 F.2d 1021 Smith v. United Blockburger States, United 1925); States, Carpenter v. Cir. 299, 305, 180, 182,. L. 52 S.Ct. (4th 1922); Wallace v. 280 F. (1932), Supreme Ed. Court ob 243 F. 300 served; circumstances, “Under so far only penal disclosed, imposi 23. “A that code reflected it is true that single principle very penalty basic would be a of tion the full fine of and im purposes prisonment upon never bad one. Social single can each count seems un been; simple, unqualifiedly duly severe; may or held but have purposes; of all other social exclusion other facts and circumstances before the influencing properly can and an effort to make them so only result trial court the extent punishment. any event, of other sacrifice values of the the- * * * important. court, are also matter was one for with problem, accordingly, judgment is one of “The whose there is no warrant priority relationship purposes part.” interference on our is; legitimacy majority as well as to multi- their That feel “Leach’s ease —of single-valued example rather than think- valued a dramatic of the need for such ing.” [psychiatric] services” would indicate- Hart, Law, personal disagreement The Aims the Criminal with the- Contemp. Judge’s views, hardly appro- Law & Prob. 401 District priate vacating sentence, basis for See, g., Judge e. the remarks of Kauf- clearly ground predicating- not a man, at the Judicial Conference part an abuse of discretion on the of the- Appeals United States Court for the sentencing judge. Circuit, September 24, 1962, Second F.R.D. 258-259: 26. In Gore v. United 357 U.S. “ * * * sentencing decision seeks 78 S.Ct. L.Ed.2d accomplish objec- (1958), Supreme one or more of Court said: effect, tives of criminal sanctions: ‘rehabilita- “In we are asked to enter the- penology, particular- tion convicted into offender a non- domain of and more society; ly tantalizing aspect it, criminal prop- member of isolation of society prevent apportionment punishment. the offender er What- during period regard- criminal conduct ever views be entertained confinement; ing severity punishment, deterrence of other mem- whether one- community might efficacy futility, bers of the who believes in its or its * * * questions peculiarly tendencies criminal toward conduct simi- these are of" (secondary legislative policy. lar Equally to those of the offender so are the deterrence), problems relating and deterrence of offend- much mooted to the- release; community power judiciary er himself after to review sen- English condemnation or the reaffirmation of so- tences. First and then the- purpose Appeal norms cietal for the of main- Scottish Criminal Courts of were taining respect themselves; given power sentences, pow- for the norms to revise power and retribution or the satisfaction of the er to increase as well as the to« community’s punish emotional desire to reduce them. This Court has. ” power.” [Emphasis supplied.] the offender.’ no such tion, let me Judge add the bar this benefit of had the here trict report.27 al- pre-sentence court and the District Court has probation officer’s great ways responded, at sacrifice on Judge in ease I think great ability, their many duties, I am afraid fulfilled requests by the courts thousands example disposition present indigent represent defendants. judges applying ideas own appellate their ought be, what and not of what the law is. the law

I dissent. TO DISSENT

APPENDIX original opinion majority whatever no reference case contained addition, “invidious discrimination.” CORPORATION, Appellant, OIL GULF original opinion slip page among reference, to make been amended abil- things, “financial to Leach’s REED, Ernest E. As Administrator Loeb-Leopold Dwight Reed, Deceased, ity” case.28 K. Estate of and to Appellee. ma- post-decision inclusion This completely jority extraneous is so 17889, 18259. Nos. following Since, this require no answer. Appeals United States Court original remand, sen- court’s earlier District of Columbia Circuit. hear- and no was left undisturbed tence Argued ing had, finan- of Leach’s Jan. 1964. the matter ability “psychiatric or other offer cial May Decided presented itself. information” never this, particularly Further than opinion,

unfortunate, my to indicate language suf- Leach used that ability.” of his “financial fered because benefit, had the is not the case. He Such here, appeals on his two in his trial and diligently protected counsel, who able certainly interests; Clarence kept (who defendants Darrow Loeb-Leopold from the electric case

chair) than no more could have done for Leach—all

did counsel this ease compensation, in the best without our

traditions of bar. connec- Judge’s their Moreover, needs condude tlie District trists way help, precludes institution ex is sent here (Dr. Springfield, and, necessary, psychia Set the warden where amination if tle) psychiatrist.” prisoner. 115 U.S. As is himself tric treatment pointed App.D.C. my “un earlier dissent: out system prisoner, prison der the federal upon proc prison, his arrival is first classify which refer- him 28. The amended material essed weeks in order to page is made is contained ence here rehabilitation determine what report. and, specifically, men whether called psychia If tal treatment is needed.

Case Details

Case Name: William R. Leach v. United States

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

Date Published: May 19, 1964

Citation: 334 F.2d 945

Docket Number: 18198

Court Abbreviation: D.C. Cir.