BIRNBAUM v. U S - 394 U.S. 922 (1969)
U.S. Supreme Court
BIRNBAUM v. U S , 394 U.S. 922 (1969)
394 U.S. 922
Saul I. BIRNBAUM
Supreme Court of the United States
March 24, 1969
Rehearing Denied April 21, 1969.
See 394 U.S. 994.
Harold F. Reis, Edward P. Taptich and Alan M. Dershowitz, for petitioner.
Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg and Edward Fenig, for the United States.
William J. vanden Heuvel and Charles D. Moerdler, for St. Augustine's Episcopal School and others, as amici curiae.
On Petition for Writ of Certiorari to the United States Court of Appeals for the Second Circuit.
The petition for a writ of certiorari is denied.
Mr. Chief Justice WARREN, with whom Mr. Justice DOUGLAS joins, dissenting.
This case raises troublesome issues concerning the federal sentencing process and its impact on the exercise of appellate rights, issues I believe we should confront because of our duty both to enforce specific congressional commands and to exercise our supervisory power over the lower federal courts.
The sentencing problems involved here arose after petitioner was convicted in the United States District Court for the Southern District of New York on two counts charging him with having conspired with others to bribe, and with having bribed, an Internal Revenue agent. At the sentencing hearing, the district judge noted that petitioner, who continued to maintain his innocence, was appealing his conviction; the judge therefore declined at that time to explore the relevant aspects of petitioner's character that might be taken into con-
sideration in imposing a final sentence. Instead, the district judge imposed a 'tentative,' 'for the present' sentence of one year, promising to reconsider the sentence after appeal and stating that he 'might' grant probation if certain conditions were adequately fulfilled. The district judge explained his imposition of the 'tentative' sentence as follows:
Mr. Justice MARSHALL took no part in the consideration or decision of this petition.
- 'However, now is not the time to explore that phase [i. e., exploration of the 'factors that might be considered in mitigation of sentence'], for you have not accepted the jury's verdict and faced up to its import. You protest your innocence and you are on your way to appeal. Certainly that is your legal right.
- 'For the present, then, in the light of your frame of mind, let me just add that if your conviction is sustained, this Court might, and I emphasize might, upon an impressively convincing showing that you have realized, or rather realigned your sights and devoutly wish to give a hunk of yourself as well as your wealth in doing with c nstancy those acts which will really help your fellow Americans and at the same time enhance your personal well-being immeasurably, I will say this Court might consider ... a program of rehabilitation without confinement. ...'
Interpreting the District Court's comments to mean that probation would be granted if the court's suggestions were followed, petitioner requested advice as to his proper course of action from a New York State judge, who had been referred to in the District Court's sentencing remarks as a person who 'still believed in' petitioner. The state judge, in turn, contacted the district judge, informing him that petitioner was having difficulty understanding how to comply with the sentencing suggestions. The district judge responded: 'Why don't you guide him? You have had a great deal of experience [394 U.S. 922 , 924]