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-
Page 394 U.S.
922 , 923
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
Page 394 U.S.
922 , 924
in charitable endeavors. ... If you want to help him, why don't
you act as his unofficial probation officer ...?' Agreeing to do
so, the state judge introduced petitioner to three New York
charities, the list of which the district judge approved. For the
following 18 months, petitioner became deeply involved with the
three suggested charities and others as well, contributing a great
deal of his time and over $100,000 in personal funds. When the
state judge reported to the district judge at an informal social
occasion how well petitioner was progressing, the district judge
replied, 'That's good, that's fine.'
When petitioner's case was argued on appeal to the Court of
Appeals for the Second Circuit, his counsel made some strong
attacks on the district judge's conduct of the trial and his
comments and instructions to the jury. After the conviction was
affirmed, petitioner moved for reduction and suspension of the
tentative one-year sentence under Rule 35 of the Federal Rules of
Criminal Procedure, arguing that he had fully complied with the
suggested conditions. After 'long and careful consideration' and
'reflection seemingly without end,' however, the District Court
declined to reduce the original sentence. Another district judge
then denied an application for probation by way of a writ of coram
nobis. These rulings, denying the writ and the Rule 35 motion, were
consolidated and affirmed on appeal to the Court of Appeals.
Certiorari should be granted, I believe, for two reasons that
are inescapably clear from this record: (1) the district judge's
imposition of a 'tentative' sentence clearly violated the
principle, inherent in 18 U.S. C. 4208(b) and our decisions dealing
with that statute, that a defendant must be given the option of
waiting until the tentative sentence becomes final before appealing
his conviction; (2) the district judge's refusal to suspend
Page 394 U.S.
922 , 925
sentence, after petitioner fully complied with the conditions
laid down for such suspension, is inconsistent 'with that
regularity and fairness which should characterize the
administration of justice in the federal courts.' Saldana v. United
States,
365 U.S.
646, 647d 855 (1961).
I.
I think it implicit in our rulings in United States v. Behrens,
375 U.S. 162, and
the companion case of Corey v. United States,
375 U.S. 169, that a
trial court's sentence must be final in every respect before an
appeal need be taken, and that a district judge may impose a
tentative sentence only if he follows the limitations and
safeguards of 18 U.S.C. 4208(b). Section 4208(b) specifically
provides that a trial judge can impose a temporary sentence which
'postpones action as to the final sentence' for the purpose of
obtaining more detailed sentencing information, United States v.
Behrens, supra, 375 U.S., at 165. But we have ruled that if a trial
judge proceeds under this statute, the defendant, once informed of
the trial judge's intention to do so, can choose to note his appeal
either at the time the temporary sentence is imposed (to take
immediate advantage, for instance, of bail rights), or after the
final sentence is imposed, Corey v. United States, supra, 375 U.S.,
at 175, 84 S. Ct. at 303. One of the reasons for allowing the
defendant the discretion to defer the appellate decision until
final action is taken at the trial level was pointed out in Corey
v. United States, 375 U.S., at 175, and is particularly applicable
here in view of petitioner's virulent attacks on the trial judge on
appeal: 'a defendant might think, rightly or wrongly, that the
trial court's knowledge that an appeal had already been taken might
adversely influence the court's discretion in imposing final
sentence.' Such a worry on a defendant's part might well inhibit
him from exercising his appellate rights altogether, or
Page 394 U.S.
922 , 926
from making certain arguments once he has decided to take an
appeal.
It is no answer to say that petitioner acted precipitously in
going ahead with his projected appeal after the trial court imposed
its 'for the present' sentence, for the court indicated that it had
no intention of making a final decision until after the appeal was
concluded, thereby depriving petitioner of his option under
4208(b). As it was, petitioner had cause to believe that he had
been given conditional probation, a 'final' sentence that would
stand if he followed the conditions, and that he had better appeal
then or be out of time before the Court of Appeals. Certainly the
record is fairly susceptible to such an interpretation, and surely
petitioner was entitled to the protection afforded by 4208-that
exercise of appellate rights would not result in a heavier, prison
sentence. And even if the trial court's remarks are interpreted, at
the other extreme, as imposing a one-year prison term, surely
petitioner should have to serve only that sentence, without the
added restraints imposed on his time during the 18 months while the
appeal was pending.
Thus, no matter how the district judge's sentencing remarks are
interpreted, he exceeded his authority under 4208(b). If the
district judge was imposing conditional probation, he erred in
revoking the probation after petitioner had fully complied with its
terms; and if the district judge was imposing a one-year prison
term, he had no authority to extract, in addition, a lengthy period
of probation. Moreover, as I have noted above, petitioner was
justified in making the first interpretation. He was equally
justified, I think, in viewing that interpretation as final to the
extent that probation would be withheld only if petitioner did not
comply with the conditions, and not if the district judge happened
to change
Page 394 U.S.
922 , 927
his mind for reasons known only to him and based either on
factors of which he was aware all along or on the nature of
petitioner's appeal. For it is clear that the district judge had
before him all the necessary sentencing information, which he
should have explored at the time; he therefore did not need to
resort to the temporary sentencing device to obtain 'more detailed
information'-the 'whole point of using section 4208( b),' United
States v. Behrens, 375 U.S., at 165. The charitable device used
here instead to test out petitioner's rehabilitation is simply not
within the purview of 4208(b).
II.
The District Court's 'wait and see' charitable experiment was
not just a violation of rules and statutes, however, it was also,
in my view, a serious departure from accepted judicial behavior,
the second reason why I believe certiorari should be granted. In
Saldana v. United States, supra, the trial judge promised the
petitioner a five-year sentence if he testified at a later trial of
a co-indictee without at the same time trying to assume
responsibility for a number of offenses, thereby absolving the
other defendant; the second trial was never held, however, because
the defendant became a fugitive, and petitioner was sentenced
finally by another judge to 20 years. At the suggestion of the
Solicitor General, and after an indepe dent examination of the
record, we concluded that a 'due regard for the fair administration
of justice' required a reversal of three counts of a five-count
indictment. I think the circumstances of this case demand at least
that the trial court's promise be kept and that the prison sentence
be reduced to one year's probation. I cannot accept the
Government's effort to distinguish Saldana on the grounds that the
'promise' there was unequivocal, while here the trial court
indicated only that it 'might' reconsider the sentence.
Page 394 U.S.
922 , 928
Given his situation, petitioner had no choice but to treat the
trial court's remarks as a promise and then proceed, as he did, to
comply with its conditions. I cannot believe that anyone, including
the district judge who approved the manner of compliance, could
expect petitioner to follow a different course of action.
The impropriety of this sentencing procedure rests not on the
fact that the punishment was disproportionate to the offense
because it was not. The crime could have supported a punishment
greater than that accorded. Compare Saldana, supra. The impropriety
of the sentencing procedure rests instead on the fact that the
defendant's meaningful right of appeal was prejudiced, and that he
was led to believe that if he contributed to certain charities
approved by the judge, he would not be imprisoned, and that after
contributing $100,000 and 18 months of personal service to them, he
was told unceremoniously that his efforts were of no avail. This
was neither in keeping with the statutory procedure nor with the
fairness of the judicial process.
For these reasons, I would grant certiorari and, in the absence
of any justification on oral argument, I would reverse the
judgment.