Petitioner was convicted in a Federal District Court on a
three-count indictment under 18 U.S.C. § 2113 for (1) entering a
bank with intent to commit a felony, (2) robbing the bank, and (3)
assaulting or putting in jeopardy the lives of persons by using a
dangerous weapon while committing the robbery. Before passing
sentence, the District Judge asked, "Did you want to say
something?", whereupon petitioner's counsel at some length invoked
the Judge's discretionary leniency. Petitioner was then sentenced
to imprisonment for 20 years on each of the first two counts and
for 25 years on the third count, all to run concurrently. Seven
years later, petitioner filed two motions under Rule 35 of the
Federal Rules of Criminal Procedure to vacate the sentence,
claiming that (1) it was illegal because he had not been permitted
to speak in his own behalf prior to sentencing, as required by Rule
32(a), and (2) the 25-year sentence under Count 3 for aggravated
bank robbery was illegal because the judge had exhausted his power
to sentence when he imposed the sentence under Count 2 for
unaggravated bank robbery. Both motions were denied.
Held: the judgment is affirmed. Pp.
365 U. S.
302-306.
273 F.2d 216 and 274 F.2d 59 affirmed.
Page 365 U. S. 302
Judgment of the Court and opinion of MR. JUSTICE FRANKFURTER,
joined by MR. JUSTICE CLARK, MR. JUSTICE HARLAN and MR. JUSTICE
WHITTAKER, announced by MR. JUSTICE HARLAN.
Defendant, the petitioner here, in 1952 was convicted in the
United States District Court for Massachusetts on a three-count
indictment charging him with (1) entering a bank with intent to
commit a felony, in violation of 18 U.S.C. § 2113(a); (2) robbing
the bank, also in violation of 18 U.S.C. § 2113(a); and (3)
assaulting or putting in jeopardy the lives of persons by use of a
dangerous weapon while committing the robbery, in violation of 18
U.S.C. § 2113(d). Five days later, after defendant's counsel had
completed motions in arrest of judgment and for new trial, the
district judge asked, "Did you want to say something?", whereupon
counsel at some length invoked the trial judge's discretionary
leniency. The defendant's age, family status, and physical
condition were mentioned, as was the fact that he was then serving
a sentence in a state penitentiary, which would delay the time from
which his federal punishment would run. Thereupon the trial judge,
presumably relying upon a presentence probation report, observed
that the defendant was a hardened criminal, that he had in the past
committed other armed robberies, and that there was no warrant to
believe that rehabilitation was possible. He then pronounced
sentence as follows:
"Theodore Green, the Court orders that on this indictment you be
sentenced as follows: On Count 1 of the indictment 20 years, on
Count 2 of the indictment, that you be imprisoned for 20 years, and
on Count 3 of the indictment, that you be imprisoned for the period
of 25 years, said prison sentence to run concurrent and to begin
upon your release from prison upon the sentence you are now
receiving under order of the State Court. "
Page 365 U. S. 303
Subsequently, defendant was permitted to bring his appeal
in
forma pauperis which was dismissed by the Court of Appeals
"for want of diligent prosecution." In two other later actions,
defendant unsuccessfully brought proceedings under 28 U.S.C. § 2255
to vacate his sentence.
These two cases, here consolidated, arise out of two separate
actions brought some seven years after conviction under Rule 35 of
the Federal Rules of Criminal Procedure in an effort to set aside
the sentence which petitioner asserts to be illegal. In No. 70,
petitioner claims that the failure of the judge to inquire of the
defendant if he had anything to say on his own behalf prior to
sentencing rendered the subsequent sentence illegal under Federal
Criminal Rule 32(a). [
Footnote
1] In No. 179, petitioner questions the legality of the
twenty-five-year sentence for aggravated bank robbery [
Footnote 2] when, immediately prior to
its imposition, the judge had imposed a twenty-year sentence under
another count of the indictment for the same offense without the
elements of aggravation.
If Rule 32(a) constitutes an inflexible requirement that the
trial judge specifically address the defendant,
e.g., "Do
you, the defendant, Theodore Green, have anything to say before I
pass sentence?", then what transpired in the present case falls
short of the requirement, even assuming that this inadequacy in the
circumstances now before us would constitute an error
per
se rendering the sentence illegal.
Page 365 U. S. 304
The design of Rule 32(a) did not begin with its promulgation;
its legal provenance was the common law right of allocution. As
early as 1689, it was recognized that the court's failure to ask
the defendant if he had anything to say before sentence was imposed
required reversal.
See Anonymous, 3 Mod. 265, 266, 87
Eng.Rep. 175 (K.B.). Taken in the context of its history, there can
be little doubt that the drafters of Rule 32(a) intended that the
defendant be personally afforded the opportunity to speak before
imposition of sentence. We are not unmindful of the relevant major
changes that have evolved in criminal procedure since the
seventeenth century -- the sharp decrease in the number of crimes
which were punishable by death, the right of the defendant to
testify on his own behalf, and the right to counsel. But we see no
reason why a procedural rule should be limited to the circumstances
under which it arose if reasons for the right it protects remain.
None of these modern innovations lessens the need for the
defendant, personally, to have the opportunity to present to the
court his plea in mitigation. The most persuasive counsel may not
be able to speak for a defendant as the defendant might, with
halting eloquence, speak for himself. We are buttressed in this
conclusion by the fact that the Rule explicitly affords the
defendant two rights: "to make a statement in his own behalf," and
"to present any information in mitigation of punishment." We
therefore reject the Government's contention that merely affording
defendant's counsel the opportunity to speak fulfills the dual role
of Rule 32(a).
See Taylor v. United States, 1960, 285 F.2d
703.
However, we do not read the record before us to have denied the
defendant the opportunity to which Rule 32(a) entitled him. The
single pertinent sentence -- the trial judge's question "Did you
want to say something?" -- may well have been directed to the
defendant, and not to his counsel. A record, certainly this record,
unlike a play,
Page 365 U. S. 305
is unaccompanied with stage directions which may tell the
significant cast of the eye or the nod of the head. It may well be
that the defendant himself was recognized and sufficiently apprised
of his right to speak, and chose to exercise this right through his
counsel. Especially is this conclusion warranted by the fact that
the defendant has raised this claim seven years after the
occurrence. The defendant has failed to meet his burden of showing
that he was not accorded the personal right which Rule 32(a)
guarantees, and we therefore find that his sentence was not
illegal.
However, to avoid litigation arising out of ambiguous records in
order to determine whether the trial judge did address himself to
the defendant personally, we think that the problem should be, as
it readily can be, taken out of the realm of controversy. This is
easily accomplished. Trial judges before sentencing should, as a
matter of good judicial administration, unambiguously address
themselves to the defendant. Hereafter, trial judges should leave
no room for doubt that the defendant has been issued a personal
invitation to speak prior to sentencing.
In No. 179, petitioner contends that his sentence was rendered
illegal because the district judge, after sentencing him to twenty
years for bank robbery under Count 2, proceeded under Count 3 to
sentence him to twenty-five years for the aggravated version of the
same crime. The claim is that, since the two counts did not charge
separate offenses, the judge's power to sentence expired with the
imposition of sentence under Count 2, and that five years should be
remitted from petitioner's concurrent sentence.
The Government concedes that Count 3 did not charge a separate
offense,
see Holiday v. Johnston, 313 U.
S. 342,
313 U. S.
349-550, and there is every indication that the district
judge was of this view. In his charge to the jury, he stated:
"The third count is a different type of count. That is not a
separate offense. I will speak to you later
Page 365 U. S. 306
of the manner in which you will handle the third count. That is
not a separate offense. . . . That is not a separate count, to
repeat, that is an aggravation of the second count, robbing the
bank."
Although petitioner is technically correct that sentences should
not have been imposed on both counts, the remedy which he seeks
does not follow. This is not a case where sentence was passed on
two counts stating alternative means of committing one offense;
rather, the third count involved additional characteristics which
made the offense an aggravated one -- namely, putting persons in
jeopardy of life by use of a dangerous weapon. Plainly enough, the
intention of the district judge was to impose the maximum sentence
of twenty-five years for aggravated bank robbery, and the formal
defect in his procedure should not vitiate his considered judgment.
[
Footnote 3]
Affirmed.
[
Footnote 1]
Rule 32(a) in pertinent part provides:
"Before imposing sentence, the court shall afford the defendant
an opportunity to make a statement in his own behalf and to present
any information in mitigation of punishment."
[
Footnote 2]
"Whoever, in committing, or in attempting to commit, any offense
defined in subsections (a) and (b) of this section, assaults any
person, or puts in jeopardy the life of any person by the use of a
dangerous weapon or device, shall be fined not more than $10,000 or
imprisoned not more than twenty-five years, or both."
18 U.S.C. § 2113(d).
[
Footnote 3]
Petitioner further complains of an improper charge to the jury
on Count 3. Rule 35 does not encompass all claims that could be
made by direct appeal attacking the conviction, but rather is
limited to challenges that involve the legality of the sentence
itself.
MR. JUSTICE STEWART, concurring.
I join in affirming the judgments. Rule 32(a) does not seem to
me clearly to require a district judge in every case to volunteer
to the defendant an opportunity personally to make a statement when
the defendant has a lawyer at his side who speaks fully on his
behalf. But I do think the better practice in sentencing is to
assure the defendant an express opportunity to speak for himself,
in addition to anything that his lawyer may have to say. I would
apply such a rule prospectively, in the exercise of our supervisory
capacity.
See Couch v. United States, 98 U.S.App.D.C. 292,
235 F.2d 519.
Page 365 U. S. 307
MR. JUSTICE BLACK, with whom THE CHIEF JUSTICE, MR. JUSTICE
DOUGLAS and MR. JUSTICE BRENNAN concur, dissenting.
I agree that Federal Criminal Rule 32(a) makes it mandatory for
a federal judge before imposing sentence to afford every convicted
defendant an opportunity to make, in person and not merely through
counsel, a statement in his own behalf presenting any information
he wishes in mitigation of punishment, and that failure to afford
this opportunity to the defendant personally makes a sentence
illegal. I agree, too, that the governing legal question in
determining whether such an opportunity has been afforded under
Rule 32(a) is "whether the trial judge did address himself to the
defendant personally," since it would be wholly artificial to
regard this opportunity as having been afforded in the absence of a
specific and personal invitation to speak from the trial judge to
the defendant. [
Footnote 2/1] The
very essence of the ancient common law right called "allocution"
which MR. JUSTICE FRANKFURTER recognizes as underlying Rule 32(a)
has always been the putting of the question to the defendant by the
trial judge. [
Footnote 2/2]
I think the record in this case clearly shows that the defendant
was denied this opportunity, that the sentence
Page 365 U. S. 308
imposed upon him therefore was illegal, and, for this reason,
that the cause should, in accordance with Federal Criminal Rule 35,
be sent back to the District Court for resentencing after
compliance with Rule 32(a). MR. JUSTICE FRANKFURTER refuses to take
this course, stating that "we do not read the record before us to
have denied the defendant the opportunity" to talk to the judge
about his sentence. This conclusion apparently rests on the view
that the trial judge's single question deemed pertinent to this
subject -- "Did you want to say something?" -- may well have been
directed to the defendant, and not to his counsel. The opinion goes
on to imply that maybe, when the judge asked "you" the question, he
cast his eye or nodded his head in the defendant's direction, maybe
the defendant saw the eye cast or the head nod, and therefore
it
"may well be that the defendant himself was recognized and
sufficiently apprised of his right to speak and chose to exercise
this right through his counsel."
On this chain of perhaps possible, but purely imaginary
happenings, plus the seemingly irrelevant fact that the defendant
"raised this claim seven years after the occurrence," it is said
that the petitioner
"has failed to meet his burden of showing that he was not
accorded the personal right which Rule 32(a) guarantees, and we
therefore find that his sentence was not illegal."
A careful examination of the record reveals the utter
implausibility of these imaginative suggested additions to the
transcript. The trial judge's bare question "Did you want to say
something?" follows immediately upon a lengthy statement covering
three printed pages by the counsel for a codefendant arguing that
his motion for a new trial should be granted because of the
weakness of the evidence, inconsistencies in testimony, and lack of
credibility of a government witness. The colloquy in the four pages
preceding that likewise does not touch upon the question of
sentencing. Even if it is assumed
Page 365 U. S. 309
that the trial judge might have been so thoughtless as to
address so unspecific a question to a layman at that point in the
proceedings, can it seriously by believed that, under such
circumstances, the defendant would have understood the question to
be inviting him to speak on the subject of mitigating factors to be
considered in sentencing, even if the judge had nodded in his
direction when asking "Did you want to say something?" Moreover,
the answer "Yes, sir" and the succeeding statement came not from
the defendant, but from his counsel (who was not the preceding
speaker). The obvious implication is the fact explicitly admitted
twice in the Government's brief in this case: that the question was
addressed to defendant's counsel, and not to defendant himself.
[
Footnote 2/3]
I am forced to conclude that the actual holding in this case
makes Rule 32(a) mean far less for this particular defendant than
the Rule is declared to mean, at least for defendants tried in the
future. Judges are warned that, hereafter, their records must leave
no doubt that a "defendant has been issued a personal invitation to
speak prior to sentencing." This, I think, is the correct meaning
of the Rule as it was adopted, and this defendant, just like all
others, should be accorded his right under it. He should not be
denied that right either because of his criminal record or because
of fears conjured up about the number of prisoners who might raise
the same question in the event of a decision in this defendant's
favor. Bad men, like good men, are entitled to be tried and
sentenced in accordance with law, and
Page 365 U. S. 310
when it is shown to us that a person is serving an illegal
sentence, our obligation is to direct that proper steps be taken to
correct the wrong done, without regard to the character of a
particular defendant or to the possible effect on others who might
also want to challenge the legality of their sentences as they have
the right to do "at any time" under Rule 35. If it has any
relevance at all, the fact that there may be other prisoners in
this country's jails serving illegal sentences would seem to me to
make it all the more imperative that we grant appropriate relief in
this case, rather than search for some obviously dubious excuse to
deny this petitioner's claim.
I do not understand why it is necessary or legally correct to
defeat this prisoner's claim by invoking what appears to be a
wholly new doctrine of burden of proof. What, may I ask, is the
burden a defendant must meet to show he was not accorded the
personal opportunity to address the judge before a sentence is
imposed? Is it proof beyond a reasonable doubt, by a preponderance
of the evidence, by the overwhelming weight of the evidence, or
what? I suppose from MR. JUSTICE FRANKFURTER's opinion that it was
the duty of this defendant to show under some standard that, when
the judge said "Did you want to say something?", he neither pointed
his finger, cast his eye nor nodded his head in the defendant's
direction, and that it was incumbent upon the defendant to make
this proof even though the Government admitted that the question
had been addressed to his counsel, and not to the defendant
himself. It would seem to me, even in the absence of the
Government's admission as to the factual occurrence, that since,
when the question was asked, defendant's counsel immediately made a
statement, the fair inference is that, if there was any
"significant cast of the eye or . . . nod of the head," it was
directed toward counsel, who responded, and not toward the
defendant, who said nothing. Yet it is said that defendant's claim
must
Page 365 U. S. 311
be defeated because he failed to overcome an inference, without
basis in logic or law, of a fact which has been expressly
disclaimed by the Government in this case.
The language of MR. JUSTICE FRANKFURTER's opinion does not jibe
with the harsh result reached in refusing to accord to petitioner
the benefit of Rule 32(a). As he points out, that Rule embodies the
practice of the English-speaking world for three centuries or more,
based, as he properly says, upon the belief that,
"The most persuasive counsel may not be able to speak for a
defendant as the defendant might, with halting eloquence, speak for
himself."
A rule so highly prized for so sound a reason for so long a time
deserves to be rigorously enforced by this Court, not merely
praised in resounding glittering generalities calculated to soften
the blow of nonenforcement.
I would remand this case for resentence after compliance with
Rule 32(a).
[
Footnote 2/1]
"After being convicted, the defendant is usually so crushed as
to hesitate to make demands lest they bring increased punishment.
The rule [Rule 32(a)] contemplates no such demand, and clearly,
without the necessity of any demand at that stage of the trial, the
defendant's legal rights should be accorded to him by the
court."
Mixon v. United States, 214 F.2d 364, 366 (Rives, J.,
concurring).
[
Footnote 2/2]
An extensive and detailed review of the English and American
common law and statutory cases on this subject led one author to
begin his conclusion with the following sentence: "Today, as
always, allocution is an authoritative address by the court to the
prisoner as he stands at the bar for sentence." Barrett,
Allocution, 9 Mo.L.Rev. 115, 232 at 254.
[
Footnote 2/3]
". . . (R. No. 70, pp. 4-18). Then the court asked
defense
counsel if he wanted to say something. In response, counsel
spoke for leniency in sentencing (R. No. 70, pp. 18-19)."
Brief for the United States, p. 11. (Emphasis supplied.)
Before sentencing, the court
specifically addressed
counsel: "Did you want to say something?" Brief for the United
States, p. 31. (Emphasis supplied.)