William C. Coleman v. United States

TAMM, Circuit Judge, with whom DANAHER and BURGER,

Circuit Judges, concur, dissenting:

I would affirm the trial court’s decision on the grounds that the death sentence was validly imposed in this case and that this court is without legal authority to revise a lawful sentence and to impose a different one.

I

In Coleman v. United States, 118 U.S.App.D.C. 168 , 334 F.2d 558 (1964), referred to as Coleman II, we remanded this case to the District Court to conduct an inquiry pursuant to the 1962 statute abolishing the mandatory death sentence in this jurisdiction, 22 D.C.Code § 2404 (Supp. IV 1965), so that “the judge may, in his sole discretion, consider circumstances in mitigation and in aggravation and make a determination as to whether the case in his opinion justifies a sentence of life imprisonment, in which *574 event he shall sentence the defendant to life imprisonment.” (Emphasis added.) Appellant had previously been given the mandatory death sentence on June 30, 1960, as was required for first degree murder convictions at that time.

District Judge McGarraghy conducted such an inquiry, in which the appellant was afforded every opportunity — virtually without restriction — to present to the court those factors in his case which he felt should mitigate against the death penalty. The excellence of the record which was developed at that hearing through the combined efforts of appellant’s court appointed counsel and the United States Attorney’s office has been noted in the majority opinion. It is apparent from Judge McGarraghy’s detailed memorandum that he carefully considered all of the factors presented to him and in his discretion concluded that “[u]pon consideration of all the circumstances in mitigation and in aggravation, it is the determination of the Court that the case, in its opinion, does not justify a sentence of life imprisonment * Clearly the judge complied in every respect with our remand and with the statutory provisions. It is not within the province of this court to superimpose its judgment or the personal convictions of -its individual members upon a District Court judge when that judge sentences a defendant within the legal limits of the statute under which the defendant was convicted.

Recently, in a case involving another defendant sentenced to death under the former law but whose sentence was reviewed upon enactment of the 1962 amendment, this court, sitting en bane, stated the law which governs this type of situation:

“It -is clear beyond peradventure that this court had and has no control over a sentence which comports with the applicable statute, ‘even though it be a death sentence.' Nor may we reduce or modify a sentence nor require a trial judge to do so.” Jones v. United States, 117 U.S.App.D.C. 169 , 327 F.2d 867, 869-870 (1963).

Nevertheless, in the case before us, the majority opinion proceeds to substitute appellate judges’ judgment of the circumstances in mitigation and aggravation for that of Judge McGarraghy. In the opinion, my brethren do not deny that the District Court judge permitted the hearing to cover as broad a field of “circumstances in mitigation” as they would consider relevant to the question of punishment in this case. (See maj. op., at 566). However, the majority would place greater weight on certain factors which Judge McGarraghy permitted to be developed but found not to be persuasive. The fact that judges may differ in weighing the various factors in mitigation and aggravation in a given case does not constitute an abuse of discretion on the part of the District Court judge which would justify reversal. The question of whether the death penalty is a proper punishment for crime is peculiarly one of legislative policy. Once the Congress has decided to provide for capital punishment, federal appellate courts lack the power to review any sentence, including a death sentence, validly imposed, Gore v. United States, 357 U.S. 386, 393 , 78 S.Ct. 1280 , 2 L.Ed.2d 1405 (1958), particularly where the sentencing judge in reaching his decision has considered the very circumstances which the appellate court deems significant.

Assuming, however, for purposes of discussion that we could legitimately find that the trial judge erred in failing to consider certain circumstances in this case as mitigating, the law is equally as clear that this court lacks the authority to modify the death sentence and itself impose a sentence of life imprisonment.

The majority relies on Section 2106 of Title 28 United States Code, 1 which gives *575 appellate courts the power to “affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review,” as authority for this court’s imposing a life sentence under the circumstances of this case. However, the Supreme Court cases which have held this statute applicable to criminal cases have thus far restricted the authority contained in Section 2106 to such action as the ordering of a new trial, Bryan v. United States, 338 U.S. 552 , 70 S.Ct. 317 , 94 L.Ed. 335 (1950), or the remanding for resentence, Ballew v. United States, 160 U.S. 187, 203 , 16 S.Ct. 263 , 40 L.Ed. 388 (1895), The majority opinion cites no authority outside this jurisdiction to the effect that Section 2106 permits an appellate court to modify a sentence which is within the applicable criminal statute and to impose a sentence of its own. Indeed, no such authority exists.

There is, in fact, strong and persuasive authority to the contrary. The case of Gurera v. United States, 40 F.2d 338, 340-341 (8th Cir. 1930) succinctly summarized the federal non-review rule: “If there is one rule in the federal criminal practice which is firmly established, it is that the appellate court has no control over a sentence which is within the limits allowed by a statute.” The Supreme Court in Blockburger v. United States, 284 U.S. 299, 305 , 52 S.Ct. 180, 182 , 76 L.Ed. 306 (1932), upheld the imposition of consecutive sentences on multiple counts, deferring to the decision of the trial court as regards the sentence:

“Under the circumstances, so far disclosed, it is true that the imposition of the full penalty of fine and imprisonment upon each count seems unduly severe; but there may have been other facts and circumstances before the trial court properly influencing the extent of the punishment. In any event, the matter was one for that court, with whose judgment there is no warrant for interference on our part.”

Several courts of appeals, including this circuit, have reiterated this rule in numerous cases. 2 The first case which considered whether Section 2106 confers authority to reduce a sentence which is not outside the bounds set by a valid statute also involved a death sentence. In United States v. Rosenberg, 195 F.2d 583, 604 (2d Cir.), cert. denied, 344 U.S. 838 , 73 S.Ct. 20 , 97 L.Ed. 687 , rehearing denied, 344 U.S. 889 , 73 S.Ct. 134 , 97 L.Ed. 652 (1952), the court adhered to the rule based on “sixty years of undeviating federal precedents * * * that an appellate court has no power to modify a sentence.” Judge Frank, however, expressed his own view that Section 2106, which had never been considered in this context before — though it dates back to the Judiciary Act of 1789 — might possibly be interpreted to allow such a review. Nevertheless, Judge Frank concluded that since “for six decades federal decisions, including that of the Supreme Court in Blockburger v. United States, supra, have denied the existence of such authority, it is clear that the Supreme Court alone is in a position to hold that Sec. 2106 confers authority to reduce a sentence which is not outside the bounds *576 set by a valid statute.” 3 195 F.2d at 605-607 .

The Supreme Court has refused to follow Judge Frank’s suggested interpretation of Section 2106. In Gore v. United States, 357 U.S. 386, 393 , 78 S.Ct. 1280, 1285 (1958), the Court declined “to enter the domain of penology and more particularly that tantalizing aspect of it, the proper apportionment of punishment. * * * First the English and then the Scottish Courts of Criminal Appeal were given the power to revise sentences, the power to increase as well as the power to reduce them. * * * This Court has no such power.” (Emphasis added). See Herman v. United States, 289 F.2d 362, 369 (5th Cir.) cert. denied, 368 U.S. 897 , 82 S.Ct 174 , 7 L.Ed.2d 93 (1961); Smith v. United States, 273 F.2d 462 , 467-468: (10th Cir. 1959), cert. denied, 363 U.S. 846 , 80 S.Ct. 1619 (1960).

Efforts have been made in the Congress to enact legislation to provide for appellate review of sentences. Bills were introduced in the last three preceding terms of the Senate which would grant such authority. 4 None of these was ever reported out of the Senate Judiciary Committee. There are no similar proposals pending in the present Congress.

The only case in which Section 2106 has been relied on as authority for an appellate court to reduce a validly imposed sentence is this court’s decision in Frady and Gordon v. United States, supra. Assuming for the moment that the court’s action in that case of imposing life sentences on the defendants was proper, which is of course doubtful in view of the above discussion, the peculiar circumstances which prompted a majority of the court to impose its own sen-fence rather than to remand to the District Court for sentencing by a trial judge are not present in this case. The determination of the punishment for Frady and Gordon, whose convictions were affirmed, was made by the jury, which found them guilty of first degree murder. This court, however, found that the instructions -on the sentencing alternatives available to the jury and the jury poll were in error. Since it was impossible to reconvene the same jury to reconsider the punishment and since a majority of the court was unable to agree that a two-step trial was authorized by Section 2404 of Title 22, District of Columbia Code, the court chose, under the guise of Section 2106, to impose a life sentence on the defendants rather than to remand to the trial court to hear evidence in mitigation and aggravation. No explanation or justification was given as to why this 76 year old law was suddenly to be so interpreted. I might add that no evidence in mitigation or aggravation was ever presented to this court to aid it in deciding to reduce the death sentences of Frady and Gordon.

Here, by express order of this court, the District Court has conducted an extensive inquiry into the circumstances bearing on the punishment of the defendant Coleman. If the judge who heard the evidence was in error in not affording weight to certain of the circumstances developed before him, then the only proper course which this court may take is to remand the case with instructions to consider those factors in mitigation which the court deems significant. If it is felt that because Judge McGarraghy has twice sentenced Coleman to death he would be unable to view the evidence as *577 instructed with impartiality, then the court’s order could require that another of the remaining fourteen fair and able judges on the District Court be chosen to sentence the defendant. To do otherwise is to tacitly express a basic distrust for the ability of the trial court to follow the dictates of this court and to discharge its duties according to law.

Whatever our personal convictions of the efficacy of capital punishment for crime, “the remedy must be afforded by act of Congress, not by judicial legislation under the guise of construction.” Blockburger v. United States, supra.

II

The majority persists in its view that Judge McGarraghy committed errors in failing to find that appellant’s case “justifies a sentence of life imprisonment,” when, in reality, its only ground for reversal is that it disagrees with the sentencing judge’s decision. In so doing, the majority completely ignores the language of the amendatory act and the interpretation given that act in both the Jones and Coleman 11 cases (infra).

To begin with, the majority opinion finds that Judge McGarraghy was wrong in not considering the previous sentence of death as being “lifted” by the remand in Coleman II.' For this reason, my brethren say, “it was error to consider the matter as though the burden was upon appellant to convince the court that the sentence should be reduced.” However, in the next paragraph they admit “[i]t is true that a majority of this court, in remanding the case in Coleman II, did not join in stating that the duty of the trial judge was that of resentencing.”

This is pure understatement.

In Jones v. United States, 117 U.S.App.D.C. 169 , 327 F.2d 867, 870-871 (1963), a majority of this court considered and decided this very point:

“The conclusion is inescapable that the death sentence not only was mandatory, final and unreviewable, but that sentence had not been vacated by the amendatory Act. There remained to the appellant only the possibility of relief to be accorded pursuant to the proviso. The judge was authorized ‘in his sole discretion’ to take two steps: to (1) ‘consider circumstances in mitigation and in aggravation and [2] make a determination as to whether the case in his opinion justifies a sentence of life imprisonment * * *.’ Should he decide that life imprisonment was appropriate he was to resentence the appellant ‘in accordance with the provisions of this Act.’ ” (Emphasis supplied by the court.)

The majority in Coleman II remanded the case to the District Court “only that the judge may conduct an inquiry and the appellant be afforded a hearing” to allow a thorough development of circumstances in mitigation and aggravation pursuant to the amendatory act proviso. 334 F.2d at 566 . There was no mention in that opinion of setting aside the previous death sentence. The concurring opinion of Judge Burger, joined in by Judge McGowan, was more explicit:

“In Jones v. United States, supra, we held that sentences imposed prior to the effective date of the amendatory Act were not vacated by that Act; however, we stated that ‘should [the judge] decide that life imprisonment was appropriate he was to resentence appellant * * *.’ 327 F.2d at 871 . Thus ‘resentencing’ would occur only when the original sentence is altered.” 334 F.2d at 568 . (Emphasis added).

If the appellant does not have the burden under these rulings of justifying a resentencing from an existing penalty of death to life imprisonment, it is difficult to envision who does. Certainly it is not the United States Attorney, who has consistently maintained no interest in the particular sentence imposed on a validly convicted defendant and has refused to make sentencing recommendations in any cases. If perhaps the suggestion found *578 in the concurring opinion in Jones, 327 F.2d at 877 , that “Congress placed the burden on the court to avail itself of all relevant information which may be helpful in imposing the proper sentence” is to be taken literally, then it is clear that Judge McGarraghy sustained that burden by permitting the widest scope of circumstances in mitigation and aggravation conceivable in this case to be developed before him.

Thus, when the district judge, after hearing and studiously considering all of the evidence before him, rendered his opinion that the case did not justify a sentence of life imprisonment and, therefore, held “that the sentence shall be governed by the provisions of law in effect prior to the effective date of Public Law 87-423, ” he was not — as the majority contends — affording weight to the previous mandatory death sentence but was merely paraphrasing the statute which expressly states this to be the law unless the judge finds a life sentence justified. It is difficult to imagine how a judge who follows a statute as the Congress has written it and this court has interpreted it can, in so doing, be said to have committed procedural error.

What in essence my brethren are really saying is that they disagree with the district judge in his assessment of the factors in mitigation and aggravation and would themselves have found a life sentence justified. However, they are plainly without legal authority to substitute their views for those of the judge charged by Congress with the “sole discretion” to decide life or death in this situation. As we said in Coleman II, “Congress chose to rely upon the experience, training and expertise of the judge who was to make the appropriate determination.” 334 F.2d at 563 . Congress did not provide anyone else, including this court, with the power to overrule that determination.

The majority finds that Judge McGar-raghy erred in failing to find certain circumstances, including appellant’s apparent social inadequacies, in mitigation of punishment. The appellant was convicted of the felony-murder of a police officer while perpetrating a robbery. This is the circumstance in aggravation —against which all other possible mitigating circumstances must be weighed. It is clear from the sentencing judge’s detailed memorandum that “in his opinion” none of the other circumstances mitigated against the death sentence for the murder of a policeman. Perhaps they might have had the appellant, for example, merely stolen a loaf of bread or a bottle of whiskey, but not where in addition an officer’s life was lost in the process.

My brothers emphasize such factors as “the absence of premeditation, the fact that appellant was unarmed at the time, that he panicked, that the homicide was sudden and unplanned by a mentally retarded man whose mind was further clouded by drink,” which factors they personally feel should have played a greater role in Judge McGarraghy’s process of deliberation. It must be pointed out, however, that the very nature of most felony-murders is that they are the result of sudden, though certainly foreseeable, killings of innocent people in the course of the commission of a serious felony. The high risk that a police officer may be killed when fleeing felons panic upon being confronted by his unexpected presence is one of the reasons Congress has made this a first-degree murder crime, carrying a possible penalty of death. The fact that the appellant was unarmed at the time was only because he had given Ms own gun to his brother for use in the robbery. Moreover, there is no evidence that the appellant was mentally incapacitated at the time of the murder. It is difficult to see how these circumstances can mitigate against punishment for a crime when they contributed substantially -to the crime’s occurrence.

The recommendation of the Catholic and Protestant chaplains and the probation officer against the death penalty in this case are also afforded much weight *579 by the majority. We are indeed naive if we expect that these individuals, whose profession it is to save souls and to rehabilitate men, would testify in favor of the imposition of the death penalty.

The present justification for this court’s imposition of a life sentence on the appellant is completely without legal foundation. The majority interpret the amendatory Act as implying that the “trial judge” who presided at Coleman’s jury trial should determine the sentence to be imposed. Since he is unavailable and since the judge designated in his place is unacceptable to the majority because they disagree with him, they conclude that they cannot redesignate another judge to reconsider the evidence in accordance with their opinion.

First, it must be pointed out that the phrase “trial judge” does not appear in § 2404 of Title 22 D.C.Code. Moreover, in Coleman II we considered this very point and concluded that “[t]here is nothing in the amendatory Act to suggest that ‘the judge’ who might be asked to consider a post-trial motion for relief must be the trial judge and no other.” 334 F.2d at 564 . Section 2106 would appear to give this court authority to remand the case to the District Court with instructions that a judge other than Judge McGarraghy be designated to reconsider the circumstances in mitigation and aggravation. Cf. Ballew v. United States, 160 U.S. 187 , 16 S.Ct. 263 , 40 L.Ed. 388 (1895).

I fear the majority is acting only from expediency and with grave shortsightedness in seizing Section 2106 as a basis for supervising sentences. The exceptions which will be developed by such a subjective standard can only depend on the likes, dislikes, prejudices and sympathies of judges who, however well-intentioned, are in fact substituting a personal philosophy of what is best for our civilization as a replacement for Acts of Congress and other existing laws. This unfortunately but necessarily results in a rule of men, unsupported either by statute or other legal authority.

. Ҥ 2106. DETERMINATION

The Supreme Court or any other court of appellate jurisdiction may affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate judgment, decree, or or *575 der, or require such further proceedings to be had as may be just under the circumstances.”

. E.g., Jones v. United States, supra, (D.C.Cir. 1963); United States v. Pruitt, 341 F.2d 700 (4th Cir. 1965); United States v. Martell, 335 F.2d 764 (4th Cir. 1964); Mount v. United States, 333 F.2d 39 (5th Cir.) cert. denied, 379 U.S. 900 , 85 S.Ct. 188 , 13 L.Ed.2d 175 (1964); Martin v. United States, 317 F.2d 753 (9th Cir. 1963); Smith v. United States, 273 F.2d 462 (10th Cir. 1959), cert. denied, 363 U.S. 846 , 80 S.Ct. 1619 , 4 L.Ed. 2d 1729 (1960); Egan v. United States, 268 F.2d 820 (8th Cir.), cert. denied, 361 U.S. 868 , 80 S.Ct. 130 , 4 L.Ed.2d 198 (1959); United States v. Kapsalis, 214 F.2d 677 (7th Cir. 1954), cert. denied, Robinson v. United States, 349 U.S. 906 , 75 S.Ct. 583 , 99 L.Ed. 1242 (1955); United States v. Rosenberg, 195 F.2d 583, 604 (2d Cir.), cert. denied, 344 U.S. 838 , 73 S.Ct. 20 , 97 L.Ed. 687 , rehearing denied, 344 U.S. 889 , 73 S.Ct. 134 , 97 L.Ed. 652 (1952).

. The Supreme Court denied certiorari, 344 U.S. 838 , 73 S.Ct. 20 (1952), and later denied a petition for rehearing in which Mr. Justice Frankfurter filed a separate memorandum opinion stating:

“One of the questions, however, first raised in the petition for rehearing, is beyond the scope of the authority of this Court, and I deem it appropriate to say so. A sentence imposed by a United States district court, even though it be a death sentence, is not within the power of this Court to revise.” Rosenberg v. United States, 344 U.S. 889, 890 , 73 S.Ct. 134, 135 (1952).

. S. 823, 88th Cong., 1st Sess. (1963); S. 2879, 87th Cong., 2d Sess. (1962); S. 3914, 86th Cong. 2d Sess. (1960).