holding that the defendant was not prejudiced by a jury instruction that contained an unnecessary element for the offense charged because “[t]he judge’s charge merely placed an additional burden of proof upon the Government, a burden which it was not required to sustain under the statute”
How later courts described this case
- holding that the defendant was not prejudiced by a jury instruction that contained an unnecessary element for the offense charged because “[t]he judge’s charge merely placed an additional burden of proof upon the Government, a burden which it was not required to sustain under the statute”
- stating that “a person does not have the right to forcibly resist execution of a search warrant”
- finding no prejudice where the instruction placed an additional, but unnecessary, burden of proof upon the government
- “[A] person does not have the right to forcibly resist execution of a search warrant by a peace officer or a Government agent, even though that warrant may subsequently be held to be invalid.”
Written by the judges who cited it.
The opinion
ADAMS, Circuit Judge
(concurring).
I concur in the result reached in this case. In addition, I feel that the pre-sentence commitment procedure utilized by the trial judge merits some comment.
Appellant contends that following the conclusion of his trial the district court ordered that he be committed to the custody of the Attorney General for observation and study, and that pursuant to such order he was removed from the courtroom without an opportunity to notify his family and incarcerated incommunicado for a period of approximately ninety days.
Section 4208(b) of Title 18, U.S.C. provides:
“(b) If the court desires more detailed information as a basis for determining the sentence to be imposed, the court may commit the defendant to the custody of the Attorney General, which commitment shall be deemed to be for the maximum sentence of imprisonment prescribed by law, for a study as described in subsection (c) hereof. The results of such study, together with any recommendations which the Director of the Bureau of Prisons believes would be helpful in determining the disposition of the case, shall be furnished to the court within three months unless the court grants time, not to exceed an additional three months, for further study. After receiving such reports and recommendations, the court may in its discretion: (1) Place the prisoner on probation as authorized by section 3651 of this title, or (2) affirm the sentence of imprisonment originally imposed, or reduce the sentence of imprisonment, and commit the offender under any applicable provision of law. The term of the sentence shall run from date of original commitment under this section.”
Thus, the trial judge has wide discretion in determining whether the procedure set forth in the statute should be followed. Yet, the general tone of the section, when read in conjunction with section 4208(a), implies that the procedure should not be invoked as a matter of course unless the court has reached the tentative conclusion that “the ends of justice and best interests of the public require that the defendant be sentenced *430 to imprisonment for a term exceeding one year.” The purpose of section 4208 is to vest the court with the flexibility to reduce a sentence, Dolack v. United States, 217 F.Supp. 617 (D. Hawaii, 1963), and not to provide a means of incarceration pending formal sentencing. See Iler v. United States, 433 F.2d 8 (9th Cir. 1970); United States v. York, 281 F.Supp. 385 (D.Kan.1968).
Because the commitment deprives a defendant of his liberty, albeit for a commendable purpose, it is important that district judges be circumspect in the exercise of their discretion so as to protect the rights of defendants and not to utilize the provisions of section 4208(b) to impose a greater sentence on a defendant than the nature of the crimes he committed would ordinarily warrant.