stating that trial judge’s express reference “to these matters upon imposition of sentence indicates that she probably considered them to be material” or “otherwise there would not have been any point in her mentioning them”
How later courts described this case
- stating that trial judge’s express reference “to these matters upon imposition of sentence indicates that she probably considered them to be material” or “otherwise there would not have been any point in her mentioning them”
- stating that trial judge’s express reference “to these matters upon imposition of sentence indicates she probably considered them to be material” or “otherwise there would not have been any point in her mentioning them”
- defendant’s attempt to “fix” prior sentence and defendant’s feigned suicide to avoid going to jail
- “[T]he fact that the trial judge expressly referred to these matters upon imposition of sentence indicates that she probably considered them to be material_”
Written by the judges who cited it.
The opinion
LUMBARD, Circuit Judge
(concurring):
From Judge Mansfield’s thorough and convincing discussion of the facts, it seems to me that the sentence of ten years imposed on Stein violated the Eighth Amendment prohibition against the infliction of cruel and unusual punishments. Such a lengthy sentence has rarely been imposed in a stock fraud case. To impose this sentence on a defendant who has not only pleaded guilty but in addition has assisted the government, as Stein did in the instant case, by extensive testimony, as well as by undercover work for other government agencies in other cases, is unprecedented and beyond all reason. The sentence is so severe as to be cruel and unusual under the circumstances. Hence, it cannot stand. Cf. Hart v. Coiner, 483 F.2d 136 (4th Cir.), cert. denied, 415 U.S. 938 , 94 S.Ct. 1454 , 39 L.Ed.2d 495 (1973). See also Weems v. United States, 217 U.S. 349 , 30 S.Ct. 544 , 54 L.Ed. 793 (1910); Downey v. Perini, 518 F.2d 1288 (6th Cir.), vacated on other grounds, 423 U.S. 993 , 96 S.Ct. 419 , 46 L.Ed.2d 367 (1975).
While I fully agree with all the other reasons Judge Mansfield has given which demonstrate that the district judge failed to consider the significant facts and opinions which were highly relevant to the sentence, I would set aside such a sentence as was here imposed even if the judge had properly noted this material and had given adequate opportunity for the defendant and his counsel to be heard.
In my opinion to let such a sentence stand would seriously cripple the necessary efforts of the government to secure the cooperation of malefactors without whose assistance and testimony it is often not possible to prosecute their many partners in crime. I do not overlook the government’s intermediate position, doubtless made necessary by the amenities which prosecutors must observe when a judge’s decision goes far beyond expectations, that the sentence should not have been longer than five years. Nor do I overlook the fact that Stein’s transgressions deserve more than token punishment and the consideration that there must be substantial doubt whether *105 anything like rehabilitation is possible for such a long-time repeated offender.
For these reasons I agree that the sentence should be vacated and the case remanded to the district court for resentencing before a different district judge.