United States v. Harold J. Baer, Jr.

WILLIAM E. DOYLE, Circuit Judge,

dissenting.

I must dissent. My basic reason is that the sentence was grossly excessive and reflected the imposition of a sanction for the exercise by the appellant of a right granted by Congressional Act to try the matter before a federal judge.

The question is whether the court disapproved of the appellant’s bringing the case before him and imposed a sentence to insure that the election to go before a federal judge in a parking ticket case would not become a regular procedure. The exasperation of the court is reflected in the statement which was addressed to the appellant at the conclusion of the evidence. On finding the defendant guilty, the judge stated:

I have absolutely no understanding of why the defendant on March 25, 1977, wrote to the United States Magistrate [electing trial before the district court.]

I confess that he has a right to do that.

And when it is done, obviously, the defendant wishes to have the case treated as a case of somewhat more importance than forfeiture of collateral . .

He can choose to take up the time of this Court and to take up the time of the government employees who have had to participate in this, and that’s his right. He can elect not to pay the parking ticket, which normally other people would pay.

Moreover, the court took the unheard of step (in a parking ticket case) of having a presentence investigation. This is extensive machinery that was activated. As a result of the report given, it was brought to his attention that there were certain collateral matters, including the fact that the defendant was a lawyer and had represented fellow workers in parking ticket cases before, and, further, that he had mailed some part of the presentence report in a government franked envelope. Another evidence of the court’s overreaction in pronouncing sentence is the sentence itself. A fine of $50.00 on each of the two offenses was assessed. In addition, the appellant was sentenced to 30 days in prison for each parking ticket, these to be served consecutively. This was the maximum penalty allowed by 40 U.S.C. § 318c. The imprisonment was suspended and defendant was placed on probation for consecutive terms of one year on each ticket.

There were additional conditions. During the first year defendant was not to operate his vehicle on the land of the Denver Federal Center, and no vehicle owned by him was to be driven by anyone on the Denver Federal Center grounds. In view of the fact that these were $5.00 parking tickets, the sanctions were severe indeed.

*1303 The legal principle involved is that #hich prohibits the pronouncement of a vindictive sentence against the defendant where the defendant has merely exercised a legal right. North Carolina v. Pearce, 395 U.S. 711 , 89 S.Ct. 2072 , 23 L.Ed.2d 656 (1969). There the Supreme Court held that because of the possibility of vindictiveness in this kind of situation, the trial court must clearly state its reason any time a more severe sentence is imposed following the grant of a new trial. This is so that the court refrains from punishing the individual for appealing his conviction.

Similarly, in Blackledge v. Perry, 417 U.S. 21 , 94 S.Ct. 2098 , 40 L.Ed.2d 628 (1974), the defendant appealed a misdemeanor conviction for which he had received a six-month sentence. The accused had exercised his statutory right to a trial de novo in a higher court. The prosecutor had then obtained a felony indictment based on the same set of facts. Defendant was convicted and sentenced to five to seven years imprisonment. The Supreme Court ruled that the indictment for the more serious charge violated the Pearce rule since it discouraged defendant from invoking his statutory rights.

The case of Bordenkircher v. Hayes, 434 U.S. 357 , 98 S.Ct. 663, 668 , 54 L.Ed.2d 604 (1978), does not undermine either Pearce or Blackledge . There it was held that a threat by the district attorney to an accused in the course of plea bargaining, which threat was subsequently carried out, was not invalid within the standards of Blackledge or Pearce .

This writer sympathizes with the district court’s concern with having to try parking ticket cases. However, the fact that the appellant here brought his case into federal court is no indication that others would follow this practice. If nothing else, most people’s common sense would preclude this.

Regardless, though, of whether the average man may conclude that appellant used bad judgment does not justify the sanction. The Supreme Court has held that it is not permissible to impose an excessive sentence in order to discourage such a possibility. Congress has provided for such trials to be before federal judges and it is something which the judges must tolerate, and extra judicial means are not to be employed to discourage the exercise of these rights.

This writer shares Judge Winner’s failure to understand the appellant’s exercising the option to go to federal court, but undoubtedly he, the appellant, has learned his lesson and will not pursue such a remedy in the future.

In final analysis, Judge Winner may take a different view of this sentence following receipt of the mandate. He, of course, is aware that Rule 35 of the Federal Rules of Criminal Procedure empowers him to modify the sentence at any time within 120 days after the mandate of this court is received by him. I predict that he will at least consider such a course of action.