Petition — United States v. Grayson

Supreme Court, U. .

— FILED

: MAY 10 1977

No.

— — A., CLERK

zu the Supreme Court uf the Auttrd States

OCTOBER TERM, 1976

76-1572

UNITED STATES OF AMERICA, PETITIONER

v.

Tep R. GRAYSON

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

Wane H. McCres, In.

Solicitor General,

BENJAMIN R. CIVILETTI,

Assistant Attorney General,

JEROME M. Fert,

Pau. J. Barsn,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

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CITATIONS

Dorszynski v. United States, 418 US.

Hess v. United States, 496 F.2d 936

Humes v. United States, 186 F.2d 875

McGautha v. California, 402 U.S. 183

Poteet v. Fauver, 517 F.2d 3938 3, 4,

Scott v. United States, 419 F.2d 264

United States v. Atkins, 480 F.2d 1223

United States v. Cardi, 519 F.2d 309

United States v. Cluchette, 465 F.2d 749

United States v. Doyle, 348 F.2d 715, cer-

tiorari denied, 382 U.S. 843

United States v. Hendrix, 505 F.2d 1233,

certiorari denied, 423 U.S. 897 7,

United States v. Levine, 372 F.2d 70,

certiorari denied, 388 U.S. 918

“I neee

Cases—Continued

United States v. Marines, 535 F.2d 552

United States v. Metz, 470 F.2d 1140,

certiorari denied sub nom. Davenport

v. United States, 411 U.S. 919

United States v. Moore, 484 F.2d 1284

United States v. Nunn, 525 F.2d 958.

United States v. Sweig, 454 F.2d 181

United States v. Wallace, 418 F.2d 876,

certiorari denied, 397 U.S. 955

Williams v. New York, 337 U.S. 241

Statutes and rule:

. i

J

21 U.S.C. 841(a) ()

Fed. R. Crim. P. 32 (e) (2)

1 2

a te to

Iu the Supreme Court of the Ruited States

OCTOBER TERM, 1976

No.

UNITED STATES OF AMERICA, PETITIONER

V.

TED R. GRAYSON

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

The Solicitor General, on behalf of the United

States, petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for

the Third Circuit in this case.

OPINIONS BELOW

The original judgment order of the panel (App.

D, infra, 35a-36a) is not reported. The opinion of

the panel on rehearing (App. A, infra, la-3la) is

reported at 550 F.2d 103.

JURISDICTION

The judgment of the court of appeals (App. B,

infra, 32a-33a) was entered on January 7, 1977. A

(1)

a

timely petition for rehearing with a suggestion for

rehearing en banc was denied on March 17, 1977

(App. C, infra, 34a). On April 7, 1977, Mr. Justice

Brennan extended the time for filing a petition for a

writ of certiorari to and including May 16, 1977.

The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

QUESTION PRESENTED

Whether a trial judge, in setting sentence for a

convicted defendant, may take into account his belief

that the defendant lied at trial.

STATEMENT

Following a jury trial in the United States Dis-

trict Court for the Middle District of Pennsylvania,

respondent was convicted of prison escape in viola-

tion of 18 U.S.C. 751 (a). He was sentenced on

March 12, 1976, to two years’ imprisonment, to be

served consecutively to the three-year term of im-

prisonment that he was serving on a prior narcotics

conviction.

1. On October 11, 1975, respondent escaped from

the Allenwood Federal Prison Camp, where he had

been serving his sentence after conviction for dis-

tributing a controlled substance in violation of 21

U.S.C. 841(a)(1). Two days later, respondent was

apprehended in New York City. At trial respondent

took the witness stand and testified that he had left

Allenwood because other inmates, to whom he owed

money, had threatened his life (App. A, infra, 3a).

When imposing sentence following respondent's con-

viction, the trial judge stated that he would “give

[his] reasons for sentencing in this case with clarity,

because one of the reasons may well be considered by

a Court of Appeals to be impermissible * * (App.

A, infra, 4a). The judge then expressed his belief

that respondent had perjured himself at trial, stat-

ing (App. A, infra, 5a):

In my view a prison sentence is indicated, and

the sentence that the Court is going to impose

is to deter you, Mr. Grayson, and others who

are similarly situated. Secondly, it is my view

that your defense was a complete fabrication

without the slightest merit whatsoever. I feel

it is proper for me to consider that fact in the

sentencing, and I will do so.

2. On appeal respondent contended, inter alia, that

the trial judge had impermissibly relied at sentenc-

ing on his belief that respondent lied at trial. The

court of appeals initially affirmed (App. D, infra,

35a-36a), but after respondent filed a petition for

rehearing arguing that rejection of his contention

was inconsistent with Poteet v. Fawver, 517 F.2d 393

(C.A. 3), the case was reheard and a divided panel

4

of the court of appeals vacated respondent’s sentence

and remanded for resentencing (App. B, infra, 32a-

33a)

In a separate opinion announcing the judgment of

the court, Judge Garth stated his view that the Po-

teet case was controlling. While Judge Garth recog-

nized that Poteet involved a significantly different

factual setting,’ he nonetheless concluded that Poteet

stood for the general principle, applicabk here, that

“ ‘the sentencing judge may not add a penalty be-

cause he believes that the defendant lied“ (App. A,

|

i

ri

i

i

2

5

171

a

Hie

it

a sentence on account of a trial judge's belief that a

defendant uttered false testimony” (App. A, infra,

15a), but he added (id. at 15a-16a) :

Even if it were to be concluded that Poteet

does not control the present case, I would have

serious misgivings about the propriety of the

sentencing procedure employed by the trial judge

here. * If a trial judge increases a sen-

tence because he is of the belief that a defend-

ant’s testimony is untruthful, such an action

could be interpreted as penalizing the defendant

for exercising his constitutional right to take

Judge Rosenn, dissenting, distinguished Poteet

from the present case (App. A, infra, 19a) on the

ground that It he sentencing judge emphasized that

he was not concerned with Poteet’s false testimony

on the stand but with Poteet’s refusal to confess

after the jury had returned its verdict against him”

(emphasis in original). He also rejected the consti-

tutional arguments made by Judge Adams, stating

(App. A, infra, 22a): [The sentencing judge] was

not imposing any sentence for any independent crime;

he was merely considering the behavior and character

of the defendant as he saw the defendant and heard

the evidence during tie trial in his imposition of

sentence for the underlying crime” (footnote omit-

ted). Judge Rosenn therefore concluded (App. A,

infra, 30a):

The exclusion from the scope of the [sentencing |

judge’s inquiry of visible and clear conduct of

the defendant in the presence of the judge dur-

ing trial needlessly limits the judicial process in

dispensing justice and adds little to the due

process interests of the defendant.

REASONS FOR GRANTING THE PETITION

The decision of the court of appeals—holding that

a sentencing judge may not consider his belief that

the defendant lied at trial—is a departure from the

principles established by this Court in Williams v.

New York, 337 U.S. 241, and is in conflict with the

decisions of eight other courts of appeals. Since there

are thousands of cases occurring each year in which

a testifying defendant is convicted, it is important

that sentencing judges know whether they may take

into account in imposing sentence a belief that the

defendant gave false testimony during the trial.

1. A trial judge has broad latitude in imposing

sentence (see, e.g., Dorszynski v. United States, 418

U.S. 424, 440-441) and typically may consider a wide

* Judge Rosenn did suggest two limitations (App. A, infra,

30a-3la): that the sentencing judge should be “convinced

7

range of information concerning a convicted defend-

ant (see 18 U.S.C. 3577; Fed. R. Crim. P. 32(c)

(2)). Both before and since the American colo-

nies became a nation, courts in this country and in

England practiced a policy under which a sentencing

judge could exercise a wide discretion in the sources

and types of evidence used to assist him in deter-

mining the kind and extent of punishment to be im-

posed within limits fixed by law.” Williams v. New

York, supra, 337 U.S. at 246. “Highly relevant—if

not essential—to his selection of an appropriate sen-

tence is the possession of the fullest information

possible concerning the defendant’s life and charac-

teristics” (id. at 247; footnote omitted).

Relying on these principles, this Court in Williams,

supra, upheld against constitutional attack the con-

sideration by a sentencing judge of prior criminal

acts for which the defendant had not been convicted.

Following Williams, the courts of appeals have per-

mitted consideration by sentencing courts of pending

or dismissed charges (United States v. Marines, 535

F.2d 552, 554-555 (C.A. 10); United States v. Metz,

470 F.2d 1140, 1141-1142 (C. A. 3), certiorari de-

nied sub nom. Davenport v. United States, 411 U.S.

919; United States v. Doyle, 348 F.2d 715, 721 (C.A.

2), certiorari denied, 382 U.S. 843)), charges of

which the defendant has been acquitted (United

States v. Cardi, 519 F.2d 309, 314 n. 3 (C.A. 7);

United States v. Sweig, 454 F.2d 181, 184 (C.A.

2)), and convictions that have been reversed on ap-

peal (United States v. Atkins, 480 F.2d 1223, 1224

(C.A. 9)). Underlying these decisions is a recogni-

tion that the sentencing judge must be free to con-

sider all pertinent information if he is to make “the

punishment * * * fit the offender and not merely the

crime” (Williams v. New York, supra, 337 U.S. at

247).

There appears to be little basis for permitting a

sentencing judge to consider material contained in a

presentence report or other extrajudicial documents

but prohibiting him from relying upon his direct

observations at trial. The defendant’s behavior at

trial often will be more probative of his character at

the time of sentencing because it will have occurred

more recently than out-of-court criminal activity. As

Judge Frankel, writing in United States v. Hendriz,

505 F.2d 1233, 1236 (C.A. 2), certiorari denied, 423

U.S. 897, has observed: [A] fact like the defend-

ant’s readiness to lie under oath before the judge

who will sentence him would seem to be among the

more precise and concrete of the available indicia

fof his character].” Moreover, because the sentenc-

ing judge is not relying upon hearsay reports and

the observations of other persons, there is less con-

cern about the factual accuracy of this particular

predicate for imposition of sentence.

2. The decision below is contrary to the decisions

of eight other courts of appeals, which hold that a

sentencing judge may consider the defendant’s com-

mission of perjury at trial. See United States v.

Nunn, 525 F.2d 958 (C.A. 5); United States v.

Hendrix, 505 F.2d 1233 (C.A. 2), certiorari denied,

423 U.S. 897; Hess v. United States, 496 F.2d 936,

939 (C. A. 8); United States v. Moore, 484 F.2d 1284,

1287 (C.A. 4); United States v. Cluchette, 465 F.2d

749, 754-755 (C.A. 9); United States v. Wallace,

478 F.2d 876, 878 (C. A. 6), certiorari denied, 397

U.S. 955; United States v. Levine, 372 F.2d 70, 74

(C. A. 7), certiorari denied, 388 U.S. 916; Humes v.

United States, 186 F.2d 875 (C. A. 10).

In Nunn, Hendrix, Moore, and Levine the courts

expressly rejected the argument that reliance on the

defendant’s false testimony in determining sentence

amounts to punishment for perjury without a convic-

tion for that crime. In Hendrix, swpra, the court also

rejected the argument that a defendant might be de-

terred from testifying in his own behalf by the possi-

bility that the trial judge might disbelieve him and

increase his sentence, a conclusion in accord with

McGautha v. California, 402 U.S. 183, 213-220. The

court in Hendrix found that this danger did not war-

rant a ban against consideration of a defendant's per-

jury, suggesting “as a matter of unscientific observa-

tion and introspection * * * that trial judges generally

are (or become) sophisticated and experienced

enough to know that the convicted defendant who

»The District of Columbia Circuit alone is in accord with

the Third Circuit's decision in the instant case. See Scott v.

United States, 419 F.2d 264, 268-269 (C.A.D.C.).

10

took the stand is not ipso facto a perjurer” (505 F.2d

at 1236).°

Whichever may be the correct view of the law, we

submit that the issue is of substantial importance

to the administration of criminal justice and that

this Court should undertake to resolve the conflict

among the circuits.

¢ ‘(T]o encourage a measured approach to the subject,” the

Second Circuit adopted a rule, to be applied wholly prospec-

tively, “that in the future perjury should not be treated as an

adverse sentencing factor unless the judge is persuaded beyond

a reasonable doubt that the defendant committed it“ (505

F.2d at 1236). The opinion does not make clear whether the

court adopted this rule on supervisory or constitutional

grounds. Judge Rosenn, in dissent below, suggests that a

variation of that rule would provide appropriate protection

for a defendant hesitant to testify at trial. See note 4, supra.

We question whether any such restriction is appropriate or

consistent with the standards applied in connection with other

factors considered in sentencing, but it is in any event clear

that the limitations on consideration of a defendant’s perjury

suggested by these judges are satisfied on the facts of the

present case.

11

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

Wave H. McCree, I.,

Solicitor General.

BENJAMIN R. CIVILETTI,

Assistant Attorney General.

JEROME M. FEIT,

Pau. J. BRYSH,

Attorneys.

May 1977.

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 76-1646

UNITED STATES OF AMERICA

U.

TED R. GRAYSON, APPELLANT

On Appeal from the United States District Court

for the Middle District of Pennsylvania

Crim. No. 75-221

Submitted under Third Circuit Rule 12(6)

September 9, 1976

Before: ADAMS, ROSENN, and GARTH, Circuit Judges

Decided September 16, 1976

Judgment Vacated and Petition for Panel Rehearing

Granted October 15, 1976

2a ö 32

GARTH, Circuit Judge

Submitted for Rehearing under Third Circuit

On October 11, 1975, the appellant, Ted R. Gray-

Rule 12(6) Oct. 15, 1976

OPINION SUR PANEL REHEARING

Filed Jan. 7, 1377

S. John Cottone, Esq.

United States Attorney

Seranton, Pennsylvania 18501

Harry A. Nagle, Esq.

Assistant United States Attorney

Lewisburg, Pennsylvania 17837

Attorneys for appellee

John M. Humphrey, Esq.

23 West Third Street

Williamsport, Pennsylvania 17701

Attorney for appellant

son, without authority left the Allenwood Federal

Prison camp, where he had been serving a three-

year sentence for a controlled substances conviction.

Two days later, he was apprehended in New York

City.

Indicted for this escape pursuant to 18 U.S.C.

8751 (a), Grayson was tried before a jury in the

United States District Court for the Middle District

of Pennsylvania. His sole defense was duress—that

he had been forced to flee from Allenwood because of

threats on his life made by inmates to whom he

owed gambling debts. The jury, evidently disbe-

lieving Grayson, rejected this defense and found

Grayson guilty.

Section 751(a) provides:

§ 751. Prisoners in custody of institution or officer

(a) Whoever escapes or attempts to escape from the

custody of the Attorney General or his authorized repre-

sentative, or from any institution or facility in which he

is confined by direction of the Attorney General, or from

any custody under or by virtue of any process issued

under the laws of the United States by any court, judge,

or magistrate, or from the custody of an officer or em-

ployee of the United States pursuant to lawful arrest,

shall, if the custody or confinement is by virtue of an

arrest on a charge of felony, or conviction of any offense,

be fined not more than $5,000 or imprisoned not more

than five years, or both; or if the custody or confinement

is for extradition or by virtue of an arrest or charge of

or for a misdemeanor, and prior to conviction, be fined not

more than $1,000 or imprisoned not more than one year,

or both.

4a

The district court sentenced Grayson to a two-year

term of imprisonment which was to commence at the

conclusion of the sentence that he was then serving.

Prior to the actual sentencing, the district court had

expressed its belief that Grayson had lied while testi-

fying at trial.“ Thereafter, in imposing sentence the

court quite properly noted that it could, without giv-

ing any explanation, sentence Grayson to the maxi-

mum term of imprisonment provided by the statute,

that is, a five-year prison term, see note 1 supra. See

Dorszynski v. United States, 418 U.S. 424, 431

(1974); Gore v. United States, 357 U.S. 386, 393

(1958) ; Government of the Virgin Islands v. Richard-

son, 498 F.2d 892, 894 (3d Cir. 1974). Nevertheless,

the district court proceeded to identify those factors

which it had considered in arriving at the two-year

sentence and expressly invited appellate review of

its action. The district court’s comments were as

follows:

“THE COURT: Aili right. I’m going to give

my reasons for sentencing in this case with clar-

ity, because one of the reasons may well be con-

sidered by a Court of Appeals to be impermis-

sible; and although I could come into this Court

Room and sentence this Defendant to a five-year

prison term without any explanation at all; I

think it is fair that I give the reasons so that

if the Court of Appeals feels that one of the rea-

In its order of April 30, 1976 denying Grayson’s motion

for a new trial, the court had stated: “Grayson’s story was

a total fabrication and had no semblance of plausibility.” App.

at 47.

5a

sons which I am about to enunciate is an im-

proper consideration for a trial judge, then the

Court will be in a position to reverse this Court

and send the case back for re-sentencing.

In my view a prison sentence is indicated, and

the sentence that the Court is going to impose is

to deter you, Mr. Grayson, and others who are

similarly situated. Secondly it is my view that

your defense was a complete fabrication without

and I will do so.”

App. at 40.

Grayson advanced three contentions in his direct

appeal to this Court, the first two of which we have

found to be without merit.’ Only his final argument

concerns us here. Grayson argues that the district

court judge erred by imposing a sentence the sever-

ity of which was based in part upon the judge's be-

lief that the defendant had committed perjury during

the trial.” Disagreeing with that claim and satisfied

that Grayson's other two contentions should be re-

jected, we affirmed the judgment of the district court

by a judgment order dated September 16, 1976.

Thereafter, Grayson filed a petition for rehearing.

The thrust of the petition was that we had failed to

* Grayson’s first contention was that the district court had

erred in failing to ask his voir dire question “Would you be

more likely to find the defendant guilty merely because he has

previously been convicted of a crime“ His second claim was

that the court had erred in permitting the introduction of evi-

dence of his prior convictions for the purpose of impeaching

his credibility

follow a prior precedent in this Circuit, Poteet v.

Fauver, 517 F.2d 393 (3d Cir. 1975). In Poteet, this

Court had adopted the following principle of law:

A defendant has a right to defend, and although

he is not privileged to commit perjury in that

defense, the sentencing judge may not add a pen-

alty because he believes the defendant lied. One

reason is evident. A man may not be punished

except upon a charge and opportunity for hear-

ing. There having been no charge of perjury or

conviction for that crime, due process would be

denied if further punishment were inflicted for

that crime. Another reason, apart from this

procedural obstacle, is that the right to defend

would be unduly burdened if a defendant under-

stood that, if convicted, his mere denial of the

charge under oath would without more lead to

succesive convictions for perjury until he or the

State was exhausted.

517 F.2d at 395, quoting State v. Poteet, 61 N..

492, 495-96, 295 A.2d 857, 858 (1972).

Upon reviewing the petition for rehearing, we,

rather than the Court in banc,‘ reconsidered our

*This Court's Internal Operating Procedure 0.2. reads as

follows

O. In Banc Hearing or Rehearing

Bees

2. Rehearing In Bane after Decision. Where a petition

for rehearing before the panel or in banc has been filed by

a party as provided by F.R.A.P. 35(b) or 40(a), unless

the petition for panel rehearing under 40(a) states ex-

plicitly it does not request in banc rehearing under 35(b),

74

prior determination and vacated the judgment order.

We conclude that the controlling law in this Circuit

on this question is found in Poteet v. Fauver, supra.

I.

Our initial examination of Poteet when it was cited

as grounds for reversal in Grayson’s brief on appeal

had persuaded us that Poteet did not control the

disposition of this issue. Poteet, which accepted the

legal doctrines formulated by the New Jersey Su-

preme Court but held that they had been applied

incorrectly, presented much more egregious circum-

stances than are found here. In Poteet, the State

trial judge was unsuccessful in his attempt to force

Poteet to admit his guilt after the verdict and after

a co-defendant had been forced to “confess.” The

trial judge then added ten years to Poteet’s sentence

because of his failure to “confess.” This factual set-

ting differs dramatically from that which confronted

the district court judge in Grayson’s case. Despite our

initial belief that Poteet did not appear to control the

it is presumed that each rehearing petition requests both

panel rehearing and rehearing in banc.

a. Panel Rehearing. Each member of the panel

concurring in the majority has the right to require

rehearing before the panel. Thus, a senior judge of

this Court or a justice or a visiting circuit or district

judge sitting by designation who was a concurring

member of the panel has the right to require rehear-

ing the panel.

See also Notes on F.R.App.P. 35, Advisory Committee on

Appellate Rules; Third Circuit IOP 0.3.b.

result in Grayson because of its different factual] set-

ting, nevertheless when we reexamined Poteet we

could not fairly deny that this Circuit had committed

itself to the principle quoted above, i. e., that “the

sentencing judge may not add a penalty because he

believes that the defendant lied.”

The reading given Poteet by the dissent is substan-

tially different than our reading. The dissent claims

that

[t]he sentencing judge in Poteet .. . would have

effectively required the defendant to waive his

Fifth Amendment rights. Although certain lang-

uage in Poteet suggests that a sentencing judge

may not add an increment to a sentence in the

belief that the defendant lied under oath on the

witness stand, no such situation was presented

in Poteet. I must therefore conclude that it

was the trial judge’s disregard of Poteet’s Fifth

Amendment rights which animated this Court in

that case.

Dissenting Op. at 2. Additionally, the dissent reads

Poteet as pertaining only to post-verdict conduct as

opposed to perjury committed at any time during

trial. Id. at 3. Neither the text of Poteet nor the

inarticulated premises of Poteet support such a strain-

ed reading.

Nowhere in the Poteet opinion does the Court ad-

dress the Fifth Amendment concern which Judge

Rosenn in dissent would regard as the basis for the

Poteet court’s holding. It impresses us that when the

author of Poteet (Judge Aldisert) desired to confront

Fifth Amendment considerations in the sentencing

9a

process in United States v. Garcia, —— F.2d ——,

Nos. 75-1759 and 75-1760 (3d Cir., November 5,

1976), he did not disguise his intent or leave it to

implication. Rather, his discussion of Fifth Amend-

2 EEE

10a

plicit, undisguised, and unequivocal analysis found

in United States v. Garcia, supra, would have been set

forth in Poteet. Hence we cannot agree that the gov-

erning principle of Poteet and its result were the

product of this Court’s Fifth Amendment concerns.

Nor can we agree, in interpreting Poteet, that what

we consider to be its controlling principle, is “by

definition, only dictum.” See Dissenting Op. at 3.

Poteet prohibits a trial judge from increasing a

defendant’s sentence because the judge is convinced

that the defendant has lied while before him. Although

the colloquy between the judge and the defendant that

took place in Poteet occurred during sentencing, it

resulted from Poteet’s defense at trial, on which the

sentencing judge focused.

The state sentencing judge, prior to sentencing

Poteet, referred to Poteet’s trial defense as “an out-

rage” and to Poteet as “a liar,” 517 F.2d at 395:

When [Poteet] tells me he wasn’t there, he’s

a liar, right? I’m listening. You heard him.

He said he didn’t do it. The jury made a mistake.

Didn’t you hear him, didn’t you?

The entire basis for the state judge’s remarks at

sentencing was the testimony given at trial that Po-

teet, although found in the getaway car, persistently

claimed that he was “a hitch-hiker to whom the co-

defendants had happened to give a ride.” 517 F.2d

at 394. It was this “hitchhiker” versus robber“

status that was discussed at length during the state

sentencing procedure. Hence, we cannot consider as

lla

dictum this Court's holding in Poteet v. Fauver, which

was summarized by Judge Aldisert, the author of that

opinion, as:

Considering the totality of the sentencing

judge’s comments to Borowski and Poteet, we are

not convinced that an increment of prison time

was not added to Poteet’s sentence because he per-

sisted in maintaining his innocence after the

jury had returned a guilty verdict. We con-

clude that this contravened fundamental prin-

ciples so ably and accurately capsulated by Chief

Justice Weintraub:

There having been no charge of perjury or

conviction for that crime, due process would

be denied if further punishment were in-

flicted for that crime.

Id. at 398, quoting 61 N. J. at 495-96, 295 A.2d at

858.

In view of that holding, and despite any other sen-

tencing concepts to which we might otherwise be at-

tracted, we are controlled here by the principles an-

nounced in, and the holding of, the Poteet decision.

We are aware of differing views as to what might,

or might not, constitute appropriate considerations

and standards for sentencing in this context, see, e. g.,

United States v. Nunn, 525 F.2d 958, 960-61 (5th

Cir. 1976); United States v. Hendrix, 505 F.2d 1233,

1234-37 (2d Cir. 1974), cert, denied, 423 U.S. 897

(1975) ; Commonwealth v. Murray, —— Mass. App.

ct. ——, 19 Cr.L.Rep. 2480 (July 26, 1976). See

also the opinions of Judge Adams, concurring, and

12a

Judge Rosenn, dissenting, infra. Until such time,

however, as this Court in banc has renounced the doc-

trine of Poteet, we, as a panel of this Court, are

bound to give it effect.’ So, too, is the district court.

II.

It is no answer to interpret the comment of the

district court judge who sentenced Grayson as a

wholly gratuitous observation. To us, it is obvious

that the district court judge intended to, and did,

add an increment to the sentence he might otherwise

have imposed on Grayson.

The district court judge had commendably recog-

nized that articulating the basis for his sentence might

very well implicate Poteet and the principles estab-

lished therein. It was for that reason that he invited

this Court to focus its attention on the reason for

As the author of this majority opinion, I believe that the

only questions before us are (1) whether or not Poteet pro-

scribes an enhanced sentence for lying and, if it does, (2)

whether we must follow our earlier decision in that case. Hav-

ing answered both of these questions affirmatively, I find no

need to address the overall reach of sentencing considerations

which my brothers, Judges Adams and Rosenn, discuss. In-

asmuch as I regard this panel as bound by Poteet, I resist

the temptation of joining their discussion.

* Third Circuit Internal Operating Procedure M. 2. reads

as follows:

2. Avoiding Intra-Circuit Conflict. It is the tradition

of this Court that internal stability of its panel decisions

be preserved. To avoid conflicts in panel decisions no

subsequent panel may overrule a published opinion of a

previous panel. Court in bance consideration is required

to overrule a previous decision of this Court.

13a

the sentence imposed. He fairly stated that he could

have imposed the maximum prison term without any

explanation. Such is the law in this Circuit. See

United States v. Lee, 532 F.2d 911, 916 (3d Cir.

1976), Government of the Virgin Islands v. Richard-

son, supra. He also observed that his reason for im-

posing the sentence might be deemed to be improper,

and if that were the case then this Court would be in

a position to reverse his judgment. Finally, he stated:

“It is my view that your [Grayson’s] defense was a

complete fabrication without the slightest merit what-

soever. I feel it is proper for me to consider that

fact in the sentencing and I will do so.“ App. at 40.

As we have previously stated, Poteet mandates that

no additional penalty may be imposed upon a defend-

ant because the trial judge believes that the defend-

ant lied while testifying. Here, Grayson’s sentence

was unquestionably increased for just this reason.

His sentence, therefore, cannot stand.“

III.

We will reverse and remand to the district court

with directions that Grayson’s sentence be vacated and

that he be resentenced by the district court without

*We emphasize the narrowness of our holding, which is

limited to the one situation where, in sentencing, the district

court judge is of the opinion that the defendant lied while

testifying. We express no opinion as to any other consider-

ations that may be relevant to, and appropriate in, sentencing.

l4a

consideration of his alleged false testimony given at

trial.

TO THE CLERK:

Please file the foregoing opinion.

/s/ Leonard I. Garth

Circuit Judge

15a

ADAMS, Circuit Judge, concurring.

I concur in the result reached by Judge Garth, but

because of the nature of the problem presented by

this appeal consider it appropriate to add the follow-

ing brief observations.

Although, as Judge Rosenn notes, Poteet v. Fauver

arose out of a factual configuration markedly different

from the one now before us, I am persuaded that its

language and holding inveigh against the practice

of augmenting a sentence on account of a trial judge’s

belief that a defendant uttered false testimony.

Even if it were to be concluded that Poteet does

not contro] the present case, I would have serious

misgivings about the propriety of the sentencing pro-

cedure employed by the trial judge here. Such a prac-

tice, in my opinion, raises substantial constitutional

questions in that it arguably trenches upon a defend-

ant’s constitutional privilege to testify in his own

behalf as well as his right to have criminal charges

adjudicated pursuant to procedures required by due

process. If a trial judge increases a sentence be-

cause he is of the belief that a defendant’s testimony

is untruthful, such an action could be interpreted

as penalizing the defendant for exercising his consti-

tutional right to take the stand. In addition, this

practice could have the impermissible effect of deter-

517 F.2d 393 (3d Cir. 1975).

United States v. Jackson, 390 U.S. 570 (1970) ; Griffin

v. California, 380 U.S. 360 (1969); United States ez rel.

Macon v. Yeager, 476 F.2d 613 (3d Cir. 1973).

16a

ing future defendants from testifying in their own

behalf. Also, the defendant is, in effect, being pun-

ished for perjury, a separate offense that can be the

subject of a criminal prosecution.

Judge Rosenn’s dissent maintains that any consti-

tutional challenges to the sentencing procedure under

attack here have been foreclosed by the opinions of

the Supreme Court in Williams v. New Tork and of

this Court in United States v. Metz.“ I respectfully

cannot agree. Neither Williams nor Metz dealt with

the specific problems that now confronts us. The

facts of those cases did not present the two constitu-

tional infirmities that are arguably inherent in the

sentence augmentation procedure at issue in this

appeal. Nor do I find that the language of those op-

inions precludes a full consideration of these consti-

tutional questions. Finally, it should be borne in mind

that Williams antedated much of the evolving ju-

risprudence concerning the constitutional rights of the

accused. Given this fact, I believe that we should

be cautious about construing Williams in an ex-

pansive manner so as to govern the quite different

problems presented in this case.

In suggesting that the sentencing practice employ-

ed by the trial court is possibly constitutionally

flawed, I acknowledge that a clear majority of courts

of appeals have approved such sentence augmenta-

* 337 U.S. 241 (1949).

*470 F.2d 1140 (3d Cir. 1972), cert. denied, 411 U.S. 919

(1973).

17a

tion.“ Unlike Judge Rosenn, however, I do not be-

lieve that these citations can be considered to be con-

clusive of the constitutional issues. First, some of

these cases are factually distinguishable from the

one at bar. More important, however, is the fact

that the bulk of the opinions that sanction the prac-

tice simply do not address the constitutional consider-

ations. And those which do advert to the existence of

possible constitutional difficulties are devoid of sys-

tematic analysis of the constitutional problems. In

particular, I would note that Judge Frankel’s opinion

in United States v. Hendrix, upon which Judge

Rosenn places much reliance, does not deal with

constitutional concerns.

The constitutional issues that we leave unresolved

in this matter are, in my judgment, important ones

that merit serious scrutiny. Hopefully, at the proper

time, and in the proper case, they will receive de-

finitive treatment.

See United States v. Nunn, 525 F.2d 958 (5th Cir. 1976);

United States v. Hendrix, 505 F.2d 1233 (2d Cir. 1974); Hess

v. United States, 496 F.2d 936 (8th Cir. 1974) ; United States

v. Moore, 484 F.2d 1284 (4th Cir. 1973); United States v.

Cluchette, 465 F.2d 249 (9th Cir. 1972); United States v.

Wallace, 418 F.2d 876 (6th Cir. 1969); Humes v. United

States, 186 F.2d 875 (10th Cir. 1959). But see United States

v. Moore, 484 F.2d 1284, 1288 (4th Cir. 1973) (Craven, J.

— Scott v. United States, 419 F.2d 264 (D.C. Cir.

1 ).

* See, e.g., United States v. Wallace, 418 F.2d 876 (6th Cir.

1969).

505 F.2d 1233 (2d Cir. 1974).

18a

ROSENN, Circuit Judge, Dissenting

I respectfully dissent. The convicted criminal us

ually regards the preparation of his defense and the

ordeal of trial as unfortunate incidents of having

been apprehended for the crime. Even after a jury

has returned a verdict of guilty, the moment of truth

for him often comes only when the sentence and judg-

ment are imposed by the trial judge. The sentencing

may also mark the commencement of the defendant's

rehabilitation. The allocution of the judge at the

time of sentencing, therefore, may be a critical point

in providing the defendant with a realistic perspec-

tive and an opportunity, grim though it might be, to

see himself as others see him. A candid articulation of

the considerations which enter into the sentencing

process should therefore be encouraged and should

not be limited by the formal evidentiary constraints

of the trial contest. Judge Garth, however, believes

that in this case the judge violated the principle of

Poteet v. Fauver, 517 F.2d 393 (3d Cir. 1975), when

he considered as a sentencing factor the “complete

fabrication” of the defense. Judge Adams believes

that regardless of Poteet, the trial judge may have

invaded the defendant’s constitutional rights by aug-

menting the sentence on the substantive charge in the

belief that the defendant lied while testifying. I am

constrained to disagree with both propositions.

First, I do not believe that Poteet v. Fauver, supra,

is applicable to the facts of this case. Poteet involved

an effort by a state trial judge at sentencing to coerce

19a

a confession from the defendant under the threat of

imposing a longer sentence. A close reading of the

case shows that it was for that reason this court was

critical of the sentencing judge. The sentencing judge

emphasized that he was not concerned with Poteet’s

false testimony on the stand but with Poteet's re-

fusal to confess after the jury had rendered its ver-

dict against him:

It is one thing what you do before the jury.

When you come here for sentence, . . . that’s the

time for you to come clean, if there’s any hope

of your ever coming clean. [Emphasis supplied. |

Poteet, supra, 517 F.2d at 393. The trial judge im-

posed a substantially lighter sentence on Poteet’s

equally mendacious co-defendant because he confessed

his guilt when he appeared before the trial judge for

sentencing. There is absolutely no indication that

Poteet received a harsher sentence because he testi-

fied falsely. On the contrary, the evidence, including

the lecture delive cd to Poteet from the bench, dis-

closes the judge’s sole interest in extracting a confes-

sion of guilt from Poteet. Such an approach to the

sentencing process “penalizes a defendant for pre-

serving his right of appeal [and] it cannot be re-

garded as consistent with law... Scott v. United

States, 419 F.2d 264, 282 (D.C. Cir. 1969) (Levin-

thal, J., concurring). The sentencing judge in Poteet,

as in Scott, would have effectively required the de-

fendant to waive his Fifth Amendment rights

Although certain language in Poteet suggests that a

LL

sentencing judge may not add an increment to a sen-

tence in the belief that the defendant lied under oath

on the witness stand, no such situation was presented

in Poteet. I must therefore conclude that it was the

trial judge’s disregard of Poteet’s Fifth Amendment

rights which animated this court in that case. The in-

stant case, in contrast, presents no problem of co-

erced confession after trial and Poteet is therefore

inapposite.

Judge Garth apparently recognizes that the focus

of the trial court’s concern in Poteet was the defend-

ant’s refusal after trial to admit his guilt, not his

perjury during trial:

In Poteet, the state trial judge was unsuccessful

in his attempt to force Poteet to admit his guilt

after the verdict and after a co-defendant had

been forced to “confess.”

Judge Garth’s opinion at p. 4 (emphasis supplied).

Nevertheless, Judge Garth cannot agree that the

declaration in Poteet that “the sentencing judge may

not add a penalty because he believes that the de-

fendant lied” is mere dictum. Insofar as this langu-

age speaks to the problem of a defendant's lying on

the witness stand, however, it is, by definition, only

dictum, since that problem was not presented in Po-

teet. I fear that Judge Garth overlooks the critical

words of the Poteet holding on which he himself

relies:

Considering the totality of the sentencing

judge’s comments to Borowski and Poteet, we

* |

2la

are not convinced that an increment of prison

time was not added to Poteet’s sentence because

he persisted in maintaining his innocence after

the jury had returned a guilty verdict. [Empha-

sis supplied. }

Judge Garth reads the words “after the jury had re-

turned a guilty verdict” to mean “while the defendant

testified under oath.” Although Judge Garth feels

constrained by our Internal Operating Procedures to

conform his decision to that dictum, I do not believe

that our procedures require any such adherence.

As the majority agree, “the factual setting [in

Poteet) differs dramatically from that which con-

fronted the district court judge in Grayson’s case.”

The trial judge in the instant case made no attempt to

coerce Grayson into confessing, he merely recognized

that Grayson’s ready willingness to lie under oath

during the trial indicated that Grayson also had a re-

habilitation problem. Poteet therefore is not con-

trolling.

The issue before us is not an effort by the trial

judge to sentence the defendant for an independent

crime for which he was not Sed or to augment the

sentence on the substantive charge. The basic ques-

tion, as I view it, is whether it is impermissible for a

judge, in evaluating the sentence he is about to im-

pose for the underlying offense, to consider as an ele-

ment his firm belief that the defendant's tes timony

was a “complete fabrication.” In passing on the men-

dacious character of the defendant, the judge is not

imposing his sentence on an independent offense. Con-

22a

sideration of the characteristics of the defendant is

pertinent since it offers the judge relevant informa-

tion in the sentencing process.

Judge Adams believes that Judge Muir may have

invaded the constitutional rights of the convicted de-

fendant when he considered the defendant’s fabrica-

tion of his defense as a factor in the sentence. How-

ever, as I have already indicated, Judge Muir was un-

equivocal. He was not imposing any sentence for any

independent crime; he was merely considering the

behavior and character of the defendant as he saw

the defendant and heard the evidence during the trial

in his imposition of sentence for the underlying

crime.’ Such consideration, when not abused, has been

traditional in the courts and has been approved by

Congress.

Congress has directed the utilization of presentence

reports containing information about the defendants’

—

“characteristics.” Fed. R. Crim. Pro., Rule 32. Con-

gress has also expressly authorized federal courts to

“receive and consider for the purpose of imposing an

appropriate sentence” information concerning the

background, character, and conduct of the convicted

person.” As Judge Garth notes, no limitation is im-

posed by the statute on the information to be consid-

ered by the sentencing judge. The basis for this

enactment as indicated in the legislative history,

[1970] U.S. Code Cong. and Adm. News, p. 4007,

4040, is the decision in Williams v. New York, 337

U.S. 241 (1949), where the sentencing judge imposed

a death sentence in the face of the jury’s recommenda-

tion of life imprisonment.

In stating his reasons for fixing the sentence of

death, the sentencing judge in Williams relied upon

information in the presentence report and proceeded

under the New York policy which encourages a judge

in the exercise of his discretion to consider informa-

tion about the convicted person’s past life, health,

habits, conduct, and mental and moral propensities.

In rejecting the defendant’s challenge that this policy

denied him due process because it permitted considera-

tion of information from persons whom the defendant

had not been permitted to confront or cross-examine,

the Supreme Court distinguished rules of evidence

18 U.S.C. § 3577 (1970) provides:

24a

“fashioned for criminal trials which narrowly con-

fine the trial contest to evidence that is strictly rele-

vant to the particular offense charged” from in-

formation utilized in the sentencing process. The

Court observed that historically courts in this country

and in England have allowed a sentencing judge “wide

discretion in the sources and types of evidence used

by him in determining the kind and extent of punish-

ment to be imposed... .” Jd. at 247. The Court fur-

ther noted that this approach has even greater rele-

vance under “modern concepts individualizing punish-

ment” and under the prevalent philosophy of penology

“that the punishment should fit the offender and not

merely the crime.” Id. at 247.

In applying Williams, the Courts of Appeals of

various circuits have time and again held that the

sentencing judge is not limited to the consideration

of facts proven during trial.’ Consideration of prior

criminal activity never passed on by a court has been

expressly upheld by various circuits, sometimes

against direct constitutional attack.“ This Circuit, of

* See, e., United States v. Haygood, 502 F.2d 166 (7th

Cir. 1974), cert. denied, 419 U.S. 1114 (1975) ; United States

v. Gordon, 495 F.2d 308 (7th Cir.), cert. denied, 419 U.S. 833

(1974); United States v. Allen, 494 F.2d 1216 (3d Cir.),

cert. denied, 419 U.S. 852 (1974); United States v. Onesti,

411 F.2d 783 (7th Cir.), cert. denied, 396 U.S. 904 (1969).

* See, e., Horowitz v. Henderson, 514 F.2d 740 (5th Cir.

1975) ; Houle v. United States, 493 F.2d 915 (5th Cir. 1974)

(per curiam); United States v. Cifarelli, 401 F.2d 512 (2d

Cir.) (per curiam), cert. denied, 393 U.S. 987 (1968) ; United

States v. Weston, 448 F.2d 626 (9th Cir. 1971), cert. denied,

course, has given its express and wholehearted ap-

proval to consideration by a sentencing judge of pend-

ing indictments against the defendant. United States

v. Metz, Appeal of Davenport, 470 F.2d 1140 (3d

Cir. 1972), cert. denied, 411 U.S. 919 (1973). As

Judge Biggs wrote,

The fact that other criminal activity has not

been passed on by a court should not be control-

ling, for “of necessity, much information gar-

nered by the probation officer will be hearsay

404 U.S. 1061 (1972) ; United States v. Malcolm, 432 F.2d 809

(2d Cir. 1970); United States v. Doyle, 348 F.2d 715 (2d

Cir.) (Friendly, J.), cert. denied, 382 U.S. 848 (1965).

The scope of the sentencing judge's review has also been

held to include criminal activity by the defendant subsequent

to the trial of the crime for which he is being sentenced, United

States v. Eberhardt, 417 F.2d 1009 (4th Cir. 1969), cert.

denied sub nom Berrigan v. United States, 397 U.S. 909

(1970), facts underlying a separate charge then pending

against the defendant, 507 F.2d 826 (7th Cir. 1974), cert. de-

nied, 421 U.S. 949 (1975), and evidence admitted on counts

of which the defendant was acquitted, United States v. Sweig,

454 F.2d 181 (2d Cir. 1972). The sentencing judge bears

the responsibility for imposing a fair sentence which will

serve the ends of punishment, deterrence, and rehabilitation,

and the more he knows about the defendant's character the

better. See United States v. Marcello, 423 F.2d 993 (5th Cir.

1970), cert. denied, 398 U.S. 959 (1970). Thus, the sentencing

judge may even rely on illegally seized evidence which would

have been excluded at tria) because of Fourth Amendment

violations, United States v. Schipani, 435 F.2d 26 (2d Cir.

1970), cert. denied, 401 U.S. 983 (1971). Cf. Williams .

Oklahoma, 358 U.S. 576 (1969). Hearsay information may be

considered also, even though it bears no relation to the crime

for which the defendant is being sentenced. Gregg v. United

States, 394 U.S. 489 (1969).

a a

26a

and will doubtless be discounted accordingly, but

the very object of the process is scope.”

Id. at 1142, quoting from Judge Friendly’s opinion

in Doyle, supra. [Emphasis supplied by Judge Biggs. }

If under Williams, supra, and the legion of cases

which have followed it, hearsay evidence as to prior

arrests, pending indictments, or indictments tried

but not resulting in convictions, may be considered

constitutionally in the selection of an appropriate

sentence, it seems to me there is even greater jus-

tification for the judge to consider the attitude

and conduct of the defendant during trial. In the

instant case, the judge personally observed the wit-

nesses and the demeanor of the defendant; he was

impressed by the “complete fabrication” of the de-

fense and its utter lack of merit. His observation

specifically goes to the sort of person the defendant

is; it is precise, is pertinent to the sentence the de-

fendant should receive, and to the desirable objective

of making the punishment fit the offender.’

The trial judge’s weighing of the mendacious be-

havior of the defendant in the courtroom during

trial is an appropriate exercise of his broad range

of discretion on sentencing. It may be that the con-

duct deseribed also amounts to perjury, but it seems

to me to be less subject to due process attack than

‘Cf. United States v. Biscoe, 518 F.2d 95 (Ist Cir. 1975),

holding that it was proper for the trial judge to interpret the

defendant’s extensive dramatic display of gestures and facial

expressions during the trial as evidence that he had not re-

pented and to sentence accordingly.

27a

consideration of obvious hearsay in presentence re-

ports. The constitutional question which Judge Adams

raises was addressed and rejected in United States v.

Hendrix, 505 F.2d 1233 (2d Cir. 1974), cert. denied,

423 U.S. 897 (1975), in these words:

The appellant urges in substance that to pun-

ish him by an enhanced sentence for perjury

amounts to a kind of conviction for another

crime without the safeguards of indictment and

trial. But this ignores the nature of the sen-

tencing process as it exists in our system and

of the factors the trial judge may consider in

exercising a frequently enormous range of dis-

cretion. If there is no clear consensus on these

factors, it is certainly clear that they include,

as aggravating circumstances, conduct that is

not literally “criminal,” or at least had not been

duly adjudged criminal in the case in which

sentence is being imposed.

The effort to appraise “character” is, to be

sure, a parlous one, and not necessarily an en-

terprise for which judges are notably equipped

by prior training. Yet is is in our existing

scheme of sentencing one clue to the rational

exercise of discretion. If the notion of “repent-

ance” is out of fashion today, the fact remains

that a manipulative defiance of the law is not

a cheerful datum for the prognosis a sentencing

The opinion was authored by Judge Marvin Frankel of

the Southern District of New York sitting by designation.

Judge Frankel is a recognized authority on sentencing. See

M. Frankel, Criminal Sentences; Law Without Order (1973).

judge undertakes. [Citation] Impressions about

the individual being sentenced—the likelihood

that he will transgress no more, the hope that

he may respond to rehabilitative efforts to as-

sist with a lawful future career, the degree to

which he does or does not deem himseif at war

with his society—are, for better or worse, cen-

tral factors to be appraised under our theory of

“individualized” sentencing. The theory has its

critics. While it lasts, however, a fact like the

defendant’s readiness to lie under oath before

the judge who will sentence him would seem to

be among the more precise and concrete of the

available indicia.

Even in cases where defendant’s mendacity has not

risen to the level which moved Judge Muir in this

case, all circuits except one have rejected the conten-

tion that a judge in imposing sentence cannot properly

consider the defendant’s willingness to lie under oath.*

Compare United States v. Hendrix, 505 F.2d 1233 (2d Cir.

1974), cert. denied, 423 U.S. 897 (1975); United States v.

Moore, 484 F.2d 1284 (4th Cir. 1973); United States v.

Nunn, 525 F.2d 958 (5th Cir. 1976), rehearing denied, 527

F.2d 1390 (1976); United States v. Wallace, 418 F.2d 876

(6th Cir. 1969), cert. denied, 397 U.S. 955 (1970); Hess v.

United States, 496 F.2d 936 (8th Cir. 1974); United States

v. Clauchette, 465 F.2d 749 (9th Cir. 1972) ; Humes v. United

States, 186 F.2d 875 (10th Cir. 1951), with Scott v. United

States, 419 F.2d 264 (D.C. Cir. 1969).

„ also fear that a rule barring a sentencing judge from

considering a defendant’s obvious willingness to lie under

oath will have a pernicious effect. A sentencing judge can-

not help but be influenced by his conviction that the offender

deliberately and flagrantly lied under oath during the trial.

The majority’s rule may have the effect of replacing the type

— — ASR ©

——ä—ä— — —

In addition to Hendrix, supra, constitutional argu-

ments were reviewed in Hess v. United States, 496 F.

2d 936 (8th Cir. 1974), and were explicitly raised by

Judge Craven’s concurring opinion in United States

v. Moore, 484 F.2d 1284 (4th Cir. 1973), and im-

plicitly rejected by the majority. Thus, the weight of

decisional] and statutory authority favors considera-

tion by a sentencing judge of a wide variety of infor-

mation which might serve to illuminate the character

of the person being sentenced—hearsay evidence of

past crimes, character evidence gathered in the pre-

sentence report, the allocution by the defendant at the

time of sentencing, and the judge’s impression of the

defendant’s character.

vf commendably frank and instructive explanation which

Judge Muir delivered to the defendant in this case with an

unconscious, unexpressed reliance on the very same factor. If

the sentencing judge withholds his thoughts, any sentence

within legal limits will withstand attack. A wooden and

mechanical announcement of the sentence will replace an

intelligent articulation of reasons. Judge Frankel succinctly

stated the need for such articulation:

The absence of any explanation or purported justification

for the sentence is among the more familiar and under-

standable sources of bitterness among people in prison.

Philosophers have agreed for ages on the ideal that the

person suffering punishment should be guided to under-

stand and, in the ultimate hope, realize the justice of the

affliction. Our practice of terse dispositions is at the

opposite pole.

M. Frankel, supra note 5, at 42-43. See also Gollaher v. United

States, 419 F.2d 520, 530 (9th Cir. 1969), cert. denied, 396

U.S. 960 (1964).

30a

In selecting an appropriate sentence, of course, the

judge should scrutinize the probative value of the

evidence he considers and discount evidence which

may be dubious. The exclusion from the scope of

the judge’s inquiry of visible and clear conduct of

the defendant in the presence of the judge during

trial needlessly limits the judicial process in dispens-

ing justice and adds little to the due process interests

of the defendant.

Judge Adams does not find the decisions of our

sister circuits to be conclusive and I recognize, of

course, that they do not bind us. We are bound, how-

ever, by the Supreme Court’s decision in Williams and,

as a panel, by our own prior decision in Metz, supra.

Although Judge Adams suggests that Williams and its

progeny can be distinguished from this case, I can

see no meaningful distinction. I believe the principles

of Williams and Metz are controlling.

Even if Williams and Metz were not controlling, |

would still believe that Judge Muir’s consideration of

the defendant’s behavior was not impermissible. I

am not suggesting that when judges sentence a de-

fendant for an underlying offense they should indis-

criminately impose some increment because he has

testified falsely. Judges rarely take such action,

recognizing that men on trial may lie under stress

and instinctively protect their innocence. But when a

judge is outraged by a blatantly fabricated defense

committed in his presence and of which he has no

reasonable doubt, I do not see any constitutional im-

permissibility in his considering such conduct in sen-

; |

31a

tencing. I agree with the Second Circuit in Hendrix,

supra, 505 F.2d at 1236, that the sentencing judge

should consider his independent evaluation of the

testimony and behavior of the defendant only when

he is convinced beyond a reasonable doubt that the

d@fendant intentionally lied on material issues of

fact. The requirement that the judge be convinced be-

yond a reasonable doubt offers the defendant a valu-

able safeguard.

As an additional safeguard to the defendant, I

would require that the falsity of the defendant’s testi-

mony be necessarily established by the finding of

guilt. There must be no possibility that the substan-

tive law applied was such that the factfinder could

have believed the defendant’s testimony at the same

time as it found him guilty. If, for example, a person

charged with burglary testifies that he burglarized out

of hunger, the substantive criminal law is such that

the factfinder could find the defendant guilty even as

it finds his testimony wholly truthful. On the other

hand, when a defendant testifies to an alibi, a finding

of guilt would necessarily rest on a finding that his

testimony was false. This additional safeguard thus

minimizes the possibility of abuse. A review of the

record in this case reveals that Judge Muir applied

both these safeguards.

Accordingly, I would affirm the judgment of the

sentencing court.

82a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 76-1646

UNITED STATES OF AMERICA

ve.

TED R. GRAYSON, APPELLANT

(D.C. Criminal No, 75-221)

On Appeal from the United States District Court

for the Middle District of Pennsylvania

Present: ADAMS, ROSENN and GARTH, Circuit Judges

JUDGMENT

This cause came on to be heard on the record from

the United States District Court for the Middle Dis-

trict of Pennsylvania and was submitted for rehear-

ing under Third Circuit Rule 12(6).

On consideration whereof, it is now here ordered

and adjudged by this Court that the judgment of the

said District Court, entered March 12, 1976, be, and

the same is hereby reversed and the cause is remanded

to the district court with directions that Grayson’s

sentence be vacated and that he be resentenced by the

district court without consideration of his alleged false

testimony given at trial, in accordance with the opin-

ion of this Court.

ATTEST:

s Thomas F. Quinn

Clerk

January 7, 1977

34a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 76-1646

UNITED STATES OF AMERICA

v.

Tep R. GRAYSON, APPELLANT

SUR PETITION FOR REHEARING

Present: Seitz, Chief Judge, VAN DUSEN, ALDISERT,

ADAMS, GIBBONS, ROSENN, HUNTER, WEIS

and GARTH, Circuit Judges

The petition for rehearing filed by Appellee in the

above entitled case having been submitted to the

judges who participated in the decision of this court

and to all the other available circuit judges of the cir-

cuit in regular active service, and no judge who con-

curred in the decision having asked for rehearing, and

a majority of the circuit judges of the circuit in regu-

lar active service not having voted for rehearing by

the court in bane, the petition for rehearing is denied.

Judges Van Dusen and Rosenn would grant the peti-

tion for rehearing.

1

By the Court,

/s/ Leonard I. Garth,

Judge

Dated: March 17, 1977

35a

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 76-1646

UNITED STATES OF AMERICA

v.

GRAYSON, TED R., APPELLANT

On Appeal from the United States District Court

for the Middle District of Pennsylvania

Crim. No. 75-221

Submitted Under Third Circuit Rule 12(6)

September 9, 1976

Before: ADAMS, ROSENN and GARTH, Circuit Judges

JUDGMENT ORDER

After considering the contentions raised by appel-

lant, namely, that (1) the trial judge erred in refus-

ing to ask the jury panel voir dire defendant’s pro-

posed voir dire question No. 3, which provided:

“Would you be more likely to find the defendant

guilty merely because he has previously been convicted

of a erime?“; (2) the trial judge erred in permitting

the government to introduce evidence of the defend-

ant’s prior conviction for the purpose of impeaching

his credibility; and (3) the trial judge erred in im-

posing a sentence the severity of which was based

in part upon the judge’s belief that the defendant

had committed perjury during the trial, it is

ADJUDGED AND ORDERED that the judgment

of the district court be and is hereby affirmed.

BY THE COURT,

/s/ Arlin M. Adams

Circuit Judge

ATTEST:

/s/ Thomas F. Quinn

THOMAS F. QUINN, Clerk

Dated: Sep 16, 1976

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