# Petition — United States v. Grayson

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1821%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1978
- **Citation:** 438 U.S. 41

## Text

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.

r T =

eee Sa ae la

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

@ ©. © sovenemeer reverse orrice, 1977 233530 65

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1821%3A1. Public record. Not legal advice.