Petition — Rosner v. United States

rt, U. §

LED

In THe | MAY 22 4977 :

Supreme Court of the Rites... fie

Sree :

76-1641

OCTOBER TERM, 1976

EDMUND A. ROSNER,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

em Sees sae ee aaa seal eee eee ee

ALAN DERSHOWITZ

Attorney for Petitioner

14 Concord Avenue

Cambridge, Massachusetts

). JEFFREY WEISENFELD

on the Petition

of counsel

401 Broadway

New York, N.Y. 10013

a

Dick Bailey Printers, 290 Richmond Ave., Staten Island, N.Y. 10302

Tel.: (212) 447-5358

ee

=

TABLE OF CONTENTS

Page

PEED cvccacccceccccussecbécossccessece 1

DD hhcehsbueteskbdkecodsseucecnehausvens 2

SPEED cop cccucscccvensdevedccceoeces 2

Constitutional Provisions And Statutes Involved ...... 2

ED Sit ee i ns ae SeSEnS 2

Reasons for Granting the Writ .................5-. 5

The Court of Appeals Decision Is In Conflict With

Prior Decisions Of This Court And Decisions in

SS a ee a 5

Appendix A—Decision of U.S. Court of Appeals

DasiGed Feb. 6, 0977 2. nc ccccccccccccccccccees la

Appendix B—Order of U.S. Court of Appeals dated

Ra TD, BOTT oo ccccvesccccccacccscecsoscsece 10a

Appendix C—Excerpts from Statutes ............... 12a

CASES CITED:

Argersinger v. Hamlin, 407 U.S. 25 (1972) .......... 6

Betts v. Brady, 316 U.S. 455 (1942)... 2.6.6 eee eee 6

Collins v. Buchkoe, 493 F.2d 343 (6th Cir. 1974) .....

Farrow v. United States, ——— F.2d ——, 20 Cr. L.

NE Rr ye > Be Rise

Gardner v. Florida, —— U.S. ——., 97 S.Ct. ——, 51

ct a ie

Garrison v. United States, 524 F.2d 920 (Sth Cir. 1975)

Gideon v. Wainwright, 372 U.S. 37 (1963) ..........

Gill v. Estelle, S30 F.2d 461 (Sth Cir. 1976) ..........

Martinez v. United States, F.2d 1289 (10th Cir.

ee eee. ce bE bene cia

Townsend v. Burke, 334 U.S. 736 (1948) ............

United States v. Daniels, 446 F.2d 967 (6th Cir. 1971) .

United States v. Hopkins, 531 F.2d S76 (D.C. Cir.

SEED bbuveehecueeéweess dccuueecsebhbibeuseus

United States v. Looney, SO1 F.2d 1039 (4th Cir. 1974)

United States v. Powell, 487 F.2d 325 (4th Cir. 1974) ..

United States v. Tucker, 404 U.S. 443 (1972) ........

STATUTES CITED:

18 U.S.C. §§201(b) and 2 and 3227 ....... 2.6.00 ee

Pah eh eee SOOT sO re aa

iil

a

an Css coctpawanckdeesadedsehe

28 U.S.C. §2255

“eeeeeeeeeeeeeeeeenreeeeereeeeeeeee# * @

Supreme Court of the United States

OCTOBER TERM, 1976

——E

EDMUND A. ROSNER,

Petitioner.

v

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

Edmund A. Rosner. the petitioner herein, prays that a

writ of certiorari issue to review the judgment of the United

States Court of Appeals for the Second Circuit entered in

the above entitled case on February 1, 1977.

OPINION BELOW

The opinion of the United States Court of Appeals for

the Second Circuit affirming an order of the United States

District Court for the Southern District of New York, Inzer

B. Wyatt, J., denying petitioner's motion to vacate or

correct the sentence imposed upon conviction for con-

spiracy, obstruction of justice and bribery, is reported at

549 F.2d 259 and is printed in Appendix A, infra, at pp.

la-9a. The orders of the Court of Appeals denying a

petition for rehearing containing a suggestion that the

action be reheard en banc are printed in Appendix B,

infra, at pp. 10a-11a.

Circuit was entered

The judgment of the Court of Appeals for the

at least in part, by a

ppeal because petitioner

misconduct on the part of petitioner

sentencing judge considered in ulating .

imposed, be vacated. where upon — yy

of

Crim. P. 35 and 28 U S.C. §225S, the — text

which is set forth in Appendix C at pp. 12

United States District Court for the sn USL. iy

ork of the crimes of

ean of justice, §18 U.S.C. §§ 1503 he ay

counts of bribery, 18 U.S.C. §§201(b) and 2 = é

conviction followed a jury trial before the .

Bauman, U.S.D.J. After hearings on two separate motions

for a new trial, petition r was sentenced to concurrent

terms of five years imprisonment. On appeal, his con-

viction was affirmed but the sentence was vacated and the

case remanded for resentencing by another judge. 48S F.2d

1213 (2d Cir. 1973). No mandate issued, however, pending

a petition for a writ of certiorari. While that petition was

still pending, petitioner moved for a new trial based on

newly discovered evidence that the government's main

witness, Detective Robert Leuci, had committed flagrant

and massive perjury at his trial concerning the extent of his

own prior criminal misconduct. This court denied cer-

tiorari without prejudice to the district court's con-

sideration of the motion for a new trial, 417 U.S. 950

(1974). After a hearing, Judge Bauman denied the motion

in an unreported opinion. On appeal the denial of the new

trial motion was affirmed, 516 F.2d 269 (2d Cir. 1975).

Certiorari was denied on June 30, 1976, 427 U.S. 911.

Petitioner filed a timely petition for rehearing and on

October 4, 1976, this Court requested the Solicitor General

to respond to the petition for rehearing, 97 S.Ct. 49. On

November 29, 1976, the petition for rehearing was denied,

Justice Marshall noting his dissent, 97 S.Ct. 513. On

August 16, 1974, the Hon. Inzer B. Wyatt, U.S.D.J., who

had been assigned to resentence petitioner, imposed

concurrent sentences of three years imprisonment on each

count. On August 26, 1976, petitioner moved for a

reduction of sentence pursuant to Fed. R. Crim. P. 35.

This motion was denied on September 13, 1976. On

September 26, 1976, petitioner filed a motion to vacate the

August 16, 1974 sentence pursuant to Fed. R. Crim. P. 35

and 28 U.S.C. §2255S and to reassign the case for resentencing

before another judge. On October 1, 1976, Judge Wyatt

denied this motion. On February 1, 1977, the Court of

Appeals for the Second Circuit affirmed, 549 F.2d 259. On

April 22. 1977, a petition for rehearing containing a

suggestion that the action be reheard en banc was denied.

On appeal petitioner argued that the sentence imposed

by Judge Wyatt was illegal because in imposing “~~

Judge Wyatt specifically took into poorer nar sa Mate 7

Bauman’s prior sentence which was vacated by -

Appeals because petitioner's counsel was not given =

ficient time to rebut a memorandum received from =

United States Attorney which contained allegations

other misconduct on the part of petitioner which Judge

Bauman considered in formulating the sentence he >

posed. Before imposing sentence Judge Wyatt stated:

“I have taken into account, as a factor, Judge

Bauman’s sentence and | disagree with Mr.

Dershowitz’s memorandum that no weight

whatever can be given to Judge Bauman'’s sen-

tence.

| believe that Judge Bauman’s sentence is one of

the many factors to be considered, properly to be

considered by me in arriving independently at a

sentence now to be imposed.’ (A26-7)*

ourt of A affirmed, ruling that where, as

ae case Rey oo remanded, not because Judge

Bauman’s reliance on the prosecutors apraeren

memorandum was per se i on gage end mgr

was not given an opportunity to rebut the a

other wrongdoing contained in the memorandum, udge

Wyatt had the discretion to consider the initial ve

and his consideration of it did not vitiate the sentence

imposed, where “Rosner had every opportunity to ~<A

trovert the charges of the original governmen

memorandum and to urge Judge Wyatt to abjure reliance

on the initial sentence which might have been based in part

on the memorandum.” 549 F.2d at 263.

umbers in parentheses preceded by an “A” refer to pages in

Appatiant’s Appendia in the Court of Appeals

The court's opinion appears inconsistent with the record

facts that Rosner’s counsel explicitly urged Judge Wyatt to

abjure reliance on Judge Bauman’s initial sentence (AS4.

26-7), and only failed to contradict the allegations in the

initial government sentencing memorandum because Judge

Wyatt in a proceeding on July 1, 1974, explicitly told him

not to:

The Court: “You don't need to respond to it,

because | have never seen it, and I don't have it,

and I don't want it.”

(Transcript of proceedings, July 1, 1974, p. 10.)

The court also concluded that Judge Wyatt reached his

determination “‘independently."’ See, 549 F.2d at 264, N.7.

This conclusion appears to be inconsistent with Judge

Wyatt's statement on the record, that in arriving at a

sentence to be imposed on Rosner he gave weight to Judge

Bauman’s prior sentence.

REASONS FOR GRANTING THE WRIT

THE COURT OF APPEALS DECISION IS IN

CONFLICT WITH PRIOR DECISIONS OF

THIS COURT AND DECISIONS IN OTHER

CIRCUITS.

This Court has held that due process requires that a

defendant be resenteaced where the court considered

misinformation in imposing sentence, such as an inac-

curate criminal record, Townsend v. Burke, 334 U.S. 736

(1948), or where the sentencing court considered a prior

unconstitutional conviction, United States v. Tucker. 404

U.S. 443 (1972). Courts of Appeals outside the Second

Circuit have uniformly held that a defendant must be

resentenced where his sentence was either based on

misinformation or was imposed without affording him an

opportunity to rebut derogatory informatio \ considered by

the court in imposing sentence. United States v. Looney.

i Powell, 487

S01 F.2d 1039 (4th Cir. 1974); United aS * = m4

F.2d 325 (4th Cir. 1974); Gill v. Estelle, - a eo

Cir 1976); Garrison V. United States. “ a oe ie

Cir, 1975); Collins v. Buchkoe, 492 F.2d 385 U0) Ce

1974); United States ¥. Daniels, we sl sy an

1971); Farrow Vv. United States. omen ~ oa ate

2121 (9th Cir. 1976); Martinez v. Unit 4 sabes as O08

1289 (10th Cir. 1972); United States v. He ~ 4 , AA

$76 (D.C. Cir. 1976). This a ro yr

_ Florida, ——U.S.——. 7/ >*" —. ap

ue7 that in capital cases due process yy wa eS

defendant be given an opportunity to rebut ro die ge

information in a presentence report ss A Rava

court in imposing sentence. Due process ponies yo

mandate the application of this rule to — vg

criminal case where one’s liberty is pl an a

Compare Gideon ¥. Wainwright, 372 yee I< =

overruling Betts v. Brady, 316 U.S. y hs :

Argersinger V. Hamlin, 407 U.S. 25 ( :

The Court of Appeals sought to a = —

n which we relied below on the ground t a Bees

pe remand was based upon nae - Aye

nity to rebut it.” : , N.3.

et a + dota Circuit of the due — ee

resentencing to only those defendants _— = ten

based on misinformation, directly con pao eoges

in other circuits and applicable decisions non oy ee

Sixth Circuit in Collins v. Buchkoe, eS anil

Circuit in United States v. Looney. supra, eat on

ruled that due process requires the = $ a

defendant who was not “afforded t ase » Bre

rebutting derogatory information = ses Mp

upon by the sentencing judge, when suc a nt

in fact be shown to have been materially false.

Buchkoe, supra, at 3S.

7

In addition, we submit that where, as here, a defendant

claims that allegations of other wrongdoing contained in a

prosecutor's initial sentencing memorandum are false and

unfounded, and the defendant upon remand has again

been denied an opportunity to controvert those allegations,

as occurred here (Transcript of Proceedings, July 1, 1974,

p. 10), then for appellate purposes, those allegations must be

presumed to be misinformation, and where as here, the

record shows that the initial tainted sentence influenced the

formulation of the new sentence (A26-7), then the cases we

relied upon below, even accepting the Second Circuit's

unprecedented limitation, are directly in point. See Collins

v. Buchkoe, supra.

It is conceded that petitioner was denied an opportunity

to rebut the prosecution's pre-sentence memorandum by

Judge Bauman, the original sentencing judge, and

petitioner's resentence was ordered on this ground. Judge

Wyatt, who resentenced petitioner, told petitioner's

counsel that he did not have and would not consider the

memorandum and that therefore counsel should not reply

to it. Then in imposing sentence, Judge Wyatt stated on the

record that he was giving weight to Judge Bauman’s

sentence, which was influenced in its formulation by the

prosecutor's unrebutted pre-sentence memorandum.

Clearly, petitioner was denied due process since for the

second time he was not afforded an opportunity to rebut

derogatory information which may have had an indirect

effect upon the formulation of the sentence Judge Wyatt

imposed upon him. That petitioner has been prejudiced by

the denial of an opportunity to rebut this information may

be inferred from the fact that the three year sentence of

imprisonment imposed by Judge Wyatt exceeds the one

year sentenced imposed on his indisputably more culpable

codetendants, and the statistical mean sentence of less than

two years typically imposed in cases similar to petitioner's

(AS4-64).

CONCLUSION

ASONS, THIS

E FOREGOING RE

oerTiOet FOR A WRIT OF CERTIORARI

SHOULD BE GRANTED.

Respectfully submitted,

ESQ.

ALAN DERSHOWITZ,

). JEFFREY WEISENFELD, ESQ.

Attorneys for Petitioner

la

APPENDIX A

UNITED STATES of America, Appellee,

v.

Edmund A. ROSNER,

Defendant - Appellant.

No. 644, Docket 76-1483.

United States Court of Appeals,

Second Circuit.

Argued Jan. 12, 1977.

Decided Feb. 1, 1977.

Jeffrey 1. Glekel, Asst. U.S. Atty. (Robert B. Fiske, Jr.,

U.S. Atty., S.D.N.Y., Frederick T. Davis, Asst. U.S.

Atty., New York City, of counsel), for appellee.

J. Jeffrey Weisenfeld, New York City (Alan M. Der-

showitz, Cambridge, Mass., Nancy Rosner, Elliot A.

Taikeff, New York City), for defendant-appellant.

Before KAUFMAN, Chief Judge, and SMITH and

MULLIGAN, Circuit Judges.

MULLIGAN, Circuit Judge:

On December 5S, 1972 Edmund A. Rosner, an attorney,

was convicted in the United States District Court for the

Southern District of New York of the crimes of conspiracy,

18 U.S.C. §371, obstruction of justice, 18 U.S.C. §§1503

and 2, and three counts of bribery, 18 U.S.C. §§201(b) and

2, and 3237. His conviction followed an elevey-day jury trial

before Hon. Arnold Bauman, United States District Judge.

After hearings on two separate motions for a new trial,

Rosner was sentenced on March 20, 1973 to concurrent

terms of five years imprisonment. His conviction was af-

firmed by this court on September 26, 1973, 485 F.2d 1213,

but the sentence was vacated. The case was remanded for

_ resentencing by another judge on grounds which will be

2a

discussed later in this opinion. No mandate issued,

however, pending Rosner’s petition for a writ of certiorari.

While that petition was still pending, Rosner moved for a

new trial based on newly discovered evidence. on June 10,

1974, the Supreme Court denied certiorari without

prejudice to the district court’s consideration of the motion

for a new trial. 417 U.S. 950, 94 S.Ct. 3080, 41 L.Ed.2d

672. After two hearings on the motion for a new trial, Judge

Bauman on August 15, 1974, denied the motion in an

unreported opinion. The denial of the motion for a nev’

trial was appealed and was affirmed by this court on April

29. 1975. United States v. Rosner, 516 F.2d 269. Certiorari

was denied on June 30, 1976, 427 U.S. 911, 9 S.Ct. 3198,

49 L.Ed.2d 1203, and the petition to rehear its denial was

denied on November 29, 1976. ——U.S.——., 97 S.Ct.

513, 530 L.Ed.2d ——.

On August 16, 1974, Hon. Inzer B. Wyatt, United States

District Judge, Southern District of New York, who had

been assigned to resentence Rosner, imposed concurrent

sentences of three years imprisonment on each count. On

August 27, 1976, Rosner moved for a reduction of sentence

pursuant to Fed.R.Crim.P. 35. This was denied by the

district court on September 3, 1976. On September 26,

1976, Rosner filed the present motion to vacate the August

16, 1974 sentence pursuant to Fed:R.Crim.P. 35 and 28

U.S.C. §2255 and to reassign the case for resentencing

before another judge. Judge Wyatt denied this motion by

order dated October 1, 1976. This appeal followed.: We

affirm.

In Judge Gurfein’s opinion for this court in United States

v. Rosner, supra, 485 F.2d at 1229-31, the reason for

resentencing Rosner is clearly articulated. Judge Bauman

had received a lengthy memorandum from the United

States Attorney's office, admittedly not screened by the

Probation Department, which outlined some 17 charges of

additional “possible misrepresentations, fraudulent

3a

conduct, lying, and unethical behavior”

Rosner. The United States p thenaee pe gabiawed «9 <

it was impossible to prove all of these charges. This

memorandum had been held in camera by the judge for

over two months. Judge Bauman stated on the day of

sentencing that he was taking into consideration “the

prosecutor s memorandum but it was not given to Rosner’

counsel until that morning. Counsel thereupon sannested

an adjournment so that he might have the Opportunity t

answer the charges in the memorandum. The adjourn ;

was denied. We concluded on appeal that counsel should

have been given a continuance in order to have a

reasonable opportunity to rebut the adverse information

contained in the prosecution memorandum.:

Judge Gurfein stated in conclusion:

In resentencing, the judge redrawn will either

not consider the » on -oemae or if h : deems

it desirable to read it, wil! afford a reasonable

opportunity, in advance of sentencing, to defense

counsel to attempt to refute its accusations. We do

not, however, order an evidentiary hearing.

Williams v. New York, supra \337 U.S. 241. 69

S.Ct. 1079, 93 L.Ed. 1337]. Nor do we make ‘on

Suggestion regarding the appropriate sentence. ‘

The conviction is affirmed; t i

vacated and the case is remanded _ b noone

in conformity with this opinion. ;

Id. at 1231 (footnote omitted).

The appellant's sole point upon this i

Wyatt's sentence is illegal eet Paguonreng tL

considered Judge Bauman’s prior illegal sentence. At the

ma of sentence Judge Wyatt stated, “I believe that Judge

auman s sentence is one of the many factors to be con-

as properly to be considered by me in arriving in-

ependly at a sentence now to be imposed.” Appellant

4a

argues that since Judge Bauman’s sentence was vacated by

abaut it was illegal and any reliance upon it vitiates the

new sentence. The argument is neither convincing "or

persuasive.

As Judge Gurfein’s opinion makes clear, we remanded

the case not because Judge Bauman’s reliance on the

government's sentencing memorandum was per se im-

proper but simply because Rosner’s counsel was not given

the opportunity to rebut the 17 extraneous allegations of

other wrongdoing it contained. Any possible doubt about

this must be dispelled by our direction to the resentencing

judge that “|he] will either not consider the prosecutor s

report, or if he deems it desirable to read it, will afford a

reasonable opportunity, in advance of sentencing, to

defense counsel to attempt to refute its accusations. Id. at

1231. Thus it is crystal clear that we did not consider the

prosecutor’s memorandum as a document not to be em-

ployed on resentencing but explicitly gave the resentencing

judge discretion to read it conditioned only upon his af-

fording Rosner’s counsel the opportunity to rebut its

allegations.»

Of course, it is conceded that Judge Wyatt did not read

or depend directly on the initial government memorandum.

Indeed, the procedures followed on resentencing were

exemplary. He carefully indicated what he had considered

in fixing the sentence — the opinion of the Court of Ap-

peals, the presentence reports of the Probation Depart-

ment, the sentencing memoranda of the government and

the defendant. The government’s memorandum filed on

November 27, 1973, two months after our remand, was

obviously in the hands of defense counsel before resen-

tencing since Rosner’s sentencing brief makes reference to

it. Rosner’s counsel in fact made no effort and sought no

opportunity to controvert the contents of the earlier report

even though the entire basis for our remand was the

previous lack of opportunity for rebuttal. It may well be

5a

that this reticence was strategically sound since any further

exploration of the charges it made might have exacerbated

the posture of his client. Rosner claimed in his sentencing

memorandum that the second government report con-

tained false allegations with respect to four unrelated

matters as well as a charge that after his trial Rosner at-

tempted to “‘infiltrate’’ the United States Attorney’s office

by sending someone to speak to an Assistant while wearing

a recording device. Interestingly, Rosner’s memorandum

does not deny the incident but objects to its charac-

terization as ‘infiltration’ and would prefer to term it as a

legal and ethical attempt to preserve evidence. Aside from

terming the other extraneous material as false no effort was

made to rebut or dispute the accuracy of the statements.

There is no issue raised here with respect to the second

government report. None in fact could be made on this

appeal since Judge Wyatt stated on sentencing, “I have not

taken into account in now formulating a sentence the so-

called Joe Jacobs incident [the use of the recording device]

or the four so-called unrelated matters; that is, I think the

defendant's sentencing memorandum calls them unrelated

matters. | have not passed on them one way‘or the other. |

simply have not taken them into account.”

[1 .2| Judge Wyatt was concerned, however, to assess the

Seriousness of Rosner’s offense, particularly since the

degree of Rosner’s culpability was bitterly contested. He

was severely handicapped in this essential task because he

had not heard the evidence presented at trial. Accordingly,

he relied on Judge Bauman’s view, expressed in the initial

choice of a five-year sentence, that Rosner’s offense was

indeed a serious one. Rosner had every opportunity to

controvert the charges of the original government

memorandum and to urge Judge Wyatt to abjure reliance

on the initial sentence, which might have been based in

part on the memorandum. This he has utterly failed to do.

Instead, his present appeal is reduced to the bald

6a

proposition that the new sentence is vitiated per se by Judge

Wyatt's consideration of Judge Bauman’s prior sentence.

However, there has been a total failure to establish that

Judge Bauman did rely on information which was in fact

false. It is well established that the sentencing judge may

take into consideration reports based on hearsay and is not

at all limited to a consideration of those facts upon which

the defendant was convicted by the jury.s Judge Wyatt

under the circumstances described here, had the discretion

in our view to consider Judge Bauman’s initial sentence.

Any question about this again evanesces when we consider

the previously quoted comments of Judge Wyatt when he

stated that Judge Bauman’s sentence would be one of many

factors to be considered. He continued:

1 consider Judge Bauman one of the ablest

judges to have graced this court and I have for him

the highest respect, but I have reached in-

dependently — now that I have heard finally the

submissions this afternoon, I have reached in-

dependently a conclusion as to sentence.

I find, as might have been expected, that I agree

with Judge Bauman as to the seriousness of the

offenses and that imprisonment is required.

Taking into account that Mr. Rosner, the

defendant, has lost, and if the conviction becomes

or is final, will irrevocably lose his license to

practice law, and taking into consideration all the

other factors to which Mr. Dershowitz has directed

my attention in the memorandum and this af-

ternoon, I do disagree with Judge Bauman as to the

length of imprisonment which should be required.

He then proceeded to sentence Rosner to three years on

each count to be served concurrently, a substantial

reduction from the initial five-year sentence of Judge

7a

[3,4] Thus it becomes apparent that while Judge Wyatt

agreed with Judge bauman that imprisonment was

eee an cana eatune of the criminal acts

Rosner, he disagreed with the length of the initia!

sentence and cut it substantially. Thus Rosner has shown

ote Moreover, he emphasized that he reached

- conclusion independently and there is no reason at all

this court not to take him at his word. Judge Wyatt, in

re —_ could not avoid knowing what initial sentence

~ imposed. It was set forth in our opinion which he

read — it thus becomes virtually impossible for a

resentencing judge to be unaware of the initial sentence. As

long as the sentence he imposes does not depend upon the

improper criteria which vitiated the first sentence, the new

— is unassailable provided it is within the statutory

|S] A reading of the sentencing minutes here m i

— that Judge Wyatt conscientiously and be ab

lowed the remand of this court and that he carefully

enumerated the reasons which prompted him to set a more

lenient sentence. We have often expressed our view that a

sentencing judge, although not mandated, should provide

a statement of his reasons for imposing sentence. United

States v. Seije 537 F.2d 694, 699 (2d Cir. 1976); United

States * ve Vagus ‘. 482 F.2d 139, 142 (2d Cir. 1973);

ene ‘~ /mmittee on Sentencing, Sentencing

a Pee 3 Van. 1976).+ Judge Wyatt followed

~ t Sugge cara here and we find no error in the procedure

hg rt aad wo dependence upon improper criteria.

history of this case reveals that Rosner has been af-

forded every opportunity for judicial review and recon-

sideration at every level. This court has remanded once for

resentencing to provide him the opportunity to establish

that Judge Bauman relied upon false and misleading in-

> cenee omar In the intervening three years and four months

been no attempt to establish that the court had

a rei watence report to Rosner and thet vecation of the online! Cea

was not required, United States v. Holder, 412 F.2d 212, 215 (24 Cir. 1969, we

L.Ed 24 $92 (1972) (reliance on convictions).

Townsend v. Burke, 334 U.S. 736, 68 S.Ct 1252, 92 L.Ed 1690 (1948)

(nace urate record) United States v. Stein. F.2d % (2d Cir. 1976)

defendant wes Wrunms without consideration of tavalld onel: United Stetes ©

Malcolm. 432 F.2d 809 (2d Cir. 1970) (inaccurate criminal record).

saree aiaesch of the cone oguinat Renner verted on the wee of “NOH [UT

10a

APPENDIX B

UNITED STATES COURT OF APPEALS

Second Circuit

At a Stated Term of the United States Court of Appeals,

in and for the Second Circuit, held at the United States

Court House, in the City of New York, on the twenty-

second day of April, one thousand nin-hundred and

seventy-seven.

Present: Hon. IRVING R. KAUFMAN,

Chief Judge.

HON. J. JOSEPH SMITH,

HON. WILLIAM H. MULLIGAN,

Circuit Judges.

United States of America,

-V-

Edmund A. Rosner,

Defendant-Appellant.

76-1483

A petition for a rehearing having been filed herein by

counsel for the appellant

Upon consideration thereof, it is

Ordered that said petition be and hereby is DENIED.

s/ A. Daniel Fusaro

A. DANIEL FUSARO

Clerk

lla

UNITED STATES COURT OF APPEA

SECOND CIRCUIT ”

At a stated term of the United States Appeals

Court of

in and forthe Second Liruit. held at the United States

. in of New York on the twenty

second day of ;

; hy April, one thousand nine hundred and

United States of America,

Plaintiff-Appellee,

76-1483

A petition for rehearing containi

, ng a suggestion that

action be reheard in banc having been filed herein by

Ordered that said petition be and it hereby is DENIED.

s/ Irving R. Kaufman

IRVING R. KAUFMAN,

Chief Judge

12a 13a

APPENDIX C 28 U.S.C. §2255

U.S. Constitution, Fifth Amendment Federal custody; remedies on motion attacking

No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a

presentment or indictment of a Grand Jury, except

in cases arising in the land or naval forces, or in the

Militia, when in actual service in time of War or

public danger; nor shall any person be subject for

the same offence to be twice put in jeopardy of life

or limb; nor shall be compelled in any criminal

case to be a witness against himself, nor be

deprived of life, liberty, or property, without due

process of law; nor shall private property be taken

for public use, without just compensation.

Federal Rules of Criminal Procedure

Rule 35.

Correction or Reduction of Sentence

The court may correct an illegal sentence at any

time and may correct a sentence imposed in an

illegal manner within the time provided herein for

the reduction of sentence. The court may reduce a

sentence within 120 days after the sentence is

imposed, or within 120 days after receipt by the

court of a mandate issued upon affirmance of the

judgment or dismissal of the appeal, or within 120

days after entry of any order or judgment of the

Supreme Court denying review of, or having the

effect of upholding, a judgment of conviction. The

court may also reduce a sentence upon revocation

of probation as provided by law.

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sentence

A prisoner in custody under sentence of a court

established by Act of Congress claiming the right

to be released upon the ground that the sentence

was imposed in violation of the Constitution or

laws of the United States, or that the court was

without jurisdiction to impose such sentence, or

that the sentence was in excess of the maximum

authorized by law, or is otherwise subject to

collateral attack, may move the court which im-

posed the sentence to vacate, set aside or correct

the sentence.

A motion for such relief may be made at any

time.

Unless the motion and the files and records of

the case conclusively show that the prisoner is

entitled to no relief, the court shall cause notice

thereof to be served upon the United States at-

torney, grant a prompt hearing thereon, determine

the issues and make findings of fact and con-

clusions of law with respect thereto. If the court

finds that the judgment was rendered without

jurisdiction, or that the sentence imposed was not

authorized by law or otherwise open to collateral

attack, or that there has been such a denial or

infringement of the constitutional rights of the

prisoner as to render the judgment vulnerable to

collateral attack, the court shall vacate and set the

judgment aside and shall discharge the prisoner or

resentence him or grant a new trial or correct the

sentence as may appear appropriate.

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A court may entertain and determine such

motion without requiring the production of the

prisoner at the hearing.

The sentencing court shall not be required to

entertain a second or successive motion for similar

relief on behalf of the same prisoner.

An appeal may be taken to the court of appeals

from the order entered on the motion as from a

final judgment on application for a writ of habeas

corpus.

An application for a writ of habeas corpus in

behalf of a prisoner who is authorized to apply for

relief by motion pursuant to this section, shall not

be entertained if it appears that the applicant has

failed to apply for relief, by motion, to the court

which sentenced him, or that such court has denied

him relief, unless it also appears that the remedy

by motion is inadequate or ineffective to test the

legality of his detention.