# Petition — Rosner v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1881%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1977 - **Citation:** 434 U.S. 826 ## Text 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 ~*" —. 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 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. ce 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. l4a 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1881%3A1. Public record. Not legal advice.