Petition for a Writ of Certiorari — Simpson v. United States

Jr | | hg

MAR 3 197m

in the i

Supreme Come"

of the

Gnited States

OCTOBER TERM, 1972

no.%72212038

JOHNNY SIMPSON,

v8.

UNITED STATES OF AMERICA,

Respondent.

Petitioner,

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Law Offices of

MAX P. ENGEL

Attorney for Petitioner

1461 N. W. 17th Avenue

Miami, Florida 33125

DAVID B. JAVITS

Of Counsel

MIAMI REVIEW — 371-4853 — 377-3721

INDEX

Page

OPINIONS OF THE COURT BELOW 1

JURISDICTION 1

QUESTIONS PRESENTED ___- 2

STATUTES INVOLVED 2

STATEMENT OF THE CASE 5

ARGUMENT FOR ALLOWANCE OF WRIT_..s—s7

CONCLUSION 13

CERTIFICATE OF SERVICE 14

APPENDIX A App. 1

APPENDIX B App. 3

APPENDIX C App. 5

APPENDIX D App. 9

APPENDIX E App. 13

APPENDIX F App. 15

APPENDIX G App. 17

APPENDIX H App. 19

APPENDIX I App. 28

APPENDIX J App. 25

II

TABLE OF CASES

Bradley v. United States,

71-1304

Burgett v. Texas,

389 U.S. 109, 88 S.Ct. 258, 19 L.Ed. 2d 319

Korematsu v. United States,

319 U.S. 423, 63 S.Ct. 1124, 87 L.Ed. 1487 (1943)

McGee v. United States,

465 F 2d 357

United States v. Fiotto,

454, F2d 252 (2d Cir. 1972)

United States v. Stephens,

(9th Cir. 1971) 449 F. 2d 103

United States v. Tucker,

405 U.S. 443, 10 CrL 3053

Wollack v. United States,

71-992

Page

ll

ll

in the

Supreme Court

of the

Ginited States

OCTOBER TERM, 1972

NO.

JOHNNY SIMPSON,

am Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

OPINIONS OF THE COURT BELOW

The Opinion and Judgment of the United States Court

of Appeals for the Fifth Circuit entered on J anuary 10,

1978 is unreported. A copy is attached as Appendix “A”,

A Petition for Rehearing was denied without opinion

on February 1, 1973.

JURISDICTION

The jurisdiction of this court is invoked under the

provisions of 28 U.S.C. §1254(1).

2

QUESTIONS PRESENTED

I

WHETHER THE SENTENCE IMPOSED

CONSTITUTES A VIOLATION OF DUE

PROCESS AND HARSH AND UNUSUAL

PUNISHMENT IN THAT BEFORE IMPOSI-

TION OF SENTENCE CONGRESS ELIMI-

NATED THE MINIMUM MANDATORY

SENTENCE FOR DEFENDANT'S CRIME.

II

WHETHER A COURT VIOLATES A DE-

FENDANT’S RIGHT TO DUE PROCESS IN

FAILING TO GRANT A HEARING ON A

MOTION TO REDUCE SENTENCE WHERE

SUBSTANTIAL AND SIGNIFICANT

CHANGES OF CIRCUMSTANCES OCCUR

BETWEEN THE TIME OF SENTENCING

AND THE FILING OF THE MOTION.

STATUTES INVOLVED

21 US.C. 176(a) (repealed).

“Notwithstanding any other provision of law,

whoever, knowingly, with intent to defraud the

United States, imports or brings into the United

States marijuana contrary to law, or smuggles

or clandestinely introduces into the United

States marijuana which should have been in-

8

voiced, or receives, conceals, buys, sells, or in any

manner facilitates the transportation, conceal-

ment, or sale of such marijuana after being im-

ported or brought in, knowing the same to have

been imported or brought into the United States

contrary to law, or conspires to do any of the

foregoing acts, shall be imprisoned not less than

five or more than twenty years and, in addition,

may be fined not more than $20,000. For a sec-

ond or subsequent offense (as determined under

section 7237(c) of the Internal Revenue Code

of 1954), the offender shall be imprisoned for

not less than ten or more than forty years

and, in addition, may be fined not more than

?

$20,000....’

21 U.S.C. 841(b) (1) (b):

“... In the case of a controlled substance in

schedule I or II which is not a narcotic drug or in

the case of any controlled substance in schedule

III, such person shall be sentenced to a term of

imprisonment of not more than 5 years, a fine of

not more than $15,000, or both. If any person

commits such a violation after one or more prior

convictions of him for an offense punishable

under this paragraph, or for a felony under any

other provision of this subchapter or subchapter

or subchapter II of this chapter or other law of

the United States relating to narcotic drugs,

marijuana, or depressant or stimulant sub-

stances, have become final, such person shall be

sentenced to a term of imprisonment of not more

d

than 10 years, a fine of not more than $30,000,

or both. Any sentence imposing a term of im-

prisonment under this paragraph shall, in the

absence of such a prior conviction, impose a spe-

cial parole term of at least 2 years in addition to

such term of imprisonment and shall, if there was

such a prior conviction, impose a special parole

term of at least 4 years in addition to such term

of imprisonment...”

Section 1103 of Pub. L. 91-513 provided that:

“(a) Prosecutions for any violation of law oc-

curring prior to the effective date of section

1101 (the first day of the seventh calendar

month that begins after Oct. 26, 1970) shall not

be affected by the repeals or amendments made

by such section or section 1102 (repealing this

section and sections 172, 173, 173a, 174, 176 to

184, 184a, 185, 188 to 188n, 191 to 193, 197, 198,

199, 501 to 517 of this title sections 1401 to 1407

and 3616 of Title 18, sections 4701 to 4771, 7237,

7238, and 7491 of Title 26, sections 529a and 529¢

of Title 31, and 1421M of Title 48, and amending

former section 162 of this title and section 4251

of Title 18, section 1584 of Title 19, sections 4901,

4905, 6808, 7012, 7103, 7326, 7607, 7609, 7641, 7651

and 7655 of Title 26, section 2901 of Title 28, sec-

tions 529d, 529e, 529f, and 1034 of Title 31, section

304m of Title 40, section 3411 of Title 42 section

239a of Title 46, and section 787 of Title 49), or

abated by reason thereof...”

5

STATEMENT OF THE CASE

On July 8, 1971, Petitioner was indicted for violation

of 21 U.S.C. 176(a) the importation of narcotic drugs and

conspiracy to import marijuana.

After a trial by jury Petitioner was found guilty on

August 19, 1971 and sentenced to two concurrent terms

of five years imprisonment on September 21, 1971.

On appeal the judgment was affirmed by the United

States Court of Appeals on May 19, 1972.

On July 6, 1972, Petitioner Petitioned the District

Court to stay the impositions of sentence. A two week stay

was granted on July 7, 1972.

On July 11, 1972 Petitioner filed his Motion for Miti-

gation of Sentence pursuant to Rule 35 Federal Rules of

Criminal Procedures. The government’s response was filed

July 20, 1972.

On August 16, 1972, the court entered its order deny-

ing Petitioner’s Motion for Reduction of Sentence.

Petition for rehearing filed August 21, 1972 was

denied on August 21, 1972. The Petition for rehearing was

denied by Judge C. Clyde Atkins in the absence of Judge

James Lawrence King.

At no time was Petitioner granted a hearing or per-

mitted to present witnesses on his own behalf.

6

Notice of Appeal was timely filed on August 25, 1972,

The motion set forth that the original five year sen-

tence was excessive and should be reduced because:

1. The original pre-sentence investigation showed

Petitioner to be a second offender, but his other convic-

tion had since been set aside.

2. Petitioner’s participation in the alleged conspir-

acy had been very minor involving only driving someone

to an airport and removing seats from an airplane.

3. At the time of trial, Petitioner was offered a

recommendation of probation by the prosecuting attorney

which he refused in an attempt to prove his innocence.

4. Petitioner demonstrated his rehabilitation.

5. Petitioner was only 20 years old at the time of

the offense.

The government’s response raised the issue, that since

at the time of the offense there was a mandatory five

years sentence, even though this statute has since been

repealed 21 U.S.C. 176(a) the defendant is entitled to no

relief.

Petitioner appealed to the United States Court of

Appeal Fifth Circuit raising the following points of law:

7

I.

“THE SENTENCE IMPOSED CONSTITUTES

A VIOLATION OF DUE PROCESS AND

HARSH AND UNUSUAL PUNISHMENT IN

THAT SHORTLY BEFORE IMPOSITION OF

SENTENCE CONGRESS ELIMINATED THE

MINIMUM MANDATORY SENTENCE FOR

DEFENDANT'S CRIME.

Il.

“THE COURT ERRED IN FAILING TO

GRANT A HEARING ON PETITIONER’S

MOTION TO REDUCE SENTENCE WHERE

SIGNIFICANT CHANGES HAD OCCURRED

IN PETITIONER’S CIRCUMSTANCES SINCE

THE ORIGINAL IMPOSITION OF SENTENCE.

On January 10, 1973, United States Court of Appeal

in per curiam decision affirmed the Order of the lower

Court. On February 1, 1973 the Petition for Rehearing

was denied without opinion.

ARGUMENT FOR ALLOWANCE OF WRIT

1. THE DECISION BELOW CONFLICTS

WITH DECISIONS OF THIS COURT AND

OTHER COURTS OF APPEAL AS TO THE

APPLICATION OF THE SAVINGS PROVI-

SIONS OF 21 U.S.C. 801, et seq.,

Petitioner was sentenced pursuant to 21 U.S.C. 176(a),

which provides for a minimum mandatory sentence of

e 8

five years (26 U.S.C. 7237) Twenty-one (21) U.S.C. 174(a)

and its mandatory sentence provisions were repealed

effective May 1, 1971 and replaced by the present statute

which has no mandatory provision.

The crimes charged in the indictment took place prior

to May 1, 1971, however, trial and sentencing were after

that date.

The purpose of this appeal is not to challenge the

legality of the original sentence but rather to establish

that the District Judge can reduce the sentence in con-

formity with the new statute if he wishes to do so.

The 1970 act (Sec. 1101) repeals 21 U.S.C. 176(a) and

26 U.S.C. 7237(d) effective May 1, 1971, four months

prior to appellant’s sentencing. However, there are two

saving clauses which effect crimes committed prior to

the effective date.

1. Section 1102(a) of the new act provides:

Prosecutions for any violation of law occurring

prior to the effective date of Section 1101 shall

not be affected by the repeals or amendments

made by such section . . . or abated by reason

thereof...”

2. 1 U.S.C. 109 provides:

“The repeal of any statute shall not have the

effect to release or extinguish any penalty, for-

feiture or liability . . .”

9

In the case of United States v. Stephens (9th Cir.

1971) 449 F.2d 103, the Court of Appeals held that a Dis-

trict Judge did not err in giving probation to defendants

who were tried prior to May 1, 1971 but sentenced on May

24, 1971.

The court after considering the two saving clauses

quoted above reached the conclusion that it was their

purpose to prevent offenders not brought to trial prior

to May 1, 1971 from escaping prosecution. However, the

court held:

“The purpose of the section has been served

when judgment under the old act has been

entered and abatement of proceedings has been

avoided. At that point litigation has ended and

appeal available Korematsu v. United States,

319 U.S. 423, 63 S.Ct. 1124, 87 2d 1487 (1943).

What occurs thereafter—the manner in which

judgment is carried out, executed or satisfied,

and whether or not it is suspended —in no way

affects the prosecution of the case.”

The court explains that the new act reflects the cur-

rent view that probation should be available for these

offenses.

Certainly, the legislative intent of the new act was

not to proscribe more severe penalties for marijuana

cases occurring before May 1, 1971 but rather to preserve

the continuity of prosecutions so that defendants appre-

hended between the passage of the new act and its effec-

tive date would not escape prosecution. Vol 3, 1970 US.

C.C.A. 4566 4675. In the case of United States v. Fiotto

?

10

454, F 2d 252, (2d Cir. 1972) the court relying on the sav-

ing clause held that in a heroin case, the appellants must

be sentenced under the old act.

It is respectfully submitted that the Petitioner has

been denied due process of law because he has been sub-

jected to a greater penalty for the same crime as another

person who may have done the same act a few months

later.

If the saving clause is read in conjunction with obvi-

ous intent of the new statute the inescapable conclusion

must be that the penalty aspect of the old law is not

preserved for persons tried and sentenced after the effec-

tive date of the new law.

Two cases presently before this court apparently

raised the same issue of law. Those cases are Wollack v.

US. 71-992 and Bradley v. U.S. 71-1304.

2. THE COURT ERRED IN FAILING TO

GRANT A HEARING ON PETITIONER’S

MOTION TO REDUCE SENTENCE

WHERE SIGNIFICANT CHANGES HAD

OCCURRED IN PETITIONER’S CIRCUM-

STANCES SINCE THE ORIGINAL IMPO-

SITION OF SENTENCE.

The Motion for Reduction of Sentence made pursuant

to Rule 35, in addition to citing Petitioner’s rehabilitation,

his youth and his small involvement in the commission of

the crime raises one additional ground that Petitioner’s

prior record has now changed.

11

At the time Petitioner was originally sentenced he

was a second offender having been previously convicted

of a crime.

During the pendency of the appeal in this case the

prior conviction was vacated.

Recent cases have held that where there is a material

change in a defendant’s prior criminal record, which may

have affected the judge’s sentencing, the District Court

should hold a hearing to consider its sentence.

In the case of McGee v. United States, 465 F 2d 357,

the 2nd Circuit overturned a trial judge’s discretionary

refusal of a Motion to Reduce sentence pursuant to Rule

35. The court said that sentencing within the legal maxi-

mum is discretionary but in the special circumstances of

that case a refusal unaccompanied by any explanation

was an abuse of the trial courts’ discretion. In the McGee

case, the defendant was sentenced to several concurrent

two-year sentences and one of them apparently, the most

important one was struck down on appeal. The remaining

sentences were for separate crimes but crimes which were

collateral to the one which was reversed.

The majority opinion stated that while the lower court

is not compelled to mitigate the sentence, it must either

reduce the sentence or state its reasons for not doing so.

At this point, it should be noted that since Petitioner

was not permitted a hearing evidence of the vacation of

his prior conviction does not appear in the record on

appeal.

The United States Supreme Court has held in the

case of United States v. Tucker, 405 U.S. 443, 10 CrL 3053,

that where the possibility existed that a Federal Judge

12

would have imposed a lesser sentence on a bank robbery

defendant had he known that two of the defendant’s three

prior convictions which were relied upon at the time of

sentencing were constitutionally invalid as being in vio-

lation of the defendant’s right to counsel, the case would

be remanded to the trial court for reconsideration of

sentence.

In the case at bar, the Petitioner requested a hearing

several times and was refused such a hearing and the

relief requested was denied without reason. Although, the

Petition for Rehearing states that the court carefully

considered the defendant’s petition, it should be noted that

it is signed by an emergency judge in the, absence of the

judge who had handled the case up until that time.

The relief demanded in this appeal is for the Court

of Appeals to remand the case to the trial court for a

hearing on Petitioner’s Motion to Reduce Sentence and

for the Court to state its reasons if it in fact denies the

motion.

In the earlier case of Burgett v. Texas, 389 U.S. 109,

88 S.Ct. 258, L.Ed. 2d 319, the Supreme Court held that

where a prior conviction from another state wherein

defendant was not assisted by counsel was admitted into

evidence, the defendant was being denied his Sixth Amend-

ment Right all over again even though he was not being

prosecuted under the recidivist statute. The Supreme

Court reversed the conviction and sent the case back for

a new trial holding that to permit a court which is sen-

tencing a defendant to consider an invalid prior convic-

tion would operate as a denial of the Federal right which

was violated in the original invalid case.

13

CONCLUSION

For the foregoing reasons, it is submitted that this

Petition for Writ of Certiorari should be granted.

DATED at Miami, Florida this ___ day of March,

1978.

Respectfully submitted,

LAW OFFICES OF

MAX P. ENGEL

Attorney for Petitioner

1461 N.W. 17th Avenue

Miami, Florida 83125 (633-9748)

BY:

MAX P. ENGEL

DAVID B. JAVITS

Of Counsel

14

CERTIFICATE OF SERVICE

IT IS HEREBY CERTIFIED that a true copy of

the foregoing Petition for Writ of Certiorari has been

mailed this ___. day of March, 1978, to the Honorable

Robert Rust, United States Attorney, Ainsley Building,

Miami, Florida.

MAX P. ENGEL

APPENDIX A

IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 72-2907

Summary Calendar*

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOHNNY SIMPSON,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Florida

(January 10, 1973)

Before BROWN, Chief Judge, GOLDBERG, and

MORGAN, Circuit Judges.

PER CURIAM: AFFIRMED. See Local Rule 21.!

_ *Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Com-

pany of New York, 5 Cir. 1970, 431 F.2d 409, Part I.

‘See NLRB v. Amalgamated Clothing Workers of America, 5 Cir.

1970, 430 F.2d 966.

App. 3

APPENDIX B

IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 72-2907

Summary Calendar*

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOHNNY SIMPSON,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Florida

[Filed February 1, 1973]

(FEBRUARY 1, 1978)

ON PETITION FOR REHEARING

Before BROWN, Chief Judge, GOLDBERG, and

MORGAN, Circuit Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing filed

in the above entitled and numbered cause be and the same

is hereby denied.

App. 5

APPENDIX C

IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 71-2917

Summary Calendar*

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOHNNY SIMPSON and

ALFRED WILLIAM HARRISON,

Defendants-Appellants.

Appeals from the United States District Court

for the Southern District of Florida

(May 19, 1972)

[Filed June 19, 1972]

Before WISDOM, GODBOLD and RONEY,

Circuit Judges.

*Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Com-

pany of New York, et al., 5 Cir. 1970, 431 F.2d 409, Part I.

App. 6

PER CURIAM: Appellants Alfred W. Harrison and

Johnny Simpson and five others were charged by a three-

count indictment with (1) conspiracy to import marijuana

into the United States in violation of 21 U.S.C. §176(a);

(2) importation, on or about January 27, 1971, of six hun-

dred pounds of marijuana in violation of 21 U.S.C. §176(a)

and 18 U.S.C. §2; and (3) importation, on or about March

14, 1971, of five hundred and ten pounds of marijuana in

violation of 18 U.S.C. §2. A jury found both defendants

guilty on counts one and two.' Harrison was sentensed to

serve fifteen years on each count with the sentences to run

concurrently. Simpson was sentenced to serve five years on

each count with the sentences to run concurrently.

On appeal, Simpson challenges the sufficiency to the

evidence offered by the Government. After carefully re-

viewing the evidence on counts one and two, and as we

must for purposes of appellate review, viewing the evidence

in the light most favorable to the Government, Glasser v.

United States, 1942, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed.

680, we conclude that there was ample evidence from which

the jury could conclude that Simpson was guilty of the

offenses charged.

Harrison argues that the trial judge erred in requiring

Harrison’s counsel to go to trial without adequate oppor-

tunity for preparation. The granting of a continuance is,

however, entrusted to the sound discretion of the district

court. We detect no abuse of the Court’s exercise of that

discretion in the present case. See Ungar v. Sarafite, 1964,

876 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921; Avery v. Ala-

bama, 1940, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 327;

iHarrison was not named in count three. Simpson’s motion for judg-

ment of acquittal was granted as to count three.

App. 7

United States v. Gower, 5 Cir. 1971, 447 F.2d 187; United

States v. Fuentes, 5 Cir. 1970, 482 F.2d 405; United States

v. Johnson, 5 Cir. 1969, 417 F.2d 332; McKissick v. United

States, 5 Cir. 1967, 379 F.2d 754. Harrison was not de-

prived of effective assistance of counsel. Our review of

the record reveals that Harrison was adequately repre-

sented.

Harrison also complains of a remark to the jury made

by the Assistant United States Attorney during closing

argument. The remark when viewed in the context of the

cautionary instruction given by the trial judge, was not

reversible error. See F.R.Crim. P. 52(a).

AFFIRMED.

A true copy

Test: EDWARD W. WADSWORTH

Clerk, U. S. Court of Appeals, Fifth Circuit

By /s/ Susan Le Brun

Deputy

JUN 12 1972

New Orleans, Louisiana

App. 9

APPENDIX D

MOTION FOR MITIGATION OF SENTENCE

(Number and Title Omitted) (Filed Jul 11, 1972)

J OHNNY SIMPSON through his undersigned attor-

neys moves this Court to mitigate and reduce his sentence

in the above styled cause pursuant to Rule 35 Federal

Rules of Criminal Procedure and states:

1. Defendant was convicted of violation of 21 U.S.

Code, Section 176a two counts and Defendant was sen-

tenced to two concurrent sentences of five years imprison-

ment.

2. The Defendant’s appeal to the United States Court

of Appeal, Fifth Circuit resulted in an affirmance on May

19, 1972.

8. The Court should consider mitigation in this case

based upon the following facts.

4. At the time the Defendant was sentenced he stood

convicted of another crime, however, Defendant’s con-

viction was reversed and the other case stands dismissed.

5. Defendant has no other significant prior criminal

record.

6. Defendant was only 20 years old at the time of

the alleged commission of this crime and is only 21 years

old at the present time.

App. 10

7. The evidence adduced at trial taken in the light

most favorable to the government’s position shows that the

Defendant earlier played only a very minor role in the con-

spiracy to import marijuana, and in fact, his only overt

act involved driving someone to an airport in Orlando and

removing some seating from an airplane. The Defendant

played no part in the overall plot and could certainly not

be described as a ring leader.

8. At the time of trial, the Defendant was offered a

recommendation of probation by the prosecuting attorney

which he refused on the advice of counsel in order to prove

his innocence.

9. Since the time of the offense, more than one and

a half years has past and Defendant has been in no further

trouble with the law.

10. Defendant is steadily and regularly employed and

has shown by his conduct that he has attempted to rehabili-

tate himself and that he has no inclination to continue in

a life of crime and is therefore an excellent candidate for -

probation.

11. The crime for which the Defendant stands con-

victed is not a crime of violence.

12. The sentence of five years imprisonment consti-

tutes harsh and unusual punishment in light of the fact

of the Defendant’s small involvement in the crime, his

youth and prior record.

WHEREFORE, it is respectfully prayed that this

Court will consider Defendant’s application for mitigation

and grant the following relief.

App. 11

1, Order a Post Sentence Investigation by the proba-

tion department to determine whether the Defendant’s

changed circumstances would warrant a recommendation

of probation.

2. Inasmuch as Defendant is a first offender, the

Court is asked to consider resentencing Defendant under

the provisions of 18 U.S. Code, Section 4208a(2) which

provides his eligibility for parole at an earlier date if the

Board of Parole so recommends, or re-sentence the Defend-

ant under the provisions of 18 U.S. Code, Chapter 402 as

a youthful offender or 18 U.S. Code, Section 4209 as a

young adult offender. Any of these alternatives would

permit consideration for early parole and are designed for

a youthful offender or a first offender.

8. It is further prayed that the Court order a post-

ponement of surrender until the Court has the opportunity

to consider the merits of this Motion.

Respectfully submitted,

LAW OFFICES OF

MAX P. ENGEL

Attorney for Defendant

Johnny Simpson

1400 Northwest 10th Avenue

Suite 17-G

Miami, Florida 33136

Telephone 379-3811

By s/ Max P. Engel

MAX P. ENGEL

App. 18

APPENDIX E

ORDER GRANTING FURTHER EXTENSION

OF IMPOSITION OF SENTENCE AND FOR

POST SENTENCE INVESTIGATION

(Number and Title Omitted) (Filed Jul 19, 1972)

THE COURT, upon Defendant’s Motion To Mitigate,

and being fully advised in the premises, thereupon has

ORDERED and ADJUDGED that a Post Sentence

Investigation be conducted in this cause.

It is further, ORDERED and ADJUDGED that the

Defendant be granted a thirty (30) day stay from the

20th day of July, 1972, to surrender himself to the United

States Marshal for this District, to begin serving the sen-

tence imposed by this Court on the 21st day of September,

1971.

DONE and ORDERED this 18 day of July, 1972, at

Miami, Dade County, Florida.

8/ James Lawrence King

UNITED STATES DISTRICT

COURT JUDGE

ce: U.S. Attorney (Wagner)

U.S. Marshal

Chief Probation Officer

Max P. Engel, Esq.

App. 15

APPENDIX F

GOVERNMENT’S RESPONSE TO DEFENDANTS

MOTION FOR MITIGATION OF SENTENCE

(Number and Title Omitted) (Filed Jul 20, 1972)

COMES NOW, the Plaintiff, United States of Amer-

ica, by and through its undersigned attorney, in opposition

to the motion of the Defendant, J ohnny Simpson, for miti-

gation of his sentence in the above-styled cause, and moves

this Honorable Court to deny Defendant’s motion, showing

reason therefore the following:

Point 1

Whether the Defendant is eligible to be considered

for re-sentencing under the provisions of Title 18, United

States Code, §4208 (a) (2), and Title 18, United States

Code, §4202 or Title 18, United States Code, §4209.

Defendant Simpson’s request for consideration under

any of sections cited is without merit and should be denied.

The Attorney for the Defendant failed to note to the Court

that the provisions of any of the three alternatives pro-

posed do not apply in this case.

The Defendant was convicted under Title 21, United

States Code, & 176a which states that provisions for sen-

tencing and probation are to be found in Title 26, United

States Code, $7237 (d).

Defendant’s request regarding Title 18, United States

Code, §4202 can be dismissed by provisions Title 26, United

States Code, §7287 (d) which states that:

“Upon conviction. . . . the imposition or execu-

tion of sentence shall not be suspended, proba-

App. 16

tion shall not be granted, and in the case of a

violation of a law relating to narcotic drugs,

section 4202 of Title 18, United States Code, and

The Act of July 15, 1982, as amended, shall not

apply”. Title 26, United States Code, §7237 (d)

As to Defendant’s request for resentencing under

Title 18, United States Code, §4208 a (2) and Title 18

United States Code, $4209, the statute provides that these

acts “do not apply to any offense for which there is pro-

vided a mandatory penalty”.

Title 18, United States Code, $4208 and 4209,

The mandatory penalty provisions under Title 21,

United States Code, §176a states that one convicted there-

under shall be imprisoned for “not less than five or more

than twenty years and, in addition, may be fined not more

than $20,000.

The Government further notes that the petitioner's

sentence of imprisonment for five years (to run concur-

rently) were well within the limits set for violation of

Title 18, United States Code, §176a even as to first of-

fenders and youthful offenders. It is evident, therefore,

that the petitioner received the minimum sentence pos-

sible.

The Court has already imposed the minimum possible

sentence under statutory mandate and is without power

to mitigate the sentence at all.

ROBERT W. RUST

UNITED STATES ATTORNEY

By: s/George A. Kokus

Assistant United States Attorney

App. 17

APPENDIX G

ORDER DENYING DEFENDANT'S MOTION

FOR REDUCTION OF SENTENCE

(Number and Title Omitted) (Filed Aug 16, 1972)

THIS CAUSE came on for consideration upon motion

of the Defendant, Johnny Simpson, for reduction of sen-

tence.

The Court, being well advised in the premise, it is

therefore,

ORDERED and ADJUDGED that Defendant’s mo-

tion for reduction of sentence be and the same is hereby

denied.

DONE and ORDERED in chambers, at Miami, Flor-

ida, this 15 day of August, 1972.

s/ James Lawrence King

JAMES LAWRENCE KING

UNITED STATES

DISTRICT JUDGE

App. 19

APPENDIX H

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

NO. 71-417-Cr-JLK

UNITED STATES OF AMERICA

vs.

JOHNNY SIMPSON,

Defendant.

Filed Aug 21, 1972

PETITION FOR REHEARING

JOHNNY SIMPSON, through his undersigned attor-

ney moves this court to rehear and reconsider its Order

dated August 15, 1972 on the following grounds:

1. The Court overlooked and failed to consider that

if the Defendant was permitted to appear before the Court

to offer testimony in support of his Motion to Mitigate,

new additional matters which were not available for con-

sideration could have been brought to the Court’s atten-

tion.

2. The Court in its Order of July 18, 1972 ordered

that a Post Sentence Investigation be conducted in this

cause. Recent federal appellate cases have held that where

a prior conviction forms at least a part of the basis for

Defendant’s sentencing a reversal of the prior conviction

App. 20

may entitle the Defendant to a re-consideration of the

instant sentence. United States Court of Appeal has also

held that in the case of a Pre Sentence Investigation and

presumably in a case of a Post Sentence Investigation

Defendant’s counsel is entitled to be informed of at least

that portion of the report which deals with Defendant's

prior record. United States v. Tucker, 10 Cr. L 3505 and

United States v. Janiec 11 CrL 1070.

8. Defendant also questioned whether a thorough

Post Sentence Investigation was performed inasmuch as

no one contacted him to verify whether he is regularly

employed and other information which would have to be

determined from speaking with the Defendant himself.

4. The sentence of five years imprisonment in this

cause constitutes harsh and unusual punishment in light

_ of the fact of the Defendant’s small involvement in the

crime, his youth and criminal record.

5. In a case squarely on point with the case at bar,

the United States Court of Appeals, 2nd Circuit held that

where special circumstances are presented on a Motion

for Mitigation under Rule 35 Federal Rules of Criminal

Procedure, a District Judge committed error in summarily

denying the Motion without stating his reasons for doing

so. McGee v. United States, 11 CrL 2169.

In the McGee case, the Defendant was sentenced to

several concurrent two-year sentences on related counts

dealing with Selective Service violations. The Defendant

asked for reduction of sentence on the other counts when

his conviction on the most important of the 4 counts was

reversed. This case is analogous to the case at bar in that,

App. 21

at the time Simpson was originally sentenced, he was a

second offender having previously been convicted of an-

other crime. However, since the Defendant’s sentencing,

the other conviction has been reversed and he now stands

before the Court with a clean criminal record.

6. In addition, the Defendant has presented several

other new circumstances in support of his Motion for

Mitigation.

7. It is respectfully submitted that the Court’s sum-

marily denial of Defendant’s Motion to Mitigate without

explanation and without a hearing constitutes denial of

equal protection.

WHEREFORE, Defendant prays this Court will re-

consider its earlier order and grant Defendant a hearing

to present information to the Court in support of his

Motion to Mitigate Sentence.

Respectfully submitted,

LAW OFFICES OF

MAX P. ENGEL

1400 N.W. 10th Avenue

Suite 17-G

Miami, Florida 33136

Telephone 379-3911

By s/David B. Javits

DAVID B. JAVITS

App. 23

APPENDIX I

MOTION FOR STAY OF IMPOSITION OF SENTENCE

(Number and Title Omitted) (Filed Aug 21, 1972)

JOHNNY SIMPSON through his undersigned attor-

ney moves this Court to order a stay of imposition of

sentence on the following grounds:

1. On August 15, 1972 the Defendant’s Motion for

Mitigation of Sentence was denied.

2. The Defendant is presently scheduled to surren-

der to begin serving his sentence on August 18, 1972.

8. Several matters in support of the Motion to Miti-

gate were excluded from the original Motion because they

were matters which could best be brought out through

testimony.

4. A Petition for Rehearing has been filed and is

awaiting the Court’s consideration. This Petition raises a

serious constitutional question regarding a reversed prior

conviction which may have been the basis for the sentence

imposed in this case.

5. An extreme hardship would be placed upon the

Defendant if he is forced to resign from his employment

and put his belonging in storage while there remains a

substantial chance that his sentence may be mitigated.

6. This Motion is not made for purposes of delay

only but to protect and preserve the Defendant’s rights.

App. 24

WHEREFORE, Defendant prays this Court will enter

its Order staying imposition of sentence until September

15, 1972.

LAW OFFICES OF

MAX P. ENGEL

Attorney for Defendant

1400 N.W. 10th Avenue

Suite 17-G

Miami, Florida 33136

379-3811

By.

DAVID B. JAVITS

App. 25

APPENDIX J

ORDER DENYING PETITION FOR STAY

AND MOTION FOR REHEARING

(Number and Title Omitted) (Filed Aug 21, 1972)

This cause came on for consideration upon defend-

ant’s motion to stay the imposition of sentence and peti-

tion for rehearing of the motion to mitigate. The court

carefully examined the post-sentence investigation pre-

pared in this case and has carefully examined the mini-

mum maximum sentence which was imposed herein. The

court is further convinced that the sentence heretofore

imposed was proper and just. It is therefore,

ORDERED and ADJUDGED that defendant’s Peti-

tion for Rehearing and Motion for Stay be and the same

are hereby denied. The defendant is further ordered to

surrender himself to the United States Marshal to begin

serving his sentence as previously scheduled.

DONE and ORDERED this 21 day of August, 1972

at Miami, Dade County, Florida.

s/C. Clyde Atkins

UNITED STATES

DISTRICT JUJDGE

for Judge James Lawrence King

4:40 P.M.

ce: United States Attorney, Miami, Florida

United States Marshall, Miami, Florida

United States Probation Office, Miami, Florida

Max P. Engel, 1400 N.W. 10th Avenue, Miami,

Florida