# Petition for Writ of Certiorari — Schneider v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1975
- **Citation:** 419 U.S. 1121

## Text

LIBKAtY faiinsin in nem acnenen
SUPREME COURT. U. & OCT 95 1974 j

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1574

VERNON HENRY SCHNEIDER,
Petitioner,

V.

UNITED STATES OF AMERICA.

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appcais
for the Eighth Circuit

IRL B. BARIS
KENNETH H. GRAEBER
NEWMARK and BARIS
721 Olive Street
St. Louis, Missouri 63101
Attorneys for Petitioner

St. Louis Law Printing Co.. Inc., 812 Olive Street 63101 314-231-4477

INDEX

Page
IS 82 eh ous ven snsssecccreetixcl. 1
oy asa Oe ETE Te PRE ateae a 2
«ce care a Se 3
Constitutional provisions, statutes and rules of Court in-
DIRIEP ERG CARIN UC e sl cal, +
SES ONS en 7
Reasons for granting the writ ...................... 12
I. Unexplained excessive sentence ................ 13
II. Presentence investigation report ............... 19
so hemtensises ED ee TY COLT 25

Appendix A—Majority and dissenting opinions of Court
of Appeals, dated June 10, 1974 .............._.. A-1

Appendix B—Judgment of Court of Appeals, dated June
PE ERIN Seach ees TENT rie cix cis... A-22

Appendix C—Order on rehearing of Court of Appeals,
dated September 26, 1974 ...................... A-23

Appendix D—Counts 6, 12 and 13 of indictment against
petitioner, filed March 14,1973 ........... ...... A-25

Appendix E+—Letter dated October 12, 1973, from peti-
tioner to his attorney, with transfer order attached ...A-30

Appendix F—Motion of petitioner for reduction of sen-
tence, filed in District Court on August 22, 1973 ....A-33

ii

Appendix G—United States Navy Citation for Lt. Vernon
H. Schneider upon presentation of Air Medal, Second

Ve sasrnpad RETIREE TELE LE PON Poe A-36
CITATIONS
Cases
Alderman v. United States, 394 U.S. 165 (1969) ....... 23
Furman v. Georgia, 408 U.S. 238 SO eee 12,17
Gregg v. United States, 394 U.S. 489 een 21
Jackson v. Bishop, 404 F. 2d 571 (8th Cir. Ss one as 17

Mawson v. United States, 463 F. 2d 29 (Ist Cir. 1972) .. 25

North Carolina v. Pearce, 395 U.S. 71] ae 23
Pennsylvania v. Phelps, 450 Penna. 597, 301 A. 2d 678
i EE ETL OTT COR ITT eats OE ee eee 21
Robinson v. California, 370 U.S. 660 eee 17
Townsend v. Burke, 334 U.S. 736 cae ey ee oa 21
Trop v. Dulles, 356 U.S. 86 WE Ake wha eect: 17

United States v. Brown, 470 F. 2d 285 (2nd Cir. 1972) .. 20
United States v. Dockery, 447 F. 2d 1178, 1186-1187

We OE ss vans id cue abe cccbexey ila, 22
United States v. McCoy, 429 F. 2d 739 (D.C. Cir. 1970) 16
United Staies v. Miller, 495 F. 24 362 (7th Cir. 1974)... 22
United States v. Minkin, — F. 2d — (8th Cir. No. 74-

mission Whee naa, bene ME CT TE ee 8, 16
United States v. Picard, 464 F. 2d 215 (Ist Cir. 1972) .. 25
United States v. Tucker, 404 U.S. 443 (1972) ........ 16, 21

Weems v. United States, 217 U.S. 349 i ae 17
Williams v. New York, 337 U.S. 24] |. SES 21
Williams v. Oklahoma, 358 U.S. 576 SC Oe 21
Woosley v. United States, 478 F. 2d 139 (8th Cir. 1973) 20

Constitutional Provisions

Constitution of United States

denied bsine on WELT EET 3,4
Eighth Amendment ............................ 3,4
Statute
Title 18, United States Code, bow ORT ee
Rules
Rule 32(c)(2), Federal Rules of C riminal
CRN 05 hk b des weet ered eee. 5, 10, 19, 21
Rule 35, Federal Rules of Criminal Procedure ....... ae
Miscellaneous
Frankel, Criminal Sentences—L aw Without Order, pub-
lished by Hill and Wang (1973) .......... ....... 17

Katkin, Pre-Sentence Reports: An Analysis of Uses, Limi-
tations and Civil Liberties Issues, 55 Minn. L. Rev. 15

aia MEE Pee eT Oe Te 14, 21
Mattina, Sentencing:\ A Judge’s Inherent Responsibility,

57 Judicature 105 (1973) ....................... 14
Zumwalt, The Anarchy of Sentencing in the Federal

Courts, 57 Judicature 96 EE Crecente ec: 14, 24

58 Georgetown Law Journal 451, The Pre-Sentence Re-
port: An Empirical Study of Its Uses in the Federal
Criminal Piocess PE tue seeeec ee 21

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1974

Rent tae

VERNON HENRY SCHNEIDER,
Petitioner

v.
UNITED STATES OF AMERICA.

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals
for the Eighth Circuit

Vernon Henry Schneider, your petitioner, respectfully prays
that a writ of certiorari be issued to review the judgment of the
United States Court of Appeals for the Eighth Circuit, entered
in the above entitled cause on June 10, 1974.

OPINIONS BELOW

Petitioner and Edward Eugene Dace were jointly indicted
for mail fraud in the United States District Court for the Eastern

ones oes

District of Missouri, Eastern Division, and they pleaded guilty
to three counts; they were sentenced by the Honorable James H.
Meredith, District Judge. After sentencing, each defendant filed

cedure seeking a reduction of their sentences, but the motions
were denied. No opinions were written by Judge Meredith.

After the denial of his Rule 35 motion, Petitioner duly ap-
pealed to the United States Court of Appeals for the Eighth
Circuit, and his appeal was consolidated with a similar appeal
in behalf of Mr. Dace, who was represented by separate counsel.

on June 10, 1974. Circuit Judge Stephenson wrote the majority
opinion, in which Circuit Judge Webster concurred. A dissent-
ing opinion was filed by Circuit Judge Lay. The Opinions have
not yet been officially reported and are reproduced as Appendix
A hereto.

On September 26, 1974, the Court of Appeals modified the
opinion of June 10, 1974, but denied a petition for rehearing,
Judge Lay dissenting. The order on rehearing has not yet been
Officially reported and is reproduced as Appendix C hereto.

JURISDICTION

as extended by the Court of Appeals. It was denied in the order
on rehearing on September 26, 1974. (See Appendix C.)

The jurisdiction of this (Court is invoked under 28 U.S.C.
Section 1254(1),

QUESTIONS PRESENTED

The District Court, without Stating any reasons therefor and
without permitting petitioner or his counsel to inspect a pre-
sentence investigation report, sentenced petitioner on his plea
of guilty to three counts of mail fraud, in violation of 18 U.S.C.
Section 1341, to the maximum imprisonment for five years on
each of two counts, to be served consecutively, and an addi-
tional five year period of Probation on the third count. The
questions presented are:

I

Whether such sentence was abusive, punitive, shocking, and
illegal, as characterized by the dissent below, and excessive,
cruel and inhuman, disparate, unconscionable, and contrary to
the Fifth and Eighth Amendments to the Constitution of the
United States, in view of such mitigating factors as the prior
unblemished record of petitioner, restitution, disparity with other
sentences, cooperation with law enforcement authorities, family
background, war record, and job opportunities, thereby pre-
senting the question of whether this Court should establish
guidelines for sentencing by trial courts.

-

II

Whether the refusal to Permit petitioner and his counsel to
inspect the presentence investigation report, which apparently
contained derogatory information, was abusive and illegal, in
view of the heavy sentence and a routine policy of the District
Court to deny defendants access to such reports, thereby pre-
senting the question of whether this Court should establish guide-
lines for disclosure of such reports.

CONSTITUTIONAL PROVISIONS, STATUTES AND
RULES OF COURT INVOLVED

Constitution of the United States

Fifth Amendment

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 pub-
lic danger; nor shall any person be subject for the same offense
to be twice put in jeopardy of life or limb; nor shall be com-
pelled in any criminal case to ke a witness against himself, nor
be depzived of life, liberty or property without due process of
law. nor shall private property be taken for public use without
just compensation.

Eighth Amendment

Excessive bail shall not be required nor excessive fines im-
posed, nor cruel and unusual! punishment inflicted.

Statutes of the United States

Title 18, United States Code
§ 1341. Frauds and swindles.

Whoever, having devised or intending to devise any scheme
or artifice to defraud, or for obtaining money or property by
means of false or fraudulent fietenses, representations, or prom-
ises, or to sell, dispose of, loan, exchange, alter, give away,
distribute, supply, or furnish or procure for unlawful use any
counterfeit or spurious coin, obligation, security, or other ar-

— on

ticle, or anything represented to be or intimated or held out to
be such counterfeit or spurious article, for the purnose of exe-
cuting such scheme or artifice or attempting so to do, places
in any post office or authorized depository for mail matter, any
matter or thing whatever to be sent or delivered by the Postal
Service, or takes or receives therefrom, any such matter or
thing, or knowingly causes to be delivered by maii according
to the direction thereon, or at the place at which it is directed
to be delivered by the person to whom it is addressed, any such
matter or thing, shall be fined not more than $1,000 or im-
prisoned not more than five years, or both.

Federal Rules of Criminal Procedure

Rule 32. Sentence and Judgment

(c) Presentence Investigation.

(1) When Made. The probation service of the court shall
make a presentence investigation and report to the court before
the imposition of sentence or the granting of probation unless
the court otherwise directs. The report shall not be submitted
to the court or its contents disclosed to anyone unless the de-
fendant has pleaded guilty or has been found guilty.

(2) Report. The report of the presentence investigation shall
contain any prior criminal record of the defendant and such
information about his characteristics, his financial condition and
the circumstances affecting his behavior as may be helpful in
imposing sentence or in granting probation or in the correc-
tional treatment of defendant, and such other information as
may be required by the court. The court before imposing sen-
tence may disclose to the defendant or his counsel all or part
of the material contained in the report of the presentence in-
vestigation and afford an opportunity to the defendant or his

pn

counsel to comment thereon. Any material disclosed to the
defendant or his counsei shall also be disclosed to the attorney
for the government.

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.

STATEMENT

Petitioner Vernon Henry Schneider was indicted in a 26
count mail fraud indictment filed on March 14, 1973, in the
United States District Court for the Eastern District of Missouri,
Eastern Division, Honorable James H. Meredith, District Judge.
Petitioner was named in seven counts and his co-defendant,
Edward Eugene Dace, was named in 24 counts; they were
jointly charged in five counts. It was charged that the defend-
ants, who were claims representatives for Hartford Insurance
Group, participated in a scheme whereby they approved fraudu-
lent insurance claims against Hartford and divided the pro-
ceeds.

On May 4, 1973, each defendant pleaded guilty to three
counts, Dace as to Counts 6, 15 and i7, and petitioner as to
Counts 6, 12 and 13.1. On May 17, 1973, each defendant was
sentenced by Judge Meredith to a total of 10 years imprison-
ment, to be followed by five years probation. The remaining
counts as to both defendants were dismissed on motion of the
government.

There were similar indictments against others at approxi-
mately the same time. District Court Case No. 72 Cr 170(2)
was a six count mail fraud indictment against Paul Hugh Mar-
tin, Jeannine Stuart and John J. Kinealy, Jr. It was dismissed
on motion of the government on July 2, 1973.

District Court Case No. 72 Cr 320(1) was a three count
mail fraud indictment on December 14, 1972, against Paul
Martin and John J. Kinealy, Jr. Martin pleaded guilty to two
counts, and after study and evaluation under the provisions

' For this Court’s convenience we have reproduced as Appendix
D hereto the three counts to which petitioner pleaded guilty.

8

of 18 U.S.C. § 4208(b) and 4208(c), he was sentenced by
Judge Meredith to a term of one year imprison:nent and $1,-
000.00 fine, the term of imprisonment to be served in a St.
Louis County jail facility. The indictment as to Kinealy was
dismissed.

District Court Case No. 72 Cr 321(4) was a three count
mai! fraud indictment against Paul Martin and Jeannine Stuart.
The indictment as to Martin was dismissed on motion of the
government. Stuart pleaded guilty to one count, and was
sentenced by another District Judge to pay a fine of $1,000.00
and was placed on probation for three years.

Gary Minkin was charged in a one count mail fraud indict-
ment. He was convicted in a jury trial and was sentenced by
another District Judge to a term of three years imprisonment,
with six months thereof to be served in a jail type institution
and the balance on probation. His conviction was affirmed on
appeal on September 27, 1974. See United States y. Minkin,
— F. 2d —, 8th Cir. No. 74-1004.

The general nature of all of these indictments involved simi-
lar schemes of filing false insurance claims and the use of the
mails to process the fraudulent claims. In the counts involv-
ing Martin, Stuarc and Kinealy, Aetna Insurance Company was
the victim. Hartford Insurance Group was defrauded by peti-
tioner, Dace and Minkin. Martin was also involved in the
fraudulent scheme as to Hartford—see Paragraph 5 of Appen-
dix D hereto—but he was not indicted as to any Hartford claim,
presumably because he had already pleaded guilty as to the
Aetna frauds by the time of the indictment of Dace and peti-
tioner.

On May 4, 1973, petitioner entered a plea of guilty to three
counts of the indictment; Counts 12 and 13 related to the same

om

pe ee

fraudulent claim. (See Appendix D.) His plea of guilty was
accepted and sentencing was set for May 17, 1973 (Tr. 6).2

Prior to the date of sentencing, petitioner's counsel requested
an opportunity io examizte his presentence investigation report,
but the request was denied by Judge Meredith (Tr. 12). Peti-
tioner and his counsel were given an opportunity to speak, and
counsel pointed out that petitioner had never been in trouble
before and had served as a volunteer police officer in the past
(Tr. 8). He had been steadily employed, and had two children
in college, one of whom was graduating pre-medical school.
He had two separate tours of duty as a combat pilot, and was
shot down on one occasion and had been decorated three times.
He suffered a disability as a result of his war service (Tr. 8).

Petitioner, through his counsel, acknowledged his participa-
tion in the fraudulent scheme against his employer, Hartford
Insurance Group. On those matters to which he pleaded guilty.
it was pointed out that he had made full restitution to Hartford,
even including repayment of those Portions of the ill-gotten
gain which had been received by his confederates (Tr. 8-9). In
addition, it was explained that petitioner cooperated with and
supplied information to the authorities in other investigations
(Tr. 9). Counsel also indicated that petitioner had opportuni-
ties for employment and was well regarded by many peopie
(Tr. 9), some of whom had submitted letters of recommenda-
tion to the probation office investigator.

The Court sentenced petitioner as follows (Tr. 10):

“Mr. Schneider, on your plea of guilty, this Court sen-
tences you to five years on count six and five years on

* The transcript (Tr.) of the plea, sentencing and the hearing
on petitioner’s motion for reduction of sentence was filed in the
Court of Appeals and should be included in the certified record
which petitioner has requested the Clerk of the Court of Appeals to
forward to this Court.

—— a

count 12 to run consecutively. On count 13, the Court
will suspend the imposition of sentence and place you on
Probation for a period of five years to begin at the con-
clusion of the sentence on the first two counts.”?

The remaining four counts against petitioner were thereupon
ismissed on motion of the government (Tr. 10).

The Court permitted petitioner to remain at liberty on his
existing bail until June 18, 1973 (Tr. 10), at which time he re-
Ported as directed to the United States Marshal to begin the
service of his sentence. He is now confined at the United States
Penitentiary at Leavenworth, Kansas, and, after spending 89
days in the maximum security prison there, he was transferred
to the minimum security camp at Leavenworth. (See Appendix
E hereto, which has been included at the request of petitioner.)

On August 22, 1973, petitioner filed a motion for reduction
of his sentence, pursuant to the provisions of Rule 35 of the
Federal Rules of Criminal Procedure. (See Appendix F hereto.)
In addition to requesting the Court to reduce his sentence and
to place him on probation, or in the alternative to reduce his
sentence and sentence him under the provisions of 18 US.C.
§ 4208(a), petitioner renewed his request to examine the pre-
sentence investigation report pursuant to the provisions of Rule
32(c) (2) of the Federal Rules of Criminal Procedure.

On September 10, 1973, Judge Meredith conducted an oral
hearing on the motion for reduction. Counsel again requested
aN Opportunity to examine the presentence investigation report
“because I sincerely believe, Your Honor, that there must have
been some matters in there of which I was not aware and I sup-
pose which the defendant was not aware, and we would have
liked to have had an Opportunity to have been able to have an-

3 Mr. Dace was given the same sentence as petitioner. It is not
known whether Mr. Dace will file a Petition for a writ of certiorari.

a | oe

swered those matters which may have been erroneous” (Tr. 12).
The District Judge did not respond.

Counsel pointed out the hardship which confinement had
created on petitioner, including a loss of weight and other
physical aliments (Tr. 12). Counsel again made reference to
petitioner’s splendid war record, his cooperation with law en-
forcement officials, his fanily situation, and the availability of
employment (Tr. 12-13). Counsel also presented a letter from
a Mr. Reeves who had offered employment to petitioner and
who was available in court to answer any questions (Tr. 12-
13). The District Judge declined to talk to Mr. Reeves (Tr.
15).

Counsel also reminded the Court that petitioner had made
full restitution in excess of the amounts by which he had per-
sonally profited (Tr. 14). Counsel compared the case of peti-
tioner with that of Martin, who had also been sentenced by
the same District Judge, but to a term of one year (Tr. 14).

The District Judge made no comment and took the motion
under advisement (Tr. 15). On the same day as the hearing,
the motion for reduction of sentence was denied without any
writien opinion. Thereafter, on September 20, 1973, petitioner
duiy filed his notice of appeal to the United States Court of
Appeals for the Eighth Circuit from the orders imposing sen-
tence, denying his motion for reduction of sentence, and deny-
ing his requests to examine the presentence investigation report.

Petitioner and Mr. Dace filed separate appeals, but the
Causes were consolidated on appeal and argued jointly on
January 16, 1974. On June 10, 1974, two members of a panel
of the Court of Appeals affirmed the sentence. The opinion
was written by Circuit Judge Stephenson, and concurred in
by Circuit Judge Webster; a vigorous dissenting opinion was
filed by Circuit Judge Lay. (See Appendix A.)

— ,. pe

On September 26, 1974, the Court entered an order on
rehearing denying a petition for rehearing, but modifying the
original opinion slightly. Judge Lay dissented from the denial
of rehearing for the reasons stated in his original dissent. (See
Appendix C.)

This petition for a writ of certiorari seeks to review the
judgment of the Court of Appeals affirming petitioner’s sen-
tence.

REASONS FOR GRANTING THE WRIT

Introdaction

This Court has frequently been called upon to establish
guidelines for lower courts in many important stages of the
administration of criminal justice. Thus the Court has deline-
ated requirements in such areas as the right to counsel, con-
fessions, discovery, admissibility of evidence, prosecutorial
conduct, trial and appellate procedure, and acceptance of pleas
of guilty.

But in that portion of the criminal proceeding which is of
most concern to every guilty defendant—the sentence—no
definitive standards have yet been established by this Court to
Provide guidance to trial -ourts. Mr. Chief Justice Burger
acknowledged this hiatus in his dissenting opinion in Furman
v. Georgia, 408 U.S. 238, 402 (1972):

“As a general matter, the evolution of penal concepts
in this country has not been marked by great progress,
nor have the results up to now been crowned with signi-
ficant success. If anywhere in the whole spectrum of
criminal justice fresh ideas deserve sober analysis, the
sentencing and correctional area ranks high on the list.”

— ee

As a result of this lack ». progress and the absence of guide-
lines for sensencing, prisoners are confined without any under-
standing as to the basis for their sentence, and appellate courts
are being petitioned with ever increasing frequency to review
allegedly abusive punishments.

Because of the excessive sentence imposed on this petitioner,
without any explanation of the factors considered by the sen-
tencing court, this petition for a writ of certiorari presents an
opportunity for the Court to establish reasonable and necessary
guidelines for trial courts as to the sentencing process.

I
Unexplained Excessive Sentence

Circuit Judge Lay began his dissenting opinion herein by
observing:

“Today we uphold obviously abusive and punitive
criminal sanctions. The sentences approved by this court
shock the human conscience and by legal standards stun
the judicial conscience as well. But perhaps more relevant
here, they were imposed illegally.”

Judge Lay then proceeded to develop his reasons for so char-
actetizing petitioner’s sentence. We will not lengthen this peti-
tion by otherwise quoting from Judge Lay’s opinion or by
citing or rearguing the authorities upon which he relied. A
full reading of his opinion and the authorities cited is essential
to an understanding of the reasons why certiorari should be
granted as to this Question. Suffice it to say that his opinion
demonstrates how ihe Court of Appeals has departed from the
accepted and usual course of judicial proceedings and has
sanctioned such a departure by the District Court as to call for

a * on

an exercise of this Court's power of supervision; his opinion
also suggests the need for a decision by this Court as to
standards of sentencing, an important question of federal law
which has not been, but should be, settled by this Court. See
Rule 19 of this Court.

The necessity for a decision by this Court is emphasized
by recent publications concerning sentencing in the federal
courts. See, for example, Zumwalt, The Anarchy of Sentencing
in the Federal Courts, 57 Judicature 96 (1973); Mattina, Sen-
tencing: A Judge’s Inherent Responsibility, 57 Judicature 105
(1973) and Frankel, Criminai Seniences—Law Without Order,
published by Hill and Wang 1973).

The majority opinion herein recognized “that in the general
vernacular the sentences imposed may properly be characterized
as heavy. The defendants will be required to serve a minimum
of three and a third years before they will be eligible for parole.”
But the majority opinion cited no decision or other authority for
its holding that there was no abuse of discretion in the “heavy”
sentence imposed upon petitioner.

On the facts pertaining to petitioner, the sentence was grossly
excessive. Petitioner had a war record equaled by few. He
served his country on two Separate occasions in periods and
places of extreme hazard, in World War II and the Korean War.
While flying a combat mission as a Navy dive bomber, he was
shot down by enemy action. He received three decorations,
including the Air Medal. (See copy of citation upon presentation
of his second award of the Air Medal, attached hereto as Ap-
pendix G.)

Prior to the instant case, petitioner had never been involved
in any criminal activity. As a matter of fact, he had been a
volunteer assisting Illinois law enforcement authorities. He was
well respected by them, and letters of support and recommenda-

en

SOL | ns

tion were, according to petitioner's information, sent to the
probation authorities.

When the fraudulent scheme, of which petitioner was a minor
part, became known to his employer, petitioner immediately
acknowledged his participation, assisted the company in deter-
mining the scope of the fraudulent claims, and made restitution
of money lost by the company. Although others shared in the
fraudulent proceeds with him, petitioner made full restitution
without contribution from his co-conspirators. After his plea
of guilty, he fully cooperated with the postal authorities in their
investigation of the matters relating to Hartford and in other
investigations they were conducting.

Petitioner was proud of his family. Within a day or two of his
sentencing, his son graduated college, hoping to enter medical
school.* His daughter was also a college student. Petitioner was
assured of employment if placed on probation. It is certain that
he would never again run afoul of the law.

The severity of the sentence was a hardship on his family, in-
cluding his wife whose health is poor and his elderly mother.
And the effect of the sentence is keenly felt by petitioner him-
self. At his request, we have attached to this petition as Appendix
E an unsolicited letter written by him on O:tober 12, 1973,
from the penitentiary at Leavenworth.

Unless there is something derogatory in the presentence in-
vestigation report (see Question II hereafter), we cannot ex-
plain the severity of the sentence imposed upon petitioner.
Its excessiveness is even more pronounced when compared with

* Whether they were in fact seen by or made available to the
District Judge is not known by petitioner, for, as indicated in Ques-
tion II of this petition, petitioner never saw the presentence investi-
gation report.

® Because of petitioner’s sentence, those plans were abandoned.

— wen

that of Mr. Martin, who was sentenced to a term of one year
in a relatively new state institution at Gumbo on the outskirts
of St. Louis—this despite his defrauding Hartford Insurance
Group and Aetna Insurance Company in amounts far in excess
of that with which petitioner was involved.* Although the details
of the participation of Jeannine Stuart are not available from
the court files, she obviously was involved, and she received a
sentence of probation and a fine, without confinement. Gary
Minkin’s participation (along with Mr. Dace) is discussed in
United Stetes v. Minkin, ~ F. 2d — (8th Cir. No. 74-1004,
decided September 27, 1974). H= was sentenced to six months
confinement, with probation thereafter?

Neither the District Court nor the Court of Appeals men-
tioned any factors to cause a ten year sentence for petitioner.
Perhaps such factors do exist, but we believe that at the time
of sentencing petitioner was entitled to be informed of them.
Perhaps erroneous information was considered; petitioner should
have had an Opportunity to correct any such errors. Compare
United States v. Tucker. 404 U.S. 443 (1972). Petitioner’s sen-
tence was not justified by anything of iecord or known to him.
As Judge Lay emphasized in his dissent, most of the modern
teaching on the Philosophy of sentencing condemns the ex-
cessiveness of this sentence. Cf. United States v. McCoy, 429
F. 2d 739, 742-744 (D.C. Cir. 1970).

® The magnitude of the operations of Mr. Martin is reflected in
the study and evaluation reports submitted to the District Court pur-

tained in his District Court file and was Open to inspection by the
general public, including strangers such as petitioner’s counsel herein.

* Although sentencing courts should not penalize a defendant for
demanding a trial, we must remind that petitioner pleaded guilty
whereas Minkin was tried, convicted, and appealed to the Court of
— Compare United States y. Wiley, 278 F.2d 500 (7th Cir.

).

pi Wi ns

We believe further that under the circumstances of this case,
petitioner's sentence was cruel and unusual punishment violative
of the Eighth Amendment. The constitutional prohibition
against cruel and unusual punishment is not limited to capital
punishments, but may be applied to corporal punishments and
even to excessive imprisonment. Mr. Justice Blackmun observed
in Jackson v. Bishop, 404 F. 2d 571, 579 (8th Cir. 1968), that
the decisions of this Cou:t provide “a flat recognition that the
limits of the Eighth Amer dment’s prescription are not easily or
exactly defined, and we .'so have clear indications that the
applicable standards are flexixle, that disproportion, both among
punishments and between punishment and crime, is a {actor
to be considered, and that broad and idealistic concepts of
dignity, civilized standards, humanity, and decency are useful
and usable.” See also Weems v. United States, 217 U.S. 349
(1910), and Trop v. Dulles, 356 U.S. 86, 101 (1958), Stating
that the Eighth Amendment “must draw its meaning from the
evolving standards of decency that mark the progress of a ma-
turing society.” Compare Robinson y. California, 370 U.S. 660
(1962).

Much of the historical analysis of the Eighth Amendment by
individual members of this Court in Furman v. Georgia, 408
U.S. 238 (1972), could be applied with equal force to the
grossly excessive sentence imposed upon petitioner. Even the
concept of those Furman opinions based upon infrequency of
use of capital punishment has applicability here in the light of
the statistics cited by Judge Lay in his dissent—in 1971, tess
than 50% of convicted mail fraud defendants were sentenced
to prison, and for these, the average sentence was 33.2 months;
only 37 defendants out of a total of 496 were sentenced to five
or more years.

The subject of sentencing is of particular concern today.
Obviously courts are concerned—see Frankel, Criminal Sen-
tences—Law Without Order. And because of current events,

—"

the general public has become more aware of the variance in
Sentences; citizens debate whether former government officials
Should be sentenced to imprisonment or granted probation or
pardons. Some of that discussion has even included this peti-
tioner—see St. Louis Post-Dispatch, June 11, 1974, page 3A,
and June 23, 1974, pages iC and 3C. No valid theory for
punishment can justify the disparity between petitioner's sentence
to ten years plus probation for a crime, the maximum of which
is five years, and those sentences of others in the St. Louis area
involved in similar activities, and those of persons who formerly
occupied positions of public trust and who engaged in conduct
which would appear to be legally and morally more reprehen-
sible than petitioner’s crime.

Considering the facts of this case, the applicable law, and the
opinions of respected authorities in the field of punishment, we
respectfully submit that the sentence imposed on petitioner was
excessive, cruel and inhuman, disparate, unconscionable and a
result of an abuse of discretion. In addition to a reversal of this
case, with directions for resentencing (or perhaps even a re-
sentence by this Court under the authority of 28 U.S.C. § 2106 »,
we believe that in this case this Court can establish guidelines
for sentencing by district courts. At the very least, such guide-
lines should include requirements that presentence investigation
reports should be available to the defendant (see Question I]
hereof), and that the sentencing court must state of record those
factors considered or disregarded in imposing sentence. Such
a declaration by the sentencing court would not only present
a reviewable record to an appellate court but would, no doubt,
obviate many appeals by defendants thus made aware of the
reasons for their sentences.

Because of the importance of this issue in the administration
of criminal justice, we respectfully suggest that certiorari should
be granted as to this Question.

— po

II
Presentence Investigation Report

After petitioner's plea of guilty and prior to sentencing, his
counsel, aware that disclosure of the contents of a presentence
investigation report is discretionary under Rule 32(c)(2) of the
Federal Rules of Criminal Procedure, requested that it be
shown to him. The District Judge refused to do so (Tr. 12).
The request was renewed in the motion for reduction of sen-
tence (see paragraph 7 of Appendix F) and at the oral hearing
on the moticn (Tr. 12), but the request was again not granted.

In view of the heavy sentence imposed on petitioner, as com-
pared with those of Martin, Stuart and Minkin in related cases,
we can only conclude that there must have been derogatory in-
formation in the presentence investigation report. Petitioner was
never given an opportunity to know the nature of such alle-
gations against him or to present evidence to refute the charges.

In the circumstances of this case. we believe the District
Court abused its discretion in keeping the report secret. The
abuse of discretion is shown by the severity of the sentence—
ten years imprisonment plus probation for a crime which car-
ries a maximum of five years impris--ment.* An abuse of dis-
cretion is further demonstrat-u by the previous unblemished
record of petitioner, his piea of guilty, his cooperation with the
authorities, restitution to his employer, assurance of further
employment—all of which are factors which ordinarily suggest
probation as an appropriate form of punishment.

‘ There is serious question whether petitioner committed only one
crime, the defrauding of his employer, or whether there could be a
splitting of the crime into separate counts charging separate fraudu-
lent claims. In this instance, two of the counts to which petitioner
— guilty (Counts 12 and 13) related to the same fraudulent
claim.

—

Furthermore, we believe an abuse of discretion exists in the
fact that presentence investigation reports are routinely denied
to defendants and their counsel in the Eastern District of Mis-
souri. Compare United States y. Brown, 470 F. 2d 285, 288
(2nd Cir. 1972). At footnote 2 in the majority opinion, the
Court of Appeals stated that petitioner did not establish that
Judge Meredith had such a routine policy. Just how peti-
tioner was expected to prove this policy was unciear. Judge
Meredith did not make any statements as he had done concern-
ing his “mechanical” sentencing policy which was condemned
in Woosley v. United States, 478 F. 2d 139 (8th Cir. 1973).*
Petitioner could not depose the judge or otherwise require him
to substantiate the existence of the policy. However, counsel
for petitioner did discuss this matter with numerous St. Louis
attorneys who frequently defend criminal cases and with some
courthouse personnel in position to know the procedure. No
one could recall a case in which Judge Meredith ever permitted
defense counsel to see a Presentence investigation report.

The government certainly did not disprove petitioner’s as-
sertion of the routine policy. The only comment by the gov-
ernment was a statement in their brief in the Court of Appeals
(p. 9): “This Government attorney has personally seen Judge
Meredith verify from a pre-sentence report the truth or falsity
of a felony conviction of a defendant at the time of sentencing.”
Certainly, a singie instance of clarification of a prior felony
record does not prove a policy of discretionary disclosure be-
ing properly exercised.

We respectfully Suggest that this Court has the authority to
determine the existence of a routine or “mechanical” policy
against disclosure of the presentence investigation report. A
request for information from the judges of the Eastern District

® In Woosley, Judge Meredith committed himself on record as to
his mechanical policy. In the instant case he seems to have pur-
posely avoided any such commitments, and he made no statements
at the time of sentencing.

— | po

of Missouri, court personnel and probation officers would, we
believe, readily prove the policy.

Furthermore, the policy was reflected in The Pre-Sentence
Report: An Empirical Study of Its Use in the Federal Criminal
Process, 58 Georgetown L.J. 451, 484 (1970). Apparently
the judges of the Eastern District of Missouri, in response to a
survey, acknowledged their policy of non-disclosure. The sur-
vey demonstrates the conflict in procedure among the various
districts. See also the notes of the Advisory Committee on Rules
relating to Rule 32(c)(2). This recognized conflict in pro-
cedure strongly suggests that such conflict be resolved by this
Court by granting this petition for a writ of certiorari.

Variation in the treatment of reports and divergence of opin-
ion are apparent from numerous authorities which have dis-
cussed this issue. We will not unduly lengthen this brief by
citations and discussion of the developing authorities support-
ing full disclosure. Much of this authority is collected in the
dissenting opinion of Judge Lay herein. And for an exhaustive
discussion of this subject, see Pennsylvania v. Phelps, 450 Pa.
597, 301 A. 2d 678 (1973).

Any discussion and definition of procedure under Rule 32
(c)(2) necessarily requires analysis, explanation and correla-
tion of decisions of this Court, including the following: Town-
send v. Burke, 334 U.S. 736 (1948): Williams v. New York,
337 U.S. 241 (1949); Williams v. Oklahoma, 358 U.S. 576
(1959); Gregg v. United States, 394 U.S. 489 (1969), and
United States v. Tucker, 404 U.S. 433 (1972). Authority has
also suggested that the defendant's right to examine and refute
presentence investigation reports is of constitutional magnitude.
See Katkin, Pre-Sentence Reports: An Analysis of Uses, Limi-
tations and Civil Liberties Issues, 55 Minn. L. Rev. 15 (1970).

The majority opinion of the Court of Appeals recognized
that this Court has sought to adopt the modern trend by the

a Oe,

proposed amendment to Rule 32 transmitted to Congress on
April 22, 1974. See proposed Rule 32(c)(3), which would
make disclosure mandatory except under very limited circum-
stances. We respectfully suggest that Congressional inaction
should not delay the adoption of a rule in conformity with due
Process requirements. The Committee on Sentencing Practices
of the Court of Appeals for the Second Circuit has recom-
mended the new rule (see 14 Cr. L. 2446), and the Seventh
Circuit adopted such a rule on April 12, 1974. See United
States v. Miller, 495 F. 2d 362 (7th Cir. 1974).

We respectfully suggest that full disclosure of presentence
investigation reports, except for extraordinary circumstances,
Should be the uniform rule in all District Courts. Much re-
spectable authority for this position exists, as indicated by Cir-
cuit Judge J. Skelly Wright in his dissenting opinion in United
States v. Dockery, 447 F. 2d 1178, 1186-1187 (D.C. Cir.
1971), cert. den. 404 U.S. 950 (1971):

“There is now an impressive body of scholarly opinion
which challenges the idea that subtle, case-by-case evalu-
ation of requests for disclosure is necessary. I have been
Particularly impressed by several prestigious stu ies which
have concluded with a recommendation of some measure
of mandatory disclosure of the presentence report's con-
tents in all cases. Indeed, every recent study has come
to that conclusion: the National Council on Crime and
Delinquency’s Model Sentencing Act, the American Law
Institute’s Model Penal Code. the American Bar Associ-
ation’s Project on Minimum Standards for Criminal Jus-
tice, and the Report of the President's Commission on
Law Enforcement and Administration; of Justice. Most
recent commentary in the law reviews have come to the
same conclusion. Such a body of informed, scholarly opin-
ion should cause us all to reexamine our toleration of un-
structured discretionary disclosure.” (Footnotes omitted. )

=.

Any restrictions on access to the report should be only after
the District Court cz the government has met its burden to
establish the existence of proper causes to deny access to the
report in a particular case as, for example, to protect the safety
of an informant. Such a burden on the Court is not improper.
Compare the requirements on the Court in imposing a more
severe sentence after reversal, as set forth in North Carolina
v. Pearce, 395 U.S. 711 (1969).

The Court of Appeals, after submission of the cause, exam-
ined the presentence investigation report. From the opinions
below, it seems clear that the report contained unverified, de-
rogatory hearsay information. The majority opinion acknowl-
edged that such information “was not established and is merely
an opinion, and would be recognized as such by a sentencing
judge.” But here Judge Meredith did not indicate the factors
he considered in imposing sentence; it is mere speculation to
state that he disregarded such unverified information, and in
view of the severity of the sentence, it would appear that he
did not. As Judge Lay pointed out in dissent, only petitioner
could refute the erroneous information. Neither the sentencing
court nor the Court of Appeals was in position to do so. As
stated in Alderman v. United States, 394 U.S. 165, 182 (1969),
with reference to in camera inspections by the trial Court:

“An apparently innocent phrase, a chance remark, a ref-
erence to what appears to be a neutral person or event,
the identity of a caller or the individual on the other end
of a telephone, or even the manner of speaking or using
words may have special significance to one who knows
the more intimate facts of an accused's life. And yet that
information may be wholly colorless and devoid of mean-
ing to one less well acquainted with all relevant circum-
stances. Unavoidably, this is a matter of judgment, but
in our view the task is too complex, and the margin for
error too great, to rely wholly on the in camera judgment
of the trial court .

re

aaa,” ae

The effect of such a harsh sentence as imposed in the instant
case can Be disastrous to the administration of justice. Consider
a defendant with a prior unblemished record who pleads guilty
to a first offense of a non-violent nature, who makes full resti-
tution, has an excellent war record, cooperates fully with the
authorities, and has available employment and other excellent
Prospects for rehabilitation; if such a person can be sentenced,
without apparent reason except for uncorroborated, derogatory
information not made known to him, to a long term of im-
Prisonment without hope of consideration for probation any
sooner than the most hardened criminal,’ then what incentive
exists for any other person to enter a plea of guilty or to co-
operate with law enforcement authorities or to maintain a re-
spect for the law. Without having access to the reasons, if they
exist, for such a sentence, the individual could understandably
lose all respect for our system of justice. (Note petitioner's let-
ter of October 12, 1973, in Appendix E.)

Mr. Zumwalt, in his article The Anarchy of Sentencing in the
Federal Courts in 57 Judicature 96 has said it well, at page
104:

“Public confidence in the administration of criminal
justice is crucial to the smooth functioning of a democracy.
Public confidence would reach a crisis Stage, were people
educated to the hopeless situation facing an unfcirly sen-
tenced defendant. Adoption of a system which deals
fairly with sentence length could prevent such public loss
of faith.

Much has been written recently about the fact that our
prisons are failing miserably in their efforts to rehabilitate.
As long as a defendant's only direct experience with the
law has resulted in unfairness, or when those around him

'” Judge Meredith would not even grant relief to petitioner under
§ 4208(a)—see paragraph 6 of Appendix F.

~

;
'

es PAN NB RL ry
ei

=

have been unjustiy sentenced, attempts to rehabilitate him
will only be met with contempt.”

The reasons for disclosure are fully explained by all of the
authorities referred to herein and by Judge Lay in his dissent.
The conflict in procedure among the. various sentencing courts
is glaring. Unless this conflict is resolved, the problems will
continue, and without guidelines from this Court, litigation
will continue. Appellate courts will be bombarded by unhappy
convicts claiming sentences based upon erroneous derogatory
information and undisclosed presentence investigation reports.
Certainly many appeals could be avoided by a policy of dis-
closure.

Because of the conflict which exists among the District Courts
and within the circuits, and because of the importance of this
issue in the administration of justice, including its importance
to those administering our penal system, we respectfully sug-
gest that certiorari should be granted as to this Question.

CONCLUSION

For these reasons it is respectfully submitted that this peti-
tion for a writ of certiorari should be granted.

It would appear that this Court has jurisdiction to modify
petitioner's sentence under 28 U.S.C. § 2106, although we
doubt that this Court would want to undertake that function.
This cause could be remanded to the Court of Appeals for
modification of the sentence under § 2106, or to the District
Court for further proceedings before a District Judge other
than Judge Meredith. Compare Mawson v. United States, 463
F. 2d 29, 31 (1st Cir. 1972), and United States v. Picard, 464
F. 2d 215, 220 (1st Cir. 1972).

—

Whether a new sentence is imposed by this Court, the Court
of Appeals, or by a District Court, petitioner should be given
an opportunity before final sentencing to examine and comment
upon the presentence investigation report.

IRL B. BARIS

KENNETH H. GRAEBER
NEWMARK and BARIS
721 Olive Street
St. Louis, Missouri 63101
Attorneys for Petitioner

;
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ey ee

APPENDIX A

United States Court of Appeals
for the Eighth Circuit

No. 73-1689 *

United States of America,
Appellee,

Edward E Dace,
ward Eugene Dace Appeal from the United

States District Court
for the Eastern Dis-
trict of Missouri.

Appellant.
No. 73-1763
United States of America,

Appellee,

Vernon Henry Schneider,
Appellant. J

Submitted: January 16, 1974
Filed: June 10, 1974

Before Lay, Stephenson and Webster, Circuit Judges.
Stephenson, Circuit Judge.

These appeals challenge the consecutive sentences imposed on
mail fraud charges, and the refusal of the district court to per-
mit appellants to examine presentence investigation reports. We
affirm.

a eon

Appellants were charged in a 26-count indictment with de-
vising a fraudulent insurance claim scheme to obtain money
from the Hartford Insurance Group and using the mails in exe-
cution thereof in violation of Title 18 U.S.C. § 1341.

Appellant Dace pled guilty to three counts out of twenty-
four counts in which he was named as a defendant. He was
sentenced to five years’ imprisonment on each of two counts to
run consecutively (total of ten years) and five years’ probation
to follow. Appellant Schneider pled guilty to three counts out
of seven in which he was named defendant and received a
like sentence.

After commencing the service of their respective sentences,
each of the appellants filed a motion for reduction of sentence
which was denied.

Severity of Sentences

Appellants charge that the district court abused its discretion
in sentencing defendants to the maximum period of confinement
on each of two counts, to be served consecutively, followed by
a five-year probation period on a third count.

In Woosley v. United States, 478 F.2d 139 (CA8 1973),
this court sitting en banc reversed a sentence as excessive, stat-
ing at 147 as follows:

We hold that we possess the power to review the severity
of a criminal sentence within narrow limits where the
court has manifestly or grossly abused its discretion. This
is such a case. The severity of the sentence shocks the judi-
cial conscience.?

Three judges dissented, primarily on the basis that the sentence being
within statutory limits was not subject to review.

sel ise

Appellants contend that under the circumstances of this case
the sentence itself was a manifest or gross abuse of discretion.
They argue that under the current standards consecutive sen-
tences should only be used where it is necessary to protect the
public from further criminal conduct by the defendant, and no
such showing was here made. See, American Bar Association
Project on Minimum Standards for Criminal Justice, Sentencing
Alternatives and Procedures, A pproved Draft, 1968, at 171-81.
They also point out that their participation in this illegal scheme
was minor when compared to that of one Paul Martin who pled
guilty to two counts in a similar case and was sentenced to one
year imprisonment and a $1,000 fine by the same judge.

We recognize that in the general vernacular the sentences im-
posed may properly be characterized as heavy. The defendants
will be required to serve a minimum of three and a third years
before they will be eligible for parole. However, we are not pre-
pared to say that the court has manifestly or grossly abused its
discretion.

The goverment points out in its brief that we deal with a
sophisticated and well-planned scheme to defraud the victim
company of substantial amounts of money. It involved numerous
false claims, including many with which defendants were not
charged in the 26-count indictment. They pled guilty to three
counts for which they could have been sentenced to fifteen
years’ imprisonment. There is no question but what the defend-
ants fully understood their maximum exposure in entering their
pleas to three counts. Defendant Dace in his motion for reduc-
tion of sentence recited that prior to entering his plea the gov-
ernment advised that it \ould seek permission from the court
to withdraw all but one or two counts, but that defendant was
advised said permission was not granted and, instead, all counts
but three would be dismissed.

Th: government also points out in its brief that there may
have been reasons for the lighter sentence received by Paul

— 2

Martin. He cooperated fully with the government from the very
beginning and consented to be a witness against all potential de-
fendants in this widespread scheme.

We do not here list the many factors which could properly be
considered by the court in fixing sentence. We merely point
out that there were many matters to be weighed. Violations of
the mail fraud statute cover such a broad range of offenses that
comparison of sentences is not particularly helpful.

The record fails to demonstrate a gross abuse of discretion by
the trial court in fixing the sentences imposed.

Presentence Investigation Reports

Appellants charge that the district court abused its discretion
in refusing to grant them permission to examine their pre-
sentence reports prior to sentencing, and in connection with
their motions for reduction of sentence. They contend that the
court erred in routinely denying access to the presentence re-
ports, and, particularly in this case, where a heavy sentence was
imposed. They argue that in view of the severe sentences im-
posed it is reasonable to conclude that there must have been
derogatory information in the presentence investigation reports.

Rule 32(c)(2) of the Federal Rules of Criminal Procedure
is permissive in nature. It permits but does not require that all
or part of the material contained in the report be disclosed to
the defendant or his counsel. We have consistently held that
the matter of disclosure is within the discretion of the trial court.
United States v. Schrenzel, 462 F.2d 765, 775 (CA8 1972) (re-
hearing en banc denied); United States v. MacLeod, 436 F.2d
947, 950 (CA8 1971): United States v. Gross, 416 F.2d 1205,
1214 (CA8 1969),

2 This was not established.

— = joe

Proposed amendments to the Federal Rules of Criminal Pro-
cedure to take effect July 1, 1974, were transmitted by the Su-
preme Court to the Congress April 22, 1974. 15 Crim.L. Rep.
3007, April 24, 1974. They require that the court upon re-
quest shall permit the defendant or his counsel to read the pre-
sentence report and afford comment with respect thereto, or
under certain circumstances, in lieu thereof, the court must state
orally or in writing a summary of the factual information con-
tained therein relied on in determining sentence and give the
defendant or his counsel an Opportunity to comment thereon.?
However, since these amendments have not as yet been adopted
we adhere to the discretionary rule still in existence. Compare,
United States v. Thompkins, 487 F.2d 146, 150 (CA8 1973).

Subsequent to submission of this cause, we directed that this
court be furnished copies of the presentence reports. Examina-
tion thereof would permit us to determine whether they possibly
contained material misinformation or unverified derogatory
hearsay which might have influenced the court in imposing sen-
tence. See, Townsend y. Burke, 334 U.S. 736 (1947).

* Proposed amendments to Rule 32(c) (3) are in part as follows:
(3) Disclosure.

(A) Before imposing sentence the court shall upon request
permit the defendant, or his counsel if he is so represented, to

court the report contains diagnostic opinion which might seri-
ously disrupt a program of rehabilitation, sources of information
obtained upon a promise of confidentiality, or any other in-
formation which, if discovered, might result in harm, physical
or otherwise, to the defendant or other persons; and the court

(B) If the court is of the view that there is information in
the presentence report which should not be disclosed under

fendant «> his counsel an My agente to comment thereon. The
Statement mav be made to the Parties in camera.

a ae

The presentence reports describe the pervasive scheme to
defraud in which appellants were involved. This description is
consistent with the scheme described in the indictment te which
appellants pled guilty. The reports do state that “* * * Postal
Inspectors have indicated there are many more fraudulent claims
in which they feel Dace and Schneider were involved.” This,
of course, was not established and is merely an opinion, and
would be recognized as such by a sentencing judge. However,
we do note that the government made the same allegation in its
brief filed in this court to which no exception was taken by
appellants by way of reply. Similarly, appellant Schneider at the
time of sentencing and in his brief before this court points out
that he made full restitution on the claims in the counts to which
he pled guilty. As previously indicated, postal authorities and
the government in its brief believe there are many more fraudu-
lent claims in which appellants were involved. The presentence
reports point out that because of the number of people involved
in the scheme it is almost impossible to determine the amount
of money that appellants actually profited from the scheme. It
is stated that the victim company paid out over $50,000 on at
least forty known fraudulent claims between December 1967
and July 1971.

The proposed amendments to Rule 32, Fed. R. Crim. P.,
recognize (and will require if adopted) that it is the better prac-
tice to disclose the contents of the presentence report to the de-
fendant or his counsel, or under certain circumstances, in lieu
thereof, state the factual information relied on in determining
sentence and afford defendant or his counsel an Opportunity to
comment thereon. Here we must decide only whether the trial
court abused its discretion in failing to disclose the reports.

After reviewing the record, we are satisfied that the presen-

tence reports do not contain material misinformation or unveri-
fied derogatory hearsay of such a nature that it can be said the

f
4
i. ee ee a

OM

a ©, oe

trial court abused its discretion in not revealing the same to ap-
pellants before imposing sentence.

Affirmed.

Lay, Circuit J udge, dissenting.

Today we uphold Obviously abusive and Punitive criminal
sanctions. The sentences approved by this court shock the human
conscience and by legal standards stun the judicial conscience
as well. But perhaps more relevant here, they were imposed
illegally.

Disclosure of the Presentence Reports

Without bothering to give any reason for the harsh penalties
Or to reveal to defendants or their counsel the contents of their
Presentence reports, the district court imposed five-year maxi-
mum sentences, to be served consecutively, on these first offend-
ers. There exists no possible reason for such severe punishment
other than the district court's reliance on uncorroborated hear-
Say contained within the presentence reports. The defendants
pled guilty to three counts of mail fraud. It is true that the
government indicted them on 23 additional counts, but these
were dismissed.! The presentence reports reveal that the postal
inspectors were hampered in their investigation since the insur-
ance company files were lost; nevertheless, the reports state
that postal officials “fee” these defendants Participated in many
more fraudulent claims than they were charged with. This is
the rankest sort of hearsay which deserves to fester in the open.
If the defendants are to be sentenced for other crimes, the gov-
ernment has the buruen of proving them. The defendants cannot

* Defendant Schneider was named in only seven counts of the orig-
inal 26-count indictment.

DIOR LO MIE Be, Yop rm TN TE TE a Te tt Bite a tenet tan

*

=

lawfully be sentenced for crimes not proven. Yet it seems clear,
as made manifest by the majority opinion and the presentence
reports, that this is what occurred. This illegal procedure places
an almost intolerable burden on a defendant. How can the de-
fendants rebut unfounded hearsay, unproven charges, when they
are not allowed to see the presentence reports or even to know
the judge’s reasons for imposing a particular sentence??

This case is no different than United States vy. Weston, 448
F.2d 626 (9th Cir. 1971), cert. denied, 404 U.S. 1061 (1972),
in which the Ninth Circuit vacated the defendant's sentence
and remanded for resentencing. On resentencing, the district
court was instructed not to “rely upon the information con-
tained in the presentence report unless it is amplified by informa-
tion such as to be persuasive of the validity of the charges there
made.” /d. at 634. The court summed up the situation as fol-
lows:

In essence, then, what we have is a conviction at a trial
providing all of the safeguards required by the Constitution,
of an offense warranting, in the opinion of the trial judge,
the minimum sentence of five years. This is followed by a
determination, based on unsworn evidence detailing other-
wise unverified statements of a faceless informer that would
not even support a search warrant or an arrest, and with-
out any of the constitutiona! safeguards, that Weston is
probably guilty of additional and far more serious crimes,
for which she is then given an additional sentence of fifteen
years. Cf. Specht v. Patterson, 1967, 386 U.S. 605, 87

? The majority states that examination of the presentence reports
by this court is sufficient to insure that no misinformation was relied
upon by the trial court. Slip Opinion at 6. I do not feel, however,
that this is a viable substitute for disclosure to defendants and their
counsel in the first instance. This court is in no better position to
assess the accuracy of the reports than the sentencing court. De-
fendants, still in the dark as to the contents of the report, have never

— >) pan

S.Ct. 1209, 18 L.Ed2d 326: Kent v. United States, 1966,
383 U.S. 541, 553-554, 86 S.Ct. 1045, 16 L.Ed.2d 84.
To us, there is something radically wrong with a system of
justice that can produce such a result.

Id. at 630-631.

To say that disclosure of presentence reports lies within the
discretion of the district court and that the court’s exercise of
discretion will not be disturbed except for abuse is one thing:
to refuse to require disclosure where abuse has been shown is
another. We observed in United States v. Carden, 428 F.2d
1116, 1118 (8th Cir. 1970). that the Advisory Committee
under Rule 32(c) of the Federal Rules of Criminal Procedure
“did not contemplate an absolute rule of nondisclosure without
relevancy to the particular circumstance of a case.” And we
added:

It is always advisable for the trial judge to at least state
on the record the various factors he has taken into con-
sideration in rendering his sentence. . . . Such a pro-
cedure serves as a checkmate to the danger of misinfor-
mation being placed in the hands of the court.

id. at 1118 (emphasis added).

See also Hess v. United States, No. 74-1022 (8th Cir. May
13, 1974).

Today, the majority chooses to ignore those holdings. To-
day’s holding additionally defies the standards established by
the National Advisory Commission on Criminal Justice Stand-
ards and Goals, in its Report on Corrections, Standard 5.16,
as well as the holdings of most of the courts of appeals. See,
e.g., United States v. Espinoza, 48} F.2d 553 (5th Cir. 1973):
United States v. Brown, 470 F.2d 285 (2d Cir. 1972); United
States v. Janiec, 464 F.2d 126 (3rd Cir. 1972); United States

~

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— ie

v. Picard, 464 F.2d 215 (1st Cir. 1972); United States v.
Miller, 15 Crim. L. Rep. 2134 (7th Cir. April 12, 1974).

The presentence reports do not rely on any confidential
sources which might “dry up” if disclosed. There is no derog-
atory information about the defendants themselves which might
retard their rehabilitation. In sum, there exist no relevant
factors here to support nondisclosure of the reports.

Even assuming that nondisclosure were appropriate, if there
are justifiable reasons for the sanctions imposed, these reasons
should be made known to the defendants and to the reviewing
courts. When the district judge is free to impose whatever
sentence he chooses, without explanation, this court has no
way of knowing whether or not he properly exercised his dis-
cretion, or whether he in fact exercised it at all. When the
defendants are not provided with an explanation, the likeli-
hood that they will feel they have been unfairly treated is
greatly miagnified. This only fosiers disrespect for the iaw and
certainly cannot assist in the defendants” rehabilitation. See
M. Frankel, Criminal Sentences 39-49 (1973).*

Sentence Review

It must be acknowledged that the scope of federal appellate
review of sentencing is still unsettled. Nevertheless, this circuit

* A short statement of reasons relied upon by the district court for
the imposition of a particular sentence would go a long way toward
curbing abuses of discretion in sentencing:

The key to limiting abuse of judicial discretion is not to be
found in reducing the sentencing judge’s options, but rather in
Providing definitive guidelines to specify what circumstances are
aggravating and which mitigating. To leave these terms un-
defined is to invite their interpretation according to personal
bias. Should this approach be adopted, a stntencing judge
would be required to ground his decision on something less
amorphous than his limitless and unreviewable discretion. Fur-

— A-l1 —

has recognized the injustice of unreviewed abusive sentences. In
Woosley v. United States, 478 F.2d 139 (8th Cir. 1973) (en
banc), we held that an appellate court had the power to “con-
sider whether the imposition of a maximum sentence was in it-
self an abuse of discretion. . . .” Id. at 146. The Woosley court
further noted that “the record completely fails to justify, nor
has the district judge undertaken to explain, the imposition of
a maximum penalty. . . .” Jd. at 147. After reviewing the facts
in Woosley, the court concluded:

The broad and unreviewable discretion possessed by fed-
eral district courts in matters of sentencing does not extend
to the meting out of punishment manifestly disproportion-
ate to the nature of the crime and the character of the
criminal.

Id. at 148.

thermore, the sentencing judge would be forced to incorporate
as a part of the record those aggravating and mitigating cir-
cumstances upon which he relied in rendering a particular sen-
tence. Without such a provision, personal bias might still pre-
vail.

Zumwalt, The Anarchy of Sentencing in the Federal Courts, 57
Judicature 96, 104 (1973).

Similarly, Judge Frankel observes:

The point, anyhow, is that the Parties (especially the loser) are,
on deep principles, not merely entitled to a decision; they

ever, given decision-makers who are both tolerably honest and
normally fallible, the requirement of stated reasons is a power-
ful safeguard against rash and arbitrary decisions.

M. Frankel, Criminal Sentences 40-4] (1973).

— A-12 —

Frderal courts review the excessiveness of civil damages, when
abuse cf discretion is shown by judge or jury. It is an anachro-
nism not to afford similar review of sentences in criminal cases.4

One of the alleged difficulties of sentence review is the lack
of manageable judicial standards. There exists the continued
concern that appellate judges will simply substitute their
“guess” for that of the trial judge. But the trial judge does not,
or at least should not, act out of personal benevolence any more
than he should act punitively outside of the law. Discretion law-
fully exercised must represent a legal judgment, not a mere hu-
man reaction to choice. The same standards which move a trial
judge to a particular sentencing decision mark out the boundaries
by which lawful exercise of judgment must be measured. To re-
view the exercise of judicial discretion in the sentencing process
is not that difficult a task—the appellate process involves similar
appraisals in many areas of the law. I Suggest the main diffi-
culty in reviewing lawful discretion on appeal comes not in

* The ABA Project on Minimum Standards for Criminal Justice,
Standards Relating to Appellate Review of Sentences, states in per-
tinent part:

Finally, it should be observed that the Advisory Committee
has had the benefit of a detailed study of appellate review of
sentences in England, where sentence review has been the prac-
ae since 1907. The conclusion of that Study is worth noting

ere:

English lawyers and judges find it odd that the question whether
sentences should be subject to appellate review is a matter of
debate in the United States. The time before which . . . [the
Court of Criminal Appeal] was established with the authority
to review sentences lies beyond the memory of the active mem-
bers of the English legal profession today; they have never
known another system. So to them sentencing review is taken
for granted. In addition, though, everyone consulted believes
it to be a good thing. Most think its chief virtue is that it serves
as a protection against erratic sentences, the occasional peaks of
excessiveness. A number of thoughtful persons also believe
that it contributes greatly to sentencing policy and to an im-
proved atmosphere for the sentencing process.

MEADOR REPORT, Appendix C, p. 130, infra. One would
think that a country which prides itself for its protections against

— A-13 —

.
:
omer ety |

measuring the exercised judgment against the marked boundaries
of the field, but in the all too human predilection of judges to
routinely “rubber stamp” the questioned discretion of a district
judge without making a qualitative review of the actual decision.
It is as erroneous to substitute conclusory agreement as it is to
voice opinionated disagreement.

In order to avoid charges that appellate review of sentences
“reflects no more than the substitution of one guess about the
Proper disposition for another,” Standard 1.2 of the ABA Proj-
ect on Minimum Standards for Criminal Justice, Standards Re-
lating to Appellate Review of Senences, establishes general ob-
jectives of sentence review:

The general objectives of sentence review are:

(i) to correct the sentence which is excessive in length,
having regard to the nature of the offense, the character of
the offender, and the Protection of the public interest:

(ii) to facilitate the rehabilitation of the offender by af-
fording him an Opportunity to assert grievances he may
have regarding his sentence; \

(iii) to promote respect for law by correcting abuses of
the sentencing power and by increasing the fairness of the
sentencing process; and

(iv) to promote the development and application of cri-
teria for sentencing which are both rational and just.

Id. at 21.

state invasion of liberty would also take Pride in providing that
Protection where it often is needed the most, where the differ-
ence to the victim may be counted in years.

Id. at 6.
See also M. Frankel, Criminal Sentences 75-85 (1973); Zumwalt,

The Anarchy of Sentencing in the Federal Courts, 57 Judicature 96,
104 (1973).

—_—*)

Proper review of the sentences in the present cases would
accomplish all four of the above objectives. Although there are -
no fixed rules to bind the district courts in imposing sentences,
it is apparent that defendants’ sentences run counter to all mod-
ern guidelines on the proper imposition of sanctions. The Re-
port on Corrections of the National Advisory Commission on
Criminal Justice Standards and Goals recommends imprison-
ment only where there is no suitable alternative:

The traditional sanction imposed for violation of the
criminal law in this country was confinement. Any other
sentence that in some way moderated the nature or extent
of confinement was considered a lenient act on the part of
the state. It is more clearly recognized today that confine-
ment is unnecessary and inappropriate in a large number
of cases. Supervision in the community has been demon-
strated to be at least as effective in insuring future law-
abiding conduct without the human degradation, hostility,
and public expense associated with confinement. Confine-
ment thus should be considered the alternative to be used
when no other disposition will protect the public safety.

Id. at 152.

In its Standard 5.2, on Sentencing the Nondangcrous Of-
fender, the National Advisory Commission provides the follow-
ing guidelines to assist the sentencing court in its decision:

Criteria should be established for sentencing offenders.
Such criteria should include:

1. A requirement that the least drastic sentencing alter-
native be imposed that is consistent with public safety. The
court should impose the first of the following alternatives
that will reasonably protect the public safety:

a. Unconditional release.
b. Conditional release.

c. A fine.

R40. Kabink Bh pdr Day PUP ER 6S Pat ha ar

— A-15 —

d. Release under supervision in the community.

e. Sentence to a halfway house or other residential
facility located in the community.

f. Sentence to partial confinement with liberty to
work or participate in training or education during
all but leisure time.

g. Total confinement in a correctional facility.

2. A provision against the use of confinement as an
appropriate disposition unless affirmative justification is
shown on the record. Factors that would justify confine-
ment may include:

a. There is undue risk that the offender will com-
mit another crime if not confined.

b. The offender is in need of correctional services
that can be provided effectively only in an institu-
tional setting, and such services are reasonably avail-
able.

c. Any other alternative will depreciate the serious-
ness of the offense.

3. Weighting of the following in favor of withholding
a disposition of incarceration:

a. The offender’s criminal conduct neither caused
nor actually threatened serious harm.

b. The offender did not contemplate or intend that
his criminal conduct would cause or threaten serious
harm.

c. The offender acted under strong provocation.

d. There were substantial grounds tending to ex-
Cuse or justify the offender's criminal conduct, though
failing to establish defense.

COT —

— A-16 —

e. The offender had led a law-abiding life for a
substantial ratind of time heface commission of the
present crime.

f. The offender is likely to respond affirmatively to
probationary or other community supervision.

g. The victim of the crime induced or facilitated
its commission.

h. The offender has made or will make restitution
or reparation to the victim of his crime for the dam-
age or injury which was sustained.

i. The offender’s conduct was the result of cir-
cumstances unlikely to recur.

j. The character, history, and attitudes of the of-
fender indicate that he is unlikely to commit another
crime. '

k. Imprisonment of the offender would entail un-
due hardship to dependents.

1. The ottender is elderly or in poor health.

m. The correctional programs within the institu-
tions to which the offender would be sent are inap-
propriate to his particular needs or would not likely
be of benefit to him.

Report on Corrections, supra at 150-151.

The work ot the ABA Project on Minimum Standards for

Criminal Justice, Standards Relating to Sentencing Alternatives
and Procedures, reflects the same views on sentencing as the
Report of the National Advisory Commission. Standard 2.2 of
the ABA Project provides:

The sentence imposed in each case should call for the
minimum amount of custody or confinement which is con-

— A-17 —

sistent with the prc tection of the public, the gravity of the
uikttese> ater tle- :enlavhitiauve neeas o1 ine Gérénadnt.

Id. at 61.

Similarly, Standard 2.3(c) Provides that “[a] sentence not in-
volving confinement is to be preferred to a sentence involving
partial or total confinement in the absence of affirmative reasons
to the contrary.” /d. at 64.5

Both the National Advisory Commission and the ABA Proj-
ect are also opposed to consecutive sentences, except in the
case of dangerous offenders. The Report of the National Ad-
visory Commission recommends a presumption “in favor of
concurrent sentences for multiple offenses.” Jd. at 166. The
Report finds little justification for consecutive sentences, other
than to extend the period of confinement:

* The Commentary to this Standard explains the presumption in
favor of probation:

The Advisory Committee believes that the starting point for
every sentence should be probation or some other sentence not

should turn on the PPearance of specific reasons ich seem

The results tend to support the conclusion that for many
judges incarceration is the automatic sentencing response. More
harm than good can be caused by such an attitude. Often in-
stitutionalization will result in little more than education of the
offender in more sophisticated methods of engaging in criminal

sequent offense by helping the offender adjust to society than
by removing him from it. See § 2.1, comment f, and § 2.2,
comment a, supra.

In addition to the fact that Probation often offers the best
Possibility of meaningful rehabilitation, it is considerably less
expensive than institutionalization. Figures supplied to the

— A-18 —

Such an extension, if based solely on the fact that more
than one offense was committed, regardless of the needs
of the particular offender or the requirements of public
safety, amounts to the imposition of sanction purely for
punishment purposes.

Id.

The Report concludes that only dangerous offenders should
ever be subjected to more than five years imprisonment.

The ABA Standards Relating to Sentencing Alternatives and
Procedures are also generally opposed to consecutive sentences.
Standard 3.4(b) holds that “[cJonsecutive sentences are rarely
appropriate.” /d. at 171.

In the Commentary to this Standard, the Advisory Committee
States that “[t]he consecutive sentence should be the exception
rather than the rule . . . [T]he basis of a consecutive sentence,
like the basis of any other sentence which extends for an un-

Advisory Committee by the Administrative Office of the United
States Courts indicate that in fiscal 1964 the per capita cost
of probation in the federal system was 59 cents a day, while
the cost of housing a prisoner in a federal institution was $6.35
per day. The came figures were $215 and $2,318, respec-
tively. The Administrative Office reports in addition that pro-
bationers during the period in question earned $62 million.
Intangible costs in terms of impact on a family deprived of its
breadwinner, including possible welfare payments, add to the
cost of incarceration, not to mention the cost per inmate of the
construction of facilities for housing prisoners. Compare Her-
lands, When and How Should a Sentencing Judge Use Proba-
tion, 35 F.R.D. 487, 498 (1964). Crime Commission figures
disclose that the average state spends approximately $3400 a
year, excludin — expenditures, to keep a youth in a state
training school, while probation for the same period costs ap-
proximately one-tenth of that amount. Construction costs are
estimated to be in excess of $20,000 per bed in a correctional
institution. While the Commission correctly points out that
necessary increases are warranted in order to strengthen proba-
tion services, the expense of this sanction will still remain con-
siderably below institutionalization. See PRESIDENT’S
COMM’N, CORRECTIONS 28, 175-76.

Id. at 72-73.

— A-19 —

usually long period, ought to be a finding by the court that the
defendant poses such an exceptional risk to the public that
long-term incarceration is necessary as a protective measure.”
Id. at 179. .

In addition to running counter to modern penological think-
ing, the sentences imposed by the district court are far in ex-
cess of the average sentence for defendants convicted of similar
crimes. In 1971 (the most recent year for which data are avail-
able), 496 defendants were convicted of mail fraud offenses. Of
this total, less than 50% were sentenced to any time in prison.
Among those who were incarcerated, the average sentence was
33.2 months. Only 37 defendants out of the total of 496 were
sentenced to five or more years. Administrative Office of the
United States Courts, Federal Offenders in the United States
District Courts: 1971, at 96 (1973).

With these guidelines in mind, examination of the facts in the
present cases shows that the sentences imposed were completely
unwarranted. The district court chose the most severe sentenc-
ing alternative available, yet there are no aggravating circum-
stances in either case requiring such extreme measures.

Defendant Dace is 46 years old; has been married for 21
years; has three children, ages 15, 11 and 3; and had been em-
ployed by the Hartford Insurance Group for ten years. The
extent of his past criminal record was a misdemeanor charge in
St. Louis County, which resulted in a suspended imposition of
sentence. The trial court was advised that Dace has insufficient
funds to support his family while confined; that his wife is now
working, but cannot afford to keep all three children at home:
and that she has been denied welfare assistance. The court was
further informed that Dace has employment available to him
upon his release from custody. The presentence report shows
that Dace cooperated fully with law enforcement authorities
during their investigation.

T — A-20 —

2 RINE ST te RS

Defendant Schneider is 52 years old; has been married for
27 years; has two children in college; and had been steadily
employed. He served his country as a combat pilot in Korea,
suffered a disability as a result of such service, and was deco-
rated three times. He also served as a volunteer police officer
and has no prior criminal record of any sort. With regard to
the three counts to which Schneider pleaded guilty, his counsel
pointed out that Schneider had made full restitution to the in-
surance company.® Schneider also cooperated fully with law
enforcement officers. Schneider’s counsel produced a letter from
a Mr. Reeves, offering Schneider employment upon his release
from custody, and several other letters of recommendation from
various people concerning Schneider’s general character.

In summary, Schneider has no prior criminal record at all:
Dace has had only one relatively minor scrape with the law.
Neither defendant could be considered the least bit dangerous
to the public. Their briefs indicate that Dace, after confinement
at Leavenworth Penitentiary, was quickly transferred to the
minimum security prison camp at Leavenworth, Kansas, and
that Schneider has been recommended for the same assignment.
Schneider has made at least partial restitution to the insurance
company. Neither defendant is likely to benefit from rehabili-
tative training programs available in prison. These are not un-
skilled defendants who, if released from custody, might well be
forced to commit another crime out of economic necessity. On
the contrary, both defendants have jobs available to them im-
mediately upon their release. In the meantime, their confine-
ment is working a severe hardship on their families, who may
soon have to look to the state for support.

Keeping Schneider and Dace in prison for an extended pe-
riod of time is far more likely to have a negative rehabilitative

* Apparently, Schneider even repayed some monies kept by his
confederates, in addition to that which he had gained for himself.

—A-21 —

effect. By the time they are released, their employment pros-
pects may well have disappeared. They are likely to be so
bitter against society that their readjustment into the com-
munity will be impossible. I would vacate both sentences, re-
mand to the district court and require that the court disclose
the presentence report to each defendant, and that the court
thereafter resentence each defendant, taking into consideration
time already served. The district court should be directed to
consider immediate probation. If some justifiable reason can
be demonstrated on the record to deny probation, then the court
could require further imprisonment based solely on the charges
to which the defendants have pleaded guilty and no others.

A true copy.

Attest:

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

CE SCOPE PTET oe Gre

a A228 =

APPENDIX B

United States Court of Appeals
For the Eighth Circuit

September Term, 1973
No. 73-1773
United States of America,
Appellee,

vs.

Vernon Henry Schneider,
Appellant.

JUDGMENT

Appeal from the United States District Court for the Eastern
District of Missouri.

This Cause came on to be heard on the record from the
United States District Court for the Eastern District of Missouri
and was argued by counsel.

On Consideration Whereof, it is now here ordered and ad-
judged by this Court, that the judgment and sentence of the
said District Court, in this cause, be, and the same is hereby,
(sic) in accordance with the majority opinion of this Court this
day filed herein.

June 10, 1974
A true copy.
Attest:

/s/ Robert C. Tucker
Clerk, U. S. Court of Appeals, 8th Circuit

— A-23 —

APPENDIX C

United States Court of Appeals
For the Eighth Circuit

No. 73-1689
No. 73-1763

United States of America, )
Appellee,
Vv.

Edward Euge:ie Dace,

Appellant. Appeal from the

United States Dis-
f trict Court for the

Eastern District of
Missouri.

"9,

United States of America,
Appellee,

Vv.

Vernon Henry Schneider, !
Appellant.

ORDER ON REHEARING
Filed: September 26, 1974

Upon consideration of appellants’ petition for rehearing we
deem it appropriate to emphasize that where the presentence
report is not disclosed to a defendant, “[i}t is always advisable
for the trial judge to at least State on the record the various
factors he has taken into consideration in rendering his sentence.
* * * Such a procedure serves as a checkmate to the danger of

—

misinformation being placed in the hands of the court.” United
States v. Carden, 428 F.2d 1116, 1118 (8th Cir. 1970) (em-
phasis added). Failure to do so may well require a vacation
of sentence and remand for resentencing under the teachings
of Townsend v. Burke, 334 U.S. 736 ( 1948); and United States
v. Tucker, 404 U.S. 443 (1972).

Our refusal to vacate and remand for resentencing in the
instant case follows a careful examination of the presentence
reports which, as we have noted, do not include unreliable in-
formation that a district judge would normally reiy on in
rendering sentence.

The petition for rehearing is therefore denied.

Judge Lay dissents from the denial of rehearing for all the
reasons stated in his original dissent.

A true copy.

Attest:

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

— A-25 —

APPENDIX D

United States District Court
Eastern District of Missouri

United States of America, }
Plaintiff,
v.
; No. 73 CR 61(1)
Edward Eugene Dace and Vernon
Henry Schneider,

Defendants.

INDICTMENT
(Filed March 14, 1973)

First Count
The Grand Jury charges:

1. That beginning on or about December 31, 1969, and
continuing to on or about June 23, 1971, in the City of St.
Louis, within the Eastern District of Missouri,

Edward Eugene Dace and
Vernon Henry Schneider,

defendants herein, devised and intended to devise a scheme
and artifice to defraud and to obtain money and property by
means of false and fraudulent pretenses and representations
from the Hartford Insurance Group, well knowing at that time
that the pretenses and representations would be and were false
and fraudulent when made, and which said scheme and arti-

— A-26 —

fice so devised and so intended to be devised by the said de-
fendants was in substance as follows:

2. It was a part of said scheme and artifice to defraud that
during the period of said scheme Edward Eugene Dace was
employed as a claims supervisor by the Hartford Group. In
such capacity Edward Eugene Dace adjusted claims and had
the authority to issue drafts for the payment of claims of the
Hartford Insurance Group under his own signature.

3. It was a further part of said scheme and artifice to de-
fraud that defendant Vernon Henry Schneider, during the pe-
riod of said scheme, was employed as a claims representative
by the Hartford Insurance Group. In such capacity defendant
Schneider adjusted claims and had the power to issue drafts
for payment of claims of the Hartford Insurance Group under
his own signature.

4. It was a further part of said scheme and artifice to de-
fraud that defendants Edward Eugene Dace and Vernon Henry
Schneider would and did adjust fraudulent insurance claims
made on the Hartford Insurance Group and cause checks or
Grafts to issue under their authorized signatures in payment for
said false and fraudulent claims. At the time they issued
said payments for said false and fraudulent claims they knew
that said claims were false and fraudulent.

5. It was a further part of said scheme and artifice to de-
fraud that the defendants Edward Eugene Dace and Vernon
Henry Schneider would give to Paul Hugh Martin drafts of
the Hartford Insurance Group authorized under their signatures
for the payment of fraudulent claims. Paul Hugh Martin would
then forge the name of the payee of said araft and cash said
draft. Paul Hugh Martin would then write vhecks to Edward
Eugene Dace and Vernon Henry Schneider fur their respective
share of the proceeds of the fraudulent insurance claim.

— A-27 —

6. It was a further part of said scheme and artifice to de-
fraud that Edward Eugene Dace would and did cause drafts
of the Hartford Insurance Group to be issued under his au-
thorized signature for fraudulent insurance claims, knowing at
the time said drafts were issued that the claims were false.
Many of these drafts for payment of fraudulent claims were
made payable to acquaintances of Edward Eugene Dace. These
payees would then cash the draits and return the proceeds of
the fraudulent claim to Mr. Dace.

7. It was a further part of said scheme and artifice to de-
fraud that Eoward Eugene Dace and Vernon Henry Schneider
would at times during the scheme exchange monetary funds
with each other in order to more evenly split the proceeds that
they had received from false and fraudulent insurance claims
filed with the Hartford Insurance Group.

8. It was a further part of said scheme and artifice to de-
fraud that defendant Vernon Henry Schneider would and did
secure false police reports to substantiate false and fraudulent
claims made on the Hartford Insurance Group.

Sixth Count

1. The Grand Jury realleges all the allegations of the First
Count of this indictment, except those contained in the last
two paragraphs thereof.

2. The Grand Jury further charges:

That on or about February 28, 1971, in the City of St. Louis,
in the Eastern District of Missouri, Edward Eugene Dace and
Vernon Henry Schneider, defendants herein, for the purpose
of executing the aforesaid scheme and artifice to defraud, and
attempting to do so, did place or cause to be placed in an au-

— * on

thorized depository for mail matter a letter for delivery to the
Hartford Insurance Group, Hartford Plaza, Hartford, Con-
necticut, to be sent and delivered by the United States Postal
Service.

In violation of Title 18, United States Code, Section 1341.

Twelfth Count

1. The Grand Jury realleges all the allegations of the First
Count of this indictment, except those contained in the last

two paragraphs thereof.
2. The Grand Jury further charges:

That on or about April 25, 1971, in the City of St. Louis, in
the Eastern District of Missouri, Vernon Henry Schneider, de-
fendant herein, for the purpose of executing the aforesaid scheme
and artifice to defraud, and attempting to do so, did place or
cause to be placed in an authorized depository for mail matter
a letter for delivery to the Hartford Insurance Group, Hartford
Plaza, Hartford, Connecticut, to be sent and delivered by the
United States Postal Service.

In violation of Title 18, United States Code, Section 1341.

Thirteenth Count

1. The Grand Jury realleges all the allegations of the First
Count of this indictment, except those contained in the last two

paragraphs thereof.
2. The Grand Jury further charges:

That on or about April 25, 1971, in the City of St. Louis,
in the Eastern District of Missouri, Vernon Henry Schneider,

— A-29 —

defendant herein, for the Purpose of executing the aforesaid
scheme and artifice to defraud, and attempting to do so, did
place or cause to be placed in an authorized depository for
mail matter a letter for delivery to the Hartford Insurance
Group, Hartford Plaza, Hartford, Connecticut, to be sent and
delivered by the United States Postal Service.

In violation of Title 18, United States Code, Section 1341.

* £ - = * * *

— A-30 —

APPENDIX E

October 12, 1973
Leavenworth, Kan.

Dear Mr. Baris,

I want you to submit this letter to the Appellate Court
Judges, either immediately, in my brief, re-brief, or wherever
it is most appropriate.

Judge Meredith sentenced me to two five years terms, run-
ning consecutively and five years probation on the third count,
all involving mail fraud. I have been incarcerated in the Fed-
eral Prison, Leavenworth, Kansas, since July 7, 1973. En-
closed is a copy of the papers submitted to me on October 9,
1973, by the Warden, concerning my transfer to the local
Prison Farm. After I spent 89 days in this maxium security
Prison, I was interviewed by the Prison Committee, consisting
of eight professional counselors. They and the Warden have
now agreed to transfer me to a subsidiary, that contains no
iron bars, cells, fences, etc., and also placed me on MINIMUM
custody. These professionals reviewed my case history and
stated that I had received an extremely harsh sentence under
the circumstances. This decision, by eight professional men,
certainly reflects on my character and also the judgment of
Judge Meredith.

Recently, I read an article in the Kansas City, Mo. news-
paper, written by Judge John J. Sirica, who ruled on the Water-
gate defendants. He stated that the sentences imposed on the
Watergate defendants last spring, were not intended to be final
sentences and that it is customary in the Federal Courts, to
impose the maximum sentence at the conclusion of the trial or
guilty plea by the defendant after 90 to 120 days, such sen-
tences are routinely reduced. He further stated that at the

— A-31 —

time of the final sentence, he would consider fairness, com-
passion, understanding, and justice. I would also like the
same consideration, in lieu of the evidence of my pre-convic-
tion character, conduct in recent months and by record of
previous sentences in other mail fraud cases. Specifically, Paul
Martin’s case, also heard by Judge Meredith, waereby he re-
duced Mr. Martin’s sentence to one year.

In my case no one was hurt, no person was placed on terror
of his life, full restitution was made prior to my indictment and
no apparent damage was done to anyone.

While I served time for the U. S. Government as a Navy
Pilot, I was shot up by the Japanese and they gave me a second
chance; I was shot down by the Koreans in the Korean Conflict
and they gave me a second chance. Now I ask the United
States for a second chance. At present, I feet as if I’m in a
holding pattern of Persona-non-Grata.

I respectfully request the Appellate Court Judges to recon-
sider the obviously harsh sentence imposed by Judge Meredith
and reduce it to something in the vicinity of reasonable.

Very truly yours,
/s/ VERNON H. SCHNEIDER 87706-132

United States Department of J ustice
United States Penitentiary
Leavenworth, Kansas

In accordance with the authority delegated to me by the
Director of the Bureau of Prisons on June 24, 1971, I
order the transfer of Schneider, Vernon Henry 87706-132

(name) (number)

— A-32 —

icom the United States Penitentiary, Leavenworth, Kansas, to
the Federal Prison Camp, Leavenworth, Kansas.

(name of institution) (City and State)
Transfer ordered: October 9, 1973.

(date)
/s/ L. E. DAGGETT
Warden
Reason: 290
Institution Classification
Pursuant hereunto, I have this .... UGE ex ban ss cadat é

19...., executed the above order and committed the prisoner
to the institution indicated.

et a ee ee ee ee ae ae ee ne

lett ee ee oe en a ee a or Pe

(title)
LKC-107

7

— A-33 — i

APPENDIX F

STA RENN

In the United States District Court, Eastern District
of Missouri, Eastern Division

United States of America, 5
Plaintiff,

vs. No. 73 Cr. 61(1)

Edward Eugene Dace and Vernon Oral hearing requested

Henry Schneider,

Defendants. }

MOTION OF DEFENDANT HENRY SCHNEIDER
FOR REDUCTION OF SENTENCE

Now comes defendant Vernon Henry Schneider and, pur-
suant to the provisions of Rule 35 of the Federal Rules of

Support of this motion states:

1. On the 14th day of March, 1973, this defendant was in-
dicted on seven counts of mail fraud, in violation of Title 18,
United States Code, Section 1341.

2. On the 4th day of May, 1973, this defendant entered a
Plea of guilty to three counts of the indictment, and the gov-
ernment moved to dismiss the other four counts.

3. On the 17th day of May, 1973, this defendant was sen-
tenced to a term of imprisonment for five years on Count 6

REDO IEL SNE LDA DISHED Gs LS DIO pees Oy Rs pitt nate OL. 5 *
bs
3 ae x eee
2

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i 13 the sentence was Suspended and this defendant was placed
on probation for a period of five years to begin upon comple-
tion of the sentences of imprisonment for ten years.

4. On the 18th day of June, 1973, this defendant began the
service of the sentence imposed and is presently confined at
the United States Penitentiary at Leavenworth, Kansas.

5. This defendant requests a reduction in his sentence of
imprisonment for the following reasons:

A. The sentence imposed upon this defendant, a first of-
fender, is an unusually long and severe sentence for the offenses
to which he pleaded guilty, which were, in effect, part of one
continuing transaction.

B. Another person (Paul Martin) involved in the series of
transactions out of which this Prosecution arose received a sen-
tence of one year imprisonment and a fine.

C. This defendant, prior to his indictment, made full resti-
tution for all money lost by the insurance company in connec-
tion with the counts to which he pleaded guilty, even though
this defendant actually received less than he repaid the insur-
ance company.

D. The severity of the sentence has caused and will cause an
extreme hardship to this defendant’s wife, children and elderly
mother.

E. This defendant has had an excellent record of cooperation
with law enforcement authorities prior to this offense and has
fully cooperated with law enforcement authorities since his plea
of guilty.

F. Many people have expressed their confidence in and sup-
Port of this defendant.

OM "SA EP I 62D IRD NY AAG LEM ANE

— A-35 —

G. This defendant assures the Court that he can and will
be a law abiding citizen, useful to society, and that he has
employment available to him upon his release from custody.

6. In the event this Court is not inclined to release this de-

© TORONTO Ap ein BO RAS

the Court reduce the length of the sentence and sentence him
under the provisions of Title 18, United States Code, Section |
4208(a). ;

7. Prior to sentencing, this defendant had requested an op-
portunity to examine the pre-sentence investigation report sub-

the pre-sentence investigation report, and this defendant requests
that he be given an Opportunity to examine the pre-sentence
investigation report so that he may present explanations to the
Court as to any derogatory information contained therein.

NEWMARK and BARIS
/s/ IRL B. BARIS
721 Olive Street
St. Louis, Missouri 63101
621-7400 .
Attorneys for Defendant

Copy of the foregoing Motion mailed this 22nd day of Au-
gust, 1973, to United States Attorney, 1114 Market Street, St.
Louis, Missouri 63101.

‘s/ IRL B. BARIS

= Pt otek _

— A-36 —

APPENDIX G

United States Pacific Fleet, Commander Seventh Fleet
The Commander Seventh Fleet takes pleasure in presenting a
GOLD STAR in lieu of the AIR MEDAL, Second Award, to

Lieutenant Vernon H. Schneider
United States Naval Reserve

For services set forth in the following
Citation:

For distinguishing himself by meritorious achievement in aerial
flight as pilot of an attack bomber in Attack Squadron NINE
TWO THREE, attached to the U.S.S. BON HOMME RICH-
ARD, in an attack on hostile North Korean and Chinese Com-
munist forces. On 2 November 1951, Lieutenant Schneider,
as a member of a flight composed of six Skyraiders and six
corsair aircraft, was assigned to a special strike mission against
enemy ordnance production facilities, large concentrations of
armed enemy troops and anti-aircraft installations, located in
the strongly defended city of PUKCHONG, in Communist held
hostile North Korean territory. Lieutenant Schneider success-
fully made a series of vicious attacks on his specifically assigned
mission of destroying these ordnance Production facilities and
expended his deadly load of bombs with such skillful accuracy
that his direct hits aided in completely destroying the primary
target. Lieutenant Schneider with his division, then joined the
accompanying Corsairs, who had skillfully suppressed the in-
tense anti-aircraft fire from the surrounding positions, and made
additional well coordinated, savage attacks in the face of in-
tense small arms fire, against enemy supply and storage facili-
ties which resulted in his flight destroying one large warehouse,
severe damage to two others, heavy damage to one locomotive
and two strategic rail cuts in the enemy’s railroad tracks. By
his courage and superb airmanship, Lieutenant Schneider in-

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— A-37 —

flicted severe and complete damage upon the enemy’s highly
important and desperately nesded storage and production facili-
ties, rail and communications installations. His devotion to
duty was at all times in keeping with the highest traditions of
the United States Naval Service.

/S H.M. MARTIN
H. M. MARTIN
Vice Admiral, U.S. Navy
Commander Seventh Fleet

Temporary Citation

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0180%3A1. Public record. Not legal advice.