Brief for the Petitioners — Hill v. United States

Petitioner,

on WRIT OF CERTIORARI TO THE UNITED STATES COUBT OF APPEALS

FOR THE SIXTH CIRCUIT

Fs

BRIEF FOR THE PETITIONER

Cunt R. Rerrz

3400 Chestnut Street

~~ Philadelphia 4, Pa.

Counsel for the Petitioner

TABLE OF CONTENTS

SUBJECT INDEX

NI TI ice ees

pL Saeco CEL, Peete ea Cot aes PKR Ee GND

ee gE tice OER a DINO CE aa ie SO

Rules and Statute Involved .......00.0 0000.

BOREAS SIRES A Apa SE ee eC Ae PET

Argument:

I.

Il.

The District Court Clearly Violated the Man-

datory Requirements of_ Rule 32(a) of the

Federal Rules of Criminal Procedure by

Failing to Provide Petitioner With an a

portunity to Make a Statement im His Own”

Behalf and to Present Any Information in

Mitigation of Punishment ...................0..........

Petitioner Is Entitled to Relief From This

Violation of Rule 32(a) in a Proceeding for

Correction of Sentence Under Rule 35 of the

Federal Rules of Criminal Procedure ............

A. Rule 35 Provides a Remedy for Illegality,

Not Only in the Content of the Sentence,

But Also in the Procedure Whereby Sen-

SORE: te SONNE ea

B. The History of Rule 35 of the Rules of

Criminal Procedure Is Consistent With

Its Use to Correct Sentences Which Are

Illegal Because of the Manner in Which

Tey Ree MONOE oe

C. Sound Policy in the Administration of

Criminal Law Supports Providing Relief

Where a Sentence Has Been Imposed in

Violation of Rule 32(a) ..............c.ccese----

pes

11

13

16

20

ii INDEX

III. Petitioner Is, in Any Event, Entitled to Relief

From the Illegal Sentence Under 28 U.S.C.

Bt Rael eS PERT Pecan HORNER EE REE RETO

Conclusion .. SP Reset (> SEAS a ra AS OR ENT RN OPP

TaBLe or CasEs aND OTHER AUTHORITIES

CASES:

Anonymous, 3 Mod. 265, 266, 87 Eng. Rep. 175

iced ee

Baker v. United States, 271 F.2d 190 (8th Cir.

NI sic nse asad pieces casi picid aac puna olastosaatackars ict

Batson v. United States, 137 F.2d 288 (10th Cir.

MN itd cae nek sala dpcicnstaamadeiatie Se sahin itiueagsen sinks

Bayless v. United States, 288 F.2d 794 (9th Cir.

I re i la a

Bronson v. Schulten, 14 Otto 410, 104 U.S. 410

St ERAS Eee ere ari Reet oN Eee

Brown v. Pescor, 74 F. Supp. 549 (W. D. Mo.

ser ON ae Ie SAIN PL Epa POR SRS Tone ANE OTS HS ROI

Buie v. United States, 127 F.2d 367 (5th Cir.

1942), cert. denied, 317 U.S. 689 (1942), re-

hearing granted 317 U.S. 703 (1943), cert.

denied, 318 U.S. 766 (1943) ..................................

Byrd v. Pescor, 163 F.2d 775 (8th Cir. 1947),

cert. denied, 333 U.S. 846 (1948) 00002.

Callanan v. United States, 364 U.S. 587 (1961) ..

Carrollo v. United States, 141 F.2d 997 (8th

oS SEY) GR en ar ON WMIRED Pei DESO Se ere Ne Po

Cook v. United States, 171 F.2d 567 (1st Cir.

1948), cert. denied, 336 U.S. 926 (1949) 0.00.2...

Corcoran v. United States, 231 F.2d 449 (7th

See 2 2 SERRE ae ee RW epee ae ame NN RE

Coy v. United States, 156 F.2d 293 (6th Cir.

1946), cert. denied, 328 U.S. 841 (1946) ........ 7

D’Ostroph-v. Pescor, 7 F.R.D. 569 (W.D. Mo.

1947), appeal dismissed, 173 F.2d 897 (&th Cir.

1949), cert. denied, 337 U.S. 926 (1949) 0.00000...

ae v. United States, 91 F.2d 223 (D.C. Cir.

2 fier RAS RRR Re tae a

Ff

Page

22

22

==

-

INDEX

Dugains v. United States. 240 F.2d 479 (6th Cir.

ee

Page

“eee 12, 13, 15

Ekbeeg v. United States, _ 167 F. 2d 380 (Ist Cir.

1948) . i 13

Fooshee v. ay ‘nited States s, 203 F.2d 247 (oth Cir.

1953) - 15

Garfinkel v. vi nited State. s, 285 F. 2d M8 (7th Cin ir.

1960), cert. denied, 365 U.S. 879 (1961) _.... 14

Gilliam vy. United States, 269 F.2d T70 (D.C.

Cie, Fee) =........ CEES EO AE APES een 14

Green v. United States, 365 U.S S. 301 (1961) . 9, 10, 11,

12, 13, 21

Griffin v: United States, 173 F.2d 909 (6th Cir.

1949), rehearing, 175 F.2d 192 (6th Cir. 1949) 15

Heflin v. United States, 358 U.S. 415 (1959) ........ 12, 13

Hill v. United States, 350 U.S. 946 (1956) ........ 4,5,9

Hill v. United States, 223 F.2d 699° (6th Cir.

1955), cert. denied, 350 U.S. 867 (1955) -....... 5

Hill v. United States, 238 F.2d 84 (6th Cir.

1956), cert. denied, 352 U.S. 1007 (1957) ........ 5

Hill v. United States, 256 F.2d 957 (6th Cir.

ee Rca: LE OEP Eo ak INS OO 5

Hill v. United States, 268 F.2d 203 (6th Cir.

1959), cert. denied, 361 U.S. 854 (1959) ....... 5

Holiday v. Johnston, 313 U.S. 342 (1941) ~...... 17

Holiday v. United States, 130 F.2d 988 (8th

Ni, I diacetate con eA cieslachelnsteteehaigancdacpanenets 18

Machibroda v. United States, No. 69, October

cL __: SEES SR ee ee 22

May v. United States, 261 F.2d 629 (9th Cir.

1958), cert. denied, 359 U.S. 994 (1959) ........ 12

McNally v. Hill, 293 U.S. 131 (1934) .........0000020... 18

Meyers v. United States, 116 F.2d 601 (Sth Cir.

RRR PISA RRR BRR TRL Se 19

Miiler v. United States, 147 F.2d 372 (2d Cir.

RETESET CERES 19

Montos v. United States, 261 F.2d 39 (7th Cir.

OR ig AN 15

Nivens v. United States, 139 F.2d 226 (Sth Cir.

1943), cert. denied, 321 U.S. 787 (1944) —......... 19

iv

INDEX

, Page

Peters » v. United States, 39 F.2d 356 (Sth Cir.

Ns I Se Sa 19

Phillips v. Negley, 7 U.S. 665 (1886) 2... ¢gl7

Pickett’s Heirs v. Legerwood,7 Pet. 147 (1833) .. 17

Prince v. United States, 352 U.S. 322 (1957) ........ 13

Robinson v. United States, 143 F.2d 276 (10th: |

RS I titre eh cia aso es coe 19

Rutkowski v. United States, 149 F.2d 481 (6th

oe NRE ae Ree ke > ee tia REN eet 19

In re Shepherd, 195 F.2d 157 (Ast Cir. 1952) .. 15

Simunov v. United States, 162 F.2d 314 (6th Cir.

BR Sivectcecccateemabalestonaicycaeaslsdacaineptidimatse abemniaeipeas 13

Smith v. United States, 287 F.2d 270 (9th Cir.

I iticadinseteeecaaablinchnit alcatel oatata utc bidaesduaeuaen 13

Steffler v. United States, 319 U.S. 38 (1943) ........ 18

Taylor v. United States, 285 F.2d 703 (9th Cir.

PT iicitctainmsaraccchaiencadinapsnsthutapi nin OAbs abet Wate scan 11

United States v. Bradford, 194 F.2d 197 (2d Cir.

1952), cert. denied, 343 U.S. 979 (1952) _..... 12

United States v. Drake, 250 F.2d° 216 (7th Cir.

UMTET. cuabienchinssinandslicnsiiliemcnacdibinabcakissabeusiichtesicaas 13

United States v. Hough, 157 F. Supp. 771 (S.D.

IPR PE Saar et en 12

United States v. Mayer, 235 U.S. 55 (1914) _...... 17

United States v. Morgan, 346 U.S. 502 (1954) .... 15,17

United States v. Smith, 331 U.S. 469 (1947) ........ 17

United States v. Thompson, 261 F.2d 809 (2d

Cir. 1958), cert. denied, 359 U.S. 967 (1959) .. 15

Wilson v. United States, 145 F.2d 734 (9th Cir.

UII chncickahs saci en tittaidindcidssindeasgunanepbicteanthcamnencdine 19

UNITED STATES STATUTFS:

Act of February 24, 1933, Chap. 119, 47 Stat.

I heh taasicessniiniceatiaiiesitasacmenison ip basen isd anciasapiaseiecniaced 16

Act of March 8, 1934, Chap. 49, 48 Stat. 399 .... 16

Judicial Code, 28 U.S.C. $7353 ow... eecssseenneee 8

Judicial Code, 28 U.S.C. $1254(1) 2. 1

Judicial Code, 28 U.S.C. $2255 ........ 2, 4, d, 6, 7, 12, 15, 22

f

INDEX v

rs Page

FEDERAL RULES OF CRIMINAL PROCEDURE:

S| | ie « we FF eee

se sib sik Ub sabiidavis cuatamnndacal 14

IE pista cata Z, », 12, 13, 14, 15, 16, 18, 22

+ ERAN SSM ene. SEP SNE LT OEIC tae sO 14

Federal Rules of ( ‘riminal Procedurve—First

Prolemimary Deaft (1963) o.oo ss... 18

Federal Rules of Criminal Procedure—Second

Preliminary Draft ((VQ44) 0.020.002 cee nee 18

Criminal Appeals Rules, 292 U.S. 661 (1934) .. 16

MISCELLANEOUS:

Proceedings of the Catholic University of Amer-

ica School of Law Institute on the Federal

Rules of Criminal Procedure, 5 F.R.D. 88

Eee Pa at CRSA ner RN eden tS 17

Proceedings of the New York University School

of Law Institute on the Federal Rules of Crim-

RE PNG SIO iaiccicen isc tte 16

LonesporF, CycLorepra or FEDERAL PROCEDURE,

fe SSS eee pero Giikileactseiies 18

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1961

No. 68

James Francis Hin,

Petitioner,

vs.

Unitep States,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

r FOR THE SIXTH CIRCUIT

BRIEF FOR THE PETITIONER

Opinions Below

The opinion of the Court of Appeals (R. 45) is reported

at 282 F.2d 352 (6th Cir. 1960). The memorandum and

order of the District Court (R. 41-44) are reported at 186

F. Supp. 441 (E.D. Tenn. 1959).

Jurisdiction

The judgment of the Court of Appeals was entered on

June 14, 1960 (R. 45). The petition was filed June 30, 1960,

and was granted March 20, 1961. The jurisdiction of this

Court rests on 28 U.S.C. $1254(1).

2

Question Presented

Where the District Court, at the time of imposing sen-

tence upon petitioner, failed to follow the mandatory pro-

cedure of Rule 32(a) of the Federal Rules of Criminal!

Procedure, in that the Court did not afford an epportunity

to petitioner, or to his counsel, to make a statement in his

own behalf or to present any information in mitigation of

punishment, is petitioner entitled to relief in the proceed-

- ing he has now brought?

~ Rules and Statute Involved

ad

Rule 32(a) of the Federal Rules of Criminal Procedure

provides:

(a). Sentence. Sentence shall be imposed without

unreasonable delay. Pending sentence the court may

commit the defendant or continue or alter the bail.

Before imposing sentence the court shall afford the

defendant an opportunity to make a statement in his

own behalf and to present any information in mitiga-

tion of punishment.

_———

Rule 35 of the Federal Rules of Criminal Proeedure pro-

vides in pertinent part:

The court may correct an illegal sentence at any

time.

Section 2255 of the Judicial Code, 28 U.S.C. $2255, provides :

A prisoner in custody under sentence of a court es-

tablished by Act of Congress claiming the right to be

released upon the ground that the sentence was im-

posed in violation of the Constitution or laws of the

United States, or that the court was withowt jurisdic-

3

tion to impose such sentence, or that the sentence was

in excess of the maximum authbdrized by law, or is

otherwise subject to collateral attack, may move the

court which imposed the sentence to vacate, set aside

or correct the sentence. ,

A motion for such relief may be made at any time.

Unless the motion and the files and records of the

case conclusively show that the prisoner is entitled to

no relief, the court shall cause notice thereof to be

served upon the United States attorney, grant a prompt

hearing thereon, determine the issues and make find-

ings of fact and conclusions of law with respect thereto,

If the court finds that the judgment was rendered with-

out jurisdiction, or that the sentence imposed was not

authorized by law or otherwise open to collateral at-

tack, or that there has been such a denial or infringe-

ment of the constitutional rights of the prisoner as to

render the judgment vulnerable to collateral attack,

the court shall vacate and set the judgment aside and

shall discharge the prisoner or resentence him or grant

a new trial or correct the sentence as-may appear

appropriate.

A court may entertain ail determine such motion

without requiring the production of the prisoner at the

hearing.

The sentencing court shall not be required to enter-

tain a second or successive motion for similar relief

on behalf of the samne prisoner.

An appeal may be taken to the coutt of appeals from

the order entered on the motion as from a final judg--

ment on application for a writ of habeas corpus.

An application for a writ of habeas corpus in behalf

of a prisoner who is authorized to apply for relief by

motion pursuant to this section, shall not be entertained

+

if it appears that the applicant has failed to apply for

relief, by motion, to the court which sentenced him, or

that such court has denied him relief, unless it also

appears that the remedy by motion is inadequate or

ineffective to test the legality of his detention.

Statement

Petitioner secks relief from®@n illegal sentence imposed

_by the United States District Court for the Eastern Dis-

trict of Tennessee on June 4, 1954, under separate indict-

ments for transporting a stolen motor vehicle in interstate

commerce and for transporting across State lines a person

who had been kidnapped and held for ransom. Consecutive

sentences of 20 years for the kidnapping offense and of

3 years for the motor vehicle offense were imposed (R. 20).

There was no appeal.’

Petitioner filed a “Motion to Vacate Sentences Under

Section 2255, Title 28 U.S.C.” on pated 21, 1959, in the

* The lack of appellate review of the convictions and sentence

has itself been the basis of repeated attempts at post-conviction

relief by petitioner. In a motion to vacate and set aside sentence

under §2255, filed December 17, 1957, petitioner contended that he

was prevented by government agents from appealing his original

conviction. In the present proceeding, this contention was renewed

together with an allegation that petitioner had in fact sent a letter

from prison which was in effect a notice of appeal. The limited

xrant of certiorari eliminated this question from the present pro-

ceeding. At the original trial, petitioner was represented by court-

appointed counsel (Document 20 of unprinted record; see note 3

infra), who filed and argued a motion for new trial but did not

file a notice of appeal or take any steps toward perfecting an

appeal (R. 3, 11). In his 1955 motion for leave to file a petition

for habeas corpus in this Court, Hill v. United States, No. 373 Misce.,

October Term 1955, denied, 350 U.S. 946 €1956), petitioner alleged

that his trial attorneys refused to appeal because they said they

were court-appointed counsel and could not give free time to peti-

tioner’s case.

sentencing court, the Eastern District of Tennessee* (R.

26-33). This motion, filed by the petitioner pro se, alleged

several grounds for relief, but in view of this Court’s lim- |

ited grant of certiorari the one now important was the

contention

“ ... that he was denied the right under Rule 32(a)

of the Federal Rules of Criminal Procedure, Title 18

US.C. to have the Gpportunity to make a statement in

his own behalf and to present any information in miti-

gation of punishment. ... The Transcript page 8 shows

that Judge Darr did not comply with the mandatory

provision of Rule 32(a) on June 4, 1954 and that fur-

ther Judge Darr in prejudicial misconduct signed the

Judgment and Commitment papers as complying with

Rule 32(a) when in fact he did not do so” (R. 27).

2 This was the fourth such motion filed by petitioner. His first

motion, filed October 18, 1954 (R. 3, 11), a few months after his

trial, was denied nine days later (R. 3). The Court of Appeals

affirmed. Hill v. United States, 223 F.2d 699 (6th Cir. 1955) (R. 4,

12), cert. denied, 350 U.S. 867 (1955). Petitioner next filed a

motion for leave to file a petition for writ of habeas corpus in this

Court on November 17, 1955. No. 373 Mise., October Term 1955.

This motion was denied. Hill v. Unitéd States, 350 U.S. 946 (1956).

On March 15, 1956, petitioner filed his second motion under §2255

in the trial court (R. 4, 12). This was denied six days later (R. 4,

12), and the Court of Appeals affirmed. Hil v. United States, 238

F.2d 84 (6th Cir. 1956) (R. 4, 12), cert. denied, 352 U.S. 1007

(1957). Petitioner’s third motion to vacate sentence was filed on

December 19, 1957 (R. 5, 12). The District Court denied the motion

on January 10, 1958 (R. 5, 12). On appeal, the Court of Appeals

remanded for a hearing. Hill v. United States, 256 F.2d 957 (6th

Cir\.1958) (R. 5, 13). Thereupon, petitioner filed an affidavit of

prejudice on July 21, 1958 (Document 38 of the unprinted record ;

see note 3, infra), and Judge Leslie R. Darr, who had presided at

the trial and all prior proceedings in the District Court, recused

himself. After the United States had filed a Response (R. 5, 13),

a hearing was held before Judge Robert Taylor on September 10

and 11, 1958 (R. 6, 13-14). From Judge Taylor's denial of his

motion, petitioner appealed; the Court of Appeals affirmed. Hill

v. United. States; 268 F.2d 203 (6th Cir. 1959) (R. 7, 15), cert.

denied, 361 U.S. 854 (1959).

6

The United States filed a Response to this motion on

January 7, 1960 (R. 34-40). Nothing in the response was

addressed specifically to petitioner’s contention of a viola-

tion of Rule 32(a). The only portion conceivably relevant

was this general assertion:

“It would appear that all of the questions which

petitioner could raise in a proceeding under Section

2255, Title 28 U.S.C., have been previously determined,

and it being well settled that such a proceeding ¢annot

be used as a substitute for an appeal” (R. 35).

One week later, without having held a hearing, the Dis-

trict Court denied the motion (R. 44). In a Memorandum

accompanying the Order (R. 41-43), the District Court

did not deal with the contention of a violation of Rule

32(a) directly. This issue was disposed of as follows:

“The other questions made by petitioner in the pres-

ent petition were made in the petitien upon which the

Court passed in the September 1958 hearing and found

to be lacking in merit” (R. 42-43).

The September 1958 proceeding referred to an earlier

motion by this petitioner for relief under $2255. Instituted

on December 19, 1957 (R. 5), this motion had alleged the

violation of Rule 32(a) among other errors. (Document

No. 32 in unprinted record.)* In that proceeding, the

United States filed a response on August 27, 1958, in part

as follows:

“Respondent denies the truth of petitioner’s allega-

tion No. 2, and contrary to the allegation respondent

avers that at the time of the imposition of the sen-

’ By a stipulation of counsel, dated May 9, 1961, now in the files

of this case, it was agreed that the parties may refer to the full

record on file in this Court, including any part thereof which has

not been printed.

os.

tences the District Judge specifically inquired of the

petitioner whether or not he had anything to say before

sentence was imposed and that the petitioner replied

that he had nothing to say.” (Document No. 40 in

unprinted record.)*

This direct clash of factual assertions was never resolved.

While a hearing was held, it was limited to petitioner’s

contention that he had_been denied the right to give notice

of an appeal from his 1954 conviction. The District Court

disposed of the Rule 32(a) contention, along with other

claims, on the ground that “such alleged errors cannot be

corrected in a proceeding under Title 28, U.S.C. 2259”

(R. 23, 43).

Thus, when the District Court, in the present proceeding,

denied the motion upon the ground that the contention

under Rule 32(a) had been found to be “lacking in merit”

earlier, the Court was simply reaffirming its 1958 decision

that the claim could not be advanced in a {2255 proceeding.

The Court of Appeals for the Sixth Circuit, in a brief

per curiam order, affirmed on the opinion of the District

Judge (R. 45).

Despite the unqualified assertion of the United States in

its response to the 1958 motion, it is clear beyond any

question that petitioner was sentenced in violation of Rule

32(a). The transcript of Charles M. Fain, the Official Court

Reporter, shows that, when the case was called for judg-

ment on June 4, 1954, there was no interchange whatsoever

between the Court and the defendant, or his counsel.* The

following is the complete record of what transpired:

* See preceding page for footnote 3.

* To eliminate any possible confusion, it must be noted that the

Solicitor General's Memorandum, in response to the petition for

certiorari in the present proceeding, asserted that there is no tran-

script of the imposition of sente!« in this case. U.S. Memorandum,

oe

8

“The Court: Does the Government care to say any-

thing? -

“Gen'l Davis: The Government does not care to

make any statement, your Honor. I think it has been

developed in the proof, the character of this defendant

and the other crimes which he has committed.

“The Court: I believe the other co-defendant, the

adult got seventeen vears?

“Gen’l Davis: He received fifteen years on the kid-

napping and two years on the Dyer Act. The minor

boy received five years in the kidnapping charge and

one year and one day on the Dyer Act charge.

“The Court: That is the way I remembered it” (R.

18).

The Court then proceeded ‘to announce his reasons for

sentence and the sentence itself. At no point did he ask

the defendant whether he wanted to make a statement in

his own behalf. At-no point did he ask the defendant if

he wished to present any information in mitigation of

punishment. Nor did he make any such inquiries of counsel

for the defendant. Thus, on the face of the record, there

is a manifest violation of Rule 32(a).’

p. 3. It was noted that, in March 1958, the District Court had

refused petitioner's request for a transeript noting that there was

none in existence and that none could be prepared because of the

death of the court reporter. The Government was apparently un-

aware of the fact that, in accordance with 28 U.S.C. §753 which

requires without exception that court reporters “shall . . . tran-

scribe and certify all pleas and all proceedings in connection with

the imposition of sentence in criminal cases,” there was a full

transcript of the imposition of sentence in the records of this case

then in the possession of the Clerk of the Court of Appeals for the

Sixth Circuit. The petitioner himself had referred to this transcript

in his motion, supra, correctly citing page 8 us the beginning of the

sentencing proceedings.

‘It is relevant, perhaps, to note that the present petition is not

the first to rely upon the violation of Rule 32(a). The record shows

this issue was also raised in the 1957 motion to vacate sentence. In

ARGUMENT

I

The District Court Clearly Violated the Mandatory Re-

quirements of Rule 32(a) of the Federal Rules of Criminal

Procedure by Failing to Provide Petitioner With an Op-

portunity to Make a Statement in His Own Behalf and

to Present Any Information in Mitigation of Punishment.

Rule 32(a) of the Federal Rules of Criminal Procedure,

so far as pertinent here, provides:

“Before imposing sentence the court shall afford the

defendant an opportunity to make a statement in his

own behalf and to present any information in mitiga-

tion of punishment.”

It i. ‘lear beyond argument that this Rule was breached

inthe uposition of sentence upon petitioner.

The decision of this Court last Term in Green v. United

States, 365 U.S. 301 (1961), disposes of any doubts as to

the meaning of Rule 32(a). Mr. Justice Frankfurfer, speak-

ing for himself and Mr. Justices Clark, Harlan and Whit-

taker, wrote:

“The design of Rule 32(a) did not begin with its

promulgation; its legal provenance was the common-

his motion for leave to file a petition for writ of habeas corpus, filed

in this Court on November 17, 1955, No. 373 Mise., October Term

1955, petitioner alleged that the trial court did not ask him if he

had anything to say before sentence was imposed. Hill v. United

States, 350 U.S. 946 (1956). The contention also appears in the

affidavit of prejudice filed July 21, 1958 (Document 38 in unprinted

record). With due allowance for the fact that petitioner was

“compelled by the circumstances to draft his own motions and peti-

tions without the assistance of counsel, there is no indication of any

lack of diligence or perseverance in the manner of his pressing his

claim. And see note 1 supra.

10

law right of allocution. As early as 1689, it was ree-

ognized that the court's failure to ask the defendant

if he had anything to say before sentence was imposed

required reyersal. See Anonyinous, 3 Mod. 265, 266,

87 Eng. Rep. 175 (K.B.). Taken in the context of

its history, there can be little doubt that the drafters

of Rule 32(a) intended that the defendant be personally

afforded the opportunity to speak before imposition

of sentence.” Id. at 304.

The Chie? Justice, and Mr. Justices Douglas and Brennan

joined in an opinion by Mr. Justice Black, who said:

“I agree that Federal Criminal Rule 32(a) makes

it mandatory for a federal judge before imposing sen-

tence to afford every convicted defendant an oppor-

tunity to make, in person and not merely through

counsel, a statement in his own behalf presenting

any information he wishes in mitigation of punish-

ment... .” Id. at 307.

Only Mr. Justice Stewart had any reservations that Rule

32(a) clearly required a district judge in every case to

volunteer to the defendant an opportunity p:rsonally to

make a statement, when the defendant has a lawyer at his

side who speaks fully on his behaif. But Mr. Justice Stew-

art agreed that it would be better practice to allow the

defendant to speak for himself, in addition to anything that

his lawyer might say. He would. have announced such a

rule for prospective operation. /¢. at 306.

While the Court was substantially unanimous on the

interpretation of Rule 32(a) in the Green case, it divided

sharply on a factual question, and the judgment of the

Court affirmed denial of relief. Four Justices held, in the

opinion of Mr. Justice Frankfurter, that an ambiguous

APN

“2

~

»

ll |

inquiry from the bench prior to sentence may well have

been addressed to the defendant rather than to his counsel

and, accordingly, the defendant failed to meet his burden of

proof. This view of the tactual question, coupled with Mr.

Justice Stewart's conclusion that legally the rule should

operate prospectively in this situation, resulted ino an

affirmance.

In the present case, however, the violaiion of Rule 32(a)

is clear and unequivocal on the face of the reeord. The

District Court did not ask anyone other than counsel for

the Government to speak prior to imposition of sentence

(R. 18). Counsel for the defendant, while present, was

not invited to speak and did not say a word. The doubt

which troubled Mr. Justice Stewart, concerning the mean-

ing of Rule 32(a) “when the defendant has a lawyer at bis

side who speaks fully on his behalf,” is not raised in this

case. Nor is there any room for factual disagreement in-

the interpretation of the District Court's actions. There

wax no opportunity given to the defendant or to his counsel

to make a statement in behalf of the defendant or to

present information in mitigation of punishment. (7,

Taylor v. United States, 280 | 703 (9th Cir. 1960).

Petitioner Is Entitled to Relief From This Violation of

Rule 38(a) im a Proceeding for Correction of Sentence

Under Rule 35 of the Federal Rules of Criminal Procedure.

The conclusion that there has been an indubitable viola-

tion of Rule 32(a) brings us to the question which was

expressly left open in the opinion of Mr. Justice Frank-

furter in Green v. United States, supra. That is, accepting

the fact of a violation of the Criminal Rules, what, if any,

relief is available to redress the wrong which has oecurred!

12

Petitioner submits, first, that he is entitled to relief from

the illegal sentence under Rule 35 of the Federal Rules

of Criminal Procedure.

Preliminarily, it may be noted that the order of this

Court granting the petition for certiorari expressly limited

the cause to “the question of whether petitioner may raise

his claim under Federal Criminal Rule 32(a) in the pro-

ceeding which he has now brought” (R. 46). As has been

set out, petitioner instituted the present proceeding by a

motion to vacate xentences, clearly labelled as based upon

| 28 U.8.C. $2255 (RB. 26). However, there is substantial

. authority permitting cases originally instituted under

ip to be treated as arising under Rule 35 where it is

or ma advantageous to the prisoner to do so. Heflin v.

United States, 358 U.S. 415 (1959); Bayless v. United

States, 288 F.2d 794 (9th Cir. 1961) ; Baker v. United States,

271 F.2d 190 (8th Cir. 1959): May v. United States, 261

F.2d 629 (9th Cir. 1958), cert. denied, 359 U.S. 994 (1959) ;

Duggins v. United States, 240 F.2d 479 (6th Cir. 1957);

United States v. Bradford, 194 F.2d 197 (2d Cir. 1952), cert.

denied, 343 U.S. 979 (1952); United States v. Hough, 157

F. Supp. 771 (8.D. Cal. 1957). It seems appropriate to

treat this Court's phrase. “the proceeding which he has

now brought,” to mean a proceeding seeking post-sentence

relief either under }2255 or Rule 35.

The four Justiees who joined the opinion of Mr. Justice

Black in the Green case stated no reservations as to the

availability of relief under Rule 35 of the Rules of Criminal

Procedure. The only pertinent part of that rule is the

first sentence: “The court may correct an illegal sentence

at any time.” These four Justices concluded that a sen-

tence imposed in violation of Rule 32(a) is an illegal sen-

tence. Mr. Justice Frankfurter’s opinion, finding no viola-

tion of Bule 32(a), conclud:d: “we therefore find that his

™

13

sentence was not illegal.” 365 U.S. at 305. This opinion,

however, rested on the asstmmption, stated at the out-

set, “that this inadequacy in the circumstances now before

us yould constitute an error por se rendering the sentence

illegal.” Jd. at 303.

A. Reve 35 Proviwes a Remepy ror Ittecauity, Not Onxriy

IN THE CONTENT OF THE SENTENCE, But ALSO IN THE

Proceptre WuHeresy Sentence Is IMposep.

The question thus presented is the scope of Rule 35, i-e..

the meaning of “illegal sentence.” Not surprisingly, most

of the cases have dealt with the length of the sentence

imposed. E.g., Callanan y. United States, 364 U.S. 587

(1961); Heflin v. United States, 358 U.S. 415 (1959) ; Prince

v. United States, 352 US. 322 (1957): Smith v. United

States, 287 F.2d 270 (9th Cir. 1961); United States v. Drake,

250 F.2d 216 (7th Cir. 1957); Duggins v. United States,

240 F.2d 479 (6th Cir. 1957); Ekberg v. United States, 167

F.2d 380 (1st Cir. 1948). In most of these cases, the ille-

gality was a sentence which exceeded the authorized stat-

utory maximum because consecutive sentences had been

imposed on multiple counts whereas only one offense had

been committed.

——

By no means can ae said, however, that a sentence is

illegal only if it exceeds in content the statutory maximum

set down by Congress. In one of the first cases decided

under Rule 35, Simunov v. United States, 162 F.2d 314

(6th Cir. 1947) the Court of Appeals for the Sixth Circuit

granted relief to a prisoner, whose sentence was clearly

within the limits set by the legislature, beGause the District

Court had been ambiguous in stating the sentences on

several counts. One of the charges, kidnapping connected

with the perpetration of a bank robbery, would have sup-

ported the total sentence. The Sixth Circuit reduced the

‘es

sentence from sixty-five to twenty-five years because the

sentencing judge had left it unclear whether he intended

to impose more than twenty-five years for the kidnapping

charge. The source of the illegality was the ambiguous

manner in which the sentence had been announced.

There have been other instances in which a sentence has

been held illegal, or a charge of illegality entertained under

Rule 35, where the defect has come in the procedure at the

sentencing proceeding. In one of the most authoritative

court of appeals opinions on Rule 35, Cook v. United

States, 171 F.2d 567 (1st Cir. 1948), cert. denied, 336 U.S.

926 (1949), a sentence was imposed in the absence of the

defendant. This, of course, violated Rule 43 of the Rules

of Criminal Procedure, which provides that “the defendant

shall be present at the arraignment, at every stage of the

trial including the impaneling of the jury and the return

of the verdict, and at the imposition of sentence, except

as otherwise provided by these rules.” This error occurred

when the district court discovered that, in originally im-

posing sentence, it had failed to impose a mandatory fine

as well as imprisonment. Belated efforts to correct that

error led to a sentence in the absence of the defendant.

It was agreed on all sides that such a sentence was illegal

and could be corrected. See also Gilliam v. United States,

269 + (D.C{Cir. 1959). -

The Seventh Circuit recently entertained a Rule 35 mo-

‘tion whet the illegality in the sentence was said to arise

from failure of the district court to comply with Rule 32(c),

which requifes a presentence report before the imposition

of sentence. Garfinkel v. United States, 285 F.2d 548 (7th

Cir. 1960), cert. denied, 365 U.S. 879 (1961).

In 1947, the Eighth Circuit had before it a contention

that a judgment and sentence were invalid because the de-

fendant had been insane at the time of trial and sentencing.

15

Byrd v. Pescor, 163 F.2d 775 (Sth Cir. 1947), cert. denied,

333 U.S. 846 (1948). The prisoner sought relief by writ

of habeas corpus. The Court of Appeals held that habeas

corpus Was an inappropriate remedy unless and until relief

was sought under Rule 35, which was available to vacate

or correct a sentence because of such illegality. See also

D'Ostroph v. Pescor, 7 F.R.D. 569 (W.D. Mo. 1947), appeal

dismissed, 173 F.2d 897 (Sth Cir. 1949), cert. denied, 337

U.S. 926 (1949); Brown v. Pescor, 74 F. Supp. 549 (W.D.

Mo. 1947). While the irregularity in these cases is not

governed by a specific rule in the Rules of Criminal Pro-

cedure, they are instanees of the application of Rule 35 to

a defect in the manner of imposition of sentence rather

than in the sentence per se.® |

* Indeed there have been some courts which have employed Rule

35 in cases which challenged proceedings going to the propriety of

the convictions rather than merely the sentences. The Byrd case,

supra, in part raises the matter of insanity at the trial as well as

sentencing. In Griffin v. United States, 173 F.2d 909 (6th Cir.

1949), the Sixth Circuit granted relief under Rule 35 to a prisoner

whose primary contention was that his indictment was insufficient

for failing to allege that his violation had been “knowingly” com-

mitted. While the Court of Appeals on rehearing seemed to merge

and confuse the remedies under §2255 and Rule 35, 175 F.2d 192

(6th Cir. 1949). several vears later the same court declared that

its decision in Grijfiin had rested solely on Rule 35. Duggins v.

United States, 240 F.2d 479, 483 (6th Cir. 1957). See also United

States v. Thompson, 261 F.2d 809 (2d Cir. 1958), cert. denied, 359

U.S. 967 (1959), where the Second Circuit reviewed the sufficiency

of the evidence to support a conviction in light of a recent decision

by this Court which sharpened an(l refined the definition of sum-

mary contempt. The court said that “.. . it seems clear that the

motion is broadly available to correct an injustice in a conviction

or sentenee.” Jd. at 810. But the more orthodox view is that of

Judge Calvert Magruder, who said that a Rule 35 motion presup-

poses a valid conviction. Cook v. United States, 171 F.2d 567, 570

(Ist Cir. 1948), cert. denied, 336 U.S. 926 (1949), See also United

States v. Morgan, 346 U.S. 502, 506 (1954); Duggins v. United

States, 240 F.2d 479, 483 (6th Cir. 1957) ; Fooshee v. United States,

203 F.2d 247, 248 (Sth Cir. 1953) ; Jn re Shepherd, 195 F.2d 157,

158 (Ist Cir. 1952). Cf. Baker v. United States, 271 F.2d 190, 192

(8th Cir. 1959); compare Montos v. United States, 261 F.2d 39

(7th Cir. 1958) ; Corcoran v. Cueted States, 231 F.2d 449, 451 (7th

Cir. 1957).

16

B. Tue History or Rvuie 35 or tHe Reves or CrimMinaL

Procepure Is Consistext Wit Its Use to Correct

Sentences Wuicu Are ILLEGAL Becavse oF THE MANNER

mm Wuaicn Tuey Are Imposep.

Rule 35 was among the group of Rules, Nos. 32 through

39, which were promulgated by this Court on February 8,

1946, their effective date to coincide with the effective date

of the remainder of the Rules of Criminal Procedure. These

eight rules rested upon an earlier authorization of rule-

making power from Congress, 47 Stat. 904 (1933), as

amended by 48 Stat. 399 (1934), and superseded the Crim-

inal Appeals Rules first issued by this Court on May 7,

1934. See 292 U.S. 661. There was, however, no express

provision in the Criminal Appeals Rules of 1934 comparable

to the first sentence of Rule 35. The text of the rule, as

such, dates only from 1946.

Professor George H. Dession, a member of this Court’s

Advisory Committee on Criminal Rules, described the

background of the rule in 1946 in these terms:

“Rule 35 is new so far as an express rule goes. It

deals with correction of error and reduction of sen-

tence. Now of course a cour: had the power before

to correct an illegai sentence at any time, and sentence

could pretty clearly be reduced during the term, but

this rule expressly states that an illegal sentence may

be corrected at any time... .” Proceedings of the

New York University School of Law Institute on the

Federal Rules of Criminal Procedure, February 15 and

“#16, 1946, at 207.

The Note of the Advisory Committee, published with the

Rules, declares that: “The first sentence of the rule con

tinues existing law.”

-

17 °

Nowhere does there appear an official statement by the

Advisory Committee as to what elements of existing law

were continued. As the distinguished Chairman of the

Advisory Committee, Arthur T. Vanderbilt, noted, speak-

ing of the period prior to 1946, “our Fedefal criminal pro-

cedure has been chaotic,” but he said that the new Criminal

Rules “reduce to a workable compass what was a per-

fect wilderness of precedent before the Rules were drafted.”

Proceedings of the Catholic Universit¢ of America School

of Law Institute on the Federal Rules of Criminal Proce-

dure, Washington, D. C.p@ct. 16, 1945, 5 F.R.D. 88, 94.

There was considerable confusion in the lower federal

courts on the scope of their powér to Yeal with sentences

after the conclusion of the term of court at which sentences

were imposed. Under the influence of United States v.

Mayer, 235 U.S. 55 (1914); Phillips v. Negley, N17 U.S. 665

(1886); Bronson v. Schulten, 14 Otto 410, 104 U.S. 410

(1882) ; and Pickett’s Heirs v. Leqgerwood,7 Pet. 147 (1833), _

it was widely believed that the only relief available after

the term had ended was through habeas corpus, and that

writ did not lie in the court imposing sentence. The term

principle was strongly reinforced, with regard to the power

_ of the trial court to grant a motion for new trial, in United

States v. Smith, 331 U.S. 469 (1947). Eventually, in 1954,

this Court held squarely for the first time that relief in the

nature of the common-law writ of error_coram nobis, a

remedy in‘the sentencing court, was available in a criminal

ease in the federal courts. United States v. Morgan, 346

US. 502 (1954). 7

The principal case widening the power of the senteneing

court to correct errors after the term had passed was [Holi-

day v. Johnston, 313 U.S. 342 (1941). The case had been

instituted by a prisoner seeking habeas corpus in the dis-

trict court in the district where he was confined. One of his

4 18

contentions challenged the validity of a consecutive sentence

which he had not yet begun to serve. On familiar principles

of habeas corpus, he was not entitled to seek relief under

the Great Writ. McNally v. Hill, 293 U.S. 131 (1934). Deny-

ing a remedy, this Court stated that the prisoner’s proper

remedy was an application to the sentencing court for vaca-

tion of the sentence and a resentence in conformity with

the.statute. 313 U.S. at 349. In due course, such 2 motion

was granted. Holiday v. United States, 130 F.2d 988 (8th

Cir. 1942).

An additional influential case in the advent of a motion-

type remedy in the same period was this Court’s decision in

Steffler v. United States, 319 U.S. 38 (1943). Steffler con-

tended that the indictment did not state an offense against

the United States and that he had been denied assistance

of counsel at the trial. Holding that an im forma pauperis

appeal was proper from denial of a motion to set aside

judgment of conviction, the Court implied that this type

of remedy would lie for such errors at the original trial.

In the lower courts, Most of the developments of a motion-

type reme(ly in the sentencing court took place in the early

1940’s as a result of the Holiday and Steffler cases. This

trend was given further impetus by the publication of two

preliminary drafts of the Advisory Committee on the Crim-

inal Rules. The first of these, in 1943, had the predecessor

of Rule 35 as Rule 31(b), which provided that “the court

may correct an illegal sentence at any time.” The Commit-

tee’s Note declared that this sentence “states the present

law,” citing 5 Longsdorf, Cyclopedia of Federal Procedure

(1929) §2468. In the Second Preliminary Draft, published

in 1944, the same provision was placed in Rule 37, with an

’ identical Committee Note of explanation. Lower courts

were thus advised, on persuasive authority, that they pos-

sessed the power to correct errors in sentence at any time.

—_—s

39

In the brief span of years prior to the effective date of the

Criminal Rules, there was a spate of litigation in something

like this form of procedure. Of course, relief was made

available when a sentence, through consecutive terms on

multiple counts for essentially one offense, resulted in an

aggregate prison sentence which exceeded the statutory

maximum for the single offense. See, e.g., Coy v. United

States, 156 F.2d 293 (6th Cir. 1946), cert. denied, 328 U.S.

841 (1946) (motion to set aside judgment); Rutkowski v.

United States, 149 F.2d 481 (6th Cir. 1945) (motion to

vacate sentence) ; Miller v. United States, 147 F.2d 372 (2d

Cir. 1945) (motion to correct sentence); Wilson v. United

States, 145 F.2d 734 (9th Cir. 1944) (motion to vacate judg-

ment); Robinson vy. United States, 143 F.2d 276 (10th Cir.

1944) (motion to vacate judgment); Meyers v. United

States, 116 F.2d 601 (Sth Cir. 1940) (motion for resentence).

At the same time, there was a clear trend toward pro-

viding a remedy in the trial cour’ for errors in the sentenc-

ing procedure.

In Peterson vy. United States, 39 F.2d 336 (8th Cir. 1930),

a prisoner sought relief by writ or error coram nobis on

the ground, inter alia, that he had been intoxicated at the

time of imposition of sentence. The trial court found

against the prisoner on the facts and the Court of Appeals

affirmed. In Batson v. United States, 137 F.2d 288 (10th Cir.

1943), a prisoner filed a motion to correct sentence because

his counsel had not been present at the time of sentencing.

The Tenth Circuit held that the defendant had waived any

right he may have had to have counsel present through his

failure to protest the absence when asked if he had anything

to say.

In Nivens v. United States, 139 F.2d 226 (5th Cir. 1943),

cert. denied, 321 U.S. 787 (1944), rehearing denied, 321 U.S.

20

804 (1944), the court entertained a motion to correct sen-

tence which asserted that the prisoner had been sentenced

on several counts, which had not expressly been announced

as consecutive. The prisoner sought to have the sentences

treated as concurrent. The contention was denied on the

merits, the court holding that the expiration of the term of

court at which sentence was imposed does not deprive the

court of the power to correct the record to conform to the

truth. See also Buie v. United States, 127 F.2d 367 (5th Cir.

1942), cert. denied, 317 U.S. 689 (1942), rehearing granted,

317 U.S. 703 (1943), cert. denied, 318 U.S. 766 (1943). Com-

pare Downey v. United States, 91 F.2d 223 (D.C. Cir. 1937).

In Carrollo v. United States, 141 F.2d 997 (8th Cir. 1944),

-~a motion to vacate sentence challenged Yhe legality of a

sentence for income tax evasion which imposed a prison

term of three vears with a proviso that, if the defendant

paid taxes owed before the end of the court’s term, the

sentence would be modified to one vear in prison. The

motion asserted that this was a void contingency, but the

contention was denied on the merits.

A trend was clearly discernible toward the fashioning of

a remedy in the sentencing court for errors not only in the

substance of the sentence but also in the procedure of the

sentencing as well.

;

C. Sounp Po.uicy IN THE ADMINISTRATION OF CRIMINAL Law

Supports Provipinc Reiger WHERE a SENTENCE Has

Been IMPosED IN VIOLATION OF RULE 32(a).

Compared with the procedural safeguards provided to a

criminal defendant prior to his trial and conviction, there

are relatively few requirements with respect to the proper

manner for imposing sentence. Yet for a great many defen-

dants, the only important facet of their prosecution is the

nature and extent of the sentence they will reéeive. The

421

right of allocution was a fundamental right at common law.

As this Court agreed unanimously in tie Green case last

Term, it is a basie right today. Mr. Justice Frankfurter

noted that “the most persuasive counsel may not be able to

speak for a defendant as the defendant might, with halting

eloquence, speak for himself.” 365 U.S. at 304.

The importance of the right of allocution is underscored

in a case like the present one, where the defendant had sev-

eral previous convictions which were presumably known to

the court. This prior record, for the most part compiled in

the state courts of Florida, could be explained and miti-

gated. Petitioner has been and is presently seeking col-

lateral relief from those judgments and, indeed, has already

had one set aside. This mitigating evidence, if known to

the sentencing court, might have a profound impact upon

the sentence imposed.

At the same time, the correction of sentencing errors does

not interfere with the primary societal interest in the ad-

ministration of its criminal laws. The relief asked does not

invalidate the underlying conviction. It would never be

necessary for the United States to mount a new prosecution,

_with all the incunbent difficulties of marshalling evidence

some time after the event. The sgle cost involved is the time

of the court in reconsidering sentence and imposing a legal

sentence, together with the custodial inconvenience involved

in returning a prisoner to the court for resentence. Such

matters are trivial in comparison with the basic rights

sought to be vindicated on behalf of the prisoner serving an

illegal sentence.

22

Petitioner Is, in Any Event, Entitled to Relief From

the legal Sentence Under 28 U.S.C. §2255.

If this Court should conclude that Rule 35 is not the

appropriate remedy for a violation of Rule 32(a), peti-

tioner is nevertheless entitled to relief under 28 U.S.C.

§2255. For this argument, petitioner incorporates by refer-

ence the argument of the Brief for Petitioner in Machibroda

v. United States, No. 69, October Term 1961.

Conclusion

For the foregoing reasons it is respectfully submitted that

the judgment of the court below should be reversed.

- Respectfully submitted,

Curtis R. Reitz

Counsel for Petitioner

August 24, 1961

v

23

Certificate of Service

I certify that I] have served a copy of this Brief for Peti-

tioner upon the Solicitor General of the United States by

depositing the same in a United States post office, with first

class postage prepaid, addressed to the Solicitor General,

Department of Justice, Washington, D. C.

Curtis R. Reitz

Counsel for Petitioner

August 24, 1961