# Brief for the United States — Benton v. Maryland

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Brief for the United States
- **Published:** January 1, 1969
- **Citation:** 395 U.S. 784

## Text

.

INDEX, ,
A. The history and present application of-the concurrent ©
sentence doctrine reveal it as a principle of judicial .
— which permits judges to avoid decision of
-issues which have no impact on the rights of any

' Sealy? 6028 e2eGee cowecegsaace dngdisasvsabdbVuonmowed , aes

B. Since failure’to review all of several concurrent sentences ;
only rarely would condone collateral legal conse- .
quences, the: burden may fairly be placed on an
appellant to show that the concurrent sentence doc-
trine should not be applied to his appeal_.. -_--- -_-

1. In the ordinary case, individual cofmts on which
concurrent sentences are imposed carry no in- -

. dividual consequences which might require the
validity of conviction on each count to be ©

2. Appellants should bear the burden of doolen the
circumstances, if any, which bar application of
the concurrent sentence doctrine to their appeals.

C.'An abandonment of the concurrent: sentence doctrine
' would unnecessarily burden the administration - of

_ CITATIONS

Cases: ;
Abrams v. United States, Be UE CU ciscencewcdsns
Aron v. United States, 382 F. 2d 965. ----.----------
Ashwander v. Tennessee Valley Authority, 297 U. S, 288 -
Baker v. United States, 401 F. 2d 958-____-- ter) re
Ballew v. United States, 160 U.S. 187_--------------
Banzer v. United States, 367 F . 2d 865, certiorari denied,
385 U. a a a ee inale
Barenblatt v. United States, 360 U.S. 109..--.-------
Braden v. United States, 365 U.S. Se eae
Brooks v. United States, 267 U.S. 432___.---_-____--
.* Brown v. United States, 256 F. 2d 151_------- has
- Carafas v. LaVallee, 391 U.S. 234. -----------------
. Chavez v. United States, 387. F. 2d 937_--.--+--.----
‘Claassen vy. United States, 142 U.S. 140_-_------.---
Clark v. United States, 267 F. 2d 99__-.-.-------- ee
Clifton v. United States; 4 How. 242------.------ nile

385-181—69——1 ‘I)

’ s I

Cases—Continued . ;
Davis v: United States, 385 F. 2d ee vcs thos ;
Debs v. United States, 249 U.S. 211__2----- sree

__, Edwards v. United States, 312 U.S. 473--~-.---------
Emspak v. United States, 349 U.S. 190_--..---------

"Evans v. United States,.153 U.S. 608_-.2.----:-----:
- Evans v. United States, 153.U.S: 584:__..----- as

“. Fabianich v. United States, 302 F. 2d 904, certiorari

re denied, 371° US. Ss Se ome Og

| Ferrari. United States, 169 F. RR eS

Flast v. Cohen, 9g anes a ae ee

. Galbraith v.“United States, 387 F.2d 617_-----------
Garcia v. United States, 373 F.:2d 806. . .--2----s--
Ginsberg v. New’ York, 390 U.S. 629. -:--.1-------%

* Gonzalez y. United States} 224 F. 2d 431, certiorari
denied, 366 U.S: 919.2. ....2....-....-.-..-----
Goode v. United States, 159 U.S, 663.......---2-- wa

Gorin v. United States, 312 US. 19. .... Bose Di cate Lt /

. Greene v. Uni d States, 358 US. ee cee eo

‘ Hirabayashi v.
Jacobs v. Unite
Jacobs v. Uni

Lanza v. New York, 370 US. 139 ee so ji. NERS

Lawn v. United States, 355,U.S. 339__--------- 27>,

= Locke v. United States, 7 Cranch. 339_-:...--------- *.

Morgan v.;United States, 98 F. 2d 473, certiorari denied,

Md

wnanaet

-
— a
cCOAOnoon oe

_—

a
n>
Noo oS te

+

WIS Zoocranas

Se eat pe seo
Nilva'v. United States, 352 US. 385... Laalewicad 2am
_ Palmer v. Hoffinann, ge Se eee 20
‘: Pasterchik v. United States, 400 Pe Ges. wcnocnws 6
Peyton v. Rows, 201 Us. .........-.. eat oe. YB
_ Pierce v. United States, 252 U.S. 239--------- ee ae ' §, 18
Pinkerton v..United States, 328 U.S. 640-__--------- 4,5
Putnam v. United States, 162 U.S. 687. ------ a aaa 8
~ Robinson v. United States, 30 F. 2d 25-.-2.--------- . 7
Roviaro v. United States, 353'U.S. 538_..----.------- 5, 6
‘ Sacher v, United States, “356 U.S;.576_--------- hace 4
Saville v. United States, 400 F, 2d 397, certiorari pend- +
_ing,-No. 1045 Misc., this Term. -._.--:---------- 6,7
6

Sciberras v. United ‘States, se es ere :

® a

Se

United States v. Cottage, 354 F. 2d 975, certiorari

United States v. Goldberg, 401 F. 2d 644, certiorari
denied, taxeaec 24, 1969, No. 1027 Mise., this
Roney es oe Sees eam eae a aia ie alg aE ee ARN

' United States v v. Slins, 256 F. EE oe ae

United States v. Izzi, 385 F.2d 412______- eee TT

. United States v. Johnson, 319-U.S. 503... __- eee

United States v. Lothridge, 402.F. 2d 454, certiorari

ee et eo noe ccedcns -.. 6,21

United States v. Mont; 306-F. 2d 412, certiorari
EE SS iota wanes ce cncdestunyeucse 7.
United States v. Morgan, 9 lk En eee ee 9g
United States v. National Plastikwear Fashions, Ine. i
368 F.2d 845, certiorari dénied sb nom. Greene

United States, 386 U.S. 976___....--_.----.------- 18
I /nited States v. Romano, 382 U.S. 136___...._------- ° §
United States v. Sheridan, 329 ®W'S. 379... ee 5

Il a ae
Cases—Continued e , 23 ne

Sibron v. New York, 392 U.S. 40__..-_--- 3, 8, 9, 10, 11, 18
Sinclair v..United States, 279 U.S. 263_-.----------- <4
Smith v. United States, 335 F. 2d 270__~_-____- Pee a % |
Smith v. United States, 403 F.2d 689_____---_----_- 6
Snyder v. United States, 112 U.S. 216__-_____-------- 3
Spencer v. United States, 355 F. 2d 921__________- a
State v. Kaufman, 18 N.J. 75, 112 A> 2d-721___2____- 5.
‘Stearns Co. v. United States, 291 U.S. 54._..-------- 17
St. Pierre v. United States, 319 U.S. 41____--------- 9,18
Turberville v. United States, 303 F. 2d 411, certiorari

‘denied, ee a sha eaea con cad anke eee 17
United States v. Barash, 365 F. 2d 395. BaD ee es eee
United States v. Berger, 338 F. 2d 485, certiorari denied,

2 Se eer merene Re es 20, 21
Unitee States v. Bottone, 365 F. 2d 369, certiorari de :

SOE Te Se OPER cis cone ssuetiunpuckaceeian i
United States v. Butenko, .384 F. od 554, certioraii oo

SPUN, BER. UD. GRR... 3 asc ee ccncnantncscones a
United States v. Chow, 398 I’. 2d 596_.-.-..-------- 20

‘denied, 383 U.S. 969-..----- ee a Se rs aie ae : a
' United States v. Gainey, 380-U.S.63_.....--.--- eee
United States v. Galante, 298 F.2d 72_-_______-.___.-- « ae

IV

ae inued :
f, United States V

“ "United States v . Trenton Potteries, '

United States v.. Weehsler, 392 ¥.

. Thomas, 30: 31. 2d 561-

ow eae aaa a
27% US. 392... 5,7.
2d 344, certiorari

denied, 392 US. 932... -:..-. <2. GT ee ee
Vela v. United States, “292 I’. 2d 266_- Spi sear nee a
White v. United States, 330 CK. 2d StL, certiorari |
denied, 879 US.S885 eee alae Sm 6
Whitfield v. Ohia, 297 Us. 45... fee eae : 4
Wilson v. United States, 869 IK Dee 17
Yates v. United States, 355 US .66 ri, SP 8
Yates vil ‘nated States, 356 Us. ye Rea Seen 17
Yellin vt nited et ef ae 5,6
Statutes: wear
” ee ee Ss we 20).
Is U.S.C), 4202- as 3 .
IS US.C.4203. : 13 ;
26 USC, 72387. 1 nA NS GRE Ue De gh aS SPN ea 12
IS USC, 21 | : Pe Lae ee jae
Md. code: Oates
ar ER a SOG SAIN SS MER deena Tae ee” is :
RES Rl Se ie iE ee 13
_ Art. Pm § 127 aah an teat tae erating wrt 2, a 12 .
N.Y. Code ‘Crim. Proe. n Ra eR ome 9
Rules and regulations: ; ‘a
F.R. Crim. Pos. ; +4 ;
NSE EEE AEE ENE ae Gee 15
ee cin cn Puma & tile peels ae as 16
a eins haan mine herent ee 20
- tot 2%.) a er Dien leeks ies eer ee
SC 2.e. $2.-..- eG sree i cas arta cuss s 13°
Se” EERE ENGR EIR Sipe fet RSet eee 13, 14
as vic ain dew nina 14°
- Miscellaneous: : -
Administrative Office of the U.S. Courts; the Presen-
tence Investigation Report (1965) Py oP a re 14-
Advisory ¢ ‘ouncil on Parole of the National C ouncil on, «+
“Crime and Delinquency, Guides for Parole Selection, .
Chap. HI (1085). . rae anaes cael Oe 13, }4
1958 Annual Report of the Dice tor of the Administrative
-— of Gaited Slates Gourts..--..--.-------- wen «. ae

bee ena a es se

Y

- Note, 103 Uniy. of Pac. Rev. 772 (1955)

Cet O ny FRO Aa ete re See aw halndad a ao oe poate. oo ed Hb lee

Miscellaneous—Continued

1968 Annual Report of the Director of the Administrative
Office of the United States Courts__.:----.-. 2+
Yarrington, Crowded Dockets and the Courts * Appeals:
The Threat to the Function of Review and the Na-
tional Law, 82 Harv. L. Rev. 542 (1 ce Se oe
Chappell, The Lawyer’s Role in the Administration of
Probation. and Parole, 48 A.B.A. Jour. 742 (1962) - E
Comment, 6 Univ. of Fla. L. Rev. 560: (1953)
H. Rep. No. 913, 65th Cong., 3d Sess.____.

Note, Civil Disabilities of Felons, 53 Va. L. Rov. 403.

Note, Court. Treatment of General Reciitnies Statutes,
48 Col. L. Rev. 238 (1948)

Parole Evaluation Summar y> United States Board of
Parole Forin H-1 (196%)_-:-_.-----.---—--------
Richardson, Parole and the bean 2N ealiaiad Probation
and -Parole Asso¢iation Journal 27 (1956)
1949 U.S. Code Cong. Service, pp. 1248, 1272____----
United States Probation Officer’ s*Manual,_§§ 6. 15B,
St 60s Oo
5 Wharton, Criminal Law and Procedure § 2220 (12th

Page

— 22

2 .

&
i
3)
“I

ON OE ERTS LO eet SpA BA At AH LE dn BEE

| Sn the Supreme Gaur of the ite States

Ocrowe Rk TERM, 1968

No. 201

Jon DALMER Benton, PETITIONER “°
~Y,

— Srare oF MaryLanp

ON WRIT OF CERTIORARI TO THE COURT OF SPECIAL —
APPEALS OF THE STATE OF. MARYLAND

a
?

_ MEMORANDUM FOR THE UNITED STATES AS AMICUS CURIAE.-
v a ——<——_- eal
_ . This memorandum is submitted. in response to the ie

Court's s invitation to the Solicitor General to express -
_ the views of the United “States on the’ following »

guestion: ‘

_. Does the “eoneurrent sentence dovivins,” or
enunciated in Hirabayashi v. United States,
_ 320 U.S.’ 81, 105, and subsequent cases, have

- continuing. validity in light of such decisions,

as Ginsberg v. New York, 390 U.S. 629, 633, .
n. 2; Peyton-v. Rowe, 391 U.S. 54; Carafas v.
_EaVallee, 391-U.S. 234, 237-238; and Stbrom

v. New York, 392-U.S. 40, 50-58? ‘

Addressing ourselves” to that assue, we elaborate our
a)

o-

- tirtuing, validity.’ -

. ; ‘ ; a 2
‘” view. that the concurrent senterice dootrine h

_ We show, first,. that the silananiialdl sentence doc-

trinie ‘is firmly. established in. federal courts, including.
this Court, as a ‘principle of judicial efficiency. which
_ permits a. reviewing court. to: avoid ‘decision of: ques-
| ‘tions which can have no: practical effect on the out-
- come of a case before it, and’ that therefore the
doctrine has not been applied ~where coltateral legal

consequences’ dre found, or there is reason to belieye-
Art

the verdict or’ sentence on the good counts m

havé: been affected. We next show that such conse-
quences rarely result from concurrent senterices on
unreviewed counts ; in general, any consequencés
spring from the fact of conviction and not thie num-

—

ae

-ber of counts ‘on which convi¢tion is had. Under the

concurrent, sentence | ‘doctri ine, - unlike the mootness

doctrine generally, review is never denied-to the con- -

viction as a whole, or to arguments that an,error

| reaches all counts. Thus,- Wwe contend that, as in cases
of harmless error generally, the appellant should

bear the burden.of showing how a claimed legal error, .

“infecting less than all counts on which he has been

convicted, will; if uncorrected, add to the legal con-

iy sequences he will suffer from the conviction as a
whole. Finally, we show the importance of the doc-

1In this discussion,\ we make no special reference to the par-
ticular facts or disposition appropriate in this case. However,
it. follows from. our view that the doctrine is only one of judi-
“cial convenience and sound administration that the doctrine is
not a bar to this Court’s consideration of both counts involved
“in this case, should it find reason to reach both.

t

: 3
’ trine, as it’ is ‘now applied, to the efficient operation
of the already overloaded courts of appeal.

- eral consequences are ‘to-be presumed in the absence of

} ‘proof to the contrary—is inappropriate as applied to
«© the concurrent sentence doctrine, and that while courts

of ‘appeals and this Court may consider all claims of —

| ‘erro or in particular cases, they should‘be required. to do
"80 only if‘a. collateral legal consequence is. shown. |

A. THE HISTORY AND PRESENT APPLICATION OF THE CON-
CURRENT’ SENTENCE DOCTRINE REVEAL IT AS 4 PRINCIPLE
OF. JUDICIAL EFFICIENCY WHICH PERMITS. JUDGES TO
~° “AVOID DECISION OF ISSUES WHICH HAVE NO IMPACT ON
| ‘THE RIGHTS OF ANY PARTY »

Accordingly, we conélude that the test announced in —
| Sibvon v. New York, 392 U.S, 40, 57—that collat- °

The challenged: practice of partial ‘review of mul-

tiple. count convictions first appeared i in this ‘Court in
* cases where “the accused was charged on several
7 counts, but. given only a Single, general sentence. Thus,
Chief Justice ‘Marshall wrote for this Court in 1813,.
in. a forfeiture. case charging violation of the customs
- ‘laws, that a finding. that one count is’ ‘good “renders it

States, 4 How. 242, 250; Sender *. United. States, 112
U.S. 216, 217. In. Claassen: v. United States, 142 US:
_140, a criminal case in which a. general sentence had
imposed after the defendant, was convicted, of.

count and continued—
This count and the verdict of guilty returned

unnecessary to decide on the others.” Locke v. United —
States, 7 Cranch 339, 344; see, also, Clifton v. United

~ five counts of embezzlement, the Court, upheld one

%

~ upon it’ being sufficient. to support the aos vai Me

335-181-692

4

_ and sentence; the question of the sufficiency of
- the other counts need not be considered. |
In erimtinal cases, the general rule, as stated
by Lord Mansfield before the Declaration of
Independence, is ‘‘that if there is any one count
to stipport the verdict, it shall stand good, not-
withstanding all the rest are bad.’’ Peake v.
Oldham, Cowper, 275, 276; Rex v. Benfield, 2°
Bur. 980, 985. See also Grant v. Astle, 2 Doug.
722, 730. And it is settled law in this court, and
- in this country generally, that in any criminal
case a general verdict and judgment on an in-
dictment or .information containing several
counts cannot be reversed of error, if any one
_of the counts is good and warrants the judg-
- ment, because, ‘in the absence of anything in the
_ record to show the contrary, the presumption of
‘law‘is that the court awarded sentence on the
good count only. [At 146-147]

' ‘The rule thus recognized has been consistently reaf- .-
firmed by this Court.2 __

_ Where a defendant convicted on several counts has
received separate, concurrent sentences, rather than ‘a
-sirigle, general sentence within the maximum’ impos- —
able for a single count, there is even more reason for
limiting review to one of the counts. With respect tova

' 2United States v. Gainey, 380 U.S. 63, 65 (the “concurrent

- sentences” alluded to were actually a single general sentence,’
see Transcript of Record, pp. 48-50, No. 13, October Term, 1964) 5
Barenblatt v. United States, 360 U.S. 109, 115; Sacher v. United
States, 356 U.S. 576, 579; Emspak v. United States, 349 U.S. 190,

195, n. 9; Pinkerton v. United States, 328 U.S. 640, 641-642, n. 1;

. Whitfield v. Ohio, 297 US. 431, 438; Sinclair v. United States,
279 U.S. 263, 299; Abrams v. United States, 250 U.S. 616, 619;
Goode v. United States, 159 U.S. 663, 669; Evans v. United States,

153 U.S. 608, 609; Evans v. United States, 153 U.S. 584, 595. .

,

a)

' general sentence the rule presumes that the trial court
- would have imposed the same sentence if the good
count had stood alone. Where individual sentences are
imposed ‘to run concurrently for’ each count upon
which a verdict of guilty was returned, there is no
need to rely upon a presumption, for the trial court ©
has indicated the penalty deemed appropriate for each ~

count separately. This difference has led.at least one
state jurisdiction to recognize the possibility of
‘dimited review where concurrent sentences are im-
posed, although it rejects the Claassen presumption
and requires review on all counts underlying a gen-
éral sentence. See State v. Kaufman, 18 N.J. 75; 81,
112 A. 2d 721, 725.:This Court has consistently been
willing to limit its review to a single count sufficient
to support the sentence where separate, concurrent
sentences have heen adjudged. * The doctrine has also

8 United States v. Romana, 382 US. 136, (138; Yellin v.
. Onited States, 374 U.S. 109, 148 (dissenting opinion) ; Lanza v.
' New York, 370 U.S.. 139, 151-152, n. 1 (concurring opinion) ;
Braden v. United States, 365 U.S. 431, 433 n. 2, 450-451 ni. 3
(dissenting opinion) ; Greene v, United States, 358 US. 326; 330;
Lawn v. United States, 355 U.S. 339, 359; Roviaro v. United
States, 353 US. 53, 59 n. 6; United States v. Sheridan, 329 U.S.
379, 381; Pinkerton v. United States, 328 U.S. 640, 642 n. 1;
Hirabayashi v. United States,. 320 U.S. ‘81, 85, 105; United
States v. Johnson, 319 U.S. 503, 518; Edwards v. "United States,
312 U.S. 473, 479, 483; Gorin v. United States, 312 U.S. 19, 32;
United States v. Trenton Potteries, 273 U.S. 392, 402: Brooks v.
United States, 267 U.S. 432, 441; Pierce v. United ‘States, 252
U.S. 239, 252-253; Debs v. United States, 249. U.S. 211, 216.

6
-receiyed’ frequent oe in all eleven federal
circuits’

The doctrine has not usually been jeiiahlleiail: man-
datory, nor has it been applied .in al] cases. Although
federal couits, including this Court, have sometimes
“stated that a conviction “‘must” be affirmed where
there is a valid count carrying a concurrent sentence,’
they have also stated that such convictions “may”
he affirmed, or otherwise iridicated that the doctrine |
is not obligatory. The overwhelming majority 6f the

‘Representative of recent courts of appeals decisions involv-
ing the doctrine are the follawing: Saville y..United States, 400
_F. 2d 397, 399, 400 (C.A. 1), certiorari pending, No: 1045, Mise.
this Term; United States v. Goldberg, 401 F. 2d 644, 647 (C.A.
2), certiorari denied, February 24, 1969, No. 1027. Misc.,\ this
Term: United States v. Butenko, 384 F. ad 554, 565 (C.A. 3), eer:
— granted, 392 U.S. 923, No. 197, this Term; United States

JW "echsler, 392 F. 2d 344, 348 (C.A. 4), certiorari denied, 392
ts , 032; Smith v. U Inited’ States, 403 F. 2d 689, 691, n.°4
(Cc. x 5); United States v. Lothridge, 402 F. 2d'454 (GA: 6),
. certiorari denied, 393 U.S. 843; United States v.-lzzi, 385'F. 2d
. 4, 413 (C.A. 7); Jacobs v. United States, 395 F. 2d 469, 473

(C.AL 8); Pasterchib v. United States, 400 F. 2d 696, 702 (C.A.
9); Galbraith v, United States, 387 F. 2d 617, 619 (CA. 10),
but, see Sciberras v. United States, 404 F; 2d 247 (C.A. 10);
Baker v. United States, 401. F. 2d 958, 986 (C.A. D.C.).

_. *dinited States v. Gainey, 380 U.S.-63, 65; Mellin v. United
State 8,374 U.S. 109, 148 eens opinion) ; Daris vy. United
States, 385 F. od 919, 921 (CA. 5); United States vy. Thomas,
303 F. 2d 461, 562 (C.A, 6); AV hite: v. United States, 330 F. 2d
Sit, 812 (CA. 8), certiorari denied, 379 U.S. 885; Garcia v.
United States, 373 'F. 2d 806, 807 (C.A. 10) ; Fabianich v. United

States, 302. F. 2d 904 (C.A.D.C.), certiorari denied, 371 U.S.
816; see Braden v. United’ — 365 U.S. 431, 450-451 n. 3
(dissenting opinion). —. :

* Roriaro v. United, States, 353 U.S. 53, 59 n. 6; Greene v.
Vivtted States. 358 US . 826, 330; United States y. c ottage. B54
F. 2d 975, 976-977 (C. A..6),' ‘certiorari denied, 383 U.S. 969;
G othe ith v. United States, 387 F. 2d 617, 619 (C.A. 10) ; ‘Aven
v. United States. 382 F. 2d ad ¥y ny 2 (C. A. 8); Smith v.

United States, 335 F.2d 270, 2 2 (C.A.D.C.).

7

"tases simply state, in effect, that it is ‘‘unnecessary”
to reach alleged errors relating to Jess than all counts

carrying concurrent sentences. E.g., Hirabayashi Vv.

‘United. States, 320 U.S. 81, 105. Moreover, the courts
of appeals have indicated that they will review all
counts, and reverse when necessary, where it. appear's

that the alleged error might also have affected the ver-.
dict on the good gounts (United States v., Barash, 365

F. 2d 395, 399, 403 (C.A. 2); Smith y. United States,

335 F.2d 270, 271-272 (C.A.D.C.) ; see Saville v. United.

States, 400 F. 2d 397, 399, 400 (C.A. 1) (majority and
concurring opinions) ; Chavez v:. United States, 387 F.

2d 937; 939 (C.A. 9) ; United States v. Mont, 306 F. 2d

412, 414 (C.A. 2), certiorari denied, 371 U.S. 935;
‘United States v. Guido, 200 F. 2d 105 , 106 (C.A. 2)), or
where the re is reason to doubt that the sentence on
the valid x ounts would otherwise have been the same
(United States %. Hines, 256 F. 2d 561 - (C:A. 2);
Robinson v. United States, 30 F. 2d 25,. 29 (C.A.°6) ;

see Saville v. United States, supra, 400 F.2d at 399;

United States y. Bottone, 365 F. 2d 389, 394 (C.A. 2),
certiorari denied, 385 U.S. 974), or- where collateral
penalties will be occasioned~as. a, result of the con-

* viction on the bad count (see U nited States v. Hines, .
supra; Clark vy. United States, 267 F. 2d 99, 101-102,

(C.A. 4)). Or Y

- This Court has taken a. similar view. Thus in
United States v. Trenton Potteries, 273 U.S. 392, at
402, it was observed that nothing in the record sug-

gested that the verdict on the good count was in-

SF: fluenced by: evidence on the other count; “ijn. these

8

ra civeumstanecs” the judgment’ w was sustained, In a few
ather eases, tItis Court reached: all counts although: .
coneurrent or general sentences were imposed ; it re-
versed on the bad counts, ond remanded the case
for resehteneing where it ippeared appropr late under
the cireumstanees, Mites vo United States, 355 U.S.
66, 7576 (eoncurrent sentenecs) ; Nilva v. United -
States, 352 U.S. 385, 396 (general sentence) ; Ballew
ov. Untted: States, 160. U.S. 187, 197-203 (general ¢
sentence). Bs : ate |
B. S]NCE FAILURE TO. REVIEW ALL OF SEVERAL, CONCURRENT

* SEN TRNCTS ONLY RARELY WOULD CONDONE CORLATERAL,
~ LEGAL CONSEQUENCES, THE BURDEN MAY FAIRLY* BE
PLACED ON AN APPELLANT: TO SHOW TILAT THE CONCUR- |
RENT SENTENCE DOCTRINE SHOULD Nor’ be APPLIED. TO°
HIS: APPEAL ey =; ;

LOIN OTHE “oko ARY CASES ESULVIDUAL COUNTS: ON WHICH CONCUR-
RENT SENTENCES ARE LMPOSED © ARRY No INDIVIDUAL LEGAL CON-
ee SEQUENCES, WHICH MIGUT REQU IRB THB. VAL IpULY OF CONVIC ON :

%

ON BACH COUNT TO BE TESTER, E .

© In Sthrony. New York, 392 US. 40, 50-58 ; ¢ sai
ace aVallee, 391 US. 234, 237-238 > Peyton v. Rowe,
. 391 UA. 54: and Ginsberg v. New York, 390 U S. 629,
638-634 n. 2, this Court recognized the existence of
several secondary penalties or disabilities which, un-
der state and féderal laws, Could. be imposed upon a

"defendant. as collateral consequences of a crimitial co

‘. vietion, and which’ thereby, prevented the: dismissal of
| _sueh cases as inoot or i ean Among the. collat-

“In Pained” ve United Ntates, 162 US. 687, TILT15 (con-
current sentences). this. Conrt rev iewed both counts, affirmed -
bath judgment: and’ sentence as to one and remanded for. fur-
» ther proceedings on n the other: ea ee

| .
|
!

a s

9

-eral consequences: thus recognized. are the inability

to engage in certain businesses or occupations, pre-
clusion: from holding pubhe office, disenfranchisement,
ineligibility for jury service, subjection to’ possible
deportation in the case of certain aliens, statutorily
authorized impeachment of. character at a: future

trial,” and the amalgamation of consecutive sentences

for parole and other. custodial purposes. Sibron v.
New York, supiva, 392 U.S. at 53-56; Carafas v. La- ’
Vallee, supra, 391 U.S. .at 237-238 ; Peyton v. Rowe,
supra, 391 US. at 64 and n. 3 ; Ginsberg v. New York,
supra, 390 U.S. at 633-634 n. 2; Jacobs vy. United
States, 388.8. 431, 435, 438 (dissenting opinions) ;

| United States v. ‘Micinis 346 U.S. 502, 513; Fiswick
“vy. United States, 329 U.S, 211, 221-222; see generally
. Note, Ctvil Disabilities of Felons, 53 Va. L. Rev. 403
(1967). These-are significant reagons jor precluding

the automatic loss of a right to appeal the propriety
of criminal conviction. ae

Such consequences do not, ‘however, normally flow.
from the failure to review (and possibly reverse)
less than all of a series of related convictions on

. whieh concurrent sentences have been imposed. The

coneurrent sentence doctrine cannot be used to fore-
———— :

®In,Sibron it was emphasized that there was a,clear distinc-
tion between a general impairment of credibility, which was
found ‘not to constitute a legal disability in St. Pierre v. United
States, 819 U.S. 41, 43, and a “specific statutory authorization
for use of the conviction. to impeach the ‘character’ of a de-

- fendant-in a criminal. proceeding.” Such a statutory authoriza- |

tion in the petitioner’s home state (N.Y. Code Crim, Proc. ia

"§ 393-c) was found to constitute a “cléar legal] disability delib-

erately and specifically imposed by the legislatuie.” 392° US.

at 56 n. 17.

aa

a i

)

°

close review of a question common to all counts of a

challenged conviction. Nor is it applied to. foreclose

direct review of a cofhviction resulting from one trial

because of a concurrent sentence imposed in another.

Thus, ‘unlike .mootnéss. cases: generally, the doctrine
never Seryes: to foreclosé direct appeal from a.con-
viction.” Since: collater: al disabilities’ ‘renerally, flow

from the fact of trial and conviction, rath@r than any .

one count or the number of counts on which ‘convie-
tion is had, failure to review ‘a particular ‘count is
unlikely to entail a prejudice to the accused which
would otherwise be corrected.. And the exceptional
eases are already well-recognized as OGFASIONS, when
the coneurrent sentence doctrine should not be applied.

Thus, impeachment i is not ust: ally facilitated by the .
_ existence of a multiple count conviction. The con-
eurrent sentence doctrine may frequently be applied,

for example, in cases of mail -fraud or counterfeit-
‘ing, where each mailing or utterance is. a separate

°For this reason, there is also less basis for concern that
policies favoring prompt resolution of challenges to convictions
will be “frustrated. In the mootness and habeas corpus cases,
this Court has been concerned at the real possibility that a
_ present denial of relief may. serve only to postpone the appel-

late challenge to a later date, when evidence on both sides of

_ the issues will be, stale. E.g., Sibron v. New York, supra, 392
U.S. at 56-57; Peyton v. Roive, supra, 391 U.S. at 64. This
possibility is far more remote in the concurrent sentencing doc-
trine context. The initial affirmance on appeal will have meant
that any challenges common to al] counts have been found lacking
in merit, and in addition that one of the several counts has been
found independently valid. Any subsequent petition for col-
lateral relief would: have to establish error in these appellate
conclusions béfore the question of error in the unreviewed
counts would become relevant.

td

,

that we
previously

et bape a EE a Set at . > BLD ER SR PO Be BERRI Ede i CA “ a

Il

offense but ‘the gist of. the crime is the fraudulent.

‘scheme or. counterféiting activity. The impeachment
‘valueY of conviction for such crimes lies in the fact
of pre ious conviction, not in the number of counts
© then charged. Accordingly, a deferidant

whether he is the person who was convitted of using
the mails to defraud, not w ‘hether his conviction was
‘in five or twenty-five counts: In Sibron, 392 U.S. at
“56, this ‘Court pointed. out that. a material factor
" aiigmenting the potential impeaching effect of that
‘conviction, as: opposed to past convictions, was the
recency of its.occurrence; this factor has no rele,
vance to the effect of. coneurrent: sentences imposed

- at. one time.

Similarly, ‘coneurrent sentences on. ‘several counts
ordinarily make possible no greater enhancement of
sentence on future conviction under ‘federal or state
recidivist statutes than an identical sentence on a sin-

- gle count. An allegedly moot sentence, fully served, :

-may subject the. offender. td an increased penalty
should he. again commit an offense; counts. left‘ un-
reviewed because of the concurrent-sentence doctrine
have no such independent effect. Most. recidivist stat-
utes turn on. the fact that after sentencing, for
one. or many erimes, a defendant then commits an-
other offense. See Note, Court Treatment of. General

- Conceivably, a prosecutor might try to show that a defend-

ant was convicted at one trial of two. separate, related crimes,

such as separate bank robberies, only one of which was reviewed.
For such a remote eventuality, itis more appropriate to hold
that only the reviewed count can be the basis of impeachment '
than to do away with the concurrent sentence rule. ;

: 4

convicted of mail ~fraud would be asked °

.
Pe ee ee OT

"
do

RE Tee

—

- Recidivist Statutes, 48 Col. L. Rev. 238, 240, 242, 244
(1948) ; Comment, 6 Univ. of Fla. L. Rev. 560, 561

(1958); 5 Wharton, Criminal Law and. Protedure, ©

. § 2220 ‘at 440 (12th ed. 1957). Under the federal nar-
eotics statutes, for example, 26 U:S.C. 7237, an offense
is not considered subsequent for purposes of the stat- -

ute unless it follows the conviction for the preceding -

offense. E.g., Gonzalez v. United States; 224 F. 2d
431 (C.A, 1), certiorari denied, 356 U.S. 913. This:
fully accords with the policy of ‘the statutes to mete
_ out more severe penalties to persons who have not
been dissuaded from eriminal activity by previous ;
legal encounters. Convictions which do-not affect thé

number of .times a’ perspn is imprisoned would not . -.

‘subject a defendant to the hazard of an inereased :
' penalty fora subsequent offense. =~ . ~~ - ;

2 Petitioner suggests that the number of counts upon
which a defendant receives concurrent sentences is a.
factor in determining parole ‘eligibility, and that ap- —
.° plication of the’ coneurrent sentence doctrine would: -

leave this collateral legal: conséquence untested - (Pet.
Supp. Br., pp. 8-9). But there is no such: legal éffect
under federal law or practice.” A federal prisoner :
serving a specified term or terms ‘‘may bé released on .
parole after serving one-third of such term or terms’’.
41 Whether such a legal consequence ‘exists whee Maryland ;
law is a matter outside our.interest in this case. We note, how-
-ever, that the statute petitioner cites, Md. Code Art. 41, § 127, calls -
for an abstract of each. “case tried” in which guilt is found;
there is nothing to show that this does not equally include
-abstracts of particular counfs on which an applicant for ‘parole
may have been found not guilty. Moreover, the standards the

Maryland Board is directed to apply in determining release, as _ .
in the federal system, emphasize readiness for release, and make

Ys

g

. a _ - . - - _—
nce ro mae Sige MiG we etn. a Ms ae aaeabied Suse ee ek eye ee oe —

; ‘ 13 ei alee

18 U.S. C. 4202: 28 C.F.R. 2.3. While icici sen-
tences are aggregated i in assessing the total term being
served, concurrent sentences of course are not, and
hence the number of ‘coneurrent ‘sentences ‘imposed has"
‘no: bearing on the date a prisoner will become eligible
for parole under the statute. Clark v. United States, ..
: 267 F. 2d 99, 102 (C.A: 4); see Brown v. United’
ee _. States, 256 F. 2d 151, 152 (C.A. 5). Nor is the decision
of the. Board of Parole as to whether an eligible
_~ _ "prisoner should be: released dependent upon the num-
“* ber of counts - affirmed. on appeal. Under 18 U.S.C.
4203, if it. appears ‘to. the Board. ‘that there ‘is a rea-
sonable probability that stich prisoner will live and
-remain at liberty without violating the laws, and if in’
the opinion , of the Board such. release is not incom-
patible with: the’ welfare of society, the Board may in
its discretion. authori ize the release of such prisoner on
patole”’. See also’ 28 C.F.R. 2.2. . |
There is no basis for’ supposing that the contartont :
sentence rule has any practical effect upon the Board’s °.
© consideration of ‘release authorizations. The Board. is
| required to consider “all available relevant and per-
tinent information concerning ‘the case” (28 €. F.R...
2.14); not just conduct of the prisoner culminating i in-
‘affirmed criminal convictions, This information. Jin- |

-.

no mention of the number of counts being served. 7d. “at Art. “41,
§$ 112, 124. State boards of parole generally are advised and au-
thorized to consider all ‘circumstances conneeted ‘with the offense
- for which the defendant i is imprisoned, as well as all the facts’
concerning prior criminal charges. whether or not convictions
resulted. See. generally, Advisory Counci! on Parole of the
_ National Council on Crime and — Guides -for Pargle
os pers Chap. III (1963).

i

eludes the presentence report, which contains a his-.
.tory of the prisoner ’s previous involvements with ©

state and federal law enforcement agencies, whether

_or not such matters resulted in criminal trials or con-

victions. 28 C.F.R. 2. 14, 2.17; ‘United States Proba-

. .tion Officer’s Manual, §§ 6. 15B; 6.22-6. 24,°7.21 (1961).
Background information concerning the immediate ~

ease is obtained frorn various sources,” including the
be government attorney”. who ° handled. the” pr osecution.
Richardson, Parole and the Law, 2. National -Prohba-

tion and Parole Association Journal 27, 30 (1956); ©
28° C.F.R. 2.14, All aggravating and mitigating cir-
‘eumstances surrounding the acts leading tothe pris-
oner’s. conviction are considered. Richardson, supra; -

: Chappell; The Lawyer’ s Role in the Administration of

Probation and Parole, 48 A.B.A, Jour. 742, 745
+ (1962) ; Parole Evaluation Summary, United States
Board of Parole Form H-1; p. 2 (1968) ; Administra-

°. tive Office of the U. S. Courts, The Presentence I nyestiz-

. gative Report, pp.’ 9-12, 30-32. (1965).

An: indication of the ‘inclination of parole boards |

“to look behind the ultimate legal disposition of a
_ eriminal case appears in one widely-disseminated book

of guidelines which notes:,“the record of an arrest for “
felohious assault which was nol-prossed can be quite .

misleading; a violent offense may have been. com-
mitted and for various reasons trial was not feasible,
- or else the charge may have beet false. The facts are
important: in considering - parolabiiity. ” Advisor y
~ Council on Parole of the National Council on Crime

*. 2 Both Mr. Richardson and Mr. Chases, at the: tine of

; writing. the respective articles, held the office of Chairman of.

the United States Board of Parole.

*

ma;

and Delinquency, Guides for Parole Selection, 39-40
~ (1963). Thus, the entire panorama underlying the’
charges, not just the limited evidence in support of
the convictions, is. before the Board in _making’ its
evaluation of the. prisoner’s character.’ Since it isthe -
whole man the Board-members are evaluating, and.
‘since they must consider all relevant and pertinent
_ information whatever the extent of its ultimate judi- 3
cial confirmation, an appellate reversal on one or more
| related: counts could “haye no real _impact on their
assessment of the prisoner’ 's readiness for -release..
- Finally, in the usual ease, there. is no proper basis
for concern that trial of the unreviewed counts- to-
gether with the reviewed count ma¥ have affected the
conviction: and/or sentence imposed .on the latter.- .
Where | a tr ial error is so grave as to infect all counts
-, On which conviction is had, counsel will doubtless urge
that the error is applicable to all counts 3 pad: obtain
"review of the whole case in that respect. In such in-
.. stances, invocation of the concurrent sentence ddctrine
is of course inappropriate. So, also, there’ are special
cirtumstances which suggest independent ‘review of
all counts, despite coneur rent sentences, because_re-
versal on one or mere of the charges will justify ee
remand for resentencing,in light of doubts whether a
lesser sentence might -have been imposed if the sur-
viving eount or ‘counts had stood alone. But such rare
exceptions do not inv alidate the concurrent ‘senténee
rule for most cases.’
33 Under F.R. Crim. P. 8(a), joinder of offenses for trial is

_ possible only if the offenses charged “are of the same or similar
character ‘or are based on the same act or transaction or on

* ‘

ma ” |

>

There is normally no reason to believe the sentence

. imposed on any particular count was affected by a

vulnerable conviction an another count. Sentences are
imposed in light of “a y prior.criminal record of the

defendant, and * * * ivformation about his character-
istics, his. financial por and the circumstances

affecting his behavior. ** *,”’ Fed. R. Crim. P. 32(¢)
(2). Since the trial judge is thus authorized to con-°
sider an accused’s contemporaneous. conduet without
regard to whether it-resulted in concurrent charges or

‘ eonvictions, the reversal of individual counts will not

usually influence his sentencing choice. Indeed, when
a. judge imposes a general sentence-or concurrent
sentences rather than consecutive sentences, he in

a effect is “indicating that he has made:such a deter-
_ mination. At all events, in the ease of concurrent

sentences, the trial judge must be taken to be ruling
that the‘ penalty imposed is appropriate as to each

two or more acts or transactions connected together or consti-

tuting parts of a common scheme or plan.” Where several
charges are brought on account of one transaction, for example,
under the coordinate statutes governing. narcotics offenses, or
on account of one scheme, as in mail fraud prosecutions, the

- chance of prejudice to conviction or sentéfite on good counts by

bad is-particularly slight. The first category mentioned in the

._ vale, joinder of offenses of the same or similar character, may be -

more problematic. The apparent ‘circumstances of one robbery
may be more aggravated than a second charged in the same in-
dictment; a jury might be influenced in its assessment of guilt on —

’ the seeond by conclusions regarding character it reached in con-

sidering the first. But in such cases, separate trials are more likely
than in the narcotics or mail fraud type of offense. Thus, even
here, we believe the question of influence is one appropriate to be
determined in éach case where it arises; foreclosing use of the con-
current sentence a would not be justified. =

v

. @

; 17

count—taking ifito account all the information ayail-
able to:him, but without regard to the defendant’ S
valid conviction on other counts. ‘And, of course, un-
less the record ‘suggests otherwise, the presumption _
must be that the trial judge discharged’ his official
responsibility . properly. See Wilson v. United States,
369. F. 2d 198, 200 (C.A.D.C.);' Ferrari v. United ©
. States, 169 F. 2d 353 (C.A. 9); Turberville v. United
” States, 303 F. 2d 4ul, 417 (C. A:D.C.) certiorari denied, .
, 310 U.S: 946; Stearns Co. v. United States, 291 U:S.
: Yates v. United States, supra, in which this ‘Court —
did affirm one’ count it but rev ersed as to the remainder .
and remanded the case for resentencing, is. an ‘example
of the ‘exceptional case. The petitioner there was
charged with eleven specifications of contempt; this
Court determined that properly there should have been
only one specification and reversed as to the remain-
der. Because too many crimes had been charged, the y
Court vacated the sentence. on the one good specifica-
tion and remanded for resentencing. Nonetheless, the
trial court reinstated its original sentence, and this
Court was required to correct the sentence under its
unique power to do so in eriminal contempt cases.
Yates v. United States, 356. U.S. 363. Thus, Yates
affords no proper basis for concluding that in con-
current sentence cases generally the sentence on a
valid count would have differed had the trial judge
realized "that the conviction on some other count was
infected with error. Rather one must conclude, an_
additional “concurrent sentence * * * adds nothing to ©

are Fond

poner Yemeaeseeaia.
, Kia

18

a ae 2h ev las. PUAREOAS He gh take Cd hyo 2 Time EN Ame ah ON: 0? sat

their punishment, ”? Pierce v. United Btates, 252 U. Ss.

239, 252-253.

In short, in the great majority of cases, no collateral
legal’ consequences follow ' from the failure’ of the
courts to review counts which do not affect a sentence
imposed as the result of a single trial. Certainly, any ’
additional social stigma that nffy be attributable to ~~
the conviction on a greater number of counts—factu-
ally, a doubtful proposition—is not sufficient to war-

rant ap
379 F.
“ States,

late scrutiny. United States v. Gonzalez,
284, 285 (C.A. 2); see St. Pierre v. United
-U.S. 41, 43; United States v. National

Plastikweax Fashions, Inc., 368 F. 2d 845, 846 (C.A..
2), vertiorari denied sub nom. Greene v. United States,
386 U.S. 976; United States v. Galante, 298 F. 2d 12,"
73 (C.A. 2). It follows, we submit, that the considera-

_~ tions, which justify review of a conviction in cases al-
‘ legedly rfoot or premature do not normally apply to
the individual count$ of a conviction as to which: re-
view has been denied through use of the concurrent

sentence doctrine.

2. APPELLANTS SHOULD BEAR THE BURDEN OF SHOWING THE CIR-
- GUMSTANCES, IF ANY, WHICH BAR APPLICATION OF THE CONCUR-

RENT SENTENCE DOCTRINE TO THEIR APPEALS

Int: Sibron v. New York, supra, this Court placed
upon the proponents of mootness the burden of show-
ing that “there is no possibility that any collateral
legal consequences will be imposed on the basis of the
challenged conviction.” 392 U.S. at 57. But this bur-

den was imposed on the presumption that such con- ..
* sequences usually exist, as well as for reasons of jus-.

_ tice and economy of judicial effort. As shown above,

iby F755

Fh LotR COMO I Ln pk i NPL La AS haha DS 0 DV a Cll itt I! Atta te Dia th AP ial tality ils Wiis

toe bd

neither the consequences nor the reasons are ordinar-

ily applicable to cases in which the concurrent sen-

tence doctrine might be applied, and the courts, in _

applying the doctrine have been sensitive to the ex-
traordinary case where they do’ occur. Thus, while
harm may properly be presumed if no review at ‘all’

should be granted a case, the presumption is improper ~~
where review is granted on some but not all counts

carrying concurrent sentences. : | o
- Although it could hardly be denied that the con-

stitutional requisites of standing and justiciability are. .

met in eases subject to the concurrent sentence doc-
trine, see’ generally the discussion in Fldst v. Cohen,

392 U.S. 83, 94-101, it does not follow that appellate —

courts should be obliged to review all claims of. error
made to them, including those which éould confer no
legal benefit on the appellant even if decided in his

| favor. This Qourt regularly follows the. practice of —

not passing upon all arguments a party presents, if *

it determines that he must win or lose upon one. If
review of the additional claims could lead to no dif-
ferent outcome. or afford no relief, it would raise
many of the risks inherent’ in advisory opinions; the
‘impact of actuality” and immediacy of injury. ord

narily insisted upon for review not only influence the

‘manner in which appellants present their claims, but

also give impetus to the considered judicial evalua-

tion of an issue. Cf. Ashwander. v. Tennessee Valley :
Authority, 297 U.S. 288, 346-348 (concurring opinion).

In our view, the concurrent sentence doctrine shduld

. thus be viewed as one application of ‘the harmless.

error rule, which requires appellate courts to “give

“-

=

iy
ie

Sees: 20 a Sy . —"" is

_ judgment after an scence of the record without

regard to errors or. defects which do not affect: the’
substantial rights of the parties. ” 98 U.S.C. 2111;
gee also Rule 52, F.R. Crim. P."* No reason has been _
shown: to make an exception here to the usual rule
~ that an appellant must demonstrate that he has been:
harmed hy the errors -he- alleges. Congress. noted in
enacting the predecessor of the current harmless error
_ statute governing appeals (28 U.S.C. 2111) that “[t]he

object of the * ies [statute] is to cast upon the party

seeking a new trial the burden of showing that ‘any’

_ technical errors that he may complain of have affected

his substantial rights.’’ H. Rep. No. -913, 65th Cong.,
3d. Sess., 1919; see 40 Stat. 1181; 1949 U.S. Code
Cong. Service, pp. 1248, 1272. This is the revognized -
burden of appellants (e.g., Palmer v. Hoffman, 318

U.S. 109, 116; Morgan v. United States, 98 F: 2d 473,

477 (C.A. 8), certiorari denied, 305 U.S. 648), and
there is nothing inherent in the nature or effect of
the concurrent sentence doctrine to warrant a depar-
ture from that requirément. ” ;

C: AN ABANDONMENT OF THE CONCURRENT SENTENCE DOC-
‘TRINE WOULD UNNECESSARILY BURDEN THE’ ADMINISTRA-
TION OF JUSTICE —_ | "i
Use of. the conettrrent sentence doctrines contributes

14 Indeed, reviewing courts have sometimes stated directly that

errors reaching Jess than all counts on which eoncurrent sen- -

tences have been imposed were: “harmless.” United States v.
Chow, 398 F. 2d 596, 597 (C.A..2); Head v. United States,
346 F. 2d 194, 196 (C.A. 9); United States v. Berger, 338 F.

. 2d 485, 488 poco” 2), certiorari denied, 380 U.S. 923.

Pa prea
stantially to judicial efficiency, by excusing appellate

judges, who may otherwise have no choice as to the
‘issues they must decide on’an ‘appeal, from the neces-
- sity of considering grounds of appeal which could not

affect the legal outcome of the case. A study of the
federal criminal cases filed in this Court during the

eurrent Term indicates the potential importance of

this consideration. Convictions on multiple counts,
earrying concurrent: sentences occurred in approxi-
mately 45 pereent: of. the cases, studied ; fie average
number of counts in these cases’ was hour! *® Since a
multiplicity of counts probably discourages appeal by
making the chance for ultimate success appear less,
the corresponding figures in the courts of appeals are

_ probably at least as great. Invocation of the doctrine

is possible whenever convictions on particular counts

are challenged - on grounds . peculiar to themselves; ~

such invocation may make it unnecessary to resort to
a\ lengthy record to ascertain the. sufficiency’ of the
evidence on particular counts (¢.g., United States v.

_ Berger, 338 F. 2d 485, 488 (C.A. 2), certiorari denied,

380 U.S. 923), or, if conviction on one or more counts
“is wholly unchallenged, to write an. opinion (e.g.,’

United States v. Lothridge, 402 F. 2d 454 (C.A. 6);

The criminal cases examined are those in which the
government filed responses to petitions or appeals through
February 14,-1969. There were 312 such cases. In 29, the exact

’ nature of the seritence was not clear from the records available

in the “Department of Justice. Concurrent sentences were im-
posed in 126 of the remaining 283 cases. The number of counts
upon which concurrent sentences were e imposed ranged from 2
to 21.

Banzer v. United States, 367 F. 24.865 (C.A. 9),

certiorari denied, 385 U.S. 1009; Spencer v. United

States, 355 F. 2d 921 (C.A. 9); Vela v. United States,
292 F. 2d 266 (C.A. 5)). Application of the doctrine
in such eases serves to. free the appellate courts to
concentrate their limited time and energies upor those
eases in which their decisions could afford the appel-
lant practical relief. a
In view of the swelling exiniinel ‘eoniiie’ in the
court. \of appeals, -such_ conservation ‘of judicial re-
sowrces is becoming ine¢reasingly important. In ithe
past - ten years, the number of direct .appeals from
criminal convictions has risen by a factor. of three
and one half, from 599 to 2098; there are over two and’

‘ one half times as many appeals from unsuccessful 3

collateral attacks" by ‘federal prisoners, 498. as op-
posed to 175; atid the number of appeals ‘from mn-
successful satncisis attacks by state prisoners -has
risen from 77 to 1235, a factor of sixteen.” 1958
“Annual Report -of the Director of the. Administrative
- Office of United States Courts 148, 156; 1968 Annual
‘Report of the Director of the Administrative. Office
of the United States Courts 186-188. During this sdme

period, the total nunfT of judges on the courts of

appeals has risen from 64 to 83, an increase of about
one-third. 1958’ Annual Report, supra, at 143; 1968
Annual Report, supra, at 90. The problems occasioned.

1° The concurrent sentence doctrine is, of course; as applicable

to collateral attacks as it is to direct appeals. \
ases

. 4These figures represent the total pumber of sueh c
filed in the several circuits during the fiscal years ending on
June 30, 1958, and June’ 30, 1968.

‘

‘
‘s

+)

-~ concern. See generally, Carrington, Crowded’ Docket

by this. burgeoning” workload are generating . seriou

‘and the Courts of Appeals: The Threat to the Func-
tion.of Review and the National Law, 82 Harv. L..
“Rev. 542-(1969). The concurrent sentence doctrine,
together with other prine iples 6f restraint operating
“upon the appellate courts in the exercise of their
power, must, as a practical matter, be recognized ‘as
having an impact in limiting the effect of this inunda-
tion. See Note, 103 .Univ.: of: Pas L. Rev. 772, 775 .
. (1955). The abandonment of the doctrine could sig-
nificantly aggravate the .problem without ’ ‘affor ding .

any practical relief to the appellants involved. -
For the foregoing reasons, it is respectfully sub-

mitted that this Court should hold. that the’ concurrent
sentencé doctrine may be applied in the absence of any
demonstration by a ‘defendant that he will be sub- ~
jected to a legal detriment if it is applied to his, case.
“Epwin N. Grisworp, .
Sol tcitor. General.

WILL_WILson,
_/ Assistant Attornes y General.

ey is : Peter L, Strauss,
Assistant to the Solicitor General.

te _ BEATRICE ROSENBERG,
e. Ronatp L. Garver, *
Srv « . Attorneys.
* Marcu 1969. | se

. »

4
U.S. GOVERNMENT PRINTING OFFICE: 1969

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ANIBREME COURT. 1) % ; Ae
| eta | MAR 14 1969

W THE SUPREME COURT OF THE writ Seem

OCTOBER TERM, 1968"
No. 201

Joun Dafmer Benton,
| Petitioner, —

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State or Mary.anp, ae a
j | Respondent.

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. ON WRIT OF CERTIORARI TO THE COURT OF SPECIAL APPEALS R
OF MABYLAND —. ;

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| PETITIONER'S REPLY BRIEF

= iin ey -H. Tuomas Sisk
| Sy, rs Laurence Leviran
Sine | M: Micuar, Cramer»
Pavut H. WéinsTEIn
Counsel for Petitioner .
358 Hungerford Court -
Rockville, Maryland 20850

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0125%3A6. Public record. Not legal advice.