352 U.S. 354 (1957), 38, Pollard v. United States

Docket Nº:No. 38
Citation:352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393
Party Name:Pollard v. United States
Case Date:February 25, 1957
Court:United States Supreme Court

Page 354

352 U.S. 354 (1957)

77 S.Ct. 481, 1 L.Ed.2d 393



United States

No. 38

United States Supreme Court

Feb. 25, 1957

Argued December 3, 1956




After petitioner had pleaded guilty to a federal offense and had left the courtroom, the District Court entered judgment suspending sentence and placed petitioner on probation for three years. Nearly two years later, in 1954, upon petitioner's arrest for violation of probation, the District Court entered a formal judgment and commitment sentencing petitioner to 2 years' imprisonment and setting aside the earlier judgment and order. Petitioner's motion under 28 U.S.C. § 2255 to vacate this sentence was denied by the District Court; the Court of Appeals denied leave to appeal, and this Court granted certiorari.


1. Although petitioner was released from federal prison after this Court granted his petition for certiorari, the possibility of consequences collateral to the imposition of sentence is sufficiently substantial to justify decision of this case on the merits. P. 358.

2. The Court deems it proper to consider questions as to the legality of the 1954 sentence, raised by petitioner in his brief, although, had petitioner been represented by counsel in the courts below and upon his petition for certiorari, those questions might well have been deemed neither preserved below nor raised in the petition. P. 359.

3. The 1954 sentence did not violate the Double Jeopardy Clause of the Fifth Amendment. Pp. 359-361.

4. The 1954 sentence did not violate petitioner's right under the Sixth Amendment to a speedy trial, nor the provision of Rule 32(a) of the Federal Rules of Criminal Procedure requiring imposition of sentence "without unreasonable delay." Pp. 361-362.

5. Petitioner's other contentions, that in sentencing him in 1954, the trial judge disregarded the standards prescribed for such a proceeding, are not properly before the Court and are unsupported by the record. Pp. 362-363.

6. Since the decision of this case on the merits is against the petitioner, the question whether the Court of Appeals properly denied leave to appeal need not be determined. P. 363.


Page 355

REED, J., lead opinion

MR. JUSTICE REED delivered the opinion of the Court.

This case concerns the validity of a sentence imposed on petitioner in September, 1954. On September 8, 1952, petitioner pleaded guilty in the United States District Court for the District of Minnesota to an information charging him with the unlawful taking and embezzlement of a United States Treasury check in violation of 18 U.S.C. § 1702. The district judge deferred imposition of sentence pending presentence investigation. On October 3, 1952, petitioner appeared before the trial judge at 10 a.m. for sentencing. He was then serving a sentence in a Minnesota state prison, from which he was eligible for parole the following month. The judge stated that the probation report showed that petitioner had taken an active interest in the Alcoholics Anonymous organization in prison, and petitioner told him that he contemplated continuing that interest when he was released from the state prison. The judge added that he was impressed by the fact that petitioner, who had stolen the check after a two-week drinking spree, had revealed what he had done to an officer of Alcoholics Anonymous and to the FBI without any effort to minimize the offense. He advised petitioner to join Alcoholics Anonymous immediately on his release from the state prison. He then said:

. . . if you want to revert to drinking, you will be back here again, because you will commit some federal offense, and I won't be talking to you this way if you are ever before me again.

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So, good luck to you, and I hope the parole board will give you an opportunity.

That is all.

The judge then turned to other business.

It is clear that no explicit reference to petitioner's sentence had been made during this colloquy. But, before the court adjourned at 10:30 a.m., when petitioner apparently had left the courtroom, an assistant United States District Attorney handling the matter said:

Going back to the matter of Thomas E. Pollard, who appeared this morning -- I didn't quite understand that clearly -- is there to be a probationary period after his release from Stillwater, or any type of sentencing?

The Court: It is to commence at the expiration of sentencing at Stillwater.

Mr. Hachey: Probation to commence after expiration of his sentencing at Stillwater -- for how long?

The Court: Three years.

A judgment and order of probation was then entered suspending imposition of sentence and placing petitioner on probation for that term. The Government concedes that the judgment and order was invalid because of petitioner's absence from the courtroom when probation was imposed. Fed.Rules Crim.Proc., 43.

Petitioner did not receive a copy of this order, despite a direction of the court, but learned of the probation from state prison officials the following month when he was paroled. On his release, he began reporting to the federal probation officer. Nearly two years later, on September, 1, 1954, the trial judge issued a bench warrant for petitioner's arrest on the basis of the probation officer's report that petitioner had violated the terms of his probation. Petitioner was arrested and brought before the

Page 357

court on September 21, 1954. After waiver of counsel by petitioner, the following occurred at the hearing:

The Court: What I am going to do in your case, because of the record, is to sentence you in the first instance: it's the judgment of the Court that you be confined in an institution to be selected by the Attorney General of the United States for a period of two years. That's all.

Mr. Evarts [Asst. U.S. Attorney]: Now, Your Honor, as you recall, the record shows that he was, sentence was imposed on October 3, 1952, and I would suggest to the Court that an Order be made setting aside the judgment and commitment that was entered at that time so that the record will now truly reflect the status of the events.

The Court: All right.

A formal judgment and commitment was then entered, sentencing petitioner to two years' imprisonment and setting aside the judgment and order of probation entered on October 3, 1952.

Petitioner's motion to vacate this sentence under 28 U.S.C. § 2255, was based upon a misapprehension of the basis for the sentence of 1954. He contended that, since his 1952 probation sentence was invalid, his 1954 prison sentence was also invalid because it was for probation violation. Actually, of course, it was punishment for the embezzlement. The District Court denied the motion on the ground that

[Petitioner] was initially sentenced upon September 21, 1954, and the files and records in the case conclusively show that said judgment was within the jurisdiction of the court and [77 S.Ct. 484] the sentence imposed was valid and in accordance with law.

Petitioner filed a notice of appeal and a motion for leave to proceed in forma pauperis. The District Court denied this motion "in all respects." Petitioner then filed a motion for leave

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to appeal in forma pauperis in the Court of Appeals for the Eighth Circuit. After examination of the record in the District Court, the Court of Appeals denied this motion without opinion. This Court granted leave to proceed in forma pauperis, and, deeming the issues as to the validity of the 1954 sentence of importance in the proper administration of the criminal law, granted certiorari. 350 U.S. 965. We also appointed counsel for petitioner. 350 U.S. 980.

Petitioner was released from federal prison in March, 1956, after his petition for certiorari had been granted. He relies on United States v. Morgan, 346 U.S. 502, 512-513, and Fiswick v. United States, 329 U.S. 211, 220-223, as meeting the question of mootness that this fact suggests. Those...

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