Scott v. United States

• Citation: 419 F.2d 264
• Decision Date: 13 February 1969
• Docket Number: No. 20954.,20954.
• Parties: Vincent E. SCOTT, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

419 F.2d 264 (1969)

Vincent E. SCOTT, Appellant, v. UNITED STATES of America, Appellee.

No. 20954.

United States Court of Appeals District of Columbia Circuit.

Argued September 9, 1968.

Decided February 13, 1969.

Mr. James L. McHugh, Jr., Washington, D. C., with whom Mr. John L. Ingoldsby, Jr., Washington, D. C., (both appointed by this court) and Mr. John G. Kester, Washington, D. C., were on the brief, for appellant.

Mr. James E. Kelley, Jr., Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., Frank Q. Nebeker and William H. Collins, Jr., Asst. U. S. Attys., were on the brief, for appellee.

Before BAZELON, Chief Judge, and WRIGHT and LEVENTHAL, Circuit Judges.

BAZELON, Chief Judge:

Vincent Scott was convicted of robbery under 22 D.C. Code § 2901 (1967) and sentenced to prison for five to fifteen years. The proceedings preceding his conviction were, we conclude, free from error.¹ The events surrounding his sentencing, however, present thorny questions concerning what factors the trial judge may properly consider at that stage. We affirm the conviction, but remand for a resentencing in accordance with the principles announced in this opinion.

I

In reviewing the appellant's claims concerning the events at his sentencing hearing, we do not find it necessary to combat the massed precedent forbidding appellate modification of sentences.² The objections raised center not upon the "duration or severity of this sentence,"³ but upon the reasons for which it was imposed. The trial judge has wide freedom in the information that may be considered in imposing a sentence.⁴ The result, the specific sentence selected, may be beyond the ken of the appellate court. But the appellate court must scrutinize the sentencing process to insure that the trial judge has considered the information available with some regard for its reliability,⁵ and has evaluated the information in light of the factors relevant to sentencing. This Court has remanded cases for resentencing where the trial judge failed to avail himself of the proper aids for sentencing, such as mental examinations or presentence reports.⁶ We have also refused to accept a trial judge's determination of sentence where the record demonstrated that an improper factor had been considered, such as a statutory sentencing provision since repealed.⁷

In many cases, of course, the appellate court does not know whether the sentencing judge has performed his task thoroughly or well. The frequent blankness of the record has led to suggestions that the trial judge should be required to set forth his reasoning in announcing the sentence decided upon.⁸ But that problem is not before us. Here the trial judge explained in some detail the reasons for which the sentence was imposed. He stated repeatedly throughout the hearing that he did not believe the exculpatory testimony the appellant had given at trial. And at one point the judge indicated that he was influenced as well by the fact that the appellant had insisted upon a trial in the first place:

Now the Court didn\'t believe your story on the stand, the Court believes you deliberately lied in this case. If you had pleaded guilty to this offense, I might have been more lenient with you.

A few moments later, the sentencing hearing flew off on a revealing tangent when the trial judge read a letter submitted by the appellant. The letter, from his attorney, referred to a visit the lawyer had made to the judge's law clerk. In it he reported that in the clerk's opinion "there was only one way to get a light sentence from Judge _________ and that was to confess that you did the robbery, to apologize four or five times and to say that you were willing to turn over a new leaf." The trial judge then called his clerk to the witness stand and interrogated him concerning his conversation with the attorney. The clerk affirmed that the letter fairly reflected the substance of his comments to the lawyer. He stated, "It has always been my opinion that you view sentencing differently when someone admits guilt rather than maintaining innocence." He added, however, "This has nothing to do with private conversations we have had in chambers. It is from things I have heard while sitting in that seat during sentencing hearings."

The judge himself then commented upon his reactions to defendants found guilty by the jury who continued to assert their innocence at allocution. He went on, "I hope sometime I hear some defendant say, `Judge, I am sorry, I am sorry for what I did.' That is what I have in mind."

II

The appellant argues that he was denied due process of law by the trial judge's consideration of the "inflammatory" letter and by the pressure placed upon him to confess his guilt after trial. The federal courts have examined this issue but seldom, perhaps because trial judges rarely announce a reliance upon this consideration. The Tenth Circuit has upheld a sentence of 18 months that the trial judge imposed instead of probation because the appellant continued to assert his innocence after trial.⁹ It did so, however, not because the court approved of the practice, but because "the matter is one entirely for the trial court."¹⁰ To the extent that the court concluded that it lacked as an appellate court not only the power to modify a sentence but also the authority to review the sentencing process, we disagree.

The Fifth Circuit has recently reached precisely the opposite conclusion. The appellant in Thomas v. United States¹¹ rejected the trial court's invitation to "come clean and make a clean breast of this thing for once and for all" at his sentencing hearing. The trial judge then imposed the maximum sentence permitted by statute. Judge Rives reasoned for the court,

It must be remembered that, at the time of his allocution, Thomas had not been finally and irrevocably adjudged guilty. Still open to him were the processes of motion for new trial * * *, appeal, petition for certiorari, and collateral attack. * * * If he chose to confess guilt * * *, he would elect to forego all of the abovenoted post-conviction remedies and to confess to the crime of perjury * * *. Moreover, he would abandon the right guaranteed by the Fifth Amendment to choose not to be a witness against himself, not only as to the crime of which he had been convicted, but also as to the crime of perjury.¹²

The opinion concluded,

When the appellant received harsher punishment than the court would have decreed had he waived his Fifth Amendment rights, he paid a judicially imposed penalty for exercising his constitutionally guaranteed rights.¹³

This analysis equates a confession of guilt at allocution with a waiver of the self-incrimination privilege, and thereby imports the same strict standard of voluntariness that Judge Rives would also require for a plea of guilty.¹⁴ In struggling with the problems associated with plea bargaining, the Fifth Circuit sitting en banc has settled upon a less stringent standard of voluntariness which rejects such reliance upon the self-incrimination privilege.¹⁵ But whatever the reasons why a guilty plea may differ from a confession for self-incrimination purposes, the Fifth Amendment standards demanded by the Thomas case seem clearly required when a confession at allocution is involved, at least when the defendant has testified at trial and denied the crime. For, as Judge Rives points out, not only would a confession of guilt at the sentencing hearing be, in literal terms, just that — a confession — but also such a statement would constitute an admission of perjury.

It might be argued that the dilemma between waiving Fifth Amendment rights and receiving a harsher sentence might be elminated by a rule making a defendant's statement at his allocution inadmissible in other proceedings.¹⁶ But the appellant had no such assurance in this case.¹⁷ The trial judge was eager for an acknowledgment of guilt presumably because a confession might indicate repentance. But the appellant could reasonably have believed that he could show penitence — real or affected — only at the price of prejudicing his appeal, if not worse. Whether the trial judge intended or not "to bargain thus with the defendant," we conclude that "the court was without right * * * to put a price on an appeal."¹⁸

III

Since a resentencing will be necessary, two other considerations the trial judge relied upon in sentencing the appellant require comment. The first problem arises from the judge's repeated statements that he believed the appellant had committed perjury on the witness stand in denying that he had participated in the robbery. There are two arguments why this belief would properly influence the choice of a sentence: (1) that additional punishment should be imposed for the independent substantive offense of perjury; (2) that the commission of perjury reflected adversely upon the appellant's prospects for rehabilitation, and therefore justified a lengthier sentence for the crime of robbery.¹⁹

The first argument deserves emphatic rejection. The Government could if it wished prosecute the appellant for perjury.²⁰ In such a proceeding, the appellant would have all the protections of a criminal trial. If the trial judge in fact imposed additional punishment upon the appellant for the supposed commission of perjury, he plainly denied the appellant the trial upon that offense to which Scott was entitled.

As for the second argument, the peculiar pressures placed upon a defendant threatened with jail and the stigma of conviction make his willingness to deny the crime an unpromising test of his prospects for rehabilitation if guilty. It is indeed unlikely that many men who commit serious offenses would balk on principle from lying in their own defense. The guilty man may quite sincerely repent his crime but yet, driven by the urge to remain free, may protest his innocence in a court of law. This realization, indeed, unquestionably accounts for the extreme infrequency...