Tucker v. United States

• Citation: 431 F.2d 1292
• Decision Date: 28 September 1970
• Docket Number: No. 24839.,24839.
• Parties: Forrest S. TUCKER, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

431 F.2d 1292 (1970)

Forrest S. TUCKER, Appellant, v. UNITED STATES of America, Appellee.

No. 24839.

United States Court of Appeals, Ninth Circuit.

September 28, 1970.

Forrest S. Tucker, in pro. per.

James L. Browning, U. S. Atty., San Francisco, Cal., for appellee.

Before HAMLEY and MERRILL, Circuit Judges, and THOMPSON, District Judge.^*

HAMLEY, Circuit Judge:

Forrest S. Tucker appeals from a district court order denying his motion, made under 28 U.S.C. § 2255, to vacate the judgment convicting him of armed robbery and to set aside the sentence based thereon. The judgment and sentence of imprisonment for twenty-five years, entered on May 20, 1953, was affirmed by this court in Tucker v. United States, 214 F.2d 713 (9th Cir. 1954). The district court opinion now under review in this section 2255 proceeding is reported in 299 F.Supp. 1376 (N.D.Cal. 1969).

After Tucker had testified in his 1953 trial for the armed robbery, the Government introduced evidence of his three prior felony convictions. This evidence was received for the purpose of impeaching Tucker's own testimony offering an alibi defense. In addition, after the jury had entered its verdict of guilty, the trial judge called for further information, in the form of a Federal Bureau of Investigation report concerning Tucker's prior convictions, for use in determining the sentence to be imposed.

On June 10, 1966, the Superior Court of Alameda County, California, in case No. 25,174, set aside two of Tucker's prior convictions on the ground that "the defendant was neither advised of his rights to legal assistance nor did he intelligently and understandingly waive this right to the assistance of counsel." The Government concedes that these two prior felony convictions were invalid under Gideon v. Wainwright, 372 U.S. 335, 344-345, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).

In this section 2255 proceeding Tucker argues that his 1953 conviction is invalid, under the rule of Burgett v. Texas, 389 U.S. 109, 115, 88 S.Ct. 258, 19 L.Ed. 2d 319 (1967), because his prior uncounseled convictions were used at his trial to impeach his credibility and to influence the court in imposing sentence.

In Burgett, the Supreme Court stated that

"to permit a conviction obtained in violation of Gideon v. Wainwright to be used against a person either to support guilt or enhance punishment for another offense * * * is to erode the principle of that case." 389 U.S. at 115, 88 S.Ct. at 262.

This rule is being applied retroactively by this court and other courts of appeals which have had occasion to consider the problem.¹

The Burgett rule against the use of uncounseled convictions to prove guilt or enhance punishment precludes the use of such evidence to impeach a defendant's credibility as a witness. Gilday v. Scafati, 428 F.2d 1027 (1st Cir.1970).²

We are also in agreement with the further ruling in Gilday, for the reasons there stated, that the reception of evidence pertaining to prior convictions, constitutionally erroneous under Burgett may, under the circumstances of a particular case, be harmless beyond a reasonable doubt, applying the principle announced in Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Under Chapman, an error of constitutional proportions can be disregarded as harmless if the prosecution proves beyond a reasonable doubt that the error "did not contribute to the verdict obtained." 386 U.S. at 24, 87 S.Ct. at 828.³

The nature of defendant's testimony at the trial, and the overwhelming weight of the testimony to the contrary are fully described in the district court opinion, 299 F.Supp. 1376, at 1377-1378. We agree with the district court that defendant's testimony was completely discredited by evidence other than that pertaining to the prior convictions. This leads us to conclude that the prosecution firmly proved that the evidence of prior convictions did not contribute to the verdict obtained and that, with respect to the verdict of guilty, the error in receiving such evidence was therefore harmless beyond a reasonable doubt.

As noted above, the evidence pertaining to Tucker's prior convictions was submitted not only to affect his credibility as a witness, but also to assist the trial court in fixing the sentence. The twenty-five year prison sentence imposed following Tucker's conviction for armed robbery, in violation of 18 U.S.C. § 2113(a) and (d), was the maximum allowable under the statute.

There is a reasonable probability that the defective prior convictions may have led the trial court to impose a heavier prison sentence than it otherwise would have imposed. Therefore, as to the sentencing, we are unable to conclude that the reception of such evidence was harmless beyond a reasonable doubt.

Accordingly, the judgment of conviction is affirmed, but the cause is remanded to the district court for resentencing without consideration of any prior convictions which are invalid under Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).

THOMPSON, District Judge (dissenting).

I respectfully dissent. This Court has not yet held that the rule of Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L. Ed.2d 319 (1967), is applicable to constitutionally infirm convictions used for impeachment. This is the case in which it should be declared that a convicted person cannot attack his conviction on the ground that a constitutionally infirm prior conviction was used for impeachment. This Court has not yet held that the rule of Burgett v. Texas, supra, applies to invalidate a sentence where a constitutionally infirm prior conviction was called to the attention of the sentencing judge by presentence report, or otherwise, before sentence was imposed. This is the case in which it should be declared that a convicted defendant cannot attack the sentence imposed by showing that the sentencing judge was informed about a constitutionally infirm prior conviction.

This writer cannot believe that the Supreme Court intended such a broad interpretation and application of the Burgett rule. Viewed realistically, it means that the most hoary and ancient of the confirmed, repetitive recidivists may, by applying the "domino theory" whereby the earliest of the convictions is declared void by application of Gideon,¹ fell each of the ensuing convictions and establish a clean unsullied record of pro-social conduct.

It has been a fundamental of our case-made jurisprudence that the principles announced in pertinent precedent should be viewed and interpreted in the light of the facts of the particular case. This is a salutary principle which this writer believes has not been entirely abandoned in contemporary jurisprudence. The principle recognizes the problems inherent in communication and expression, the difficulties of achieving pinpoint accuracy and the non-existence of words expressing exactly the same concept for the writer and the reader, the speaker and the listener. It recognizes the human frailty of inability to conceive, imagine and anticipate the applications which will be sought to be made of an announced principle, howsoever accurately expressed with semantic exactness. The principle also recognizes that judges are human beings and writing in favor of a position taken, however dispassionately, may become somewhat polemic in supporting the soundness of the decision advocated. This writer admires the genius of our system which contemplates a case by case review under differing sets of facts of the principles formulated and articulated in earlier precedents.

The majority opinion is based upon the following quotation from Burgett v. Texas, supra:

"To permit a conviction obtained in violation of Gideon v. Wainwright to be used against a person either to support guilt or enhance punishment for another offense (see Greer v. Beto, 384 U.S. 269, 86 S.Ct. 1477, 16 L.Ed.2d 526) is to erode the principle of that case. Worse yet, since the defect in the prior conviction was denial of the right to counsel, the accused in effect suffers anew from the deprivation of that Sixth Amendment right."

The majority relies upon Gilday v. Scafati, 428 F.2d 1027 (1st Cir.1970), where the First Circuit said:

"We conclude that the Burgett rule against use of uncounselled convictions `to prove guilt\' was intended to prohibit their use `to impeach credibility,\' for the obvious purpose and likely effect of impeaching the defendant\'s credibility is to imply, if not prove, guilt. Even if such prohibition was not originally contemplated, we fail to discern any distinction which would allow such invalid convictions to be used to impeach credibility. The absence of counsel impairs the reliability of such convictions just as much when used to impeach as when used as direct proof of guilt. Moreover, such use compounds the original denial of the constitutional right just as surely as does use `to prove guilt or enhance punishment.\' Finally, defendant\'s privilege to testify or not to testify — Griffin v. California, 380 U.S. 609, 614, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965) — Is seriously impaired if the price of testifying is the potential admission of invalid and possibly unreliable convictions which could not otherwise be admitted. We therefore hold that Burgett prevents the use of uncounseled convictions for purposes of impeachment."

I think the First Circuit and the majority of this Court rely on a too literal reading of the Burgett opinion in disregard of the principle I have urged that we should look to the facts and to what actually was decided. Narrowly, the holding of the Burgett case is that if void prior convictions are brought to the attention of the jury by the prosecution in a one-stage recidivist trial, the result is a denial of due process. In that situation, inasmuch as the enhancement of punishment is directly dependent upon the validity of the prior conviction, it is the absolute duty of the prosecution to assure itself of that...