U.S. v. Stewart
| Decision Date | 07 June 1976 |
| Docket Number | No. 75--1879,75--1879 |
| Citation | 41 A.L.R.Fed. 550,531 F.2d 326 |
| Parties | UNITED STATES of America, Plaintiff-Appellant, v. James Howard STEWART, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Eugene E. Siler, Jr., U.S. Atty., Lexington, Ky., Victor D. Stone, Atty., Crim. Div., Dept. of Justice, Washington, D.C., for plaintiff-appellant.
William Gary Crabtree, London, Ky. (Court-appointed CJA), for defendant-appellee.
Before PHILLIPS, Chief Judge, and MILLER and ENGEL, Circuit Judges.
The question presented on this appeal is whether the statutory provisions for an increased The District Court ruled that the statute is unconstitutional, on the ground that it is impermissively vague in both its application provisions and its sentencing provisions. The Government appeals, pursuant to 18 U.S.C. § 3576. We reverse.
sentence for dangerous special offenders, 18 U.S.C. § 3575(b) and (f), a part of Title X of the Organized Crime Control Act of 1970, 84 Stat. 922, 948--52, is unconstitutionally vague.
On January 13, 1975, defendant-appellee, James Howard Stewart, was charged in the Eastern District of Kentucky with aiding and assisting the escape of a codefendant from the Bell County Jail, Pineville, Kentucky, while the latter was awaiting transfer to a federal penitentiary, in violation of 18 U.S.C. § 752(a).
On February 5, 1975, six days before the trial, the United States filed notice of its intention to proceed against Stewart under the dangerous special offender sentencing provisions of the statute. The notice alleged that Stewart was a dangerous special offender within the meaning of 18 U.S.C. § 3575(e)(1), the habitual offender category, setting out that he had been convicted previously and imprisoned for three felony offenses--auto theft, malicious cutting and manslaughter. It also charged that Stewart was more than 21 years of age (, he was 25) and that less than five years had elapsed between his last release from imprisonment and the commission of the instant felony (, only five months had elapsed). As additional grounds for believing that a period of confinement longer than the five year maximum term provided in the underlying statute was required in this case for the protection of the public, i.e., that Stewart was 'dangerous' within the meaning of 18 U.S.C. § 3575(f), the Government proffered evidence to show that his propensity to act violently had not abated. The Government offered to prove that subsequent to the commission of the instant offense, Stewart had participated in five additional felonytype acts, including escape from state custody, armed robbery which involved a federal firearms violation, and two unrelated gun violations. The Government also offered to prove that Stewart had a poor record of institutional adjustment, i.e., that law enforcement personnel considered him to be dangerous and violent and that it was believed he would not hesitate to kill. The complete text of the notice is made Appendix A to this opinion.
The trial of Stewart ended in a mistrial. On February 21, 1975, in lieu of a retrial, Stewart pleaded guilty to Count III of the indictment. As stated above, the notice of the Government to proceed under the dangerous special offender statute had been given to Stewart six days before the trial. The District Judge was not aware of this notice until after Stewart had entered his first guilty plea. On March 20, 1975, at the time of sentencing, Stewart stated that, when he entered his guilty plea, he did not understand that the 25 year maximum term provided in 18 U.S.C. § 3575 could be imposed upon him. He said that it had been his belief that the maximum enhancement of sentence to which he thought he was exposing himself was an additional five year term, the maximum punishment for the offense to which he was pleading guilty. After the court advised Stewart that the maximum term possible was 25 years, Stewart was permitted to withdraw his guilty plea. On the same day Stewart filed a motion to dismiss the Government's dangerous special offender notice, alleging, inter alia, that the term 'dangerous' as used and defined in 18 U.S.C. § 3575(f) is unconstitutionally vague.
On April 15, 1975, Stewart moved to withdraw his plea of not guilty and, after being advised again by the court that the maximum possible sentence was a 25 year term, he entered another plea of guilty.
Before convening the special offender sentencing hearing required under 18 U.S.C. § 3575, at which the Government proposed to call approximately 25 witnesses to establish the allegations in its notice, the District Court set a hearing on Stewart's motion to dismiss.
Thereafter, in an unpublished order filed May 9, 1975, the District Court ruled that the dangerous special offender statute is unconstitutional, due to the fact that it is impermissibly vague in both its application provisions and its sentencing provisions, 1 and declined to sentence Stewart under that statute. However, on Stewart's guilty plea to the original offense, the court imposed the five year maximum term of imprisonment authorized by 18 U.S.C. § 752, such term to run consecutively to and independently of any other state or federal sentencing. The court declined Stewart's request for a concurrent sentence or the opportunity for immediate parole under 18 U.S.C. § 4208(a)(2), pointing out that he had 'a most serious record.'
The dangerous special offender statute was enacted to provide more precise sentencing methods so as to make the sentence fif the particular offender before the court.
The relevant portions of the statute in question are as follows:
§ 3575. Increased sentence for dangerous special offenders
(a) Whenever an attorney charged with the prosecution of a defendant in a court of the United States for an alleged felony committed when the defendant was over the age of twenty-one years has reason to believe that the defendant is a dangerous special offender such attorney, a reasonable time before trial or acceptance by the court of a plea of guilty or nolo contendere, may sign and file with the court, and may amend, a notice (1) specifying that the defendant is a dangerous special offender who upon conviction for such felony is subject to the imposition of a sentence under subsection (b) of this section, and (2) setting out with particularity the reasons why such attorney believes the defendant to be a dangerous special offender. In no case shall the fact that the defendant is alleged to be a dangerous special offender be an issue upon the trial of such felony, be disclosed to the jury, or be disclosed before any plea of guilty or nolo contendere or verdict or finding of guilty to the presiding judge without the consent of the parties. If the court finds that the filing of the notice as a public record may prejudice fair consideration of a pending criminal matter, it may order the notice sealed and the notice shall not be subject to subpena or public inspection during the pendency of such criminal matter, except on order of the court, but shall be subject to inspection by the defendant alleged to be a dangerous special offender and his counsel.
(b) Upon any plea of guilty or nolo contendere or verdict or finding of guilty of the defendant of such felony, a hearing shall be held, before sentence is imposed, by (e) A defendant is a special offender for purposes of this section if--
the court sitting without a jury. The court shall fix a time for the hearing, and notice thereof shall be given to the defendant and the United States at least ten days prior thereto. The court shall permit the United States and counsel for the defendant, or the defendant if he is not represented by counsel, to inspect the presentence report sufficiently prior to the hearing as to afford a reasonable opportunity for verification. In extraordinary cases, the court may withhold material not relevant to a proper sentence, diagnostic opinion which might seriously disrupt a program of rehabilitation, any source of information obtained on a promise of confidentiality, and material previously disclosed in open court. A court withholding all or part of a presentence report shall inform the parties of its action and place in the record the reasons therefor. The court may arequire parties inspecting all or part of a presentence report to give notice of any part thereof intended to be controverted. In connection with the hearing, the defendant and the United States shall be entitled to assistance of counsel, compulsory process, and cross-examination of such witnesses as appear at the hearing. A duly authenticated copy of a former judgment or commitment shall be prima facie evidence of such former judgment or commitment. If it appears by a preponderance of the information, including information submitted during the trial of such felony and the sentencing hearing and so much of the presentence report as the court relies upon, that the defendant is a dangerous special offender, the court shall sentence the defendant to imprisonment for an appropriate term not to exceed twenty-five years ano not disproportionate in severity to the maximum term otherwise authorized by law for such felony. Otherwise it shall sentence the defendant in accordance with the law prescribing penalties for such felony. The court shall place in the record its findings, including an identification of the information relied upon in making such findings, and its reasons for the sentence imposed.
(1) the defendant has previously been convicted in courts of the United States, a State, the District of Columbia, the Commonwealth of Puerto Rico, a territory or possession of the United States, any political subdivision, or any department, agency, or instrumentality thereof for two or more offenses committed on occasions different from...
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