U.S. v. Roberts

• Decision Date: 22 September 1978
• Docket Number: No. 78-1428,78-1428
• Citation: 600 F.2d 815,195 U.S.App.D.C. 1
• Parties: UNITED STATES of America v. Winfield L. ROBERTS a/k/a Win, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 815

600 F.2d 815

195 U.S.App.D.C. 1

UNITED STATES of America v. Winfield L. ROBERTS a/k/a Win, Appellant.

No. 78-1428.

United States Court of Appeals, District of Columbia Circuit.

Sept. 22, 1978.

Order Feb. 23, 1979.

Amended Judgment Feb. 23, 1979.

Rehearing En Banc Denied April 30, 1979.

Before WRIGHT, Chief Judge, and MacKINNON, Circuit Judge, and AUBREY E. ROBINSON, Jr., ^* United States District Judge for the United States District Court for the District of Columbia.

JUDGMENT

PER CURIAM.

This cause came on to be heard on the record on appeal from the United States District Court for the District of Columbia, and was argued by counsel.

On consideration thereof It is ordered and adjudged by this Court that the judgment of the District Court appealed from in this cause is hereby affirmed.

The duty of counsel is fully discharged without filing a suggestion for rehearing En banc unless the case meets the rigid standards of Federal Rule of Appellate Procedure 35(a).

ORDER

PER CURIAM.

IT IS ORDERED, by the Court, sua sponte, that the Judgment previously entered in this proceeding on September 22, 1978 be, and it is hereby, vacated.

AMENDED JUDGMENT

PER CURIAM.

This cause came on to be heard on the record on appeal from the United States District Court for the District of Columbia, and was argued by counsel. On consideration of the foregoing, it is

ORDERED AND ADJUDGED by this Court, that the judgment of the District Court appealed from in this cause, only insofar as it imposed a three-year special parole term on appellant, is vacated; but in all other respects that judgment is affirmed.

The duty of counsel is fully discharged without filing a suggestion for rehearing En banc unless the case meets the rigid standards of Federal Rule of Appellate Procedure 35(a).

On Suggestion for Rehearing En Banc

Before WRIGHT, Chief Judge and BAZELON, McGOWAN, TAMM, LEVENTHAL, ROBINSON, MacKINNON, ROBB, and WILKEY, Circuit Judges.

ORDER

PER CURIAM.

The suggestion for rehearing En banc filed by appellant Winfield L. Roberts, having been transmitted to the full Court and a majority of judges of the Court in regular active service not having voted in favor thereof, it is

ORDERED, by the Court, En banc, that appellant's aforesaid suggestion for rehearing En banc is denied.

Statement of BAZELON, Circuit Judge, as to why he voted for rehearing en banc.

Separate Statement by Circuit Judge MacKINNON.

Statement of BAZELON, Circuit Judge, as to why he voted for rehearing en banc.

The District Court in this case imposed substantial and consecutive sentences upon appellant because he refused to name the persons who had supplied narcotics which he distributed. A panel of this court affirmed appellant's conviction and sentence without opinion or memorandum. This appeal presents the question whether a trial judge may properly consider a defendant's failure to cooperate with law enforcement officials as an aggravating circumstance warranting imposition of an enhanced sentence. Because the panel failed to address this difficult issue which is critical to the fair administration of criminal justice, I voted to rehear this case En banc.

I.

Appellant was indicted in a five count indictment including one count of conspiracy and four counts charging unlawful use of a telephone to facilitate the distribution of heroin. ¹ In 1975, he pleaded guilty to the conspiracy count and received a sentence of four to fifteen years imprisonment, a three year special parole term, and a $5,000 fine. This court vacated appellant's guilty plea and sentence in 1977 because the Government had not fully disclosed the details of the plea agreement to the District Court. ²

After several unsuccessful attempts to disqualify the original trial judge from the case on remand, ³ appellant pleaded guilty to two of the four counts of unlawful use of a telephone. Prior to sentencing, appellant filed a motion requesting that the sentences on the two counts run concurrently, which apparently is the customary practice in the District Court. ⁴ The prosecutor in his allocution, however, asked the sentencing judge to impose consecutive sentences of substantial weight. The judge responded by imposing consecutive sentences of one to four years on each count, plus a three year term of special parole. ⁵ The maximum penalty provided in the relevant statute is imprisonment for four years, a fine of $30,000, or both. ⁶ In the present appeal, a panel of this court affirmed by order. This petition for rehearing En banc followed.

II.

The primary issue on appeal is simply whether a trial judge may properly rely upon the fact that a defendant refused to become an informer as a justification for imposing a more severe sentence. In our own circuit we have touched upon this issue without squarely confronting it on at least two prior occasions, and with differing results.

⁷ In United States v. McCord, ⁸ we suggested that a trial judge's consideration of defendant's failure to cooperate might necessitate vacation of sentence. Only a short time later, in United States v. Liddy, ⁹ a different panel concluded that that same factor was properly considered in imposing sentence. I think the present case offers an appropriate forum for En banc consideration of this troublesome issue.

The Government urges that United States v. Grayson, 438 U.S. 41, 98 S.Ct. 2610, 57 L.Ed.2d 582 (1978), resolves the question whether the sentencing judge may properly consider the defendant's failure to cooperate with law enforcement officials. The Supreme Court held in Grayson that a sentencing judge, in fixing sentence within the statutory limits, may properly consider that a defendant gave false testimony during trial. The Court concluded that a defendant's willingness to commit the serious crime of perjury "may be deemed probative of his prospects for rehabilitation," Id. at 52, 98 S.Ct. at 2617, and thus was a relevant factor in sentencing under the current rehabilitation model. Yet, at least without further explanation, Grayson does not appear to govern the situation in the present case. First, the Supreme Court emphasized that a defendant's deliberate choice to commit perjury " 'a manipulative defiance of the law' " ¹⁰ accurately indicated the likelihood of future transgressions and the degree to which defendant was " 'at war with his society' ". Id. at 51, 98 S.Ct. at 2616. Second, the Court rejected Grayson's constitutional arguments about "chilling" defendant's right to testify by asserting that there is no protected right to testify untruthfully. In this case, by way of contrast, appellant Roberts' conduct was not similarly antagonistic. Appellant did cooperate with authorities with respect to the crimes charged in this indictment by inculpating both himself and his co-conspirator. Appellant balked only when asked to identify his powerful suppliers, fearing that to do so would endanger his life and possibly incriminate himself in additional conspiracies or criminal activities without benefit of immunity from prosecution. Whereas Grayson chose to lie when he had a legal duty to tell the truth, Roberts simply chose not to act in a situation in which he had no affirmative duty to act. ¹¹ And whereas Grayson had no protected right to commit perjury, Roberts did have a constitutionally protected privilege against self-incrimination a privilege that Congress intended to safeguard by requiring the Government to grant immunity before compelling self-incriminating testimony. See 18 U.S.C. § 6002 (1976).

The panel's apparent extension of the Grayson rationale without further elaboration is particularly disturbing here, for the result in this case permits the prosecution to increase its leverage in the "bargaining process" with the defendant by calling upon the considerable influence of the trial judge. The trial judge, whose impartiality is a cornerstone of our criminal justice system, may be tempted, under the guise of exercising discretion in sentencing to join forces with the prosecutor in securing the defendant's cooperation. Although the Before he was formally arrested, Roberts was told by the prosecutor "that the nature and extent of his cooperation would be determinative of the charges which could be brought against him." ¹² When Roberts nonetheless refused to name his suppliers of narcotics, he was arrested and indicted accordingly. After his indictment Roberts again refused to cooperate. The Government could then have attempted to secure such information through a grand jury investigation, using the statutorily prescribed means for compelling testimony without violating defendant's privilege against self-incrimination. ¹³ Rather than following this course, however, the prosecutor allocuted

judge's consideration of the defendant's cooperation may be justifiable on other grounds, this practice should be reconciled with this court's earlier pronouncement that "the trial judge should neither participate directly in plea bargaining nor create incentives for guilty pleas by a policy of differential sentences . . . ." Scott v. United States, 136 U.S.App.D.C. 377, 387, 419 F.2d 264, 274 (1969) (opinion of Bazelon, C. J.); See id. at 279 (opinion of Wright, J.) for a substantial sentence in order either to induce cooperation after defendant's indictment and plea of guilty, or to punish the defendant for noncooperation. The sentencing judge's presentation from the bench of this bargain-versus- retaliation option seems to threaten the "relatively equal bargaining power" between the prosecution and defense that is crucial to the entire concept of plea bargaining. ¹⁴ This "announced policy of differential sentencing" ¹⁵ raises the serious danger that future defendants may be punished by the sentencing judge if they do not accept the prosecutor's offer during the period of "bargaining" over indictments and pleas. By allowing the judge to take sides with the prosecutor, we may be leaving defendan...