Briscoe v. United States

• Citation: 391 F.2d 984,129 US App. DC 146
• Decision Date: 02 February 1968
• Docket Number: No. 20680.,20680.
• Parties: Ian Paul BRISCOE, Appellant, v. UNITED STATES of America. Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

129 US App. DC 146, 391 F.2d 984 (1968)

Ian Paul BRISCOE, Appellant, v. UNITED STATES of America. Appellee.

No. 20680.

United States Court of Appeals District of Columbia Circuit.

Argued November 16, 1967.

Decided February 2, 1968.

Mr. Leonard B. Boudin, Washington, D. C. (appointed by this court), for appellant. Mr. Stanley O. Sher, Washington, D. C. (appointed by this court) also entered an appearance for appellant.

Mr. Henry K. Osterman, Sp. Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., Frank Q. Nebeker and William M. Cohen, Asst. U. S. Attys., were on the brief, for appellee.

Before EDGERTON, Senior Circuit Judge, and WRIGHT and LEVENTHAL, Circuit Judges.

PER CURIAM.

This is an appeal from the District Court's denial of motions to vacate sentences and set aside two housebreaking convictions. Briscoe, an alien, was arrested for vagrancy in Florida in 1964, and was brought back to the District of Columbia in connection with two house-breaking charges pending against him here. He pled guilty in both cases. In one case, the matter was, in appellant's words, "pretty well open and shut." But his subsequently entered plea in the other, Crim. No. 349-65, was motivated by his desire to have both these cases terminated by his deportation — as an alien twice convicted of crimes involving moral turpitude, see 8 U.S.C. § 1251(a) (4) — rather than by imprisonment. He assumed that this disposition would be satisfactory to the Government because it ensured his absence without taxpayer expense. Another judge imposed sentence, two-to-seven year terms on each charge, to run consecutively.

We do not accept appellant's contention that his guilty plea must be set aside as involuntary because it was induced by his misunderstanding, in that he thought he was in fact to be deported. After a hearing, the District Judge denied appellant's motion under 28 U.S.C. § 2255 to set aside the guilty plea because there was no showing that either the prosecution or appellant's counsel had made any promise to appellant that deportation would ensue on his plea. This ruling is sound. However in view of the other aspects in the case which we shall discuss, we vacate the sentences in both cases and remand both for a new hearing on the voluntariness of the guilty plea in Crim. No. 349-65 and for reimposition of sentences.

A. Vacation of Sentences

The District Court was, of course, under no obligation to accede to appellant's desires and to turn him over to the Immigration and Naturalization Service for deportation in lieu of serving a sentence in a United States institution. However, whether Briscoe should have been deported was not an insubstantial question. Responsible citizens who knew Briscoe, as well as an alien assistance group, wrote letters urging that despite his criminal record he was a far from hopeless case, and that deportation was the remedy most like to effectuate his ultimate rehabilitation.¹ Yet the sentencing judge did not consider whether rehabilitation (or general achievement of sentencing objectives) was more likely with deportation than with long imprisonment. In fact, despite counsel's urging he refused to have anything to do with the question. The court stated "I don't think that the Court should get involved in any possible deportation. That is a matter for the Immigration Service. The Court will deal with this on that basis."

This refusal to exercise discretion was impermissible, and requires that we remand for reconsideration of the sentence. See Leach v. United States, 115 U.S.App.D.C. 351, 320 F.2d 670 (1963) (remanded where court failed to get psychiatric information before sentencing). Rehabilitation and reformation of offenders are "important goals of criminal jurisprudence," Williams v. People of State of New York, 337 U.S. 241, 248, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949), and while choosing among sentencing alternatives is a task for the trial court, it may not refuse to "involve" itself in the question what disposition is most likely to further those goals. Indeed, the rule that appellate courts do not review matters of sentencing is premised on the notion that the trial court will exercise its discretion rather than refuse to do so.

The need for attentive consideration of this issue by the sentencing judge is highlighted by the apparent unavailability of such consideration elsewhere. The extensive efforts of appellant's counsel towards securing the support of other Government agencies for deportation were rebuffed on the assumption that the question was exclusively within the ken of the sentencing court. Contrary to what the District Judge thought, deportation is not a matter for the Immigration and Naturalization Service, because under 8 U.S.C. § 1252(h) an alien cannot be deported until he is released from prison. Thus release could not be effected except by order of the sentencing judge.

The United States Attorney's Office advised appellant's attorney that it could take no step as to deportation because of its long-standing policy to decline to initiate any sentencing recommendations whatever. Even the probation officer preparing the presentence report declined to recommend or oppose deportation. He noted the availability of the remedy, and deferred to the sentencing court the question of whether it would be appropriately invoked in Briscoe's case.

On this record no responsible Government official has yet addressed himself to whether it makes sense to incarcerate Briscoe rather than let him join the British Marines, which is the course he seeks to pursue. The only official vested with authority to make that determination was the sentencing judge, and his refusal to consider the question cannot stand.

B. Voluntariness of Guilty Plea

We also rule that a new hearing is required on the voluntariness of the guilty plea in Crim. No. 349-65 — the second housebreaking charge — to which Briscoe confessed while imprisoned in Florida.

The Government's case on the merits had difficulties. Its success turned on whether appellant's confession would have been admissible. Appellant's confession was made to the attorney of his alleged partner in crime. It implicates appellant, but (apparently falsely) exonerates his partner. The latter was appellant's cellmate, and, it is alleged, was threatening him. There is a substantial question on the merits, then, whether the confession was admissible. Even assuming the involuntariness of this confession because of the circumstances under which it was given, the Government might seek a ruling of admissibility on the ground that appellant did not repudiate the confession when he was brought before the Commissioner in Florida. (He says he did not want to be a fink.) This in turn may require consideration of the problem that appellant did not have counsel before the Commissioner. He had asked for counsel and was told that there were no facilities for providing him with one.

Rather than challenging the weakness of the Government's case, Briscoe pled guilty. It is clear from the testimony given at the voluntariness hearing by Briscoe, his various counsel, and even the Assistant United States Attorney, that Briscoe entered his...