Green v. United States, 5547.

• Decision Date: 08 December 1959
• Docket Number: No. 5547.,5547.
• Citation: 273 F.2d 216
• Parties: Theodore GREEN, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

273 F.2d 216 (1959)

Theodore GREEN, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee.

No. 5547.

United States Court of Appeals First Circuit.

December 8, 1959.

Theodore Green, pro se, on brief for appellant.

Elliot L. Richardson, U. S. Atty., and William J. Koen, Asst. U. S. Atty., Boston, Mass., on brief for appellee.

Before WOODBURY, Chief Judge, HARTIGAN, Circuit Judge, and GIGNOUX, District Judge.

PER CURIAM.

Theodore Green, who is at present serving a sentence of 25 years' imprisonment for bank robbery in violation of Title 18 U.S.C. § 2113 and who has wasted the time of this court before by fruitless appeals, see Green v. United States, 1 Cir., 1956, 238 F.2d 400, and Green v. United States, 1 Cir., 1958, 256 F.2d 483, certiorari denied 1958, 79 S.Ct. 83, 3 L.Ed.2d 87, 358 U.S. 854, moved in the court below under Criminal Rule 35, 18 U.S.C., to be resentenced for the following reasons: 1) the judge did not orally pronounce sentence from the bench himself but permitted the clerk to do so, 2) the judge, before sentence, conferred with the clerk, it is asserted as to the length of the sentence to be imposed, out of the hearing of the court reporter and the defendant, 3) the judge did not afford the defendant personally an opportunity to speak in his own behalf before the imposition of sentence as required by Criminal Rule 32(a). The District Court denied the motion and Green thereupon took the present appeal.

There is little for this court to say except that we endorse the views expressed by the court below in its opinion reported D.C.1959, 24 F.R.D. 130.

The record shows that the judge was on the bench when, as is the common practice, at least in this circuit, sentence was announced orally by the clerk. And we wholly agree with the court below that in announcing the sentence the clerk was only performing a ministerial function in the presence and at the direction of the court so that actually the words of the clerk were the words of the court. We are not aware of any reason whatever why a judge cannot direct the clerk to speak for the court in announcing sentence. The cases relied upon by the appellant are so out of point that it would be a waste of time to distinguish them.

The appellant's second contention is wholly without substance. It is certainly not improper for the court to confer with the clerk at any time. Nor is there anything in the record to indicate that the object of the court's conference with the clerk before sentence was imposed was other than for ...