Green v. United States

• Decision Date: 19 July 1963
• Docket Number: Misc. Civ. No. 61-42-C,63-4-C.
• Citation: 219 F. Supp. 750
• Parties: Theodore GREEN v. UNITED STATES of America.
• Court: U.S. District Court — District of Massachusetts

219 F. Supp. 750

Theodore GREEN v. UNITED STATES of America.

Misc. Civ. Nos. 61-42-C, 63-4-C.

United States District Court D. Massachusetts.

July 19, 1963.

Manuel Katz, and James Vorenberg, Boston, Mass., court-appointed counsel for Theodore Green.

W. Arthur Garrity, U. S. Atty., and William J. Koen, Asst. U. S. Atty., Boston, Mass., for the United States.

CAFFREY, District Judge.

Movant THEODORE GREEN was convicted in the autumn of 1952 on a three-count indictment charging him with entering a bank with intent to commit a felony, robbing a bank, and assaulting or putting in jeopardy the lives of persons in the bank by use of a dangerous weapon while committing the robbery, in violation of 18 U.S.C.A. §§ 2113(a) and 2113 (d). Green was sentenced to a term of 25 years in prison and subsequently he has filed a series of motions under either Rule 35, Federal Rules of Criminal Procedure, or 28 U.S.C.A. § 2255.

The instant motion, filed approximately one month after the opinion in Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417, was handed down, seeks that the sentence be vacated

"because of the trial judge's failure to afford petitioner an opportunity to speak before sentence was imposed as provided in Rule 32(a), Federal Rules Criminal Procedure, 18 U.S. C.A., the petitioner was unable to correct false and misleading statements made by the Asst. United States Attorney in enhancement of the punishment which prejudiced the petitioner to the extent he suffered manifest injustice.

"That the petitioner had sufficient reason in law to object to any sentence in the excess of twenty (20) years and he would have brought said matter to the attention of the trial judge had he been given an opportunity to speak in his own behalf before sentence."

This motion was denied without a hearing in an opinion filed on June 14, 1962, 206 F.Supp. 619. Thereafter, a timely appeal from the denial of the motion was taken to the Court of Appeals for this Circuit. The Court of Appeals filed an opinion on January 23, 1963 which concluded "we hold that (this) motion should not have been dismissed without hearing." (313 F.2d 6, 10.)

Thereafter, a hearing was held on June 17, 1963, at which movant Green and other witnesses testified. Green was represented at the hearing by court-appointed counsel, Manuel Katz, Esq. and James Vorenberg, Esq. At the hearing the first factual issue to be resolved was the question whether or not in fact Green was afforded the right of allocution prior to the imposition of sentence in 1952. After hearing testimony this issue was resolved in favor of Green, and an oral ruling to that effect was made in open court.

The next issues open under this motion arise as a result of the opinion of the Supreme Court in the Hill case, where speaking for a majority Mr. Justice Stewart said (368 U.S. at p. 429, 82 S.Ct. at p. 471):

"It is to be noted that we are not dealing here with a case where the defendant was affirmatively denied an opportunity to speak during the hearing at which his sentence was imposed. Nor is it suggested that in imposing the sentence the District Judge was either misinformed or uninformed as to any relevant circumstances. Indeed, there is no claim that the defendant would have had anything at all to say if he had been formally invited to speak." (Emphasis added.)

Green contends (1) that the District Judge who imposed sentence on him was misinformed by the Assistant United States Attorney and (2) that he would have made a series of statements correcting the misinformation given by the Assistant United States Attorney had he been granted an opportunity to do so before imposition of sentence.

Unless Green can show that both of these allegations are factually true, the decision of the Court in Hill v. United States, supra, makes it clear that the mere denial of the right of allocution before sentence is imposed "is not of itself an error of the character or magnitude cognizable under a writ of habeas corpus," (368 U.S. p. 428, 82 S.Ct. p. 471), and that denial of allocution without more is not grounds for vacation of sentence on a Sec. 2255 motion. Prior to the hearing Green filed an affidavit and a supplemental affidavit in support of his motion setting out alleged facts which he says made the argument of the prosecutor prior to the imposition of sentence "false and prejudicial."

At the June 17 hearing Green testified that had he been extended an opportunity to do so he would have told the sentencing judge:

1. that "I had never been in any House of Correction;"

2. that the prosecutor was "misinforming the Court in that he said I had deserted my family and was traveling around the country living by my wits * * I supported my family;"

3. that "I have been out of Boston maybe once or twice at the very most, out of Massachusetts, in the last 25 years, not respecting the time I was in Alcatraz;"

4. that "I have always worked hard all my life, in fact I would have given him in chronological order the work I have done all my life."

5. that "(conviction under which he was then under sentence of 15-20 years in State prison) was on appeal and there was no final judgment on it;"

6. that the prosecutor in saying that in his opinion Green was a killer "was misinforming the Court again and trying to inflame the Court, that I have never been accused of being a killer or was a killer;"

7. that "I would have requested the Court to appoint counsel for me as Mr. Callahan (Green's then counsel) had previously advised me that there were many errors in the case and that I was a pauper and unable to obtain counsel of my own choice;"

8. that "I would have requested the Court if they would consider to permit me to leave the country voluntarily following my state prison sentence and impose a moderate sentence or just plain permit me to leave for Greece;"

9. that in reply to a statement by the prosecutor that Green was wanted down in Maine for a bank robbery he would have told the Court "I have never been in Maine in my life. I have never been indicted or have never been accused or questioned or had anything to do with any bank robbery;"

10. that "I would have advised (the Court) that under the instructions he gave to the jury he should not impose a 25 year sentence on the jeopardy," and

11. that after the verdict was returned his accomplice, one Roccaforte, had recanted testimony he had given as a government witness at the trial.

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