Hess v. United States, 74-1022.

• Citation: 496 F.2d 936
• Decision Date: 13 May 1974
• Docket Number: No. 74-1022.,74-1022.
• Parties: Donald Kilsmuth HESS and Louis Clifton Hess, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

496 F.2d 936 (1974)

Donald Kilsmuth HESS and Louis Clifton Hess, Appellants, v. UNITED STATES of America, Appellee.

No. 74-1022.

United States Court of Appeals, Eighth Circuit.

Submitted April 16, 1974.

Decided May 13, 1974.

Thomas M. Larson, Asst. Federal Public Defender, Kansas City, Mo., for appellants.

J. Whitfield Moody, Asst. U. S. Atty., Kansas City, Mo., for appellee.

Before MATTHES, Senior Circuit Judge, and ROSS and WEBSTER, Circuit Judges.

MATTHES, Senior Circuit Judge.

In December of 1956, Donald Kilsmuth Hess and Louis Clifton Hess, brothers, were convicted in the United States District Court for the Western District of Missouri of two separate kidnappings in violation of 18 U.S.C. § 1201. On December 14, 1956, each was sentenced by the trial judge, the Honorable Richard M. Duncan, to two consecutive life terms,¹ as was a codefendant in one of the proceedings, Lewis Milton Williams. Thereafter, this court granted all three defendants leave to appeal in forma pauperis from their convictions. In accordance with the prevailing procedures, they were not provided with assistance of counsel. The convictions were affirmed. Hess v. United States, 254 F.2d 578 (8th Cir. 1958); Hess v. United States, 254 F.2d 585 (8th Cir. 1958).

In 1969, Williams filed a § 2255 motion seeking relief on the ground that he had not been represented by counsel on direct appeal from his conviction. Judge Duncan denied the motion, and Williams appealed, this time with the aid of a court appointed attorney. Our court agreed that Williams was constitutionally entitled to counsel on appeal from his conviction. The remedy fashioned was to treat Williams' appeal from the trial court's denial of his § 2255 motion as a direct appeal from his conviction. Again, Williams' conviction was affirmed. Williams v. United States, 416 F.2d 1064 (8th Cir. 1969).

On September 13, 1973, the Hess brothers also filed a § 2255 motion, alleging, inter alia, the absence of counsel on appeal. On the basis of the Williams decision and without objection from the government, Judge Duncan certified the § 2255 proceeding to this court on December 21, 1973. A panel of judges of this court agreed that the Hess brothers should be given the same consideration given to Williams. Accordingly, it was directed that the § 2255 motion be considered as an application to reinstate the direct appeals of the Hess brothers, that such application be granted, and that counsel be appointed. It is in this posture that we now consider the case.

Appellants' sole challenge is to the trial court's sentencing procedure. Specifically, it is alleged that the trial court took into account the following allegedly impermissible factors in determining sentence: 1) that, instead of pleading guilty, appellants exercised their right to jury trial; 2) that Louis Hess testified falsely on his own behalf; and 3) unsupported misinformation supplied by the government. By the very nature of their attack, appellants do not seek reversal of their convictions or new trials, but only resentencing.

I.

This circuit has joined a host of other courts in recognizing that whether a defendant exercises his constitutional right to trial by jury to determine his guilt or innocence must have no bearing on the sentence imposed. United States v. Marzette, 485 F.2d 207 (8th Cir. 1973). See United States v. Stockwell, 472 F.2d 1186 (9th Cir.), cert. denied, 411 U.S. 948, 93 S.Ct. 1924, 36 L.Ed.2d 409 (1973); United States v. Hopkins, 150 U.S.App.D.C. 307, 464 F.2d 816, 822 (1972); Scott v. United States, 136 U. S.App.D.C. 377, 419 F.2d 264, 269-274 (1969); Baker v. United States, 412 F.2d 1069, 1073 (5th Cir. 1969), cert. denied, 396 U.S. 1018, 90 S.Ct. 583, 24 L.Ed.2d 509 (1970); United States v. Wiley, 278 F.2d 500, 504 (7th Cir. 1960). But cf. United States v. Thompson, 476 F.2d 1196, 1201 (7th Cir.), cert. denied, 414 U.S. 918, 94 S.Ct. 214, 38 L.Ed.2d 154 (1973); United States v. Jansen, 475 F.2d 312, 319 (7th Cir.), cert. denied, 414 U.S. 826, 94 S.Ct. 130, 38 L. Ed.2d 59 (1973); United States v. Lehman, 468 F.2d 93, 109-110 (7th Cir. 1972); Gollaher v. United States, 419 F.2d 520, 529-530 (9th Cir.), cert. denied, 396 U.S. 960, 90 S.Ct. 434, 24 L. Ed.2d 424 (1969).

Before imposing sentence in this case, the trial judge stated:

There is some suggestion that leniency ought to be shown to these young men because of their youth. It has been my experience in life that when we seek leniency, when we seek to be absolved of our sins, we must first admit our sins, and in this case there has been no admission of sins. There has been, on the contrary, a determination to pursue every remedy, and they have had that right, they had that right under the law. It would have made no difference if they had been caught red-handed in the commission of these acts, they would still have had the constitutional right, thank God, under our system to come into this court and say, "We have a jury pass on it."

* * * * * *

These defendants have come into court and stand trial, although they have made no defense whatsoever. They have had no defense whatsoever, and they could make no defense. So they stand not only convicted by a jury before this Court, but under all of the facts in the cases it is so plain that they were guilty that there is no ground for doubt in the world about it.

Seizing upon the foregoing, appellants contend that Judge Duncan enhanced appellants' sentences because they opted to stand trial rather than admit their guilt. If the seasoned trial judge has ever inflicted a heavier penalty upon a defendant because he chose to exercise his constitutional right to trial, our attention has not been directed to a record demonstrating such action. We would be hard pressed to conclude from Judge Duncan's sentencing remarks, considered in entirety, that the above quoted statements support appellants' argument. Nevertheless, since the tenor of the court's observation is not entirely clear, and because the remedy is relatively painless, we believe the trial judge should be afforded an opportunity to fully examine his sentencing procedure and to consider the factors which motivated the sentences imposed.

II.

Louis Hess argues that his sentence was lengthened by the trial judge's personal belief that Louis had lied during the trial.

Prior to sentencing, while discussing "the kind of individuals appellants are," the trial judge said:

I just want to say one more thing about Louis Hess. The others pretty much speak for themselves; neither of them took the stand. Of course, that was their right not to do so and no advantage could be taken of it. Louis Hess took the stand. He is a fine looking man. He said he fell in the bathroom and got the cut on his head. It is probable that if the thing that caused the injury had been the width of a toothpick closer, he would not have been here to stand trial in this case but he would have been in his grave, it came that close to getting him. Bathroom falls do not cause that sort of injury. The Court wasn\'t impressed with it at the time. The Court didn\'t believe it at the time and, of course, the jury didn\'t believe it.

The inference may be warranted that the judge was influenced by his belief that Louis Hess had committed perjury during the trial.² But it is by no means clear that this is an impermissible factor in the sentencing process. At least four circuits have held that the sentencing judge may properly take into consideration a belief that the defendant testified falsely. United States v. Moore, 484 F. 2d 1284, 1287 (4th Cir. 1973) (Craven, J., dissenting); United States v. Cluchette, 465 F.2d 749, 754 (9th Cir. 1972); United States v. Wallace, 418 F.2d 876, 878 (6th Cir. 1969); United States v. Levine, 372 F.2d 70, 74 (7th Cir.), cert. denied, 388 U.S. 916, 87 S.Ct. 2132, 18 L.Ed.2d 1359 (1967). Contra, Scott v. United States, supra, 419 F.2d at 268. See Note, The Influence of the Defendant's Plea On Judicial Determination of Sentence, 66 Yale L.J. 204, 211-17 (1956).

The trial judge is constitutionally entitled to consider a wide variety of information bearing on the character and background of the defendant in fixing sentence. We are not prepared to say that the court's bona fide belief that the defendant committed perjury during the trial cannot also be weighed in the balance. Nevertheless, we approve the cautionary language of Judge Butzner of the Fourth Circuit in United States v. Moore, supra, 484 F.2d at 1288: "Judges must constantly bear in mind that neither they nor jurors are infallible. A verdict of guilty means only that guilt has been proved beyond a reasonable doubt, not that the defendant has lied in maintaining his innocence."

III.

Lastly, appellants urge that the district court was misinformed about their alleged prior criminal activity. They suggest that the record is presently unclear as to the exact source of information considered by the sentencing judge and, for that reason, the case should be remanded for a determination whether inaccurate and prejudicial information was considered.

Prior to the imposition of sentence, the prosecutor presented a lengthy oral statement detailing prior criminal activity of appellants and codefendant Williams. At the outset of the statement, the prosecutor recommended "a substantial and rigorous penalty." Although there may be important distinctions between a prosecutor's report and a presentence report prepared by a probation officer, United States v. Rosner, 485 F. 2d 1213, 1230 (2d Cir. 1973), petition for cert. filed, 42 U.S.L.W. 3407 (U.S. Jan. 7, 1974) (No. 73-1062); United States v. Solomon, 422 F.2d 1110, 1121 (7th Cir.), cert. denied, 399 U.S. 911, 90 S.Ct. 2201, 26 L.Ed.2d 565 (1970); 8A Moore's Federal Practice ¶ 32.043 (1973), for our present purposes, the prosecutor's report in this 1956 proceeding may be compared to a presentence report.

Neither appellants nor their counsel questioned the...