Marano v. United States, 6843.
| Decision Date | 23 March 1967 |
| Docket Number | No. 6843.,6843. |
| Citation | 374 F.2d 583 |
| Parties | Pasquale J. MARANO, Jr., Defendant, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — First Circuit |
Joseph J. Balliro, Boston, Mass., for appellant.
John Wall, Asst. U. S. Atty., with whom Paul F. Markham, U. S. Atty., was on brief, for appellee.
Before ALDRICH, Chief Judge, McENTEE and COFFIN. Circuit Judges.
In August 1964 one Kitchell and a number of others, excluding appellant Marano, were indicted for transporting and conspiring to transport stolen goods in interstate commerce. Marano was indicted for receiving and conspiring to receive the goods. All defendants were tried, jointly, to a jury. The court ordered one defendant acquitted, and acquitted Marano on the conspiracy count; in all other matters all defendants were convicted. On appeal we affirmed as to Kitchell, but ordered a new trial for the remaining defendants. Kitchell v. United States, 1 Cir., 1966, 354 F.2d 715, cert. den. 384 U.S. 1011, 86 S.Ct. 1970, 16 L.Ed.2d 1032. On the second trial Marano was again convicted. The only point on this appeal which warrants consideration is the fact that after the first trial he was given a three-year sentence, and after the second a five-year sentence.
As we have recently held, a defendant's right of appeal must be unfettered. Worcester v. Commissioner of Internal Revenue, 1 Cir., 1966, 370 F.2d 713. So far as sentence is concerned, this principle cannot be restricted to those situations in which a defendant, in deciding whether to appeal, must contemplate the certainty of an increased sentence if he obtains a new trial and is convicted again. Not only must he not be faced with such certainty, Worcester v. Commissioner of Internal Revenue, supra, he likewise should not have to fear even the possibility that his exercise of his right to appeal will result in the imposition of a direct penalty for so doing. Accord, Patton v. State of North Carolina, W.D.N.Car., 1966, 256 F.Supp. 225, 80 Harv.L.Rev. 891. But cf. Hayes v. United States, 1957, 102 U.S.App.D.C. 1, 249 F.2d 516, 517, cert. den. 356 U.S. 914, 78 S.Ct. 672, 2 L.Ed.2d 586. But, equally, the judge should not be permitted to change his mind by deciding that he had been too lenient the first time, as was suggested here during oral argument, or, if a new judge, by having a different approach towards sentencing. We do not approve the contrary decision in Shear v. Boles, N.D.W.Va., 2/3/67, 263 F.Supp. 855, cited to us by the government.1 Such possibilities, if they had to be recognized, might well be substantial deterrents to a decision to appeal.2
In the present case the second trial and sentencing were before and by the same judge as the first. The court expressly disclaimed that it was penalizing the defendant, and gave two reasons for increasing the sentence.
"Mr. Marano\'s sentence was based on evaluation of the presentence report and the additional testimony which came out at the trial."
Passing the first reason for the moment, we do not consider the second to be a proper one. The danger that the government may succeed in obtaining more damaging evidence on a retrial is just as real as the danger, for example, that the judge on his own may wish to reconsider, unfavorably to the defendant, the factors which led to his original disposition. We think that there must be repose not merely as to the severity of the court's view, but as to the severity of the crime. Cf. Green v. United States, 1957, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed. 2d 199 ().
As to the new presentence report, we would recognize here an exception to the general principle. We do not...
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United States v. Ellenbogen
...(2 Cir. 1966). Since that decision, other courts have considered the point, but without uniformity of result. Compare Marano v. United States, 374 F.2d 583 (1 Cir.1967) and Patton v. State of North Carolina, 381 F.2d 636 (4 Cir.1967) (increase illegal) with United States ex rel. Starner v. ......
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North Carolina v. Pearce Simpson v. Rice
...with the basic problem here presented. In addition to the Fourth and Fifth Circuit decisions here under review, see Marano v. United States, 374 F.2d 583 (C.A.1st Cir.); United States v. Coke, 404 F.2d 836 (C.A.2d Cir.); United States ex rel. Starner v. Russell, 378 F.2d 808 (C.A.3d Cir.); ......
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Michigan v. Payne 8212 1005
...Circuits had held that enhanced sentences after re-conviction could be justified only in limited circumstances. See Marano v. United States, 374 F.2d 583 (CA1 1967); United States v. Coke, 404 F.2d 836 (CA2 1968) (en banc); Patton v. North Carolina, 381 F.2d 636 (CA4 1967); Simpson v. Rice,......
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Patton v. State of North Carolina
...must be repose not merely as to the severity of the court\'s view, but as to the severity of the crime."12a Marano v. United States, 374 F.2d 583, 585 (1st Cir. Mar. 23, 1967). Contra, Starner v. Russell, 378 F.2d 808 (3rd Cir. May 25, An analogy may be drawn between the solution adopted by......