McClain v. United States, 79 Civ. 2438.
Decision Date | 23 November 1981 |
Docket Number | No. 79 Civ. 2438.,79 Civ. 2438. |
Parties | Marvin McCLAIN, Petitioner, v. UNITED STATES of America, Respondent. |
Court | U.S. District Court — Southern District of New York |
The Legal Aid Society Federal Defender Services Unit, New York City, for petitioner; Phylis Skloot Bamberger, New York City, of counsel.
John S. Martin, Jr., U. S. Atty., S. D. N. Y., New York City; for respondent; Benito Romano, Asst. U. S. Atty., New York City, of counsel.
We undertake the resentencing of this defendant who interposed on October 14, 1975 a guilty plea to three counts based on his participation in an armed bank robbery during the course of which he shot a bank guard. He was indicted for bank robbery, 18 U.S.C. § 2113(a) maximum penalty 20 years and/or $5,000 fine and armed bank robbery, 18 U.S.C. § 2113(d) maximum penalty 25 years and/or $10,000 fine. Subsequently another charge was added: the commission of a felony while armed, 18 U.S.C. § 924(c)(1) maximum penalty not less than 1 year nor more than 10 years.
On December 3, 1975 we imposed sentence. While the total maximum prison sentence was 35 years, we imposed a prison sentence of 25 years: 15 years on counts 1 and 2 (merged by law, Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957)) and 10 years on count 3. We erred. McClain v. United States, 643 F.2d 911 (2d Cir. 1981). The United States Circuit Court of Appeals, Second Circuit, vacated the sentence imposed "and the matter is remanded to the district court for sentencing under section 2113(d) only."1
Before the superseding indictment was handed down, defendant was prepared to enter a guilty plea to the two counts of the indictment. He was disinclined to do so, however, when advised of the added charge which carried with it an additional maximum prison sentence of 10 years. After a conference with counsel on both sides and with the defendant present, we assured them that we would not impose a sentence longer than 25 years. It was then that the defendant entered a guilty plea to each of the three counts.
McClain, supra, 643 F.2d at 913-14.
We carefully considered the imposition of an increased sentence, received and examined briefs and heard argument to the fullest extent. After a meticulous review of all the proceedings heretofore had herein and made a part of this disposition, and addressing ourselves exclusively to the sole criminal prohibition now before us (18 U.S.C. § 2113(d) maximum penalty 25 years and/or $10,000 fine), we have concluded that justice due the defendant and community alike makes it imperative that we impose a sentence of twenty years imprisonment. In doing so, we give "credit" (as promised) for the guilty plea,2 and a further reduction by reason of other factors we regard favorable to defendant.
We are only too well aware that the dilemmas of sentencing make it imperative that the judge proceed cautiously and thoroughly. The search is constant for the amount and kind of disciplinary action, in the light of the offender's moral standards and educability that will be needed to restore him to his place in the community with sound attitudes towards it. This court has had more than a nodding acquaintance with persons convicted of crime, the effects of different types of sentences imposed, the utilization of concepts of rehabilitation, the significance of cooperation with the Government, etc.3
Williams v. New York, 337 U.S. 241, 245-47, 69 S.Ct. 1079, 1082-83, 93 L.Ed. 1337 (1949) (emphasis supplied). See also 21 U.S.C. § 850.
Indispensable also is a thorough search for solid evidence pointing to the innate potential of offenders for moral rehabilitation and to determine just what it will require for them to establish and maintain themselves along lines heretofore foreign to them and inimical to their way of life.
Indeed, in the pursuit of our judicial mission, hardly a day passes without the forceful reminder by Mr. Justice Holmes (The Common Law p.1) that "The life of the law has not been logic: it has been experience."
We are compelled to conclude that this defendant has been a determined offender against community well-being.
The bank robbery
According to official data reflected in the pre-sentence report and obtained from the office of the U.S. Attorney and a Special Agent of the FBI, the defendant and one LeRoy McClain (believed not to be related to defendant) on June 23, 1975 at approximately 2:55 P.M. entered the Chase Manhattan Bank at 162 Third Avenue, in the Borough of Manhattan, City of New York. The defendant held a pistol at the head of the bank guard, Seymour Frankel (Frankel). A struggle ensued between the two; McClain fired several shots three of which entered Frankel's neck and chest.
The defendant then directed LeRoy McClain, who also brandished a revolver, to "Get the money." The latter vaulted the bank counter, collected and placed the money ($5,493) in a leather bag they had brought with them. The third accomplice, Mildred Skeete who had remained outside the bank, entered when the shooting occurred; she was handed the bag containing the bank's money; the three then fled.
The defendant and Skeete were arrested by FBI agents on July 3, 1975. She pleaded guilty to 18 U.S.C. § 2113(a) and (d); we sentenced her to six (6) years on December 3, 1975. LeRoy McClain was later apprehended, convicted and sentenced (15 years on December 7, 1976) by Judge Palmieri of this Court.
The bullets rendered Frankel unconscious; his physical condition was critical and to such an extent that he became a quadraplegic; at the Rusk Institute, his serious condition was emphasized by the sad comment: "Just a vegetable!" After we imposed sentence, we were officially informed that Frankel at age 45 died on March 16, 1977 "while hospitalized for the injuries which he sustained at the hands of the defendant."4
At sentencing defendant's counsel advanced the theory that "McClain was shot by the bank guard's gun, and the only question then is when it was done, and he McClain believes it was done before he pulled the trigger."5 The Government promptly responded: "Your Honour, the testimony at trial would have shown that there was a tussle, and the two witnesses who actually saw the shooting would have testified that during the course of the tussle McClain's gun shot, and there is no indication that the guard's gun was shot."
We then commented: ...
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