McGee v. United States

• Decision Date: 18 April 1972
• Docket Number: No. 484,Docket 71-1840.,484
• Citation: 462 F.2d 243
• Parties: Vincent Francis McGEE, Jr., Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Second Circuit

462 F.2d 243 (1972)

Vincent Francis McGEE, Jr., Appellant, v. UNITED STATES of America, Appellee.

No. 484, Docket 71-1840.

United States Court of Appeals, Second Circuit.

Argued March 6, 1972.

Decided April 18, 1972.

Alan H. Levine, New York City (Leon Friedman, and New York Civil Liberties Union, New York City, of counsel), for appellant.

Peter Truebner, Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty. for the S. D. of N. Y., and John W. Nields, Jr., Asst. U. S. Atty., of counsel), for appellee.

Before FRIENDLY, Chief Judge, TIMBERS, Circuit Judge, and JAMESON, District Judge.^*

FRIENDLY, Chief Judge:

This appeal is an epilogue to the proceedings detailed in the previous opinions of this court and the Supreme Court affirming Vincent Francis McGee's conviction on four counts of violating the Selective Service Act of 1967, 50 U.S.C. App. § 451 et seq. These were refusing to submit to induction (Count 1), failing to report for a physical examination (Count 2), failing to possess a valid notice of classification (Count 3), and failing to return a current information questionnaire to his local board (Count 4). See 426 F.2d 691 (2 Cir. 1970), aff'd, 402 U.S. 479, 91 S.Ct. 1565, 29 L.Ed.2d 47 (1971). It suffices here to say that this court held and the Supreme Court agreed that although McGee had presented a valid claim to his local board for exemption as a conscientious objector, his conviction on Count 1 had to be affirmed because of his failure to appeal the local board's 1-A classification; that in consequence the convictions on Counts 2 and 3 should be affirmed without any need to consider what the result would be if the 1-A classification were improper; and that "in light of the concurrent sentences of two years imprisonment there is no need to consider the conviction under Count 4 under the circumstances here presented," 426 F.2d at 700.

Before making the motion giving rise to this appeal, McGee, who had remained at liberty during the appellate proceedings, moved pursuant to 28 U.S.C. § 2255 to vacate the conviction and sentence under Count 1, charging refusal to submit to induction, on the ground that he had been unlawfully declared delinquent and accelerated for induction. See Gutknecht v. United States, 396 U.S. 295, 90 S.Ct. 506, 24 L.Ed.2d 532 (1970). The district court granted the motion. McGee then moved, on June 29, 1971, purportedly pursuant to 28 U.S.C. §§ 1651 and 2255, to set aside the judgments and sentences under Counts 2, 3 and 4 or, in the alternative, for a new trial on these counts under F.R.Cr.P. 33 or, in the alternative, to suspend or reduce his sentence under these counts and permit him to serve his sentence on probation, F.R.Cr.P. 35. The application was supported by an impressive collection of letters from officials of Union Theological Seminary where McGee had studied, another distinguished educator, business men with whom McGee had worked as executive director of Business Executives Move for Vietnam Peace (BEM), a United States Senator, and a Representative. All attested to McGee's deep personal sincerity, his high character and principles, and his determination to work in an orderly and constructive manner to end this country's involvement in Vietnam. The judge entertained the motion but denied it on July 13, 1971, in a brief ruling set forth in the margin.¹ McGee had begun serving his sentence on July 6. On this appeal only the denial of the motion to reduce sentence is pressed. McGee contends that this unexplained refusal was an abuse of discretion.

We have only recently reaffirmed that "a sentencing judge has very broad discretion in imposing any sentence within the statutory limits . ." United States v. Sweig, 454 F.2d 181, 183-184 (2 Cir. 1972). See also Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958); United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972). We have no intention of deviating from this general principle. Appellate courts, though, have gone so far as to scrutinize the information considered by the trial judge in the sentencing process. In Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 1255, 92 L.Ed. 1690 (1948), the Court deemed unconstitutional a sentencing proceeding in which a "prisoner was sentenced on the basis of assumptions concerning his criminal record which were materially untrue." See also United States v. Malcolm, 432 F.2d 809, 815-816 (2 Cir. 1970). Similarly, the Court has only recently affirmed an appellate order vacating a sentence "founded at least in part upon misinformation of constitutional magnitude" — specifically, two prior convictions unconstitutional in light of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). United States v. Tucker, supra, 404 U.S. at 447, 92 S.Ct. at 589. Implicit in these decisions is the proposition that a trial judge, in exercising his sentencing discretion, may not rely significantly upon false evidence of prior convictions or upon evidence of prior convictions which were illegally obtained.

We believe that this case presents a problem not without some analogy. We deal here with a conviction on four counts which were prosecuted in one trial and upon which identical concurrent sentences were simultaneously imposed. However, the conviction under one of those counts has now been determined to have been unlawful. The trial judge's original sentencing determination with respect to counts 2 through 4 could have been influenced by appellant's conviction under count 1 — just as evidence of a prior conviction might influence a sentencing judge on a subsequent one.² If such were in fact the case, appellant's initial sentences under counts 2 through 4 would require reconsideration.

In Burke and Tucker, it was plain from the record that "the sentencing judge gave specific consideration to the defendant's previous convictions before imposing sentence upon him." United States v. Tucker, supra, at 447, 92 S.Ct. at 592 (footnote omitted). See also Townsend v. Burke, supra, 334 U.S. at 739-740, 68 S.Ct. at 1252. Here it is impossible to determine from the judge's remarks in imposing sentence, set out in the margin,³ whether he was at least in part influenced by the conviction under count 1 in setting sentence on counts 2 through 4. However, certain factors indicate that this is quite probable. The trial judge imposed concurrent sentences of equal length, two years, on all four counts. Yet an examination of the prior opinions in this case will show that count 1 was always regarded as the most serious of the four. See 426 F.2d at 705 (dissenting opinion of Feinberg, J.). Indeed, the affidavit in support of the motion for a reduction of sentence alleged that "it has apparently been government policy not to prosecute registrants for the selective service violations alleged in Counts II, III, and IV in the absence of a refusal of induction." Counsel supports this, at least in part, with a citation to an official publication of the Selective Service System, Legal Aspects of Selective Service 47 (1969), which states that, in the absence of an unlawful refusal to register or to submit to induction, other offenses are usually processed administratively and do not become the basis for criminal prosecution. The affidavit of the Assistant United States Attorney did not effectively deny this, saying only that he "knows of no such policy."⁴ In sum, absent some explicit indication to the contrary by the trial judge at the time of sentencing, it is not unreasonable to conclude that the initial sentencing decision with respect to counts 2 through 4 may have been to some extent influenced by the conviction on the far more serious count 1.⁵ Cf. United States v. Barash, 365 F.2d 395, 403 (2 Cir. 1966).

When the invalidity of the conviction on one count which may have influenced the sentence becomes apparent on an appeal, whether on direct or collateral attack, the proper course is usually to vacate the sentences and remand for resentencing on the valid counts without consideration of the invalid one. Compare United States v. Tucker, supra, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592. Here, however, because of the Rule 35 motion, the trial judge has already had at least an opportunity to reconsider the sentences on counts 2 through 4 while aware of the invalidity of the conviction under count 1, and the Government says this should end the matter. But we think that, in the particular circumstances here presented, some explanation was needed for allowing the original sentences on the valid counts to stand unaltered. Courts, which have so rightly imposed a requirement of the statement of reasons on local draft boards, e. g., United States v. Lenhard, 437 F.2d 936 (2 Cir. 1970); United States v. Haughton, 413 F.2d 736 (9 Cir. 1969); United States v. Andrews, 446 F.2d 1086 (10 Cir. 1971) (and cases cited therein), and on administrative agencies, Environmental Defense Fund, Inc. v. Hardin, 138 U.S.App.D.C. 391, 428 F.2d 1093, 1099-1100 (1970), are not exempt from this duty in appropriate circumstances. True, as we noted at the outset, sentencing is an area in which the trial judge has "very broad discretion," and he is generally under no obligation to give reasons for his sentencing decisions. Compare, e. g., Gollaher v. United States, 419 F.2d 520, 530 (9 Cir.), cert. denied, 396 U.S. 960, 90 S.Ct. 434, 24 L.Ed.2d 424 (1969). In this particular case, though, we have determined that it is not improbable that the initial sentencing process with respect to the valid counts was to some extent affected by the conviction on the far more serious count 1, which was illegally brought. To purge this possible taint after the fact on a Rule 35 motion, we believe the trial judge should either have reduced the sentences on counts 2 through 4 or have given at least a summary explanation of his reasons for declining to do so,⁶cf. North Carolina v. Pearce, 395 U.S. 711,...