Thomas v. United States
Decision Date | 09 November 1966 |
Docket Number | No. 23349.,23349. |
Court | U.S. Court of Appeals — Fifth Circuit |
Parties | Joseph L. THOMAS, Appellant, v. UNITED STATES of America, Appellee. |
Joseph L. Thomas, pro se.
Edward L. Shaheen, U. S. Atty., Charles E. Welsh, Asst. U. S. Atty., Shreveport, La., for appellee.
Before RIVES, THORNBERRY and AINSWORTH, Circuit Judges.
The question for decision is whether a sentence permitted by statute can be collaterally attacked under 28 U.S.C. § 2255 because prior to imposing sentence the judge advised the defendant that the judge had no doubt whatsoever as to his guilt, and that if he then confessed his guilt the court would take that into account in the length of sentence to be imposed; while, on the other hand, if he persisted in his denial that he participated in the crime, the court would also take that into account. The defendant chose to persist in his claim of innocence, and the court sentenced him to imprisonment for the maximum term permitted by law.
We appreciate the desirability of the utmost freedom of communication, limited only by the Constitution itself, between the court and the defendant at the time of allocution.1 We realize in this case that the sentencing judge, for whom we hold high respect, did not consciously intend to infringe upon the defendant's constitutionally guaranteed right to choose not to be a witness against himself. We assume that, since the defendant persisted in his claim of innocence, the colloquy did not ripen into an actual infringement on his Fifth Amendment rights. Nonetheless, we answer in the affirmative the question presented, and vacate the sentence, thus affording the district judge an opportunity2 to again sentence the defendant.
Thomas and two codefendants were indicted in a single count for bank robbery under 18 U.S.C. 2113(a) and (d). The two codefendants pleaded guilty.3 Thomas pleaded not guilty and was tried to a jury. Thomas testifed at length as a witness in his own behalf.4 The jury returned a verdict of guilty, and this Court affirmed the judgment of conviction entered on that verdict.5 The transcript of the proceedings at the time of sentence reads as follows:
"APPEARANCES:
T. FITZHUGH WILSON United States Attorney on behalf of the Government. JAMES W. FINLEY, Attorney for Defendant.
The sentencing of Thomas was the awesome responsibility of the district court alone. Since the sentence did not exceed the maximum limit set by statute, ordinarily it would not be subject to review by this Court.6 However, in very exceptional circumstances where an abuse of discretion clearly appears, Section 2255 may be employed to vacate the sentence. The Supreme Court has by-passed a closely related question, noting that "Whether § 2255 relief would be available if a violation of Rule 32(a) occurred in the context of other aggravating circumstances is a question we * * * do not consider." Hill v. United States, 1962, 368 U.S. 424, 429, 82 S.Ct. 468, 472, 7 L.Ed.2d 417. The Fourth Circuit in United States v. Martell, 1964, 335 F.2d 764, 766, speaking through Chief Judge Sobeloff, said:
In the case of United States v. Wiley to which Judge Sobeloff refers, Judge Schnackenberg concluded the opinion of the Seventh Circuit as follows:
278 F.2d 500, 504. See also the concurring opinion of Judge Duffy on the same page.
The language of Judge Weinfeld in United States v. Tateo, S.D.N.Y.1963, 214 F.Supp. 560, 567, is peculiarly apropos:
8
It must be remembered that, at the time of his allocution, Thomas had not been finally and irrevocably adjudged guilty. Still open to him were the processes of motion for new trial (including the opportunity to discover new evidence), appeal, petition for certiorari, and collateral attack. Indeed, appeal is now an integral part of the trial system for finally adjudicating the guilt or innocence of a defendant.9
The two "ifs" which the district court presented to Thomas10 placed him in a terrible dilemma. If he chose the first "if," he would elect to forego all of the above-noted post-conviction remedies and to confess to the crime of perjury, however remote his prosecution for perjury might seem. Moreover, he would abandon the right guaranteed by the Fifth Amendment to choose not to be a witness against himself, not only as to the crime of which he had been convicted, but also as to the crime of perjury. His choice of the second "if" was made after the warning that the sentence to be imposed would be for a longer term than would be imposed if he confessed. From the record, it is clear that an ultimatum of a type which we cannot ignore or approve confronted Thomas. Truly, the district court put Thomas "between the devil and the deep blue sea."
Since Thomas chose the second "if," he did not in fact abandon his Fifth Amendment rights, and he retained unimpaired his post conviction remedies. It may then be argued that he came through his dilemma unscathed. True, he received the maximum sentence, but perhaps the district court already had that in mind, and was simply giving Thomas a last minute chance to repent and thereby to secure a reduction of that sentence.
Knowing his complete rectitude of mind (which we confidently assume), the District Judge may have decided that the sentence was not imposed in violation of the Constitution or laws of the United States.11 Under 28 U.S.C. § 2255, the court is not limited, however, to constitutional or statutory violations. The court which imposed the sentence can vacate, set aside, or correct the sentence "upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States * * * or is otherwise subject to collateral attack * * *." (Emphasis added.) As said by Judge Friendly for the Second Circuit in Kyle v. United States, 1961, 297 F.2d 507, 511, n. 1:
"Section 2255 is not...
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