U.S. v. Core, 75-1717

• Decision Date: 22 March 1976
• Docket Number: No. 75-1717,75-1717
• Citation: 532 F.2d 40
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ulysee CORE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 40

532 F.2d 40

UNITED STATES of America, Plaintiff-Appellee, v. Ulysee CORE, Defendant-Appellant.

No. 75-1717.

United States Court of Appeals Seventh Circuit.

Argued Jan. 9, 1976.

Decided March 22, 1976.

William T. Huyck, Chicago, Ill., for defendant-appellant.

Henry A. Schwarz, U. S. Atty., Joel V. Merkel, Asst. U. S. Atty., E. St. Louis, Ill., for plaintiff-appellee.

Before TONE and BAUER, Circuit Judges, and HOFFMAN, Senior District Judge. ^*

BAUER, Circuit Judge.

The issue presented on this appeal is whether the defendant Ulysee Core was denied a right of allocution ^** under Rule 32(a)(1) of the Federal Rules of Criminal Procedure before being sentenced.

The facts of the case show that the defendant was indicted for possession of stolen mail in 1973 and pleaded guilty to a lesser charge of falsely impersonating the payee of a federal obligation. He received a five year sentence which was suspended in lieu of a five year probationary period. At the time of this original sentence the defendant was given his right of allocution. As the transcript indicates, the trial judge asked of Mr. Core, "Sir, do you have anything you would like to say in your own behalf?" Core replied, "No, sir."

Subsequently, in March of 1975, a petition was filed by the probation officer before the same judge seeking to have Core's probation revoked. The government charged that the defendant was arrested on numerous occasions and that he had been convicted in state court on two charges of deceptive practices and fraudulent use of a credit device. In addition, the government asserted that the defendant failed to report the arrests and failed to make the required periodic visits to his probation officer.

At the revocation hearing the defense called Robert Biby, an agent of the Illinois Bureau of Investigation, who testified about the defendant's work as an informant for the Bureau. He pointed out that the defendant's house had been burned and that Core had been threatened after the Bureau made certain arrests. Biby advised the defendant to move out of the area for his own safety.

The defendant also testified at the probation revocation hearing. He admitted the convictions the government alleged and he testified about his role as an informant and the threats made against him. At the conclusion of the hearing the trial judge revoked probation and reinstated the original five year sentence.

The law is clear that the trial judge must address a defendant personally and ask him if he wishes to make a statement in his own behalf before imposing a sentence. In Green v. United States, 365 U.S. 301, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961) the Supreme Court stated that:

"Trial judges before sentencing should, as a matter of good judicial administration, unambiguously address themselves to the defendant. Hereafter trial judges should leave no room for doubt that the defendant has been issued a personal invitation to speak prior to sentencing."

And Justice Black, in a concurring opinion, states:

"I agree that Federal Criminal Rule 32(a) makes it mandatory for a federal judge before imposing sentence to afford every convicted defendant an opportunity to make, in person and not merely through counsel, a statement in his own behalf presenting any information he wishes in mitigation of punishment and that failure to afford this opportunity to the defendant personally makes a sentence illegal."

This Court has previously remanded a case wherein there was a failure to comply with Rule 32(a)(1). United States v. Van Drunen, 501 F.2d 1393 (7th Cir. 1974).

In the instant case the trial judge complied with Rule 32(a)(1) at the time of the original sentencing. Now, however, the question is presented as to whether Rule 32(a)(1) applies in a probation revocation proceeding. In our opinion the trial judge's comments indicate that he was quite familiar with the history of the case and...