U.S. v. Derrick
| Decision Date | 13 June 1975 |
| Docket Number | 74-1924,Nos. 74-1923,s. 74-1923 |
| Citation | 519 F.2d 1 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Hal Clemit DERRICK, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Burnett Wendell FINCHUM, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
John F. Dugger, Morristown, Tenn., Ben W. Hooper, II, Newport, Tenn., for defendant-appellant Derrick.
Ben W. Hooper, II, Campbell & Hooper, Newport, Tenn., for defendant-appellant Finchum.
John L. Bowers, U. S. Atty., Knoxville, Tenn., Robert E. Simpson, Asst. U. S. Atty., for plaintiff-appellee.
Before EDWARDS and ENGEL, Circuit Judges and DeMASCIO, District Judge. *
Appellants Derrick and Finchum, with four others, were charged in a six count indictment with conspiring to defraud the United States by manufacturing non-tax paid distilled spirits, and related offenses, all arising out of an extensive bootlegging operation in Tennessee. The original trial in the district court resulted in a hung jury, during which the trial judge directed a verdict in favor of the defendants on Count 5 of the indictment. In the second trial, Finchum and Derrick were acquitted of Count 2, but found guilty on Counts 1, 3, 4 and 6.
Derrick was given consecutive sentences of five years on Count 1 and one year on Count 3. He was also fined $10,000 and given probation on Counts 4 and 6. Finchum was given concurrent sentences of eighteen months on each of the four counts.
Derrick and Finchum raise five grounds for appeal, urging that (1) the trial judge made certain improper statements before the jury concerning the quantum of proof of defendants' guilt; (2) defendants were denied due process of law when the government failed to furnish evidence which defendants claim would have shown that certain plastic jugs purchased by Derrick were not involved in the still operation in question, (3) the court erroneously submitted an overt act to the jury, (4) the evidence was insufficient to support guilty verdicts as to Derrick on Counts 1 and 6, and (5) the trial judge, in sentencing defendants, erred in taking into consideration the fact that defendants elected to stand trial rather than to plead guilty.
Our review of the record and briefs convinces us that there is no merit in any of the foregoing grounds alleged except number (5) as it relates to the sentence of Derrick, and we discuss here only that issue.
At the time he sentenced Derrick, Finchum and the two other defendants who had been convicted with them, the trial judge was plainly disgruntled that they should have demanded jury trial in view of the overwhelming evidence of guilt which the trial produced. The trial record fully supports the trial judge's view of the proof.
The following colloquy took place at the sentencing of the co-defendant, Harold Eugene Butler:
In the subsequent sentencing of defendant Derrick, the following took place:
The district court also stated to defendant Derrick's attorney "THE COURT: Well, all people have a right to go to trial if they choose to go to trail, but you are old enough to not be a member of this new school who tells them all, apparently, whether they are guilty or not, just go to trial, go to trial.
I don't know who teaches that. I have had lawyers to come in this court and say I have asked them when the client tells you that he is guilty, you put him to trial. He said yes. And I said, 'Where did you get that philosophy?' He said 'They teach it in the schools, law schools.'
You are too old to be in that school, aren't you? You were formerly assistant district attorney here."
While ordinarily a sentence within the statutory limits is not subject to appellate modification, see United States v. Dudley, 436 F.2d 1057 (6th Cir. 1971), "(t)he process of sentencing an offender, however, is not wholly immunized from judicial review solely because the sentence imposed falls somewhere within the statutory limits". United States v. Daniels, 446 F.2d 967, 969 (6th Cir. 1971). In that case, Judge Celebrezze noted the instances in which appellate action had been recognized:
. . . we and other courts have approved of remanding for resentencing in cases where it appeared that a trial judge had improperly considered certain factors in sentencing, see United States v. Latimer, 415 F.2d 1288 (6th Cir. 1969); United States v. Stubblefield, 408 F.2d 309 (6th Cir. 1969); Marano v. United States, 374 F.2d 583 (1st Cir. 1967); improperly relied upon certain false information, Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948); Smith v. United States, 223 F.2d 750 (5th Cir. 1955), or grossly abused his discretion by failing to evaluate the relevant information before him with due regard for the factors appropriate to sentencing. Yates v. United States, 356 U.S. 363, 366-367, 78 S.Ct. 766, 2 L.Ed.2d 837 (1958); United States v. McKinney, 427 F.2d 449, 455 (6th Cir. 1970); United States v. West Coast News Co., 357 F.2d 855, 865 (6th Cir. 1966) reversed on other grounds sub nom., Aday v. United States, 388 U.S. 447, 87 S.Ct. 2095, 18 L.Ed.2d 1309 (1967); United States v. Moody, 371 F.2d 688, 693-94 (6th Cir. 1967); United States v. Wiley, 278 F.2d 500, 503 (7th Cir. 1960); see Livers v. United States, 185 F.2d 807, 809 (6th Cir. 1950).
See also United States v. Paul Phillips, 510 F.2d 134 , in which this court vacated and remanded for resentencing after finding that improper considerations were used in determining sentence.
While we do not find the exact issue ever to have been raised in this court before, we agree with the Fifth Circuit that it is improper for a district judge to penalize a defendant for exercising his constitutional right to plead not guilty and go to trial, no matter how overwhelming the evidence of his guilt. Baker v. United States, 412 F.2d 1069 (5th Cir. 1969). And, as a general rule, we agree with the holding in United States v. Marzette...
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