U.S. v. Donner, s. 75--1361--1363

• Court: U.S. Court of Appeals — Seventh Circuit
• Writing for the Court: Before CLARK; CLARK
• Citation: U.S. v. Donner, 528 F.2d 276 (7th Cir. 1976)
• Decision Date: 06 February 1976
• Docket Number: Nos. 75--1361--1363,s. 75--1361--1363
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Michael DONNER et al., Defendants-Appellants.

Page 276

528 F.2d 276

UNITED STATES of America, Plaintiff-Appellee, v. John Michael DONNER et al., Defendants-Appellants.

Nos. 75--1361--1363.

United States Court of Appeals Seventh Circuit.

Argued June 11, 1975.

Decided Dec. 24, 1975.

As Amended Feb. 6, 1976.

Thomas P. Sullivan, Peter A. Flynn, Chicago, Ill., David J. Colman, Bloomington, Ind., Lawrence J. Suffredin, Jr., Chicago, Ill., for defendants-appellants.

John E. Hirschman, U.S. Atty., Indianapolis, Ind., for plaintiff-appellee.

Before CLARK, Associate Justice, ^* STEVENS, Circuit Justice, ^** and GRANT, ^*** Senior District Judge.

CLARK, Associate Justice.

These appeals, seeking reductions in sentence under Rule 35 of the Federal Rules of Criminal Procedure, involve three of the eight defendants convicted of vandalizing the Marion County, Indiana, headquarters of the Selective Service System.

At those offices on October 31, 1969, some 135,000 registration cards were scattered, file drawers were pulled open, their contents strewn about, and numerous documents were torn and mutilated. Some classification records kept in large permanent ledgers were torn apart completely, while others were fanned open and sprayed with black paint. All of this destruction amounted to approximately $30,000 in damage that required six months to repair. Two weeks after the incident, the eight defendants held a press conference in Washington, D.C., to reveal themselves as the parties responsible for the vandalism.

The eight held a second press conference on November 20, 1969, in Indianapolis, Indiana. Some forty persons gathered for this second conference, half of whom were from the news media. Appellant Paul J. Mack acted, with the acquiesence of the others, as presiding officer. He introduced each of the eight by name and home address and identified them collectively as 'The Beaver 55.'

After completing the introductions, Mack read a written statement which he said 'we have prepared' and which related, inter alia:

We claim responsibility for the actions against the Selective Service Offices in Indianapolis, Indiana, on October 31. . . . We have done this because we are not blinded by the lies that corporations attempt to pawn off on us. * * * We have done this because we will no longer tolerate this madness. We will no longer tolerate any form of conscription to kill. We will no longer tolerate the Christians' 'just war', the liberals' cries for 'honorable peace.' We put our hope in life and our lives in hope and will continue to actively resist any system which obstructs those goals.

Other statements made by the group included:

We are perfectly prepared to pay, or serve our time in jail, because we expect that that is what will happen to us. * * * (I)t is not a matter or guilt or innocence, it's a matter of . . . responsibility. We claim that we are responsible for our actions.

Involvement by American people who are concerned has to go further than marching. . . . (W)e have found that definitely more extreme measures are going to have to be taken and that is why we have taken this action.

Subsequently, the eight were indicted, ¹ tried before a jury, and found guilty on all four counts of the indictment. On appeal, the convictions on three counts were affirmed, but the convictions on one count were reversed because it could not be said that the jury did not convict on a combination of words protected by the First Amendment. These three appellants had prior to appeal each received concurrent sentences of four years on each of three counts and a fine of $5,000 on a fourth.

Following the reversal of the convictions on one count, five of the defendants, including these three appellants, made applications for reduction of sentence under Rule 35. After a two-day hearing, the trial judge reduced the combined sentence of each appellant here by one year, leaving each with a term of three years. Two of the other defendants, however, were granted probation, one because he was the sole support of his wife and two children, and the other because she was induced by her husband to join in the acts of vandalism.

Appellants challenge their sentence to prison. We take up the claims of error of each appellant, seriatim.

1. Paul Joseph Mack:

Among the points raised by Mack is one which stresses that, at the time of the commission of the offense charged, he was only eighteen years of age. His sentencing would, therefore, come under the provisions of the Youth Corrections Act, 18 U.S.C. § 5005 et seq. Section 5010(d) of the Act requires that the sentencing court 'find that the youth offender will not benefit from treatment under subsection (b) or (c)' before the court can sentence under any other penalty provision. In Dorszynski v. United States,418 U.S. 424, 94 S.Ct. 3042, 41 L.Ed.2d 855 (1974), the Supreme Court held that an express finding under § 5010(d) was necessary 'to insure that the sentencing judge exercised his discretion in choosing not to commit a youth offender to treatment under the Act.' Id. at 443, 94 S.Ct. at 3052. Since the required finding was not entered 'on the record,' we, therefore, must vacate appellant's sentence and remand his case to the district court for resentencing.

2. John Michael Donner:

At the time of his conviction, Donner was 22 years of age and, therefore, not within the commands of Dorszynski v. United States, supra. He previously pleaded guilty to a state charge in Michigan arising out of the destruction of records of Dow Chemical Company, an act that was virtually contemporaneous with the offense charged here. Following his conviction in this case, he served his term for the Dow Chemical vandalism, was paroled, and returned for a period to live with his parents. Thereafter he taught school in northern California, worked for a printer in Oakland, and ultimately became involved in the Divine Light Mission (DLM). In early 1973, he joined an 'ashram' of that group, began a quasi-monasic life, and took a one-year vow of poverty, chastity, and obedience as a member of the DLM. Later, in April 1974, he made those vows permanent. Since July 1974, he has been the National Executive Director of the DLM. ²

Donner claims to have undergone a strong and thorough change since his conviction as a result of his association with DLM. He expresses regret for the acts which led to his convictions in both Indiana and Michigan. At his Rule 35 hearing, he confessed that the acts for which he was convicted were wrong, unjustified, and neither would nor ought to be repeated. Other testimony at the hearing supported Donner's testimony and several witnesses characterized him as a person who had undergone personal rehabilitation and was now making a positive and constructive contribution to society.

Donner lists several grounds in support of his position that the trial judge clearly abused his discretion in imposing the sentence: (1) The judge 'flatly refused' to state any reasons for his denial of probation. It is well established, however, that generally a trial judge is under no obligation to give reasons for his sentencing decision, although it might well be the better practice for him to do so. First, the Federal Rules of Criminal Procedure do not require the statement of any reasons; and, further, it appears significant to us that while the new rules do require 'reasons stated on the record' in connection with the refusal of the judge to order a presentence report under Rule 32(c)(1), a similar requirement is not present as to sentencing. Cf. United States V. Rosciano, 499 F.2d 166 (7th Cir. 1974). Also see McGee v. United States, 462 F.2d 243, 247 (2d Cir. 1972). Moreover, it must be remembered that this is an appeal from the refusal to grant relief under Rule 35 rather than a direct appeal from the original sentence. On the direct appeal no relief was granted on the sentences there imposed, and a Rule 35 application would, therefore, have to carry a heavier burden of proof as well as be tested by a narrower standard of review.

(2) The remainder of Donner's challenges assert that the trial judge clearly abused his discretion in refusing him probation in that he ignored the uncontradicted evidence, failed to apply standards set out in 18 U.S.C. § 3651, and failed to give Donner the individualized treatment required on Rule 35 applications.

At the outset it is well to recall what this court recently said in Cardi v. United States, 519 F.2d 309, decided July 10, 1975:

A district judge has wide discretion, within the statutory limits, in imposing sentence and the exercise of that discretion will not be disturbed on appeal except on a plan showing of abuse. At 311.

The record shows that the trial judge granted a hearing on the Rule 35 application and heard the evidence offered by the appellants for two days which included the testimony of the witnesses, the pre-sentence report of 1970 and the exhibits attached to the pre-sentence report. The court emphasized that he would give separate consideration to the claims of each of the appellants and the fact that he granted probation to two of the five attests to this fact. He also took an active part in questioning the witnesses and entered an order reducing the sentence of each appellant by one year.

It is true that the trial judge did not give any reasons for his actions, but it seems clear that even though Donner's behavior subsequent to his convictions had materially changed the court may have concluded that some punishment was necessary in light of the gravity of the offense and entered a three-year sentence as to each appellant as a consequence.

We...