U.S. v. Garcia, s. 75-1759
| Citation | 544 F.2d 681 |
| Decision Date | 05 November 1976 |
| Docket Number | 75-1760,Nos. 75-1759,s. 75-1759 |
| Parties | UNITED STATES of America v. Pio GARCIA, Appellant. UNITED STATES of America v. Wilfredo ANTONMARCHI, Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (3rd Circuit) |
Roger A. Lowenstein, Federal Public Defender for the Dist. of N. J., Newark, N. J., for appellants.
Jonathan L. Goldstein, U. S. Atty., James A. Plaisted, Asst. U. S. Atty., Newark, N. J. (on the brief), for appellee.
Before SEITZ, Chief Judge, and ALDISERT and GIBBONS, Circuit Judges.
The major question presented by these consolidated appeals from judgments of sentence on pleas of guilty is whether the sentencing procedures trenched upon appellants' Fifth Amendment right against self-incrimination. We conclude that the procedures did and, accordingly, we vacate the sentences appealed from and remand for resentencing on the pleas previously entered.
As part of a plea agreement with the United States Attorney, Wilfredo Antonmarchi and Pio Garcia each pleaded guilty under 21 U.S.C. § 841(a)(1) to one count of possessing with intent to distribute cocaine. In return, the remaining counts against them were dismissed. In making its judgment of sentence on the guilty pleas, the court announced that it could not extend "clemency and lenity" to Antonmarchi, or be "lenient and merciful" to Garcia, because neither man had assisted in law enforcement investigations of illicit narcotic traffic. Garcia was sentenced to eight years imprisonment with a 3-year special parole term, and Antonmarchi was sentenced to ten years imprisonment with the same special parole term.
On collision course in these appeals run two venerated principles of jurisprudence. The first is that unique jewel in the showcase of American liberty, the Fifth Amendment, commanding that one may not be compelled to testify against oneself; the second is the principle that a court may properly invoke its power to grant lenity to those who, having admitted transgressions against the sovereign, thereafter assist the sovereign in improving social order and the public welfare.
It is not open to serious question that the sentencing court strove to vindicate the second principle. Indeed, the court expressly announced its intention to reward those whose actions would serve the public order. In Garcia's case, after receiving negative replies to the question whether Garcia had been "helpful at all in terms of revealing his source of supply of cocaine," the court stated . . . The Court would like to be lenient and merciful. I don't understand, however, how one convicted of selling dangerous drugs can stand before a sentencing judge and on the one hand ask for leniency and compassion, clemency and consideration and, on the other hand, tell the Court there isn't any chance in heaven that he is going to help this society to rid itself of this cancerous purveying of drugs.
It is the view of this Court that this Court would not be faithful to the public trust which it holds were it not to take into consideration what amounts to your absolute refusal to be of the slightest assistance to the proper authorities in stamping this problem out.
You participated in it. You were caught and to this day, in the view of this Court, you have shown not the slightest degree of remorse.
Accordingly, it is adjudged that the defendant is hereby committed to the custody of the Attorney General or his authorized representative for imprisonment for a term of eight years to be followed thereafter by a special parole term of two years.
Counselor, you may apprise your client of Rule 35 and the possibility of reduction of sentence.
You may also apprise him that this Court will carefully consider in the petition for any such reduction of sentence any showing of good faith which he may make towards the society from whom he now asks for clemency and favor.
Similar statements were made by the court in Antonmarchi's case:
The defendant stands before the Court once. Every day of his life he is out there in the community and apparently dealing in large quantities of drugs. I can't disregard that. I can't disregard for the sake of one moment when he stands before the Court showing that kind of contrition the fact that he makes no good act of contrition in terms of helping society rid itself of this kind of drug problem.
The Court would dearly wish to extend clemency and lenity to this defendant. It lies within your power, Mr. Antonmarchi, to make it possible for me to do so and yet keep faith with the public interest which I'm sworn to serve as well.
. . . But given what is in this probation report and the fact that there is no attempt made here to controvert what is in there and given your attitude towards refusal of any kind to be of any assistance to law enforcement authorities in cleaning up this problem, the Court has no choice other than to pronounce sentence of a substantial term of incarceration.
Accordingly, it is adjudged that the defendant is hereby committed to the custody of the Attorney General or his authorized representative for a period of ten years to be followed by a special parole term of three years.
. . .ing
You (have) 120 days to make a motion to reduce sentence.
. . .ave
I will be thinking in terms of some showing for (Antonmarchi) to make to me as to why he is entitled to that kind of consideration. Do you understand me, Mr. Antonmarchi?
Sentencing Transcript at 21-23.
We are left to determine whether the principle against compelled self-incrimination was contravened by the weight accorded defendants' failure to cooperate with government authorities.
Before addressing Fifth Amendment concerns, we brush aside any implications of due process deprivation such as those presented in Poteet v. Fauver, 517 F.2d 393 (3d Cir. 1975). No suggestion is made here that the court included in the sentences an increment for an offense other than that to which Antonmarchi and Garcia pleaded guilty. Rather, the court concentrated only on the possibility of reducing sentence for the offenses to which pleas were entered.
We similarly dispose of the contention that the appellants were denied due process because the pre-sentence report purportedly contained rumors and hearsay allegations concerning unrelated criminal conduct. Due process, in our view, does not preclude reliance on hearsay in such a report. Compare Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949), with United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972). Moreover, Congress has expressly provided that there be no limitation on the information to be considered by a sentencing court:
18 U.S.C. § 3577. Use of information for sentencing
No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.
Added Pub.L. 91-452, Title X, § 1001(a), Oct. 15, 1970, 84 Stat. 951.
Although enacted in the same legislative package as statutes dealing with dangerous special offenders, 18 U.S.C. §§ 3573 and 3576, we find no explicit limitation in the statutory language nor do we glean a congressional intention to restrict the provisions of § 3577 to special offender cases. Buttressing our conclusion is the enactment of a statute creating a repository for all criminal conviction records, 18 U.S.C. § 3578, adopted on the same date as part of the same legislative package.
Notwithstanding the presence of some disputed matter in the pre-sentence reports, we find no error in the sentencing court's use of these reports. The court specifically credited defendant Garcia's version of the disputed material, assuring counsel that it would not rely upon a challenged allegation. Counsel accepted this assurance. Antonmarchi was represented by the same attorney. 1 In Antonmarchi's case, the court offered counsel the opportunity to have an evidentiary hearing on challenged information, and ordered an adjournment even after counsel declined the opportunity. After court resumed, counsel again announced that he did not desire an evidentiary hearing. Under these circumstances, any objection to rumor or hearsay in the pre-sentence reports must be deemed to have been waived by Antonmarchi. Similarly, under these circumstances, we do not consider what procedural safeguards, if any, must be afforded before allegations of criminal activity contained in the pre-sentence report may be relied upon in sentencing. See United States v. Weston, 448 F.2d 626 (9th Cir. 1971), cert. denied, 404 U.S. 1061, 92...
To continue reading
Request your trial
-
U.S. v. Lemon
... ... All we know about the Black Hebrews is what the Government has shown us and what we can read in the newspapers, that it is a religious cult and that there are certainly ... United States v. Garcia, 544 F.2d 681, 685 (3d Cir.1976); 44 or for successfully appealing his conviction, North ... ...
-
U.S. v. Safirstein
...v. Cardwell, 686 F.2d 754, 756 (9th Cir.1982). See also DiGiovanni v. United States, 596 F.2d 74 (2d Cir.1979); United States v. Garcia, 544 F.2d 681, 684-85 (3d Cir.1976); United States v. Acosta, 501 F.2d 1330, 1337-38 (3d Cir.1974) (Gee, J., dissenting), cert. denied, 423 U.S. 891, 96 S.......
-
Roberts v. United States
...on the question whether failure to cooperate could be considered as an aggravating factor in sentencing. Compare United States v. Garcia, 544 F.2d 681, 684-686 (CA3 1976) (improper factor), and United States v. Rogers, 504 F.2d 1079 (CA5 1974) (same), with United States v. Chaidez-Castro, 4......
-
U.S. v. Herman
...the federal use immunity statute does not confer on federal courts the power to grant immunity to trial witnesses. See United States v. Garcia, 544 F.2d 681 (3d Cir. 1976); United States v. Housand, 550 F.2d 818 (2d Cir.), Cert. denied, 431 U.S. 970, 97 S.Ct. 2931, 53 L.Ed.2d 1066 Nonethele......