U.S. v. Hendrix

• Decision Date: 15 October 1974
• Docket Number: D,No. 1231,1231
• Citation: 505 F.2d 1233
• Parties: UNITED STATES of America, Appellee, v. Wincel HENDRIX, Appellant. ocket 74-1603.
• Court: U.S. Court of Appeals — Second Circuit

Page 1233

505 F.2d 1233

UNITED STATES of America, Appellee, v. Wincel HENDRIX, Appellant.

No. 1231, Docket 74-1603.

United States Court of Appeals, Second Circuit.

Argued Aug. 14, 1974.

Decided Oct. 15, 1974.

Gavin W. Scotti, Asst. U.S. Atty., E.D.N.Y. (David G. Trager, U.S. Atty., Raymond J. Dearie, Asst. U.S. Atty., E.D.N.Y., Brooklyn, N.Y., of counsel), for appellee.

Michael A. Young, William J. Gallagher, The Legal Aid Society, New York City, for appellant.

Before OAKES, Circuit Judge, and FRANKEL and KELLEHER, District judges. ^*

FRANKEL, District Judge:

Convicted upon seemingly powerful evidence, and sentenced to concurrent terms of which the longer is for 10 years' imprisonment, the defendant complains that the trial judge committed reversible error by adding two years to what the sentence might otherwise have been because he was convinced beyond a reasonable doubt that the defendant had perjured himself. A lesser question is whether there was prejudicial impropriety in Judge Mishler's intervention to press for corroboration of testimony by defendant's wife on his behalf after she had volunteered that such corroboration was available. Rejecting both grounds of appeal, we affirm the conviction.

I.

On the evening of June 22, 1973, the appellant was arrested under a warrant charging unlawful heroin dealings for which he was thereafter convicted in the Southern District of New York and sentenced to a three-year term he is now serving. ¹ At the time of the arrest he was carrying a paper bag that contained a number of packages of mannite, a substance commonly used to dilute narcotics. Later in the night, at the law enforcement office to which he was taken, an inventory search produced from appellant's pocket 2.4 grams of cocaine wrapped in tin foil and six marihuana cigarettes. A far more damning haul, however, was taken elsewhere.

While appellant was being arrested, narcotic officers were executing a search warrant for his house in Elmhurst, Queens. Appellant was taken to the house and detained there while the search proceeded. The officers found in the master bedroom more than a pound of cocaine in a shopping bag which also contained two pounds of mannite and two measuring spoons. Another brown shopping bag held two pounds of marihuana and a quantity of hashish. Among the other things in the master bedroom were a scale and measuring pan on a bedside table; a suitcase near the bed holding more mannite, a bottle of lactose, two strainers, a measuring spoon, and two rolls of aluminum foil; a metal box containing currency and coins amounting to over $3,000, a holster, and a supply of .38 caliber cartridges; and a jewelry box on a dressing table in which was a tin foil package of about four grams of cocaine. Elsewhere in the house were found a small amount of marihuana and eleven marihuana cigarettes.

Before the search had ended an officer in charge began to order removal of some mirrors in a basement bar to see if they concealed contraband. The appellant protested, with apparent success, that this action, costly to repair, was unnecessary because the agents already had everything.

Testifying in his own defense, appellant said he had 'tried' cocaine and marihuana, but that he knew nothing of the quantities of these substances or of the other paraphernalia found in his bedroom. He said the mannite he'd been carrying was for a friend named John. He was employed, he said, as a garage man and parking attendant earning, according to his tax returns, some $6,000 to $7,000 a year. He also told that he had since 1966 been buying a new Cadillac automobile every two years and that for his house, priced at $64,000, he made a $36,000 down payment in November 1972, $10,000 in a certified check and $26,000 in currency.

Supporting the latter point, appellant's wife testified that $10,000 of the down payment had come from relatives and $12,000 from 'hitting' a number. ² As for the $3,000 in currency and coins found in the bedroom, Mrs. Hendrix explained that she and her brother owned a boutique in Atlanta for which he sent her money periodically to purchase clothing. On cross-examination she could not remember any stores where she had made such purchases, but volunteered that her brother, to whom she sent the bills, would be able to help her with this information. The district judge's suggestion that she use a recess to call her brother gives rise to the second, and less consequential, of the arguments on appeal.

II.

Following the highly desirable course of making explicit a factor he deemed material for the sentence, United States v. Velazquez, 482 F.2d 139, 142 (2d Cir. 1973); United States v. Brown, 479 F.2d 1170, 1172-1173 (2d Cir. 1973), Judge Mishler said he was 'convinced beyond a reasonable doubt' that appellant had perjured himself (as did his wife) on the witness stand. More pointedly, he said this was 'the most outrageous situation of perjury in any trial' he had seen in some 13 years on the bench. Nothing that the stories told under oath had been 'bizarre to say the least,' the judge went on say:

'. . . I think defendants should be encouraged to take the witness stand but when they take the witness stand I think they must understand that there is a certain risk they take, they better tell the truth.

'I feel I added about two years for perjury during the trial in my sentence.'

In this, appellant says, the trial judge erred, so that there must be a resentencing. We reach the point on the merits despite the normal unreviewability of federal sentences. Gore v. United States, 357 U.S. 386, 393, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958); cf. A.B.A. Minimum Standards for Criminal Justice, Appellate Review of Sentences (Approved Draft 1968). For the contention is, of course, that the consideration of perjury was impermissible, carrying the judge outside the wide range of discretion in sentencing. Cf. United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972); Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948); McGee v. United States, 462 F.2d 243, 245-246 (2d Cir. 1972); United States v. Malcolm, 432 F.2d 809, 815-816 (2d Cir. 1970). Having reached the contention, we reject it.

The appellant urges in substance that to punish him by an enhanced sentence for perjury amounts to a kind of conviction for another crime without the safeguards of indictment and trial. But this ignores the nature of the sentencing process as it exists in our system and of the factors the trial judge may consider in exercising a frequently enormous range of discretion. If there is no clear consensus on these factors, it is certainly clear that they include, as aggravating circumstances, conduct that is not literally 'criminal,' or at least has not been duly adjudged criminal in the case in which sentence is being imposed. Prior convictions may cause a heavier sentence, though the defendant has already 'paid' for them. A general course of dissolute, irresponsible, shiftless, or dangerous behavior may be deemed to call for longer incarceration though none of its components are, strictly, 'crimes.' 'The aim of the sentencing court is to acquire a thorough acquaintance with the character and history of the man before it.' United States v. Doyle, 348 F.2d 715, 721 (2d Cir.), cert. denied, 382 U.S. 843, 86 S.Ct. 89, 15 L.Ed.2d 84 (1965). And so, in the cited case and elsewhere, United States v. Cifarelli, 401 F.2d 512, 514 (2d Cir.), cert. denied, 393 U.S. 987, 89 S.Ct. 465, 21 L.Ed.2d 448 (1968), this court has held that crimes on which there has been no conviction may be considered as calling for increased punishment. The same is true even for evidence of counts on which a defendant is acquitted. United States v. Sweig, 454 F.2d 181, 184 (2d Cir. 1972). Materials like these are surely not less reliable in any pertinent sense than the standard kinds of information presentence reports contain. Even assuming that controverted assertions in such reports may be aired in a hearing, or that hearsay may be taken at a discount, cf. Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949); United States v. Doyle, supra, 348 F.2d at 721, the judge's use and appraisal of a vivid trial circumstance, after adversary testing, is scarcely to be deemed less reliable. See United States v. Sweig, supra, 454 F.2d at 184.

The appellant invokes as his main support the case of Scott v. United States, 135 U.S.App.D.C. 377, 419 F.2d 264 (1969). Announcing the court's decision there, Chief Judge Bazelon first discussed the trial judge's apparent lengthening of the sentence because the defendant failed to make a 'clean breast' and show remorse after trial. Holding that the 'pressure placed upon him to confess his guilt after trial' (p. 267) entitled defendant to be resentenced in any event, the Chief Judge went on to treat 'two other considerations' (p. 268), including the sentencing judge's evident reliance upon his belief that the defendant had committed perjury during the trial. This aspect of the decision, given the other grounds treated at length in the first opinion as well as the separate opinions of the two other panel members, supplies at best an uncertain measure of support for the present appellant. To the extent the D.C. Circuit leans that way, we are led respectfully to differ.

The five other Circuits addressing the question, according to counsel's and our own researches, have likewise disagreed, both before and since, with this aspect of Scott v. United States, supra. The Tenth Circuit, in Humes v. United States, 186 F.2d 875, 878 (1951), held it 'entirely proper . . . to consider the character' of the defendant as reflected in his own, and his inducement of another's, perjury at the trial. The Seventh Circuit likewise marked such a circumstance 'as a reflection of the character of the person before the court for sentencing.' United States...