U.S. v. Herndon

• Decision Date: 05 November 1975
• Docket Number: D,No. 246,246
• Citation: 525 F.2d 208
• Parties: UNITED STATES of America, Appellee, v. David HERNDON, Appellant. ocket 75-1233.
• Court: U.S. Court of Appeals — Second Circuit

Page 208

525 F.2d 208

UNITED STATES of America, Appellee, v. David HERNDON, Appellant.

No. 246, Docket 75-1233.

United States Court of Appeals, Second Circuit.

Argued Sept. 18, 1975.

Decided Nov. 5, 1975.

Phylis Skloot Bamberger, New York City (William J. Gallagher, The Legal Aid Society, Michael Young, New York City, on the brief), for appellant.

Paul B. Bergman, Asst. U. S. Atty. (David G. Trager, U. S. Atty., E. D. N. Y., Josephine Y. King, Asst. U. S. Atty., on the brief), for appellee.

Before MOORE, FEINBERG and OAKES, Circuit Judges.

OAKES, Circuit Judge:

This appeal seeks a remand for resentencing on the basis that the sentencing judge mistakenly believed that the appellant had lied under oath at his trial and that the presentence report contained errors of fact and carried what appellant calls a misleading "ambience." Appellant was originally tried for attempting to rob a bank, 18 U.S.C. § 2113(a), ¹ but the jury failed to agree on a verdict. He then pleaded guilty to a second count on a superseding indictment charging him with entering the bank with "intent" to commit a felony, in violation of the second paragraph of § 2113(a), note 1 supra. A judgment of conviction was duly entered in the United States District Court for the Eastern District of New York, Jacob Mishler, Chief Judge, and appellant was sentenced to five years' imprisonment. We affirm.

Appellant's first point is that in imposing sentence Judge Mishler erroneously believed that Herndon had lied in insisting that he had not pulled a gun or used intimidation, that the jury had known he was lying and that Herndon had in fact "had a gun and pointed it." It is contended that the judge assumed that Herndon had "put people in fear of their lives," when, in fact, Herndon had testified at his trial that he had neither pulled out the toy pistol found in his possession when he was apprehended outside the bank nor threatened harm to anyone. This, however, was in the face of the testimony of a bank guard who claimed that Herndon had indeed pulled the gun out inside the bank and said, "This is a stick up. Give me all the money or I'll blow your head off."

Our reading of the record reveals that Judge Mishler well remembered what Herndon's testimony was at the trial. ² At the same time he very clearly did not believe Herndon's testimony. The judge specifically stated, however, that he was not going to increase the sentence because he thought Herndon had lied. Recalling United States v. Hendrix, 505 F.2d 1233 (2d Cir. 1974), where the sentence was affirmed despite the express addition of two years to the sentence for perjury during the trial, ³ Judge Mishler explicitly and unequivocally stated: "I am not going to do that here. I am just going to sentence him on the crime that he committed." We do not go behind or beyond the judge's statement; the references to the appellant's supposed lying are easy to explain without assuming that the judge was less than candid. On the first two occasions it was plainly in response to defense counsel's repeated comments on the inaccuracy of the presentence report, note 2 supra, and its reference to admitting "attempted robbery" while denying use of the fake gun. It is true that the judge himself brought it up on the third occasion, but this was after a rather long and somewhat argumentative discussion of the factual discrepancies in the presentence report, and there was an extended colloquy along the previous lines. One can only wonder whether at this point the judge was simply ruminating over the seeming inconsistency between admitting to entry of a bank with intent to committing a felony and denying any attempt to rob it, an inconsistency extrapolated from the rather confusing, overlapping statute, note 1 supra.

Appellant's second point is that the sentence was based upon erroneous information which requires that it be set aside under Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948), and United States v. Malcolm, 432 F.2d 809 (2d Cir. 1970). See also United States v. Brown, 479 F.2d 1170, 1173 (2d Cir. 1973). The basis for this claim is that the court stated that the jury "realized that Herndon lied" while the jury had never returned a verdict of guilty or given any other indication of disbelief. But what the judge was saying was that he thought that most of the jury disbelieved Herndon. He was fully aware that the jury had hung, because the very statement of counsel, Ms. Seltzer, immediately prior to this statement by the court was "Your Honor, you know that we had a hung jury." True, Judge Mishler may have been mistaken as to how the jury had stood. He had said, "There were 11 people who disagreed with you," but prosecution and defense counsel each offer a different version of the jury's standing. We do not take these into account, however; as Judge Mishler expressly said, we "hold no stock whatsoever in what jurors believe, not at all, just the verdict."

Finally, appellant points to a number of errors in the presentence report both as to specific facts and, as appellate counsel neatly puts it, in "ambience." The specific facts, other than the "attempted robbery" matter dwelled on at length above, are said to include statements that Herndon had a $35 a week cocaine addiction, only one verifiable prior employment, a brother-in-law with a criminal record, and a mother who had been a prostitute. ⁴ In fact, counsel pointed out, Herndon had not taken drugs since his arrest (although he had for several years prior thereto), had at least one more readily verifiable prior job, the man with the criminal record was not his but his sister's brother-in-law, and his mother had not been a prostitute but rather had simply had relationships with several men. But each of these errors was...