U.S. v. Howard, 77-5407

• Citation: 577 F.2d 269
• Decision Date: 27 July 1978
• Docket Number: No. 77-5407,77-5407
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Herbert A. HOWARD, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 269

577 F.2d 269

UNITED STATES of America, Plaintiff-Appellee, v. Herbert A. HOWARD, Defendant-Appellant.

No. 77-5407.

United States Court of Appeals, Fifth Circuit.

July 27, 1978.

Ralph W. Brewer, Baton Rouge, La., for defendant-appellant.

John P. Volz, U. S. Atty., Mary Williams Cazalas, Asst. U. S. Atty., New Orleans, La., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

ON PETITION FOR REHEARING

Before COLEMAN, GODBOLD and TJOFLAT, Circuit Judges.

PER CURIAM:

In his petition for rehearing the defendant points out that he raised, and that we did not rule on, a constitutional attack on a well-established statute. He complains that suspended imposition of sentence, authorized by 18 U.S.C. § 3651 (1970) when an offender is placed on probation, violated his right to speedy trial. The argument is facially plausible. The constitutionally guaranteed right to speedy trial applies to sentencing, U. S. v. Campbell, 531 F.2d 1333 (CA5, 1976); see Pollard v. U. S., 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957) (assuming arguendo the applicability of the right to speedy trial to sentencing), and the defendant alleges prejudice due to delay in his sentencing. Nevertheless, a careful examination of defendant's argument convinces us that his right to speedy trial was not violated.

The circuit has previously determined that when an offender is placed on probation suspended imposition of sentence does not violate the right to speedy trial. Cooper v. U. S., 91 F.2d 195, 199 (CA5, 1937). But a 40-year-old decision can hardly be dispositive given the intervening development of speedy trial jurisprudence, particularly since Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

In Barker v. Wingo the Supreme Court endorsed a balancing approach for analyzing alleged deprivations of the right to speedy trial. The court specifically articulated four factors for courts to consider: the length of delay, prejudice to the defendant, the defendant's assertion of his right, and the reason for the delay. Although Barker v. Wingo has provided the analytical framework for most subsequent speedy-trial decisions, its analysis is directed at different concerns than are present in this case. Trial delay may prejudice the defendant through oppressive pretrial incarceration, impairment of defense and anxiety. Sentencing delay typically risks only the possible prejudice of anxiety, but the delay also disserves a basic notion that, once convicted, an offender should be able to serve his sentence and be done with it. None of these concerns applies when an offender is placed on probation. The offender's defense is complete (albeit unsuccessful), and probation terminates any incarceration. ¹ The offender's anxiety is attenuated because his successful completion of probation will conclude his liability for the offense. Only violation of the terms of probation revives the need for a criminal sanction. Despite our perception that the Barker v. Wingo analysis addresses concerns that this case does not raise, we will consider its application and perhaps adapt its insights to the situation presented here.

(1) Length of delay. "The length of the delay," said the Barker v. Wingo Court, "is to some extent a triggering mechanism." This case involves a three-year delay from when sentencing might have been imposed, but the length of delay itself suggests no prejudice. Indeed, a successful probation would "delay" forever any criminal sanction.

(2) Prejudice. The defendant claims a possible prejudice different than prejudices considered in Barker v. Wingo. He suggests that he was prejudiced by receiving a harsher sentence than he otherwise would have. It is of course impossible to probe the truth of this suggestion. Because the defendant was sentenced to 30 days on one count he believes the court would have also imposed a 30-day sentence on the second count. This simplistic argument overlooks the district court's actual sentence: the court chose to couple a brief period of incarceration with the extended supervision of probation. Absent probation, a longer sentence would have been likely. And had the court chosen to couple probation with suspended execution of sentence it might have chosen a longer suspended sentence to promote compliance with the terms of probation. Nevertheless, the court probably imposed a different sentence than it otherwise would have. See Roberts v. U. S., 320 U.S. 264, 273, 64 S.Ct. 113, 88 L.Ed. 41, 46 (1943) (dissenting opinion). The possibility of prejudice, though hardly conclusive, is a colorable theory.

(3) Defendant's assertion of his right. The defendant maintains that he "asserted his speedy-trial rights at his first opportunity. When the revocation hearing first opened, (he) immediately argued that suspension of imposition of the sentence as to Count 2 violated (his) 6th Amendment right." (Emphasis added.) This assertion of rights was not timely in any sense that would have allowed the district court to prevent the alleged delay. The defendant should have asserted his right when the court suspended imposition of sentence and placed him on probation.

Prior to Barker v. Wingo some courts treated a defendant's failure to demand a speedy trial as a waiver. The Barker v. Wingo Court rejected this as a strict rule, but emphasized "that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial." Although the defendant has no right to refuse probation and demand an immediate sentence, Cooper v. U. S., supra, the court might have chosen to impose a sentence and suspend its execution had defendant alleged a speedy-trial right.

(4) Reason for delay. The federal probation statute specifically authorizes delayed imposition of sentence, ² so an inquiry into the reason for delay is ultimately an inquiry into the reasonableness of the federal statute. The statute basically serves a rehabilitative purpose: it allows a convicted criminal to be placed on probation rather than serving a sentence. The statute provides two alternative methods: the court may suspend the imposition of sentence or it may suspend the execution of sentence. Whichever method is used, it is always possible that a sentence may eventually be imposed and executed. This general purpose is certainly reasonable. Probation is conditioned on the defendant's behaving a certain way, and a sanction is needed to prompt compliance and to punish noncompliance. As to the distinction between these two methods, defendant argues that suspended execution of sentence should be the preferred method. In effect, defendant argues that the statute itself provides a less violative means for achieving its purposes. Suspended execution of sentence provides an adequate sanction without giving rise to the prejudice defendant alleges. The sentence would be definite before probation began, and a greater sentence could not be imposed upon revocation of parole. Roberts v. U. S., 320 U.S. 264, 64 S.Ct. 113, 88 L.Ed. 41 (1943).

The legislative history, recounted in Roberts v. U. S., supra at 267-272, 64 S.Ct. 113, 88 L.Ed. at 43-46, shows that Congress clearly intended to...