U.S. v. Murphy
Decision Date | 04 February 1976 |
Docket Number | No. 75--1499,75--1499 |
Citation | 530 F.2d 1 |
Parties | UNITED STATES of America, Appellee, v. Nathaniel Eugene MURPHY, Appellant. |
Court | U.S. Court of Appeals — Fourth Circuit |
Howard L. Bernstein, Alexandria, Va. (Court-appointed counsel), for appellant.
James R. Hubbard, Asst. U.S. Atty. (William B. Cummings, U.S. Atty., on brief), for appellee.
Before HAYNSWORTH, Chief Circuit Judge, CRAVEN, Circuit Judge, and KAUFMAN, District Judge. *
Nathaniel Eugene Murphy pleaded guilty to a violation of 26 U.S.C. § 5861(d) ( ) and was sentenced to a five-year term of imprisonment. Because he was denied the right of allocution, guaranteed by Rule 32(a)(1) 1 of the Federal Rules of Criminal Procedure and Green v. United States, 365 U.S. 301, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961), we reverse.
The district court engaged in an extensive colloquy with the defendant about how he acquired the gun and what he meant to do with it, ending in the following exchange:
Anything else you want to tell me before I pronounce sentence in this case?
Murphy did not respond to the last inquiry, but his counsel, Mr. Bernstein, did speak briefly. When he had finished the court again asked the question 'Do you want to tell me anything else?' To which inquiry the Assistant United States Attorney, Mr. Williams, responded 'No, your Honor.' Again, Murphy did not respond.
Rule 32 is perfectly clear. Not only shall the court afford counsel an opportunity to speak, but he shall address the defendant personally and invite him to make a statement in his own behalf bearing upon mitigation of punishment. 2 Examining the defendant about why he bought the contraband and what he meant to do with it does not comply with the rule. As for the quoted questions, we cannot tell to whom they were addressed; but we know who answered, and neither time was it Murphy.
As the Supreme Court said in Green, supra, the trial judge's question may have been directed to the defendant and not to his counsel (or the Assistant United States Attorney). But
(a) record, certainly this record, unlike a play, is unaccompanied with stage directions which may tell the significant cast of the eye or the nod of the head. It may well be that the defendant himself was recognized and sufficiently apprised of his right to speak and chose to exercise this right through his counsel. . . .
However, to avoid litigation arising out of ambiguous records in order to determine whether the trial judge did address himself to the defendant personally, we think that the problem should be, as it readily can be, taken out of the realm of controversy. This is easily accomplished. Trial judges before sentencing should, as a matter of good judicial administration, unambiguously address themselves to the defendant. Hereafter trial judges should leave no room for doubt that the defendant has been issued a personal invitation to speak prior to sentencing.
Id. at 304--05, 81 S.Ct. at 655 (emphasis added...
To continue reading
Request your trial-
State v. Greve, 02-2332-CR.
...In Bruneau, we based our assertion of a constitutional due process right of allocution on federal law, and we cited United States v. Murphy, 530 F.2d 1 (4th Cir. 1976) and Green v. United States, 365 U.S. 301 (1961) to support our conclusion. Bruneau, 77 Wis. 2d at 174 n.2.6 However, the co......
-
U.S. v. Burgos-Andujar
...1178, 1184 (9th Cir. 1980) (remanding for resentencing because the judge did not address the defendant personally); United States v. Murphy, 530 F.2d 1 (4th Cir. 1976) (remanding for resentencing when the sentencing judge engaged the defendant on a specific issue and then asked twice if the......
-
U.S. v. Navarro-Flores
...resentencing is "salutary and in the public interest", see United States v. Bryan, 393 F.2d 90, 91 (2d Cir. 1968). Cf. United States v. Murphy, 530 F.2d 1 (4th Cir. 1976). In a resentencing here on the plea of guilty, the gain in preserving the appearance of fairness outweighs the counterva......
-
U.S.a. v. Burgos, 01-2062
...1178, 1184 (9th Cir. 1980) (remanding for resentencing because the judge did not address the defendant personally); United States v. Murphy, 530 F.2d 1 (4th Cir. 1976) (remanding for resentencing when the sentencing judge engaged the defendant on a specific issue and then asked twice if the......