U.S. v. Sonderup

• Court: U.S. Court of Appeals — Fifth Circuit
• Writing for the Court: Before CHARLES CLARK, REAVLEY and WILLIAMS; REAVLEY
• Citation: U.S. v. Sonderup, 639 F.2d 294 (5th Cir. 1981)
• Decision Date: 13 March 1981
• Docket Number: No. 80-1650,80-1650
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Guy D. SONDERUP, Defendant-Appellant. Summary Calendar. . Unit A

Page 294

639 F.2d 294

UNITED STATES of America, Plaintiff-Appellee, v. Guy D. SONDERUP, Defendant-Appellant.

No. 80-1650

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Unit A

March 13, 1981.

Patrick J. McGuire (Court-appointed), Corpus Christi, Tex., for defendant-appellant.

J. A. Canales, U. S. Atty., James R. Gough, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before CHARLES CLARK, REAVLEY and WILLIAMS, Circuit Judges.

REAVLEY, Circuit Judge:

Appellant Guy Sonderup was charged in a two-count indictment (1) with violating 18 U.S.C. § 2113(a) by robbing a federally insured savings and loan association, and (2) with violating 18 U.S.C. § 2113(d) by putting in jeopardy through the use of a dangerous weapon the lives of employees while committing the robbery of a federally insured savings and loan association. A plea bargain, entered into between appellant and the Government, was rejected by the district judge after he read a presentence investigation, for which appellant had signed a consent form. The judge allowed appellant to withdraw his guilty plea and enter a plea of not guilty. The case was tried before a jury which found Sonderup guilty on both counts. The district court entered judgment on this verdict, sentencing appellant to concurrent terms of twenty years imprisonment for count one and twenty-five years imprisonment for count two.

Appellant raises five issues on appeal: (1) that Judge Cox erred in failing to recuse himself because of bias and prejudice against appellant acquired by the judge's reading the presentence report before the trial to the jury; (2) that the district court erred in admitting appellant's oral confession to an FBI agent, who had previously given appellant the Miranda warnings, but who did not explain that oral confessions were admissible in federal court, unlike in Texas courts; (3) that it was error to allow the in-court identification of appellant by three witnesses, who previously had been shown a photographic display of "mug shots" that appellant contended was impermissibly suggestive, because the evidence was insufficient to prove the photographic array produced by the Government was the one shown to the witnesses; (4) that the evidence was insufficient to prove that the robbery was committed with a dangerous weapon; and (5) that sentences were improperly imposed on both the § 2113(a) count and the § 2113(d) count. We affirm the conviction, but vacate the sentence imposed for the § 2113(a) count.

I.

Prior to trial, appellant and the Government agreed to a plea bargain under which he would plead guilty to count one of the indictment. In return, the Government agreed to recommend a twenty year sentence. In connection with this plea bargain, appellant agreed to have a presentence investigation conducted prior to the court's acceptance of the plea. Both appellant and his counsel signed a written consent for the early presentence investigation and acknowledged that the report would be shown to the judge prior to the arraignment or a finding of guilty.

After reading the presentence report, the court declined to accept the plea of guilty to the lesser offense, with the recommendation of a twenty year sentence. The court made the comment: "One of the worst records I have seen in a long time." Appellant was then allowed to withdraw his plea of guilty and enter a plea of not guilty.

Thereafter, the defense filed a motion for recusal of Judge Cox pursuant to 28 U.S.C. § 144 ¹ and 28 U.S.C. § 455, ² with affidavits of appellant and his counsel. The alleged "personal bias or prejudice" of the judge was based on his having read appellant's presentence report. Judge Cox conducted an evidentiary hearing on the motion. The only witness was the probation officer who conducted the presentence investigation. He testified that he discussed the report, including appellant's extensive arrest and conviction record, with the judge immediately before appellant's arraignment in the judge's chambers. The judge denied the motion for his disqualification, implicitly finding that appellant's affidavit was insufficient under 28 U.S.C. § 144.

Appellant argues that the judge automatically should have been disqualified from presiding over his trial once the judge had read the presentence report, citing statements to that effect in Gregg v. United States, 394 U.S. 489, 491-92, 89 S.Ct. 1134, 1136, 22 L.Ed.2d 442 (1969). The Gregg decision, however, is inapposite since it was decided prior to the 1974 amendment of Fed.R.Crim.P. 32(c)(1). Rule 32(c)(1) now provides that "a judge may, with the written consent of the defendant, inspect a presentence report at any time." Such consent was given by appellant. Referring to the 1974 amendment, the Notes of the Advisory Committee on Rules state as follows:

"Where the judge rejects the plea agreement after seeing the presentence report, he should be free to recuse himself from later presiding over the trial of the case. This is left to the discretion of the judge. There are instances involving prior convictions where a judge may have seen a presentence report, yet can properly try a case on a plea of not guilty. Webster v. United States, 330 F.Supp. 1080 (E.D.Va.1971). Unlike the situation in Gregg v. United States, subdivision (c)(3) provides for disclosure of the presentence report to the defendant, and this will enable counsel to know whether the information thus made available to the judge is likely to be prejudicial. Presently trial judges who decide pretrial motions to suppress illegally obtained evidence are not, for that reason alone, precluded from presiding at a later trial."

18 U.S.C.App. Rules of Crim.P., Rule 32, pp. 1458-59. In Webster v. United States, 330 F.Supp. at 1087, the court observed:

"While it may be preferable for the same judge to avoid trying the defendant on his not guilty plea, following the rejection of a guilty plea, if another judge is readily available, we must take cognizance of the fact that in some areas of our country the luxury of another judge is unknown. To provide that the judge, after having examined a presentence report, is presumed to be prejudiced in every situation would result in a failure of the proposed 'plea agreement' system which, as we must realize, generally operates to the benefit of the defendant."

Moreover, on facts similar to those sub judice, this court held that the judge's reading of a defendant's presentence report prior to trial was not grounds for disqualification under 28 U.S.C. §§ 144 & 455 or Fed.R.Crim.P. 32(c)(1). United States v. Clark, 605 F.2d 939, 942 (5th Cir.1980). Also, a defendant's criminal record is commonly made known to the court during pretrial hearings on various motions. Therefore, since the affidavit filed by appellant in this case was insufficient, it was not error for Judge Cox to continue to preside over the case.

Appellant further argues that judicial bias or prejudice against him was demonstrated by the district court's denial of his motion for bail reduction after the prosecutor referred to appellant's criminal record as shown in the presentence report. We can read no such significance into this event since the prosecutor was obviously familiar with appellant's criminal record from seeing his "rap sheet" and would have mentioned this data in the bail reduction hearing even if the court had not seen the presentence report. Appellant also alleges judicial bias or prejudice during the hearing on appellant's motion to suppress identification testimony. This alleged bias or prejudice concerned the court's admission of "clearly inadmissible hearsay over objection." This hearsay consisted of a police officer's testimony that a fellow officer informed him that an anonymous telephone caller had identified appellant as the robber, and that a certain group of photos was the photographic array shown to three witnesses. Since this occurred during a suppression hearing, outside the presence of the jury, it could not have prejudiced any substantial right of appellant. See discussion under part III, infra.

II.

After appellant was arrested in Corpus Christi, a police officer read him the Miranda warnings. Thereafter, a municipal court judge advised appellant of his Miranda rights upon arrival at the Corpus Christi city jail. Appellant refused to make a statement to the Corpus Christi police. Sometime later appellant made a full oral confession to an FBI agent that he robbed a branch of the Gibraltar Savings Association in Corpus Christi with his father's loaded revolver. Appellant moved to suppress the confession. The court denied the motion after conducting an evidentiary hearing.

Appellant does not deny that the Miranda warnings he received from the FBI agent were adequate, but he contends that his confession was not voluntarily, knowingly and intelligently made because he thought that his oral statements to the agent would not be admissible, as is usually the case under Texas law. ³ See Tex.Code Crim.Pro.Ann. art. 38.22.

At the suppression hearing, the FBI agent testified that he read the Miranda warnings to appellant. He specifically testified that he told appellant: "Anything you say can be used against you in court." (Emphasis added.) The agent asked appellant if he understood his rights, and appellant told the agent that he did. From his notes the agent had appellant's oral confession reduced to writing. The next day the agent returned to the city jail and presented the written version of the confession to appellant. After appellant had read the written version, the agent asked him if he wanted to sign it. Appellant refused, indicating that he would only sign the statement if the agent could guarantee that he would be prosecuted by the federal government, instead of the State of Texas. ⁴

Although the Government has a heavy burden to prove that a...