U.S. v. Tucker, 77-1789

• Decision Date: 12 July 1978
• Docket Number: No. 77-1789,77-1789
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Howard TUCKER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 602

581 F.2d 602

UNITED STATES of America, Plaintiff-Appellee, v. Howard TUCKER, Defendant-Appellant.

No. 77-1789.

United States Court of Appeals Seventh Circuit.

Argued Jan. 16, 1978.

Decided July 12, 1978.

Charles O. Brizius, Chicago, Ill., for defendant-appellant.

Joseph N. Hosteny, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellee.

Before SPRECHER and WOOD, Circuit Judges, and REYNOLDS, District Judge. ^*

REYNOLDS, District Judge.

Presented for review in this appeal is the question of the propriety of the lower court's action, following a retrial, of imposing upon the defendant-appellant a sentence that is more severe than the sentence imposed after the initial trial where the defendant-appellant had successfully appealed his first conviction. For the reasons stated below, we find that the second sentence was improperly imposed and remand this action to the lower court with instructions to impose a sentence that is no greater than that imposed following the defendant's first trial.

The defendant was convicted of a narcotics offense at his first trial and received a sentence of probation for a period of five years. ¹ This Court overturned the conviction for reasons not relevant to this proceeding and remanded the action for a new trial. ² Again, the defendant was convicted only this time at his new sentencing there was added to the five-year period of probation a special condition of probation that the defendant spend ninety days at a correctional institution on a work release program, and a special three-year mandatory parole was imposed to follow the probation period. The first and second sentences were imposed by different judges.

In imposing sentence, the second sentencing judge made certain statements that are relevant to this proceeding:

"THE COURT: Well, as you know, anything that is relevant, particularly if it occurred after this sentence which was imposed upon the defendant, can be taken into consideration. I don't consider myself bound by the previous sentence, although there are certain guidelines that I have to follow, and as (the prosecutor) points out, I don't think the case was quite as close on the facts as it was when it was first tried.

"Also, the first time it was tried, it was tried at the bench, as I recall, and the second time with a jury, which perhaps gives another dimension to the credibility of the witnesses and the results of the case. As a matter of fact, I think the Court of Appeals had a little difficulty with the weight of the evidence, as I recall, although that wasn't what they sent it back for. That is often a subconscious reason for giving someone probation when perhaps otherwise they would have been given some time.

"Well, I believe I have done it (given the factual data in support of imposition of an increased sentence) to the extent that I can. I don't have very much to add. His work record showed a 5-month unemployed period in there after he was put on probation by Judge Will. The other matters which I mentioned are intended to be the findings of fact that are required by the Supreme Court decision." (Transcript of sentencing proceedings at 7, 10-11.)

It was also brought out at the second sentencing that the defendant was in the process of being divorced from his wife.

The defendant now attacks his second sentence in that it was imposed in violation of the rule enunciated in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), which held that a successfully appealing defendant may be given a higher sentence after a second trial only if reasons "based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding" are "made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal." Id., at 726, 89 S.Ct. at 2081. Pearce held that it would be a violation of the due process clause of the Constitution if the second and more severe sentence was imposed out of vindictiveness or retaliatory motivation on the part of the sentencing judge against a successfully appealing defendant. In order to prevent such a constitutional violation and to make sure that parties will not be deterred from appealing, Pearce requires a statement of reasons on the record justifying the higher sentence. ³ The defendant argues that the reasons stated by the sentencing judge for imposing the higher second sentence, contained in the portion of the transcript quoted above, do not justify the more severe sentence. ⁴

The Government, in response, argues that additional testimony brought out at the defendant's second trial showed the defendant to be more extensively involved in the offense charged than had been shown at the original trial. ⁵ Such testimony, the Government argues, satisfies the Pearce requirement that the reasons for a higher second sentence be set forth in the record.

We cannot agree with the Government's proposition that the higher sentence is justified by the additional testimony adduced at the second trial for two reasons: first, the second sentencing judge did not refer to it in imposing the higher sentence; and second, the additional testimony relied upon by the Government does not relate to conduct by the defendant occurring after the original sentencing proceeding.

Pearce did not explicitly require the second sentencing judge to state his reasons on the record for imposing a higher sentence, but it did explicitly require that the factual basis for the higher sentence "be made part of the record." 395 U.S. at 726, 89 S.Ct. at 2081. An examination of the rationale of the Pearce requirement of a recorded statement of the reasons for a higher sentence reveals that it was implicit in Pearce that the factual record must be made by the sentencing judge. The rationale of Pearce was that a harsher sentence standing alone may give the appearance of having been imposed in retaliation for a defendant's having exercised a right to appeal. "(Pearce ), as we have said, was premised on the apparent need to guard against Vindictiveness in the sentencing process. * * * Subsequent cases have dispelled any doubt that Pearce was premised on the hazard of vindictiveness. * * * " (Emphasis in original.) Chaffin v. Stynchcombe, 412 U.S. 17, 25, 93 S.Ct. 1977, 1982, 36 L.Ed.2d 714 (1973). The semblance of vindictiveness that arises from the imposition of a harsher sentence the second time around must be obviated so that the proceedings do not leave the impression of unfairness to the defendant being sentenced and so that other defendants are not deterred from exercising rights of appeal due to apprehension of vindictiveness. North Carolina v. Pearce, 395 U.S. 711, 725, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). The method chosen by the Court to obviate the semblance of vindictiveness was to require that the basis (i. e., additional facts which occurred after the first sentence) for the imposition of the harsher sentence upon resentencing be articulated in the record. If, as the Government contends, the harsher sentence could be justified by the presence anywhere in the record of additional facts reflecting adversely upon the defendant, the semblance of vindictiveness with its concomitant chilling effect upon exercise of the right to appeal would remain because there would be no assurance that the second sentencing judge had heard and considered the additional information. Apprehension of retaliatory motivation would remain great. To eliminate that apprehension, it is necessary that the second sentencing judge articulate the reasons for his conclusion that a harsher sentence is necessary. ⁶

If any doubt remained that the sentencing judge must himself articulate the basis for the harsher sentence, such doubt was dispelled by the Court's interpretation of Pearce in Blackledge v. Perry, 417 U.S. 21, 25-26, 94 S.Ct. 2098, 2101, 40 L.Ed.2d 628 (1974): " * * * Because 'vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial,' (North Carolina v. Pearce, 395 U.S. at 725, 89 S.Ct. at 2080), we held that an increased sentence could not be imposed upon retrial Unless the sentencing judge placed certain specified findings on the record." (Emphasis added.) ⁷ The conclusion follows that the Government's reliance upon the additional testimony at the second trial, not referred to by the sentencing judge, is misplaced. ⁸

The second basis of our disagreement with the Government's position on this appeal is that none of the additional testimony of the defendant relied upon by the Government as justifying the harsher sentence relates to "identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding." North Carolina v. Pearce, supra, at 726, 89 S.Ct. at 2081. The additional testimony merely describes in further detail the crime in which the defendant participated and the extent of this involvement. Such additional testimony does not meet the Pearce standards for the reason that only "intervening detrimental deportment" on the part of the defendant may justify a harsher sentence. Wood v. Ross, 434 F.2d 297, 299 (4th Cir. 1970). ⁹ We agree with the dictum from United States v. Cunningham, 529 F.2d 884, 888 (6th Cir. 1976) that " * * * Pearce does not allow increased sentences on retrial based on amplified knowledge about a defendant's criminal activity which occurred before the first trial. See Barnes v. United States, 136 U.S.App.D.C. 171, 419 F.2d 753 (1969); Pinkard v. Neil, 311 F.Supp. 711 (M.D.Tenn.1970)." Accordingly, we find that the information brought out at the second trial concerning the defendant's involvement in the offense charged is not such identifiable conduct occurring subsequent to the original sentencing as justifies the imposition of a harsher sentence. ¹⁰

Having...