United States v. Bebik, 8462.

Decision Date02 May 1962
Docket NumberNo. 8462.,8462.
Citation302 F.2d 335
PartiesUNITED STATES of America, Appellee, v. Norman BEBIK, Appellant.
CourtU.S. Court of Appeals — Fourth Circuit

Norman Bebik, pro se.

William Medford, U. S. Atty. (Hugh E. Monteith, Asst. U. S. Atty., on brief), for appellee.

Before SOPER, HAYNSWORTH and BOREMAN, Circuit Judges.

SOPER, Circuit Judge.

This appeal is taken from an order of the District Court which denied the motion of Norman Bebik to vacate and set aside a sentence of imprisonment for the term of 25 years, imposed upon him by the District Court of the Western District of North Carolina, after conviction of the crime of conspiracy to violate the bank robbery statute and of the substantive crime of bank robbery, 18 U.S. C. Sections 371 and 2113. The motion is based on the ground that the District Judge did not afford the defendant an opportunity to address the court on the matter of punishment before sentence was imposed and, therefore, failed to conform with the provision of Rule 32(a) of the Federal Rules of Criminal Procedure, 18 U.S.C. which provides that "before imposing sentence the court shall afford the defendant an opportunity to make a statement in his own behalf and to present any information in mitigation of punishment."

Norman Bebik, the defendant herein, was indicted together with Bernard Edward Gosnel and Carl Virgil Wacker for conspiracy to rob the Hot Springs, North Carolina, Branch of the Citizens Bank of Marshall, on or about May 18, 1955, and also for the robbery of that bank. To the indictment of conspiracy Gosnel pleaded guilty but Wacker and Bebik were tried before a jury and convicted, and the sentence of 25 years imprisonment was imposed upon them. Gosnel was sentenced to imprisonment for 10 years. Wacker and Bebik took an appeal to this court but failed to perfect their appeal within the time allowed by the statute. Accordingly, the appeal was dismissed but this court came to the conclusion, from an examination of the record, that the appeal in any event was without merit. See Wacker v. United States, 4 Cir., 231 F.2d 659.

It appears from the record in the present appeal that at the conclusion of the jury trial of Wacker and Bebik the three defendants were brought before the court for sentence. Each of them was represented by an attorney. Thereupon the Judge made the following inquiry: "Do you gentlemen have anything to say on the matter of punishment?", in reply to which the attorneys addressed the court on behalf of their respective clients, and the sentences were imposed. The contention is that this procedure did not comply with the provisions of Rule 32(a) since the defendant Bebik, the appellant in the present case, was not given an opportunity to make a statement in his own behalf.

A similar situation was considered by the Supreme Court in Green v. United States, 365 U.S. 301, 81 S.Ct. 653, 5 L.Ed. 2d 670, where in a case of bank robbery, after the conviction of the defendant Green and after motions in arrest of judgment and for new trial had been over-ruled, the District Judge before passing sentence asked: "Did you want to say something?" and the defendant's counsel at some length invoked the leniency of the court. The defendant was then given a sentence of imprisonment. Later upon a motion of the defendant to vacate the sentence the Government contended that affording defendant's counsel the opportunity to speak was sufficient compliance with Rule 32(a); but it was held that the rule was intended to afford the opportunity to the defendant himself to address the court with respect to the punishment to be imposed. The court, however, held that the record did not show that the defendant was not accorded this opportunity since the Judge's question may well have been directed to the defendant and not to his counsel; and, therefore, the defendant had failed to meet the burden of showing that he was not accorded the right given him by the rule. But the court admonished the trial judges that in the future before sentencing they should, as a matter of good judicial administration, address themselves to the defendant and leave no room for doubt that the defendant had been issued a personal invitation to speak prior to sentencing.

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11 cases
  • United States v. Taylor, 8467.
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • May 2, 1962
    ...proceedings at the arraignment and sentence of the prisoner. The right of allocution was discussed by us in our opinion in United States v. Bebik, 4 Cir., 302 F.2d 335 filed this day, where it is shown that under the decision of Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 4......
  • United States v. Baysden
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • January 9, 1964
    ...368 U.S. 424, 429, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962); United States v. Taylor, 303 F.2d 165, 167 (4th Cir. 1962); United States v. Bebik, 302 F.2d 335, 337 (4th Cir. 1962). Here, however, as we have shown, allocution was accorded. 3 The fact that appellant's attorney may have expressed the......
  • Ashe v. State of N. C.
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • November 17, 1978
    ...neglected to afford the defendant an opportunity to address the court and there were no "aggravating circumstances." United States v. Bebik, 302 F.2d 335, 377 (4 Cir. 1962). On the other hand, where the district judge was uninformed as to relevant facts because of his failure to afford the ......
  • State v. Martin
    • United States
    • North Carolina Court of Appeals
    • August 4, 1981
    ...case must be remanded for re-sentencing. As authority for his position, defendant cites 18 U.S.C. Rule 32(a)(1) and United States v. Bebik, 302 F.2d 335 (4th Cir. 1962). Under Rule Before imposing sentence the court shall afford counsel an opportunity to speak on behalf of the defendant and......
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