United States v. Humphreys, 71-1137.

• Decision Date: 25 February 1972
• Docket Number: No. 71-1137.,71-1137.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert Allan Laud HUMPHREYS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

457 F.2d 242 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Robert Allan Laud HUMPHREYS, Defendant-Appellant.

No. 71-1137.

United States Court of Appeals, Seventh Circuit.

February 25, 1972.

Richard Shaikewitz, Wiseman, Shaikevitz & McGivern, Alton, Ill., Melvin M. Belli, Belli, Ashe, Ellison, Chovlos & Lieff, San Francisco, Cal., for defendant-appellant.

Donald B. Mackay, U. S. Atty., J. William Roberts, Asst. U. S. Atty., Springfield, Ill., for plaintiff-appellee.

Before DUFFY and KNOCH, Senior Circuit Judges, and GRANT^*, District Judge.

DUFFY, Senior Circuit Judge.

Defendant was indicated by a grand jury for violating both Title 50, U.S.C. App. § 462 (Interference with the Selective Service Act of 1967) and Title 18 U.S.C. § 1361 (Wilful destruction of United States property of a value less than $100). Defendant entered a plea of guilty to the latter charge.

The District Judge accepted the plea and on motion, ordered a presentence investigation and consideration of probation. The felony charge against defendant (50 U.S.C. § 462) was dismissed on motion of the United States Attorney.

After the presentence investigation had been completed and was submitted to the Court, the District Judge held a hearing on the application for probation. He also read a "Sentencing Memorandum" which had been prepared upon behalf of the defendant and his counsel. Witnesses were heard upon behalf of the defendant and he also testified in his own behalf.

Defendant told the Court that at the time of the occurrences herein he was a Professor at the University of Southern Illinois at Edwardsville, Illinois; also, that presently he was Associate Professor of Criminal Justice at the State University of New York. He also told of two research programs in which he was engaged.

The Judge indicated he wanted to hear from occurrence witnesses. Mrs. Daniels, the Executive Secretary of the Selective Service office in Edwardsville, as well as several of her asssistants, testified.

Mrs. Charleston, one of the assistants, testified that on May 5, 1970, she heard a loud noise and then attempted, at Mrs. Daniels' request, to close the door to the Selective Service office. However, a man in a clergyman's dress (subsequently identified as the defendant) pushed the door open and said "Oh, no, we are coming through." She saw the defendant tear up a memorandum which had been received from Selective Service Headquarters.

Another employee, Mrs. Thorpe, heard the commotion of the crowd and heard the defendant say "No, we are coming in." She stated that about one hundred people were "packed in there." She also saw defendant jerk a framed picture of the President of the United States off the wall and bang it against the corner of a desk shattering the glass in the frame. Defendant then extracted the picture from the frame, stood on the desk and proceeded to tear the President's photo into bits.

Defendant stated that on May 5, 1970, a large number of students had gathered on the campus of Southern Illinois University, protesting the invasion of Cambodia and the death of students at Kent State University. Defendant claims he did a good deed by directing the students away from college buildings to the downtown courthouse and, at defendant's suggestion, to the Selective Service office housed in the United States Post Office.

Defendant's explanation of taking the President's picture from the wall and destroying it before the assembled students was that he was urging each of the demonstrators to take a piece of the picture as a "symbolic protest" and to return home to talk over the day's events.

Yet, the evidence is uncontroverted that defendant was the leader of the protest group as it entered the Selective Service office. From the facts presented by defendant he appeared to be one of the self-proclaimed leaders of the protest. The Selective Service office was entered by the protestors and Government property was destroyed. The felony charge against defendant was dropped by the United States Attorney, and defendant was found guilty of the misdemeanor by the trial court. While defendant could have faced a possible one year's imprisonment, the trial judge sentenced him to four months in a jail-like institution, and probation.

Upon appeal, defendant asserts the presentence or probation report prepared by a probation officer should have been disclosed by the District Court pursuant to defendant's motion for disclosure filed on January 5, 1971; that the denial of this motion was reversible error and an abuse of the trial court's discretion.

Both the attorney for defendant and the Assistant United States Attorney stated they did not know what was in the presentence report. The Judge then stated that neither the defendant nor the Government would be allowed to see the presentence report.

Claiming surprise, defendant's counsel requested an opportunity to present additional testimony. This motion was denied on the ground that a full hearing had been held and any further testimony would be cumulative. However, the Court stated that defendant would be permitted to withdraw his plea of guilty if he thought he were being treated unfairly. The defendant declined to do so.

The Court then gave defendant an opportunity to express any further feeling he had. Defendant once again summarized the reasons why he thought he should be granted probation.

The District Court sentenced defendant to the custody of the Attorney General of the United States for a period of one year with the provision that he serve four months in a jail-type institution; that the balance of the sentence be suspended and that defendant be placed on probation for a period of three years.

In considering whether defendant was fairly treated, it might be noted that on six occasions at the probation hearing, the District Judge offered the defendant an opportunity to withdraw the plea of guilty. On each occasion, defendant declined to do so.

Rule 32(c) (2) of the Federal Rules of Criminal Procedure provides: ". . . The court before imposing sentence may disclose to the defendant or his counsel all or part of the material contained in the report of the presentence...