United States v. Kaylor

• Decision Date: 11 February 1974
• Docket Number: Docket 73-1530.,No. 1048,1048
• Citation: 491 F.2d 1133
• Parties: UNITED STATES of America, Appellee, v. James KAYLOR, Defendant, Willie Glen Hopkins, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

491 F.2d 1133 (1974)

UNITED STATES of America, Appellee, v. James KAYLOR, Defendant, Willie Glen Hopkins, Defendant-Appellant.

No. 1048, Docket 73-1530.

United States Court of Appeals, Second Circuit.

Submitted November 12, 1973.

Decided February 11, 1974.

Mark A. Landsman, Brooklyn, N. Y. (Lawrence Stern, New York City, of counsel), for appellant Hopkins.

Kenneth J. Kaplan, Asst. U. S. Atty. (Robert A. Morse, U. S. Atty., E. D. N. Y., L. Kevin Sheridan, Asst. U. S. Atty.), for appellee.

Before KAUFMAN, Chief Judge, and MOORE, FRIENDLY, HAYS, FEINBERG, MANSFIELD, MULLIGAN, OAKES and TIMBERS, Circuit Judges (en banc).

Submitted to the en banc Court November 12, 1973.

OAKES, Circuit Judge:

Following a divided panel opinion in this case filed October 15, 1973, rehearing en banc was ordered. The principal question presented is whether the trial court must make an affirmative explicit finding that a youth offender¹ will not "derive benefit from treatment" under the Federal Youth Corrections Act (Act), 18 U.S.C. § 5010(d).² A majority of the panel which decided this case held, in reference to appellant Hopkins, that an implicit finding was sufficient, the majority relying primarily upon Cox v. United States, 473 F.2d 334, 337 (4th Cir. 1973) (en banc), and United States v. Jarratt, 471 F.2d 226, 230 (9th Cir. 1972). The dissenting member of the panel agreed with the Court of Appeals for the District of Columbia, which held in United States v. Coefield, 155 U.S. App.D.C. 205, 476 F.2d 1152 (1973) (9-1 decision, en banc), inter alia, that "the finding required to be made under § 5010(d) as a condition to an adult sentence is to be explicit . . . ." Id. at 1158-1159.

Cases from other circuits bearing on the question have also taken different views.³ It is not without significance that in two cases holding that an implicit finding is sufficient, there were remands to the district courts for resentencing. In Cox v. United States, 473 F.2d at 337, there was a remand because the district judge had stated explicitly that he had not made a "no benefit" finding since he believed that § 5010(d) provided merely another alternative for sentencing rather than stated a preferred sentencing policy. In United States v. Jarratt, supra, the ground for remand was a difference between the sentence imposed orally and that in the written judgment of conviction; while the court stated that the "no benefit" finding was implicit, the court nevertheless instructed the district court to "clarify" its position "by making an express finding." Thus both the Fourth and Ninth Circuits, while holding that an implicit finding is sufficient, remanded for explicit findings.⁴

I.

Congress had long had separate treatment for juveniles, that is to say, those who have not attained their 18th birthdays, in connection with juvenile delinquency, defined as a violation of federal law committed by a juvenile and not punishable by death or life imprisonment. 18 U.S.C. § 5031. However, in 1950 a corrections program was specifically developed for youths committing federal crimes during the age between adolescence and maturity. See H.R. Rep.No.2979, 81st Cong., 2d Sess. 1 (1950) (hereinafter cited as H.R.Rep.), U.S.Code Cong. Serv. p. 3983. Irrespective of its sociological or criminological validity today, Congress adopted in specific terms the concept of rehabilitation as opposed to retribution, in the handling of youth offenders. As has been pointed out, "Congress was responding in part to the findings by psychologists and sociologists that there were `special causations' of antisocial tendencies in adolescents . . .," Note, supra note 4, at 1077, supposedly disappearing when the youth reaches the age of maturity. Thus the Act constitutes recognition that incarceration of young offenders in adult prisons may indeed encourage criminality rather than work to prevent it. See H.R.Rep. at 23, U.S.Code Cong. Serv. p. 3985.

The Act, as pointed out by Judge Fahy in Coefield, 476 F.2d at 1156, was undoubtedly the most comprehensive federal statute involving sentencing. It established the Youth Correction Division within the United States Board of Parole to administer the Act. 18 U.S.C. § 5005. It authorized the construction of "institutions of maximum security, medium security, or minimum security types, including training schools, hospitals, farms, forestry and other camps, and other agencies that will provide the essential varieties of treatment." 18 U.S.C. § 5011. The Act requires the use of such institutions and agencies as far as practicable "only for treatment of committed youth offenders" and calls for segregation of them from other offenders and segregation of committed youth offenders into classes according to their needs for treatment. Id. The underlying premise of the Act —even though the concept is being subjected to question in the present era by some psychologists and sociologists—is that a system of rehabilitative treatment may permit youth offenders to become "useful citizens." H.R.Rep. at 1, U.S. Code Cong. Serv. p. 3983.

While the Youth Corrections Act gives a judge the opportunity to sentence a youth offender other than to prison or to place him on probation, it clearly appears that Congress, while carefully preserving judicial discretion, nevertheless favored treatment of youth offenders under the Act, i. e., by way of rehabilitation. United States v. Coefield, 476 F.2d at 1157; Cox v. United States, 473 F.2d at 337. See United States v. Waters, 141 U.S.App.D.C. 289, 437 F.2d 722, 724-725 (1970). As the Fifth Circuit said in Cunningham v. United States, 256 F.2d 467, 472 (1958), the provisions of the Act "are designed, enacted and enforced with that end in view."

The language of the Act itself supports this basic proposition. Paragraph (d) of § 5010 says, "If the court shall find that the youth offender will not derive benefit from treatment under the Act then the court may sentence the youth offender under any other applicable penalty provision." Congress was very careful not to say that "if the court shall find that the youth offender will derive benefit from treatment under the Act then the court may sentence him thereunder." Congress specifically provided in § 5010(e) for temporary commitment for observation and study at an appropriate classification center or agency, which would tend to indicate that treatment under the Act was favored. Indeed, subsection (c) treatment, providing for longer confinement and supervision than subsection (b) treatment is, in and of itself, a recognition that some youthful offenders would need more intense rehabilitative treatment than others. See United States v. Coefield, 476 F.2d at 1160. And of course, all levels of security were provided for as mentioned above, § 5011, and various types of institutions and agencies were established or to be utilized for services under the Act. Nowhere is there any indication that the type of crime committed, elements of immorality or violence involved therein, or related factors are to be considered per se to require denial of treatment under the Act,⁵ even though Congress knew exactly how to do this both in the Juvenile Delinquency Act, 18 U.S.C. § 5032, and in the Narcotics Addiction Rehabilitation Act, 18 U.S.C. § 4251(f), recently upheld in Marshall v. United States, 414 U.S. 417, 94 S.Ct. 700, 38 L. Ed.2d 618 (1974).

Further developing the congressional scheme, it is readily apparent that there is a direct contrast between youth offenders under the Youth Corrections Act —such as appellant Hopkins—and "young adult offenders" under 18 U.S.C. § 4209, where Congress, after specifically requiring consideration of the previous record of the defendant, his social background, capabilities, mental and physical health and the like, permits the court to impose sentence under the Youth Corrections Act only "if . . . the court finds that there is reasonable grounds to believe that the defendant will benefit from that treatment. . . ." Quite evidently Congress intended to prefer treatment under the Youth Corrections Act for youth offenders, while it meant to permit such treatment only after affirmative findings in the case of young adult offenders. See United States v. Waters, 437 F.2d at 724. The overall congressional purpose, to provide treatment under the Act for youth offenders, as expressed in the language of the Act as well as its legislative history, guides our answer to the basic question whether a "no benefit" finding may be implicit or explicit.

II.

It is true, as the majority of the panel in this case considered, that the sentencing process is a complicated one and that the requirement of an explicit finding adds one more burden to the overall awesome task of the trial judge, particularly if coupled with a requirement that the reasons underlying its conclusion be set forth.⁶ At the same time, there is obviously considerable difficulty in ascertaining what is an implicit finding, a difficulty that in a day and age of a burgeoning appellate case load, see H. Friendly, Federal Jurisdiction: A General View 15-54 (1973), will lead to considerable appellate litigation. This cuts both ways because appeals of little or no merit will be filed while, as the Boston University Law Review note points out, meritorious claims may not be appealed.⁷ Indeed if one were to accept implicit findings at all, it is difficult to escape Judge MacKinnon's logic, expressed in his dissent in United States v. Coefield, 476 F.2d at 1162, that the imposition of an adult sentence "necessarily involves a finding of no benefit under the Act." Short of such a position, which would render the requirement of a finding by virtue of § 5010(d) nugatory, there will be the greatest of room for difference of opinion as to whether such a finding is to be implied. Indeed, Judge Rosling, in sentencing appellant Hopkins, stated before verdict that he "always takes" youth offender eligibility "into...