United States v. Metz, 72-1441.
Decision Date | 22 December 1972 |
Docket Number | No. 72-1441.,72-1441. |
Citation | 470 F.2d 1140 |
Parties | UNITED STATES of America v. Matthew METZ et al. Appeal of James DAVENPORT. |
Court | U.S. Court of Appeals — Third Circuit |
Richard J. Catalano, Catalano, Ziegler & Maloney, Pittsburgh, Pa., for appellants.
Jay C. Waldman, Asst. U. S. Atty., Pittsburgh, Pa., for appellee.
Before BIGGS, JAMES ROSEN* and HUNTER, Circuit Judges.
Certiorari Denied April 2, 1973. See 93 S.Ct. 1558.
The appellant Davenport entered a plea of guilty to a one count indictment charging him with the violation of 18 U.S.C. § 2113(c), wilfully and unlawfully receiving, possessing and concealing federal credit union checks. Davenport was sentenced to three years imprisonment, the statutory sentence for this offense being a fine of not more than $5,000 or imprisonment of not more than ten years or both.1 This appeal followed.
The sole issue raised by Davenport is whether the court below erred in imposing sentence following consideration of information contained in the presentence report that Davenport was under indictment for other offenses. The record shows that the court, in explaining the factors it considered in imposing the three year sentence, stated:
"I think that for his own good we better get him into a situation where he isn't associated with Brown and Cochran and where even if these charges don't result in a conviction he is headed off before he gets into some real serious trouble.
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2
It is clear that a sentencing judge is vested with broad discretion in imposing sentence within the statutory limits.3 Only in "the exceptional situation, where it is evident that the district court has given substantial consideration to legally impermissible factors,"4 will this court intervene. In the case at bar, we hold that the sentencing judge considered no "legally impermissible factors".
18 U.S.C. § 3577 (1971) states: "No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence." This section reflects the policy, as expressed by the Supreme Court in Williams v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 1083, 93 L.Ed. 1337 (1949), that "highly relevant — if not essential — to his a sentencing judge's selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant's life and characteristics." To this end, F.R. Crim.P. 32(c) requires (1) a presentence investigation and report to the court before the imposition of a sentence, and (2) that this report contain any prior criminal record of the defendant and such information about his characteristics, financial condition and circumstances affecting his behavior as may be helpful in imposing sentence.5
The object of the sentencing court is thus to acquire knowledge of the character and history of the man before it. "Few things could be so relevant as other criminal activity of the defendant," United States v. Doyle, 348 F.2d 715, 721 (2 Cir. 1965), cert. denied, 382 U.S. 843, 86 S.Ct. 89, 15 L.Ed.2d 84 (1965), for consideration of other criminal activity is important in the balancing of punishment, deterrence, and rehabilitation, thereby determining the period of confinement anticipated to be required to effect the purposes of the sentence. See United States v. Eberhardt, 417 F.2d 1009, 1015 (4 Cir. 1969).
In Doyle, supra, the court held it proper for a sentencing judge to consider information concerning crimes for which the appellant had been indicted, but was neither tried nor convicted. Accord, United States v. Cifarelli, 401 F.2d 512 (2 Cir. 1968), cert denied 393 U.S. 987, 89 S.Ct. 465, 21 L.Ed.2d 448 (1968). See Young v. United States, 259 F.2d 641 (8 Cir. 1958); Jones v. United States, 113 U.S.App.D.C. 233, 307 F.2d 190 (1962), cert. denied, 372 U.S. 919, 83 S.Ct. 733, 9 L.Ed.2d 724 (1963). The fact that the other criminal activity has not been passed on by a court should not be controlling, for "of necessity, much of the information garnered by the probation officer will be hearsay and will doubtless be discounted accordingly, but the very object of the process is scope." United States v. Doyle, supra, 348 F.2d at 721. (Emphasis added). In fact, the kind of evidence here objected to is more reliable than the hearsay evidence which the sentencing judge can clearly consider, for unlike hearsay, the indictments are based on testimony given under oath and required the existence of probable cause to believe that Davenport had committed the other offenses.
We believe that the probable trustworthiness of information concerning other criminal charges is far more significant than the procedural stages of the other charges. United States v. Sweig, 454 F.2d 181 (2 Cir. 1972), held that the sentencing judge could properly consider evidence with respect to crimes of which the defendant had been acquitted. Sweig turns on the reliability of the evidence considered, for the evidence "was given under oath and was subject to cross-examination and the judge had the opportunity for personal observation of the witnesses." 454 F.2d at 184. In Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948), the Supreme Court made it clear that a sentence cannot be predicated on false information. And in United States v. Weston, 448 F.2d 626, 633-634 (9 Cir. 1971) the court dealt with the propriety of a sentencing judge's consideration of other criminal activity as follows:
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". . . .
Davenport's reliance on Weston is thus misplaced for the pending indictments considered here are of far greater reliability than the "unsworn evidence detailing otherwise unverified statements of a faceless informer that would not even support...
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