United States v. Mitchell

• Decision Date: 01 April 1968
• Docket Number: No. 324,Docket 31865.,324
• Citation: 392 F.2d 214
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David Henry MITCHELL, III, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

392 F.2d 214 (1968)

UNITED STATES of America, Plaintiff-Appellee, v. David Henry MITCHELL, III, Defendant-Appellant.

No. 324, Docket 31865.

United States Court of Appeals Second Circuit.

Argued March 12, 1968.

Decided April 1, 1968.

Jon O. Newman, U. S. Atty. for District of Connecticut, for plaintiff-appellee.

Kunstler & Kunstler, New York City, and Samuel Gruber, Stamford, Conn., (William M. Kunstler, New York City, on the brief), for defendant-appellant.

Before KAUFMAN and HAYS, Circuit Judges, and RYAN, District Judge.^*

RYAN, District Judge:

This is an appeal from an order of Judge Clarie denying appellant's motion for reduction of sentence imposed on March 16, 1966 following a return of a jury verdict of guilty of failure to report for induction into the Armed Forces of the United States (Title 50 App.U.S.C. § 462). Defendant was sentenced to five years' imprisonment, with a recommendation that the sentence be served in an institution not located in the States of New York or Connecticut and a further recommendation that parole not be granted until the defendant had served a period of time equal to the minimum time of military service of an inductee in the Armed Forces. The sentence was within the statutory maximum; no fine was imposed although the statute permits imposition of a fine not exceeding $10,000 in addition to a prison term.

The conviction was affirmed by this Court on December 5, 1966, (2 Cir., 369 F.2d 323); certiorari was denied by the Supreme Court on March 20, 1967 (386 U.S. 972, 87 S.Ct. 1162-1163, 18 L.Ed. 2d 132); and a petition for rehearing was denied on May 8, 1967. This motion was filed on September 1, 1967, heard on September 18, 1967, and denied on September 27, 1967.

The principal reason advanced for reduction of sentence is that the sentencing Judge, in imposing the maximum prison term, was motivated by "personal animus" and "a personal dislike of appellant's alleged agnosticism," which defendant urges are "unconstitutional criteria" and constitute an abuse of discretion.

Before turning to the record of the proceedings at the time of sentence, we dispose of the preliminary argument raised by the Government that this motion was not timely made under Rule 35, F.R.Crim.P., and that, therefore, neither the sentencing Court nor this Court has jurisdiction to entertain it.

The motion was made long after 120 days from the date of denial of certiorari. It was, however, made within 120 days of the date of the order denying a rehearing on the denial of certiorari.

The Government contends that Rule 35 clearly provides that a motion to reduce a sentence must be made within 120 days of denial of certiorari, and that the petition for rehearing does not toll the 120 days. It argues that this is evidenced by the three examples cited in the Reviser's Notes upon the amendment of Rule 35 extending the time for the making of such motions from 60 days to 120 days, which make no mention of petitions for rehearing. To hold otherwise, the Government urges, would serve to extend the time for the making of a motion to reduce sentence indefinitely by the bringing on of successive petitions for rehearing.

Defendant's position is that the time within which such a motion may be made is to be computed from the date of the order denying a petition for rehearing, since such an order is to be construed as "having the effect of upholding a judgment of conviction."

Judge Clarie ruled that he would consider the motion "as if legally and properly filed" and proceeded to the merits.

It may well be that appropriate provisions for a halt in repeated filings of petitions for rehearing should be included in amendments to Court rules, rather than by applying a strained and strict construction of Rule 35. We do not have an instance of abuse of process here for no one can argue with the appellant's statement that a petition for rehearing is a common last step before a defendant resigns himself to the fact of his conviction.

At this time we see no occasion to decide which position has the greater merit.

The record of the sentencing Court discloses that defendant-appellant and counsel, prior to the imposition of sentence, were given great latitude in addressing the Court. Both delivered what were in essence political discussions critical of the United States' foreign policies. Counsel very inappropriately concluded with the statement that they had sought justice, not mercy, and a "full ventilation of American foreign policy." The defendant's address was an intemperate harangue concerning his personal views on moral questions. It went far beyond the bounds of propriety; it was of matters in no way relevant to the prosecution and far exceeded his right of allocution, a right to make a statement on his own behalf or in mitigation of punishment (Green v. United States, 365 U.S. 301, 81 S.Ct. 653, 5 L.Ed.2d 670). In support of his professed "moral principles," the defendant characterized the Court as a "supposed Court of justice," the "perversion" and "Nazification" of which was used by the Government as a mere instrument of power, (p. 8). Further berating the Court the defendant said:

"This Court has sold justice to power and morality to patriotism. The Court has proved itself guilty as the Germans were guilty, and has taken a step towards attempting to force that guilt on all individuals in the country by enforcing the crimes of its Government."

The balance of defendant's statement was a vitriolic attack on the United States Government and the reading into the record of a statement of a "European writer" on this subject. It was plainly written and prepared in advance and was not extemporaneously made.

Allocution does not grant a defendant the right to enter into a diatribe of the sentencing Judge, or of the Court, or the judicial system of which he is a part. It is not a time for platform speeches on either philosophical, religious or political issues. All are provided by our laws with opportunity for full public discussions to an extent which has never been equaled by any organized society or government. The time of imposition of sentence is not a public forum to be used by either a defendant or his attorney for that purpose.

The sentencing Judge displayed patience, restraint and prudence in not taking issue with these offensive epithets and remarks. The record discloses that Judge Clarie did say, however, that:

"The Court has carefully reviewed the Probation Officer\'s Report. It is difficult for the Court to rationalize the defendant\'s reference to morality and virtue at this time to justify his position, in light of certain things in the report of the Probation Officer.

"According to the probation report, the defendant is an agnostic; he doesn\'t believe in a Supreme Being. From April \'62 to the summer of \'64, he was in a common law relationship with a woman in New York. It is difficult to understand virtue and morality as being personal motivations at this time, in respect to his appearance before the bar of this court."

When requested by counsel to strike these observations (which counsel misquoted), Judge Clarie refused to do so, stating:

"The Court did not say he had a doubtful sense of morality. The Court had difficulty rationalizing his reference to morality."

Defendant's counsel, on the motion to reduce sentence, made an impassioned, if irrelevant, statement to the...