United States v. Wiley

• Decision Date: 23 May 1960
• Docket Number: No. 12853.,12853.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. LeRoy WILEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

278 F.2d 500 (1960)

UNITED STATES of America, Plaintiff-Appellee, v. LeRoy WILEY, Defendant-Appellant.

No. 12853.

United States Court of Appeals Seventh Circuit.

May 23, 1960.

Charles B. Evins, R. Eugene Pincham, Glenn C. Fowlkes, Chicago, Ill., for defendant-appellant.

Robert Tieken, U. S. Atty., Charles R. Purcell, Jr., Asst. U. S. Atty., Chicago, Ill., for appellee, John Peter Lulinski, Asst. U. S. Atty., Chicago, Ill., of counsel.

Before DUFFY and SCHNACKENBERG, Circuit Judges, and PLATT, District Judge.

SCHNACKENBERG, Circuit Judge.

This appeal by LeRoy Wiley, defendant, is from a judgment of the district court, entered October 22, 1959, denying his application for probation, a judgment entered October 23, 1958, insofar as it adjudged him guilty of a violation of 18 U.S.C.A. § 659, having been theretofore affirmed by this court (United States v. Wiley, 267 F.2d 453, 455).

In his prior appeal, Wiley was unsuccessful in securing a reversal of the 1958 judgment, insofar as it adjudged him guilty on count II of an indictment which charged him and Ulysses McGhee, Joseph Helen, Joseph M. Kelley and Roman Jackson with unlawfully, willfully, knowingly and feloniously having in their possession certain dresses, unlawfully stolen while moving in an interstate shipment and known by them to have been stolen. However, on the prior appeal, we sustained Wiley's contention that the district court was required by 18 U.S.C.A. § 3651 and 18 U.S.C.A. rule 32 of the Federal Rules of Criminal Procedure to receive and act upon his application for probation. Accordingly, we held that the trial judge erred in refusing so to do, in reliance upon his announced standing policy that he does not consider an application for probation by a defendant who pleads not guilty and stands trial.

Although we affirmed the first judgment against Wiley, we remanded the cause to the district court for consideration of his application for probation. United States v. Wiley, supra, 267 F.2d 456.

It will be noted that the court purported to sentence Wiley originally in this case on October 23, 1958. It was four days later that the court sentenced the four co-defendants. At that time it was pointed out by the government's attorney that McGhee had four prior felony convictions and was characterized as the "ring leader" in this matter. It was pointed out that there is evidence "that subsequent to this offense and while he was out on bond he committed two other similar offenses for which we did not indict him because of the pendency of this matter here." A showing was made to the court that Helen, Kelley and Jackson had records of prior convictions. The court thereupon pronounced the following prison sentences: Ulysses McGhee, 2 years; Joseph Helen, 1 year and 1 day; Joseph M. Kelley, 1 year and 1 day (commencing on termination of sentence being served in the Cook county, Illinois, jail); and Roman Jackson 1 year and 1 day.

On November 7, 1958, the district judge heard the motion of Ulysses McGhee to vacate an order setting his appeal bond and the following colloquy between the court and counsel ensued:

Mr. Grady, government counsel (referring to McGhee):

"Here is a man with five prior felony convictions, your Honor, and you gave him two years."

* * * * * *

The Court: "I had the benefit of the trial of the co-defendant Wiley who pled not guilty. I did not know myself what would be a fair sentence, taking into consideration his plea of guilty.

"Now, after all these occurred and after I had read the FBI report, I came to the conclusion that in view of his former record and also in view of what I regarded as his principal participation in this crime, that he deserved a greater sentence than some of his co-defendants who, in my opinion, had a minor participation in the crime compared to his.

"Accordingly, the one who stood trial, I believe I gave three years to him, did I not?"

Mr. Grady: "That is right."

The Court: "And to this particular defendant who pled guilty, and whom I regarded, after my review of all of the facts and the FBI reports, and after my hearing of the evidence in the case where one of the defendants pled not guilty Wiley, I came to the conclusion that this particular defendant McGhee was somewhat of a ringleader and I gave him two years, less than a minor participant who stood trial Wiley, but greater than other minor participants who, like this defendant, had pled guilty."

Upon the filing of our mandate in the district court, the trial judge proceeded with a hearing on the motion of Wiley for probation. The minister of a church and a member of the Illinois Youth Commission Advisory Board, who was an aunt of the defendant, as well as his wife and mother of his three minor children, and Wiley¹ testified in support of the motion. In opposition, Otto Handwerk, an agent for the Federal Bureau of Investigation, testified as to defendant's connection with the crime for which he had been convicted, which in substance was that defendant McGhee had told Handwerk that Wiley had put McGhee in contact with people who would buy the merchandise which McGhee and the other defendants had stolen from a truck and that he (McGhee) had paid defendant Wiley for this service of getting a fence.

The court thereupon made the following statement:

"Well, the hearing today may have brought out in greater detail some of the factors which I had before me at the time of the imposition of sentence, but certainly has brought out no new evidence. Everything that was brought out here today was thoroughly and, I thought, quite ably discussed and stated to the Court by the attorney for the defendant at the time of the original imposition of sentence.

"As I observed at that time, I made the sentence then less than I otherwise would by reason of certain features to which I then alluded² — and it is still my opinion that he is entitled to that consideration in view of those factors.

"At that time I denied probation and I have heard nothing further at this hearing in addition to what was fully before me then. My decision is still the same.

"The application for probation is denied and the sentence heretofore imposed is reimposed; that is to say, that on the judgment of guilty heretofore entered by this Court and affirmed by the Court of Appeals, the defendant is now sentenced to the custody of the Attorney General of the United States to be incarcerated in the penitentiary of the United States for a term of three years. * * *"

In our prior opinion, we stated that the trial court's decision on whether or not probation shall be granted in any particular case is seldom set aside except for abuse of discretion. United States v. Wiley, supra, 267 F.2d 455. While we are strongly of the opinion that, if we were sitting in this case in place of the district judge, we would have granted Wiley probation, we are not convinced that his taking an opposite view shows that he abused his discretion. He did conduct a hearing as required by our mandate and in that respect we will let the matter rest. However, on this appeal, we are confronted with another question. It has to do with the sentence imposed upon Wiley. As above pointed out, the trial judge sentenced Wiley to 3 years' imprisonment on October 23, 1958. He refused a...