United States v. Williams

• Decision Date: 05 March 1969
• Docket Number: No. 12216.,12216.
• Citation: 407 F.2d 940
• Parties: UNITED STATES of America, Appellee, v. William Dove WILLIAMS, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

407 F.2d 940 (1969)

UNITED STATES of America, Appellee, v. William Dove WILLIAMS, Appellant.

No. 12216.

United States Court of Appeals Fourth Circuit.

Argued October 11, 1968.

Decided March 5, 1969.

Bernard G. Barrow, Norfolk, Va. (Court-appointed counsel) Vandeventer, Black, Meredith & Martin, Norfolk, Va., on brief, for appellant.

William T. Mason, Jr., Asst. U. S. Atty. (C. V. Spratley, Jr., U. S. Atty., on brief), for appellee.

Before SOBELOFF, WINTER and CRAVEN, Circuit Judges.

CRAVEN, Circuit Judge:

In this appeal from the imposition of a ten-year sentence of imprisonment under 18 U.S.C. § 4208(a) (2), the government concedes that if the district judge believed the defendant Williams was a narcotic addict and an eligible offender under 18 U.S.C. § 4251(f), but thought he did not have the option to allow Williams the benefit of sentence under the Narcotic Addict Rehabilitation Act, 18 U.S.C. § 4251 et seq., then it would follow that the district judge had sentenced under a misconstruction of his authority. The United States further concedes that in such event the error should be corrected by vacating the defendant's sentence.

Williams does not attack his guilty plea and does not ask for a new trial. He does not complain of the severity of his sentence and does not ask that we "review" it.¹ He asks only that he be resentenced and fairly considered for treatment under the Narcotic Addict Rehabilitation Act. We think the premises of the government's concession are established, and conclude that Williams is entitled to the limited relief sought.

Williams pleaded not guilty to an eight-count indictment charging him with forging and uttering four government checks. On the day set for trial he, with the permission of the court, withdrew his previously entered plea of not guilty as to count 2 and entered a guilty plea to that count only. Subsequently, the court allowed the motion of the United States Attorney to dismiss the other seven counts, and delayed sentencing to permit the probation officer to prepare and have available a presentence report to assist the district judge in discharging his sentencing responsibility.

On the day set for sentencing, the court convened and heard testimony as to the substantive offense. Counsel for defendant then offered in evidence the written report of Dr. Dietrich W. Heyder, a medical doctor specializing in psychiatry, who had examined the defendant pursuant to an order of the court.² After concluding that his diagnostic impression was one of "drug addiction, severe," secondary to a sociopathic disorder, Dr. Heyder made the following recommendation:

"* * * That the patient be admitted to the Public Health Hospital in Lexington,³ Kentucky, in order to receive treatment to prevent further relapses. It might be noted at this point that the mentioned hospital does not only serve to treat acute cases and withdrawal symptomytology but is specializing in therapeutic efforts to change the patient to enable him to function without drugs after release. Untreated, the prognosis for relapse is very poor, whereas the prognosis for change is good if proper care will be instituted." (Footnote ours.)

This is the only medical testimony in the record. The doctor's diagnosis is confirmed by portions of the presentence report which indicated a history of heroin use beginning in 1958 and continuing on a daily basis until his current arrest, with perhaps a period of remission between February 1963 and September 1965, although the probation officer suggested, despite Williams' denial, that he probably used narcotics to some extent even during this period. In his evaluative summary, the probation officer concluded that Williams "has virtually no goal or ambition other than to satisfy his immediate pleasures and to maintain his drug habit. It is believed that considerable reorientation in a controlled environment is necessary for Williams to rise above his parasitic existence in society."

No evidence was offered tending to show that Williams was not addicted to narcotics, nor did the United States Attorney so contend. All of the evidence before the court, including the presentence report, tended to show that he was, in fact, an addict. Immediately before passing sentence, the court indicated its awareness of the problem of narcotics for Williams in the words set out in the margin.⁴ Immediately after sentencing, counsel for Williams moved the court to include in the sentence a direction to the Attorney General to examine Williams and determine if he were eligible for commitment to a Public Health Service Center for addiction. The district judge replied as follows:

"Well, I feel certain that this will be called to their attention without the necessity of the Court saying anything about it and if they determine, after an examination and investigation of the matter, that it\'s proper that he be confined in some special institution that they should do so rather than the Court suggest that they do so.⁵ I believe that\'s a matter that should be determined by their discretion." (Footnote ours.)

Effective February 8, 1967, the Congress enacted legislation, known as the Narcotic Addict Rehabilitation Act of 1966, permitting special commitment for treatment of certain narcotic addicts who are found to be "eligible." 18 U.S.C. § 4251 et seq. It is provided that such a commitment shall be for an indeterminate period of time not to exceed ten years. It is this special commitment and the treatment available thereunder that is sought by defendant Williams.

The government contends that Williams was correctly and properly sentenced and is not entitled to vacation of the sentence and resentencing for three reasons.

First, says the government, the record of the sentencing procedure, and especially the remarks of the district judge immediately before pronouncing sentence (set out in note 4, supra), show that the district judge did not believe that the defendant was an addict. Without such a belief there is no duty upon the district judge to place the offender in the custody of the Attorney General for an examination to determine whether he is an addict and is likely to be rehabilitated through treatment.⁶

What the district court said should be read in the light of all of the evidence, which evidence tends to support only one conclusion: that Williams was under severe drug addiction, presently in remission because of his confinement in jail. Although it is not entirely clear, we think the most reasonable interpretation of the court's language set out in the margin (note 4, supra) is that he believed he had before him a narcotic addict. Without ignoring the record he could scarcely have believed otherwise. The credibility of the doctor and his competence were not questioned.

Secondly, and alternatively, the government insists that even if the trial judge believed the defendant to be a narcotic addict, the statute confers upon the judge discretion as to whether to invoke the provisions of 18 U.S.C. §§ 4252 and 4253, and the trial judge here exercised that discretion reasonably so that his failure to commit for examination was not an abuse of discretion and is not subject to correction on appeal. It is true that 18 U.S.C. § 4252 does say that the court "may" place the eligible offender in custody for an examination to determine whether he is an addict. We agree with the government that the legislative choice of the word "may" instead of the word "shall" clearly indicates an intention to confer upon district judges reasonable discretion whether to commit for an examination. We do not consider the possibility of an abuse of discretion because we conclude that the district judge here did not exercise at all the discretion conferred upon him. It is significant that nowhere in the record is there contained any mention whatsoever of the Narcotic Addict Rehabilitation Act of 1966 or any reference to the pertinent statutes by citation or otherwise. It is quite commonplace in the district courts for defense counsel to request of the trial judge that special instructions to the custodial authority be contained in the commitment. Such requests range from complete physical examinations to special dietary needs. We think the request here, not pinpointed to the specific statute, which was a new one, was not unreasonably interpreted by the district judge as one of the usual prayers for special instructions commonly heard under such circumstances.⁷ If we expect district judges, even the most able of them, to be a talking play-back of every statute conceivably pertinent to the myriad fact situations constantly changing in kaleidoscopic confusion in a criminal court, we expect too much. What is not in the record is even more convincing than what is in it. If the Narcotic Addict Rehabilitation Act of 1966 had specifically been brought to the court's attention, without a doubt, in our opinion, the record would contain colloquy about its statutory history and purpose and its intended application to offenders such as Williams. We think the district judge here did not exercise his discretion under the Act for the simple reason that it was not sufficiently called to his attention to make him aware of his discretion and his responsibility for the exercise of it.

That a defendant has a right to the exercise of the judge's discretion, in selecting his sentence or treatment, is established in a firm line of cases interpreting a California statute, similar to the one here, dealing with narcotic addicts. In pertinent part that statute provides:

"Upon conviction of a defendant for any crime in any superior court, if the judge ascertains that the defendant is addicted or by reason of repeated use of narcotics is in imminent danger of becoming addicted to narcotics he shall adjourn the proceedings or suspend the imposition of the sentence and direct the sheriff to file a petition to ascertain if such person is addicted to narcotics

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