Wasman v. United States, No. 83-173

CourtUnited States Supreme Court
Writing for the CourtChief Justice BURGER announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-A, III-A, III-C, and IV, and an opinion with respect to Parts II-B and III-B, in which Justice WHITE
Citation468 U.S. 559,104 S.Ct. 3217,82 L.Ed.2d 424
Decision Date03 July 1984
Docket NumberNo. 83-173
PartiesMilton R. WASMAN, Petitioner v. UNITED STATES

468 U.S. 559
104 S.Ct. 3217
82 L.Ed.2d 424
Milton R. WASMAN, Petitioner

v.

UNITED STATES.

No. 83-173.

Supreme Court of the United States

Argued March 20, 1984.
Decided July 3, 1984.
Syllabus

Prior to trial on a federal indictment charging petitioner with mail fraud, he was indicted, tried, and convicted of the unrelated federal offense of knowingly and willfully making false statements in a passport application. At the sentencing hearing, the trial judge stated that, pursuant to his usual practice, he would not consider the pending mail fraud charge in passing sentence but would consider only prior convictions. Petitioner was then sentenced to two years' imprisonment, all but six months of which was suspended in favor of three years of probation. Thereafter, the mail fraud indictment was dismissed, and an information charging petitioner with possession of counterfeit certificates of deposit was substituted. Petitioner pleaded nolo contendere to that charge before a different District Court Judge and was sentenced to two years' probation. Subsequently, the Court of Appeals reversed petitioner's conviction for the passport offense, and petitioner was retried on the charge before the same trial judge and was again convicted. In imposing a sentence of two years' imprisonment, none of which was suspended, the trial judge explained that he imposed the greater sentence because of petitioner's intervening conviction for possession of counterfeit certificates of deposit. The judge rejected petitioner's argument that because the conduct underlying the conviction for possession of counterfeit certificates of deposit occurred prior to petitioner's original sentencing on the passport conviction, he could not, under North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, receive a sentence greater than that received for the original conviction. The Court of Appeals affirmed.

Held: After retrial and conviction following a defendant's successful appeal, a sentencing authority may justify an increased sentence by affirmatively identifying relevant conduct or events that occurred subsequent to the original sentencing proceedings. Pp. 563-565, 569-571, 571-572.

(a) In Pearce, supra, the Court held that the Due Process Clause of the Fourteenth Amendment prevented increased sentences motivated by vindictive retaliation by the judge after reconviction following a successful appeal, and that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Thus, Pearce establishes a rebuttable

Page 560

presumption of vindictiveness, not an absolute prohibition against enhancement of sentence. Pp. 563-565.

(b) Here, the fact that petitioner in effect received a greater sentence of confinement following retrial than he had originally received was sufficient to engage the presumption of Pearce. However, the trial judge carefully explained his reasons for imposing the greater sentence, and his consideration of the intervening conviction was manifestly legitimate, amply rebutting any presumtion of vindictiveness. Pp. 569-571.

700 F.2d 663 (CA 11 1983), affirmed.

Jay R. Moskowitz, Miami, Fla., for petitioner.

Alan I. Horowitz, Washington, D.C., for respondent.

Chief Justice BURGER announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-A, III-A, III-C, and IV, and an opinion with respect to Parts II-B and III-B, in which Justice WHITE, Justice REHNQUIST, and Justice O'CONNOR joined.

We granted certiorari to decide whether the Due Process Clause of the Fifth Amendment was violated when a federal defendant was given a greater sentence after retrial following a successful appeal than he had been given after his original conviction because the sentencing court considered an intervening criminal conviction for acts committed prior to the original sentencing.

Page 561

I

Petitioner, an attorney, was indicted on four counts of mail fraud in violation of 18 U.S.C. § 1341. Prior to trial on these charges, he was indicted, tried, and convicted of the unrelated offense of knowingly and willfully making false statements in a passport application, in violation of 18 U.S.C. § 1542. At the sentencing hearing following petitioner's first conviction, the Government advised the court that charges were then pending against petitioner for mail fraud and that petitioner previously had been convicted for failure to file a tax return. Petitioner's counsel replied that it would be inappropriate for the court to consider the pending mail fraud charges in its sentencing on the passport conviction because petitioner had yet to respond to the charges.

The District Court Judge informed the parties that he would not consider the pending mail fraud charge in sentencing petitioner. The judge explained that he always considered prior convictions when sentencing a defendant but that he did not consider pending charges: "[I]f judges at the time of considering prior convictions also consider pending cases . . . then if that pending case resulted in a conviction, one of the sentences would inevitably have been a pyramided sentence." App. 26. Following this colloquy, the judge sentenced petitioner on the passport offense to two years of imprisonment, all but six months of which he suspended in favor of three years of probation.

Thereafter, pursuant to negotiations between petitioner and the Government, the Government dismissed the mail fraud indictment and substituted a one-count information charging petitioner with possession of counterfeit certificates of deposit, in violation of 18 U.S.C. § 480. Petitioner pleaded nolo contendere to this charge before another Federal District Court Judge in the Southern District of Florida and was sentenced to two years' probation. App. to Brief for Petitioner 3-15.

Page 562

The Court of Appeals for what was then the Fifth Circuit subsequently reversed petitioner's first conviction on grounds not material here and remanded for a new trial. 641 F.2d 326 (1981). Petitioner was retried on that charge and was again convicted. The presiding judge at the second trial was the same judge who had presided at petitioner's first trial on the passport offense and sentenced petitioner to the 2-year partially suspended sentence, with probation. This time, the judge sentenced petitioner to two years of imprisonment, none of which was suspended. The judge explained to petitioner and counsel for the Government that he was imposing a greater sentence because of petitioner's intervening conviction for possession of counterfeit certificates of deposit:

"[W]hen I imposed sentence the first time, the only conviction on [petitioner's] record in this Court's eyes, this Court's consideration, was failure to file income tax returns, nothing else. I did not consider then and I don't in other cases either, pending matters because that would result in a pyramiding of sentences. At this time, he comes before me with two convictions. Last time, he came before me with one conviction." App. to Pet. for Cert. A-42.

The judge rejected an argument by petitioner's counsel that because the conduct underlying the conviction for possession of counterfeit certificates of deposit occurred prior to petitioner's original sentencing on the passport conviction, petitioner could not, under North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), receive a sentence greater than that received for the original conviction.

The Court of Appeals for the Eleventh Circuit affirmed, holding that petitioner's increased sentence "was based on objective, factual new evidence not previously considered, that it was neither motivated by judicial vindictiveness nor reasonably perceivable as having been so motivated. . . ." 700 F.2d 663, 670 (1983). It held that the District Court

Page 563

"followed precisely the procedural steps of [North Carolina v.] Pearce, affirmatively stating on the record his reason for enhancing the sentence, basing that reason on objective information concerning identifiable conduct of the defendant, and making the factual data on which his action was based part of the record so that its constitutional legitimacy [could] be fully reviewed on appeal." Id., at 667.

The Court of Appeals rejected petitioner's argument that his sentence could not be increased after retrial based on the intervening counterfeiting conviction because the counterfeiting offense itself was not "conduct on the part of the defendant occurring after the time of the original sentencing," see Pearce, supra, at 726, 89 S.Ct., at 2081. The Court of Appeals read Pearce to be concerned only with "vindictive sentencing, not defendant misbehavior between trials." The Court of Appeals noted that there was "no evidence whatsoever" that petitioner's sentence was increased out of vindictiveness. The court expressly declined to follow the contrary holdings of the Courts of Appeals for the Second and Ninth Circuits that an enhanced sentence must be based upon conduct of the defendant occurring after the original sentencing. See United States v. Markus, 603 F.2d 409 (CA2 1979); United States v. Williams, 651 F.2d 644 (CA9 1981).

We granted certiorari, 464 U.S. 932, 104 S.Ct. 334, 78 L.Ed.2d 304 (1983), to resolve the conflict among the Circuits as to the meaning of this Court's holding in Pearce.

II
A.

It is now well established that a judge or other sentencing authority is to be accorded very wide discretion in determining an appropriate sentence. The sentencing court or jury must be permitted to consider any and all information that reasonably might bear on the proper sentence for the particular defendant, given the crime committed. Justice Black

Page 564

made this point when, writing for the Court in Williams v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 1083, 93 L.Ed. 1337 (1949), he observed...

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    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • January 10, 1989
    ...104, 114-20, 92 S.Ct. 1953, 1959-62, 32 L.Ed.2d 584 (1972); Pearce, 395 U.S. at 723, 89 S.Ct. at 2079; see also Wasman v. United States, 468 U.S. 559, 566, 104 S.Ct. 3217, 3221, 82 L.Ed.2d 424 (1984) (plurality opinion). Rather, the presumption envisioned in Pearce arises "only in cases in ......
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    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • April 25, 2012
    ...because the defendant exercised a constitutional right, such as the right to jury trial or the right to appeal. Wasman v. United States, 468 U.S. 559, 567–68, 104 S.Ct. 3217, 82 L.Ed.2d 424 (1984) (citing, inter alia, North Carolina v. Pearce, 395 U.S. 711, 725, 89 S.Ct. 2072, 23 L.Ed.2d 65......
  • People v. Foley
    • United States
    • California Court of Appeals
    • August 6, 1985
    ...an appeal can properly be used to increase a sentence at resentencing. Just last term, in Wasman v. United States (1984) 486 U.S. ----, 104 S.Ct. 3217, 82 L.Ed.2d 424 the court unanimously held the Due Process Clause of the Fifth Amendment was not violated when a federal defendant was given......
  • People v. Collins, No. S075232.
    • United States
    • United States State Supreme Court (California)
    • August 2, 2001
    ...penalize a person's reliance on his legal rights is `patently unconstitutional.' [Citations.]" (Ibid.; see Wasman v. United States (1984) 468 U.S. 559, 567-568, 104 S.Ct. 3217, 82 L.Ed.2d 424 (plur. opn. of Burger, C. J.); United States v. Goodwin (1982) 457 U.S. 368, 372, 102 S.Ct. 2485, 7......
  • Request a trial to view additional results
548 cases
  • U.S. v. Pimienta-Redondo, PIMIENTA-REDOND
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • January 10, 1989
    ...104, 114-20, 92 S.Ct. 1953, 1959-62, 32 L.Ed.2d 584 (1972); Pearce, 395 U.S. at 723, 89 S.Ct. at 2079; see also Wasman v. United States, 468 U.S. 559, 566, 104 S.Ct. 3217, 3221, 82 L.Ed.2d 424 (1984) (plurality opinion). Rather, the presumption envisioned in Pearce arises "only in cases in ......
  • Izaguirre v. Lee, No. 10–CV–3216 (JFB).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • April 25, 2012
    ...because the defendant exercised a constitutional right, such as the right to jury trial or the right to appeal. Wasman v. United States, 468 U.S. 559, 567–68, 104 S.Ct. 3217, 82 L.Ed.2d 424 (1984) (citing, inter alia, North Carolina v. Pearce, 395 U.S. 711, 725, 89 S.Ct. 2072, 23 L.Ed.2d 65......
  • People v. Foley
    • United States
    • California Court of Appeals
    • August 6, 1985
    ...an appeal can properly be used to increase a sentence at resentencing. Just last term, in Wasman v. United States (1984) 486 U.S. ----, 104 S.Ct. 3217, 82 L.Ed.2d 424 the court unanimously held the Due Process Clause of the Fifth Amendment was not violated when a federal defendant was given......
  • People v. Collins, No. S075232.
    • United States
    • United States State Supreme Court (California)
    • August 2, 2001
    ...penalize a person's reliance on his legal rights is `patently unconstitutional.' [Citations.]" (Ibid.; see Wasman v. United States (1984) 468 U.S. 559, 567-568, 104 S.Ct. 3217, 82 L.Ed.2d 424 (plur. opn. of Burger, C. J.); United States v. Goodwin (1982) 457 U.S. 368, 372, 102 S.Ct. 2485, 7......
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