John Franklin Taylor v. United States

285 F.2d 703, 1960 U.S. App. LEXIS 3072

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 12, 1960
• Docket: 16726_1
• Status: Published

Opinions

BARNES, Circuit Judge.

This appeal has been determined in part by a unanimous court. Reference is hereby made to the general discussion and recital of facts, and to the first four questions common to all defendants and determined in that decision entitled Johnson v. United States, 9 Cir., 285 F.2d 700. We incorporate the portion of that opinion applicable to the appellant Taylor in this opinion. We consider here the two questions peculiar to the Taylor appeal alone.

The first is the board’s failure to reopen the matter of Taylor’s classification.

[I] Taylor sent the draft board information that he had become a “vacationpioneer” which is part-time ministerial work and which may lead to full-time ministerial work. Taylor did not request that the classification be reopened. He advised, but did not request. The point has already been decided adversely to appellant by our ruling in Shaw v. United States, 9 Cir., 1959, 264 F.2d 118. We decline to overrule that decision.

The next question raised by Taylor alone is alleged error in sentencing procedure.

Appellant Taylor urges that Rule 32 (a), Fed.R.Crim.P., 18 U.S.C.A., was not followed in his case. This rule, in material part, reads:

“Before imposing sentence the court shall afford the defendant an opportunity to make a statement in his own behalf and to present any information in mitigation of punishment.”

There is a difference of opinion in the several circuits as to whether the word “shall” in this rule means “must.” In Couch v. United States, 1956, 98 U.S. App.D.C. 292, 235 F.2d 519, 521, the District of Columbia Circuit held it was the better practice to advise the convicted person of his right to make a personal statement in his own behalf, but applied their interpretation prospectively only, refusing to reverse the conviction. And see Gadsden v. United States, 1955, 96 U.S.App.D.C. 162, 223 F.2d 627.

The First Circuit in Green v. United States, 1 Cir., 1959, 273 F.2d 216, 217, refused to follow the District of Columbia Circuit. But it is noted that the First Circuit did it on the facts of that case, where counsel had had full opportunity to speak “and has spoken at length for his client in mitigation of punishment.” Id., 273 F.2d at page 217. (Emphasis added.) Certiorari granted April 18, 1960, 362 U.S. 949, 80 S.Ct. 867, 4 L.Ed.2d 867.

Other circuits have refused to follow the rule literally where there has been waiver by counsel, Kennedy v. United States, 5 Cir., 1958, 259 F.2d 883, 886, certiorari denied 359 U.S. 994, 79 S.Ct. 1126, 3 L.Ed.2d 982, or where nothing can be accomplished by allocution. United States v. Galgano (United States v. Carminati), 2 Cir., 1960, 281 F.2d 908. And see Yaich v. United States, 9 Cir., 1960, 283 F.2d 613 (petition for rehearing denied).

The government urges that Taylor was “represented at every stage of the proceedings” by counsel of his choice; that a defendant must choose between having representation or “handling matters completely on his own.”

We cannot agree. The words “shall afford the defendant an opportunity to make a statement in Ms own behalf” (emphasis added) seem to connote a different and more extensive procedure than exists when “a defendant” moves, requests or acts, under the other rules. Cf. Fed.R.Crim.P. 15(a), 16, 17 (b), 21(a), 21(b), 24(b), 28, 29(a) and 31(d). A lawyer may ordinarily act for a defendant (and, for example, waive the polling of a jury, or a peremptory challenge of a prospective juror) without any showing of a waiver by a defendant. But here we think either the defendant, or counsel of his choice, in defendant’s presence, can waive. If a defendant has any objection to his counsel’s waiver made in his presence, he can then express himself. And cf. People v. Rogers, Cal.App.1960, 8 Cal.Rptr. 843.

That defendant is entitled to representation of counsel at all stages of the proceedings, including sentencing, does not necessarily mean he cannot speak “in his own behalf * * * in mitigation of punishment.”

The record is bare of any statement made “in his own behalf * * * in mitigation of punishment.” Plenty was said by his counsel in attempting to establish his lack of guilt.

Nor can we clearly find a waiver here, as existed in Yaich v. United States, supra. It is true Mr. Tietz (counsel for appellant Taylor) stated:

“I can say no more * * * I fear that anything I might say now might not help my client. I have said everything I can.”

Had this. been said after conviction and at time of sentence after some argument in mitigation had been made by counsel for appellant, we would not hesitate to find a waiver. But here the record discloses no statement of any kind in mitigation had been made by counsel, or by his client. Thus Mr. Tietz’s reference to “having said everything I can” may very well have referred to what had been said by counsel in his client’s defense before the adjudication of guilt.

We therefore hold the findings and adjudication of guilt in the Taylor case are correct, but the sentence is vacated. The judgment of conviction entered under Rule 32(b), which is interwoven with the sentence heretofore imposed, should be re-entered concurrently with resentencing. The matter is remanded to the district court in order that a sentence may be correctly imposed under Rule 32 after a hearing in which the appellant Taylor has the opportunity to make a statement on his own behalf and to present information in mitigation of punishment, should he so desire. His counsel can do this for Taylor, or Taylor can waive his right of allocution, either by his own statement, or the statement of counsel of his choice, made in his, the appellant’s, presence.

We recognize this remand may well be an idle act, but we are satisfied that without such remand, there is no sufficient proof of compliance with the provisions of Rule 32(a), mandatory in the absence of waiver.