Richards v. United States

192 F.2d 602, 30 A.L.R. 2d 880, 89 U.S. App. D.C. 354, 1951 U.S. App. LEXIS 2763

• Court: Court of Appeals for the D.C. Circuit
• Decided: September 27, 1951
• Docket: 10700
• Status: Published

Opinions

WASHINGTON, Circuit Judge.

The defendant Richards was convicted of grand larceny in the United States District Court for the District of Columbia, and appeals.

I.

We are confronted at the outset by the Government’s contention that this court lacks jurisdiction because the appeal was not taken “within 10 days after entry of the judgment or order appealed from * * as required by Rule 37(a)(2) of the Federal Rules of Criminal Procedure, 18 U.S.C.

It appears that the criminal docket of the District Court contains two entries in regard to the disposition of Richards’ case, namely:

“June 16, 1950—Sentenced to imprisonment for a period of Twenty (20) months to Five (5) years. Attorney Josiah Lyman present. Kirkland, J.”

“June 19, 1950—Judgment and commitment of 6/16/50, filed. Kirkland, J."

Notice of appeal was filed on Richards’ behalf on June 27th, more than ten days after June 16th, which the Government contends is the crucial date, but within ten days after the 19th.

We think that this notice of appeal was timely. The expression “entry of the judgment”, as used in Rule 37(a)(2), is not defined or explained by the Criminal Rules.¹ Nor have we found any decisions interpreting the Rules in this regard. But Criminal Rule 32(b) requires that a judgment of conviction shall be more than a formality; it must “set forth the plea, the verdict or findings, and the adjudication and sentence.” Rule 32(b) further requires that “The judgment shall be signed by the judge and entered by the clerk.” As (Judge Magruder of the First Circuit has said in a somewhat similar context, the clear implication of the Rule is that “the judgment must pre-exist before the clerk can perform the clerical or ministerial act of entering it.” In re Forstner Chain Corp., 1 Cir., 177 F.2d 572, at page 576. The formal document reflecting the judgment and commitment in the present case, signed by the judge, begins with the recital “On this 16th day of June, 1950 * * * It is adjudged * * and bears no other date. The judge may well have signed it on that day; perhaps we may even presume that he did so. June 16th was, of course, the day on which Richards was sentenced in open court. But the clerk did not make any record of the signed judgment on the criminal docket until June 19th, when he made the entry “Judgment and commitment of 6/16/50, filed. Kirkland, J.” We think that this was the “entry of the judgment” of which Rule 37(a) (2) speaks. Decisions of the Supreme Court prior to the promulgation of the Rules, though not controlling, lend support to this view. United States v. Hark, 320 U.S. 531, 64 S.Ct. 359, 88 L.Ed. 290; Silsby v. Foote, 20 How. 290, 295, 61 U.S. 290, 15 L.Ed. 822; Seymour v. Freer, 5 Wall. 822, 72 U.S. 822, 18 L.Ed. 564; Rubber Co. v. Goodyear, 6 Wall. 153, 73 U.S. 153, 18 L.Ed. 762; Polleys v. Black River Co., 113 U.S. 81, 5 S.Ct. 369, 28 L.Ed. 938. Other persuasive authority, though likewise not strictly in point, looks in the same direction. Neely v. Merchants Trust Co. of Red Bank, N. J., 3 Cir., 110 F.2d 525; Rosenberg v. Heffron, 9 Cir., 131 F.2d 80; United States v. Moore, 5 Cir., 182 F.2d 336; United States v. Rayburn, 8 Cir., 91 F.2d 162; In re Hurley Mercantile Co., 5 Cir., 56 F.2d 1023. See also Hill v. U. S. ex rel. Wampler, 298 U.S. 460, 464, 56 S.Ct. 760, 80 L.Ed. 1283.

This conclusion appears to us to be logically inescapable, under the wording of the Rules.² At the same time, we think we should add that it does not seem to us to be a conclusion prejudicial to the interests of either the Government or the defendant. It is, to be sure, a conclusion favorable to the remedy of appeal—a remedy we are not inclined to undervalue. As far as the effective date of the defendant’s sentence of imprisonment is concerned, that is a matter governed by express statutory provisions, not affected by our ruling here. 18 U.S.C. § 3568. We do not need to decide in this case whether, if a defendant takes an appeal immediately after being sentenced but before entry of judgment of conviction, his appeal is effectively taken. We think it proper to note, however, that there is authority for the proposition that an appeal so taken is not a nullity, but becomes fully effective ’ upon subsequent entry of judgment. See Luckenbach S. S. Co. v. United States, 272 U.S. 533, 535, 47 S.Ct. 186, 71 L.Ed. 394; Woods v. Nicholas, 10 Cir., 163 ; Porter v. Borden’s Dairy Delivery Co., 9 Cir., 156 F.2d 798. Compare Silsby v. Foote, 20 How. 290, 295, 61 U.S. 290, 15 L.Ed. 822; Berman v. United States, 302 U.S. 211, 212, 58 S.Ct. 164, 82 L.Ed. 204.

II.

The second major issue in the case relates to the effect to be given a pardon received by the appellant in respect of a prior conviction. Appellant contends that in view of the pardon it was error to allow the prosecutor to cross-examine him concerning the earlier conviction, in an effort to impeach his credibility.

Appellant took the stand in his own behalf. The prosecutor then questioned him concerning a conviction in a Federal court on January 5, 1942, based on the unauthorized use of a motor vehicle. Appellant objected to this line of questioning, on the ground that he had received a full pardon. The court took judicial notice of Presidential Proclamation No. 2676, 60 Stat. 1335, entitled “Granting Pardon to Certain Persons Who Have Served in the Armed Forces of the United States.” ³ That' proclamation, the text of which is appended to this opinion, was issued on December 24, 1945. In effect, it promulgated a general amnesty for persons convicted of violations of Federal statutes who had served honorably in the armed forces during World War II for not less than one year. Counsel for the appellant placed in evidence an honorable discharge granted to the appellant, and the trial court found as a fact that he had served honorably for more than one year in the armed services. The appellant’s objections were, however, overruled.

Judge Kirkland later prepared, prior to sentence and judgment, an extensive opinion supporting his ruling. United States v. Richards, D.C., 91 F.Supp. 323, noted 25 Tulane L.Rev. 281. We need not duplicate here the material contained in that opinion concerning the history of Executive pardons, nor repeat its copious citation of authority. We wish to add simply this: that the fundamental question here is whether an exception should be engrafted on the general rule — which is statutory in this jurisdiction⁴ — that where a defendant takes the stand the prosecutor may question him concerning prior convictions, in an effort to attack his credibility. That rule is one which has met with considerable criticism. It not only permits the prosecutor to throw doubt upon the defendant’s testimony regarding the facts of the case being tried, but also may result in casting such an atmosphere of aspersion and disrepute about the defendant as to convince the jury that he is an habitual lawbreaker who should be punished and confined for the general good of the community. Efforts to limit that rule and its consequences are accordingly not without considerable appeal.

It has been strongly urged in this case that we have before us a situation in which the usual application of the rule permitting impeachment of the defendant should be abrogated. Since the rule is statutory in the District of Columbia, there may be real doubt as to our power to create such an exception. Certainly, we cannot evolve an exception not in harmony with the basic purpose and reasoning of the legislation. That reasoning is no doubt this — that when the jury comes to assess the truth of any man’s testimony it should be allowed to consider his previous criminal activity and its impact on his trustworthiness. Shall a pardon be deemed to change the fact that a person was convicted of criminal activity on a past occasion? “If the pardon was granted because the prisoner had political influence, or was a model prisoner, or.behaved bravely in a prison fire, the pardon should not affect his credibility at all. The damage to his credibility * * * is not a legal consequence of the conviction; the conviction is merely evidence that he is untrustworthy, a fact not wiped out by the pardon.” Weihofen, The Effect of a Pardon, 88 U. of Pa.L.Rev. 177, 183. A different view might perhaps be taken where the pardon was granted by the Executive on the express ground that the convicted man’s innocence had been established, and that therefore his previous conviction was a miscarriage of justice. Ibid. But that is hardly the situation here.

The pardon on which appellant relies was not granted to him individually, but was in the nature of a general amnesty to a class of persons, without regard to guilt or innocence. The gratitude of the Nation to those who had honorably served in the armed forces was doubtless the primary factor motivating the Executive in extending this measure of clemency and grace. Nothing on the face of the proclamation indicates any specific desire on the part of the Executive to accord to the recipients the particular measure of benefit (freedom from cross-examination) which is sought in this case. The President, in using the language “full pardon,” doubtless desired to grant all — but no more than — the usual and established benefits deriving from the issuance of individual instruments of pardon. Those usual and established benefits do not include the immunity from questioning which is here demanded. The ancient British rule was thus expressed long ago by Lord Hale: “If the king pardon * * * offenders, they are thereby rendered competent witnesses, tho their credit is to be still left to the jury, for the king’s pardon takes away poenam & culpam in foro 1m-mano * * * but yet it makes not the man always an honest man.”⁵ That was the law prior to the adoption of our Constitution. Nothing in the Constitution requires a different result, and no court has ever held or even suggested that it does. The current of American decision, following the British cases,⁶ is unbroken: an offender, if pardoned, must still face the fact that his conviction is admissible in evidence as bearing on his credibility.⁷* We perceive no reason, derived from the text of the proclamation or elsewhere, which would justify a departure from that line of authority. Certainly the executive branch of the Government has not suggested such a departure.⁸

The United States Supreme Court has not, it is true, had occasion to pass squarely on the question here presented. In cases involving the effect of a pardon in certain other contexts, it has taken a generous view. It has held, for example, that a Presidential pardon will relieve the defendant from the forfeiture of property. United States v. Klein, 13 Wall. 128, 80 U.S. 128, 20 L.Ed. 519; Carlisle v. United States, 16 Wall. 147, 83 U.S. 147, 21 L.Ed. 426; Osborn v. United States, 91 U.S. 474, 23 L.Ed. 388. Sweeping statements — unnecessary to the actual rulings — can be found in the opinions in those cases; for example, that a pardon “obliterates in legal contemplation the offense itself”, Carlisle v. United States; that it releases the offender “from the consequences of his offence”, Osborn v. United States; and that it “blots out the offence”, United States v. Klein. In Ex parte Garland, 4 Wall. 333, 71 U.S. 333, 18 L.Ed. 366, Mr. Justice Field went so far as to say: “A pardon reaches both the punishment prescribed for the offence and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he has never committed the offence.” The quoted statement occurred in a case in which it was held that the petitioner was entitled to be readmitted to the practice of law, his possession of a Presidential pardon being one of the factors considered by the Court. That statement, of course, is hardly controlling on the issue now presented.⁹

Pertinent here, on the other hand, is the unanimous holding of the Supreme Court in Carlesi v. People of State of New York, 233 U.S. 51, 34 S.Ct. 576, 58 L.Ed. 843, to the effect that a Presidential pardon for a Federal crime does not prevent a state from punishing the offender for a second (similar) offense by imposing a heavier sentence ba.sed on the fact of repetition. That holding demonstrates that a pardon does not “blot out guilt” in any literal or uncritical sense; the dicta in the older cases cannot blind the courts to realities.¹⁰ The opinion of the Court, delivered by Chief Justice White, concluded by saying : “ * * * we must not be understood as in the slightest degree intimating that a pardon would operate to limit the power of the United States in punishing crimes against its authority to provide for taking into consideration past offenses committed by the accused as a circumstance of aggravation even although for such past offenses there had been a pardon granted.

“Indeed, we must not be understood as intimating that it would be beyond the legislative competency to provide that the fact of the commission of an offense after a pardon of a prior offense, should be considered as adding an increased element of aggravation to that which would otherwise result alone from the commission of the prior offense.” 233 U.S. at page 59, 34 S. Ct. at page 578.

On the whole, we consider that the ends of justice will be better served by permitting the prosecutor to bring out the facts concerning the defendant’s previous conviction in a case of this sort than by endeavoring to keep the fact of such a conviction from the jury. The latter will, after all, have before it not only that fact but also the defendant’s record of honorable service and the consequent extension to him of the President’s pardoning power. If the general rule permitting impeachment of a defendant is valid, and we are bound so to consider it, then we think it follows that we should not create an exception in cases of the present sort.

As we find no grounds for reversal in the other assignments of error asserted by appellant, the judgment of the District Court will be

Affirmed.

Appendix

“Proclamation 2676

“Granting Pardon to Certain Persons Who Have Served in the Armed Forces of the United States

“By the President of the United States of America “A Proclamation

“Whereas the Constitution of the United States provides that the President ‘shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment’; and

“Whereas subsequent to July 29, 1941, there were inducted and enrolled in the armed forces of the United States persons who had prior to their entry, induction or enrollment been convicted of offenses against the laws of the United States or the Territory of Alaska, other than the laws for the government of the Army and Navy; and

“Whereas it appears that such convicted persons who have or shall 'hereafter be honorably discharged or separated from the armed forces, or separated with honor from active service therein, after serving in active status for not less than one year ought to have restored to them the political, civil, and other rights of which they were deprived by reason of such conviction and which may not be restored to them unless they are pardoned:

“Now, Therefore, I, Harry S. Truman, President of the United States of America, do hereby grant a full pardon to all persons convicted of violation of any law of the United States or of the Territory of Alaska, except the laws for the government of the Army and the Navy, who on or after the twenty-ninth day of July, 1941, and prior to the date hereof, entered, enrolled in, or were inducted into the armed forces of the United States and who after serving in active status for not less than one year have been or shall hereafter be honorably discharged or separated therefrom, or separated under honorable conditions from active service therein: Provided, however, that such pardon shall not be construed to include the pardon of such persons for any offenses for which conviction 'has been obtained after the date of such entry, enrollment, or induction into service.

“In Witness Whereof, I have hereunto set my hand and caused the seal of the United States of America to be affixed.

“Done at the City of Washington this 24th day of December, in the year of our Lord nineteen hundred and forty-five, and of the Independence of the United States of America the one hundred and seventieth.

“[Seal] Harry S. Truman

“By the President:

“Dean Acheson

“Acting Secretary of State.”

1 . In contrast, in civil actions the problem here presented is specifically covered by Rules 58 and 79(a) of the Federal Rules of Civil Procedure, 28 U/S.C., and by the provisions of 28 U.S.C. § 2107. Rule 58 provides that “The notation of a judgment in the civil docket as provided by Rule 79(a) constitutes the entry of the judgment; and the judgment is not effective before such entry.” In many situations, under Rule 58, the clerk makes the entry of judgment “without awaiting the filing of a formal judgment approved by the court.” See Notes of Advisory Committee on Amendments to Rules, appended to Rule 58, F.R.Civ.P. in 28 U.S.C.A.; Milton v. United States, 5 Cir., 120 F.2d 794. Cf. Hill v. Hawes, 320 U.S. 520, 64 S.Ct. 334, 88 L.Ed. 283.

2 . We recognize, of course, that the time of perfecting an appeal is a jurisdictional matter, and that we lack power to extend the time fixed by the Rules. Swihart v. United States, 10 Cir., 169 F.2d 808; United States v. Froehlich, 2 Cir., 166 F.2d 84; United States v. Bloom, 2 Cir., 164 F.2d 556, 557; Howard T. Jensen v. United States, 10 Cir., 160 F.2d 104. But that principle, which is relied on by the Government in this case, seems irrelevant here.

3 . 10 Fed.Reg. 15,409.

4 . D.C.Code (1940 ed.) § 14-305; Goode v. United States. 80 U.S.App.D.C. 67, 149 F.2d 377; United States v. Boyer, 80 U. S.App.D.C. 202, 150 F.2d 595, 166 A.L.R. 209; Hall v. United States, 84 U.S.App. D.C. 209, 171 F.2d 347; Campbell v. United States, 85 U.S.App.D.C. 133, 176 F.2d 45.

5 . 2 Hale P.C. 278 (1678). Accord: Rook-wood’s Case, Holt 683, 685 ; 90 Eng. Repr. 1278 (1696), where the court said of a pardoned offender that “The conviction indeed might be objected to his credit, but could not be urged against his being a witness.”

6 . See United States v. Wilson, 7 Pet. 150, 160, 32 U.S. 150, 8 L.Ed. 640, where Chief Justice Marshall stresses the weight which should be given to the “principles respecting the operation and effect of a pardon” prevailing in Great Britain.

7 . Commonwealth v. Green, 1822, 17 Mass. 515; United States v. Jones, 1824, Fed. Cas.No.15498, 2 Wheeler Crim.Cas., N.Y. 451; Werner v. State, 1884, 44 Ark. 122; Bennett v. State, 1887, 24 Tex.App. 73, 5 S.W. 527; Territory v. Chavez, 1896, 8 N.M. 528, 45 P. 1107; Martin v. Commonwealth, 1904, 78 S.W. 1104, 25 Ky. Law Rep. 1928; Bryant v. United States, 5 Cir., 1919, 257 F. 378, 383; State v. Grant, 1926, 3 W.W.Harr., Del. 195, 133 A. 790; People v. Hardwick, 1928, 204 Cal. 582, 269 P. 427, 59 A.L.R. 1480. See also Baum v. Clause, 1843, 5 Hill, N.Y. 196; Curtis v. Cochran, 1870, 50 N. H. 242, citing numerous early authorities; Wallamet R. T. Co. v. Oregon S. N. Co., 1876, Fed.Cas.No.17,106; In re Spenser, 1878, Fed.Cas.No.13,234; conviction considered on question of good moral character in citizenship case, in spite of pardon; Vedin v. McConnell, 9 Cir., 1927, 22 F.2d 753. Consult Williston, Does a Pardon Blot Out Guilt?, 28 Harv.L.Rev. 647, 654; III Wigmore, Evidence, § 980 (e).

8 . In fact, if the attitude of the Department of Justice is to be taken as any evidence of the general position of the executive branch of the Government on the problem before us, or of the President’s intention in issuing the instant proclamation, it may be noted that the Department has long taken a stand completely in accord with the authorities cited above. See 22 Op.Atty.Gen. 36 (opinion of Attorney General Griggs, 1898); 5 Bull. Crim.Div., Dept. Justice, No. 7 (1946).

9 . Commenting on Mr. Justice Field’s statement that in the “eye of the law” the pardoned offender is innocent, Professor Williston rejoins “then the eyesight of the law is very bad.” Williston, supra note 7, 28 Harv.L.Rev. at 648. An earlier comment by a Federal trial judge on the effect of Mr. Justice Field’s dictum is also worth repeating here: “This is probably as strong and unqualified a statement of the scope and efficacy of a pardon as can be found in the books. And yet I do not suppose the opinion is to be understood as going the length of holding that while the party is to be deemed innocent of the crime by reason of the pardon from and after the taking effect thereof, that it is also to be deemed that he never did commit the crime or was convicted of it. The effect of the pardon is prospective and not retrospective. It removes the guilt and restores the party to a state of innocence. But it does not chango the past and cannot annihilate the established fact that he was guilty of the offense. * * * The offender is purged of his guilt, and thenceforth he is an innocent man; but the past is not obliterated nor the fact that he had committed the crime wiped out.” In re Spenser, Fed.Oas.No.13,234 at pages 922-923.

10 . See Weihofen, supra, 88 U. of Pa.L. Rev. at 185, for citation to the line of decisions in certain states where “second offender” laws are in force, to the effect that a pardon for the first offense does not relieve an offender from the statutory consequences of a second offense.