United States v. Ernest M. Marshall

440 F.2d 195

• Court: Court of Appeals for the D.C. Circuit
• Decided: November 9, 1970
• Docket: 22485_1
• Status: Published

Opinions

FAHY, Senior Circuit Judge:

Appellant was charged with carrying a pistol without a license in violation of D.C.Code § 22-3204 (1967). He was convicted by a jury and sentenced to imprisonment for a term of two to six years. He challenges both the admissibility of the pistol in evidence and the validity of the procedure at his sentencing. We affirm the conviction and explain our reasons in Part I of this opinion, which follows closely the proposed opinion on the merits prepared by Judge MacKinnon when the case was assigned to him initially. In Part II of the opinion we take up the sentence, the aspect of the case which led to its being considered en banc, and there give the reasons why we remand for resentencing.

I.

Shortly after midnight on January 30, 1968, Police Officers Pleger and Johnson were patrolling an area in Washington. The officers were dressed in plain clothes and driving an unmarked 1954 Plymouth. About 12:15 A.M., Officer Pleger observed appellant driving a 1968 Pontiac with Virginia rental tags. The officers followed appellant for several blocks. Within three or four minutes appellant made five turns. He then stopped and parked the car with the rear protruding about five to seven feet into the street. Appellant then emerged from the car, left the headlights on, and started running across the street. Officer Pleger considered this conduct to be very suspicious and called appellant to return. He did so and upon request produced a driver’s permit and rental contract for the car he was driving. According to Officer Pleger, Officer Johnson first asked appellant what the “bulge” was under his sweater and then reached behind appellant, recovering a revolver from him.¹ After both officers had testified ² defense counsel moved to suppress the gun and testimony relating to it on the ground that the gun was seized in violation of the Fourth Amendment. Before acting upon this motion the trial court excused the jury and recalled the officers for further testimony ³ and heard argument. The court overruled the motion and admitted the gun in evidence on the basis of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

We agree that the gun and testimony relating to it were properly admitted in evidence. We are persuaded by the totality of the situation that the officers’ conduct was reasonable. Terry v. Ohio, supra. The lateness of the hour at a location where Officer Pleger testified many policemen had been shot, provided the setting. When appellant drove as above described, parked the car in such an unusual manner, left it with its lights on, and started running across the street, the officers could reasonably eon-elude to investigate further as they did. They were justified in calling appellant back across the street. “The crux of this ease,” however, as in Terry, “is not the propriety of [the officers] taking steps to investigate [appellant’s] suspicious behavior, but rather, whether there was justification for [the officers’] invasion of [appellant’s] personal security by searching him for weapons in the course of that investigation.” Id. at 23, 88 S.Ct. at 1881. Addressing itself to this point, the Court declared:

When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.

Id. at 24, 88 S.Ct. at 1881. We think the observance of a “bulge” underneath appellant’s sweater brought the officers’ conduct within the purview of this holding, whether or not appellant’s holster was within “plain view.” ⁴

We accordingly find no error in the admission in evidence of the gun and evidence relating to it. No other matter requires discussion insofar as the conviction is concerned, and it is affirmed.

II.

A question arises as to the sentence. The crime of carrying a pistol without a license, of which appellant was convicted, is punishable under the terms of 22 D.C. Code § 3204 in the manner prescribed by Section 22-3215. This calls for a fine of $1,000 or imprisonment for not more than one year, or both, unless the defendant has been convicted of the same offense in this jurisdiction or of a felony in any jurisdiction. In such a case the sentencing court has the discretion to impose a sentence of not more than ten years, although the increased term of imprisonment is only authorized and not required. Under these provisions appellant was sentenced as a second offender for a term of imprisonment from two to six years.

The contention is that proof of a prior conviction was not adduced properly. To decide this question the court sua sponte has considered the case en banc.

In Jackson v. United States, 95 U.S. App.D.C. 328, 221 F.2d 883 (1955), where, as in the present case, the sentence was imposed under Section 3204, but without proof of the previous conviction in the presence of the accused, we vacated the sentence and remanded for resentence for not more than one year,

unless the Government introduces evidence in Jackson’s presence which convinces the court that, when he committed the offense of which he was convicted, he had theretofore been convicted of a similar violation or of a felony.

Jackson, supra, 95 U.S.App.D.C. at 330-331, 221 F.2d at 885. We find no significant distinction between this case and Jackson, and we think the position there adopted is sound. The indictment, which we assume was served on Jackson as required by law, recited a prior conviction.⁵ His counsel stipulated to the court, though out of Jackson's presence, that the accused had previously been convicted of a felony, and also waived proof of the conviction should the jury find him guilty of the charge on trial.

In the course of its opinion the court stated that the stipulation of counsel was not

a substitute for actual proof of a fact which so drastically increases-the maximum imprisonment. Such proof which so largely shapes the sentence should be introduced in the defendant’s presence, just as the sentence itself must be pronounced in his presence.⁶

95 U.S.App.D.C. at 330, 221 F.2d at 885.

This was the position of the court notwithstanding, as the court pointed out,

* * -x- jackson does not expressly attack the sentence as being in excess of that authorized by law, and although he did not move in the District Court that it be corrected, as he might have done under 28 U.S.C. § 2255, the matter of the legality of the sentence may nevertheless be determined on this appeal.

What occurred in the present case was that the then United States Attorney filed with the Clerk a document called an “Information of Prior Conviction.” There is a notation on the Clerk’s docket of service of this paper. The document recites that Marshall had previously been convicted twice of carrying a dangerous weapon. During the sentencing proceedings, however, there was no mention of this Information or of the fact of prior conviction, and there was no proof of such a conviction in the presence of the defendant.

We are persuaded to adhere to the procedure adopted in Jackson. In addition to the reasons there expressed there is another. When the proof is introduced in the presence of the defendant meaningful opportunity is afforded, which might otherwise be unavailable, to enable the accused in the exercise of his right of allocution to advance any reasons he might have why the court should not enlarge the sentence because of his past record.

Rule 32(a), Fed.R.Crim.P., presently provides in part:

Before imposing sentence the court shall afford counsel an opportunity to speak on behalf of the defendant and shall address the defendant personally and ask him if he wishes to make a statement in his own behalf and to present any information in mitigation of punishment.

In Green v. United States, 365 U.S. 301, 304, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961), it is pointed out that the legal provenance of this Rule was the common-law right of allocution.⁷ The Court there interpreted Rule 32(a) as it then existed ⁸ to require the trial court to enable the defendant — not only his counsel — the opportunity to address the court. The result of this ruling, reaffirmed in Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962), was that by the 1966 amendments,⁹ this requirement was made a part of the Rule.

Section 3204 permits but does not require the sentence of a recidivist to be enlarged. A discretion resides in the sentencing judge whether to enlarge the sentence at all or, if enlarged, to what extent within the great range between a one and ten year term. The judge accordingly should consider, inter alia, the circumstances of the prior offense as well as other aspects of the defendant’s life. Particularly when a prior offense may permit the sentence to be enlarged tenfold, it is difficult to see how the sentencing can proceed with a meaningful allocution without anything being said concerning the prior offense, as here occurred. Proof in the defendant’s presence of the prior conviction, with knowledge thus brought home to him in the courtroom of its possible significance in determining his sentence, alerts him to the opportunity at sentencing of addressing the judge directly with respect to the prior conviction. Even when the fact of conviction is not disputable he may adduce whatever he deems appropriate for the judge to consider in connection with it. As the Supreme Court stated in Green, supra, 365 U.S. at 304, 81 S.Ct. at 655:

The most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself.

We do not deem it essential, in adhering to the procedure adopted in Jackson, to determine whether or not it is required by due process of law. See Oyler v. Boles, 368 U.S. 448, 452, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962), and United States ex rel. Collins v. Claudy, 204 F.2d 624 (3d Cir. 1953).¹⁰

The judgment of conviction is affirmed. The sentence is vacated and the case is remanded for resentence for no more than one year unless the United States introduces evidence in Marshall’s presence which convinces the court that when he committed the offenses of which he was convicted he had theretofore been convicted of a similar violation or of a felony.

It is so ordered.

1 . When later asked by defense counsel, “Am I to understand, officer, whatever it was could not be seen,” Pleger responded, “That is correct, sir, it could not be seen. Evidently the bulge could be seen, the item itself could not be seen.”

2 . At this point in the case Officer Johnson’s testimony consisted only of a statement that he had removed a revolver from appellant and an identification of that revolver in court.

3 . Out of the presence of the jury Officer Johnson for the first time testified that he had observed appellant “bringing his hand back towards like he was attempting to go for something,” whereupon Johnson noticed a bulge under appellant’s sweater and said, “Hold it. Have you got a gun?” This, according to Johnson, caused appellant to raise his hands “so you could see the holster then.” Officer Pleger, who also was recalled to testify on the motion, did not confirm this version of the confrontation.

4 . Compare notes 1 and 3, supra.

5 . On motion of his counsel the trial court agreed that this allegation in the indictment should be stricken since it “went to the punishment and not to the offense.” But the court added :

“The Court is granting the motion with the understanding that if there is a conviction here, the Government will be permitted to come in, under the Code, and establish the prior conviction, so as to indicate the possibility of the additional punishment provided.”

95 U.S.App.D.C. at 329-330, 221 F.2d at 884.

6 . In Kendrick v. United States, 99 U.S. App.D.C. 173, 238 F.2d 34 (1956), Judge Wilbur K. Miller, the author of the opinions in both Jackson and Kendrick, did not deem it necessary to follow the Jackson procedure because the accused testified and admitted the prior felony convictions which were described in the Information filed by the United States Attorney.

7 . See also Couch v. United States, 98 U.S. App.D.C. 292, 294, 235 F.2d 519, 521 (1956) (en banc) (concurring opinion).

8 . Rule 32(a) then read in part:

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.

9 . The Committee note to this amendment stated:

The amendment writes into the rule the holding of the Supreme Court that the court before imposing sentence must afford an opportunity to the defendant personally to speak in his own behalf. See Green v. United States, 365 U.S. 301 [81 S.Ct. 653, 5 L.Ed.2d 670] (1961) ; Hill v. United States, 368 U.S. 424 [82 S.Ct. 468, 7 L.Ed.2d 417] (1962) .

10 . In United States ex rel. Collins v. Claudy, supra, the court held that if the defendant had served the valid part of the sentence — the terra permitted for the single offense of which he was convicted, without regard to a prior conviction — he could not, consistently with the constitutional bar of double jeopardy, be resentenced for a term in excess of this valid part of the sentence. We decline to adopt this position. Compare Ex parte Lange, 18 Wall. 163, 85 U.S. 163, 21 L.Ed. 872 (1873), where one of two mutually exclusive sentences improperly imposed had been fully satisfied. Though erroneous sentencing procedure was followed in Marshall’s case, the sentence imposed and not fully served did not exceed that authorized by Section 3204 were Marshall a second offender within the terms of that section. We need not anticipate that the resentencing will result in a longer term than that previously imposed, and Marshall must be given credit for all time served. We do not think, however, that he would be twice put in jeopardy by a resentence exceeding one year, although of course we do not suggest this, even though he had already served a year of imprisonment, provided he is found on the remand to be subject to sentence as a recidivist. Murphy v. Massachusetts, 177 U.S. 155, 160, 20 S.Ct. 639, 44 L.Ed. 711 (1900) ; Oksanen v. United States, 362 F.2d 74, 81 (8th Cir. 1966).