United States v. Robert Lawrence Atkins

Ninth Circuit

United States v. Robert Lawrence Atkins

480 F.2d 1223, 1973 U.S. App. LEXIS 8911

CourtCourt of Appeals for the Ninth Circuit

DecidedJuly 9, 1973

Docket73-1561

StatusPublished

Cited by204 cases

This text of 480 F.2d 1223 (United States v. Robert Lawrence Atkins) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. Robert Lawrence Atkins, 480 F.2d 1223, 1973 U.S. App. LEXIS 8911 (9th Cir. 1973).

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Opinion

PER CURIAM:

The judgment of conviction is affirmed.

Defendant’s first point is that the court committed plain error in a supplemental instruction given in response to a request by the jury for classification of one of the issues in the case. No objection to the instruction was made although the court specifically queried the parties regarding its propriety. We find that no plain error was committed.

Defendant’s second point is that the sentencing court erred in considering a murder conviction of defendant’s which had been reversed on appeal. See State v. Atkins, 251 Or. 485, 446 P.2d 660 (1968). This contention also lacks merit. A sentencing court may consider evidence of other crimes committed by the defendant even though he was never brought to trial, Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949); United States v. Doyle, 348 F.2d 715 (2d Cir. 1965), or was brought to trial and acquitted, United States v. Sweig, 454 F.2d 181 (2d Cir. 1972), unless the evidence was obtained in violation of a constitutional right. Verdugo v. United States, 402 F.2d 599, 610-612 (9th Cir. 1968); contra United States v. Schipani, 435 F.2d 26 (2d Cir. 1970).

While a sentence will be set aside if the sentencing court gives explicit consideration to one or more convictions obtained in violation of defendant’s constitutional rights without also considering the fact and effect of the unconstitutionality, United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), the mere fact that an invalid conviction was obtained does not immunize the facts underlying this conviction from consideration by the sentencing judge. It appears on the face of the record in the present case that the sentencing judge was aware that defendant’s murder conviction had been reversed. He was, therefore, entitled to consider the facts underlying the conviction and accord them whatever weight they deserved.

Affirmed.

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PER CURIAM:

The judgment of conviction is affirmed.

Defendant’s first point is that the court committed plain error in a supplemental instruction given in response to a request by the jury for classification of one of the issues in the case. No objection to the instruction was made although the court specifically queried the parties regarding its propriety. We find that no plain error was committed.

Defendant’s second point is that the sentencing court erred in considering a murder conviction of defendant’s which had been reversed on appeal. See State v. Atkins, 251 Or. 485, 446 P.2d 660 (1968). This contention also lacks merit. A sentencing court may consider evidence of other crimes committed by the defendant even though he was never brought to trial, Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949); United States v. Doyle, 348 F.2d 715 (2d Cir. 1965), or was brought to trial and acquitted, United States v. Sweig, 454 F.2d 181 (2d Cir. 1972), unless the evidence was obtained in violation of a constitutional right. Verdugo v. United States, 402 F.2d 599, 610-612 (9th Cir. 1968); contra United States v. Schipani, 435 F.2d 26 (2d Cir. 1970).

While a sentence will be set aside if the sentencing court gives explicit consideration to one or more convictions obtained in violation of defendant’s constitutional rights without also considering the fact and effect of the unconstitutionality, United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), the mere fact that an invalid conviction was obtained does not immunize the facts underlying this conviction from consideration by the sentencing judge. It appears on the face of the record in the present case that the sentencing judge was aware that defendant’s murder conviction had been reversed. He was, therefore, entitled to consider the facts underlying the conviction and accord them whatever weight they deserved.

Affirmed.

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Bluebook (online)

480 F.2d 1223, 1973 U.S. App. LEXIS 8911, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-robert-lawrence-atkins-ca9-1973.

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