Andrews v. United States

PETITIONER: Andrews
RESPONDENT: United States
LOCATION: Circuit Court of Anne Arundel County

DOCKET NO.: 491
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 373 US 334 (1963)
ARGUED: Mar 25, 1963 / Mar 26, 1963
DECIDED: May 20, 1963

Facts of the case

Question

Media for Andrews v. United States

Audio Transcription for Oral Argument - March 26, 1963 in Andrews v. United States

Audio Transcription for Oral Argument - March 25, 1963 in Andrews v. United States

Earl Warren:

Number 491, Albert Andrews versus United States and Number 494, Robert L. Donovan versus United States.

Mr. Prettyman.

E. Barrett Prettyman, Jr.:

Mr. Chief Justice, may it please the Court.

This case, and I will treat it as a single case for most purposes, raises the question whether the Government, prior to the resentencing of two defendants in a criminal case, may appeal the orders directing that the resentencing take place.

This case originated in 1954 when three men were arrested in connection with an attempted mail robbery.

These men were Albert Andrews, Robert Donovan, and Hyman Cohen.

Mr. Cohen is no long in -- no longer involved in this proceeding.

They were convicted on all three counts in a trial before Judge Lawrence Walsh in the Southern District of New York.

They were convicted, that is, of assaulting a post office employee with an attempt to rob with putting the life of the same post office employee in jeopardy by the use of a dangerous weapon and of conspiracy.

Now immediately upon conviction and apparently without any presentence required of law and without asking the defendants whether they had anything to say either in mitigation of sentence or on their own behalf, Judge Walsh sentenced all three of them.

Counts 1 and 2 merged so there was no sentence on those -- on the first count.

On the second count, he gave them the mandatory 25 years, and on the third count, he gave them five years to run concurrently with the 25-year sentence.

What year was this, Mr. Prettyman?

E. Barrett Prettyman, Jr.:

This was 1954, Your Honor.

I don't know why it should take this long?

E. Barrett Prettyman, Jr.:

Well, the appeal on the case was not heard until 1957.

The record doesn't show why there was that delay.

I have inquired of both Mr. Healey and Mr. Friedman to determine and their answer is that due to some difficulties about payments in the in forma pauperis petitions and various other things, it simply drifted on that long.

Now, the Second Circuit affirmed the convictions, but remanded for resentencing because Judge Walsh had erroneously thought that he could not grant probation on the mandatory count.

Now notice that the remand for resentencing was specifically for the purpose of determining whether probation could be granted.

It was in the light of his right to grant probation that that remand took place.

The resentencing was first scheduled for May 15, 1957, deferred for five days so that one of the counsels could prepare legal memo.

On May 28th, it was called for resentencing.

Now note that this was almost two and a half years after the original sentence.

Judge Walsh again presided.

The defendants were not present, neither was Mr. Frank Healey, an attorney representing Mr. Donovan.

The proceedings nevertheless commenced.

Mr. Friedman made an argument.

Now Mr. Friedman's representation in this case is not entirely clear.

He told the -- he told Judge Walsh that at this particular point because Mr. Healey was not present that he represented all three defendants.