United States v. Behrens

PETITIONER:United States
RESPONDENT:Behrens
LOCATION:Cumberland Hospital

DOCKET NO.: 86
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: United States Court of Appeals for the Seventh Circuit

CITATION: 375 US 162 (1963)
ARGUED: Oct 17, 1963
DECIDED: Dec 09, 1963

Facts of the case

Question

Audio Transcription for Oral Argument – October 17, 1963 in United States v. Behrens

Earl Warren:

Number 86, United States, Petitioner, versus Kenneth Leroy Behrens.

Before you begin this case, I have some questions to ask of you.

Is it the government’s view that under 4208 (Inaudible) procedure, that the government has the right to get down on that?

Louis F. Claiborne:

No, the defendant, no.

That’s what I got mistaken to say, and I just want to be clear.

Louis F. Claiborne:

Well —

Tom C. Clark:

In other words supposing this —

Louis F. Claiborne:

I think I gave too short of an answer.

The government’s position is that if appeal is taken then it defendant does have a right to go, (Inaudible) on bail.

If no appeal is taken then there is no right to bail.

But if the appeal is not taken, that’s my question.

Louis F. Claiborne:

That’s what I assume the question to be.

Then you answer would be no.

Louis F. Claiborne:

No.

All right.

Potter Stewart:

No right to appeal, he has last if he doesn’t take it within 10 days.

Louis F. Claiborne:

Right Your Honor.

Potter Stewart:

That’s your position.

Louis F. Claiborne:

That’s our position.

Do you think an individual Judge or justice would not have a right in those circumstances to say I’ll let you out on bail on the condition upon you reporting (Inaudible) Attorney General (Inaudible) psychiatric condition.

Louis F. Claiborne:

Well unfortunately Mr. Justice Harlan, I don’t think the study which is quite intensive involves not only interviews with the prisoner, but observation of the prisoner over this extended period and most often it’s not three months, it’s six months, it is extended, does require the physical presence of the defendant at the jail and we must remember that penitentiary is not necessarily proximate to the place of sentencing it.

It maybe some far distance away.

William J. Brennan, Jr.:

(Inaudible)

Louis F. Claiborne:

It is Mr. Justice Brennan.

It’s resorted to in many instances when there is a psychiatric problem.

The prisoner is sometimes committed to Springfield where —

William J. Brennan, Jr.:

Is it only real facility for prisoner.

Louis F. Claiborne:

Well that’s perhaps the only facility for the most intensive sort of psychiatric treatment and diagnosis.

But there are other penitentiaries equipped with psychiatrists, psychologists, social workers and others penologists who are in a position to prepare the report.

Report is then sent to Washington and is studied further here, and here in Washington the actual recommendation as to a sentence is made and only then is the report, the full report given to the Judge, sent to the Judge, they need to follow, so there is the recommendation made by the prison authorities.

Earl Warren:

Mr. Claiborne may I – I’ll ask you one more question, we’ll give you a little time, more time the other one too, but I want to ask this question, now in this case as I understand the maximum punishment was 375 years and $750,000.

Suppose the Judge took that function under this section and came to the conclusion that he should have not 375 years, but that he should have a 100 years in other words, he reduced it to a 100 years and he wanted, the defendant wanted to challenge that sentence and wanted to appeal to our supervisory powers and it happened more than 60 days after the original sentence and couldn’t come under say Rule 35, how would he, how would he appeal to the Court?

Louis F. Claiborne:

Mr. Chief Justice I am assuming that the 100 year sentence would be so outrageous, so disproportionate to the crime that it would amount to a violation of the cruel and unusual punishments clause.

Earl Warren:

Now let’s put it down to a point where, where it isn’t, where it isn’t cruel and inhuman punishment under the Constitution, but it is grossly, grossly excessive to the crime itself and he wanted to appeal to the supervisory powers of this Court.

How could he ever get to, get that issue raised, if he had to take his appeal before his final sentence?

Louis F. Claiborne:

Because I must accept Your Honor’s premise that there is a supervisory power to review sentences which are not, which are not cruel and unusual, if there is such a power, but it is only exercised where the most outrageous thought of sentence —

Earl Warren:

We have exercised it —

Louis F. Claiborne:

In contempt cases I think only —

Earl Warren:

Well I think so, then these guys are sending men to penitentiary for five years and six years for contempt.

Louis F. Claiborne:

Well I didn’t mean to debate with Your Honor the existence of the power.

But assuming that it is sparingly exercised only in the most outrageous cases, I would suppose that it would support a motion under 2255, even though it’d not be a constitutional — violation of the constitutional right, all that it would support a motion under the first portion of Rule 35 that is that it would be amount to an illegal sentence which can be corrected at any time not within the 60 day limit.

Earl Warren:

I don’t think the government would be — resist that on procedural grounds.

Louis F. Claiborne:

Well I must, I can’t bind the government to a position that would not challenge the propriety of reviewing a sentence that was not plainly outrageous, but was merely debatable on the ground that sentences are not normally subject to review on appeal.

Therefore they should not be so deep to review on collateral proceedings or on subsequent proceedings, unless they reach the constitutional informative being cruel and unusual.

Tom C. Clark:

There is (Inaudible) defendant to give his notice of appeal after the Judge has (Inaudible) and that will take the whole problem up to the Court of Appeals and he would then attempt to get out on bail by the Court of Appeals determine (Inaudible) affirmative then go back to Trial Court and he would then go — having already invoked 4208, he would then go through that procedure and then the final charge would be imposed at the end of that, is it right?

Louis F. Claiborne:

That’s correct Your Honor.

With this possible deviation that if the defendant chooses not to — chooses to begin serving his sentence despite the appeal he would then be committed to the penitentiary at which point the study could go full length and as we view it, if the appeal had not yet been determined, the sentencing Judge, could nevertheless if the report were ready and submitted to him, re-sentence all this pending the appeal that has been done in two cases as we point out.

Tom C. Clark:

While he is electing that, would it cause any problem to the government or to the – this procedure to say that the judgment was not followed until the final sentence was opposed?

Louis F. Claiborne:

I don’t think his election to begin serving his sentence would — or his election to exercise right to bail would change the finality of the judgment in anyway, because that’s normal election that the defendant has on appeal, on appeal from the final judgment.

Tom C. Clark:

And my (Inaudible) was though that suppose, as I stand here with the sentence is the maximum sentence, so it’s final.

That’s the final order, but we’ll say that where he accepts, that’s Court of (Inaudible) that would be a good thing like this gentleman did hoping that he would get a lower sentence of course and he is somewhat alarmed at appealing at that moment though he might antagonize, the Chief Justice pointed out (Inaudible), would it be of any detriment to your position or the government’s position — many of the – in those cases for making — protect his appeal after the final sentence is presented, after the Court of appeal grants its course.

Louis F. Claiborne:

No the only problem is that the study may have been to some extent a waste of effort on the part of prison authorities and on the part of the Judge who went through the reconsideration when ultimately the conviction would be reversed, but we don’t present that as a serious obstacle.

We do —

Tom C. Clark:

That might be happen — that might happen anyway.

Louis F. Claiborne:

That might happen anyway exactly.

Tom C. Clark:

He elected to serve very open there.

Louis F. Claiborne:

To some extent, these studies were made anyway whether there is a resentencing or not —

Tom C. Clark:

I would imagine that’s been a (Inaudible) older cases –-

Louis F. Claiborne:

I think it requires it under this very statute.

William J. Brennan, Jr.:

Well I take it that these studies have more purpose in view of the system of the Judge imposing the sentence have at least the byproduct we hope of pumping out as we were told that the case of the previous petitioner.

Louis F. Claiborne:

Yes, they do serve.

William J. Brennan, Jr.:

(Inaudible) in that sense.

Louis F. Claiborne:

I should retract any implication that the study would be wasted if the conviction is reversed.

If he is in a sliding position on the trial Judge, it must reconsider sentence, re-impose it when ultimately it may not stand.

Earl Warren:

Mr. Claiborne would you see any see any administrative problems if the Congress should provide that a defendant in those circumstances might bring his appeal that either time that he chose to do so either the original sentence or when the final sentence came down?

Louis F. Claiborne:

For myself, Mr. Chief Justice, and I only had an opportunity to discuss very briefly during the luncheon recess, those of us who did discuss saw no problem with that solution.

I’m not sufficiently experienced to be able to say that they don’t exist.

I don’t see and I read with Mr. Justice Goldberg that seemed on the face of it a very sensible solution.

Earl Warren:

You may have five or ten minutes more for your argument in this case and we take it that the counsel from other side want same amount of time.

Louis F. Claiborne:

Thank you.

In this case we are presented with a related problem under the same statute, which is whether at the reconsideration and the re-sentencing, which takes place after the Judge has received the report from the prison authorities, the defendant must be brought back before the Judge.

In fact whether a hearing at all must be held at that time at which the defendant should be returned and at which if he would return, he would be entitled to the right to just assistance of counsel.

We concede that if he’s got a right to return, he’s also entitled to be assisted by counsel.

Potter Stewart:

I didn’t hear your last part.

Louis F. Claiborne:

We concede that if the defendant has the right to return personally before the Judge for re-sentencing, he also has the right under Rule 43 — Rule 44 I believe it is to counsel as they go together.

Potter Stewart:

They go together.

Louis F. Claiborne:

Here —

Hugo L. Black:

Would he have a right to appeal the final judgment where the Judge cut it down and tried to put him on probation?

Louis F. Claiborne:

I think not Your Honor.

Hugo L. Black:

Well suppose if the Judge changed it considerably and put him on probation and put terms if he wanted to attack.

Louis F. Claiborne:

Well, my understanding of the law Mr. Justice Black is that there is no appellate review of the conditions of probation imposed so long as they are within the statute.

Hugo L. Black:

They’re bound to it, but not within the statute?

Louis F. Claiborne:

Well, then of course it would amount to an illegal sentence, which is subject to attack under Rule 35, first part of Rule 35 and to an appeal from the denial of the vacation of sentence.

Hugo L. Black:

Your argument there would he could attack it but not by appeal.

Louis F. Claiborne:

Ultimately by appeal from the denial of the Rule 35 motion.

Hugo L. Black:

Instead of just the judgment itself direct.

Louis F. Claiborne:

That’s correct.

The respondent Behrens was convicted of attempting to kill a fellow inmate while he was an inmate – at, himself an inmate at the penitentiary, the federal penitentiary at Terre Haute, Indiana.

That offense carried a maximum penalty of 20 years.

He was acquitted on a second count involving an assault on a prison official.

Louis F. Claiborne:

Immediately after the jury returned the verdict of guilty, the Judge discharged the jury and still in Open Court, in the presence of the defendant and of his attorney, his attorney then was Court appointed counsel, subsequent counsel was appointed by the Court of Appeals, the Judge discussed the question of sentencing.

He explicitly referred to or the alternatives whether he should impose sentence immediately that day, whether he should differ sentence or wait a pre-sentence report or whether he should invoke the provisions of the statute before the Court 4208 (b).

Government counsel expressed his view, defense counsel said the defendant wanted sentencing today.

The Court engaged in a colloquy directly with defendant at which time the defendant repeated that he wanted to be sentenced here and now.

He indicated that he didn’t want, didn’t want the Judge to wait for a pre-sentence report or for the study and report provided for under this statute.

There was further discussion which I need not detail, and ultimately the Judge formally called the defendant to the bench and offered him his right of allocution.

Defendant reiterated that he had nothing to say.

When pressed, he finally said to the Judge, “My remarks ain’t fit in your ears.”

The Judge persisted and the defendant persisted in his refusal to say anything more, he just wanted to get it over with.

Finally the Court imposed sentence under Section 4208 (b), this time expressly imposing sentence for 20 years for maximum under the statute committing the prisoner for a study as provided in Section (c) of that same provision and for reconsideration in three months after the report of the prison authorities was received.

The Court explained what it had done to the defendant and noted that he the Judge would be inclined to follow the prison recommendation since this was really an offence against the prison system one that had occurred while at the penitentiary.

A formal judgment and commitment was entered that same day which again recited the 20 years sentence the maximum.

Ten days passed and no appeal was taken.

Sometime later the defendant filed a motion pro se before the Trial Court for a transcript at the government expense.

The Court denied the motion on the ground that the only purpose of furnishing a transcript could be served on appeal, the time for appeal had run and therefore there was no occasion to give the defendant the transcript to the trial proceedings.

No appeal was taken from that ruling.

Finally on June 9th something just short of six months, the time for the report having been expended in the meantime by the Judge, the report of the prison authorities was received by the Judge recommending that a sentence of five years be imposed.

On June 13, 1963 which is something under six months from the date of the original sentence the Judge entered a new order reducing the 20 years sentence to five years.

He did so without holding a hearing not in the presence of the defendant.

Potter Stewart:

But I understand that the five years sentence eventually imposed was embodied to recommend, to reflect the recommendation of the prison authority?

Louis F. Claiborne:

It did though that may not be in the record, but it is — it is a fact.

Potter Stewart:

It is a fact.

Louis F. Claiborne:

There we no appeal taken from this judgment.

Finally on April 11th, 1962 many months later the defendants pro se filed a motion under Section 2255 in which he made several allegations with respect to trail errors also alleged that he had been a motion for a mental examination before trial with reference to his competency (Inaudible) and he complained about the Judge’s remarks and interrogation of him at the original sentence but he said nothing about the denial of his right to be present at the re-sentencing.

The Court denied the motion without hearing.

The Court of Appeal — well on appeal for the first time the defendant raised this question of his right to be present at the modification of sentence in his own presence and presence of his counsel.

The Court of Appeal agreed with the position of the appellant, remanded the case for re-sentencing in the presence of the defendant and with the benefit of counsel, but explicitly did not disturb the underlying conviction.

There is no vacation of the conviction, merely a remand for re-sentencing.

Petitioner had not sought review from the ruling below insofar as it offends his conviction.

Only the government has petitioned, therefore, the only question before the Court at this time is whether the defendant was entitled to be personally present and to have the assistance of counsel at the modification of sentence which occurred on June 13th 1961.

Louis F. Claiborne:

We approach this question first as one of statutory construction.

On that basis and insofar as Congress was free to answer the question, it seems to us very clear that it adds it in the negative that it was not necessary to return the defendant before the Judge at the time his sentence would be modified.

The first congressional report which is the House report which embodies legislation exactly as it now reads is to the point on this subject.

Unfortunately we do not quote in our brief the pertinent potion, though we do refer to it but the report at Page 10 says this, “After receiving from the Director of the Bureau of Prisons a summary of this study the Court in fixing the final penalty may affirm the original sentence or impose a modified sentence under any applicable law.

The prisoner would not have to be present in the Court when this final action on his sentence is taken.

In as much the original sentence of the Court represents the maximum authorized by statute, any later modifications by the Court would constitute a reduction in the sentence.”

There is an ample precedent for this provision.

The last line of Rule 43 reads the defendants’ presence is not required in reduction of a sentence under Rule 35.

And then it goes on to quote the advice, the note of the advisory committee on this last sentence Rule 43 and they’re quoting full Rule 35, nothing could be more explicit.

Potter Stewart:

That was a committee report, which you are referring?

Louis F. Claiborne:

This is the House committee report.

Potter Stewart:

It’s not in your brief, you are saying that.

Louis F. Claiborne:

It’s referred to and quoted in part at Page 24 of our brief.

It was actually filed (Inaudible)

Louis F. Claiborne:

Now this — I emphasize that this report was made at a time when the legislation was in its present form.

This is the most complete report and subsequently the matter was reported by the Senate and there was a joint conference report, each of which embody we think the same idea, but in shorter form.

Senate report refers to this provision as an extended Rule 35, so does the joint conference report.

Again, Rule 35 of course does not require reappearance of the defendant.

Now the text of 4208 (b), it is true, did not expressly embody this waiver of the defendant’s presence, but if we must fit the new provision in to the pattern of the existing rules, it seems basically clear that his presence would not be required.

Arthur J. Goldberg:

Mr. Claiborne you say that this particular (Inaudible)

Louis F. Claiborne:

Well I would agree with Your Honor that if it was important action on his case, I think to a prisoner the extent of his sentence is sometimes more important than other procedural aspects of the case, but it doesn’t follow we suggest that he would have anything much to add or to contribute at that time.

The fact that it is important to him does not mean that he must be personally present at that time anymore then he need be personally present when some different actions were taken with reference to his ultimate sentence.

Earl Warren:

Mr. Claiborne don’t you think if (Inaudible) is to be meaningful that this should be done or permitted at a time when it will have some real bearing upon the sentence if the Judge is to impose and if the Judge says that the original time of sentence were either I don’t know — I have enough information about this and I’ll put it all over until we hear from the prison authorities and then the man is not permitted to — the man is not permitted to say anything after he has gotten that information that allocution means very little.

Louis F. Claiborne:

But I would — first Mr. Chief Justice I think the right of allocution has two parts.

Historically it was not addressed to the question of litigation of sentence, it was addressed to bar — to any sentence.

Traditional question and the question recited in our own rules of criminal procedure is having given the defendant the right to say why sentence should not be pronounced not what sentence should be pronounced, but I recognize the right is also one to make a plea of convenience —

Earl Warren:

And isn’t perhaps the way — the sense in which the allocution is known the present time.

In another words, if you are asked that if you had an legal grounds that’s showed, you wouldn’t ask him you would ask his counsel anyway.

But the statute provides that he personally must be asked if he has anything to say and it — doesn’t that mean for the purpose of litigate punishment if he has anything to say in that regard?

Louis F. Claiborne:

We first say that he has already been given a right of allocution.

Louis F. Claiborne:

Now the question here is not when he should be given the right of allocution whether at the time of the first sentencing or at the time of the re-sentencing, he must be given a right of allocution at the time of the first sentencing if only to respect the part of the rule that permits him to state a bar to anything.

Now the only question remaining if it was — whether he has the right to repeat his plead of leniency.

Certainly he can argue that it would be more effective to do so at a time when the Judge is more focusing on the length of the sentence he is going to impose, but we must assume that the decision to invoke 4208 (b) has occurred only after the Judge has listened to the defendant, has appraised the plea (Inaudible).

We must also assume that the Judge having heard the mitigating facts as presented by the defendant has not forgotten them at the time he re-sentences.

And he hasn’t forgotten them partly because the record itself, the study which has been undertaken evaluates his plea in a meaningful way.

It repeats the information which the defendant has given at least if it’s true.

The study itself involves several interviews with the defendant.

All of this material is incorporated in a report which is then presented to the Judge, this in itself refreshes the Judge’s recollection of what had occurred before, but more importantly to some extent it supersedes what has been told.

It evaluates the factors in mitigation which have been brought to the Judge’s attention initially and its very completeness leaves very little chance of anything pertinent escaping the Judge’s attention at the time when he finally imposed the sentence.

Nor can it argued that the defendant has a right to traverse the representations made in the study nor can he be — nor can a right in him be recognized to debate the question of sentence with the Judge.

I think the decision in Williams versus New York explains more eloquently than I can why the Judge must act on ex-parte information at the time of sentencing if he is going to really take into the consideration all the relevant factors and why as a practical matter this report – there the question was about a pre-sentence report, here it’s even more thorough report why it cannot be divulged, why it cannot be made a subject to cross examination.

There is no occasion of the defendant at this late date to add very much.

Now we do think the District Judge if he has a question, if he wants to refresh himself, if he wants to impress upon the defendant the punishment he is going to meet out, of course he can recall defendant, many Judges do.

Sentencing institutes and reports of it indicate that several Judges feel that it is a sound practice.

I think it also reflects that most of them feel that it is not a rigid, inflexible requirement and in the case we simply argue that it should not that as — I think Mr. Justice Black said in Williams versus New York there should be no freezing of the sentencing procedure in the mold of the rules of evidence as applicable to trial, I’m paraphrasing it liberally, it’s just that.

The Judge should be allowed to decide in his own discretion whether any useful purpose would be served by returning the defendant for a further allocution.

William J. Brennan, Jr.:

Mr. Claiborne would you make this argument that you would interpret this statute as meaning no final judgment until that sentence is ultimately imposed?

Louis F. Claiborne:

No Mr. Justice Brennan, we concede that if you should decide the Corey case against — well adversely to the position taken by the government then you must likewise decide.

William J. Brennan, Jr.:

He will be in entitled to be present.

Louis F. Claiborne:

He will be entitled for the presence at least for the reason that at that time especially if he is unrepresented, he is entitled to be advised as to his rights of appeal and for that reason he should be present.

William J. Brennan, Jr.:

Well I take it if that — that point is the ultimate completion of the trial process and he is entitled to be present at other states trail process, isn’t that –constitutionally?

Louis F. Claiborne:

I think that would also be true, but as a practical–

William J. Brennan, Jr.:

So it wasn’t something this came up with a 2255, it might be debatable whether the point could be raised unless (Inaudible).

Louis F. Claiborne:

I think I am correctly saying that statute — the legislative history of the statute is patently clear that there is no such a crime that does not answer the question because there may be a constitutional of due process required.

We don’t think it’s a Sixth Amendment right because this isn’t a matter of confrontation of witnesses.

The opinion in Williams versus New York points out very well the difference between the right of confrontation at trial and the lack of any such right with reference to the information on which sentencing is based.

The most that can be said for this claim is that it falls the under the Due Process Clause of the Fifth Amendment.

Am I correct (Inaudible)

Louis F. Claiborne:

Did not include Section (b), the particular portion, that is correct Your Honor.

(Inaudible)

Louis F. Claiborne:

Well for that — all of that is correct Your Honor, and we —

(Inaudible)

Louis F. Claiborne:

We take it that the statement is a comment on the bill as it stood when it came out of committee, which is exactly as it now stands.

It is the most — is the first and the most authoritative and the most complete interpretation of the language of the present statute, the fact that the House itself deleted this provision and subsequently in conference with the Senate agreed to it’s — being put back in the bill does not in anyway, it seems to me nullify this first interpretation of the provision as it now stands.

(Inaudible) actual.

Louis F. Claiborne:

This committee report was of course available to the Senate when it considered the matter.

The Senate report is much shorter.

It to some extent repeats the House report, but it very explicitly assimilates this procedure to a Rule 35 reduction, which we think it itself is enough to show that the defendants’ presence is not necessary.

Finally we say that it would be a shame to discourage the use of this modern, enlightened procedure which is after all intended for the benefit of defendants, which is optional with the Judge in which he therefore can fail to invoke if it becomes too burdensome by putting it into a rigid mode by imposing an inflexible requirement of presence at every recess.

We think the matter should be left to the discretion of the Trial Judges who doubtless (Inaudible) appropriate instances requires defendant to be returned.

For these reasons we think the judgment should be with us.

Earl Warren:

Mr. Young.

Aribert L. Young:

Mr. Chief Justice and members of the Court.

The question as I understand it as far as the Behrens’ case is concerned is basically whether or not Mr. Behrens was required to be present at the time the final determination was made under 4208 (b)?

Of course ancillary to that whether or not at that time it was also necessary that counsel be present?

If I understand the government’s argument right I believe the government does contend now that if the judgment was not final until the Court had received the report from the Bureau of Prisons under 4208 (b), they concede that Mr. Behrens should have been present and that his counsel should have been present.

I didn’t quite interpret their brief that way, but I believe that is the way I have understood the argument on it.

It seems to me that it’s quite basic and decided in this Court in many decisions of course that a criminal defendant is entitled to be represented by counsel at every stage of the proceeding.

I think this is set forth in the rules, Rule 43 of the Federal Rules as the defendant, Rule 44 as to right of counsel and of course this Court in Johnson verses Zerbst 304 US citied in the brief very clearly set that forth and points out that the defendant is entitled to the guiding hand of counsel at all stages of the proceeding under the Sixth Amendment and that the right of counsel is an essential jurisdictional prerequisite to the Court’s authority to act, and there are numerous cases following that which are cited in the brief.

The second point seems to be whether or not in a 4208 (b) proceeding when a sentence is made final, and as I read the statute there is no sentence until after a Court has finally determined after receiving the Bureau of Prison’s report, I believe the first proceeding is merely tentative I think that is the obvious intent of the legislature.

We can go into a lot of things regarding legislative history, but I think this Court in the case Corey versus United States I think it’s in part a dissent but the point is basic and I don’t think there was any disagreement on the basic point, clearly sets forth consensus and states that often times it is difficult to determine what the legislative history of an act is.

As is already been pointed out this afternoon the House report says one thing and we have to provide conjecture I believe to assume that the Senate was thinking of the same thing when they passed the bill, but in Corey versus United States I think this statement and substance is made, when it’s difficult to determine what the legislative intention was, then the Court should proceed cautiously being sensitive to the rights of the defendant and to the society in general.

And perhaps one of the best tools we can use is to apply commonsense to determine what the legislative intent was.

It seems to me that in this case if we do apply legislative intent, legislative – if we try and determine the legislative intent we have to apply common sense to those matters, and I don’t see as a practical matter how counsel in one of these cases can confidently advise the defendant at the time the Judge first involved 4208 (b) as to what the man should do.

I don’t believe that there will be many counsel representing these men that would want to tell them to go ahead and start your appeal because we can’t tell what’s going to happen under this 4208 (b) proceeding.

I think it puts the defendant into sort of an indirect compulsion if he is forced to appeal from this tentative sentencing and I think that’s all it is when the Court first applies 4208 (b).

I certainly would not want the responsibility if I could avoid it of having to tell a man to go ahead and appeal even though there maybe a good chance that the man will be given a substantially reduced sentence.

Of course that has occurred in the Corey case or it’s possible that he may even receive probation.

I think and these men, their hope springs eternal they all think they are going to get complete probation.

We know as a practical matter, that not too many of them do, but that’s a feeling that these men are going to have I believe.

Aribert L. Young:

Many of them really believe they’ll get at least probation.

So how are they going to be in position to make an intelligent decision to go ahead and appeal at a time like that when there really hasn’t been any final determination at all?

You think your petition in this case have to fall depending on how the government (Inaudible)

Aribert L. Young:

I do not, Your Honor.

I think that if the government succeeds in the Corey case we still had a basic right involved in this Behrens’ case of a man’s right to be present at every stage of a proceeding and of a man’s right to have representation by counsel. I think that there are many things that can occur at this final sentencing.

Perhaps the man was hostile and arrogant at the time of trial, perhaps the man did perjure himself and these are foremost in the Court’s mind, the Judges’ mind at that time.

As the government has pointed out it’s usually six months before this final report is in, or maybe from three to six months supposing the man at that time is (Inaudible), supposing that he wants to do better perhaps the man has had a mental problem and this has been helped by the psychiatric treatment he has had while in the custody of Bureau of Prisons, I think these are things that should be called to the Court’s attention at that time.

(Inaudible)

Aribert L. Young:

I am not referring to just things in the report, I think that there would be things that can occur from that initial sentencing or tentative sentencing up to the time the Court finally considers it.

They maybe in a report, but again they may not.

The state of the man’s mind may not necessarily be reflected in the psychiatric report that will be submitted the Bureau of Prisons.

I think further this point has validity, I think that with the burden that our federal Judges have, which as we all know is increasing, but six months later that the Federal Judge is not going to have the same feel of that case that he would have if he had the man there before him.

If the man himself, if he has something constructive to say within the limits provided and the man’s counsel has something to say, I think the Court should be asked to hear it and consider it at that time.

I think this is only time the Court is going to make any serious consideration of soul searching as to the type of punishment that will fit the crime or this particular individual and I think it should be more and just some papers and the recollection of what transpired perhaps as in most cases six months before.

I think the right of allocution cannot be effectively exercised and used except at that time.

Go back to the other end of, the Judge is going to use 4208 (b).

Now the trial counsel and the defendant does not know what this report from the Bureau of Prisons is going to show, is counsel going to advise the man to make a plea for his allocution at that time?

I think that the man there’s under a burden if he tries to present everything at that time without the Corey having the effect or the knowledge of the matters contained in the Bureau of Prisons’ report.

I think this would affect the whole way it was handled.

I realize that the Judge does not have to let defense counsel know what the Bureau of Prisons report contains, but I think many of our District Judges would particularly when these men are represented by popular counsel.

I think that everything cannot be in the report and I do not believe that the right of allocution can be effectively or meaningfully exercised except at that final time.

Hugo L. Black:

What change could have been affected here by the Judge of importance to the defendant at this last time?

Aribert L. Young:

Well Your Honor I think it’s conceivable that the man could have been (Inaudible) at that particular time and —

Hugo L. Black:

I am not talking about the defendant, what change could the Judge have made in the punishment, he was to suffer in the kind of conviction, now of course he was to be punished alright, anything of that, what changes could the Judge have made?

Aribert L. Young:

Well I think when the Court makes a final sentencing and under 4208 (b) as in this case the Judge gave five years, this maybe exactly what it should be.

On the other hand if the defendant had been present and had had the right of allocution by himself or through a counsel, the Judge might have decided it should have been two years, this I do not know.

Hugo L. Black:

That’s what I am getting at, what change could give me, forget allocution and lawyer and everything else, when the Judge went in there, he had a sentence of what, five years —

Aribert L. Young:

It’s 20 initially, Your Honor.

Hugo L. Black:

20, what could he have done when he got in?

Aribert L. Young:

At the final —

Hugo L. Black:

At the last stage.

Aribert L. Young:

Well I think he could have brought forth many of these things that I have tried to list it, it can occur other cases?

Hugo L. Black:

What, what sentence could he have — how low could he have reduced it?

Aribert L. Young:

He could have given a complete probation as I understand?

Hugo L. Black:

Complete probation?

Aribert L. Young:

Yes.

Hugo L. Black:

So at this last hearing, it depended on whether he would be given the original 20 years or complete probation one year —

Aribert L. Young:

As I understand —

Hugo L. Black:

Is that right?

Aribert L. Young:

That’s my understand anything in between.

I think some of the problems that we have and I am going back a little bit to some of the matters connected with the Corey case because the two of course are still tied up together, it’s difficult to separate them, but I think we have a difficulty if the final sentencing, which I believe is the only sentencing under 4208 (b) is not the one that we have to appeal from.

I think if we have to appeal from the tentative commitment, and I think that’s all it actually is, the case goes up to the Court of Appeals and Court of Appeals of course doesn’t know what the sentence is going to be.

I think we may get into the problem of separate appeals, two appeals on the case, one on the case initially and then perhaps the second appeal where the sentence perhaps is in some case is unreasonable and the Court of Appeals or this Court would need to apply its discretionary powers to review sentences.

I know this would not happen often but it certainly can happen in certain cases.

I think it would be unfortunate for the Court of Appeals to have to decide on appeal without knowing what the sentence is going to be and there is a problem also where this concurrent sentence is involved on several different counts.

Under this why you would — the Court of Appeals apparently will have to consider perhaps some error under a concurrent sentence on an unchallenged count that they wouldn’t decide if they don’t want the sentence the Judge was going to impose.

I think it presents many, almost intolerable problems that I don’t believe necessarily arrives if we go by what I concede understandably the established rule of law that a sentence is not final until there is nothing else that’s to be done.

Of course I think one of the leading cases on that is Corey versus United States and I don’t really believe that there is any serious question about that, it’s been borrowed repeatedly.

I think it’s quite clear the final judgment, a criminal case means these sentences and in this particular case I think the Trial Judge in his words and it’s set out in the brief realized that he wasn’t making a final sentence on this man when the commitment was made.

Here is the words of the Trail Judge when he made this commitment in the beginning and this is what the Trial Judge said, explaining this to Mr. Behrens.

He says, “And I think after about three months, when everybody has had an opportunity to reflect upon your case quite fairly that we should be able to come up with a same civil disposition of your case,” like the Trial Judge himself recognized — he wasn’t making these sentence when this man was committed under 4208 (b) and I think the statute itself it says these sentence.

In the first paragraph, the first sentence of 4208 (b) says these sentences, what it actually shall be.

Going back to Corey versus United States, another case of course before that and one of the leading one, leading ones is Berman versus United States cited in the brief and of course there the point again arises during the pendency of an appeal from a sentence the District Court is without jurisdiction to modify its judgment by resentencing the defendant, resentence is the judgment.

As I understand these previous opinions of this Court there can only be the one sentence and there is this sentence, as into final one, I think we’re in real problems when the Court later comes in and tries to in effect re-sentence under this 4208 (b).

But I think the practical approach to the whole thing is that there be a determination of the time that the appeal is to run from.

Hugo L. Black:

I guess what you really have is a (Inaudible) a judgment, first judgment, final as to (Inaudible)?

Aribert L. Young:

But this Court has said there is only one, one judgment that’s the —

Hugo L. Black:

Well that makes it the final, but the other one does not (Inaudible)

Aribert L. Young:

Yes sir, I think that’s —

Hugo L. Black:

In the legal sense as distinguished from the common ordinary meaning of filing, of course the question was tentative, what’s the time (Inaudible)

Aribert L. Young:

I believe there was tentative period in my impression.

Hugo L. Black:

Was it, do you think it was tentative insofar as the finding of guilt was concerned?

Aribert L. Young:

No sir.

Hugo L. Black:

I mean that’s (Inaudible) response.

Aribert L. Young:

Yes sir.

Hugo L. Black:

And the other one (Inaudible)

Aribert L. Young:

(Inaudible) it all up irrespective of whether it was final in the first instance or not, we do feel on behalf of the respondent Behrens that the right of counsel and the right of the defendant to be present is such a basic right that it should be provided for so that there can be no question about it.

I do not think that there is any great hardship upon the government, and I do think that it is for the benefit of defendants and society in general that the man have the opportunity for these studies ahead of time that the Court believes that it is proper and discretionary and that he is not put under sort of indirect compulsion to not appeal because of the possibility offending someone by doing so.

That’s all that I have to say at this time unless there is something the Court would like to enquire about.

Earl Warren:

I understand that you are appointed to represent this defendant by the Court of Appeals that you not only carried the case through that Court, but carried that through this Court and I would want you to know that we appreciate the fact that you would that.

We all appreciate the willingness of lawyers to represent the defendants in this manner.

So we do appreciate it.

Mr. Claiborne we appreciate the fair manner and frank manner in which you represented the government in this matter.

We thank you both.

Aribert L. Young:

Thank you Mr. Chief Justice and members of Court.