LOCATION: Georgia State Capitol
DOCKET NO.: 70-86
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the Ninth Circuit
CITATION: 404 US 443 (1972)
ARGUED: Nov 11, 1971
DECIDED: Jan 11, 1972
Allan A. Tuttle - for petitioner
William A. Reppy, Jr. - for respondent
Facts of the case
Media for United States v. Tucker
Audio Transcription for Oral Argument - November 11, 1971 in United States v. Tucker
Warren E. Burger:
We will hear arguments next in number 86, United States against Tucker.
Mr. Tuttle, you may proceed whenever you are ready.
Allan A. Tuttle:
Mr. Chief Justice and may it please the Court.
This case involves the question of the propriety of the use in a 1953 sentencing hearing and sentencing proceeding of records of prior convictions, in 1938, 1946, and possibly 1950, which were obtained in the absence of counsel or alleged to have been obtained in the absence of counsel.
Tucker was convicted in 1953 of the robbery of the Federally Insured Savings and Loan Association.
He was convicted in the United State’s District Court for the Northern District of California.
Now, the evidence in the case which consisted of four eye witnesses and fingerprint evidence and testimony is concededly overwhelming and the validity of his conviction and the strength of the evidence against him is not challenged in this proceeding or before this Court.
Tucker took the stand in his own defense in these proceedings, in that trial and he was cross examined with respect to certain prior state felony convictions.
He was cross examined with respect to and admitted a 1938 conviction for theft of an automobile.
He was cross examined and admitted a 1946 jewelry store robbery in Louisiana.
He was cross examined with respect to and admitted a conviction for armed robbery in 1950.
He was shortly thereafter convicted of the crime of robbery of a Federally Insured Savings and Loan Association.
Thereafter, the judge, the trial court conducted a sentencing hearing at which it took evidence with respect to the defendant Tucker.
With respect to these convictions which I have mentioned, certain further evidence was brought out.
It was brought out with respect to the 1938 automobile theft conviction that he had served seven of the 10 years which had been imposed.
With respect to the 1946 jewelry store burglary that he had served 45 months out of a four-year sentence, and with respect to the 1950 armed robbery conviction, that he had served no time because he escaped after a sentence of five years was imposed.
Other information with respect to the defendant was also brought out.
It was brought out for instance that he was under indictment in the Los Angeles for another federal armed bank robbery, which was to precede the trial immediately after the sentencing.
It was brought out that he was a suspect in four other federal bank robberies and seven or eight armed robberies of local savings and loan associations in the San Francisco area and the evidence with respect tot those robberies was elicited, that is to say that there was evidence, eye witness testimony and fingerprint testimonies with respect to those other charges and investigations against the defendant Tucker.
Tucker was sentenced to the maximum permissible term under the statute providing for armed bank robbery of the Federally Insured Bank, which is 25 years.
Now, later on in the same year, the State of California brought proceedings against Tucker for armed robbery and he was convicted of four arm robberies under California Law.
This proceeding occurred under the California recidivist statute, so that the indictment on that case charged to four arm robberies and in addition charged two of the three prior felony convictions I have mentioned, the 1938 auto theft and a 1946 jewelry store burglary.
Following this Court’s decision in Gideon versus Wainwright, Tucker successfully attacked, first his habitual offender status in California and later on the underlying California convictions for armed robbery on the ground that the use of those two priors had been prejudicial in as much as he had not had counsel in 1938, and he had not counsel in 1946.
Now, following the state court’s vacation of those two prior; 1938 and 1946 convictions, that is to say its finding that there had been no counsel, Tucker brought a motion under 2255, attacking the conviction which is the subject of this case, the bank robbery conviction, alleging that the use in cross examination of those two priors which were concededly on counsel and also alleging that the use of the 1950 conviction which had theretofore not been challenged as counseled or un-counseled, had prejudiced him when it was used for cross examination and impeachment purposes.
Now, the District Court and the Court of Appeals, both found that the use of un-counseled priors was improper, but they found that the error was harmless because of the overwhelming evidence against the defendant in the case.
The Court of Appeals, however, found further that those priors had been used at the sentencing hearing and at the sentencing hearing, the judge might possibly have relied upon and the Court of Appeals said that the reliance could not be harmless beyond a reasonable doubt under Chapman and remanded the case for re-sentencing without the use or reliance upon the un-counseled prior convictions.
Therefore, the case is before this Court now, at the request of the United States to determine whether the Court of Appeals was correct in remanding that case for re-consideration of sentence.
The question which this Court, this case presents in this Court is whether a particular rule of evidence, specifically an exclusionary rule of evidence, should be applied to sentencing proceedings, so as to deprive the sentencing judge of knowledge or reliance upon prior convictions which were obtained without the assistance of counsel prior to Gideon.
Now, it seems to be common ground among all the parties in this case, that a judge should have access to and should be entitled to rely upon all reliable, relevant information concerning a defendant’s character, background, habits or dispositions which can be brought before the sentencing judge.
Are the prior convictions which are at issue here, were they pleaded guilty or not?