United States v. Tucker

PETITIONER:United States
RESPONDENT:Tucker
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

ADVOCATES:
Allan A. Tuttle – for petitioner
William A. Reppy, Jr. – for respondent

Facts of the case

Question

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.

Potter Stewart:

Are the prior convictions which are at issue here, were they pleaded guilty or not?

Allan A. Tuttle:

The 1938 auto theft conviction was a plea of guilty.

In 1946 burglary store robbery was a plea of guilty.

Before this morning, I have been of the impression that the 1950 sentence — the 1950 conviction had not been challenged.

Within the hour, Mr. Reppy showed me a copy of the 2255 motion in District Court, which was not made part of the record certified to this Court which indicates they also challenged the 1950 conviction.

Now, the 19 —

Byron R. White:

Was that a plea of guilty?

Allan A. Tuttle:

I believe it was, but I simply do not know because I had thought that that conviction was not being challenged before this Court.

We are informed by the clerk of the Dade County Court because we inquired with respect to this, that petitioner did have counsel during the 1950 proceeding.

I should say that the respondent Tucker alleges in his brief that he did not have counsel.

That question was never decided Mr. Justice White because that 1950 conviction was not one of the two priors that was alleged in the California recidivist prosecution, and therefore, not one of the priors with respect to what you are hearing —

Byron R. White:

What did the Court of Appeals in this case say just referring to the two?

Allan A. Tuttle:

The court — the District Court simply held that the use of priors, un-counseled priors without making specific findings, but acknowledging the United States’ admission with respect to the 36, 38 and 46 priors that they were un-counseled, said that the use of un-counseled priors in cross examination would be bad.

Byron R. White:

But do you not think it makes a real difference in this case where your argument is to whether the prior convictions at issue were pleads of guilty or not?

Allan A. Tuttle:

I do not think that that is a dispositive consideration Mr. Justice White.

I know that the two, 38 and 46 were pleas of guilty.

As I said, I have believed until today that the 1950 conviction what not being challenged at all.

Byron R. White:

Did he deny the — did he deny the previous convictions or the crimes at the Trial?

Allan A. Tuttle:

At the Trial, and I think this is quite significant, he neither denied the convictions nor as I want to say with respect to the 1938 and 1946 convictions, he not only did not deny those convictions, he admitted those convictions, but he want further, he admitted the underlying conduct.

Byron R. White:

So, he not only did not deny the underlying conduct, but he admitted (Voice Overlap)

Allan A. Tuttle:

He affirmatively admitted the underlying conduct and I think that insofar as there might be a question about the reliability of un-counseled convictions, this cannot be considered in this — in the facts of this case.

I call the Court’s attention to page 24 of the Appendix.

With respect to the 1938 automobile theft, the question about that conviction, answer, “it boils down to this.

I was 17 years old, broke into a man’s garage, took his automobile, went joyriding in it, and received a 10-year sentence for it.”

So, he admits the conduct.

He says it was joyriding, but he admits he took the car and went from the man’s garage.

With respect to the 1946 jewelry store burglary, again on page 24, “I broke into a jewelry store” and on page 24 where New Orleans, question; day or night; answer “at night.”

So, that with respect to those two convictions, the question of whether counsel — whether the absence of counsel makes the conviction unreliable does not appear before this Court.

With respect to the 1950 conviction, the record as at now stands indicates that there has been no determination; first of all, whether was counsel or not, no judicial determination.

We have made inquiries and we have been told and we recite in our brief that the Dade County Clerk indicates to us that counsel was supplied.

The respondent Tucker in his brief says that he did not have counsel and there has been no determination of that fact, but we submit that it seems to us that all of the considerations of modern criminology, calling for the individuation of punishment require that a sentencing judge have all relevant information before him, which will help him in determining that punishment, and that what include evidence of un-counseled convictions.

Allan A. Tuttle:

The application of ordinary rules of evidence or in particular an exclusionary rule of evidence to the sentencing proceedings, would it seems to us to deprive the judge a valuable information concerning a defendant’s background, a defendant’s character and dispositions.

Now, in Williams versus New York, this Court specifically refused to apply ordinary rules of evidence, the sentencing proceedings and specifically recognized that the application of ordinary rules of evidence would frustrate the purpose of individuation of punishment.

You will recall that in Williams, the judge had to report that the defendant was involved in some 30 other burglaries, in addition to the murder which was the charge in the indictment.

Warren E. Burger:

Just hearsay information to —

Allan A. Tuttle:

Just hearsay information, Your Honor and this Court and the judge relied upon it, said he relied upon it, acknowledged that there had been no convictions resulting from those report of the other burglaries and as you recall sentenced William to death.

Now, in this case also, the sentencing judge had before him substantial information concerning this defendant’s criminal activity which had not resulted in a conviction un-counseled or not or an indictment.

There was the allegation that this defendant had been involved in four federal bank robberies, the allegation that he had been involved in 7 or 8 armed robberies of Savings and Loan Institutions and the sentencing judge was told by the witness, he was examining out for this purpose that the evidence was substantial, that it was substantial and the same as it had been in this trial, that is eye witness testimony and fingerprint testimony.

And the use of that information, which is allegation of criminal conduct, falling short of a conviction counseled or not, is not challenged in this Court.

It seems to us that it would be ironical, if it were proper for a Court to rely upon such hearsay information as Mr. Chief Justice describes it, rely upon that information in the assessment of sentence and yet would be deprived of reliance on the same information when it matured into a conviction, merely because the conviction was un-counseled.

Now, we know in this case that there is no doubt that Tucker committed the 1938 and the 1946 violations because he admitted that he did, but we submit that even un-counseled convictions where had been no such admissions are no more unreliable, then much of the evidence which is historically and traditionally been considered proper for a sentencing judge to rely upon.

We also would point out to this Court that the use of un-counseled convictions in this context has some evidence of criminality on the part of the defendant, is totally different from the use of such convictions under ordinary recidivist statutes.

There, the prior convictions automatically increase the exposure or increase the mandatory minimum and it is the fact of conviction that creates automatically a harsher sentence and in that case we submit, the conviction operates to deprive the judge of discretion with a mandatory increase in sentence.

Whereas the information here, the un-counseled conviction and the information suggests is merely being used to inform the discretion of the Court to give the most intelligent individual treatment to a particular offender.

For this reason, we think that this Court’s holding in Burgett versus Texas has no application to the facts at bar.

Now, quite apart from the question of whether a sentencing judge should be permitted to rely upon un-counseled convictions, the law seems clear that a sentencing judge can rely upon the conduct, which underly conviction and any competent evidence of this criminal conduct, any reports of this conduct would be permissible information for the judge to use, even if he could not rely upon the fact that the conviction itself.

And we submit that any rule which would exclude the reliance upon such conduct, falling short of a conviction, would deprive the judge of much valuable information which Courts have traditionally, historically and properly relied upon.

A charge might be dropped because the prosecuting witness did not appear, or it might be dropped as an exercise of prosecutorial discretion —

Warren E. Burger:

Or, by the suppression of evidence of some heroin seized from this person?

Allan A. Tuttle:

That it — I think that is an important distinction, Your Honor.

There are cases, even sentencing cases where suppressed evidence has not been used or permitted to be used as information before the sentencing judge and the rationale of those cases is part and parcel of the whole deterrent rationale of the perspective application of math.

The theory of the Courts that forbid the use of illegally seized evidence in a sentencing hearing suggests that if it were permitted, a prosecutor or the police could deprive an individual, would be encouraged, if they have enough evidence to seize a person for a narrowed crime, would be encouraged to engage in rampant searches thereafter, figuring that once they could convict him of the narrow crime, they could put in everything else on the sentencing hearing and obtain a maximum sentence.

Warren E. Burger:

Whoever was said that?

Allan A. Tuttle:

I am sorry?

Warren E. Burger:

Who said that?

Allan A. Tuttle:

That is — there is a circuit course — circuit court case.

Warren E. Burger:

What Circuit?

Allan A. Tuttle:

Your Honor, if the case is a (Voice Overlap) Vertigo.

(Voice Overlap) finger tips.

Allan A. Tuttle:

And, I — I cannot tell you that the Circuit, but it is cited in the respondent’s brief, but it seems to me that the rationale, the deterrent rationale which would prohibit the use of that evidence all be in significant evidence is distinguishable from this case where we are only concerned about the issue of reliability.

It is common place in pre-sentence reports, for instance, for a Probation Officer or the Prosecutor in talking to Probation Officer, to try and put the defendant in a context of criminality which may not be revealed by the indictment of the trial itself to give the sentencing judge some idea of this person’s place in an entire criminal scheme.

Allan A. Tuttle:

That kind of information has always been included in pre-sentence reports, but it is information that may enhance punishment and it is not sworn, and it is not usually subject to cross examination, and yet it is information which we feel ought properly to be before the sentencing Court.

Further, even regardless of the reliability of the conviction, it seems to us that incarcerations that result as a basis of — as a result of un-counseled convictions are information which a sentencing judge should have before him.

The Court will notice in this case, at the age of 17, Tucker is convicted of auto theft.

He is sentenced to 10 years in jail.

He stays in jail till mid 1945.

Released in mid 1945, he is probably convicted again in 1946, stays in jail for mid 19 — from 1946 until mid 1949.

Released in the middle of 1949, he probably commits an armed robbery in 1950.

He is sentenced on that and he escapes, but less than a year later in 1951, he commits the crime which is subject of this case.

Thus from the age of 17 and from 1938 to 1951, Tucker spent the entire intervening period with months exceptions in jail.

Now, it seems to us the sentencing judge could not rationally individuate the punishment, or the treatment of Tucker, in ignorance of those facts.

And, I think that respondent Tucker really admits that when he suggests that perhaps that information should be before the sentencing judge.

Now, I think finally, Your Honor, there is a — there is no real evidence in this case that the sentencing judge relied upon these prior convictions in imposing the sentence which he did impose.

The judge was specifically told in this case that Tucker was a suspect in four other robberies, federal robberies, seven or eight other savings and loan robberies, and he was told on the strength of the evidence with respect to those.

He was told about a pending indictment in Los Angeles.

Now, the judge specifically said he would not consider the pending indictment in Los Angeles because in essence, that case would take care of itself.

It would be a sentence appropriate to that offense, but his statements and these occur at the end of the sentencing hearing, indicate the matters which he truly relied upon and those are these pending investigations.

This occurs on page 37 of the Appendix.

With the Court’s permission, I will read a few lines.

“I take it,” this is the Court asking the question, “You did not present these cases until you determined the fate of this particular case.

Is that the problem involved?

”The witness, who is an FBI agent, “Well, these particular cases I am talking about are local.

They are under the jurisdiction of the local Police.

There is no federal jurisdiction.

Now, I understand the District Attorney’s office in Alameda County is waiting.

What action they are going to take, I do not know.”

And then the Court, “I assume that whatever sentence is meted out to the defendant in this case at bar will be considered in connection with the Prosecution or absence of Prosecution in those cases.”

The witness, “I believe so.”

The Court, “Alright, and then do you have further and promptly imposes the 25-year maximum sentence” and we submit that those were the considerations —

Potter Stewart:

And who is the witness?

Who is the person you referred to as the witness?

Allan A. Tuttle:

That is an FBI agent, the man who arrested the defendant in the first instance.

I think there is a further indication of the fact that these particular priors were not relied upon by sentencing judge and that also was only called to my attention within the last hour by Mr. Reppy, another document which was not included in the record on appeal, but it is part of the record below.

It appears that in the 2255 motion originally made before the District judge —

Byron R. White:

In this case?

Allan A. Tuttle:

In this case, Tucker challenged the convictions because of the use of these priors on cross.

The judge said harmless error.

Tucker then moved and this does not appear in the Appendix because it was not certified to this Court, Tucker then moved for a reconsideration of sentence on the ground of the sentencing judge, who incidentally was the same judge who in 1953 had heard the case, move for reconsideration of sentence on the grounds with the use of priors at sentence.

And, the judge’s disposition of that was preemptory.

He simply said this raises no new issues which would require consideration.

Therefore, I think that it is clear that the sentencing judge in this case did not feel that those priors had influenced his sentencing.

Byron R. White:

Would that be the entire record and lodged here in the Court?

Allan A. Tuttle:

I believe that it had been.

These are documents which Mr. Reppy obtained, they are copies of Tucker’s own records and I had not known them to be part of the record.

I am at the moment relying upon the representation of Mr. Reppy that these are official records in the case and they are not part of the record before that was lodged in this Court because until this moment, I did not know they existed.

Potter Stewart:

Well, they are really not part of the record in this case but they are part of the —

Allan A. Tuttle:

They are part of the record —

Potter Stewart:

They are official Court records involving —

Allan A. Tuttle:

In this case.

Potter Stewart:

This man.

Allan A. Tuttle:

In this case.

Byron R. White:

They are official records in the (Voice Overlap)

Allan A. Tuttle:

In this case, they are simply not lodged in the Court because we did know of their existence until —

Byron R. White:

The court did not send them up?

Allan A. Tuttle:

That appears to be what happened, but I do think that this particular order is significant because it shows that the very sentencing judge in this case, who had sentenced this man in 1953, when he admits on the subsequent question that the use of the priors in cross examination is bad and then he says — then the respondent says well, what about the use of them in sentencing and the sentencing judge says “that does not call for any further consideration.”

Byron R. White:

Does that appear in the form of an order?

Allan A. Tuttle:

It appears in the form of an order denying a motion for rehearing.

Byron R. White:

So, it must have been an item on the docket of the court?

I mean, there must have been a docket entry of an order?

Allan A. Tuttle:

I assume there would be docket entry Mr. Justice White.

I have been looking at the record, if it was docketed here, I did not find that that item, and I have only learned of it within the last hour, but I do submit it is of perhaps controlling significance in this case because the question might be as to why not let the judge take another crack at it.

Byron R. White:

You do not mean to suggest that without it, you should lose the case?

Allan A. Tuttle:

Perhaps I should say Mr. Justice White (Voice Overlap) it is sufficient, but not necessary for the Government’s position.

Thank you.

If I have any further time, I would like to reserve it for rebuttal.

Warren E. Burger:

You should have a little left.

We will give you a measure on it later.

Mr. Reppy?

William A. Reppy, Jr.:

Mr. Chief Justice and may it please the Court.

The counsel for the United States has characterized this case as an exclusionary rule of case.

Mr. Tucker characterizes the case, and I think the Ninth Circuit, majority and dissent did also as a prejudicial error case and that Your Honors, it is, so long as Gideon versus Wainwright is retroactive.

The reason that we are referring both counsels, in our argument so often to the record and reading portions of the record to the Court is that whether the Ninth Circuit correctly decided this case turns on whether this record offers some hint that an injustice occurred, that perhaps the sentence would have been lower if judge Harris, in 1953, had realized that there had been no reliable adjudication of guilt of the three prior convictions, 1938, 1946 and 19 —

Warren E. Burger:

Are these three prior convictions, the ones that appear on 24 and 25 that is in 1938 breaking in and stealing a car, 1946, a jewelry store and 19 — later period, not identified, breaking in to another store in New Orleans?

Now, you are talking about those —

William A. Reppy, Jr.:

Those are not the same three Mr. Chief Justice.

They were used both —

Warren E. Burger:

What difference does it make, will you tell me what difference that makes, what the circumstances the conviction were when at the time of this hearing he affirmatively described his conduct to the judge?

William A. Reppy, Jr.:

Well, let me say — state it at the outset that Mr. Tucker as you will note in his in propria persona written opposition to writ of certiorari, admits guilt of one of those three priors.(Voice Overlap)

Warren E. Burger:

But now, is this incorrect?

The Appendix at page —

William A. Reppy, Jr.:

No sir, it is not.

Now, you notice Mr. Chief Justice that he does not make an admission as to the 1950 prior.

Our focus here is on his statement, “I broke in and stole a car.”

Undoubtedly, it can be read as an admission.

I think also in view of what happened and how this came up, we can construe this portion of the record as Mr. Tucker describing himself as the defendant, describing what he was charged with.

Here was the quandary he was in.(Voice Overlap)

Warren E. Burger:

Do you think his language really is ambiguous?

His answer is, it all boils down to this, when I was 17, broke into a man’s garage, took his automobile and went joyriding, and got a 10-year sentence, received the 10-year sentence” and then he repeats, “You broke into the place and stole the car?”

“Yes.”

“What kind of a car did you steal?”

“A 36 Ford.”

Warren E. Burger:

“Tell us about your other convictions?’

“In 1946, I broke into a jewelry store.”

“Where” and so forth, he goes on and describes the cities and then still at the fourth one, apparently not relied upon was his submission that was he a fugitive from the State of Florida because he fled his 5 year of sentence when he was in the hospital for some medical treatment away from the prison.

Now, do you suggest that the Court, the sentencing court cannot take into account his conduct in sentencing as distinguished from the receipt of the statute?

William A. Reppy, Jr.:

Not at all.

No way.

We do not view the Ninth Circuit ruling in anyway as precluding the court upon remand from considering the conduct.

In fact, the Ninth Circuit majority’s concluding paragraph specifically states that the re-sentencing is to occur without any consideration of invalid convictions and unquestionably, if this re-sentencing hearing is held, the conduct involved would be gone into.

Warren E. Burger:

Well, if the invalid conviction is supported now by what amounts now to a judicial confession in an open Court at the time he is represented by counsel, would you still maintain that?

William A. Reppy, Jr.:

Yes, but for two reasons.

Some Judges in the exercise of their discretion at sentencing, simply do not consider charges in proof of guilt other than a conviction.

The authorities which are recited in respondent’s brief make that clear.

The particular reason is not given.

It seems to be a compartmentalization by the judge, a rule of thumb.

I consider convictions.

I do not consider charges which have not resulted in a conviction.

In Connecticut, for example, the Judges do not consider charges that have not resulted in a conviction.

Now, how judge Harris approach this?

We can only speculate as.

We know that he would not consider the Los Angeles charge because that was coming up to trial, and what he is stated and what Mr. Tuttle read on page 37 as to the Northern California charges in state court, I would submit it is simply ambiguous.

It maybe saying, “I know, I am giving a heavy sentence on the basis of what occurred and I do realize that it maybe increased, but I hope it would not be.

I think that the remand procedure would bring the clarification that we want” and finally Mr. Chief Justice —

Potter Stewart:

As to the third of these convictions, the one from which he fled when he was in the hospital, fled from California, he said that right at the time of sentencing as I read it that he was innocent of that, looking at page 35 of the defendant’s colloquy with the sentencing judge.

William A. Reppy, Jr.:

Mister —

Potter Stewart:

Do I read that inaccurately?

William A. Reppy, Jr.:

I do believe you do, Mr. Justice.

He would going to say the word “both” after the word “of.”

If you notice the context there, he describes the prior convictions.

Potter Stewart:

Yeah.

William A. Reppy, Jr.:

“And the five year sentence that was given me,” that is 1950, “I was convicted by a judge, the same judge that gave me the five, gave me the 10 to start with,” that is 1938 in Florida “and I was innocent of” and he stops.

Potter Stewart:

And he says, that is neither here and there?

William A. Reppy, Jr.:

That is neither here and there, and —

Potter Stewart:

But I mean he found me guilty and subsequently I escaped and came out here?

William A. Reppy, Jr.:

I think it susceptible of the interpretation consistent with his in propria persona opposition to the writ, that he considers both of his Florida convictions improper in that, I was innocent both was what he is going to say.

But now that we have read this passage which I plan to read later to the Court, I would like to consider why Mr. Tucker stopped his explanation on elocution.

He was beginning to give evidence in mitigation to explain and he stops suddenly and he says “That is neither here or there” and there are things to be only two possible reasons that he stopped.

What the first one is that he realized or believed that the convictions then subject to collateral attack because Gideon had not been decided, were conclusive and as noted in respondent’s brief, there was considerable authority at that time that was so.

Whether that be authority that commends itself to out logic, it seems to be irrelevant because defense counsel who was there at sentencing had told Mr. Tucker not to get into that.

The other possibility is that Mr. Tucker felt he would simply irk judge Harris by protesting innocence of matters by which he stood as the law then read validly convicted and judge Leventhal of the DC Circuit in his concurring opinion in the Scott Case which is cited in respondent’s briefs, states that the overwhelming majority of sentencing judges in his view do not like see a defendant before him protesting innocence after a lawful conviction.

So, it is quite possible that had Mr. Tucker had the benefit of Gideon Mr. Tucker and his counsel at that point, he would not have stopped, and we would have had some explanation here of these incidents, the 1938 incident when he was 17 and the 1950 incident in Florida, and it is reasonably possible that he might have been convinced judge Harris.

Thurgood Marshall:

But he could not judge that I was guilty then I have to go into such detail as to say it was in 1936 Ford?

William A. Reppy, Jr.:

Mr. Justice Marshall, I have corresponded extensively with Mr. Tucker and this material is off the record, I wish I could refer to it before you now.

I will just simply say this.

There is one other point about what is there on page 24.

This statement was the direct result of a Burgett versus Texas error that Mr. Tuttle for the Government has conceded.

It was found by the District Court to be a Burgett versus Texas error to receive these three priors at the guilt determination.

It was found by the northern — Ninth Circuit to be error.

Burgett has been retroactively applied.

It is not a matter we have briefed here, but this issue is before the Court.

It looks at page 24 of the transcript here and to determine what happened because that is a poisonous fruit of that error.

In it came the three priors which were unreliable and un-counseled and the poor man trying to rehabilitate himself in the eyes of the jury in effect confesses.

He might have been lying.

It is not likely, but he might have been.

Maybe he might have decided the best thing to do was take advantage of his age which was 17 and to try to get some sympathy from the Jury by in effect confessing and (Voice Overlap).

Potter Stewart:

This colloquy on 24 was — did occur during the course of the trial before the (Voice Overlap).

William A. Reppy, Jr.:

Yes, and before the Jury.

Potter Stewart:

And then the what begins on page 27 is at the sentencing proceedings, is that right or the (Voice Overlap)

William A. Reppy, Jr.:

Yes! What I say is that the agent is present in Court.

This agent in effect delivered a verbal sentence report.

So, as soon as when that began the sentencing proceeding has begun.

Harry A. Blackmun:

Mr. Reppy, if, I realize the time is going by, but I suppose that the court had given him something less than the maximum sentence, would you be here?

Would the same principles of your case apply?

William A. Reppy, Jr.:

I do not –Mr. Tucker would be out of prison, sir, to begin with, but assuming that the time difference —

Harry A. Blackmun:

(Voice overlap)

William A. Reppy, Jr.:

I would be here.

If he was willing to take the risk of North Carolina versus Pearce of a higher sentence and go back in there and ask for reconsideration, I would be here because I think that the remedy that commends itself to the court and a remedy which is followed apparently in the Fifth Circuit is that finding should be made by the sentencing judge as to how he was affected by the improper material before him.

Harry A. Blackmun:

Well, first of all of course, if it were not too much less than the maximum, he might still be incarcerated?

William A. Reppy, Jr.:

That is correct.

Harry A. Blackmun:

For 23 years and but — it is your position that North Carolina versus Pearce has application in this kind of situation?

William A. Reppy, Jr.:

Well, it is certainly not necessary to decided, but I would assume so that what the Court wrote there permits a very limited consideration of prison incident so long is there actual proof of them and they are not hearsay.

On the procedural matters of —

Thurgood Marshall:

Mr. Reppy, you really want us to hold responsibility of state judges to make findings before they sentence?

William A. Reppy, Jr.:

No, Your Honor.

Thurgood Marshall:

Well, I thought that is what you said?

William A. Reppy, Jr.:

No, Your Honor, the findings I feel should be made upon a Section 2255 motion if it is a federal prisoner or upon the state court habeas motion when a state prisoner goes before the judge and answers, Your Honor, you considered information that was wrong.

Since this Court decided Townsend versus Burke in 1948, there have been perhaps two dozen reported cases like this implying the Townsend versus Burke principle that due process is denied, where there is substantially unreliable information before the judge and the uniform procedure seems to be, Your Honor, to send the petition back to the sentencing judge if he is available and get some findings from him, if he can reconstruct it, as to how he was effected and I would assume, if he cannot reconstruct it, he should make findings as to his normal practice in dealing with prior conviction and arrests.

Because as noted, particularly in the annotation in ALR that I have cited, where the annotation went quite — have picked up sentencing decisions from all parts of the country, the majority approach seems to be to simply disregard un-adjudicated charges.

Thurgood Marshall:

What I do not understand how we can require this binding every time a judge sentences somebody?

William A. Reppy, Jr.:

It would be useful if he made it then, but it is not necessary.

Thurgood Marshall:

I did not say that but how can we compel it, just because it is useful?

William A. Reppy, Jr.:

I would not compel it Mr. Justice Marshall.

Thurgood Marshall:

But you do not think we should compel it in the Federal Court before we go into state courts compelling it?

William A. Reppy, Jr.:

Well, it is not necessary that this federal case here be extended to the states because this is a federal conviction and it is arises under 2255 which allows for a non constitutional collateral attack on the sentence.

Thurgood Marshall:

That is right!

William A. Reppy, Jr.:

And if your feeling is that you wish to limit this principle to the Federal Judicial System, I think it is quite proper to do so and if there is precedent would be (Inaudible) case in the Court of Appeals which I have cited cited in respondent’s brief.

Thurgood Marshall:

Do you realize that I would assume that every federal district has federal procedure as to handle pre-sentence reports?

William A. Reppy, Jr.:

I am certainly sure that is so, but I am not certain —

Thurgood Marshall:

But you realize that in most districts today the prosecution does not have anything to do with it?

William A. Reppy, Jr.:

Well, I was not aware of that, but I think that the — regardless of what procedure was originally used at sentencing, the procedure mentioned in the Fifth Circuit decision of Pat versus United States in 1966 is the desirable procedure to handle a collateral attack.

Now, in the Pat case there was a federal prisoner, a direct prisoner is sentenced in a federal prison and he submitted a 2255 motion in which he alleged that the sentencing judge had before him on the pre-sentence report an entry that this man had been convicted of burglary and an entry that this man had raped someone, a girl and the judge took this, and I believe, although it is not clear, without holding an evidentiary hearing or without appointing counsel, he obtained the record of the sentencing and he made extensive findings as to what he would have done or how he would reacted, had the entries been false and had he no match, and his conclusion was that there was so much other criminal activity on the record that he would have given the same sentence in any event because the additional burglary and the additional rape did not make that much difference.

William A. Reppy, Jr.:

Now, that maybe true in our case.

There was a lot of criminal activity, but I do not see any reason why it is too much to ask of judge Harris, who was still sitting, to make these types of findings.

I feel that he ought to have done so when the motion originally came up to him.

As Mr. Tuttle has indicated, Mr. Tucker the prisoner, and respondent here in propria persona filed a petition under Burgett versus Texas attacking the conviction itself, on the basis of what we have read at page 24 and what preceded it when the priors were introduced to impeach him.

He did not in his original moving papers mentioned the sentence.

The Government did not in its reply papers mentioned the sentence.

The judge then wrote the opinion which is in the appendix which does not mention sentencing at all.

The opinion relies heavily on the record to indicate that as far as impeachment went, there was harmless error because the man was thoroughly, Mr. Tucker was thoroughly, discredited on rebuttal evidence and this is true and then, after this opinion came down from judge Harris, Mr. Tucker filed what he labeled a petition for rehearing which goes on for several pages laying out what happened at sentencing and requesting sentencing.

And Mr. Tuttle has accurately described judge Harris’ response to that, a truce order saying rehearing denied, the petition raises no new issue that warrants reconsideration.

And it was a new issue if the Court please, because instead of weighing the priors as impeaching devices against the testimony of guilt and the discrediting testimony, the judge should have then weighed the priors as evidence of guilt against the other evidence of guilt that was done in the Pat case to see if it would have made any difference.

Byron R. White:

What would you suggest if coming out the same judge to try to give the sentence there?

William A. Reppy, Jr.:

I would suggest that if that judge were available perhaps in retirement.

Byron R. White:

What if he is not?

Say he is off the bench, he is deceased, or —

William A. Reppy, Jr.:

If he is deceased, the — a sentencing judge or District Court judge hearing a 2255 motion can only put himself in the position of a sentencing judge and said would not have affected me and I do believe Mister —

Byron R. White:

Why would not you just set aside the sentence and send it back to a Sentencing Court for re-sentencing before whatever — whoever, whatever Judge is available?

William A. Reppy, Jr.:

If the opinion is why should not this Court?

Byron R. White:

No.

Why would not the — let assume a 2255 judge finds that the un-counseled priors were used, why should not he set it aside and require re-sentencing, if the prior judge is not available?

William A. Reppy, Jr.:

That would be proper and it would seem that he is at the sentencing court, he can do the re-sentencing himself.

On the other hand, he could simply reach the same result if the re-sentencing was not to decrease the term.

Byron R. White:

Well, you would not re-sentencing just in the 2255 proceedings, would you?

William A. Reppy, Jr.:

He would put on a new role by what I understand.

I am not certain how it is done, but I would not think that the sentencing judge was gone and we were in the particular District and Division where he was sentenced.

Byron R. White:

Or to get up the — I suppose you have to have sentencing hearing —

William A. Reppy, Jr.:

Counsel would — at sentencing counsel would be available.

The Pat case lends itself to the point that no evidentiary hearing need be required in cases where the sentencing judge can state with the assurance that he was not affected, the procedure in the Pat case of the Fifth Circuit and perhaps this problem never would arisen if judge Harris had only instead of denying that re-hearing petition made some findings.

They could have been so conclusive on the point that Mr. Tucker would not have no basis for appeal.

Byron R. White:

What if he had not been on that opinion, how could he have denied the motion?

William A. Reppy, Jr.:

He could have misunderstood what Mr. Tucker was seeking.

William A. Reppy, Jr.:

I would — the papers are rather clearer it would seem but the statement there is no new issue is wrong and suggest perhaps a misunderstanding.

Now, on the —

William J. Brennan, Jr.:

Did you say petition for re-hearing?

William A. Reppy, Jr.:

Petition for re-hearing.

William J. Brennan, Jr.:

I suggest that judge Harris may have thought indeed it was and trusted the use of these on the issue of guilt rather than on the issue of sentencing (Voice Overlap)

William A. Reppy, Jr.:

If he had read it — if he had read it casually.

William J. Brennan, Jr.:

Is that what you are suggesting (Voice Overlap)

William A. Reppy, Jr.:

In all candor though Mr. Justice Brennan, it is a well written petition for rehearing and judge Harris should not have mistaken it for it was.

Byron R. White:

Well, on that — let us assume that he just said petition for rehearing denied.

How could he deny that without saying this would not have made any difference anyway?

William A. Reppy, Jr.:

I think that has procedural error in that we simply do not have a record or appeal and it is simply a matter of the desirable procedure to cut down on the appeals that go on in the 22 — collateral attack proceedings.

It is best for this Court and as the Ninth Circuit seems to indicate it once for to require the sentencing judge to take whatever time it takes, 20 minutes —

Byron R. White:

We do not require on Judges passing on the voluntariness of the confession.

The confession is on in — if they say, just denied, it is voluntary, we do not require any exposition and Townsend case says we will — if a man gives a clear ruling, a kind of ruling, he is supposed to give, yes or no, you assume regularity of it?

William A. Reppy, Jr.:

That maybe so, when it simply says denied, but here we have raises no new issue and yet on the face of it there is the potential for prejudice.

It is possible that judge Harris believed that Mr. Tucker was guilty of these three prior convictions and as the two of them if he had not felt that it was neither here nor there, if he had known of his right to collateral attack, he might have convinced the judge and received a lesser sentence.

Potter Stewart:

This sentencing was back in 1953?

William A. Reppy, Jr.:

That is correct.

Potter Stewart:

Judge Harris, that is the George Harris?

William A. Reppy, Jr.:

Yes.

Potter Stewart:

Who still living in (Voice Overlap)

William A. Reppy, Jr.:

He is still there.

We object.[Laughter]

Potter Stewart:

Ah! And the — it was 25 year sentence?

William A. Reppy, Jr.:

Yes it was, the maximum.

Potter Stewart:

Where is Mr. Tucker now?

He won in the Court of Appeals, is he —

William A. Reppy, Jr.:

He remains in the Federal Prison in Washington and although, he states that he is entitled to release in 1972, Mr. Tuttle advices that he has to check with the Bureau of Prisons and that the mandatory release date appears to be 1973.

So, there is some uncertainty about that.

Potter Stewart:

He has been release in the light of Judgment of the Court of Appeals?

William A. Reppy, Jr.:

No, he has not, Your Honor as I understand it.

I have been receiving mail from him — from Steilacoom in Washington, D.C.

Potter Stewart:

He is in prison on this same charge (Voice Overlap) conviction?

William A. Reppy, Jr.:

That is correct.

Warren E. Burger:

(Voice Overlap) I have the appendix in my hand and I am looking at pages 24 and 25.

What judge was presiding over the hearing in this examination at pages 24, 25, and 26 took place?

William A. Reppy, Jr.:

Judge Harris is the only District judge involved in this case at all proceedings, the trial, the sentencing, the 2255, it is the same judge throughout.

Warren E. Burger:

The way I understand your argument to be, that he could not take into account the cumulative admissions and statements made as reflected in those three pages?

William A. Reppy, Jr.:

Not at all, Your Honor.

It had there — the two points I am making are, that he should have taken into account under the proper context.

If it was — if he knew that this man was speaking about these convictions under the belief that he was conclusively presumed guilty, he might have discounted it because the fact the man believes he is conclusively presumed guilty rather limits his explanation as he cut himself off by saying that is neither here nor there when he started to go into an explanation.

Warren E. Burger:

I do not read this.

This is very concocted inquiry.

I thought his explanations of his criminal conduct were very expansive.

He could hardly have described more unless he gave an inventory of what he had stolen from the jewelry shop?

William A. Reppy, Jr.:

Well, Mr. Chief Justice, a man does not contest his guilt of the jewelry store robbery.

Warren E. Burger:

Well, two, two jewelry store robberies?

William A. Reppy, Jr.:

The 1946 jewelry store robbery; he does and he never did admit at any point in the proceedings guilt of the 1950 Florida conviction and as Mr. Tuttle has noted, judge Harris has never rule on its validity, although, the validity of question was before judge Harris and for that reason.

Byron R. White:

It seems to have subject to Fresno, California?

William A. Reppy, Jr.:

No.

He is not.

He is on parole on — if he violates his parole, he is.

He is on parole on a conviction one set of robberies.

As to the other set of robberies, the appendix to respondent’s brief indicates that the charges where dismissed and they cannot be brought again because to my believe, because of the statute of limitations in California.

Byron R. White:

These were the California proceedings relating to conduct after the conduct for which he is not —

William A. Reppy, Jr.:

I am not certain — I do not think the record indicates which bank robbery occurred at what point in time.

Byron R. White:

In any event —

William A. Reppy, Jr.:

One of the most federal, excuse me?

Byron R. White:

In any event they are the ones that judge Harris said he would consider when he was —

William A. Reppy, Jr.:

Yes, —

Byron R. White:

During the Trail at sentence —

William A. Reppy, Jr.:

It is extremely ambiguous Mr. Justice White, what judge Harris said he would not consider.

It is very clear that he was not going to consider the Los Angeles charges.

Now, what —

Byron R. White:

But he was convicted after sentencing here.

He was convicted in the California Courts?

William A. Reppy, Jr.:

Yes, he was.

Byron R. White:

And that he is on probation — he never served any time there, I take it?

William A. Reppy, Jr.:

I am not certain whether he was serving, whether was moved down to a California prison to serve the two Federal and State Sentences consecutively.

I do know that the one’s that he is not on the parole out on which he is not on parole are those which are discussed in the appendix to the brief.

I would like a little briefly in argument to the point made in part 3 of respondent’s brief and that is that judge Harris in 1953 when he was sentencing petitioner had no way to know that petitioner had previously spent eleven-and-half-years in prison wrongfully because of unreliable convictions, convictions which were made without counsel.

Perhaps the judge would have want to have shown some leniency.

Now, we have the statement at the bottom of page 35 of the Appendix, “there is no room for the Court to entertain elements of great sympathy” because Mr. Tucker was using a gun, even though he did not point it to anyone, but there was some room not for great sympathy but some and if there was only sympathy of a matter two years or three Mr. Tucker would now be have finished his sentence, it appears.

The Third Circuit cases, the District Court cases from the Third Circuit have developed a theory of relief given on 2255 in Habeas Corpus “that it is only fair and just to return a sentence to the sentencing judge for reconsideration when it appears after sentencing that the man, the defendant, has served time in prison on wrongful convictions.”

A thought as I believe to give a little mercy to make up for this wrong that has been done to him which cannot be righted in any other way and certainly insofar as fact there is retribution and deterrence of others two of the four factors that are frequently considered at sentencing, so far as they are involved, there is room for mercy because of the prior time in prison and in Mr. Tucker’s case not only was he in prison, he was on a chain gang for five-and-a-half years and what that means I do not know. One other point in respect to a passage on page 24, Mr. Chief Justice is concerning you is that Mr. Tucker in 1953 may never have consulted with an Attorney about his criminal responsibility for this 1938 robbery.

Now, on the basis of my correspondence with him which I am not going to go into because there off the record, I think that he might have developed a duress defense.

If he had had the chance to talk with an attorney about this and while he admits, “I broke into it, I stole the car,” it does not negate a possible defense that would limit the criminal responsibility and not make him see less evil in the eye or less wicked in the eye of judge Harris in 1953 when sentencing occurred.

Certainly, some further explanation of what happened might have been proper and also, Your Honor, in respect to the Florida conviction, the fact that he served seven-and-a-half years, a very severe sentence, might have indicated to —

Warren E. Burger:

Go ahead (Inaudible).

William A. Reppy, Jr.:

— to the sentencing judge that there was something terribly wrong, would not to you, Your Honors, a 10 year-sentence for a 17 year-old joy ride.

Something terrible wrong seems to be there, a very vicious crime.

Mr. Tucker may have felt that he could not explain, as we know, he felt my guilt is neither here nor there and if for no other reason then to allow him now to give his chance to explain without feeling that he is precluded because of the conclusiveness of a conviction.

The remand order is appropriate and a procedure for the future that would be appropriate is to require or direct the lower Courts in this type of case to got through the motions which do not take very long and which do not require an evidentiary hearing of explaining as was done in Pat versus United States in the Fifth Circuit of explaining why there is a denial.

And this would permit appellate review and we will not have the speculation which the sentencing judge was bothered about in the Ninth Circuit.

Thank you.

Warren E. Burger:

Thank you, Mr. Reppy.

You have five minutes more Mr. Tuttle.

Allan A. Tuttle:

Thank you Mr. Chief Justice.

First Mr. Chief Justice, you asked the citation of the Vertigo case which related to the use of a evidence which had been seized in violation of the Fourth Amendment, that is a Ninth Circuit case, Your Honor, it is 402 F. 2d 599.

With respect to petitioner’s contention that at the sentencing hearing, he protested innocence and he meant to say “both,” that is to say both the 1938 Florida conviction for auto theft, and the 1950 Florida conviction for armed robbery, as I read the record and I have nothing outside the record to rely upon, it seems to me, your Honors, that what he is saying with the respect the auto theft is that was a joyride.

Allan A. Tuttle:

That was not grand larceny auto.

I mean, I did it, but it was not a crime of that magnitude and that is a sense of innocence which he is asserting.

Now, I would like to address myself very briefly to this notion of conclusiveness which Mr. Reppy has raised.

There is an extensive portion of the respondent’s brief addressed to the notion and to the rule of law that for certain purposes convictions are conclusive evidence of guilt and that arises principally in impeachment proceedings where a person is often not allowed to explain that although I was convicted I felt in fact guilty.

That only arises in context where rules of evidence supply and I submit that importing conclusiveness into sentencing, a respondent commits the same error that he is attempting to do when he wants to import the rules of evidence into sentencing generally.

Whereas we would claim that the rules of evidence do not apply and any reliable information can be used, we would maintain the same with respect to any doctrine of conclusiveness.

I cannot conceive of a Probation Officer, if a defendant being examined by him for the purpose of preparation of a pre-sentence report says “Yes, I have the X conviction, the Y conviction, but I did not do it.

I did not have an Attorney or I did not do it or I was under duress.”

I think that all of the books which have been collected in respondent’s brief and all of the learning that the Court may find on the subject of sentencing in preparation of pre-sentence reports indicates that these gentleman, the Probation Officers are trained to be open minded and train to include everything.

And I do not think that doctrine of conclusiveness would ever precluded a defendant in a pre-sentence report from alleging his innocence or circumstances of mitigation and I simply feel that conclusiveness has not relevance in this case.

Byron R. White:

Was this back in 1953 when the procedures may have been in the county were a little different.

All of this — are all of the reports there is something that is not very usual if anything —

Allan A. Tuttle:

That is correct.

The — in this case, it appears that the judge required his information orally.

I was addressing myself to more general problem —

Byron R. White:

(Inaudible).

Allan A. Tuttle:

— of whether conclusiveness would create any bar.

With respect to matters that judge Harris considered, I would like to address myself that very briefly because Mr. Justice White you raised a question about that.

I think that if you read the record, it is clear that he did not rely upon the pending federal Los Angeles indictment, but that he did rely upon the seven or eight pending state investigations, four of which did later in fact resulted in convictions and which were later collaterally attacked.

So, I think that his — the things that he did not rely upon was the situation, where there was indictment and in the judge’s eyes the indictment was going to take care of itself.

That there would be a prosecution in appropriate sentence, but as to those pending state proceedings, he felt that the state might prosecute or not prosecute or prosecute some and not others depending on what happened at his sentencing.

Byron R. White:

He does not have a California detainer on him(Voice Overlap).

Allan A. Tuttle:

No, because he was successful in first attacking his habitual criminal finding.

That went up to the California Supreme Court and they said if un-counseled priors were used to make him habitual criminal, you cannot hold him —

Byron R. White:

All I wanted to know is he under the detainer, is he not?

Allan A. Tuttle:

I am sorry.

I did not mean to get undue attention Mr. Justice White.

He is not, as far as I know —

Byron R. White:

But he — did I understand that he — if he were released in Federal prison today, he would be still on probation from California?(Inaudible)

Allan A. Tuttle:

I — I do not know the answer to that.

Warren E. Burger:

Mr. Tuttle, Mr. Reppy is representing that.

William A. Reppy, Jr.:

Finally, I would simply repeat that it is quite clear to the Government in this case that any problem about the reliance on these sentences, the questions has been answered by the judge himself when he said — when he denied the motion to reconsider sentence on the basis of the use of those priors and I think, no useful purpose could conceivably served by asking him to say it all over again.

Thank you, Your Honors.

Warren E. Burger:

Thank you.

Mr. Reppy you served at the request of the Court by our appointment.

On the behalf of the Court, I want to thank you for your assistance to the Court and of course your assistance to the client that you have represented.

William A. Reppy, Jr.:

Thank you very much.