Wasman v. United States

RESPONDENT: United States
LOCATION: National Enquirer, Inc.

DOCKET NO.: 83-173
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Eleventh Circuit

CITATION: 468 US 559 (1984)
ARGUED: Mar 20, 1984
DECIDED: Jul 03, 1984

Alan I. Horowitz - on behalf of respondent
Jay R. Moskowitz - on behalf of petitioner -rebuttal
Jay R. Moscowitz - on behalf of petitioner

Facts of the case


Media for Wasman v. United States

Audio Transcription for Oral Argument - March 20, 1984 in Wasman v. United States

Warren E. Burger:

Mr. Moskowitz, I think you may proceed whenever you are ready.

Jay R. Moskowitz:

Thank you, Your Honor.

Mr. Chief Justice, and may it please the Court:

We are here today in another in a line of cases following this Court's decision in North Carolina v. Pearce in 1969 dealing with under what circumstances may a trial judge impose a harsher sentence following retrial and reconviction after a first conviction has been reversed on appeal.

In Pearce this Court announced that double jeopardy does not absolutely bar an enhancement of sentence, but the Court also announced in Pearce that due process requires that when a judge chooses to enhance following a second conviction that vindictiveness on his part must play no part in that enhancement, and further that because a defendant may be fearful when decided whether to take an appeal or not that if he does and gets a new trial the sentence may be enhanced because the judge is vindictive against him, that the apprehension on the part of the defendant should be taken away.

In order to effectuate those two goals set out in Pearce, this Court set out a prophylactic rule that: one, on resentencing the District judge, the trial judge, must announce on the record his reasons for enhancing the sentence; and, two, that those reasons must be based on objective information of identifiable conduct on the part of the defendant, that conduct occurring subsequent to the first sentencing procedure.

In the case at hand on these facts the defendant's sentence following his second trial and conviction was enhanced not on any conduct that he did, but on an intervening act, that is, a conviction on preexisting conduct that occurred between the first and second sentencing hearings.

I think that in order to best understand the issue I should set out now on a fairly detailed analysis of the procedural process of the two convictions.

In 1978, Milton Wasman was indicted in two separate indictments, one dealing with the obtaining of a passport using a false name, and the second indictment charging him with several counts of mail fraud.

In September of 1979 the passport case came up for trial and he was found guilty.

At the sentencing hearing after that first trial, the judge, Judge Roettger, said that he was... he knew about the other indictment but he was not going to consider the pending indictment in passing sentence upon Wasman, and passed sentence, sentencing him to six months in jail.

William H. Rehnquist:

Did your client request that kind of consideration from Judge Roettger?

Jay R. Moskowitz:

In the colloquy back and forth... I didn't represent him in that proceeding, but in the colloquy back and forth, Justice Rehnquist, before Judge Roettger the government made some kind of statement about the pending case.

His counsel at the time made a comment about the fact that he wasn't involved in the case.

There was some procedural arguing back and forth, discussing back and forth.

Then Judge Roettger made the pronouncement that he was not going to be considering it because he doesn't consider pending indictments.

He thinks it's unfair to the defendant.

It... certainly Judge Roettger's comment was in response to a colloquy back and forth.

Whether or not there was a specific request don't consider it, it's unclear.

But he certainly did not consider it and the defendant certainly had no objection to him not considering it.

Sandra Day O'Connor:

And in your view that was not improper?

Jay R. Moskowitz:

Improper in what way?

Sandra Day O'Connor:

For the judge not to consider it?

Jay R. Moskowitz:

Under Williams v. New York he certainly could have considered it.

I think it was, as defense counsel I would ask a judge at a sentencing not to consider a pending indictment because the indictment could go any way.

Sandra Day O'Connor:

But you concede that he could have considered it?

Jay R. Moskowitz:

He could have considered it if he had chosen to.

Sandra Day O'Connor:

A pending charge or the facts behind the pending charge?

Jay R. Moskowitz:

Well, he could have, yes.

Harry A. Blackmun:

And if he had would this case be a different case?