George C. Desmond, and v. United States, 345 F.2d 225, 1st Cir. (1965)
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Scribd Government DocsGeorge C. Desmond, and v. United States, 345 F.2d 225, 1st Cir. (1965)
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Scribd Government Docs345 F.
2d 225
George C. DESMOND, Defendant and Petitioner, Appellant,
v.
UNITED STATES of America, Respondent, Appellee.
Nos. 6476-6478.
United States Court of Appeals First Circuit.
Heard May 3, 1965.
Decided May 18, 1965.
Loyd M. Starrett, Boston, Mass., with whom Edwin H. Amidon, Jr., and
Foley, Hoag & Eliot, Boston, Mass., were on brief, for appellant.
William J. Koen, Asst. U. S. Atty., with whom W. Arthur Garrity, Jr., U.
S. Atty., was on brief, for appellee.
Before ALDRICH, Chief Judge, BREITENSTEIN, * Circuit Judge, and
GIGNOUX, District Judge.
ALDRICH, Chief Judge.
Appellant was convicted, along with a co-defendant, on narcotic charges, and
sentenced to the minimum term of five years. Although during trial he had
asserted a number of errors he failed to appeal. Subsequently he brought a
petition under 28 U.S.C. 2255. The district court denied the petition on the
ground that the matters therein alleged could, and therefore should, have been
raised by appeal. Appellant then asserted to the district court that he had been
deprived of his appeal through default of his counsel, who had agreed to
prosecute an appeal, but did not. The district court rejected this claim. On
appeal we held that appellant had raised a question of fact which should have
been passed on by the district court, and remanded for further proceedings.
Desmond v. United States, 1 Cir., 1964, 333 F.2d 378. Thereafter the district
court took evidence and made a finding which, although politely expressed, in
substance meant that counsel failed to carry out appellant's instructions to
appeal. The effect of this finding should have been to remove the bar to his
2255 assertion of error in his trial. The district court, however, stated that the
district judge who had conducted the trial would be "piqued" to have it review
his conduct** and declined to pass upon the merits. Instead, it revoked the
original sentence and imposed a new one for five years, (the minimum
sentence) to begin as of the date of imposition, so that appellant came under an
obligation to serve eight years rather than the original five.
2
We are entirely satisfied that the court's action was due to some kind of
misunderstanding, and that the court had no intention to impose a penalty upon
appellant for having brought his petition. However, in a 2255 proceeding a
petitioner is entitled to have errors of a district court reviewed in the district
court regardless of believed sensitivities of another judge. Appellant was
entitled, once the bar of his having failed to raise his points by appeal had been
removed, to have them considered. But since the case is now here, and since
appellant's remaining questions are solely questions of law we can pass fully
upon them. We reach only one, since it is unlikely that the others will reoccur.
At the original trial, in the course of its final argument to the jury the
government, referring to the alleged occasion when the two defendants had
transferred the heroin to the government agent, said, "Those are the facts, the
evidence. Incidentally, may I say to you that the evidence stands unimpeached
and uncontradicted." Counsel for appellant immediately objected, stating at the
bench that this was a comment upon appellant's failure to testify. The court
overruled the objection, saying "Absolutely not," but added that in its charge it
would tell the jury that no inference should be drawn against appellant from his
failure to take the stand. Subsequently the court did so charge.
Two questions are presented, which we will take in reverse order. If it be
assumed that the government's argument constituted comment upon appellant's
failure to testify, was it cured by the charge? We think not. Correction of error
should be as prompt and timely as possible particularly where the error
involves the infringement of a constitutional right, as this did. Griffin v. State of
California, 85 S.Ct. 1229, 4/28/65. The appellant promptly objected. The
remedy, to be fully effective, should have been administered equally promptly.
Smith v. United States, 9 Cir., 1959, 268 F.2d 416, 420; White v. United States,
1962, 114 U.S.App.D.C. 238, 314 F.2d 243.
Nor can we doubt that the government's statement that its witness' statement
stood "unimpeached and uncontradicted" constituted improper comment. No
one but appellant (or his co-defendant, whom appellant could not put on the
stand against his will) could have contradicted the government witness. The
government's present argument that since the transaction took place in an
apartment house perhaps there were other persons around, though its own
witness had suggested no one, and on the face of things it would be to a degree
unlikely, is sound neither in fact nor in law. Unless it is apparent on the record
that there was someone other than himself whom the defendant could have
called, the comment of necessity pointed to the only person who could have
offered the contradiction, the defendant himself. Hence, in the present case it
was clearly improper. This is no new constitutional interpretation. Barnes v.
United States, 8 Cir., 1925, 8 F.2d 832; cf. Linden v. United States, 3 Cir.,
1924, 296 F. 104; Commonwealth v. Domanski, 1954, 332 Mass. 66, 69-71,
123 N.E.2d 368. The government made the argument because it thought it
would be effective. We can think of no effect other than to invite the jury's
attention to the fact the defendants had not taken the stand.
6
The court was correct in vacating the first judgment. It should also have set
aside the verdict. It erred in imposing the new sentence.
Judgment must be entered vacating the final judgment of the District Court and
setting aside the verdict and ordering a new trial. The appeals in the two section
2255 proceedings will be dismissed as now moot.
Notes:
*
By designation
**
The district judge who conducted the original trial had disqualified himself
from hearing the 2255 petition
