UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
argued: September 6, 1977.
UNITED STATES OF AMERICA
JOHN BAZZANO, JR. A/K/A "JOHNNY", A/K/A "J", JOSEPH DE MARCO A/K/A "JOE", JOSEPH CHARLES YIMIN A/K/A "BULL", CHARLES PATRICKKELLINGTON A/K/A "CHUCK", FRANCIS DATTALO A/K/A "FRANK", A/K/A "HOG", ATTILIO POLICASTRO A/K/A "FLAT TOP", PRIMO VICTORY MOLLICO A/K/A "XG", JOHN FRANKLIN MATZ A/K/A "JACK", A/K/A "MAYOR", DAVID RANKIN GUFFEY A/K/A "CHIEF", A/K/A "CLAIRTON CHIEF", JOHN REGIS WARD A/K/A "JP", A/K/A "WARD", PETER PAUL ORSINI A/K/A "PETE", A/K/A "PETE ORSI", DOMINIC PAUL SERAPIGLIA A/K/A WILSON CONSTABLE, THOMAS C. POLJAK A/K/A "ELIZ CHIEF", GEORGE B. HINES A/K/A "ELIZ CONSTABLE", JOHN BAZZANO, APPELLANT IN NO. 76-2584; DAVID RANKIN GUFFEY, APPELLANT IN NO. 76-2585; JOHN REGIS WARD, APPELLANT IN NO. 76-2586; PETER PAUL ORSINI, APPELLANT IN NO. 76-2587; THOMAS C. POLJAK, APPELLANT IN NO. 76-2588; JOHN FRANKLIN MATZ, APPELLANT IN NO. 76-2628
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Crim. No. 75-192).
Adams, Van Dusen and Hunter, Circuit Judges. Adams, Circuit Judge, concurring.
Author: Van Dusen
VAN DUSEN, Circuit Judge.
This appeal from judgments of conviction of six defendants raises two principal issues: (1) whether the district court erred in failing to grant a new trial because of prosecutorial misconduct in allowing the grand jury testimony of Government witness Moody to be read to Government witness Stanizzo and the grand jury testimony of Stanizzo to be read to Moody prior to trial, and (2) whether defendant Bazzano was denied the right to effective assistance of counsel with regard to sentencing because the district court failed to disclose published sentencing guidelines. After careful consideration, we have concluded that the contentions raised by the defendants do not justify reversal of the convictions.
The defendants were convicted of operating an illegal gambling business*fn1 or aiding and abetting the operation of an illegal gambling business,*fn2 and conspiring to obstruct state law enforcement relating to gambling.*fn3 The gambling business, a numbers game, was conducted in the towns of Clairton and Elizabeth, Pa. All the defendants who participated in the illegal gambling business, except Bazzano, were public officials.
The evidence adduced by the Government was voluminous and a brief summary of it will suffice. Basically, the evidence was of two types: adding machine tapes proven to be business records of the gambling operation, and testimony by a number of witnesses who had been involved in the gambling operation. The evidence established that Bazzano had run the gambling operation and that the other defendants accepted payments from the gambling operation in exchange for letting the operation continue without interference.
Mrs. Elizabeth Stanizzo, a former employee of the gambling operation, extensively detailed the illegal gambling business. Mrs. Stanizzo had known defendant Bazzano for 20 years, and her late husband had been Bazzano's partner in the business. She testified that Bazzano ran the gambling operation and that the other defendants received payments from the operation. Another witness, Moody, corroborated some of Mrs. Stanizzo's testimony. Moody, who for a time was part owner of the operation, testified that he had worked for Mr. Stanizzo in the business and that Mr. Stanizzo had dealt with Bazzano. A former Allegheny County detective, Hammer, testified that he had accepted protection payments from numbers writers in the Clairton area. His testimony also corroborated some of Mrs. Stanizzo's testimony.
Defendant Matz was the Mayor of Clairton. Testimony indicated that Matz allowed Bazzano to operate the numbers business in Clairton and that Matz received payment from one of Bazzano's employees. The adding machine tapes indicate that payments were made to "Mayor."
There was sufficient testimony to support the jury's verdicts convicting the other public official defendants as indicated in the footnote.*fn4
The charge of prosecutorial misconduct stems from a meeting between two witnesses, Moody and Stanizzo, and F.B.I. Agent Fitzpatrick, who had investigated the case.
When Moody, who was testifying under immunity, took the stand, he requested to speak with the judge in chambers. In chambers, with counsel present, Moody stated that a few days before he was to testify, Fitzpatrick read Moody's grand jury testimony to Mrs. Stanizzo and read Mrs. Stanizzo's grand jury testimony to Moody. Defense counsel immediately moved for a mistrial or, in the alternative, that both Moody and Mrs. Stanizzo "be dismissed as witnesses and not called by the government" (N.T. IX-63). The court denied the motions after oral arguments and Moody was allowed to testify.
On cross-examination, defense counsel questioned Moody about the meeting with Fitzpatrick. He testified that Fitzpatrick read selected pages of each witness' grand jury testimony in the presence of both witnesses (N.T. IX-133). He also testified that, in his opinion, Fitzpatrick "doctored" Moody's testimony with Mrs. Stanizzo's so that their stories would be the same (N.T. IX-133-34).
Mrs. Stanizzo was also cross-examined on this subject, and her account differed from Moody's. She testified that Fitzpatrick did not read any of her grand jury testimony, but, rather, told her that he did not have to read it to her because she knew what she had said. She testified that he read from some papers to Moody in her presence.
After Mrs. Stanizzo's testimony, the defendants moved that her testimony be stricken on the ground that the meeting with Fitzpatrick violated F.R. Crim. P. 6(e) and constituted prosecutorial misconduct. Defendants also moved for a dismissal of the indictment on the same grounds. The motions were denied. The defendants again press this argument in this court, claiming that the conduct in violation of Rule 6(e) denied them a fair trial.
We hold that at least some of the conduct testified to was prosecutorial misconduct violative of Rule 6(e), but that this conduct did not constitute reversible error.
F.R. Crim. P. 6(e) provides in part:
"Secrecy of Proceedings and Disclosure. Disclosure of matters occurring before the grand jury other than its deliberations and the vote of any juror may be made to the attorneys for the government for use in the performance of their duties. Otherwise a juror, attorney, interpreter, stenographer, operator of a recording device, or any typist who transcribes recorded testimony may disclose matters occurring before the grand jury only when so directed by the court preliminarily to or in connection with a judicial proceeding or when permitted by the court at the request of the defendant upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury. No obligation of secrecy may be imposed upon any person except in accordance with this rule."*fn5
The language pertinent here is: "Disclosure . . . may be made to attorneys for the government for use in the performance of their duties" and an "attorney . . . may disclose matters . . . only when so directed by the court . . . ." Thus, we are faced with two questions: Did the Government attorney use the material in the performance of his duties? Did the Government attorney disclose matters without court direction?
In answering the first question, we need not decide the issue of whether it is proper for material to be disclosed to an F.B.I. agent working for the Government attorney. The 1977 amendment to Rule 6(e) was enacted to permit such disclosure.*fn6 Assuming, arguendo, that such a disclosure was proper under the earlier version of Rule 6(e) applicable here,*fn7 the F.B.I. agent cannot use the disclosed material in a manner which is not permissible for the Government attorney. The scope of authority of the F.B.I. agent, acting as an agent for the Government attorney, is limited to the scope of authority of the Government attorney. Cf. Restatement of Agency, 2d, § 20. Apparently, in this case, if Moody's testimony was accurate, the Assistant United States Attorney, perhaps unknowingly, used the F.B.I. agent as a conduit to disclose the grand jury testimony of two of the Government witnesses to each other prior to trial.
The defendants do not object to the disclosure by the agent to a grand jury witness of that witness' testimony,*fn8 but the objection is to the verbatim disclosure of Mrs. Stanizzo's testimony to Moody, and vice versa, in an attempt to "shape" their trial testimony so that each witness' testimony will corroborate the other's. These facts are distinguishable from a pre-trial interview in which the prosecutor indicates to a witness in general terms the evidence which other witnesses may give. In this latter situation, the interview may be conducted without disclosure of specific statements made to the grand jury, and therefore Rule 6(e) would not be involved. Furthermore, when potential trial witnesses who testified before the grand jury are not identified by name, there is no violation of the purpose of Rule 6(e) to encourage witnesses to testify without fear of retaliation. See, e.g., Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 400, 3 L. Ed. 2d 1323, 79 S. Ct. 1237 (1959); Posey v. United States, 416 F.2d 545, 557 (5th Cir. 1969), cert. denied, 397 U.S. 946, 25 L. Ed. 2d 127, 90 S. Ct. 965 (1970). Finally, such a pre-trial interview may simply serve to refresh a witness' memory rather than improperly to influence his testimony. As the Supreme Court has stated, "an attorney must respect the important ethical distinction between discussing testimony and seeking improperly to influence it." Geders v. United States, 425 U.S. 80, 90 n.3, 47 L. Ed. 2d 592, 96 S. Ct. 1330 (1976). Of course, at times the line between refreshing a witness' memory and seeking improperly to influence his testimony may be difficult to draw, and each case must be decided on its facts. We merely hold that on the particular facts of this case, if the agent read Moody's testimony verbatim to Mrs. Stanizzo in an attempt to "shape" Mrs. Stanizzo's trial testimony to coincide with Moody's, the agent's conduct fell on the impermissible side of the line. Therefore, on Moody's account, the Government attorney's use of grand jury material went beyond the proper use of that material in the performance of his duties.*fn9
With regard to the second question (page 1125 above), through the F.B.I. agent, the Government attorney disclosed grand jury testimony without court direction, if Moody's testimony was accurate. Therefore, the Government attorney, perhaps unknowingly, violated Rule 6(e). However, as noted below, there were credibility difficulties with Moody's testimony. Although we find the violation of Rule 6(e) as testified to by Moody improper, we do not think the defendants were denied a fair trial under the facts presented by this record.
First, Moody's and Mrs. Stanizzo's accounts of what occurred at the meeting with Fitzpatrick differed. Moody claimed that Fitzpatrick attempted to "doctor" the testimony and read each witness' testimony to the other witness. Mrs. Stanizzo testified that Fitzpatrick merely read from some papers, presumably a portion of Moody's testimony,*fn9a to Moody in her presence, but made no attempt to coach her or to tell her what to say. Of course, even given Mrs. Stanizzo's version of the conduct if the papers read were grand jury transcripts, the conduct violates Rule 6(e), but on this version the conduct is not as egregious as the misconduct alleged by Moody. The trial judge could have believed Mrs. Stanizzo's account rather than Moody's, and we cannot say his decision to believe her account was erroneous. There is evidence in the record that Moody, who was being forced to testify under immunity, did not want to testify and was using this incident as a convenient way to avoid testifying and to avoid implicating his friends.*fn10 Throughout his testimony he exhibited a hostility toward the Government. N.T. IX-67, 109, 123. Consequently there is reason to be suspicious of the accuracy of Moody's account of the meeting and to accept Mrs. Stanizzo's account, as the fact finder could conclude that she was a more disinterested witness.
Secondly, the trial judge found that the witnesses' testimony "varied in a number of respects, and all the circumstances militate against any inference that the testimony of Moody and Mrs. Stanizzo was 'shaped'. . . ." United States v. Bazzano, Crim. No. 75-192, slip op. at 8-9 (W.D. Pa., Nov. 9, 1976). Having carefully reviewed the record, we find ample support for this position. Thus, the trial judge was acting well within his discretion in allowing these witnesses to testify.
Third, because there is ample evidence to support the view that any attempt to shape the witnesses' testimony was unsuccessful, we think the evidence of improper influence affects the credibility, not the admissibility, of the testimony, see Geders v. United States, 425 U.S. 80, 89-90, 47 L. Ed. 2d 592, 96 S. Ct. 1330 (1976); United States v. Hood, 493 F.2d 677, 680 (9th Cir.), cert. denied, 419 U.S. 852, 42 L. Ed. 2d 84, 95 S. Ct. 94 (1974), and, of course, the credibility of witnesses is a question for the jury. See, e.g., United States v. Hill, 449 F.2d 743, 743 n.3 (3d Cir. 1971). Moody, Mrs. Stanizzo, and Fitzpatrick were cross-examined vigorously about the meeting at which the grand jury testimony was read by Fitzpatrick. Therefore, the jury was fully apprised of all three accounts and was able to weigh the credibility of Mrs. Stanizzo accordingly.*fn11 As the Supreme Court has stated: "The established safeguards of the Anglo-American legal system leave the veracity of a witness to be tested by cross-examination, and the credibility of his testimony to be determined by a properly instructed jury." Hoffa v. United States, 385 U.S. 293, 311, 17 L. Ed. 2d 374, 87 S. Ct. 408 (1966).*fn12
Finally, even assuming that Mrs. Stanizzo's testimony was tainted by improper influence, her testimony was still not sufficiently harmful to require reversal. The only defendant who attempts to show that he was prejudiced by Mrs. Stanizzo's testimony is Matz, who claims that he was implicated by her trial testimony but was not implicated by her grand jury testimony. Even if Mrs. Stanizzo's testimony regarding Matz had been stricken, there would have been sufficient evidence to convict Matz because the tapes indicated that he received bribes and there was ample evidence that whenever the tapes indicated that a person received bribes, that person did receive bribes. Therefore, even if it had been error to admit Mrs. Stanizzo's testimony regarding Matz, it would have been harmless error beyond a reasonable doubt.*fn13
We emphasize that our holding that the prosecutorial misconduct in violation of Rule 6(e) does not require a new trial is limited to the facts of this case. Under other circumstances, for example, when a witness appears to have changed his or her testimony as the result of some improper influence or when the evidence against the defendants is not as strong as it is here, a violation of Rule 6(e) may well require a new trial.
Defendant Bazzano contends that the district court denied him effective assistance of counsel during sentencing because the trial judge referred to published sentencing guidelines but failed to provide those guidelines to defense counsel or to make them part of the record. We find this argument unpersuasive.
Counsel did not request to see the sentencing guidelines or to have them made part of the record at the time of sentencing. Nor did Bazzano raise the issue of ineffective assistance of counsel in his post-trial motions. This court will not pass on issues not raised in the district court "unless the error be so fundamental in nature as to deprive a party of fundamental justice." United States v. Moore, 453 F.2d 601, 604 (3d Cir. 1971).*fn14
We do not think failure to disclose the sentencing guidelines deprived Bazzano of fundamental justice. Bazzano was sentenced to seven years' imprisonment and fined $40,000. The maximum sentence possible was 35 years' imprisonment and $140,000. in fines.*fn15 Therefore, the sentence was well within the statutory maximum. See United States v. Fessler, 453 F.2d 953, 954 (3d Cir. 1972). Moreover, the guidelines referred to by the trial judge, entitled Part 2 - Parole, Release, Supervision and Recommitment of Prisoners, Youth Offenders and Juvenile Delinquents, are published at 28 C.F.R. §§ 2.1-2.58, and often cited by this court. See, e.g., United States v. Somers, 552 F.2d 108 (3d Cir. 1977); United States v. Salerno (appeal of Silverman), 538 F.2d 1005 (3d Cir. 1976).*fn16 Since the guidelines should be familiar to anyone practicing criminal law in this Circuit and since they have been published in the Code of Federal Regulations, they were readily available to defense counsel.
We have considered these other contentions of one or more defendants and reject them:
A. Where it is established that the prosecutor failed to furnish exculpatory statements of many witnesses who were called to testify, the district court should have conducted a hearing and required the production of statements and grand jury testimony of other witnesses whom the Government did not call to testify to determine whether additional exculpatory evidence or evidence which would tend to negate the guilt of defendant had been withheld from counsel for defendant as alleged in the motion for new trial.*fn17
B. The district court erred in failing to instruct the jury that certain witnesses are available to the Government where the Government may grant them immunity but not available to the defendant and, therefore, the inference that their testimony would be adverse to the Government is a permissible one which the jury may draw.*fn18
C. The district court erred in failing to grant a hearing at which the grand jury testimony of the F.B.I. agent would be introduced to show that the indictment was returned on hearsay rather than on substantive testimony of witnesses.*fn19
D. The evidence is not sufficient to sustain the verdict and the court should have granted defendants' motion for judgment of acquittal.*fn20
E. The court erred in admitting into evidence the adding machine tapes which (1) consisted of inadmissible hearsay statements, and (2) denied the defendant his constitutional right to confront and cross-examine witnesses against him.*fn21
The defendants make several other contentions which, after consideration, we also reject.*fn22
The judgments of the district court will be affirmed.
The judgments of the district court will be affirmed.
ADAMS, Circuit Judge, concurring.
I concur with the result reached by the majority in this case. However, I am constrained to add some thoughts concerning Bazzano's contention as to the sentence imposed on him, and the judge's alleged failure to explain the basis of that sentence.
The key facts bearing upon Bazzano's sentencing may be quickly summarized. With respect to all counts on which he was convicted, Bazzano received a sentence of seven years in prison and a fine of $40,000. After the penalty was imposed, the trial judge stated that Bazzano's sentence was predicated upon the "guidelines that have recently been published."*fn1
At oral argument Bazzano's counsel remarked that he was not aware of the identity of the guidelines to which the judge referred. After further questioning by the panel, however, counsel admitted that he had not pressed the trial judge for any additional explanation of the basis for the sentence.
Two points are evident in light of these facts. First, this is not a case in which the district judge gave no reasons for Bazzano's sentence. Although the grounds for the sentencing decision were not set forth in detail, it cannot be claimed that the judge made no attempt to explain the matters influencing him.
Additionally, there is no indication that Bazzano was foreclosed from requesting a further explanation by the court. Since Bazzano's counsel apparently was unaware of the nature of the guidelines to which the judge referred, it is rather puzzling that he did not seek some additional elaboration of the basis for the decision.
In light of these factors, Bazzano's argument that he was deprived of the effective assistance of counsel, because the attorney was unable to discover the grounds of the penalty,*fn2 cannot succeed. The facts simply do not support the major premise of such a position, namely, that counsel had no opportunity to learn the reasons for the sentencing determination.
Nonetheless, this does not end the matter. Although this Court was not asked by the parties to adopt a rule that the reasons for sentences should be given in all cases, in my view, the procedural requirement of a statement of reasons should be adopted for future cases.
The traditional principle guiding appellate courts faced with challenges to sentences, in this Circuit and elsewhere, is to defer to the discretion of a trial court.*fn3 As a general rule, "a federal appellate tribunal will not review a judgment of sentence that is within the statutory maximum unless there be a showing of illegality or abuse of discretion."*fn4 The rationale behind this precept is that trial judges, by virtue of their knowledge of the circumstances of a criminal case, are in the best position to impose a penalty, taking into account the individual conditions of the defendant*fn5 and the nature of his crime.*fn6
Yet the principle of deferring to the discretion of a trial court clearly does not require abdication of an appellate court's responsibility to superintend the sentencing process. Moreover, respect for a district court's discretion in framing the substance of sentences within statutory limits entails no lack of power to review sentencing procedures. Indeed, "the careful scrutiny of the judicial process by which the particular punishment was determined" is "a necessary incident of what has always been appropriate appellate review of criminal cases."*fn7
In the course of reviewing the process of sentencing, the Supreme Court in United States v. Tucker, 404 U.S. 443, 30 L. Ed. 2d 592, 92 S. Ct. 589 (1972), held that it was proper to remand the case for reconsideration of a sentence when the district judge explicitly took into account the defendant's record of prior convictions, and it later was determined that two of the convictions were constitutionally invalid. The Supreme Court was able to conclude, by reviewing the transcript of the sentencing proceeding, that constitutionally impermissible convictions had been weighed by the trial court.*fn8 As the Supreme Court noted:
The record in the present case makes evident that the sentencing judge gave specific consideration to the respondent's previous convictions before imposing sentence upon him. Yet it is now clear that two of those convictions were wholly unconstitutional under Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792.*fn9
The Supreme Court further emphasized that Tucker's sentence might have been different had the district judge not taken into account the invalid data.*fn10
Thus, Tucker stands for the proposition that a district judge, in the exercise of his discretion, must not rely upon incorrect evidence of prior convictions or upon previous convictions illegally obtained.*fn11 The principle underlying this proposition, stated generally, appears to be that it is unfair for a person to suffer a penalty which, at least to a significant degree, was designed to fit a set of facts that is inapplicable to the individual on whom the sentence is imposed.
In some cases, such as in Tucker itself, a reviewing court may be able to conclude, simply on the basis of the record, that a trial judge relied upon specific misinformation about the defendant.*fn12 It is not difficult to foresee, however, that the record of a case will not always reveal clearly whether a sentencing tribunal took into consideration erroneous data.*fn13 Where the record is silent or unclear on the matter, such a gap could be filled by a statement of the reasons for the sentence. At the very least, then, the procedural requirement of a statement of reasons for sentences would assist appellate courts in such circumstances in carrying out the mandate of Tucker.
Moreover, the requirement of a statement of reasons would appear to intrude less on the discretion of a trial court than a process of inferring broadly what a judge's reasoning regarding a sentence might have been. When no statement of reasons is set out, an appellate court, in order to vindicate the principle that only correct information may be considered in sentencing, is forced to draw inferences from the record about the district judge's views.*fn14 However, if a frank statement were made by the trial judge regarding the basis of a sentence, a reviewing court could concentrate on such an explicit enunciation of the factors on which the judge relied. This is not to say that, in all cases in which an appellate court questions the veracity of the information considered in sentencing, confining review solely to the statement of a trial judge would be adequate. Nevertheless, it seems reasonable that in the normal case it would suffice.
Some appellate tribunals have demanded that a district court articulate the basis of its sentence when it is ordered to resentence a defendant.*fn15 United States v. Latimer*fn16 is a good example of a situation in which the most direct response by an appellate court, when it questions whether a sentence depended upon invalid information, is to require the trial court to state its reasons.
In Latimer, the defendant was convicted of impeding with a deadly weapon F.B.I. agents from performing their duties. The government, in its brief on appeal, referred to knowledge by the district court of tests performed on a bullet found in a gun held by the defendant at the time of his misconduct, which indicated that the gun had misfired.*fn17 The appellate court stressed that such information would seem to indicate that the defendant might have pulled the trigger while pointing the gun at the F.B.I. agents, and that this would be a more serious crime than the one for which the defendant was charged and sentenced. The government's brief thus raised "the possibility that the district court may have sentenced Latimer for a more serious offense than the one for which he was convicted. . . ."*fn18 Since there was no way to be certain that this did not occur, the appellate court vacated the sentence and remanded the case with instructions that the district court file a statement of the reasons for the penalty ultimately imposed.*fn19
The justification for requiring a statement of reasons for sentences is not confined to situations where, on appeal, there is a serious question concerning the validity of the basis of a sentence.*fn20 If the need fully to review the accuracy of the information utilized in sentencing were the central support for a statement of reasons, then all that would be indicated, when the grounds of a sentence are in doubt, would be a direction that the trial judge upon remand articulate the reasons.
Although the value of such a requirement seems plain, a broader change would also seem to be in order. The rationality and fairness of the sentencing process, and the likelihood that a given sentence will contribute to the promotion of the aims of our system of criminal justice, would be measurably heightened by requiring federal judges generally to give the reasons for the penalties they impose.*fn21
There are several policy justifications for the requirement that a trial judge elaborate the factors influencing a particular sentence. First, it would help to assure that the sentence fits the circumstances of a given defendant. For if a judge must elaborate the grounds of a sentencing determination, his attention will necessarily focus on the particular aspects of a case that are apposite to punishment.*fn22 "A Sphinx-like silence on the court's part precludes anyone (including the parties, the judge and an appellate tribunal) from learning whether he acted in error." United States v. Brown, 479 F.2d 1170, 1172 (2d Cir. 1973); accord, United States v. Velazquez, 482 F.2d 139, 142 (2d Cir. 1973).
Moreover, such a requisite would help to guarantee that the basis of a sentence is fundamentally rational and objective, and not rooted in nonarticulable considerations.*fn23 Although any sentencing decision may rest in part on a sense of the case and of the defendant that will be difficult to state with clarity, and although some aspects of the decision may be founded on ineffable factors, it should ultimately be grounded upon concrete and identifiable items revealed in the course of the trial and the sentencing proceeding.*fn24 Insisting on a statement of reasons ". . . would encourage the judge to clarify and justify, in his own mind, the grounds for the sentence he chooses. As a result, sentencing decisions would tend, on the whole, to be more carefully thought out." United States v. Velazquez, 482 F.2d 139, 142 (2d Cir. 1973).
As Judge Wyzanski wrote twenty-five years ago on the question whether a judge should give the reasons for his sentence:
Eminent and wise judges have warned me against this. Our judgment, they say, is better than our reasons. And it is in vain to attempt to explain the exact proportions attributable to our interest in punishment, retribution, reform, deterrence, even vengeance. But are these arguments valid? For there is grave danger that a sentencing judge will allow his emotion or other transient factors to sway him. The strongest safeguard is for him to act only after formulating a statement of the considerations which he allows himself to take into account.*fn25
The requirement of a statement of reasons for a sentence would also reinforce the dignity of the accused, who thereby would be treated as a subject worthy of an explanation for a decision by a representative of the state so poignantly affecting him and his family. Such action by the sentencing judge in many cases could be of therapeutic worth to a defendant. See Dorszynski v. United States, 418 U.S. 424, 456, 41 L. Ed. 2d 855, 94 S. Ct. 3042 (1974) (Marshall, J., concurring in judgment).*fn26 Moreover, such an explanation could have great value for correctional authorities when, as is often the case, a sentence results in commitment or continued supervision of a defendant.*fn27
In addition, requiring a sentencing tribunal to articulate the basis for its determination and, where appropriate, affording a defendant an opportunity to learn the reasons for the extent of his punishment, would increase the sense of the defendant and the public generally that the criminal process is fair and legitimate. More and more, we are coming to realize that for our system of criminal justice to be respected by the participants in it and by the public, it must be observed to be fair. It is not enough for it to be technically correct, although that, too, is a fundamental aim. Requiring that the basis of a sentence be set forth by a trial judge would promote the principle that "to perform its high function in the best way 'justice must satisfy the appearance of justice'".*fn28
The reality of justice would also be enhanced by such a step. From a defendant's perspective, the requirement of a statement of reasons would reduce the potential for unbridled discretion on the part of a judge in a situation in which the liberty of an accused is directly at stake.*fn29 From the public's viewpoint, this requirement would aid the citizenry in becoming better informed about the use of judicial power in criminal cases and, in particular, about the nature and grounds of the penalties imposed in the public's name.*fn30
The major arguments adduced for rejecting the requirement of a statement of reasons for sentences are, at least to me, unconvincing. First, it is difficult to see that such a rule would be an undue burden on trial courts, for, as Justice Marshall has stated, "it is not burdensome to give reasons when reasons exist."*fn31
In addition, the tradition of deferring to the discretion of trial courts is not a sufficient basis for failing to effectuate a change in sentencing policy.*fn32 Indeed, to warrant adherence to present practices, there should be proffered an independent justification for them, especially since it has become increasingly clear that a requirement for a statement of reasons would maximize the achievement of fundamental purposes in our criminal justice system.*fn33 Further, we have uncovered no data showing that the range of a trial court's discretion would be unduly constrained by asking a judge to elaborate the reasons for his sentencing determinations.
Another argument sometimes advanced for not imposing such a procedural requirement is that sentences cannot be "explained" in an orderly manner because the decisional processes leading to them are not structured.*fn34 The major difficulty with this position, putting aside the point that it apparently rests on an unsupported psychological premise, is that it proves too much. Surely many complex decisions in the judicial process have at their base some nonarticulable factors. But this point alone is not a sufficient justification to forego the attempt to make and to support major choices in a careful, rational manner.
To fail to insist that trial judges present the reasons for sentences is in effect to ignore the existence of unevenness in present practices. Since courts have displayed great sensitivity to the procedural rights of defendants during other stages of the criminal process, the act of sentencing itself is in the rather unique position of relative freedom from procedural scrutiny.*fn35 This is especially disconcerting because, in our criminal justice system, guilty pleas have become the norm.*fn36 Since more than 80% of all criminal cases involve no judicial determination of guilt,*fn37 from a practical perspective sentencing decisions may well be the most important ones made by trial judges in criminal cases. In such a system, it is particularly incongruous to fail to accord to a defendant at sentencing the kind of procedural protections provided at other stages of the criminal process.*fn38
A further anomaly exists in this Circuit, where Pennsylvania and New Jersey require trial judges to give reasons for sentences while the federal courts do not.*fn39 Although this alone is, of course, an insufficient ground for imposing the requirement on district courts, it should not be overlooked. Particularly when the policy arguments tend to point in one direction, it is important to consider the value of having a procedural system in which the federal courts do not diverge increasingly and substantially from state courts in the safeguards afforded defendants.*fn40
To persist in declining to require that district judges provide reasons for sentences is also to overlook a growing body of legal literature - representative of judges, lawyers, scholars, and other commentators on the criminal process - affirming the merit of such a procedure.*fn41 For instance, as the American Bar Association Project on Minimum Standards for Criminal Justice recommended nearly a decade ago:
The sentencing judge should be required in every case to state his reasons for selecting the particular sentence imposed. Normally, this should be done for the record in the presence of the defendant at the time of sentence. In cases in which the sentencing judge deems it in the interest of the defendant not to state fully the reasons for the sentence in the presence of the defendant, he should prepare such a statement for transmission to the reviewing court as a part of the record.*fn42
In view of these considerations, the time is now ripe to require, on the basis of our supervisory power over district courts in this Circuit,*fn43 that trial judges set forth the reasons for the sentences they impose.*fn44 Such a rule would help to assure that sentences are grounded on the facts of a particular case, and would serve the broader aims of promoting the defendant's rehabilitation as well as the fairness and rationality of sentencing procedures. It would also eliminate the undue delay that frequently results when the sentencing process is questioned in an appellate court, and the trial judge has not given his reasons for the sentence.*fn45 These gains would obtain without overly burdening trial judges, and without invading the realm of their discretion to set sentences on the basis of their knowledge of the defendant and the circumstances surrounding the crime.