McLaughlin, Hastie and Van Dusen, Circuit Judges.
This appeal challenges two orders of the United States District Court for the District of Delaware dated July 26, 1971.
One order denied defendant's Motion For New Trial on the ground of newly-discovered evidence.*fn1 After careful consideration of the briefs and oral argument, a majority of the panel has concluded that the record requires the affirmance of this district court order denying the Motion For New Trial on the ground of newly-discovered evidence. See United States v. William H. Robinson, (D.Del. No. 1926, Memorandum Opinion of 7/26/71).*fn2
The second district court order of July 26, 1971, denied a Motion For Reduction of Sentence under F.R.Crim.P. 35. During the argument on the appeal from this order, counsel for defendant referred to a report completed earlier this month by a well-qualified psychiatrist, concluding:
"Mr. Robinson is not suffering at this time from a psychiatric disorder of any kind. It is my impression that rather than being a destructive, hostile, bitter, distrustful, impetuous, anti-White and anti-social person, he is fully rehabilitated ; and incarceration would not serve the purpose of changing him to be a more constructive person.
"Rather, in my professional opinion, that change has already taken place, and Mr. Robinson, if released from custody, would not be a danger to either the White or Black communities, but would make a substantial contribution to improving race relations and acting as a useful and constructive citizen in whatever community he lived and worked."
With a commendable desire to secure justice in this case, the United States Attorney stipulated that this report should be made available to the district court in view of the strong testimony in defendant's favor submitted at a hearing on the above Motion on May 20, 1971, provided that Dr. Kaufman would supplement his report after consideration of certain prison progress reports and other material which might be agreed upon by counsel.*fn3
In view of this stipulation, the order denying the motion for reduction of sentence will be vacated and the record will be remanded to the district court for its reconsideration of that motion. The above-mentioned July 26, 1971, order denying the Motion For New Trial will be affirmed.
HASTIE, Circuit Judge (concurring).
While I join in this court's order remanding this cause for reconsideration of Robinson's motion for reduction of sentence, I add these observations about the matter in issue.
In my view, the very recent psychiatric report which is cited as providing the immediate occasion for remand merely confirms the very convincing showing already made in the present record that society will be far better served by Robinson's release and return to the community than by continuation of his imprisonment.
After his arrest Robinson was imprisoned for about a year. After his conviction, this court admitted him to bail, pending appeal, under supervision of a concerned clergyman. He remained at large for nearly a year until after this court affirmed his conviction.
The record shows in most impressive ways that Robinson has changed greatly since the 1968 crime for which he stands convicted. The crime occurred in a background of recent serious racial strife in Wilmington. Robinson's participation in this wrongdoing seems to have been a translation of the bitterness of a young black man and his hostility toward whites, viewed by him as the dominant group responsible for social injustice, into a reprehensible act of criminal aggression. On the other hand, during the subsequent period of his enlargement Robinson quite clearly disclosed a new and wholesome attitude characterized by ...