ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA Crim. No. 75-221.
Adams, Rosenn, and Garth, Circuit Judges. Adams, Circuit Judge, concurs. Rosenn, Circuit Judge, dissents.
On October 11, 1975, the appellant, Ted R. Grayson, without authority left the Allenwood Federal Prison camp, where he had been serving a three-year sentence for a controlled substances conviction. Two days later, he was apprehended in New York City.
Indicted for this escape pursuant to 18 U.S.C. § 751(a),*fn1 Grayson was tried before a jury in the United States District Court for the Middle District of Pennsylvania. His sole defense was duress - that he had been forced to flee from Allenwood because of threats on his life made by inmates to whom he owed gambling debts. The jury, evidently disbelieving Grayson, rejected this defense and found Grayson guilty.
The district court sentenced Grayson to a two-year term of imprisonment which was to commence at the conclusion of the sentence that he was then serving. Prior to the actual sentencing, the district court had expressed its belief that Grayson had lied while testifying at trial.*fn2 Thereafter, in imposing sentence the court quite properly noted that it could, without giving any explanation, sentence Grayson to the maximum term of imprisonment provided by the statute, that is, a five-year prison term, see note 1 supra. See Dorszynski v. United States, 418 U.S. 424, 431,41 L. Ed. 2d 855, 94 S. Ct. 3042 (1974); Gore v. United States, 357 U.S. 386, 393, 2 L. Ed. 2d 1405, 78 S. Ct. 1280 (1958); Government of Virgin Islands v. Richardson, 498 F.2d 892, 894 (3d Cir. 1974). Nevertheless, the district court proceeded to identify those factors which it had considered in arriving at the two-year sentence and expressly invited appellate review of its action. The district court's comments were as follows:
" THE COURT: All right. I'm going to give my reasons for sentencing in this case with clarity, because one of the reasons may well be considered by a Court of Appeals to be impermissible; and although I could come into this Court Room and sentence this Defendant to a five-year prison term without any explanation at all; I think it is fair that I give the reasons so that if the Court of Appeals feels that one of the reasons which I am about to enunciate is an improper consideration for a trial judge, then the Court will be in a position to reverse this Court and send the case back for re-sentencing.
In my view a prison sentence is indicated, and the sentence that the Court is going to impose is to deter you, Mr. Grayson, and others who are similarly situated. Secondly, it is my view that your defense was a complete fabrication without the slightest merit whatsoever. I feel it is proper for me to consider that fact in the sentencing, and I will do so."
Grayson advanced three contentions in his direct appeal to this Court, the first two of which we have found to be without merit.*fn3 Only his final argument concerns us here. Grayson argues that the district court judge erred by imposing a sentence "the severity of which was based in part upon the judge's belief that the defendant had committed perjury during the trial." Disagreeing with that claim and satisfied that Grayson's other two contentions should be rejected, we affirmed the judgment of the district court by a judgment order dated September 16, 1976.
Thereafter, Grayson filed a petition for rehearing. The thrust of the petition was that we had failed to follow a prior precedent in this Circuit, Poteet v. Fauver, 517 F.2d 393 (3d Cir. 1975). In Poteet, this Court had adopted the following principle of law:
A defendant has a right to defend, and although he is not privileged to commit perjury in that defense, the sentencing judge may not add a penalty because he believes the defendant lied. One reason is evident. A man may not be punished except upon a charge and opportunity for hearing. There having been no charge of perjury or conviction for that crime, due process would be denied if further punishment were inflicted for that crime. Another reason, apart from this procedural obstacle, is that the right to defend would be unduly burdened if a defendant understood that, if convicted, his mere denial of the charge under oath would without more lead to successive convictions for perjury until he or the State was exhausted.
Upon reviewing the petition for rehearing, we, rather than the Court in banc,*fn4 reconsidered our prior determination and vacated the judgment order. We conclude that the controlling law in this Circuit on this question is found in Poteet v. Fauver, supra.
Our initial examination of Poteet when it was cited as grounds for reversal in Grayson's brief on appeal had persuaded us that Poteet did not control the disposition of this issue. Poteet, which accepted the legal doctrines formulated by the New Jersey Supreme Court but held that they had been applied incorrectly, presented much more egregious circumstances than are found here. In Poteet, the State trial judge was unsuccessful in his attempt to force Poteet to admit his guilt after the verdict and after a co-defendant had been forced to "confess." The trial judge then added ten years to Poteet's sentence because of his failure to "confess." This factual setting differs dramatically from that which confronted the district court judge in Grayson's case. Despite our initial belief that Poteet did not appear to control the result in Grayson because of its different factual setting, nevertheless when we reexamined Poteet we could not fairly deny that this Circuit had committed itself to the principle quoted above, i.e., that "the sentencing judge may not add a penalty because he believes that the defendant lied."
The reading given Poteet by the dissent is substantially different than our reading. The dissent claims that
the sentencing judge in Poteet. . . would have effectively required the defendant to waive his Fifth Amendment rights. Although certain language in Poteet suggests that a sentencing judge may not add an increment to a sentence in the belief that the defendant lied under oath on the witness stand, no such situation was presented in Poteet. I must therefore conclude that it was the trial judge's disregard of Poteet's Fifth Amendment rights which animated this Court in that case.
Dissenting Op. at 110. Additionally, the dissent reads Poteet as pertaining only to post-verdict conduct as opposed to perjury committed at any time during trial. Id. at 110. Neither the text of Poteet nor the inarticulated premises of Poteet support such a strained reading.
Nowhere in the Poteet opinion does the Court address the Fifth Amendment concern which Judge Rosenn in dissent would regard as the basis for the Poteet court's holding. It impresses us that when the author of Poteet (Judge Aldisert) desired to confront Fifth Amendment considerations in the sentencing process in United States v. Garcia, 544 F.2d 681 (3d Cir. 1976), he did not disguise his intent or leave it to implication. Rather, his discussion of Fifth Amendment considerations leading to the Court's holding in Garcia was explicit, undisguised and unequivocal.*fn5
We are certain that had the Fifth Amendment considerations attributed to the Poteet court by Judge Rosenn actually been involved in Poteet, the same explicit, undisguised, and unequivocal analysis found in United States v. Garcia, supra, would have been set forth in Poteet. Hence we cannot agree that the governing principle of Poteet and its result were the product of this Court's Fifth Amendment concerns. Nor can we agree, in interpreting Poteet, ...