Meanor, a brother judge, an experience which is totally alien to me.
I. Judge Meanor's Resentence -- On the Merits.
To determine whether my colleague's substitution of his own sentence for mine was well reasoned, and should guide me in Diaco's case, I have read very carefully the transcript of the sentencing proceedings before him on February 3, 1978.
While neither counsel nor the defendants addressed the court, the court referred to the trauma the defendants had suffered by reason of the large delay between their initial sentencing and the present. Putting aside the fact that the defendants had not advanced any claim of trauma on the record, I cannot accept that as a reason for reducing a sentence here.
The delay -- and an unseemly one it is from the point of the public's view of the criminal justice system -- was directly the result of the defendants' raising in the district court and on appeal, after their convictions had been affirmed and I had ordered incarceration, a Brady issue which I had found frivolous. My colleague held three days of hearings, saw and heard James Silver, upon whose testimony the Brady claim rested, and reflected in the record his lack of confidence in Silver's testimony. The significance in this is that the defendants have consistently rested their Brady claim on Silver who, it appears, is a thin reed.
In addition to the "trauma" reason, my colleague also relied upon the defendants' withdrawal of their motion making for finality. This reason too fails to withstand analysis. Defendants and their counsel must have been as aware as the court of Silver's shortcomings.
Finally, my colleague implied that my five-year sentence was too severe. I have already noted that I discussed my sentence with two experienced and respected members of this court before imposition. Moreover, the sentence was well within the range of other sentences imposed by other judges of this district in recent years.
Accordingly, I find no rational basis upon which I could justify sentencing any one of these defendants to incarceration of six months or less. Such a sentence is incomprehensible given the crime committed.
Given the foregoing analysis, to grant Diaco's motion would be to subordinate my judicial conscience and sense of what is right morally and legally to a colleague's act. With all due respect to a brother judge, I believe he has committed a grievous error; this being so, I will not allow my actions to be directed -- or influenced -- by his.
In short, I am not persuaded by Diaco's argument that because my colleague has reduced a sentence imposed by me, after I had already declined to do so, I should now place myself in his mold.
Thus, even were I free to reduce Diaco's sentence, I would not do so. The fact that, under principles of law that are emphatically clear, I am not free to resentence Diaco will now be discussed.
II. Judge Meanor's Resentence -- On the Law.
Rule 35 of the Fed.R.Crim.P. provides as follows:
The court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence. The court may reduce a sentence within 120 days after the sentence is imposed, or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 120 days after entry of any order or judgment of the Supreme Court denying review of, or having the effect of upholding, a judgment of conviction. The court may also reduce a sentence upon revocation of probation as provided by law.