author: WILLIAM E. DOYLE, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Frank Richard COPPOLA, Defendant-Appellant.
    No. 72-1735.
    United States Court of Appeals, Tenth Circuit.
    June 4, 1973.

      Robert J. Roth, U. S. Atty., and James Twitty, Sp. Atty., Dept, of Justice (Roger A. Pauley and Ronald G. Scheraga, Attys., Dept, of Justice, on the brief), for plaintiff-appellee.
    Larry E. Benson, Kansas City, Kan., and Patrick J. Hurley, Leavenworth, Kan., for defendant-appellant.
    Before HILL and DOYLE, Circuit Judges, and BRATTON, District Judge.
   WILLIAM E. DOYLE, Circuit Judge.

The appellant was charged in an indictment with Joe Cordova, Fred John Molina and Natividad Baca with having conspired to murder one Willard Hardaway in connection with a dispute growing out of the alleged failure of Hardaway to deliver a quantity of heroin to appellant in the United States Penitentiary at Leavenworth, Kansas (in violation of 18 U.S.C. § 371). In a second count he was charged with aiding and abetting Cordova, Molina and Baca in the murder of Hardaway, contrary to 18 U.S.C. §§ 2 and 1111. Defendant was tried and was found guilty on March 27, 1972, and was subsequently sentenced to life imprisonment on count 2 and to five years in prison on count 1 (conspiracy). The life sentence was ordered to run consecutively to any sentence which appellant was then serving. The five-year sentence was ordered to run concurrently with the life sentence.

The government’s theory was that appellant, an inmate at the United States Penitentiary at Leavenworth, was the major supplier of heroin within the institution. The homicide in question resulted from a dispute, again according to the government’s theory, between appellant and Willard Hardaway, the victim, concerning the delivery of the supply of heroin. Coppola had agreed to pay Hardaway $500.00 to smuggle a shipment of heroin into the prison. Hardaway instructed his wife that she would receive a package in the mail and that she should bring the heroin with her to a graduation exercise on August 23, 1968.

Hardaway’s wife carried out his instructions. She received the package in the mail and secreted it into the prison. She then divided it into two packages. One package was transferred to Harda-way. The other was delivered to Fred Deering, another inmate, for delivery to Coppola. It was this division of the package which resulted in the homicide. When Deering took the package to Coppola, the latter recognized that half of it was missing and then stated to Deering that Hardaway had “beat him for half of it” but that he “would take care of it.” Later Coppola told Deering that he was paying two Chícanos $500.00 and some narcotics to take care of Harda-way. On September 11, 1968, Hardaway was killed in his cell. The murder weapon was a heavy piece of pipe which was discovered shortly thereafter in a trash bag not far from Hardaway’s cell.

The evidence was amply sufficient to support the convictions and apparently appellant’s attorneys recognize this, for the issues posed here involve the trial court’s evidentiary rulings together with the conduct of the prosecutors. It is unnecessary therefore to detail the testimony of the various inmates and others inasmuch as there will be occasion for mentioning much of this testimony in relation to the evidentiary and other problems which will be hereinafter discussed.

The alleged errors relied on are, first, the introduction of prior statements of the witness William Triplett under the guise of impeachment. Secondly, the calling of the witness John Marshall Caifano, notwithstanding that the government knew that he was not going to give testimony and was going to claim his privilege against self-incrimination. Error is predicated upon his claiming the privilege in response to 18 questions. Third, the alleged error in allowing the witness Herman to testify as to conversations with codefendants of appellant allegedly long after any conspiracy had terminated. Fourth, the failure of the court to issue process for witnesses to testify as to a confession made by an inmate who has since died. Fifth, the alleged failure of the prosecution to disclose at the pretrial omnibus hearing the nature of the testimony of the informers. Sixth, the failure of the court to include lesser included offenses. Seventh, failure to grant a continuance. It is unnecessary to take up points fifth, sixth and seventh in view of our rulings on the other points and our view of the comments of the prosecutors.

I.

THE GOVERNMENT’S ATTEMPT TO IMPEACH THE WITNESS TRIPLETT

One of the main witnesses on behalf of the government was William Triplett who, like the defendant, was an inmate at Leavenworth prison. This witness had been interviewed by the FBI soon after the incident in question and his statements had been reduced to writing and incorporated into the investigative report but were not, of course, signed. On the eve of the trial Triplett signed an affidavit in which he formally repudiated the statements which he had theretofore made. However, some six months before that he had also repudiated his statements. Therefore, the government attorneys were fully aware that he did not intend to testify in accordance with his prior statements. They may have had some hope that he might relent once he took the stand, but as it turned out this was unfounded and Triplett furnished nothing. Nevertheless, the government managed to bring his prior statements to the attention of the jury by asking questions which in toto included a reading of the entire statement. It was not therefore a case in which Triplett was called as a witness and gave positive testimony damaging to.the government and did so contrary to the reasonable expectations of the government. Rather, he had given prior notice to the government attorneys that his statements to the FBI were not true and that he was not going to testify in accordance with them. Nevertheless, the government started out by asking him about his prior statement. At the outset the trial court showed concern about this procedure, noting the necessity for showing surprise and also questioning whether surprise could in fact be shown.

The trial court instructed government counsel to proceed in the usual way, meaning to ask questions seeking to get the desired information before attempting to impeach. The government counsel started to comply with this. The next question to Triplett was as to his knowledge of the homicide; but after this first question he again reverted to his original method of asking Triplett whether he had made a prior statement and then reading the entire statement to him.

At common law a party was not allowed to impeach his own witness. The party who called the witness vouched for him, and if he should refuse to testify as expected the testimony given was binding. See Crago v. State, 28 Wyo. 223, 202 P. 1099 (1922) (Blume, J.). The first breakthrough, according to Justice Blume, occurred about the middle of the Nineteenth Century and this exception allowed an examiner in some instances to propound leading questions for the purpose of refreshing the witness’ recollection. Legislation was enacted in many of the states which provided for examining the witness to refresh his recollection and permitting proof of previous statements made out of court under certain conditions. However, the proof of extrajudicial statements for the purpose of impeachment was extraordinary, and when impeachment was allowed it was only for the purpose of neutralizing the unexpected testimony which he had given on the stand. Never, however, could this be done by attacking the general character of a witness. Therefore, impeachment of one’s own witness has been and is now allowed only for the purpose of alleviating the harshness of subjecting a party to the mercy of a witness who has been unscrupulously tampered with by an adversary. But even this does not furnish an occasion for the wholesale introduction of out of court statements, statements which are hearsay and which could be confused by the jury and considered as substantive evidence. See 3A Wigmore, Evidence §§ 906, 1018 (Chadbourn rev. 1970). The authorities recognize the danger of allowing prior statements to be freely introduced because of the difficulty of distinguishing between impeachment and substantive evidence. Inasmuch as the only purpose of impeachment is to neutralize the damaging testimony given, the impeaching evidence should be carefully restricted to compensating for the injury inflicted. See Wigmore, supra, § 1018, and see the legion of authorities cited in the Note following § 1018, supra. See also United States v. Dobbs, 448 F.2d 1262 (5th Cir. 1971); United States v. Miles, 413 F.2d 34 (3d Cir. 1969). That it is reversible error to refuse to properly instruct the jury even in a case of justified impeachment is held in United States v. Lipscomb, 425 F.2d 226 (6th Cir. 1970). See also Brooks v. United States, 309 F.2d 580 (10th Cir. 1962).

It is clear from the above that positive damage and surprise to the party calling the witness are requisite. It is also clear 'that the testimony here was limited to the witness’ assertion that his prior statement made to the FBI was false. In his words it was “prefabricated.” The assertion that the statement was false, even if it be regarded as having some damaging aspect, could not possibly justify the introduction of the entire statement. The mischief could have been cured and the effect neutralized by much less of a showing.

As to surprise, we do not say that this requirement is lacking simply because there is prior notice that the witness has changed his story. However, the justification for impeachment is substantially lessened when the party calling a witness knows that he intends to repudiate his prior statement and intends to refuse to testify; and, he is still limited by the requirement that the witness shall have damaged his case. See United States v. Dunmore, 446 F.2d 1214 (8th Cir. 1971); United States v. Johnson, 427 F.2d 957 (5th Cir. 1970); Bushaw v. United States, 353 F.2d 477 (9th Cir. 1965), cert. denied, 384 U.S. 921, 86 S.Ct. 1371, 16 L.Ed.2d 441 (1966). And the absolute rule remains that a party is not allowed under the guise of impeachment to bring before the jury an ex parte statement of a witness by calling him to the stand when there is reason to believe that he will refuse to testify and when in fact he does so refuse. The party is bound by his refusal and cannot introduce his prior statement by the expedient of asking him leading questions. Compare Kuhn v. United States, 24 F.2d 910, 913 (9th Cir. 1928).

In the case at bar the government knew from the beginning that Triplett was going to deny the truth of his prior statement, for he persisted in this position from the start. Triplett did give some information as to heroin traffic, but declined to answer any question concerning the alleged contract to commit the homicide. As to this, he said that he lacked knowledge. Thus, his failure to testify favorably to the government is negative presentation and did not constitute damage. See McCormick, Law of Evidence § 38, at 73 (1954).

A careful reading of the entire testimony of Triplett convinces the reader that the impeachment of Triplett was not to undo affirmative damage. Instead, one is impressed that an effort of the government was to bring about damage in order to justify the introduction of prior statements.

The court’s cautionary instruction attempting to distinguish between impeachment and substantive use of statements is of no value because, as has been shown, whether Triplett was lying is not relevant. There is obviously no value in calling a witness and proving that he is a liar. On the other hand, the introduction of prior unsworn statements which have not been subjected to cross-examination in this indirect manner is unquestionably prejudicial.

II.

THE PERSISTENT QUESTIONING OF THE WITNESS JOHN MARSHALL CAIFANO, NOTWITHSTANDING THAT HE REFUSED TO TESTIFY AND CLAIMED HIS PRIVILEGE AGAINST SELF-INCRIMINATION A TOTAL OF 20 TIMES

The witness Caifano had given a brief statement to the FBI prior to trial and the government had contemplated calling him as a witness. However, immediately before trial they learned that he would refuse to testify in accordance with his statement. The prior statement of this witness did not reveal eyewitness knowledge of the homicide. He had advised the FBI agent who questioned him that on the day of the homicide he had heard a low moaning sound from a cell below his own, and had also heard someone say “get a guard with a stretcher”; he heard the moan almost simultaneously with the sounding of the work bell and he saw no one on the tier who did not belong there. He also stated that the trash bag for the third tier was located outside his cell by the stairs and that inmates normally put trash in it on their way to work and that he saw nothing unusual nor any inmate carrying anything or moving exceptionally fast on the morning of September 11, 1968. When, a guard came he followed the guard to Hardaway’s cell and saw that Hardaway had been hit on the head.

Questions were asked by the government as to whether the witness knew about the events surrounding the murder — whether he was implicated, whether he was hired to actually do it, or whether he was requested by appellant to arrange for someone to hit Hardaway on the head, or whether he had actually hit him on the head. The scope and extent of this questioning are illustrated by Appendix I attached to this opinion. Caifano invoked his Fifth Amendment privilege to all these questions and more.

After the eighteenth question was asked, and following the claim of privilege eighteen times, the judge denied the motion of counsel for appellant for a mistrial, but sustained the objection, ruling that continued questioning of the witness with knowledge that he was going to invoke the Fifth Amendment was improper. Even after this ruling the prosecution asked two additional questions, both of which the witness refused to answer and again claimed his privilege. The record reveals that prior to the trial Caifano’s attorney informed both the prosecution and the defense that Caifano would refuse to testify. Also, the prosecution commented in closing argument on the fact that the witness had claimed the privilege. So also did the defense attorney comment on it.

On the motion for new trial appellant argued that it was error for the prosecution to call the witness knowing that he would probably invoke his Fifth Amendment privilege. The trial court found, however, that the government counsel had some basis for believing that Caifano might answer their questions and further found that at no time during the questioning did counsel for appellant object to the questions or request an instruction to the jury.

The judge relied on Namet v. United States, 373 U.S. 179, 83 S.Ct. 1151, 10 L.Ed.2d 278 (1963), which upheld the calling of a witness to give him an opportunity to answer questions even though there was prior knowledge that he intended to refuse to answer claiming the Fifth Amendment. In Namet the Supreme Court said that the prosecutor need not accept at face value every asserted claim of privilege no matter how frivolous because the privilege is personal and the witness alone must decide whether to exercise it; that the privilege is not a prohibition against inquiry and cannot be effectively raised before the question is asked and is applicable only to particular questions. See Marcello v. United States, 196 F.2d 437, 441 (5th Cir. 1952); United States v. Terry, 362 F.2d 914, 917 (6th Cir.), cert. denied, 385 U.S. 1029, 87 S.Ct. 758, 17 L.Ed.2d 676 (1966).

The ruling in Namet goes no further than to allow the government to call a witness so as to give that witness an opportunity to answer particular questions. It does not stand for allowing the prosecution to ask various and sundry questions which are certain to produce a claim of privilege and to give rise to an atmosphere of guilt. This was the problem at bar. The witness here, according to the statement which he furnished the FBI, knew nothing about the actual murder and yet he was questioned about a great variety of subjects creating the impression that he might have been- an actual participant in some degree or perhaps the principal actor. Yet nothing was produced to support these inferences as to the details of the murder. It left the suspicion that he was implicated but silenced. Accordingly, the conduct of the government comes within that part of the Namet opinion which condemns the conscious effort to derive evidentiary value from unfavorable inferences arising from the claiming of the privilege.

In Namet the Court acknowledged that each case must be considered on its merits, and it recognized that unfavorable inferences drawn from the claim of privilege are not competent. The number and variety of questions propounded in the case at bar plainly show that the government was seeking to get eviden-tiary value from the questions and the claims of privilege. This was plainly invalid and prejudicial.

It is true that the defendant’s objection did not come until after the harm was done and at this late stage the court sustained the objection. But merely sustaining the objection could not cure the misconduct. The problem would not have been eliminated even if the court had gone further and had, at the conclusion of the questioning, instructed the jury to disregard the questions and answers, and even if the court had admonished the jury that they were not at liberty to draw any inference from the questioning on the claims of privilege. However, if the court had given such cautionary instruction even at that late stage, it would have made the problem less aggravated. Since neither instruction nor admonition was given, the inference arising from the prosecutorial conduct involved and the plain violation of the rules of evidence remained. It is this condition which dictates our conclusion that the goings-on were prejudicial. Cf. 86 A.L.R.2d 1435, 1443 (1961).

Moreover, neither counsel should have been allowed to comment in closing arguments on the witness’ exercise of the privilege. See Courtney v. United States, 390 F.2d 521 (9th Cir.), cert. denied, 393 U.S. 857, 89 S.Ct. 98, 21 L.Ed.2d 126 (1968) and Rule 513(a) of the proposed Federal Rules of Evidence. Here both sides did it. This added to the unfavorable trial atmosphere.

III.

THE STATEMENTS OF CO-CONSPIRATORS

One of the witnesses for the prosecution, Killian Joe Herman, also an inmate, testified that he was an orderly in the segregation unit of the prison after the commission of the offense and after appellant and the other alleged co-conspirators were transferred there following the attack.

Appellant here challenges the fact testified to by Herman that he was at the time in question an orderly in the segregation unit, but we need not deal with this dispute.

Herman testified that he delivered heroin during this time from the appellant to both Molina and Cordova, and Herman was allowed to testify as to conversations which he had with Molina and Cordova which he repeated to the appellant.

When the government first attempted to elicit this information from Herman, the objection of the defense was sustained. The government then proceeded to show that Herman had communicated the statements of Molina and Cordova to appellant, and following this showing he was allowed to go ahead and testify as to what Cordova had said to him. He said Cordova “told me that Frank had hired him to get at somebody to kill Mr. Hardaway and he first approached him, wanted him to do it. . and then Cordova said that he went ahead and made arrangements with Molina to have him do it.” Herman was also allowed to testify over objection as to a statement made to him by Molina. Herman testified as to this: “He [Molina] said he wasn’t getting enough stuff. That he wanted all his stuff and he was getting messed around.”

Herman further testified to an incriminating statement made to him by the appellant. In this statement appellant was supposed to have said in response to Herman’s question as to how he became involved in all this business that he was being cheated by some of his pushers and that he owed Molina $500 and narcotics for “making a contract to have Hardaway killed.” As to this statement of appellant, we see no problem. It was competent as an admission against appellant.

It is the statements attributed by Herman to Cordova and Molina which must be ruled incompetent. These conversations stand on a completely different footing from the statement of appellant. They are hearsay and could have been ruled admissible only on the theory that they were made by a conspirator during the continuation of the conspiracy. But the object of the conspiracy, the murder of Hardaway, had been at this time, in November 1968, completed since September and this was the central object of the agreement. The Molina and Cordova statements were made after this object had been carried out. Such statements made long after the conspiracy and not a part of the original transactions or otherwise in furtherance of the conspiracy are inadmissible. Grunewald v. United States, 353 U.S. 391, 405, 77 S.Ct. 963, 1 L.Ed. 2d 931 (1957); Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790 (1949). There is no basis for a finding that appellant embraced these statements either expressly or impliedly.

Since the statements were remote in time from the completion of the object of the conspiracy, they cannot be ruled a part of the original conspiracy. And efforts to superimpose a new conspiracy to conceal the offense or to divide the fruits of the crime are fictional and unavailing. The fact that the defendant was continuing to transfer drugs to Molina and Cordova does not evidence any continuing conspiracy related to the murder, for he had been supplying these two with drugs long before the murder was committed. To hold that the statements are competent would require an unauthorized expansion of the Krule-witch and Grünewald doctrines. The fact that the statements may have been repeated to appellant in no way cleanses them or changes their character since appellant is not shown to have adopted them as his admissions or to have been silent when he should have spoken. Accordingly then the two statements retain their hearsay character and it was error for the court to receive them. See 4 Wigmore, Evidence § 1071 (3d ed. 1940).

Defendant argues that both statements violate the doctrine enunciated in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). We disagree. In Bruton the Supreme Court held that the reception in evidence of a codefendant’s confession violated the constitutional rights of the defendant to confrontation and cross-examination. The limitations of the Bruton doctrine are explained in Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970).

In our case we are not concerned with any misuse of a confession. In our case raw hearsay was admitted without the benefit of any exception.

We have taken up this matter in order to avoid any problem on retrial of the case.

IY.

THE STATEMENTS AND ARGUMENTS OF THE PROSECUTORS

It is contended that unjustified, unwarranted statements were made by the prosecutors in opening statements, during the trial and in closing arguments. Specific objections now made are

1) referring to the appellant as the heroin king of the penitentiary and to the statement that he had an extensive business that affected many people; that he had many ways of introducing this illegal contraband into the penitentiary ;

2) the many references to appellant’s involvement with heroin throughout the trial;

3) referring to the defendant as a member of organized crime;

4) commenting on the impeaching questions propounded to Triplett and the reading of his prior answers and the statement that “I think he told the truth the first time when he told us that he wasn’t seared at that time

5) referring to appellant as the king of beasts as follows:

This [the penitentiary] is a jungle, ladies and gentlemen, and in every jungle there are beasts, and there’s always a king of beásts. But how does he become the king, in a fair fight, that’s how he becomes king, in a fair fight. You don’t bludgeon a person over the head when he is asleep without giving him a chance. That’s how you become king. But in this jungle, that’s the way Frank Coppola wanted to become king and to remain king of the heroin traffic, I’m convinced of that.

And the statement in support of the argument for the death penalty:

If Coppola is permitted to survive, he can continue doing what he has been doing and you will be turning him loose back in the prison yard, back at these witnesses who are courageous enough to come back here and to go back and set up his evil crimes again and society is handcuffed and blocked from doing anything about it, from remedying the worse form of cancer, that is the depraved, merciless, coldblooded killer. Unless this man suffers death, no inmate, and particularly not those who have testified, can ever lead normal, secure, safe lives.
The survivors who are still living have a right to survive. Contracts can be let from prison to the outside as well as the inside of the walls.

No objection was made to the expressions of personal opinion and to the remarks, and hence these references probably could not furnish a basis for reversal. See Devine v. United States, 403 F.2d 93, 96 (10th Cir. 1968), cert. denied, 394 U.S. 1003, 89 S.Ct. 1599, 22 L.Ed.2d 780 (1969); Van Nattan v. United States, 357 F.2d 161, 163 (10th Cir. 1966). Since, however, the case is to be retried, it is appropriate to point out the impropriety of arguments which are designed primarily to inflame and prejudice rather than to enlighten. Throughout the transcript it is apparent that the government attorney’s strategy was primarily to put emphasis on defendant’s deep involvement in the heroin traffic. It was proper to show the evidence as to the heroin insofar as it related to the conspiracy to murder and the actual murder. The heroin evidence was, however, emphasized unnecessarily. Also, it is not appropriate for the prosecutor to offer his own opinions as to guilt. This not only violates the canon of ethics, it is invalid, for he is not a witness in the case, he is a representative. Cf. Hall v. United States, 419 F.2d 582, 587-588 (5th Cir. 1969); Devine v. United States, supra, at 96 of 403 F.2d.

In summary then: insofar as the heroin issue showed motive for the murder it was relevant.

This is such an explosive issue that its presence in a case produces a conviction almost automatically regardless of the depth of the evidence. For this reason, undue and unjustified emphasis must be avoided. Inferences which fairly reflect the record are proper argument. Methods designed to arouse prejudice, passion and use of invective are not proper argument.

Y.

THE DENIAL OF APPELLANT’S APPLICATION FOR SUBPOENA OF A WITNESS

We fail to see any error in the refusal of the court to grant an application for a writ of habeas corpus ad testificandum directed to a penitentiary inmate who supposedly would say that one John Lee “Snake” Arnold, another inmate since deceased, had confessed to the killing of Hardaway. The trial court denied the application on the basis of Donnelly v. United States, 228 U.S. 243, 273, 33 S.Ct. 449, 57 L.Ed. 820 (1913).

Without considering the affect that final approval of the Federal Rules of Evidence, particularly Rule 804(b)(4), would have on this question, we conclude that the trial court was correct in denying this request because apart from the question of its competence as evidence, the court could have easily determined that it was grossly incredible.

X X- * -X- * X

Because the errors here are substantial we cannot avoid reversing and remanding this case for a new trial. The individual matters discussed above are substantial and, at the same time, are cumulative. Thus, a new trial is essential even though the valid evidence is legally sufficient to show the defendant’s guilt. We recognize the difficulties incident to the prosecution of an inmate of a penitentiary, but a separate set of standards applicable to this kind of a prosecution cannot be adopted.

Accordingly, the judgment of the district court is reversed and the cause remanded for a new trial.

APPENDIX

TESTIMONY OF JOHN MARSHALL

* -X- -X- -X- X X

Q. Do you also have another name, Mr. Marshall ?

A. Yeah, the name I was born with is Marshall Caifano.

Q. How do you spell that name ?

A. C-a-i-f-a-n-o.

Q. Mr. Caifano, I mean Mr. Marshall, have you been an inmate at the Leavenworth Penitentiary?

A. Yes.

Q. And how long have you been an inmate?

A. About five and a half years.

Q. Were you an inmate on September 11, 1968?

A. Yes, I was an inmate.

Q. Do you remember what cell house you lived in on that day ?

A. Well, listen, I want to—

Q. Well, let—

A. I respectfully decline to answer because my answer may be — may tend to make me — on the grounds that my answer may tend to incriminate me.

Q. All right. Mr. Caifano, I would like to ask you did you on that day, September 11, 1968, live in Cell D-301?

•X- X X , X X X

Q. Mr. Marshall, on September 11, 1968, did you know Willard Hardaway?

X X X X X X

Q. On September 11, 1968, or thereabouts, were you acquainted with Frank Coppola ?

•X* * * * * *x-

Q. On that same date were you a close friend of Mr. Coppola?

X X X X X- X

Q. Mr. Marshall, do you know whether or not Mr. Hardaway, Willard Harda-way, was hit in his cell on September 11, 1968?

X X X X X X

Q. Mr. Marshall, I will hand you what has been marked Government’s Exhibit No. 22, or I will show it to you, and also Government’s Exhibit 23, and I will ask you whether or not you’ve ever seen either of those exhibits ?

X- X X X X X

Q. Mr. Marshall, do you know whether or not Government’s Exhibit 22, being the steel rod which I just showed you, was found in the trash bag on Tier 3 of Cellhouse D outside your cell on September 11, 1968 ?

X- X X X X X

Q. Now, Mr. Marshall, assuming that Mr. Hardaway was hit on the head with Government’s Exhibit 22 on September lli 1968, somewhere around 7:20 or between 7:20 and 7:30 in the morning of September 11, 1968, do you know who hit him on the head ?

X- X- X X- X- X-

Q. At that same time, being approximately 7:20 to 7:30 on September 11, 1968, did you see anyone in Cell D-311, which is the one Willard Hardaway was in, other than Mr. Hardaway ?

* * * * * *

Q. Mr. Marshall, did Frank Coppola hire you or ask you to hit Richard — Willard Hardaway over the head and kill him in his cell ?

■X- ■Jf ‘X1 *X" ’X- *X*

Q. Mr. Marshall, did you, at the request of Mr. Coppola, ask anyone to hit Mr. Hardaway over the head ?

* * * * * *

Q. Mr. Marshall, did you personally hit Willard Hardaway over the head on September 11, 1968, at approximately 7:20 to 7:30 in the morning?

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Q. Do you know Natividad Baca, a person named Natividad Baca?

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Q. Do you know Fred John Molina?

******

Q. Do you know Joe Cordova?

* * * * * *

Q. Now, on September 11, 1968, at approximately 7:20 to 7:30 in the morning, did you see either Natividad Baca, Fred John Molina, or Joe Cordova in Cellhouse D?

* -X- -X- * -X- *

Q. At that same time, being September 11, 1968, at approximately 7:30 in the morning, did you see Fred John Molina leave cell D-311, which is the cell of Willard Hardaway?

* * * * * *

MR. BENSON: Your Honor, may counsel approach the bench ?

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THE COURT: Yes, you may.

* * * ->:• * *

THE COURT: I think under the circumstances it is not improper for the United States Attorney to place the witness on the stand and give him an opportunity to answer the questions, assuming that he might not claim his privilege, but I do think that continued questioning along this line now, knowing that he is claiming the Fifth, would be improper.

Objection sustained and the motion for a mistrial will be denied.

(The following proceedings were had in open court in the presence of the jury:)

By Mr. Roth:

Q. Mr. Marshall, do you recall ever being interviewed by any member of the Federal Bureau of Investigation concerning this matter ?

* # * * * -X-

Q. Well, Mr. Marshall, if I continue asking you questions about this matter, no matter what they are, will you continue giving that same answer ?

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MR. ROTH: You may cross-examine.

MR. HURLEY: No questions, your Honor.

* * * * * *

      . Prior to Coppola’s trial, Molina and Baca were allowed to plead guilty to voluntary manslaughter and each was sentenced to ten years’ imprisonment. All charges against Cordova were dismissed.

      . Coppola pleaded guilty to a heroin charge growing out of the same general transaction.

      . Hardaway had completed a two-year college course within the prison.

      . The following' excerpts from Triplett's ex parte statements to the FBI were introduced. Each of the paragraphs shown was included in a single question.
      “It was common knowledge among the inmates of U.S.P.L. that Frank Richard Coppola’s associates such as Freddie Deering, Warren Smith, and Courtney Taylor, were involved in a narcotics trade in Leavenworth, and that Marie Hardaway brought into the penitentiary two packages the approximate size of a cigarette package containing $5,000.00 worth of heroin at Willard Hardaway’s U.S.P.L. inmate graduation.”
      * * * * *
      “Willard Hardaway apparently tampered with the packages which he gave to Coppola. The package Hardaway gave to Coppola did not contain the right amount of heroin, and Coppola told Freddie Deering and Warren Smith that it was short. Triplett overheard this conversation.”
      * sis # * *
      “At approximately 6 p. m. three or four days after Hardaway’s college graduation at U.S.P.L. which took place during late August or early September, 1968, Triplett met Coppola in front of Coppola’s cell. Triplett was going to borrow some money from Coppola, and Coppola said that he had some money and papers, that is, packages of heroin. Coppola wanted Triplett to stash, hold these items for him.”
      * * * * *
      “Coppola gave to Triplett a $20.00 bill and a $10.00 bill in the presence of Freddie Deering who came out onto the range after making coffee in his cell. Triplett took the money and papers Coppola had given him and put them in his pocket. He then left Coppola’s cell. When he reached the end of the range, Coppola called to him. Deering had left by this time and Coppola came down to Triplett at the far end of the range, that is the opposite side from where the stairs are located. Coppola asked Triplett if he had a good place to stash the money and heroin, and Triplett told him that he did. Triplett was told by Coppola that he could keep the whole thing, that is, the money and heroin, and that all he had to do was to knock the son of a bitch’s brains out. Triplett said that lie did not understand what Coppola was talking about. Coppola asked him if he knew Hardaway, the loan shark. Triplett said he did, and Coppola said all he had to do to keep the money and heroin was to knock Hardaway’s brains out. Triplett said he wouldn’t do this, but he would stash the money and heroin.”
      * # s¡; * s¡:
      “About two hours later Coppola came to Triplett’s cell and told him to forget about what lie had said about Hard-away, and that the matter was settled. He was told to just forget about it.”
      ❖ sfs 5¡s * sfs
      “No more than 48 hours later Hard-away was bludgeoned in his cell and subsequently died.”

      . The trial judge’s concern was expressed in this statement:
      “What is this about now? This man is a government witness, and you are impeaching him before you ask any questions.”

      . McCormick, Law of Evidence § 38 (1954).

      . The text of his statement reads :
      JOHN MARSHALL, also known as MARSHALL CAIFANO, inmate, United States Penitentiary, Number A83259-L, cell #D301 orderly of the cell house, was advised of the identity of the interviewing agent and of Captain W. W. TUCKER, U. S. Penitentiary.
      MARSHALL stated that on August 11, 1968, he left his cell at approximately 6 :00 AM and went to breakfast. He returned to his cell after breakfast and took the trash out to the flag which he defined as the floor of the cell house. He returned to his cell prior to the work bell and stayed in his cell where he read the newspaper. He heard a low moaning sound which he thought was coming from below his cell on another tier and went to the door of his cell where he heard someone from the left say, “Get a guard with the stretcher”. He stated that he heard the moan almost simultaneously with the work bell as the inmates were walking on the way to work. He stated that everyone he saw on the tier belonged there.
      MARSHALL stated that the trash bag for the third tier is located outside his cell by the stairs and that inmates normally put things in it on their way to work. He stated he saw nothing unusual nor any inmate carrying anything or moving exceptionally fast on the morning of September 11, 1968. A guard came up and MARSHALL followed the guard to HARDAWAY’s cell and saw- that HARDAWAY had been hit in the head.

      . See Sanders v. United States, 373 F.2d 735 (9th Cir. 1967); Fletcher v. United States, 118 U.S.App.D.C. 137, 332 F.2d 724 (1964).

      . See United States v. Terry, supra, at 917 of. 362 F.2d and cases cited therein. See also United States v. Maloney, 262 F.2d 535 (2d Cir. 1958).

      . Defense counsel said :
      You recall Mr. Marshall, and Mr. Douthitt testified that he was the gentleman that looked so suspicious to him and that he was standing by that receptacle where the alleged murder weapon was found. And then did you see Mr. Marshall come in here to testify, and what did he say? “I refuse to answer on the grounds it might tend to incriminate me.” “Me”, not Prank Coppola. And then consider the fair way in which the Government examined him after it being evident to everybody in the courtroom that every question he was asked except his name and address, he would take the Fifth Amendment to. Then and only then did they start asking him questions like, “Did Prank Coppola do it?” I’m sure if he had been asked if J. Edgar Hoover committed the crime, he would still have taken the Fifth Amendment. (Tr. 73A-6).
      The prosecution said:
      So they make a big issue out of Mr. Marshall. I don’t know why Mr. Marshall took the Pifth Amendment, but if he was withholding evidence that was helpful to us, he was — would have been admitting to a crime of a felony, that’s why he is taking the Fifth Amendment. He possibly had given statements earlier that we hoped to show, but he wouldn’t testify. Why wouldn’t he testify? I’ll only speculate with you, he was scared to death, just like the rest of them. (Tr. 756).

       This response was repeated by Marshall to all subsequent questions, and so only the subsequent questions are included.


source: Caselaw Access Project

author: HAYS, Circuit Judge.

license: Public Domain

text:
    Daniel BURR et al., Plaintiffs-Appellees, v. The NEW ROCHELLE MUNICIPAL HOUSING AUTHORITY et al., Defendants-Appellants.
    No. 688, Docket 72-2425.
    United States Court of Appeals, Second Circuit.
    Argued April 9, 1973.
    Decided May 25, 1973.

      Michael J. Dale, The Legal Aid Society of Westchester County, New Rochelle, N. Y. (Martin A. Schwartz, White Plains, on the brief), for plaintiffs-ap-pellees.
    Richard L. Baltimore, New York City, for defendants-appellants.
    Jeanne Hollingsworth, New York City Housing Authority, New York City, for amicus curiae.
    Maria L. Marcus, New York State Commissioner of Housing, New York City, amicus curiae.
    Before SMITH, HAYS and TIMBERS, Circuit Judges.
   HAYS, Circuit Judge.

This is an appeal from an order of the United States District Court for the Southern District of New York granting plaintiffs’ motion for summary judgment. The district court found that plaintiffs had a right under the due process clause of the Fourteenth Amendment to notice and a full adversary hearing before being required by the New Rochelle Municipal Housing Authority to pay higher rents or an across-the-board service charge. The court ordered the Authority not only to serve on the tenants a written notice of a public hearing but also to provide an opportunity to exchange evidence prior to the hearing. The court also held that due process required the oral presentation of evidence by the Authority, representation of the tenants by selected representatives, assisted by counsel, an opportunity to introduce rebuttal evidence, a stenographic verbatim transcript of the hearing, and a written determination by the Authority Board of Review based upon the evidence presented at the hearing.

Although we hold that due process requires certain procedural safeguards before an across-the-board rent increase can be imposed by a municipal housing authority, we do not agree that a formal adversary hearing with attendant procedures is necessary. We therefore modify the judgment of the district court and affirm it as modified.

Plaintiffs are tenants in apartments controlled and operated by the defendant New Rochelle Municipal Housing Authority, a public corporation organized under New York State law, to provide low rent housing for persons of low income. On June 24, 1971, the Chairman of the Housing Authority sent to all tenants residing in the Authority’s housing, notice of the imposition of a service charge of $2.00 per room per month for each apartment, effective August 1, 1971. The Authority states that the service charge was made necessary because of the increasing deficits the Authority faced, due primarily to increased utility costs.

The Authority has three sources of income:

(a) Subsidy from the State of New York;
(b) Subsidy from the City of New Rochelle;
(c) Rental income from the tenants.

According to the Authority it proved impossible to get any additional subsidy from either the city or the state to meet the deficits; therefore the choice confronting the Authority was either to raise the rents, through a service charge in this instance, or decrease the services provided the tenants. The Authority chose the former course and the service charge became effective August 1, 1971. Five hundred and twenty tenants were affected by this action; four hundred and forty-five are paying the service charge. Several tenants including some of those paying the service charge and some who refused to pay, instituted this action under 42 U.S.C. § 1983 seeking a declaration that the across-the-board rent increase was invalid and enjoining the adoption of any such increase unless the tenants were accorded a hearing. As we have noted, the district court granted summary judgment for the plaintiffs.

I.

To begin with, we must reject appellants’ contention that the New Rochelle Municipal Housing Authority is not a government agency, and that the 14th Amendment does not apply because there is no State action. This court has held that the actions of the Authority are State actions within the meaning of § 1983. King v. New Rochelle Housing Authority, 442 F.2d 646 (2d Cir.), cert. denied, 404 U.S. 863, 92 S.Ct. 113, 30 L.Ed.2d 107 (1971). The district court was clearly correct in finding that

“The facts and prior case law mandate the conclusion that [the Housing Authority’s] official actions are actions taken under color of State law.”

II.

Since the action of the Authority in imposing the service charge was State action, and the “interest at stake” (see Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)) was of such a nature as to be within the protection of the Fourteenth Amendment, the remaining question is the extent of the procedural safeguards required by the concept of due process. See Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). See generally, Note, Procedural Due Process in Government-Subsidized Housing, 86 Harv.L.Rev. 880 (1973).

A. The nature of the interest

The interest at stake here is clearly substantial. As this court said in Escalera v. New York City Housing Authority, 425 F.2d 853, 864 (2d Cir.), cert. denied, 400 U.S. 853, 91 S.Ct. 54, 27 L.Ed.2d 91 (1970):

“. . . the small size of the ‘additional rent’ charges [cannot] be relied on to deny tenants automatically fair procedures. To be sure, the size of the charges is relevant to the question of the burdensomeness of the required procedures, but even small charges can have great impact on the budgets of public housing tenants, who are by hypothesis below a certain economic level.”

As a result of the service charge the plaintiffs in this action are required to pay roughly 10% more per month for their apartments.

Daniel Burr — raised to $113.00 from $102.00
Ethel Gary — raised to $99.00 from $90.00
Willie Riley — raised to $112.00 from $101.00
J. Smith — raised to $112.00 from $101.00

B. The burden of administration

The administrative burden occasioned by the requirement of full adversary hearings would be a very heavy one. Some five hundred tenants are directly involved in the imposition of the service charge by the New Rochelle Municipal Housing Authority and tenant representation at an adversary hearing would be difficult but perhaps not impossible. The district court ordered that a single hearing be held at which the 520 tenant families were to be represented by 4 persons, with the other tenants having the right only to attend and observe. The attorney for the tenants was to be one of the four representatives. The court then broke down the 520 tenants into three groups, each with one representative, as follows:

“The approximately one hundred seventy-five (175) tenants who receive public assistance shall be entitled to one (1) representative. The approximately one hundred thirty-nine (139) tenants whose individual incomes exceed seven thousand ($7,-000) dollars shall be entitled one (1) representative. The balance of two hundred six (206) tenants shall be entitled to one (1) representative.”

We must consider the effect of our decision in other areas. The New York City Housing Authority, for example, operates 188 housing projects, housing approximately 600,000 persons in 15&,-610 apartments. A full adversary hearing in such a situation with all attendant procedures would present the most serious difficulties. The virtual impossibility of setting up an equitable scheme for the representation of 155,000 tenant families in New York is apparent. Even if a scheme could be devised to assure adequate representation for the diverse interests of tenants situated in differing complexes and having different problems, the large number of representatives required would make a single hearing unmanageable. The selection of representatives for 600,000 people would alone require an operation of approximately the same magnitude as the election of the legislature in about a dozen of the states of the United States.

C. Type of procedure necessary to protect the tenants’ interests

We disagree with the finding of the district court that a full adversary hearing is so necessary to the protection of the interests of the tenants as to justify the grave administrative burdens which such a hearing would impose.

The questions involved in a rent increase do not turn on the resolution of specific factual issues on which the tenants as a group would have any special knowledge. The decision to raise rents requires rather the evaluation of complex financial data. The rise in utility costs which occasioned the service charge in the present case must be evaluated within the context of the Authority’s overall financial condition, the intricacies of project management, the possibilities of savings in some types of operations, and a hundred other intricate details.

In McKinney v. Walter E. Washington, 143 U.S.App.D.C. 4, 442 F.2d 726, 727 (1970) the court said:

“The financing of a low-rent housing program, which sometimes necessitates the raising of rents, is a very complicated operation requiring a high degree of expertise. It is quite unlikely that courts, to say nothing of tenants, would possess the necessary expertise. In many cases-it is only too probable that participation by tenants in rental decisions and review by the courts would cause senseless and damaging delays.”

In a situation in which the individual rights of the tenant are directly affected, see Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) (termination of welfare benefits) a trial type of hearing is required and the opportunity to present oral evidence serves a real function. However, in a situation such as the instant case, we agree with the district court in Geneva Towers Tenants Organization et al. v. Federated Mortgage Investors et al. (N.D.Calif. January 8, 1972), that:

“[T]he opportunity to present oral evidence is not particularly valuable where technical financial data is at issue. The ‘credibility’ of conflicting data is not best resolved by evaluating the demeanor of witnesses; it is best resolved by independent agency investigation . . .”

While this court in Langevin v. Chenango Court, Inc., 447 F.2d 296 (2d Cir. 1971), said, in passing, that a hearing would be required in a situation in which the landlord is a governmental body, Judge Friendly noted that “Whether the ‘hearing’ need always be the traditional ‘trial-type’ is another matter.” We agree with the statement of appellee that

“. . . the import of Langevin is that decent, safe and adequate low-rent public housing at rents low income tenants can afford is an interest of the nature which merits due process protection. The question then becomes the type of procedures required by the due -process clause in the light of the severity of the private interest, the procedures necessary to protect that interest and the administrative burden.”

III.

Balancing the interests of the Authority in a summary procedure against the interests of the tenants and the type of procedure necessary to protect these interests, we hold that due process does not require an adversary hearing before a general rent increase or service charge can be imposed. See Hahn v. Gottlieb, 430 F.2d 1243 (1st Cir. 1970). We feel that the interests of the tenants, while eoneededly important, can be protected through a less formal procedure.

Notice of a proposed increase in rent shall be served well in advance of the date for the increase. Opportunity for filing written objections shall be given. There need be no opportunity for oral presentation. The tenants or their representatives shall have the right to submit any material they consider relevant to disprove the need for the rent increase. Finally, the Review Board upon reaching a decision shall issue a statement outlining the reasons for either approving or rejecting the requested rent increase. The tenants may of course be represented by counsel.

Modified and, as modified, affirmed.

“While the court concludes that due process does not require a formal hearing with its concomitant panoply of procedures, problems, and costs, there are other procedures available to safeguard tenants’ rights . . . The court therefore concludes that due process requires that tenants be given notice of their lessor’s application for approval of rent increases; that tenants have a reasonable opportunity to make written objections thereto; and that tenants be furnished with a concise statement of FI-IA’s reasons for approving an increase.”

      . The notice rend as follows :
      June 24, 1971
      TO THE TENANTS OE HARTLEY HOUSES, MAO LEAY APARTMENTS and BRACEY APARTMENTS :
      It is with great regret that we must inform you that in order to meet current expenses and to prevent a deterioration in the services rendered to you, it is mandated that we make a service charge of $2.00 per room per month for each apartment.
      This service charge is uniform. We have exhausted every other possible remedy before taking this action and have, in fact, been criticized for our delay in placing this service charge despite the fact that other authorities have imposed it for a period of time prior to this.
      The increase will be reflected in your rent statement for the month beginning August, 1971.
      Sincerely yours,
      NEW ROCHELLE MUNICIPAL HOUSING AUTHORITY

      . State subsidies for public housing are regulated and limited by law (Public Housing Law, § 73 [McKinney’s Consol. Laws, c. 44-A, 1972-1973 Supp.]). The total amount of money available for this purpose is fixed by the procedures set forth in Article XVIII, § 3 of the New York Constitution and cannot be increased unless the electorate approves an increase in subsidies.

      . “Adjudicatory hearings serve an important function when the agency bases its decision on the peculiar situation of individual parties who know more about this than anyone else. But when, as here, a new policy is based upon the general characteristics of an industry, rational decision is not furthered by requiring the agency to lose itself in an excursion into detail that too often obscures fundamental issues rather than clarifies them.”
      WBEN, Inc. v. United States, 396 F.2d 601, 618 (2d Cir.), cert. denied sub nom. Kings Garden Inc. v. FCC, 393 U.S. 914, 89 S.Ct. 238, 21 L.Ed.2d 200 (1968).

      . In Geneva Towers Tenants Organization et al. v. Federated Mortgage Investors, et al. (N.D.Calif. January 8, 1972) a district court set up much the same procedure in a similar situation.


author: MANSFIELD, Circuit Judge: FEINBERG, Circuit Judge

text:
    UNITED STATES of America, Appellee, v. Wesley Clyde BROWN, Appellant.
    No. 739, Docket 73-1068.
    United States Court of Appeals, Second Circuit.
    Argued March 23, 1973.
    Decided May 23, 1973.
    Feinberg, Circuit Judge, dissented and filed opinion.

      Michael B. Standard, New York City (Herbert Jordan, Rabinowitz, Boudin & Standard, New York City, N. Y., of counsel), for appellant.
    David A. De Petris, Asst. U. S. Atty. (Robert A. Morse, U. S. Atty., E. D. N. Y., L. Kevin Sheridan, Asst. U. S. Atty., Brooklyn, N. Y., of counsel), for appel-lee.
    Before SMITH, FEINBERG and MANSFIELD, Circuit Judges.
   MANSFIELD, Circuit Judge:

By decision filed on December 6, 1972, United States v. Brown, D. C. Cir., 470 F.2d 285, we vacated a judgment of the United States District Court for the Eastern District of New York, Walter Bruchhausen, Judge, sentencing Wesley Clyde Brown to a term of two and one-half years imprisonment upon his plea of guilty to a one-count indictment charging him with refusal to report for induction in violation of 50 U.S.C.App. § 462(a). The case was remanded for re-sentencing by another judge. We held that the refusal of the sentencing judge to make the presentence report available to Brown, pursuant to a uniform policy the judge had followed, constituted a failure to exercise his discretion under Rule 32(c)(2), F.R.Cr.P., which we found requires the discretion to be “exercised on a case-by-case basis, not by a blanket policy of non-disclosure.” 470 F.2d at 288.

Upon remand the case was assigned by lot to Judge Travia, who made the presentence report available to Brown and his counsel before sentencing and, after holding a sentencing hearing, re-sentenced Brown to the same term that had previously been imposed. From this second sentence Brown, who has been incarcerated since January 27, 1972, appeals. He contends that Judge Travia, upon the resentencing, committed various errors which necessitate still another resentencing. We cannot agree and must affirm the judgment of the district court.

Since the background of the case up to the point of our remand is set forth in our earlier opinion, we need not repeat it here. Upon this appeal Brown urges that Judge Travia erred in (1) failing' to give any legally justifiable reasons for reimposing the same sentence, (2) failing to identify the facts in the presentence report relied on by him, (3) basing the sentence on Brown’s political beliefs and on erroneous information in the presentence report, (4) failing to “redo” the entire sentencing process, and (5) abusing his sentencing discretion in reimposing the two and one-half year sentence.

To the extent that Brown asks us to review on the ground that the sentence was excessive, we must decline the invitation. We are still bound by the basic principle against appellate review of sentences except in extraordinary circumstances. United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972); Gore v. United States, 357 U.S. 386, 393, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958); Blockburger v. United States, 284 U.S. 299, 305, 52 S. Ct. 180, 76 L.Ed. 306 (1932). Although cracks in the wall are beginning to develop, see Woosley v. United States, 478 F.2d 139 (8th Cir. 1973) (en banc) (5-year sentence imposed pursuant to a rigid policy upon a Jehovah’s Witness for refusing induction vacated on ground that district court had “manifestly or grossly abused its discretion” and “[t]he severity of the sentence shocks the judicial conscience”), the present case is not an appropriate one for departure from the policy against appellate review. Here the sentence was one-half of the permissible five-year statutory limit. In characterizing the two and one-half year sentence imposed on Brown as “harsh” in our earlier opinion —a view from which we do not retreat —we were referring to that fact as an additional reason for requiring the sentencing judge to exercise his discretion on an individual basis in this case. That discretion has now been exercised in favor of full disclosure of the presentence report with respect to Brown, and Judge Travia, in imposing sentence, has acted within the discretionary limits afforded to the district_jmurt, which are broad. United States v. Tucker, 404 U. S. 443, 447, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972); United States v. Sweig, 454 F.2d 181, 183-184 (2d Cir. 1972); McGee v. United States, 462 F.2d 243, 245 (2d Cir. 1972), Absent the sentencing judge’s reliance on constitutionally impermissible factors or upon material inaccuracies, it is not our function to review a sentence falling within statutory limits. United States v. Mitchell, 392 F.2d 214 (2d Cir. 1968); Blockburger v. United States, 284 U.S. 299, 305, 52 S. Ct. 180, 76 L.Ed. 306 (1932); United States v. Holder, 412 F.2d 212, 214 (2d Cir. 1969).

Brown’s contention that the district court erred by failing to state the reasons for reimposing the same sentence and by failing to designate the portions of the presentence report relied upon by it must also be rejected. Were we writing on a clean slate, we might well be persuaded in favor of a requirement that the sentencing judge state his reasons. Such a rule would be “a powerful safeguard against rash and arbitrary decisions” at this crucial stage of the criminal process where the defendant’s liberty is at stake. M. Frankel, Criminal Sentences — Law Without Order 41 (Hill and Wang 1972). It would serve “to promote thought by the decider, to compel him to cover the relevant points, to help him eschew irrelevancies —and, finally, to make him show that these necessities have been served.” Id. at 40. It would also promote fairness by minimizing the risk that the sentencing judge might rely on misinformation or on inaccuracies in the presentence report. See United States v. Needles, 472 F.2d 652 (2d Cir. 1973). If a misapprehension on the court’s part were disclosed, the defendant and his counsel would then have the opportunity to answer and explain, pointing out the error. 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. Furthermore, a statement of reasons by the court could prove to be of considerable assistance to prison and parole au-thoritites in later determining the type of institution in which the defendant should be incarcerated and the time and conditions of parole.

In the present ease it would have been of considerable assistance to have had the rationale of the conscientious sentencing judge, since the information found in the presentence report and accompanying documents, all of which we have examined, is for the most part favorable to Brown. He has no known criminal record, has frankly admitted his offense, and has based his refusal to report for induction on moral grounds. The report describes him as a person who has had a better than average background and education. He has enjoyed the support of his parents and siblings, an average scholastic rating, and a good behavior record in school. He is not addicted to narcotics and, prior to his incarceration, he was reasonably self-supporting. An impressive array of letters have been sent to the court by persons offering Brown employment, and by clergymen, teachers and other members of the community, which emphasize his sincerity and talents. With respect to Brown’s attitude and refusal to serve in the war effort the presentence report states that he has “deep personal convictions” and that while he is not a member of the Black Panther Party his refusal to serve is based on “beliefs as set forth in the Black Panther Party tenets from which he quotes extensively.” In the face of this profile the reasoning behind the court’s two and one-half year prison sentence is difficult to grasp.

Although a sentencing judge should in our view be encouraged to state his reasons and such a statement would have been welcomed here, we have repeatedly held that in view of the trial judge’s very broad discretion, see decisions cited page 1172, swpra, “he is generally under no obligation to give reasons for his sentencing decisions,” McGee v. United States, 462 F.2d 243, 247 (2d Cir. 1972). Clarification has been required only under circumstances not found here, e. g., where a sentence was imposed upon the basis of (1) misinformation of constitutional magnitude; such as an inaccurate criminal record, Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948), (2) a record comprising prior unconstitutional convictions, e. g., United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), (3) the effect of a simultaneous sentence and conviction upon a more serious count of the indictment, which was later invalidated, McGee v. United States, 462 F.2d 243 (2d Cir. 1972), or (4) failure of the court to receive and consider mitigating circumstances, United States v. Malcolm, 432 F.2d 809, 818 (2d Cir. 1970).

With one possible exception, discussed below, we here fail to find evidence of any materially false assumptions on the part of the sentencing judge or reliance by him on material inaccuracies or on constitutionally impermissible factors. After Brown and his counsel had been afforded the opportunity to read, review and discuss the presentence report, Judge Travia convened court, made a record of Brown’s motion papers and of the numerous letters with respect to Brown that had been received and read by the court and by the Probation Office. Brown’s counsel then directed the court’s attention to several inaccuracies in the presentence report, which were reviewed in detail by Judge Travia, who indicated either, that they were immaterial or that he would not give them weight. For instance, the judge stated that as far as he was concerned Brown was not considered to be a member of the Black Panther Party. None of the alleged errors in the report, which we have reviewed, are of sufficient importance to be of constitutional significance. Accordingly we must reject Brown’s contentions that his sentence be vacated because of the sentencing judge’s failure to state his reasons or because of inaccuracies in the presen-tence report.

There remains the question whether Judge Travia, although he did not state his reasons, relied upon a constitutionally impermissible factor, i. e., Brown’s expressed sympathy with the political and social views of the Black Panther Party. In a letter to his Local Board dated March 5, 1969, quoted in the presentence report, Brown stated:

“Point six of the Black Panther Party platform and program states: 'We want all Black men exempt from military service. We believe that Black people should not be forced to fight in the military service to defend a racist government that does not protect us. We will not fight and kill other people of color in the world who, like black people are being victimized by the white racist government of America. We will protect ourselves from the force and violence of the racist police and the racist military, by whatever means necessary.’
“This is the position I adhere to. Therefore, since the government grants no rights, I owe it no duties. And if you can't relate to that, you can [obscenity].”

After reading in open court the foregoing portion of Brown’s letter, the court made the following statement:

“The Court: He should also take the responsibility for saying those words. That brings us to the quote of Voltaire. And I don’t have to quote from there.”

Thereupon Judge Travia, after complimenting appellant’s counsel upon his efforts in the .matter and stating that he had thoroughly reviewed all sentencing data and given the matter a great deal of thought, advised “I cannot change the judgment of the Court as previously set forth” and reimposed the two and one-half year .sentence, subject to the condition that Brown might, pursuant to 18 U.S.C. § 4208(a)(2), become eligible for parole at such time as the Board of Parole might determine.

Seizing upon the above-quoted remarks of the district court, Brown contends that the district judge improperly based the sentence upon his distaste for Brown’s political and moral beliefs. We disagree. Although Judge Travia’s statement that Brown must “take responsibility for saying those words” is not entirely free from doubt, we are satisfied from the sentencing minutes, considered as a whole, that he did not base the sentence on his revulsion arising out of Brown’s social or political views, which would be improper. United States v. Mitchell, 392 F.2d 214, 217 (2d Cir. 1968) (concurring opinion of Judge Kaufman); cf. Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969). Read in context, the court’s remarks were apparently directed toward Brown’s statement that he would protect himself from what he considered force and violence by the police or military “by whatever means necessary.” Although Brown’s counsel stated that these words did not amount to a “call to violence on his part,” the remark, when considered with Brown’s statement to the Probation Officer that “his obedience to the laws of the land is limited, if these laws conflict with certain of his personal beliefs,” could properly have raised a serious question in the sentencing judge’s mind as to whether Brown posed a threat of violent or anti-social conduct to the community.

The record reveals that Judge Travia, before imposing sentence, carefully and conscientiously considered all relevant information that was available to him, including the recommendation of the two members (in addition to Judge Bruch-hausen) of the earlier sentencing panel, who had recommended sentences of two years and four years, respectively, and of the Probation Office, which had recommended three years. Since Judge Travia was imposing the same sentence as that previously imposed by Judge Bruchhausen, a statement of reasons would have removed any lingering doubt that he had acted arbitrarily or according to a rigid, discretionless formula. However, under the circumstances we cannot say that the sentence was not reasonably related to a legitimate sentencing purpose. Assuming that Judge Travia’s duty was “to redo the entire sentencing process,” McGee v. United States, supra, 462 F.2d 243, 247 n. 8, that obligation was met.

The judgment is affirmed.

FEINBERG, Circuit Judge

(dissenting) :

In March 1969, Wesley Clyde Brown, a young black man, delivered himself of some bitter comments on American society. To this judge, sitting in his quiet chambers, Brown’s words may seem extreme and unwarranted; to some, they may be most offensive. But to none, I submit, should Brown’s strictures justify a two and one-half year jail sentence. Because that is apparently what occurred here, I dissent.

It is essential to put the sentence in this case into perspective. Brown, a teacher and writer, was not yet 24 years old when he wrote the 1969 letter to his draft board, expressing sympathy with point six of the Black Panther Party platform, quoted in the majority opinion. When Brown reappeared in the district court in December 1972 after our remand, he had no criminal record other than his conviction in this case. Up to that time, apparently, he had never engaged in an act of violence, nor had he even been in any serious trouble. Brown came from a good home and had a fine behavior record in school. He frankly admitted his offense, and no one questions that his refusal to report for induction was based on moral grounds. As the majority opinion points out, “the information ... in the presen-tence report and accompanying documents ... is for the most part favorable to Brown.” The judge on resen-tencing also had before him “[a]n impressive array of letters which emphasize [Brown’s] sincerity and talents.” There was not the faintest suggestion from anyone or in any document or report — other than the letter already referred to — that Brown posed a threat of violence to anyone. The majority picks up a statement by Brown to the Probation Officer, whose report of it is quoted in the margin. As the pre-sentence report indicates, the context of this remark is that Brown would not serve in the armed forces if '“his conscience would not permit him to .” This, of course, is why he was being sentenced in the first place, after pleading guilty to failure to report for induction. Any graver implication is unwarranted. Moreover, Brown’s conduct, his actual mode of life from March 1969 to January 27, 1972, when he was incarcerated, gave no basis for a belief that he was a threat to society. It is painfully obvious — at least to me— that the judge referred to Brown’s political and social views, as expressed in the letter, when he said that Brown must “take responsibility for saying those words.” The majority agrees that a sentence based on “revulsion arising out of Brown’s social or political views . would be improper.” But apparently that is what happened, and the sentence therefore should not stand.

If there is any doubt about the matter, the judge should at least be required to state his reasons for imposing the same two and one-half year sentence that Brown received before. Such a statement, as the majority points out, would “have removed any lingering doubt” that the judge had acted improperly. Moreover, our own prior decision in McGee v. United States, 462 F.2d 243, 247 (1972), furnishes ample precedent for requiring clarification in this case See also United States v. Tucker, 404 U. S. 443, 447-449, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972); Townsend v. Burke, 334 U. S. 736, 741, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948); United States v. Malcolm, 432 F.2d 809, 819 (2d Cir. 1970). The majority cites these cases but confines them to their own facts; such a narrow construction is unjustified. McGee stands for the proposition — which the other decisions implicitly support — that under some circumstances a sentencing judge may be required to give reasons for his sentence, although this is not ordinarily done. This case is clearly an appropriate instance, since the record certainly suggests that a sentence that we all agree was harsh was imposed for a constitutionally impermissible reason. In a case “not entirely free from doubt,” as the majority puts it, this court should not strain to avoid a strong inference of invalidity; if there was a proper reason for the sentence, the judge should state it.

Accordingly, I would remand for re-sentencing. Alternatively, at the very least, we should require the judge to give “a summary explanation of his reasons” for the sentence. See McGee v. United States, supra, 462 F.2d at 247.

      . The reference to the “quote of Voltaire” is puzzling. Assuming that the judge was alluding to the famous remark “I disapprove of what you say but will defend to the death your right to say it,” S. G. Tallentyre: The Friends of Voltaire, the reference appears inconsistent with the idea that Brown must “take responsibility” for his words by risking jail. Possibly the court was referring to another quote from Voltaire: “Men use thought only as authority for their injustice, and employ speech only to conceal their thoughts,” Dialogue 14, Le Chapón et la Poulard (1763).

      . See generally, Zavatt, Sentencing Procedure in the United States District Court for the Eastern District of New York, 41 F.R.D. 469 (1966), 54 F.R.D. 327 (1968).

      . The pre-sentence report states, under the heading “Defendant’s Statement” : “[H]is obedience to the laws of the land is limited, if these laws conflict with certain of his personal beliefs.”