author: Per Curiam. Mr. Justice Black,

text:
    CHICAGO & EASTERN ILLINOIS RAILROAD CO. et al. v. UNITED STATES et al.
    No. 275.
    Decided December 2, 1963.

      Richard M. Freeman and F. F. Vesper for appellants.

      Solicitor General Cox, Assistant Attorney General Or-rick, Lionel Kestenbaum, Elliott H. Moyer, Robert W. Ginnane and Stanton P. Sender for the United States and the Interstate Commerce Commission.

      Richard J. Murphy, John W. Hanifin and Robert H. Bierma for rail carrier appellees.
   Per Curiam.

The motion to add the Baltimore and Ohio Railroad Company et al., as parties appellee, is granted. The motions to affirm are granted and the judgment is affirmed.

Mr. Justice Black,

with whom Mr. Justice Douglas concurs,

dissenting.

In the Transportation Act of 1940 Congress amended the Interstate Commerce Act to authorize the Interstate Commerce Commission to regulate rates of interstate water carriers as well as of railroads and motor carriers. 54 Stat. 929, 49 U. S. C. § 901 et seq. At the time the Act was passed there was active opposition in Congress from those who feared that the Commission in exercising the power granted it would be too “railroad-minded.” 84 Cong. Rec. 5965; see also id., at 5880-5883. For this reason, as was pointed out in Interstate Commerce Comm’n v. Mechling, 330 U. S. 567, 574-577, and Interstate Commerce Comm’n v. Inland Waterways Corp., 319 U. S. 671, 692 (dissenting opinion), the draftsmen of the legislation specifically wrote into the Act the “National Transportation Policy,” 54 Stat. 899, 49 U. S. C. preceding § 1, making explicit the command of Congress that there should be a “fair and impartial regulation of all modes of transportation subject to the provisions of this Act, so administered as to recognize and preserve the inherent advantages of each.” In the Mechling case, decided in 1947, and several times in recent years this Court and District Courts have had to protect inland barge lines from Commission action which would have frustrated the intent of Congress to secure for them the benefit of the inherent advantages of their low-cost mode of carriage. See generally Arrow Transportation Co. v. Southern R. Co., 372 U. S. 658, 673 (dissenting opinion). Sometimes the Commission has used procedural delaying devices to deny barge lines their inherent advantage over railroads, see Arrow Transportation Co. v. United States, 176 F. Supp. 411 (D. C. N. D. Ala.), aff’d sub nom. State Corporation Comm’n v. Arrow Transportation Co., 361 U. S. 353; again, the Commission has taken away the inherent advantage of barge lines through “the device of a joint rate allowed carriers by rail but denied carriers by water,” see Dixie Carriers, Inc., v. United States, 351 U. S. 56, 59. Sometimes, as in the present case, the Commission has resorted to use of inadequate or obscure findings of fact. See, e. g., Interstate Commerce Comm’n v. Mechling, 330 U. S. 567; see also Mechling Barge Lines, Inc., v. United States, 368 U. S. 324, 331 (dissenting opinion). And barge lines have been denied the benefit of their inherent advantage when railroad rates challenged and later found to be unlawful have been permitted to take effect because of the long delay of the Commission in passing upon their unlawfulness.

Therefore it may be significant that the Commission in the present case, at the instance of the large Eastern railroads and without finding basic facts to support its conclusion, disallowed as noncompensatory a proposed joint rate of a small railroad and a barge line which would give shippers of coal from West Virginia and eastern Kentucky to Chicago the advantage of a rate appreciably less than that charged by the Eastern railroads for the same haul. 315 I. C. C. 129. In doing this the Commission denies the small railroad the right to ship coal for a division of $2.04 per ton in a barge-rail rate and leaves it with no alternative, if it wants this business, but to accept a division of $1.66 per ton for a substantially identical haul in combination with one of the large Eastern railroads. The obscure report of the Commission leaves an impression that its order may, in violation of the congressional will, have nullified an inherent advantage of the barge line and the cooperating railroad. It is true that the Commission clearly found as an ultimate fact that the joint barge-rail rate was noncompensatory, and also set forth a series of figures which it said represented elements of cost and added them together to obtain a figure 5.6 cents per ton higher than the proposed rate. I have checked the Commission’s addition, and find it correct. But whenT turn to what should be the basic findings of fact to support the accuracy of these figures, any illusory clarity in the Commission’s report vanishes. I have examined the report with all the care of which I am capable in an effort to determine whether its ultimate conclusion is supported by substantial evidence. I am compelled to say that the Commission could have informed me just as well if it had written its so-called findings in ancient Sanskrit. I get no more enlightenment from the findings of fact and law of the District Court which left this Commission order standing on the legal assumption, plainly erroneous under decisions of this Court as I shall later point out, that the Commission’s ultimate conclusion was enough, without the support of basic findings of fact. Nor have the labored and at times inconsistent efforts of government counsel and counsel for the Eastern railroads been successful in transforming the Commission’s “findings” into meaningful English. Nevertheless, our Court approves both the action of the Commission and the ruling of the District Court without even permitting the proponents of the barge-rail rate to be heard in oral argument. While such summary treatment often is warranted, I am constrained to say that in the present case it is so unjustified as to deny the right of direct appeal from the District Court which Congress authorized, see 28 U. S. C. § 1253, and which should never be treated lightly since it makes ours the only existing court of review. I am sorry that the Court has not chosen to write an opinion to support its affirmance. I must admit for myself that I would find the task impossible and the attempt embarrassing.

Summary affirmance is particularly out of place here because the District Court proceeded on a clearly incorrect assumption of law, one contrary on its face to the command of Congress in the Administrative Procedure Act, and one which, in being approved here, apparently overrules a line of previous decisions of this Court. The District Court ruled that “the Commission is only required to set out ultimate and not evidentiary facts supporting its conclusions.” With this contrast the requirement of § 8 (b) of the Administrative Procedure Act, 5 U. S. C. § 1007 (b), that “all decisions ... shall... include a statement of (1) findings and conclusions, as well as the reasons or basis therefor, upon all the material issues of fact . . . .” Contrast also statements by this Court that “findings based on the evidence must embrace the basic facts which are needed to sustain the order,” Morgan v. United States, 298 U. S. 468, 480, and that “we have repeatedly emphasized the need for clarity and completeness in the basic or essential findings on which administrative orders rest.” Colorado-Wyoming Gas Co. v. Federal Power Comm’n, 324 U. S. 626, 634. See also, e. g., Atchison, T. & S. F. R. Co. v. United States, 295 U. S. 193, 201-202; Florida v. United States, 282 U. S. 194, 215.

The insufficiency of the Commission’s basic findings is made clearer by the facts and circumstances of this case. The' Chicago and Eastern Illinois Railroad, appellant here, operates a line from the southern Indiana town of Mount Vernon, on the Ohio River, to the steel plants of the Chicago area. Most coal shipped to Chicago for steelmaking comes from the West Virginia area over the large Eastern railroads, intervening appellees, which, although authorized if not required by §§ 3 (4), 15 (3) and 15 (4) of the Interstate Commerce Act, 24 Stat. 380, 384, as amended, 49 U. S. C. §§ 3 (4), 15 (3), 15 (4), have refused to establish joint rates with any barge line. Some years ago the C&EI filed a tariff for hauling coal which came to Mount Vernon by barge. The Eastern roads protested. The Commission refused to approve a rate lower than $2,045 per ton, which it found to be the C&EI’s 1957 cost. 308 I. C. C. 87; 310 I. C. C. 181. The C&EI then turned to the Ohio River Company, a barge line operating down the Ohio from the coal mines to Mount Vernon, and established with it a joint rate of $3.36, of which the railroad’s share was to be $2.04. The joint rate saved paperwork and the expense of weighing coal transferred from, the barges. The Eastern lines were charging $4.75 for the all-rail shipment.

The Eastern roads swiftly demanded that the ICC set aside the joint rate, claiming it was below cost and therefore illegal under § 1 (5) of the Interstate Commerce Act, 24 Stat. 379, as amended, 49 U. S. C. § 1 (5). Both the C&EI and the Eastern roads presented cost averages for each step of the operation. There were disputes on many factual points, and when the smoke had cleared the Commission emerged with its own set of figures, unlike that of either party, though the Commission did not make clear, and no one else in my judgment could tell, exactly why. In its opinion the Commission simply added up the figures it had mysteriously produced, found the sum to be $3,416, and held the rate proposed by the C&EI and the barge line to be illegal as 5.6 cents below cost. Review in the District Court produced some embarrassment, for both the Commission and the Eastern railroads filed briefs to demonstrate the crystal-clarity of the Commission’s findings; however, their respective explanations of how the Commission had arrived at the figure it had were in part inconsistent.

One example should suffice to demonstrate the puzzling nature of the “findings” which the District Court upheld. Representatives of the C&EI testified that trains from Mount Vernon would, instead of being switched and weighed as they had been before the joint tariff, pass right through the switching yard without stopping except perhaps to change crews. The Eastern lines contended that the total costs should include the costs of weighing and switching, as before. The Commission finally made no charge for weighing, but charged for switching the cars just the same. Why the cars would be switched if they were not going to be weighed is not explained. No witness for either party had suggested such a thing. This switching charge alone accounts for 4.2 cents of the 5.6 cents on which the Commission relied to invalidate the tariff. The record reveals other disputes, resolved whether by analysis, inattention or whimsy no one can tell. The Commission’s lawyers urged in the District Court that even if there was no way of justifying the 4.2 cents charge, it really didn’t make any difference because that alone would not suffice to bring the total costs down to the level of the tariff. In fact, said the Commission, it “could have met all legal requirements by accepting in toto protestants’ figures”; in effect, that the purpose of the hearing was not to determine what costs really were, but rather to produce a report setting forth figures to justify a conclusion. Heretofore I had thought that orders of administrative agencies were not to be sustained unless based on substantial evidence supported by the record. Universal Camera Corp. v. Labor Board, 340 U. S. 474. Yet how can this Court tell whether there was substantial evidence when it cannot tell how the Commission arrived at its figures? “We must know what a decision means before the duty becomes ours to say whether it is right or wrong.” United States v. Chicago, M., St. P. & P. R. Co., 294 U. S. 499, 511. Explicit reasons for its result would seem all the more called for where the Commission under its earlier decisions had compelled those protesting a proposed initial rate like that in this case to bear the burden of proving the rate’s invalidity. See, e. g., Cotton from New Orleans, 49 I. C. C. 751; Bay State Milling Co. v. Great Lakes Transit Corp., 43 I. C. C. 338. The opinion of the Commission here means simply that the Commission strikes down the tariff, and reviewing courts will please trust that it had good reasons for doing so.

Furthermore, in Interstate Commerce Comm’n v. Mechling, 330 U. S. 567, 581-583, we held that use by the Commission of general formulas and unsifted averages could not take the place of findings. Yet the Commission here admits to basing much of its result on averages taken from the 1959 annual report of the C&EI on all its operations, leaving unanswered and unrebutted the protests of the C&EI that many costs which it incurs on other routes are not applicable to the Mount Yernon-Chicago run. In addition, the Commission increased costs taken from the annual report by 2.9% on the theory that operating expenses of the C&EI had increased by that amount during the year between the time of the report and the time of the hearing. This figure was stated to be the increase in costs of all railroads in the United States for the period. The C&EI protested that comparison of its 1957 and 1959 annual reports showed that many of its costs had been, contrary to any national average, decreasing slightly, and argued that there was no basis for the apparent conclusion that its costs had not continued to decrease, however much those of other railroads might have increased. But so fond was the Commission of its 2.9% “trending factor” that it seems to have included it as a part of the cost of the barge segment of the joint rate as well, without explaining how a supposed national increase in cost of labor and equipment for railroads is necessarily accompanied by one for barge lines also. I am unable to grasp the logic which apparently determined that increases in costs of steel rails and maintenance of rolling stock made the Ohio River Company’s barges more expensive to operate.

It appears that the Commission has ignored commands of Congress and of this Court. The large railroads have succeeded in this case in doing a great injury to a barge line and to a small railroad which dared willingly to cooperate with another mode of transport, as the law required it to do, in order to profit from the inherent advantages of each and thereby benefit the public. The Commission asks us to believe that the C&EI schemed to carry on an operation on which it would lose money, losing greater and greater sums the more coal it hauled, presumably in the hope of living on its capital until it had driven out of business such companies as the New York Central and the Pennsylvania. I find this a difficult proposition to accept, and should like to have the Commission explain in plain understandable English how it reached such a conclusion. Unfortunately, the report as it stands makes it impossible for me to say whether the ultimate findings are supported by substantial evidence or not. Yet instead of requiring the Commission to comply with the law at least sufficiently that its acts may be reviewed, my Brethren silently affirm a lower court judgment which I think is completely out of line with the mandate of Congress and our past emphatic holdings. The Commission apparently seeks to make a rubber stamp of any court reviewing its orders. I do not like that role. If summary disposition is in order, I should think reversal the appropriate judgment.

        “. . . [W]e would be remiss in our duty if we did not take note of the fact that for over eight years plaintiffs have been seeking relief in this proceeding from discriminatory rail rates which we find are in violation of the Interstate Commerce Act. Section 10 (e) of the Administrative Procedure Act provides that the reviewing court ‘shall . . . compel agency action unlawfully withheld or unreasonably delayed.’ It is the opinion of this court that the present case is an appropriate one for application of this statutory provision, and that the plaintiffs are entitled to prompt relief from the discriminatory rates presently in effect. The case is therefore remanded with instructions to the Commission to enter an order prescribing lawful, reasonable, and nondiscriminatory rates . . . .” 176 F. Supp., at 421.

       “The formula used here which lumps all through rail grain rates, irrespective of the services rendered, to give rail-carried grain a preferred rate over barge-carried grain, is indistinguishable in cause and consequence from an order which directly raises barge rates to relieve the railroads from barge competition. In any event, there has been no showing by the Commission as to how much, if any, of the 3-cent reshipping rate increase is attributable to the fact that ex-barge grain requires more terminal service on the average than does ex-rail grain.” Interstate Commerce Comm’n v. Mechling, 330 U. S. 567, at 582.

       The unfolding of such an episode can be seen in the Arrow litigation, in which railroads proposed suddenly to cut their rates for all-rail grain shipments to the Southeast by more than half. Although the District Court subsequently found that the rates if approved probably would put the competing barge lines out of business in a short time, the Commission still had taken no action after seven months and so under the statute the rates went into effect. For a history of the Arrow litigation, see Arrow Transportation Co. v. Southern R. Co., Civil No. 10,224 (D. C. N. D. Ala.), Aug. 3, 1962 (denying, for lack of jurisdiction, injunction of unlawful railroad rates); Arrow Trans

        portation Co. v. Southern R. Co., 83 Sup. Ct. 1 (in chambers) (extending order of circuit judges temporarily restraining rates); Arrow Transportation Co. v. Southern R. Co., 308 F. 2d 181 (C. A. 5th Cir.) (affirming District Court); Arrow Transportation Co. v. Southern R. Co., 83 Sup. Ct. 3 (in chambers) (restraining rates pending disposition of case by Supreme Court); Grain in Multiple-Car Shipments—River Crossings to the South, I. C. C. Division 2, 318 I. C. C. 641 (upholding unlawful rates in part); Arrow Transportation Co. v. Southern R. Co., 372 U. S. 658 (affirming Court of Appeals, thereby permitting rates to take effect). In short, Division 2 of the Commission waited 17 months before taking any action on the protest of the barge lines, thereby permitting rates to take effect which the District Court had said would destroy the barge lines. And it was nearly six months more before the full Commission on reconsideration held the rates unlawful. Grain in Multiple-Car Shipments—River Crossings to the South, I. &. S. Docket No. 7656, July 1, 1963, 321 I. C. C. 582. The same rates remain in effect today, for the railroads have obtained an order restraining the Commission’s latest order. Cincinnati, N. O. & T. P. R. Co. v. United States, 220 F. Supp. 46 (D. C. S. D. Ohio).

       See Douglas, The Supreme Court and Its Case Load, 45 Cornell L. Q. 401.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    MEEKER et ux. v. AMBASSADOR OIL CORP.
    No. 46.
    Argued November 19-20, 1963.
    —Decided December 2, 1963.

      O. R. Adams, Jr. argued the cause for petitioners. With him on the brief was R. F. Deacon Arledge.

      C. Harold Thweatb argued the cause for respondent. With him on the brief was Vivian Diffendaffer.

   Per Curiam.

The judgment of the Court of Appeals for the Tenth Circuit is reversed. Beacon Theatres, Inc., v. Westover, 359 U. S. 500; Dairy Queen, Inc., v. Wood, 369 U. S. 469.


text:
    BERRY v. NEW YORK.
    No. 163,
    Misc.
    Decided December 2, 1963.
    Petitioner pro se.

      Michael R. Canestrano for respondent.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The judgment is vacated and the case is remanded to the Appellate Division of the Supreme Court of New York, Fourth Judicial Department, for further consideration in light of Gideon v. Wainwright, 372 U. S. 335.


text:
    KIRKLAND v. TEXAS.
    No. 465.
    Decided December 2, 1963.

      Clyde W. Woody for appellant.
   Per Curiam.

The appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari is denied.


text:
    ABERNATHY et al. v. EASTERN AIR LINES, INC., et al.
    No. 450.
    Decided December 2, 1963.

      Whiteford S. Blakeney for appellants in No. 450. Wade W. Mitchem for appellants in No. 451.

      William D. Holoman for appellee Employment Security Commission of North Carolina.

      Together with No. 451, Charlotte Council, Air Line Pilots Association, et al. v. Eastern Air Lines, Inc., et al., also on appeal from the same Court.

   Per Curiam.

The motion to dismiss is granted and the appeals are dismissed for want of jurisdiction. Treating the papers whereon the appeals were taken as petitions for writs of certiorari, certiorari is denied.


author: Mr. Justice Black Mr. Justice Harlan,

text:
    UNITED STATES v. BEHRENS.
    No. 86.
    Argued October 17, 1963.
    Decided December 9, 1963.

      Louis F. Claiborne argued the cause for the United States. On the brief were Solicitor General Cox, Assistant Attorney General Miller, Ralph S. Spritzer, Beatrice Rosenberg and Theodore George Gilinsky.

      Aribert L. Young argued the cause and filed a brief for respondent.

      Leon B. Polsky filed a brief for the Legal Aid Society, as amicus curiae, urging affirmance.
   Mr. Justice Black

delivered the opinion of the Court.

Respondent was convicted in a United States District Court of an assault with intent to murder, an offense punishable under 18 U. S. C. § 113 (a) “by imprisonment for not more than twenty years.” Desiring more detailed information as a basis for determining the sentence to be imposed, the trial judge decided to proceed “under the flexible provisions of [§] 4208” of 18 U. S. C. Accordingly, he committed respondent to the custody of the Attorney General to await a study by the Director of the Bureau of Prisons of respondent’s previous delinquency, criminal experience, social background, etc. His order provided that after the results of the study and the Director’s recommendations were reported to the court, respondent’s commitment, deemed to be for 20 years, would “be subject to modification in accordance with Title 18 U. S. C. 4208 (b).”

After the Director’s report was received, the trial court entered an order providing “that the period of imprisonment heretofore imposed be reduced to Five (5) years” and that the Board of Parole might decide when the respondent should be eligible for parole. Neither respondent nor his counsel was present when this modification of the court’s previous commitment under § 4208 (b) was entered. No direct appeal was taken, but respondent moved to vacate sentence under 28 U. S. C. § 2255. The trial court denied relief, but the Court of Appeals reversed and remanded with directions to vacate the sentence on the ground that it was error for the district judge to impose the final sentence under § 4208 (b) in the absence of petitioner and his counsel. In another case, Corey v. United States, 307 F. 2d 839, the Court of Appeals for the First Circuit held that it was the original commitment under § 4208 (b), not the fixing of the final sentence, which marked the point from which time to appeal began running. Because of the disagreement between the two appellate courts’ interpretation of § 4208 (b) and the general confusion in District Courts and Courts of Appeals as to this section’s exact meaning and effect, we granted cer-tiorari in both cases.

In asking that we grant certiorari in the present case, the Solicitor General conceded that if the action of the District Court in fixing the final term of imprisonment under § 4208 (b) was a final judgment for the purposes of appeal, then the defendant would plainly be entitled to have himself and his counsel present when the final action was taken. We have decided today, for reasons set out in our opinion in the Corey case, post, p. 169, that the action of a District Court finally determining under § 4208 (b) the sentence to be imposed upon a defendant is a final, appealable order. For those reasons as well as those set out below, we hold that the District Court erred in the present case when, modifying its original oral § 4208 (b) order, it fixed the final sentence in the absence of respondent and his counsel. It is plain that as far as the sentence is concerned the original order entered under § 4208 (b) is wholly tentative. That section merely provides that commitment of a defendant to the custody of the Attorney General “shall be deemed to be for the maximum sentence,” but does not make that the final sentence. The whole point of using § 4208 (b) is, in its own language, to get “more detailed information as a basis for determining the sentence to be imposed . . . (Emphasis supplied.) It is only after the Director of the Bureau of Prisons makes his report that the court makes its final decision as to what the sentence will be. Rule 43 of the Federal Rules of Criminal Procedure specifically requires that the defendant be present “at every stage of the trial including . . . the imposition of sentence . . . .” It is true that the same rule provides that a defendant’s presence is not required when his sentence is reduced under Rule 35. But a reduction of sentence under Rule 35 is quite different from the final determination under § 4208 (b) of what a sentence is to be. Rule 35 refers to the power of a court to reduce a sentence which has already become final in every respect. There is no such finality of sentence at a § 4208 (b) preliminary commitment. The use of § 4208 (b) postpones action as to the final sentence; by using that section the court decides to await studies and reports of a defendant’s background, mental and physical health, etc., to assist the judge in making up his mind as to what the final sentence shall be. It is only then that the judge’s final words are spoken and the defendant’s punishment is fixed. It is then that the right of the defendant to be afforded an opportunity to make a statement to the judge in his own behalf is of most importance. This right, ancient in the law, is recognized by Rule 32 (a) of the Federal Criminal Rules, which requires the court to “afford the defendant an opportunity to make a statement in his own behalf and to present any information in mitigation of punishment.” This right would be largely lost in the § 4208 proceeding if for administrative convenience the defendant were not permitted to invoke it when the sentence that counts is pronounced. We hold that it was error to impose this sentence in the absence of respondent and his counsel.

Affirmed.

Mr. Justice Harlan,

concurring in the result.

I agree with the result reached in this case, but not with all of the reasoning of my Brother Black's opinion. More particularly, disagreeing as I do with the rationale of the Corey decision, post, p. 169,1 draw no support from it for the conclusion here reached.

The language of § 4208 (b) is not explicit on the question whether a defendant must be allowed to be present when the District Court imposes final sentence. It is, however, clear that the statute does not contemplate that the district judge will have deliberated and decided upon an appropriate sentence at the time of the original commitment. As the first words of § 4208 (b) make plain, the procedures outlined therein are called into play “if the court desires more detailed information as a basis for determining the sentence to be imposed . . . .” Although the statute refers later to “the sentence of imprisonment originally imposed,” this is quite plainly intended merely to permit the district judge to impose as a final sentence the “maximum sentence of imprisonment prescribed by law” under which the defendant is “deemed to be” committed. The Corey case well illustrates the absurdity of any other conclusion; there the defendant was originally deemed to be committed for a term of 375 years on a conviction of making false claims against the Government. See post, p. 171.

Once it is clear that a defendant is not actually sentenced until after the § 4208 (b) inquiry during commitment is completed, the requirements of criminal justice, always subject to this Court's supervisory power over the federal courts, leave no doubt of his right to be present when a final determination of sentence is made. The elementary right of a defendant to be present at the imposition of sentence and to speak in his own behalf, which is embodied in Rule 32 (a) of the Federal Rules of Criminal Procedure, is not satisfied by allowing him to be present and speak at a prior stage of the proceedings which re-suits in the deferment of the actual sentence. Even if he has spoken earlier, a defendant has no assurance that when the time comes for final sentence the district judge will remember the defendant’s words in his absence and give them due weight. Moreover, only at the final sentencing can the defendant respond to a definitive decision of the judge.

Whether or ’ not the Constitution would permit any other procedure it is not now necessary to decide. Congress not having spoken clearly to the contrary,1 concur in the judgment of the Court.

       18 U. S. C. §4208 (b) provides:
      “If the court desires more detailed information as a basis for determining the sentence to be imposed, the court may commit the defendant to the custody of the Attorney General, which commitment shall be deemed to be for the maximum sentence of imprisonment prescribed by law, for a study as described in subsection (c) hereof. The results of such study, together with any recommendations which the Director of the Bureau of Prisons believes would be helpful in determining the disposition of the case, shall be furnished to the court within three months unless the court ^grants time, not to exceed an additional three months, for further1 study. After receiving such reports and recommendations, the court may in its discretion: (1) Place the prisoner on probation as authorized by section 3651 of this title, or (2) affirm the sentence of imprisonment originally imposed, or reduce the sentence of imprisonment, and commit the offender under any applicable provision of law. The term of the sentence shall run from date of original commitment under this section.”

       312 F. 2d 223.

       371 U. S. 966; 373 U. S. 902.

       It is true that the House Committee on the Judiciary in reporting favorably on a proposed section identical to § 4208 (b) indicated that it saw no necessity for a defendant being present when final action on his sentence was taken. H. R. Rep. No. 1946, 85th Cong., 2d Sess., p. 10. This section failed of passage in the House but an identical one was added by the Senate and adopted without discussion of the point in the Senate committee and conference reports. See S. Rep. No. 2013, 85th Cong., 2d Sess.; H. R. Rep. No. 2579, 85th Cong., 2d Sess. No language supporting this position appeared in the Senate bill or in the Act itself. We are not inclined to expand the language of the section, and thereby make necessary a constitutional decision, by reading the silence of the Act as depriving a defendant of a right to urge upon the-court reasons for leniency at the time when the judge at last has the relevant materials for decision before him.

       Section 4208 (b) provides:
      “If the court desires more detailed information as a basis for determining the sentence to be imposed, the court may commit the defendant to the custody of the Attorney General, which commitment shall be deemed to be for the maximum sentence of imprisonment prescribed by law, for a study as described in subsection (c) hereof. The results of such study, together with any recommendations which the Director of the Bureau of Prisons believes would be helpful in determining the disposition of the case, shall be furnished to the court within three months unless the court grants time, not to exceed an additional three months, for further study. After receiving such reports and recommendations, the court may in its discretion: (1) Place the prisoner on probation as authorized by section 3651 of this title, or (2) affirm the sentence of imprisonment originally imposed, or reduce the sentence of imprisonment, and commit the offender under any applicable provision of law. The term of the sentence shall run from date of original commitment under this section.”

       A bill now pending in Congress provides that the defendant’s presence is not required at final sentencing but the defendant may be present in the discretion of the court. S. 1956, 88th Cong., 1st Sess.
      Neither the legislative history set out in the opinion of the majority, ante, p. 166, note 4, nor the pending proposal seems to me sufficient indication of congressional intent to require disregard of the important right involved in this case, particularly in light of the possible constitutional issues which would be raised.


author: Mr. Justice Stewart Mr. Justice Harlan,

text:
    COREY v. UNITED STATES.
    No. 31.
    Argued October 17, 1963.
    —Decided December 9, 1963.

      Russell Morton Brown argued the cause for petitioner. With him on the brief was Maurice C. Goodpasture.

      Louis F. Claiborne argued the cause for the United States. With him on the brief were Solicitor General Cox, Assistant Attorney General Miller, Beatrice Rosenberg and Theodore George Gilinsky.

      Leon B. Polsky filed a brief for the Legal Aid Society, as amicus curiae, urging reversal.
   Mr. Justice Stewart

delivered the opinion of the Court.

The petitioner was convicted by a jury in the United States District Court in Massachusetts upon a 75-count indictment for making false claims against the Government in violation of 18 U. S. C. § 287. The trial judge, after preliminary sentencing hearings, came to the conclusion that it would be helpful “for the Court to know something more about the defendant than I have seen or heard up to date.” Accordingly, the court entered an order committing the petitioner “to the custody of the Attorney General of the United States under Title 18, United States Code, 4208 (b).” More than three months later, after considering the report which the Bureau of Prisons had submitted in accordance with § 4208 (b), the trial judge, in a proceeding at which the petitioner and his counsel were present, entered an order suspending imposition of sentence and placing the petitioner on probation for two years. Three days later the petitioner filed a notice of appeal.

Upon motion of the Government the appeal was dismissed as untimely, on the ground that the period for appeal had expired 10 days after entry of the trial court’s initial order committing the petitioner for study under 18 U. S. C. § 4208 (b). Pointing out that § 4208 (b) provides that such a commitment “shall be deemed to be for the maximum sentence of imprisonment prescribed by law,” the Court of Appeals reasoned that “at this point the defendant was on notice as to the extent of his punishment. If he desired to appeal, this was the time that he should have acted.” 307 F. 2d 839, 840. We granted certiorari, 371 U. S. 966, to consider questions which have arisen in the District Courts and Courts of Appeals in the application of 18 U. S. C. § 4208 (b).

The procedural rules governing the usual course of criminal appeals in the federal judicial system are well settled. After a plea or finding of guilty, sentence is to be imposed “without unreasonable delay.” A judgment of conviction setting forth the sentence is then entered, and a notice of appeal must be filed within 10 days thereafter. The record is filed with the Court of Appeals and the appeal docketed within 40 days thereafter, and the appeal is heard “as soon ... as the state of the calendar will permit.” Pending disposition of the appeal, the sentence is stayed unless the defendant elects otherwise, and the defendant may be released on bail.

The dominant philosophy embodied in these rules reflects the twin concerns that criminal appeals be disposed of as expeditiously as the fair and orderly administration of justice may permit, and that the imposition of actual punishment be avoided pending disposition of an appeal. In the ordinary criminal case, where the imposition of a sentence follows promptly upon a determination of guilt, no problem arises in the application of these appellate rules or in the effectuation of the policies which they reflect. An appeal may not be taken until after the pronouncement of sentence, and must be taken promptly after sentence is imposed.

But under the provisions of 18 U. S. C. § 4208 (b) the trial judge sentences a convicted defendant not once, but twice. The judge first imposes a sentence of imprisonment “deemed to be” the maximum prescribed by the law, and then, after the defendant has been imprisoned for three or six months, the judge fixes a new sentence which may be quite different from the one originally imposed. The present case illustrates the problem which then arises. That problem, simply stated, is how, in cases where trial judges have utilized the sentencing provisions authorized by 18 U. S. C. § 4208 (b), the rules governing criminal appeals are to be applied so as neither to frustrate their purpose nor to impair the efficacy of the flexible sentencing procedure which Congress devised in enacting 18 U. S. C. § 4208 (b). We have concluded that in such cases an appeal may be taken within the time provided by Rule 37 (a)(2), Fed. Rules Crim. Proc., after either the first or the second sentence under § 4208 (b), at the option of the convicted defendant.

It would obviously contravene the basic policies of the criminal appellate rules to require a defendant sentenced under § 4208 (b) to defer his appeal until after he had submitted to the three or six months of incarceration and diagnostic study prescribed by the statute. Such a requirement would not only forestall any opportunity of a prompt appeal from an underlying criminal conviction, but would deprive a convicted defendant of the substantial right to be enlarged on bail while his appeal was pending. Indeed, the imposition of such a mandatory three- or six-month term of imprisonment before the defendant could file an appeal might raise constitutional problems of significant proportions.

But we need not consider such problems, because a § 4208 (b) commitment is clearly not lacking in sufficient “finality” to support an immediate appeal, and there is nothing to indicate that Congress intended that the right of appeal be mandatorily suspended in cases where the provisions of § 4208 (b) are utilized. The provisions of § 4208 (b) are invoked only after “a judgment of conviction.” The defendant is committed under § 4208 (b) “to the custody of the Attorney General” as in the case of all sentenced prisoners. It is provided that the term of the final sentence “shall run from date of original commitment under this section.”

A sentence under these provisions, which is imposed only after the whole process of the criminal trial and determination of guilt has been completed, sufficiently satisfies conventional requirements of finality for purposes of appeal. The litigation is complete as to the fundamental matter at issue — -“the right to convict the accused of the crime charged in the indictment.” Heike v. United States, 217 U. S. 423, 429. “Final judgment in a criminal case,” the Court has said, “means sentence. The sentence is the judgment.” Berman v. United States, 302 U. S. 211, 212. This concept was later explained and amplified in words of complete applicability here: “The 'sentence is judgment’ phrase has been used by this Court in dealing with cases in which the action of the trial court did not in fact subject the defendant to any form of judicial control. . . . But certainly when discipline has been imposed, the defendant is entitled to review.” Korematsu v. United States, 319 U. S. 432, 434.

For these reasons it is clear to us that the petitioner in the present case could have appealed his conviction within 10 days after the entry of the original commitment order under § 4208 (b). Had he done so, the Court of Appeals could have reviewed all claims of error in the trial proceedings, and its determination would have been final, subject only to discretionary review by this Court.

It does not follow, however, simply because a defendant could have sought review of his conviction after the initial commitment under § 4208 (b), that Congress intended to deny altogether the right of appeal to a defendant who chose to adopt the course followed by the petitioner in the present case. While an initial commitment under § 4208 (b) is, as we have pointed out, freighted with sufficiently substantial indicia of finality to support an appeal, the fact remains that the proceedings in the trial court are not actually terminated until after the period of diagnostic study, review of the same by the district judge, and final sentence. Cf. United States v. Behrens, ante, p. 162. There might be many reasons why a convicted defendant or his counsel would prefer to await final termination of the trial court proceedings before taking an appeal. For instance, a defendant might think, rightly or wrongly, that the trial court’s knowledge that an appeal had already been taken might adversely influence the court’s discretion in imposing final sentence. Moreover, if every defendant initially committed under § 4208 (b) to the maximum prison term prescribed by law were faced with the choice of then and there seeking review of his conviction or forever losing the right of appeal, he might well feel obliged to take an appeal because of his very ignorance of what his sentence was eventually going to turn out to be. As a practical matter, the severity of the sentence actually imposed might in any case be a major factor in determining whether an appeal is to be taken.

Long-accepted and conventional principles of federal appellate procedure require recognition of the defendant’s right to await the imposition of final sentence before seeking review of the conviction. That is the general rule. Miller v. Aderhold, 288 U. S. 206; Berman v. United States, 302 U. S. 211; Cobbledick v. United States, 309 U. S. 323; Rule 37 (a), Fed. Rules Crim. Proc. We find nothing to indicate that Congress intended to depart from that rule in enacting § 4208 (b).

Reversed

Mr. Justice Harlan,

dissenting.

While I agree with the majority that a criminal defendant who has been committed to the custody of the Attorney General under 18 U. S. C. § 4208 (b) has the right to prosecute an immediate appeal from the judgment of conviction, I am unable to accept the view, so contrary to long-accepted principles governing the time for seeking review, that he has also the alternative right to await final sentencing and then prosecute an appeal from the judgment of conviction. Accordingly, I would hold that the petitioner’s attempted appeal at that stage of the proceedings was untimely.

It is clear that a § 4208 (b) commitment, which is necessarily preceded by a judgment of conviction, see 18 U. S. C. § 4208 (a), fully satisfies the requirement of finality under 28 U. S. C. § 1291. At that point in the proceedings, the merits have been fully litigated, the defendant has been adjudged guilty, and “discipline has been imposed,” Korematsu v. United States, 319 U. S. 432, 434. In that case this Court held that after a finding of guilt an order placing the defendant on probation was a final appealable order. In the absence of an explicit statement of contrary congressional intent, Korematsu controls this case, in which the disciplinary measure taken was an actual commitment to prison. The liberalization of sentencing procedures under § 4208 (b) does not require or even suggest that a defendant be deprived of his right speedily to test the validity of his conviction.

It is otherwise, however, with respect to an appeal following the imposition of final sentence in accordance with § 4208 (b). Of course it is true, as the majority points out, that the general rule is that the defendant may “await the imposition of final sentence before seeking review of the conviction,” ante, p. 176. Indeed, the general rule is that he has no choice but to wait. The majority and I agree, for the reasons stated, that the separation of final judgment and final sentence under § 4208 (b) makes the rule inapplicable in this situation. Nevertheless, after having discarded the rule for one-half of its opinion, the majority relies on it as a justification for allowing the defendant the alternative of postponing his appeal until long after the final judgment of conviction has been rendered. This is explained only by a distinction, novel in this context, between final judgments and proceedings “not actually terminated,” ante, p. 175. Congress could, of course, arm defendants committed under § 4208 (b) with this double-barreled shotgun. But there is nothing to indicate that it has done so. In the absence of any such indications, so radical a departure from long-established procedural principles should be made, in what is presumably an exercise of this Court’s supervisory power over the administration of federal criminal justice, only where fairness imperatively so demands.

The majority finds such necessity in a defendant’s possible preference to await final sentencing before deciding whether or not to appeal. A defendant, it is suggested, might fear that his taking of an appeal would have an adverse impact on the sentencing judge; or he might be disinclined to appeal if he is ultimately to receive a light sentence. Neither of these possibilities warrants the majority’s innovation in review procedures. It should be a simple matter for a defendant who prefers to await the outcome of the § 4208 (b) proceeding before prosecuting his appeal to file a notice of appeal within the prescribed time after the original commitment and then secure a continuance pending final sentencing in the District Court. I see no reason why a Court of Appeals should be reluctant to grant a continuance in these circumstances; were this not the case, such a requirement could be imposed by this Court in the exercise of its supervisory powers. That a defendant might believe, surely in all but the rare instance incorrectly, that the mere filing of a notice of appeal would weigh against him with the sentencing judge is hardly a persuasive consideration; with as much reason, he might believe that it would have the effect of stimulating the sentencing judge to reduce his sentence. In any event, it is surely inappropriate to structure review procedures around hypothetical beliefs of defendants in the maladministration of criminal justice.

New procedures designed to better the administration of criminal justice, such as § 4208 (b), should not without manifest need be the occasion for radical departures from established theory and practice. Seeing no need for such a departure in this case, I respectfully dissent and would affirm the judgment below.

       18 U. S. C. § 4208 (b) provides:
      “If the court desires more detailed information as a basis for determining the sentence to be imposed, the court may commit the defendant to the custody of the Attorney General, which commitment shall be deemed to be for the maximum sentence of imprisonment prescribed by law, for a study as described in subsection (c) hereof. The results of such study, together with any recommendations which the Director of the Bureau of Prisons believes would be helpful in determining the disposition of the case, shall be furnished to the court within three months unless the court grants time, not to exceed an additional three months, for further study. After receiving such reports and recommendations, the court may in its discretion: (1) Place the prisoner on probation as authorized by section 3651 of this title, or (2) affirm the sentence of imprisonment originally imposed, or reduce the sentence of imprisonment, and commit the offender under any applicable provision of law. The term of the sentence shall run from date of original commitment under this section.”

       See note 1, supra.

       Since the petitioner was convicted upon each of 75 counts under 18 U. S. C. § 287, and since each offense under that statute is punishable by a prison term of up to five years, “the extent of his punishment,” if it was the “maximum sentence of imprisonment prescribed by law,” was 375 years in prison. Such a sentence, if actually imposed for the substantive offenses in question, would obviously raise a serious issue under the Eighth Amendment of the Constitution.

       In Behrens v. United States, 312 F. 2d 223 (1962), certiorari granted, 373 U. S. 902, the Court of Appeals for the Seventh Circuit, holding that the defendant and his counsel must be present when sentence is imposed following receipt of the Bureau of Prisons report, apparently considered that proceeding — rather than the earlier commitment order — as the one from which the time for appeal would begin to run. On the question of the right of the defendant and his counsel to then be present, we have today affirmed that decision. United States v. Behrens, ante, p. 162. See also United States v. Johnson, 315 F. 2d 714 (C. A. 2d Cir. 1963).

       Rule 32 (a), Fed. Rules Crim. Proc.

       Rule 32 (b), Fed. Rules Crim. Proc.

       Rule 37 (a)(2), Fed. Rules Crim. Proc.

       Rule 39 (c), Fed. Rules Crim. Proc.

       Rule 39 (d), Fed. Rules Crim. Proc.

       Rule 38 (a)(2), Fed. Rules Crim. Proc.

       Rule 46 (a)(2), Fed. Rules Crim. Proc.

       Section 4208 (b) was enacted in 1958 as part of broad legislation to improve sentencing practices in the federal courts. See 28 U. S. C. § 334 (providing for judicial sentencing institutes to be held in the various circuits); 18 U. S. C. § 4209 (extending the application of the Federal Youth Corrections Act to offenders between 22 and 26); 18 U. S. C. § 4208 (a) (authorizing a sentencing judge to delegate wide discretion to the Parole Board).

       18 U. S. C. §4208 (a) begins: “Upon entering a judgment of conviction, the court having jurisdiction to impose sentence, when in its opinion the ends of justice and best interests of the public require that the defendant be sentenced to imprisonment for a term exceeding one year, may ...” While these words are not repeated in subsection (b), it is plain that they serve as an introduction to all of §4208.

       See 18 U. S. C. § 4082.

       Only the final sentence which was later imposed would still have been open, under accepted procedures, to attack in the trial court and review on appeal, e. g., for failure to accord the defendant and his counsel the right to be present and to be heard at the final sentencing proceeding. See United, States v. Behrens, ante, p. 162.
      If a defendant appeals after a preliminary commitment under § 4208 (b) and is enlarged on bail pending appeal, the further procedures under § 4208 (b) (including the pronouncement of final sentence) will necessarily be postponed until the appeal is determined (and eliminated entirely if the conviction is reversed), because the diagnostic study by the Bureau of Prisons cannot be carried out if the defendant is not incarcerated. On the other hand, if a defendant taking an appeal after an initial commitment under § 4208 (b) does not seek bail but elects to commence service of his sentence, there is no reason why the diagnostic study contemplated by the statute should not proceed. Modifications of sentences have in fact been made under § 4208 (b) while cases were on appeal. See Armstrong v. United States, 306 F. 2d 520, 521, n. 1 (C. A. 10th Cir. 1962); United States v. Varner, 283 F. 2d 900, 901 (C. A. 7th Cir. 1961).

       1 intimate no view as to whether such a statute would infringe constitutional rights.

       There is now pending in Congress a bill to amend §4208 which provides that “the right to appeal shall run from the date the original sentence was imposed under subsection (b) of this section.” S. 1956, 88th Cong., 1st Sess.

       1 agree with the majority that if a defendant elects to commence service of sentence, the filing of a notice of appeal in the Court of Appeals would not prevent the § 4208 (b) proceedings from going forward in the District Court. Caáes like Berman v. United States, 302 U. S. 211, and United States v. Smith, 331 U. S. 469, involved different problems and are not relevant in the present context. Final § 4208 (b) sentences have in fact been imposed in the District Court while an appeal was pending. See cases cited in the majority’s opinion, ante, p. 175, note 15.
      The requirement of Rule 39 (d), Federal Rules of Criminal Procedure, that an appeal be set for argument “not less than 30 days after the filing ... of the record on appeal and as soon after the expiration of that period as the state of the calendar will permit” would obviously not prevent a continuance in these circumstances.
      Of course, if a defendant chooses to be released on bail pending appeal, the proceedings under § 4208 (b) would then be postponed until remand of the case to the District Court following appellate affirmance of the conviction.