The opinion of the court was delivered by: MURPHY
Chief Judge Friendly characterized the appeal from our order denying defendant's motion for a reduction of sentence under Rule 35 as "an epilogue to the proceedings detailed in the previous opinions of this court and the Supreme Court" (emphasis supplied). McGee v. United States, 462 F.2d 243 (2d Cir. 1972). With due deference, we would suggest that instead of the fall of the curtain, it is a prologue to a modern Jarndyce v. Jarndyce.
The Court of Appeals determined that it was not improbable in this particular case that "the initial sentencing process with respect to the valid counts was to some extent affected by the conviction on the far more serious count 1, which was illegally brought." Accordingly, it vacated the order and remanded, "to purge this possible taint after the fact on a Rule 35 motion, we believe the trial judge should either have reduced the sentences on counts 2 through 4 or have given at least a summary explanation of his reasons for declining to do so, cf., North Carolina v. Pearce, 395 U.S. 711, 725-726, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969)."
We respectfully submit there is no comparison in McGee's case to North Carolina v. Pearce. There was no successful appeal. There was no retrial. There was no increase in the sentence. There is not one scintilla of evidence in the record or even an argument in appellant's brief that we were vindictive.
We must first digress to call attention to some inadvertent statements in the majority opinion of the court, since they cast a shadow on our judgment where none exists. Whether Count 1 was "most serious" or "far more serious", as the majority opinion repeated three times -- the undeniable fact remains that the Congress has determined that all are equally serious, since it fixed a five-year sentence and a $10,000 fine for the maximum punishment as to each.
Again, the court characterized the two-year concurrent sentence we imposed as severe in the opinion of the Government (see fn. 6). This, too, must be inadvertent error, since nowhere in the Government's brief is there such a characterization. Obviously the sentence is mathematically lenient if it is mensurative by what Congress has authorized.
The Court of Appeals attaches some importance to a manual entitled "Legal Aspects of Selective Service, 47 (1969)", which neither the court nor the appellant actually saw fit to quote. For purposes of completeness and accuracy, we attach as an Appendix hereto the entire reference.
But accuracy aside, what relevancy a manual issued by the Selective Service System has to do with the actions of a district court in a prosecution that was instituted on February 29, 1968 and tried to a jury in November 1968, escapes us. Fn. 4 in the majority opinion creates the impression that such a manual was something the Department of Justice was privy to. We think it would be agreed that the Selective Service System is an independent agency of the Executive Department.
Reference is made by the Court of Appeals to the large number of flattering letters from people in all walks of life commending McGee for his opinions and work, both prior to and subsequent to the trial, as a factor that should be considered by us in reducing his sentence. At the time of the original sentence the probation report indicated that aside from the charges in the indictment on which he was convicted and a pending indictment for burning his registration and classification certificates, McGee did enjoy a good reputation. We examined it again on the Rule 35 motion. We were never too much impressed with these encomiums, the same as juries over many years have not been too much impressed by character witnesses. During the trial we always had a serious doubt about McGee's intention to become an ordained Catholic priest. Cf., United States v. McGee, 2d Cir., 426 F.2d 691, 696 and fn. 5. It was first engendered when he was asked on cross-examination whether he had been incardinated by the bishop to attend the Union Theological Seminary. The questions and answers were:
"Q. Mr. McGee, you testified that you are a candidate for the priesthood, is that correct?
"Q. Would you tell us, Mr. McGee, what incardination is?
"A. That is nothing -- it is not my understanding that that has anything to do with ...