The opinion of the court was delivered by: COOPER
Defendant moves for an order reducing
the sentence of five years imprisonment we imposed on June 1, 1972 after (a) a six day trial (January 18 to January 25, 1972) which resulted in a jury verdict convicting him of a one count criminal indictment (71 Cr. 816) and (b) defendant's conviction on a guilty plea to counts 8, 9 and 10 of a criminal information covering ten counts (72 Cr. 268). The indictment charged possession in June, 1970 of the contents of stolen mail;
in the criminal information, count 10 was brought for a violation on September 29, 1970 of the same penal section embraced within the indictment, while counts 8 and 9 charged interstate transportation of stolen securities in November and December, 1971.
The sole supporting affidavit is by counsel for defense who urges us to (1) reduce the length of the prison term and (2) modify the sentence
so that the parole commission can give immediate consideration to defendant's application for parole and thus substantially reduce the customary waiting time of (one-third of the sentence). We are not asked to consider alternatives to imprisonment and, for the reasons set forth below, we regard such alternatives inappropriate here.
In support of his prayer for relief counsel advances only three points, the first two of which can be rejected immediately. They are that (1) defendant is presently 57 years of age and (2) he "has conducted himself in an exemplary fashion" since incarceration. Counsel suggests we make inquiry of prison officials who he is confident will support his estimate. First, notwithstanding defendant's age, which hardly can be considered today as advanced, we see no good and sufficient reason to interfere with the functions of the parole commission performed under law and under their oath of office. In evaluating defendant's parole application, the commission doubtless will consider his allegedly good deportment as an inmate which also earns credits to reduce the period of imprisonment, even absent parole. 18 U.S.C. § 4161. Moreover there is no good and sufficient reason presented which recommends that we direct immediate parole consideration; we do so only in exceptionally meritorious situations (e.g., a pathetic youth sadly enmeshed following conviction).
The third ground defense counsel briefly asserts, which reflects a limited appreciation of relevant factors in sentencing, precipitates this opinion. Here it is in its entirety:
One additional factor the Court may wish to consider, and that is perhaps of some weight, is the subsequent sentence received by [a defendant specifically named (hereinafter X)] from another Judge of this Court of one year and one day, after conviction of transactions involving approximately twice the amount of face value of securities as were involved in Mr. Haggett's charges. Mr. [X], it should be noted, took the stand to deny guilt, whereas Mr. Haggett did not and indeed pleaded guilty to three of the four counts on which he was sentenced. Both of these men were first offenders under the law, and yet [X]'s sentence was one-fifth that of Mr. Haggett's.
With regard to these points alone, we did consider and give weight to the factors, in relation to others, that defendant did not testify and that his offenses resulted in his first criminal conviction. We further considered the not insubstantial amount of the securities involved. They were not, however, the only factors.
Moreover, it must be distinctly understood that "X" is a totally unrelated case to the one with which we deal here. Clearly counsel has not seen the confidential pre-sentence reports prepared by the respective probation officers and presented to the judges who presided at the different trials in the cases sought to be compared. So very much is thus missing on which to predicate rational discussion (after all, we are not dealing with the price range of two containers of similar merchandise). We have begun to hear this same sort of complaint of inequality from other sources (and on other Rule 35 applications); while such inequality exists, in many cases there are neither facts set forth in support of it nor argument advanced to justify it -- just disgruntlement that the sentence meted out in a case seems out of all proportion to that rendered elsewhere. We find it in a similar application for reduction of sentence now pending before us.
There is much to suggest a total unfamiliarity as to what "goes into" a sentence.
The indictment here followed a series of rapid events. On June 12, 1970 Bache & Co., a brokerage house in New York City, sent by registered mail to one of its customers in Queens County, New York, nine $5,000 City of Albuquerque, New Mexico, municipal bonds in bearer form. The letter and its contents, together with the safe in which they were kept, were stolen from the Jamaica (New York) Post Office on either June 13 or 14, 1970. The safe and portions of the stolen mail, including the letter to the Bache customer, were recovered in New Jersey several days later. The bonds were missing. Nine days later (June 23, 1970) defendant brought those same bonds to the Republic National Bank in New York City and pledged them as security against a $33,000 loan. Defendant told the bank officer there that the securities were part of the estate of his deceased mother; actually she left no securities whatever at the time of her death.
As to the three counts of the criminal information to each of which defendant entered a plea of guilty: Defendant unlawfully transported in interstate commerce from New York to Fort Lee, New Jersey, securities of a value greater than $5,000 on each occasion knowing they were stolen -- count 8, on November 10, 1971 3,800 shares of Chromalloy American Corporation stock; count 9 on December 6, 1971 Virgin Islands bonds valued at $10,000. As to count 10, defendant had in his possession unlawfully the contents of certain mail addressed to the First National Bank, New York City, which had been stolen from a mail route.
B. A general outline of defendant's profile
No dispute exists as to the following: Defendant was born 1915; his father, a school teacher forty years, and mother, a highly-respected housewife, reared their only child in a good home; served as altar boy during adolescence, as a youth, always attended church with mother; graduated in 1937 from one of America's famous colleges.
From 1937-1962 defendant worked steadily in banking and other financial institutions, first in the credit department as a new business representative, then a vice-president in charge of a banking branch office; in the last four years of that period as a vice-president of a large bank where he was put in charge of loans in the New York City area, at a yearly salary of $22,000.
He married in 1942; his three children attended college and lead self-respecting, highly creditable lives. He was divorced in 1969; no bitterness or ill-feeling ensued. His wife claims he always was a good provider, that she "did not grow with him" in that she failed to participate in the social aspects attached to his employment, knew little of his business affairs and hardly anything of his financial holdings.
Haggett's prototype makes a frequent appearance in our Court; let it be distinctly understood that he certainly is not atypical in making substantial inroads upon the ...