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DUKE v. UNITED STATES

May 20, 1975

Alfred DUKE, Petitioner,
v.
UNITED STATES of America, Respondent


Irving Ben Cooper, District Judge.


The opinion of the court was delivered by: COOPER

IRVING BEN COOPER, District Judge.

Petitioner Duke moves, pursuant to 28 U.S.C. § 2255, to vacate the sentence imposed by this Court upon a judgment of conviction entered against him.

 On October 1, 1971 Duke was charged in a three-count indictment, 71 Cr. 1135, with conspiracy, bank embezzlement, and bank robbery in violation of 18 U.S.C. §§ 371, 656 and 2113(b) respectively. He was tried before this Court and a jury and convicted on all three counts on April 12, 1972. On May 10, 1972 we committed him for a ninety-day study pursuant to 18 U.S.C. § 4208(b). Upon receipt and careful consideration of the results of that study, the Court, on August 23, 1972, sentenced Duke to five years imprisonment on each count, the sentences to run concurrently. Duke's conviction was affirmed without opinion. *fn1"

 Duke raises two claims in his present petition. First, he alleges the Court erred by denying him and his attorney access to any presentence report which the Court considered. Second, that the Court when imposing sentence relied on misinformation of constitutional magnitude by taking into consideration convictions incurred while Duke was a juvenile and unrepresented by counsel.

 1. Duke's protest

 Duke's first claim, that the sentence should be vacated because he was denied access to the pre-sentence reports, is without merit. Although there is authority in support of general disclosure of pre-sentence reports made by probation offices, such disclosure under Fed.R.Crim.P. 32(c)(2) rests in the sound discretion of the sentencing Judge to be exercised on a case-by-case basis. United States v. Brown, 470 F.2d 285 (2d Cir. 1972). The Court in Brown ruled that although a blanket policy of refusing to disclose pre-sentence reports would run afoul of Rule 32(c)(2), (since "that is not an exercise of discretion on an individual basis"), the disclosure requirements of Rule 32(c)(2) would be satisfied where the sentencing Judge revealed to the defendant or his counsel the substance of the pre-sentence report. Id. at 288. See, United States v. Virga, 426 F.2d 1320 (2d Cir. 1970); United States v. Holder, 412 F.2d 212 (2d Cir. 1969).

 In the present case, the Court's practice clearly complied with Brown, Virga and Holder, supra. After denying defense counsel's application to review the pre-sentence report (Tr. 438-39), *fn2" we stated:

 
And so the application to examine the confidential report in this case is denied, but by the time I get through reciting what I am going to recite, the defendant will have before him the most important feature of the total material considered by the Court; so that as a matter of discretion and policy, I am denying the application, but on my own I am imparting the essential features which I took into consideration. (Tr. 439)

 We then proceeded to read into the record substantial extracts from three different probation reports, thereby divulging "significant portions" (Tr. 439) of a report made by the United States Probation Office for the District of New Jersey ("New Jersey report") after Duke there pleaded guilty to a one count indictment charging him with wire fraud. (Tr. 439) *fn3" The specifics of the charge against Duke were placed on the record:

 
The one-count indictment charges that on or about October 6, 1969, the defendant and co-defendant devised a scheme to obtain money by means of false and fraudulent pretense, through the sale of four hundred shares of American Cyanamid Co. common stock, which stock certificates had been stolen. They transmitted by telephone in interstate commerce from New York, New York, to Newark, New Jersey, to collect the proceeds from the sale of the stolen stock certificates.
 
On or about January 3, 1969, a large amount of American Cyanamid stock certificates and IBM stock certificates were stolen from the office of Merrill Lynch, Pierce, Fenner & Smith, Inc., New York.
 
At the time, the defendant, Albert Duke, was employed by Merrill Lynch; the stock certificates were stolen from an area wherein Duke worked.
 
In late August or early September 1969, the co-defendant was introduced to Duke through a mutual friend. At the time, White -- that is the co-defendant -- was seeking a means of making money. Duke instructed the co-defendant to open various accounts in the co-defendant's name in brokerage firms, both in New York City and New Jersey. Duke further advised White and [sic] White would receive twenty-five per cent of the moneys to be realized from the sale of the stocks. The remaining seventy-five per cent of the moneys were to be paid to Duke. (Tr. 439-440)

 2. Duke's juvenile record

 We turned next to set out Duke's background as portrayed in the New Jersey report. Our outline revealed Duke's juvenile record (he was born February 25, 1946):

 
1955, he was brought into court; the matter was adjusted.
 
1957, again for juvenile delinquency. The charge was dismissed. He was charged on that occasion of breaking into a school building and causing damage amounting to a thousand dollars.
 
Again in 1957, juvenile delinquency. In that instance, the defendant, with four other youths, broke into a school building and stole twelve dollars in currency. He was placed on probation. Discharged November 15, 1957 with an unfavorable adjustment.
 
In 1958, February, again juvenile delinquency, with loitering around a junior high school building in Harlem and throwing a chair at a teacher. Petition dismissed.
 
In March of 1958, juvenile delinquency, assaulting a teacher inside a school building. He was in that case placed on probation, discharged on December 1, 1958, with an unfavorable adjustment.
 
In January of 1959, assault. At that time, he was charged with assaulting a teacher with a leg of a chair. Placed on probation, discharged February 1, 1960.
 
In 1963, robbery and assault. He and another were charged with being armed with a pistol and mugging a bank guard, stealing a knife, cigarette lighter, a wristwatch, seventy dollars and a pistol.
 
Later the same day, they mugged another man, from whom they stole a wristwatch and thirty dollars. The sentence, committed September 26, 1963, for five year term, served at Great Meadows Correctional Institutional [sic] Comstock, New York. (Tr. 441-442)

 We need not ask ourselves what official inquiry was made concerning this defendant when, long before attaining his majority, he was arrested, rearrested and convicted on several occasions for behavior of a serious nature, tantamount to felonious conduct if committed by an adult. For so inadequate were the professional services available then and there, and so negative his cooperation, that the disposition of his cases -- his challenges -- were in effect addressed exclusively to the offenses charged. It may have been that no proper inquiry was made on any occasion as to who he really was. Why did he commit his act? What was there in his experience to turn him criminal? What of his home, his relations with parents, siblings and neighbors? With social institutions? With peer groups? With friends and boon companions? Who influenced him and after whom did he mold himself? What variety of activities did he participate in? Most important of all, what variety of opportunities was open to him? Did he participate in his culture? What interests did he then have? What skills? Whom did he love or hate? Inadequate answers to these and related questions posed the dilemma of his future deportment. In all likelihood, nothing was done to prevent reinfection by a truly therapeutic and creative supervision.

 The courts before which he then made his appearance were generally without the essential tools for making an appropriate disposition for both defendant and community. In the main they still are. We pay dearly for injecting "bigness" into the house of the law. Said Judge Learned Hand, "If we are to keep our democracy, there must be one commandment -- thou shalt not ration justice." After all, a legally established degree of offense is an unsatisfactory index of moral potential; in many cases the sickness of the soul that induced the crime is not cured by a fine or imprisonment.

 It is in those courts that, with adequate professional services, early identification of the determined offender can be made, and lessen (if not avoid) the period of suffering for the community while he is establishing his intention by a long series of unreported, unrecognized and unpunished offenses. The stake which the community has in the potential recidivist is that he should not actually become one. Ineptitude in their treatment can go far in miseducating an entire generation. It is among the tragic limitations of our humanity that ...


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