Appeal from a judgment of the United States District Court for the Eastern District of New York, Jacob Mishler, Chief Judge, sentencing appellant to a five-year term of imprisonment for violation of 18 U.S.C. § 2113(a), which makes it a crime to enter a bank with intent to commit a felony. A mistaken remembrance of the evidence by the judge and inaccuracies in the presentence report are complained of as distorting the sentencing judgment.
Moore, Feinberg and Oakes, Circuit Judges.
This appeal seeks a remand for resentencing on the basis that the sentencing judge mistakenly believed that the appellant had lied under oath at his trial and that the presentence report contained errors of fact and carried what appellant calls a misleading "ambience." Appellant was originally tried for attempting to rob a bank, 18 U.S.C. § 2113(a),*fn1 but the jury failed to agree on a verdict. He then pleaded guilty to a second count on a superseding indictment charging him with entering the bank with "intent" to commit a felony, in violation of the second paragraph of § 2113(a), note 1 supra. A judgment of conviction was duly entered in the United States District Court for the Eastern District of New York, Jacob Mishler, Chief Judge, and appellant was sentenced to five years' imprisonment. We affirm.
Appellant's first point is that in imposing sentence Judge Mishler erroneously believed that Herndon had lied in insisting that he had not pulled a gun or used intimidation, that the jury had known he was lying and that Herndon had in fact "had a gun and pointed it." It is contended that the judge assumed that Herndon had "put people in fear of their lives," when, in fact, Herndon had testified at his trial that he had neither pulled out the toy pistol found in his possession when he was apprehended outside the bank nor threatened harm to anyone. This, however, was in the face of the testimony of a bank guard who claimed that Herndon had indeed pulled the gun out inside the bank and said, "This is a stick up. Give me all the money or I'll blow your head off."
Our reading of the record reveals that Judge Mishler well remembered what Herndon's testimony was at the trial.*fn2 At the same time he very clearly did not believe Herndon's testimony. The judge specifically stated, however, that he was not going to increase the sentence because he thought Herndon had lied. Recalling United States v. Hendrix, 505 F.2d 1233 (2d Cir. 1974), where the sentence was affirmed despite the express addition of two years to the sentence for perjury during the trial,*fn3 Judge Mishler explicitly and unequivocally stated: "I am not going to do that here. I am just going to sentence him on the crime that he committed." We do not go behind or beyond the judge's statement; the references to the appellant's supposed lying are easy to explain without assuming that the judge was less than candid. On the first two occasions it was plainly in response to defense counsel's repeated comments on the inaccuracy of the presentence report, note 2 supra, and its reference to admitting "attempted robbery" while denying use of the fake gun. It is true that the judge himself brought it up on the third occasion, but this was after a rather long and somewhat argumentative discussion of the factual discrepancies in the presentence report, and there was an extended colloquy along the previous lines. One can only wonder whether at this point the judge was simply ruminating over the seeming inconsistency between admitting to entry of a bank with intent to committing a felony and denying any attempt to rob it, an inconsistency extrapolated from the rather confusing, overlapping statute, note 1 supra.
Appellant's second point is that the sentence was based upon erroneous information which requires that it be set aside under Townsend v. Burke, 334 U.S. 736, 92 L. Ed. 1690, 68 S. Ct. 1252 (1948), and United States v. Malcolm, 432 F.2d 809 (2d Cir. 1970). See also United States v. Brown, 479 F.2d 1170, 1173 (2d Cir. 1973). The basis for this claim is that the court stated that the jury "realized that Herndon lied" while the jury had never returned a verdict of guilty or given any other indication of disbelief. But what the judge was saying was that he thought that most of the jury disbelieved Herndon. He was fully aware that the jury had hung, because the very statement of counsel, Ms. Seltzer, immediately prior to this statement by the court was "Your Honor, you know that we had a hung jury." True, Judge Mishler may have been mistaken as to how the jury had stood. He had said, "There were 11 people who disagreed with you," but prosecution and defense counsel each offer a different version of the jury's standing. We do not take these into account, however; as Judge Mishler expressly said, we "hold no stock whatsoever in what jurors believe, not at all, just the verdict."
Finally, appellant points to a number of errors in the presentence report both as to specific facts and, as appellate counsel neatly puts it, in "ambience." The specific facts, other than the "attempted robbery" matter dwelled on at length above, are said to include statements that Herndon had a $35 a week cocaine addition, only one verifiable prior employment, a brother-in-law with a criminal record, and a mother who had been a prostitute.*fn4 In fact, counsel pointed out, Herndon had not taken drugs since his arrest (although he had for several years prior thereto), had at least one more readily verifiable prior job, the man with the criminal record was not his but his sister's brother-in-law, and his mother had not been a prostitute but rather had simply had relationships with several men. But each of these errors was fully called to the sentencing judge's attention by diligent trial counsel and there is no indication whatsoever that in imposing sentence the court relied on any of the inaccuracies referred to.
As to the overall "ambience" of the presentence report - its fairness or "slant" - defense counsel made the court quite aware of the true situation and the court responded with that awareness in the following colloquy at the sentencing hearing:
Ms. Seltzer: ... Mr. Herndon says that his mother was not a prostitute. That was his description of her. He said that she just fell in and out of love many times.
The Court: I think it is a slur.
You have just pointed out the facts that you feel are inaccuracies.
These two facts are just their way of trying to express an opinion.
Now you have to have some confidence in the ability of the Judge to deal with what ...