The opinion of the court was delivered by: COOPER
Having served two (2) years of a sentence of twenty-three years which we imposed on April 14, 1978, defendant presents us with his application for a reduction of sentence, Fed.R.Crim.P. 35; or, in the alternative, for establishment of a minimum term at the expiration of which he will be eligible for parole, 18 U.S.C.A. § 4205(b)(1); or a maximum term after which he may be released on parole, 18 U.S.C.A. § 4205(b)(2).
The defendant was indicted on October 26, 1977 for extortion, obstruction of justice and income tax offenses. The trial by jury commenced January 16, 1978 and concluded with a verdict of guilty on all seven counts on February 6, 1978 (maximum jail term 40 years). He was remanded for sentence and has been confined ever since.
Besides the jury verdict that the defendant was guilty of extortion, income tax evasion and obstruction of justice, we should point out that the evidence adduced at trial supported the Government's insistence that the defendant made threats of murder to collect a usurious loan; that he engaged in substantial tampering with both the grand jury and trial processes; that his income tax returns were filled with false assertions of a material nature which substantially reduced the income tax due, and that his illegal sources of income included loansharking and prostitution as well as extortion.
Defendant's conviction was affirmed by our Circuit Court of Appeals on May 13, 1979 (2 Cir., 595 F.2d 1247); petition for certiorari was denied by the Supreme Court of the United States on November 13, 1979 (444 U.S. 955, 100 S. Ct. 435, 62 L. Ed. 2d 328).
Defendant's claim of rehabilitation and contrition
In support of his application, the defendant emphasizes his "exemplary" record of deportment during the first two years of the sentence we imposed including his observance of all penitentiary rules and regulations and his conscientious fulfillment of all work assignments for which he has received high commendation from prison personnel. In support of this, he calls our attention to memoranda filed by responsible members of the staff connected with the penitentiary describing the defendant as: "cooperative and polite with a pleasant and cheerful attitude and personality"; "dependable"; "His duties (as hospital orderly) are the cleanliness of various offices and sanitation in general. . . . I found him most cooperative with both inmates and staff . . . a good positive attitude. . . . has voluntarily performed other work"; "He has made several suggestions which improved the maintenance of this hospital." Drawing on several such reports, the progress report of defendant's case manager dated November 1979 includes the view that the defendant is: "an excellent worker, who utilizes initiative in his ability to perform his duties under minimum supervision." The progress report further notes: "Tentative Release 06-05-93" and concludes: "At this juncture, the A-West Unit Team respectfully requests that Mr. Ochs be granted parole at his parole eligibility date, with his release to be facilitated through a community treatment facility, upon his qualification. . . ."
In his hand-written letter to us received March 21, 1980 (made a part of the papers on this application), defendant proclaims: "I now ask to be judged by American standards of fairness." He complains that each and every one of the sentences he ever received were harsh and severe; that some of his actions in the early part of his criminal career are not regarded as criminal today; he blames himself for bringing grief to his family stating that: "because of my stupid silly acts. . . . I well realize the error of my ways and the manner that I have wasted my life. . . . I broke the laws of society for which no one is as sorry as I am."
Based solely on what we have so far generally recited, defendant's counsel urges us to consider: "(Movant) (has made) progress during his already lengthy period of incarceration." Memorandum of Law On Behalf of Defendant-Movant In Support of Motion for Modification of Sentence, p. 1 (hereinafter Movant's Memorandum). "Movant failed in the past because he was unable to accurately assess the nature and quality of his conduct with a meaningful understanding of the tenets of good and evil." Id. at 2. "(Defendant) made a positive adjustment in prison. . . ." Id. at 3. "(Defendant) has demonstrated a commitment to self-improvement and adjustment." Id. at 5. "(H)is positive adjustment over a period of two years in prison indicates that he poses no present danger to society and . . . he need not be so severely punished to be deterred from future anti-social conduct." Id. at 7. "Movant's spirit should not be buried beneath a sentence which . . . (does not) encompass the ability of the man to grow and change." Id. at 7-8. "(Defendant has a) real desire to assume an honest and earnest position in society upon his release." Id. at 8. "Movant has demonstrated a strong and determined effort to rehabilitate himself. . . . (Defendant) has essentially reformed himself. . . ." Id. at 13. "(Defendant's) celerious rehabilitation appeared to be in the realm of the miraculous." Id. at 16. "(M)ovant's progress has exceeded all of the Court's expectations." Id. at 17. "(H)e has made persuasive progress. . . ." Id. at 18. "(Defendant) has effected a complete reversal of the inertia which grasp (sic) him at age 16 and carried him through 32 years of lost life. . . . It is . . . necessary to reassess (him) . . . in light of his new attributes." Id. at 20.
At sentence we were confronted with a criminal behavior pattern we regarded shocking and repugnant to an offensive degree. We spoke plainly to the defendant in open court, employing language he would understand:
I told you . . . that I have been a judge for almost forty years. . . . I have seen the agony, the distress, the horror, the filth, as well as the glory of human behavior.
It's easy for someone to say, "Throw the book at him," or "He's no damned good; let him rot," "Boil him in oil." I hear that all the time, even long before a person has actually been found guilty.
So I must ask myself, on the state of this record, just as the surgeon must ask himself on the basis of . . . x-rays and . . . tests, what do we do? Is a 20-inch incision imperative or can we do it with less? What is best for this patient? And so we ask ourselves what is best not only for this defendant but for the community?
I would be less than frank, Ochs, if I (did not tell) you that you have been your own worst enemy; that almost from the time you were a boy you were saturated with a sort of hatred for law and order. Whether at that time you could have been disengaged, so to speak, from harboring thoughts that led to your own downfall I don't know, but look at the record of your deportment, the periods of incarceration, and yet, as though it were a heavy drug, you have been unable to throw it off. You go forward with the same antisocial attitude that you had from the very beginning as a boy.
You are not a drug-user or a drug-seller, and yet when I look at those unfortunates who are the victims of it, I find that they too have an enormous burden that they can't shake. You have the equivalent. Every molecule of you, so to speak, is against authority. You have never been won over and (while) I can't say that it's too late, . . . (there is little chance) of your straightening yourself out and seeing what it means to be a person of self-respect, an American citizen who can walk straight and unafraid. I think the chances of getting you to subscribe to that are very, very meager. It's unfortunate, but who is to root it out of you?
I deplore the predicament in which you find yourself, but like the surgeon, he too deplores the pain, the aches, the almost helplessness of the patient, and yet he must operate.
There is nothing personal about this. It's the same judge who was on the bench forty years ago. . . . "I want to know who the defendant is. I want more than what he did."
Although it's been my lot to be a judge all these years, . . . this case has given me as much concern as any case ever did. This business of growing hard and callous, it all depends on the human being involved. . . .
What is justice for this defendant and for the community?
I won't repeat, Ochs, the many things that have been brought out. You read the probation report yourself, (as did) your lawyer. . . .
Your family is in court and I can't bring myself to go into details. I don't want to give you a lecture. I don't think the lecture would do you any good, and I don't think that the judge means anything to you except insofar as what he is going to, to use the vernacular, "hand out."
I don't think that I have that capacity to influence you, and so, therefore, I don't see any purpose by a recitation of what you have done with your life.
In my book, you have been in moral bankruptcy from the time you were a boy. . . . (H)ow you . . . failed to see that you weren't getting anywhere is beyond me, because you are not a fool. You have a good head. You just didn't put it to use in the right direction.
When you point out to me, as your lawyer has, certain acts of kindness, I don't think I have ever dealt with a human being in all the thousands of cases in which I have participated who was so rotten that there wasn't anything redeemable about him.
You are not totally bad. You are bad. And that was of your own choice. . . . The charges are very serious; they can't be brushed aside.
If a judge can't let law prevail, he has no right to be a judge. If he hasn't got what it takes to stand up and say "This I believe in. This I do. And I go this way and not that way," he shouldn't be a judge.
I am not here to determine whether or not you slashed somebody else unless there has been proof that is quite convincing to me. If I thought that that was your method of behavior, I'd give you every day that the twenty years' maximum prescribes, and don't fool yourself about that. If that was your way of life, if that was your hallmark, you'd go away for twenty years on that one.
(T)he court has it within the Court's power to send you away for forty years and make no remarks at all, there is nothing in the law that says I have to do anything more than rattle off a time period. I choose to do it so that everybody can know what goes through the judicial noggin in order to arrive at a sentence that has to be meted out, not as a matter of choice, but as a matter of law.
(After) sober reflection and I have had a long time in this case to figure it out and search for what is due and proper the sentence of the Court is (a total of 23 years) . . . .
MR. BLOSSNER (defense attorney): I would ask the court to run those particular sentences concurrently
THE COURT: Mr. Blossner, did you hear the Court speak?
MR. BLOSSNER: I did, your Honor.
THE COURT: Did you think I was just rattling something off, or did you get the impression that the judge meant every word that he uttered?
MR. BLOSSNER: Not only did I realize that the Court meant every word, but I realize that the Court has given it an enormous amount of consideration.
THE COURT: Therefore, you see, your request is out of order. I could have done that without your telling me; it's obvious. I ...