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July 9, 1981

Andrew BUTZ, Defendant

The opinion of the court was delivered by: COOPER

In well-prepared papers supporting his application of May 14, 1981 pursuant to Rule 35, Fed.R.Cr.P., defendant Butz urges us to reduce the sentence we imposed upon him on June 9, 1980. Applications which fall within the orbit of the remedy sought by this defendant are of extreme importance. While it is only natural for a defendant, convicted by plea or verdict, to seek relief of the burden or deprivation which a sentence imposes, his application must not be given short shrift.


This court has had more than a nodding acquaintance with persons convicted of crime, the effects of different types of sentences imposed, the utilization of concepts of rehabilitation, the significance of cooperation with the Government, etc., etc. *fn1" During four decades of judicial service, we have tirelessly fought throughout the country for the application of extreme care and sensitive understanding to each sentence imposed. It must be recognized that

Much harm is done by the myth that, merely by putting on a black robe and taking the oath of office as a judge, a man ceases to be human and strips himself of all predilections, becomes a passionless thinking machine.... We are born with predispositions.... Only death yields complete dispassionateness, for such dispassionateness signifies utter indifference.... Impartiality is not gullibility. Disinterestedness does not mean child-like innocence.

 In re Linahan, Inc., 138 F.2d 650, 651-54 (2d Cir. 1943) (Frank, C.J.)

 Indeed, in the pursuit of our judicial mission, hardly a day passes without the forceful reminder of Mr. Justice Holmes (The Common Law p. 1) that "The life of the law has not been logic: it has been experience."

 The indictment herein filed on November 29, 1979 contains three counts. Butz and his two co-defendants Panica and Rocco were charged in Count One with conspiring to distribute and to possess with intent to distribute heroin and methaqualone, in violation of Title 21, U.S.C. § 846. Counts Two and Three charged the three defendants with distributing and possessing with intent to distribute approximately 3,418 and 1,974 tablets of methaqualone on December 28, 1978 and April 13, 1979 respectively, in violation of Title 21, U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(B).

 The trial lasted nine days. By its verdict rendered on April 25, 1980, the jury found each defendant guilty on each count.

 Prior to trial a second offender information was filed charging that Butz had been convicted on December 16, 1958 in the Southern District of New York of selling and conspiring to sell heroin; that he had been sentenced on that same day to a term of five years imprisonment on each count, the sentences to run concurrently.

 The testimony of four agents of the Drug Enforcement Administration, two of whom worked in an undercover capacity, and an informant, together with tape recordings, established that the three defendants conspired to sell both heroin and methaqualone ("quaalude"); that they sold the 3,418 quaalude tablets for $ 6,000 and the 1,974 tablets for $ 2,000. On each occasion Butz was the source of the drugs sold to the undercover agents; Rocco assisted in their delivery and Panica made the actual transfers.

 For good and sufficient reason, trial counsel for Butz was unable to continue after the rendition of verdict. At the defendant's request, counsel was appointed to represent him. He was sentenced as a second felony offender.

 Butz's sole claim on appeal was that we abused our discretion by sentencing Butz before the trial transcript had been prepared and his new counsel had an opportunity to examine it, thus preventing "substantial argument" that Panica, not Butz, was the most culpable defendant. We observed at the time of sentence already considerably delayed that the transcript would take six weeks to prepare; that counsel had in his possession 3500 material and other vital data which covered the point quite exhaustively and clearly pointed up that his complaint was empty of substance.

 As later revealed by the transcript, we were satisfied that the "substantial argument" would prove of no avail and denied the application, promising to correct the sentence imposed if counsel found that the transcript reflected anything helpful to his client in that regard.

 It was a matter of discretion for the trial judge provided substantial prejudice to Butz was avoided. Ungar v. Sarafite, 376 U.S. 575, 589, 591, 84 S. Ct. 841, 849, 850, 11 L. Ed. 2d 921 (1964); Avery v. Alabama, 308 U.S. 444, 446, 60 S. Ct. 321, 322, 84 L. Ed. 377 (1940); United States v. Ellenbogen, 365 F.2d 982, 985 ...

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