United States v. Jerry Grabina, 309 F.2d 783 (2d Cir. 1962). · Go Syfert
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United States v. Jerry Grabina, 309 F.2d 783 (2d Cir. 1962). Cases Citing This Book View Copy Cite
43 citation events (2 in the last 25 years) across 23 distinct courts.
Treatment trajectory · 1962 → 2026 · click a year to view as-of
1962 1994 2026
Top citers, strongest first. 12 distinct citers. How cited ↗
discussed Cited as authority (rule) United States v. Ageloff
E.D.N.Y · 2011 · confidence medium
Finally, Ageloff argues that the delay in re-sentencing him on restitution violates the requirement of Federal' Rule 32(b)(1) that the district court “impose sentence without unnecessary delay.” In order for a delay in sentencing to violate Rule 32(b)(1), Ageloff must demonstrate that the delay was “purposeful and oppressive, or even smack[s] of deliberate obstruction on the part of the Government,” United States v. Grabina, 309 F.2d 783, 786 (2d Cir.1962), cert. denied, 374 U.S. 836 , 83 S.Ct. 1885 , 10 L.Ed.2d 1057 (1963), but the delay in this case cannot conceivably be so character…
discussed Cited as authority (rule) Commonwealth v. Blake
Mass. · 2009 · confidence medium
He cites Commonwealth v. McInerney, 380 Mass. 59 (1980), where this court was asked to decide whether there exists a constitutional right to speedy sentencing, under the Sixth Amendment to the United States Constitution or art. 11 of the Massachusetts Declaration of Rights. 12 In that decision, the court acknowledged a line of Federal decisions that “treat the right to prompt sentencing as similar in most respects to the constitutional right to a speedy trial.” Id. at 64-65 , citing Pollard v. United States, 352 U.S. 354 (1957); United States v. Campisi, 583 F.2d 692, 694 (3d Cir. 1978) (f…
cited Cited as authority (rule) Commonwealth v. McInerney
Mass. · 1980 · confidence medium
United States v. Grabina, 309 F.2d 783, 786 (2d Cir. 1962), cert. denied, 374 U.S. 836 (1963).
discussed Cited as authority (rule) White v. Henderson
S.D.N.Y. · 1979 · confidence medium
See, e. g., United States v. Campbell, 531 F.2d 1333, 1335 (5th Cir. 1976); Juarez-Casares v. United States, 496 F.2d 190, 192 (5th Cir. 1974); United States v. Tortorello, 391 F.2d 587, 589 (2d Cir. 1968); see also Welsh v. United States, 348 F.2d 885, 887 (6th Cir. 1965); United States v. Grabina, 309 F.2d 783, 786 (2d Cir. 1962).
discussed Cited as authority (rule) Erbe v. State (2×)
Md. · 1976 · confidence medium
Cases following the view that in order to constitute a violation of the rule purposeful or oppressive delay must be found include Juarez-Casares v. United States, 496 F. 2d 190, 192 (5th Cir. 1974); United States v. Tortorello, 391 F. 2d 587, 589 (2d Cir. 1968); Welsh v. United States, 348 F. 2d 885, 886-87 (6th Cir. 1965); United States v. Grabina, 309 F. 2d 783, 786 (2d Cir. 1962), cert. denied, 374 U. S. 836 (1963); and Lott v. United States, 309 F. 2d 115,122 (5th Cir. 1962), cert. denied, 371 U. S. 950 (1963).
discussed Cited as authority (rule) United States v. Dabney
E.D. Pa. · 1975 · confidence medium
Decisions of Courts of Appeals have been uniform in holding that a District Court Judge may not consider a motion to reduce sentence under Rule 35 during the pendency of appellate proceedings, United States v. Burns, 446 F.2d 896, 897 (9th Cir. 1971); United States v. Grabina, 309 F.2d 783, 785 (2d Cir. 1962), cert. den. 374 U.S. 836 , 83 S.Ct. 1885 , 10 L.Ed.2d 1057 .
discussed Cited as authority (rule) Walter Martin, Jr. v. United States (2×)
8th Cir. · 1975 · confidence medium
See Berman v. United States, 302 U.S. 211, 214 , 58 S.Ct. 164 , 82 L.Ed. 204 (1937); Keyser v. Farr, 105 U.S. 265 , 266, 26 L.Ed. 1025 (1882); United States v. Liddy, supra at 686-688 (MacKinnon, J., dissenting); United States v. Grabina, 309 F.2d 783, 785 (2nd Cir. 1962), cert. denied, 374 U.S. 836 , 83 S.Ct. 1885 , 10 L.Ed.2d 1057 (1963). 46 The majority disposes of this contention by declaring that it "question(s) the applicability" of that settled law to this case because the civil proceeding was "entirely separate" from the prior criminal conviction.
examined Cited as authority (rule) United States v. George Gordon Liddy (4×)
D.C. Cir. · 1975 · confidence medium
To this end it is in accord with considerable case law ordering prompt delivery to prison authorities of one sentenced to confinement, see, e.g., O'Neil v. State, 134 Ala. 189 , 32 So. 667 (1902); State v. Couture, 156 Me. 231 , 163 A.2d 646 (1960); Ex parte Ervin, 266 P.2d 984 (Okl.Cr.App.1954), and prohibiting unnecessary delay in the imposition of sentence, e.g., Juarez-Casares v. United States, 496 F.2d 190, 192 (5th Cir. 1974); United States v. Grabina, 309 F.2d 783, 786 (2d Cir. 1962); People ex rel.
discussed Cited as authority (rule) United States v. Robert L. MacK United States of America v. Harold L. Johnson
D.C. Cir. · 1972 · confidence medium
E. g., Berman v. United States, 302 U.S. 211 , 58 S.Ct. 164 , 82 L.Ed. 204 (1937); United States v. Grabina, 309 F.2d 783, 785 (2 Cir.), cert. denied, 374 U.S. 836 , 83 S.Ct. 1885 , 10 L.Ed.2d 1057 (1962).
discussed Cited as authority (rule) United States v. Herbert A. Ellenbogen
2d Cir. · 1968 · confidence medium
Berman v. United States, 302 U.S. 211 , 58 S.Ct. 164 , 32 L.Ed. 204 (1937); United States v. Habib, 72 F.2d 271 (2 Cir. 1934); United States v. Grabina, 309 F.2d 783, 785 (2 Cir. 1962), cert. denied 374 U.S. 836 , 83 S.Ct. 1885 , 10 L.Ed.2d 1057 (1963).
cited Cited "see" Joseph A. Miller v. Felix Rodriguez, Acting Warden, New Mexico State Penitentiary
10th Cir. · 1967 · signal: see · confidence high
See United States v. Grabina, 309 F.2d 783 (2d Cir. 1962).
cited Cited "see, e.g." Jones v. Ellsworth
D. Mont. · 1965 · signal: see also · confidence low
See also United States v. Grabina, 2 Cir., 309 F.2d 783 , and cases in footnote 170, U.S.C.A.
Retrieving the full opinion text from the archive…
UNITED STATES of America, Appellee,
v.
Jerry GRABINA, Appellant
155, Docket 27787.
Court of Appeals for the Second Circuit.
Nov 13, 1962.
309 F.2d 783
Irving Younger, New York City, for appellant., John W. Mills, Asst. U. S. Atty. (Vincent L. Broderick, U. S. Atty., and Sheldon H. Elsen, Asst. U. S. Atty., on the brief), for appellee.
Lumbard, Swan, Moore.
Cited by 37 opinions  |  Published
SWAN, Circuit Judge.

On May 10, 1960, appellant was convicted after trial before Judge Bicks and a jury. [1] His conviction was affirmed on October 26, 1961, United States v. Grabina, 2 Cir., 295 F.2d 792. The present appeals concern only questions of sentencing. Four sentences have been successively imposed upon appellant, and he has been imprisoned thereunder since the date of his conviction. In the present appeals he contends that each of the four sentences was invalid, and that imposition of a valid sentence after such long delay would be so oppressive that he should be released from further incarceration.

The first sentence was imposed by Judge Bicks on May 10, 1960, pursuant to 18 U.S.C.A. § 4208(b). [2] It committed[*785] Grabina to the custody of the Attorney General for imprisonment “on counts 1 and 2 pursuant to Section 4208(b) of Title 18, U.S.Code, for study, report and recommendations as described in Section 4208(c).” This was a commitment for the maximum term of 15 years subject to reduction after receipt by the court of the report and recommendations. On November 9, 1960 Judge Bicks “altered” the term of imprisonment to 7% years on count 1, suspended imposition of sentence on count 2, and placed the defendant on unsupervised probation on count 2 for a term of 5 years to commence when incarceration under count 1 shall have expired.

The sentence of November 9, 1960 was invalid because Grabina was not present when it was imposed and was not afforded allocution as required by Rules 32(a) and 43 of the Federal Rules of Criminal Procedure. See Green v. United States, 365 U.S. 301, 304, 81 S.Ct. 653, 5 L.Ed.2d 670. This defect was not presented on Grabina’s appeal from conviction, which this court affirmed. It' was raised, however, by a motion for rehearing presented by Grabina, acting pro se, on November 15,-1961. The motion was denied without opinion. He then sought and obtained a writ of certiorari. On April 16, 1962, the Supreme Court vacated the judgment and remanded the case to the District Court for resentencing. Grabina v. United States, 369 U.S. 426, 82 S.Ct. 880, 8 L.Ed.2d 7.

On May 24, 1962 Grabina was brought before Judge Bicks, was afforded allocution and was sentenced to 5 years imprisonment from May 10, 1960 on count 1 of the indictment. The imposition of sentence on count 2 was suspended, and the defendant was placed on probation on count 2 on the same terms as in the order of November 9, 1960. An appeal taken from the order of May 24, 1962 was perfected by filing the record in this court on July 3. This is the first of the three consolidated appeals before us.

On June 1, 1962 Grabina moved for his release from custody, claiming that the sentence of May 24, 1962 was illegal and had been unreasonably delayed. The motion was referred to Judge Ryan who made an order purporting to vacate all prior sentences and to impose a sentence of 18 months imprisonment to commence on July 16, 1962. The order was entered July 24, and an appeal was taken. This is the second of the consolidated appeals.

On July 27, 1962 Grabina petitioned the District Court for a writ of habeas corpus to obtain his discharge from further custody. This was denied by Judge Ryan on August 7, 1962. The appeal from this order is also before us.

Appellant argues, and the Government’s brief concedes, that Judge Ryan’s order entered on July 24, is invalid. It obviously is. Before it was made, the appeal from the order of May 24, the third sentence, had been perfected. Consequently the District Court lacked power to change the third sentence. Berman v. United States, 302 U.S. 211, 58 S.Ct. 164, 82 L.Ed. 204; United States v. Habib, 2 Cir., 72 F.2d 271. Consequently the order of July 24 must be reversed. It was a nullity and left the sentence of May 24 in effect, if valid. We hold it is valid.

Appellant’s attack upon that sentence is highly technical. The order adjudged that the period of imprisonment imposed on May 10, 1960 be “altered.” Appellant argues that because the Supreme Court on April 10, 1962 vacated the judgment and remanded for resentencing, there was no sentence extant which could be “altered.” This appears to be a mere play upon words. [3] Judge Bicks’ order of May 24, 1962 demonstrates his awareness of and compliance with the mandate of the Supreme Court. He reduced the sentence on count 1 to 5 years, suspended[*786] the sentence on count 2 and left the provisions the same as they were in the order of November 9, 1960. In short, the order of May 24 was a resentencing as ordered by the Supreme Court.

The argument that appellant is entitled to be released from further incarceration relies in part on the Sixth Amendment: “In all criminal prosecutions, the accused shall enjoy the right to a speedy * * * trial”; on Rule 32(a) Federal Rules of Criminal Procedure: “Sentence shall be imposed without unreasonable delay * * * ”; and on Pollard v. United States, 352 U.S. 354, 361-362, 77 S.Ct. 481, 1 L.Ed.2d 393. However, appellant rightly recognizes that passage of time alone may not bar imposition of sentence or require a defendant’s discharge. [4] He recognizes also that the Pollard decision teaches “that the delay must partake of the purposeful and oppressive, or even smack of deliberate obstruction on the part of the Government, before relief will be granted.” [5] He then proceeds to argue that the circumstances at bar are evidence of purposefulness and oppression by the Government. The argument is completely unpersuasive. It is from Grabina’s petition for rehearing on November 15, 1961 that the prosecution’s “purposeful” delays are alleged to have begun. Not until April 16, 1962 did the Supreme Court vacate the judgment and remand for resentencing. Its mandate was not filed until May 9, 1962 and the third sentence was entered on May 24. Finally it is contended that the imposition of the fourth sentence by Judge Ryan on July 24, 1962 placed Grabina twice in jeopardy for the same offense contra to the Fifth Amendment to the Constitution. Since appellant himself has contended that the court lacked jurisdiction to impose the fourth sentence and we have agreed with him we fail to grasp the argument that a void sentence can place him in jeopardy. See Hayes v. United States, 102 U.S.App.D.C. 1, 249 F.2d 516.

Order of May 24, 1962 affirmed; order of July 24, 1962 reversed; order of August 7, 1962 affirmed.

1

. The indictment contained two counts, one charging possession and concealment of counterfeit Federal Reserve Bank notes, contra 18 U.S.C.A. § 472, the other conspiracy so to do, contra 18 U.S.C.A. § 371.

2

. Section 4208 (b): “If the court desires more detailed information as a basis for determining the sentence to be imposed, the court may commit the defendant to the custody of the Attorney General, which commitment shall be deemed to be for the maximum sentence of imprisonment prescribed by law, for a study as described in subsection (c) hereof. The results of-such study, together with any recommendations which the Director of the Bureau of Prisons believes would be helpful in determining the disposition of the case, shall be furnished to the court within three months unless the court grants time, not to exceed an additional three months, for further study. After receiving such reports and recommendations, the oourt may in its discretion: (1) Place the prisoner on probation as authorized by section 3651 of this title, or (2) affirm the sentence of imprisonment originally imposed, or reduce the sentence of imprisonment, and commit the offender under any applicable provision of law. The term of the sentence shall run from date of original commitment under this section.”

3

. It may be noted that the sentence of November 9,1960 used the word “altered” in reducing the first sentence imposed on May 10, 1960.

4

. See Mr. Justice Black’s statement in Bozza v. United States, 330 U.S. 160, 166-167, 67 S.Ct. 645, 649, 91 L.Ed. 818:

“This Court has rejected the ‘doctrine that a prisoner, whose guilt is established, by a regular verdict, is to escape punishment altogether, because the court committed an error in passing the sentence.’ [citation omitted] The Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner”.
5

. The quotation is from page 11 of appellant’s brief.