United States v. Tucker/Dissent Blackmun

by Harry Blackmun

United States Supreme Court

404 U.S. 443

UNITED STATES, Petitioner,  v.  Forrest S. TUCKER.

 Argued: Nov. 11, 1971. --- Decided: Jan 11, 1972

Mr. Justice BLACKMUN, with whom THE CHIEF JUSTICE joins, dissenting.

The Court's opinion, of course, is a fine and acceptable exposition of abstract law. If I felt that it fit Tucker's case, I would join it. The Court, however, fails to mention and to give effect to certain facts that, for me, are controlling:

1. At his armed bank robbery trial in May 1953 Tucker was no juvenile. He was 32 years of age and was represented by counsel. A reading of his trial testimony discloses that he was very knowledgeable indeed. Tucker testified on cross-examination at that trial not only as to the fact of three prior state felony convictions, but, as well, as to his engaging in the proscribed conduct underlying two of those convictions. He stated flatly (a) that in 1938 he broke into a garage and took a man's automobile, and (b) that in 1946 he broke into a jewelry store at night. ^[1] He also acknowledged that, while waiting for transportation to prison in Florida after the third conviction, he escaped and went to California using an assumed name. ^[2] Thus, wholly apart from formal convictions, Tucker conceded criminal conduct on his part on three separate prior occasions.

2. The judge who presided at Tucker's pre-Gideon trial for armed bank robbery in 1953 was the Honorable George B. Harris of the United States District Court for the Northern District of California. After Tucker's conviction by a jury Judge Harris imposed the 25-year maximum sentence prescribed by 18 U.S.C. §§ 2113(a) and 2113(d). Despite the interim passage of 16 years, Tucker's present petition, filed pursuant to 28 U.S.C. § 2255, also came before the very same Judge Harris, then Chief Judge of the Northern District. The judge denied relief on the ground that the error in the use, for impeachment purposes, of two constitutionally invalid prior convictions was harmless beyond a reasonable doubt (a) because the issue of guilt or innocence was not at all close, (b) because Tucker's testimony 'had been successfully impeached by prior inconsistent statements made to the Federal Bureau of Investigation agents, and by rebuttal testimony which demonstrated that portions of (his) testimony (were) improbable and untrue,' and (c) because his 'testimony was successfully impeached, and, in fact, demolished by additional items.' 299 F.Supp. 1376, 1378 (ND Cal.1969). As to all this, on the issue of guilt, the Court of Appeals agreed, 431 F.2d 1292, 1293 (CA9 1970), and this Court today does not rule otherwise.

Chief Judge Harris' § 2255 ruling translates for me into something completely inescapable, namely, that in 1953, wholly apart from the 1938 and 1946 convictions, he would have imposed the 25-year maximum sentence anyway. Surely Judge Harris, of all people, is the best source of knowledge as to the effect, if any, of those two convictions in his determination of the sentence to be imposed. Yet the Court speculates that, despite his identity and despite his obvious disclaimer, Judge Harris might have been influenced in his sentencing by the fact of the two prior convictions, rather than by the three criminal acts that Tucker himself acknowledged.

On remand the case presumably will go once again to Judge Harris, and undoubtedly the same sentence once again will be imposed. Perhaps this is all worthwhile and, if so, I must be content with the Court's disposition of the case on general principles. I entertain more than a mild suspicion, however, that this is an exercise in futility, that the Court is merely marching up the hill only to march right down again, and that it is time we become just a little realistic in the face of a record such as this one.

I would reverse the judgment of the Court of Appeals insofar as it remands the case to the District Court for resentencing.

Notes

1. 'Q. . . . You were convicted in Florida, were you not?
2. 'Q. Why did you use the name of Rick Bellew, if you did?

'A. Because I was a fugitive from Florida.

'Q. You were a what?

'A. A fugitive.

'Q. A fugitive from what?

'A. I had been sentenced to a term in Florida for the third conviction that you just brought up, and while waiting transportation to prison I was given a chance to-nobody was watching me, and I walked off down there and came out to California.

'Q. Where did you walk away from?

'A. I was having my appendix removed in the hospital . . ..'

Trial Transcript 166.

'. . . (H)e found me guilty and subsequently I escaped and came out here. . . .' Sentencing Transcript 230.