Corey v. United States/Dissent Harlan

by John Marshall Harlan II

United States Supreme Court

375 U.S. 169

Corey  v.  United States

 Argued: Oct. 17, 1963. --- Decided: Dec 9, 1963

Mr. Justice HARLAN, dissenting.

While I agree with the majority that a criminal defendant who has been committed to the custody of the Attorney General under 18 U.S.C. § 4208(b) has the right to prosecute an immediate appeal from the judgment of conviction, I am unable to accept the view, so contrary to long-accepted principles governing the time for seeking review, that he has also the alternative right to await final sentencing and then prosecute an appeal from the judgment of conviction. Accordingly, I would hold that the petitioner's attempted appeal at that stage of the proceedings was untimely.

It is clear that a § 4208(b) commitment, which is necessarily preceded by a judgment of conviction, see 18 U.S.C. § 4208(a), fully satisfies the requirement of finality under 28 U.S.C. § 1291. At that point in the proceedings, the merits have been fully litigated, the defendant has been adjudged guilty, and 'discipline has been imposed,' Korematsu v. United States, 319 U.S. 432, 434, 63 S.Ct. 1124, 1125-1126, 87 L.Ed. 1435. In that case this Court held that after a finding of guilt an order placing the defendant on probation was a final appealable order. In the absence of an explicit statement of contrary congressional intent, ^[1] Korematsu controls this case, in which the disciplinary measure taken was an actual commitment to prison. The liberalization of sentencing procedures under § 4208(b) does not require or even suggest that a defendant be deprived of his right speedily to test the validity of his conviction.

It is otherwise, however, with respect to an appeal following the imposition of final sentence in accordance with § 4208(b). Of course it is true, as the majority points out, that the general rule is that the defendant may 'await the imposition of final sentence before seeking review of the conviction,' ante, p. 176. Indeed, the g neral rule is that he has no choice but to wait. The majority and I agree, for the reasons stated, that the separation of final judgment and final sentence under § 4208(b) makes the rule inapplicable in this situation. Nevertheless, after having discarded the rule for one-half of its opinion, the majority relies on it as a justification for allowing the defendant the alternative of postponing his appeal until long after the final judgment of conviction has been rendered. This is explained only by a distinction, novel in this context, between final judgments and proceedings 'not actually terminated,' ante, p. 175. Congress could, of course, arm defendants committed under § 4208(b) with this double-barreled shotgun. But there is nothing to indicate that it has done so. ^[2] In the absence of any such indications, so radical a departure from long-established procedural principles should be made, in what is presumably an exercise of this Court's supervisory power over the administration of federal criminal justice, only where fairness imperatively so demands.

The majority finds such necessity in a defendant's possible preference to await final sentencing before deciding whether or not to appeal. A defendant, it is suggested, might fear that his taking of an appeal would have an adverse impact on the sentencing judge; or he might be disinclined to appeal if he is ultimately to receive a light sentence. Neither of these possibilities warrants the majority's innovation in review procedures. It should be a simple matter for a defendant who prefers to await the outcome of the § 4208(b) proceeding before prosecuting his appeal to file a notice of appeal within the prescribed time after the original commitment and then secure a continuance pending final sentencing in the District Court. ^[3] I see no reason why a Court of Appeals should be reluctant to grant a continuance in these circumstances; were this not the case, such a requirement could be imposed by this Court in the exercise of its supervisory powers. That a defendant might believe, surely in all but the rare instance incorrectly, that the mere filing of a notice of appeal would weigh against him with the sentencing judge is hardly a persuasive consideration; with as much reason, he might believe that it would have the effect of stimulating the sentencing judge to reduce his sentence. In any event, it is surely inappropriate to structure review procedures around hypothetical beliefs of defendants in the maladministration of criminal justice.

New procedures designed to better the administration of criminal j stice, such as § 4208(b), should not without manifest need be the occasion for radical departures from established theory and practice. Seeing no need for such a departure in this case, I respectfully dissent and would affirm the judgment below.

Notes

1. I intimate no view as to whether such a statute would infringe constitutional rights.
2. There is now pending in Congress a bill to amend § 4208 which provides that 'the right to appeal shall run from the date the original sentence was imposed under subsection (b) of this section.' S.1956, 88th Cong., 1st Sess.
3. I agree with the majority that if a defendant elects to commence service of sentence, the filing of a notice of appeal in the Court of Appeals would not prevent the § 4208(b) proceedings from going forward in the District Court. Cases like Berman v. United States, 302 U.S. 211, 58 S.Ct. 164, 82 L.Ed. 204, and United States v. Smith, 331 U.S. 469, 67 S.Ct. 1330, 91 L.Ed. 1610, involved different problems and are not relevant in the present context. Final § 4208(b) sentences have in fact been imposed in the District Court while an appeal was pending. See cases cited in the majority's opinion, ante, p. 175, note 15.

The requirement of Rule 39(d), Federal Rules of Criminal Procedure, that an appeal be set for argument 'not less than 30 days after the filing * * * of the record on appeal and as soon after the expiration of that period as the state of the calendar will permit' would obviously not prevent a continuance in these circumstances.

Of course, if a defendant chooses to be released on bail pending appeal, the proceedings under § 4208(b) would then be postponed until remand of the case to the District Court following appellate affirmance of the conviction.