United States v. Stanley Radowitz, 507 F.2d 109, 3rd Cir. (1974)

507 F.
2d 109
UNITED STATES of America

v.
Stanley RADOWITZ, Appellant.
No. 74-1235.
United States Court of Appeals, Third Circuit.

Argued Oct. 7, 1974.
Decided Dec. 18, 1974.
Dennis J. Conklin, Law Student, William J. Bender, Newark, N.J., for

appellant.
Jonathan L. Goldstein, U.S. Atty., William T. Pizzi, Asst. U.S. Ttty.,
Newark, N.J., for appellee.
Appeal from the United States District Court for the District of New
Jersey (D.C. Criminal Action No. 414-68).
Before BIGGS, ADAMS and GARTH, Circuit Judges.
OPINION OF THE COURT
BIGGS, Circuit Judge.
Stanley Radowitz appeals the dismissal of his petition for resentencing

pursuant to 28 U.S.C. 2255. The challenged sentence stems from appellant's
plea of guilty to the charge of robbery of the First Savings and Loan
Association of Perth Amboy, Woodbridge, New Jersey, in violation of 18
U.S.C. 2113(a). Upon accepting this plea of February 16, 1970, Judge
Lawrence A. Whipple, sentenced appellant to fourteen years imprisonment 1 but
vested immediate parole eligibility with the Board of Parole under 18 U.S.C.
4208(a) (2).
The appellant now asserts that, in formulating this sentence, Judge Whipple
relied upon several prior state convictions which appellant contends were
violative of his Sixth Amendment right to counsel. Gideon v. Wainwright, 372
U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).2 See United States v. Tucker,
404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972). Compare Argersinger v.
Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). Radowitz
contends that the district court must first determine whether convictions
allegedly invalid in the light of Gideon, supra, were in fact invalid before it
considers the propriety of the sentence. That contention was negated by Judge
Whipple in the present pending 2255 proceeding. The instant appeal followed.
For the reasons stated hereinafter, it is unnecessary to take additional evidence
to demonstrate that Radowitz was without counsel in at least a half dozen of his
state court convictions.
3
This case poses two issues for our consideration. The first, which we raise sua
sponte and believe merits more than passing attention, involves the admittedly
defective indictment to which appellant pleaded guilty. The second requires a
brief analysis of the district court's evaluation in the instant case of a sentence
reconsideration petition based upon the contention that the sentencing court
relied upon one or more allegedly invalid prior convictions in determining
Radowitz's sentence.
I. THE DEFECTIVE INDICTMENT
Appellant's indictment, No. 414-68, filed November 6, 1968, on the Bank

robbery charge consisted of three separate counts under 18 U.S.C. 2113(a), (b)
and (d), respectively. After he pleaded guilty to Court I, the latter two counts
were dismissed. Count I, however, erroneously stated that the bank was insured
by the Federal Deposit Insurance Corporation.3 In fact, the First Savings and
Loan Association of Perth Amboy, Woodbridge, new Jersey is insured by the
Federal Savings & Loan Association.4 To further confuse matters, Count I
correctly referred to 18 U.S.C. 2113(g) which encompasses savings and loan
associations and makes robbery of them a federal offense under 18 U.S.C.
2113(a).
The appellant applied for dismissal of the indictment because of this defect. A
hearing was held on that application on May 19, 1969, and it was dismissed.
Subsequently, Radowitz pleaded guilty to an information based upon Count I,
but that plea was withdrawn. His final guilty plea of February 16, 1970 was
then premised upon Count I of the original indictment containing the defect and
orally amended by agreement of counsel with the approval of the court.
We are constrained to consider this defect in relation to both the purposes of an

indictment and the rights which an indictment is designed to protect. United
States v. Goldstein, 502 F.2d 526, 528-530 (3d Cir. 1974) (en banc); United
States v. DeCavalcante, 440 F.2d 1264, 1269-1272 (3d Cir. 1971). Briefly
summarized, an indictment: (1) fulfills the Sixth Amendment
'apprisal'requirement by providing a defendant with notice of the charges
against him in order that he may prepare a defense; (2) effectuates the Fifth
Amendment's 'double jeopardy' provision by insulating a defendant from
reprosecution for the same offense; and (3) shields an accused from
unwarranted and unfounded charges of involvement in serious crimes by
interposing the independent judgment of the grand jury in accordance with the
Fifth Amendment's guarantee that prosecutions for 'infamous' crimes may only
be commenced by grand jury indictments. Viewed in this light, we discern no
prejudice to appellant from this defective indictment. It specifically informed
Radowitz of the nature of the alleged offense and the statutory violations
involved. Its erroneous reference to the Federal Deposit Insurance Corporation
in no way subjected him to the possibility of double jeopardy. Finally, the
grand jury's action in citing 18 U.S.C. 2113(g) indisputably precludes the
possibility that its judgment would have been altered has its attention been
drawn to the mistaken citation to the Federal Deposit Insurance Corporation.
While we cannot condone the loose proceedings which lead to such errors, our
task is confined to an examination of their prejudicial effect.5 In this case, we
are compelled to conclude that the defect was harmless and resulted in a nonfatal variance. The recasting of an indictment by agreement of counsel, even
though approved by the court, is not a practice which we sanction with
gladness. Revisions of an indictment should be made by a grand jury. A cursory
examination by the United States Attorney's Office would have obviated the
error in the indictment. The amendment to the indictment was made orally
without written motion by counsel or written order by the court. See and
compare Rule 47, Fed.R.Crim.P., 18 U.S.C. Under some circumstances, a plea
of double jeopardy might be difficult to assert or maintain where there is no
written motion or confirming order amending an indictment.
7
II. THE PROCEDURAL ISSUE PRESENTED BY THE TUCKER DECISION
Traditionally, the federal judicial system has permitted the trial court to exercise
wide and generally unreviewable discretion in imposing sentence.6 This
doctrine has been tempered, however, by rulings that prior invalid convictions
may not be used to 'support guilt or enhance punishment for another offense.'
Burgett v. Texas, 389 U.S. 109 115, 88 S.Ct. 258, 262, 19 L.Ed.2d 319 (1967);
United States v. Tucker, supra. In Tucker, the sentencing judge, in imposing the
maximum possible sentence, had given explicit consideration to respondent's
prior record. Later, two of those earlier convictions were conclusively
invalidated pursuant to Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9
L.Ed.2d 799 (1963). The Supreme Court concluded that remand for
resentencing in the 'dramatically different light' of the altered record was
imperative. Tucker, supra, 404 U.S. at 448, 92 S.Ct. 589.
9
Inevitable questions have arisen since the Tucker ruling regarding proper
procedures for consideration of resentence petitions based on assertions that the
sentencing judge relied upon invalid prior convictions in calculating a sentence.
In the instant case, however, it is not necessary to deal with these various
approaches. The record contains an affidavit of Marie Lukacsko, senior clerk
typist in the Passaic County Clerk's office, stating that their records do not
indicate that appellant was represented by counsel on six charges of larceny
and receiving in 1938, three charges of larceny and receiving in 1939, and five
charges of breaking, entering, larceny and receiving, breaking and entering with
intent to steal, and possession of burglar's tools in 1948. We deem this to be
sufficient to support to finding which in substance was made by the learned
district judge that Radowitz was not represented by counsel at his trials on the
charges referred to. The Government has the burden under such circumstances
to prove affirmatively the defendant's representation by counsel in prior
criminal proceedings. In the present pending 2255 case, Judge Whipple
followed the procedures set out in Lipscomb v. Clark, 468 F.2d 1321, 1323 (5th
Cir. 1972). In the instant case we approve this procedure, it being unnecessary
to consider other approaches in view of the operative fact not contested by the
United States that Radowitz did not have counsel in New Jersey on some felony
charges, statements of which were before Judge Whipple. See United States v.
Lufman, 457 F.2d 165, 167 (7th Cir. 1972). Radowitz argues that several prior
New Jersey state court convictions violated the Gideon rule, and that the
distinguished district judge considered these prior convictions in sentencing
Radowitz originally to fourteen years imprisonment. Judge Whipple on
reconsideration in the light of United States v. Tucker, supra, again gave
appellant a sentence of fourteen years imprisonment. The United States does
not contend that the prior judgments of conviction, entered without Radowitz's
representation by counsel, did not violate the Gideon rule or that the district
judge did not consider these prior convictions7 in imposing his original
sentence of fourteen years imprisonment upon Radowitz in violation of Burgett
v. Texas, supra. The United States does contend, however, that Judge Whipple
in imposing a similar sentence of fourteen years imprisonment upon Radowitz
took the rule of United States v. Tucker, supra, sufficiently into account and
that the sentence should stand on the present 2255 proceeding. The fact that
Judge Whipple arrived at a similar sentence does not require us to reverse his
judgment. It is true that he stated his prior sentence was 'lenient', but we believe
the conclusion of the trial court is not erroneous.
The judgment will be affirmed.8
The maximum sentence under 18 U.S.C. 2113(a) is a $5,000 fine and twenty
years imprisonment
Although these earlier convictions antedated Gideon, supra, that decision is

fully retroactive. Pickelsimer v. Wainwright, 375 U.S. 2, 84 S.Ct. 80, 11
L.Ed.2d 41 (1963)
Count I charged: 'That on or about the 5th day of September 1968, in the
District of New Jersey, STANLEY RADOWITZ did wilfully and unlawfully
take, through the use of intimidation in the presence of BERNICE ERDELY,
CATHERINE LEBEDA and ROBERT O'KEEFE employees of the First
Savings and Loan Association of Perth Amboy, Woodbridge, New Jersey, the
sum of $5,554.00, which money was then and there in the care, custody,
control, management and possession of the First Savings and Loan Association
of Perth Amboy, Woodbridge, New Jersey, which bank's funds were then
insured by the Federal Deposit Insurance Corporation, within the meaning of
Title 18, United States Code, Section 2113(g)
In violation of Title 18, United States Code, Section 2113(a).
We emphasize that this error does not present a jurisdictional problem since
robbery of banks insured under either the Federal Deposit Insurance
Corporation Act (12 U.S.C. 1811-1832) or the Federal Savings & Loan
Association Act (12 U.S.C. 1724-1730) constitutes a federal offense. See 18
U.S.C. 2113(a), (f), and (g). See also Rule 12(b)(2), Fed.R.Crim.P
See Stirone v. United States, 361 U.S. 212, 217, 80 S.Ct. 270, 4 L.Ed.2d 252
(1960); United States v. Goldstein, supra; United States v. DeCavalcante,
supra, 440 F.2d at 1272; Gaither v. United States, 134 U.S.App.D.C. 154, 413
F.2d 1061, 1075 (1969). See generally 8 Moore, Federal Practice-- Taylor,
Criminal Rules P7.05(1)
See, e.g., North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d
656 (1969); Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed.
1337 (1949). See also United States v. Tucker, 404 U.S. 443, 446-447, 92 S.Ct.
589, 30 L.Ed.2d 592 (1972)
Judge Whipple stated: 'Let the record note that this Court has carefully
reviewed the presentence report furnished to it by the Probation Department.
That report contains an excerpt from the New Jersey Diagnostic Center at
Menlo Park dated April 14, 1969

'I have also reviewed very carefully the report of Dr. Vracle, Director of the
Diagnostic Center, Department of Institutions and Agencies, Menlo Park, dated
January 6, 1970.'
The documents referred to demonstrate Radowitz's former convictions.
See p. 16 of the transcript of Radowit's sentencing on February 16, 1970.
8
A like case was before a prior panel of this court which made an order in
respect thereto similar in tenor to our present disposition. See Murray v. United
States, 3 Cir. 1974, 500 F.2d 1400

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507 F.

UNITED STATES of America

United States Court of Appeals, Third Circuit.

Dennis J. Conklin, Law Student, William J. Bender, Newark, N.J., for

Stanley Radowitz appeals the dismissal of his petition for resentencing

Appellant's indictment, No. 414-68, filed November 6, 1968, on the Bank

We are constrained to consider this defect in relation to both the purposes of an

II. THE PROCEDURAL ISSUE PRESENTED BY THE TUCKER DECISION

The judgment will be affirmed.8

Although these earlier convictions antedated Gideon, supra, that decision is

Menlo Park dated April 14, 1969

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