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UNITED STATES v. WILEY

July 1, 1960

UNITED STATES OF AMERICA
v.
LEROY WILEY, DEFENDANT.



The opinion of the court was delivered by: Campbell, Chief Judge.

There have been countless studies made, and articles written, about the various considerations, such as reformation, deterrence and retribution, which motivate a criminal sentence. There are no rigid rules, no formulas and each case stands on its own particular facts as they are evaluated by the trial judge who is assisted only by general principles and his own conscience. I am sure that I speak for my many colleagues when I state that the imposition of a criminal sentence is the most delicate, difficult and distasteful task for the trial judge.

In the cause before me, after defendant's conviction on Count II of an indictment charging him and four other defendants with unlawfully, willfully, knowingly and feloniously having in their possession certain goods, unlawfully stolen while moving in an interstate shipment and known by them to have been stolen in violation of Title 18 U.S.C. § 659, I sentenced defendant, after full consideration of all the evidence introduced during his trial, as well as the reports of the government investigators, to imprisonment for a period of three years. After full consideration of the reports of the government investigators, I sentenced the other four defendants, who had previously pled guilty as follows: Ulysses McGhee, 2 years; Joseph Helen, I year and 1 day; Joseph M. Kelley, 1 year and 1 day; and Roman Jackson, 1 year and 1 day. McGhee had four prior felony convictions and was more or less the ringleader insofar as the actual stealing operations of this particular gang were concerned. Helen, Kelley and Jackson likewise had records of prior convictions.

Defendant Wiley, prior to the imposition of sentence moved for a presentence investigation after which the following colloquy took place:

    "The Court: No, I ordinarily don't do that when
  I hear the evidence in the case. I ordinarily do
  where there is no prior record. Where the
  defendant stands trial it is well-known in this
  Court I proceed to sentence immediately after the
  trial. I will hear anything you care to say as to
  his family situation and his background and his
  prior history."
    (Thereupon, defendant testified as to his
  residence, marriage, family, employment and that
  he had never served any time in any penal
  institution.)

"The Court: Any questions of the defendant?

"Mr. Grady: No.

    "The Court: Is there anything you want to say
  before the imposition of sentence?
    "Mr. Evins: (Defendant's counsel) Yes, Judge. I
  would like to say this, that you have offered
  here in mitigation and in view of the fact that
  this defendant has no previous record of any kind
  and that in view of the further fact that he is
  married and he has a family and he is living with
  his wife, supporting his family, and he has a
  good job out of which he is supporting his
  family, I feel that justice could be served in
  this case if the Court sees fit to put him on
  probation for a period of time, and I am asking
  the Court to show him some leniency and
  consideration because of those facts, because of
  his family and because of the fact he just got a
  newborn baby and as I understand it, he is the
  main and only support of that family.
    "I am asking the Court at this time if he
  wouldn't consider granting probation.
    "The Court: Those are the facts the defendant
  should have considered prior to committing the
  offense.
    "The Court: In view of the fact that the trial
  was expedited by waiving a jury and by
  stipulation of the various items that expedited
  the proof I make the sentence less than I
  otherwise would. It is, however a serious crime,
  and it is a case for the imposition of a sentence,
  either on a plea of guilty or on a trial. Had there
  been a plea of guilty in this case probably
  probation might have been considered under certain
  terms, but you are all well aware of the standing
  policy here that once a defendant stands trial that
  element of grace is removed from the consideration
  of the Court in the imposition of sentence.
    "Taking into consideration the various factors
  that you have referred to — and that I have
  referred to, I make the sentence less than I
  otherwise would, but a sentence must be imposed.
    "On the judgment of guilty heretofore, rendered
  the defendant is sentenced to the custody of the
  Attorney General of the United States to be
  incarcerated in a penitentiary of the United
  States for a term of three years." (Emphasis
  supplied.)

Upon appeal, the judgment insofar as it adjudged defendant guilty was affirmed though the cause was remanded, Chief Judge Hastings dissenting, for consideration of defendant's application for probation because, as the Court stated, of my "standing policy" to the effect that "that element of grace is removed from the consideration of the court" once a defendant stands trial. United States v. Wiley, 7 Cir., 267 F.2d 453, 455, 456.

When the mandate was filed, I proceeded to hearing on the motion of Wiley for probation and after full consideration of all the factors before me I reimposed the sentence ...


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