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October 1, 1981


The opinion of the court was delivered by: Aspen, District Judge:


Petitioner John Gabriel was convicted by a jury of conspiring to counterfeit Federal Reserve Notes in violation of 18 U.S.C. § 371, and with counterfeiting Federal Reserve Notes in violation of 18 U.S.C. § 471. On May 16, 1978, Gabriel was sentenced to seven years imprisonment on the substantive count and a consecutive term of five years probation on the conspiracy count. Gabriel's conviction was upheld by the Court of Appeals for the Seventh Circuit in United States v. Gabriel, 597 F.2d 95 (7th Cir. 1979), cert. denied, 444 U.S. 858, 100 S.Ct. 120, 62 L.Ed.2d 78. On November 13, 1979, Gabriel moved to reduce his sentence pursuant to Rule 35 of the Federal Rules of Criminal Procedure. Judge Bua denied this motion and thereafter also denied Gabriel's motion to vacate his sentence and reverse his conviction. After Gabriel filed a notice of appeal from the denial of the motion to vacate, and after Judge Bua recused himself from all further proceedings in the case, the Seventh Circuit entered an order remanding the case to the Executive Committee, which in turn assigned the case to this Court. This Court directed Gabriel to file all his claims for relief from his sentence at one time, and in response Gabriel filed a petition pursuant to 28 U.S.C. § 2255 that gives rise to this Memorandum Opinion and Order.

Sentencing Options

Gabriel first argues that the trial court punished him for his persistence in maintaining his innocence and that such an action constitutes a denial of due process of law. It is undisputed that a defendant may not be punished for maintaining his innocence and asserting his constitutional right to a jury trial. United States v. Wiley, 278 F.2d 500 (7th Cir. 1960). Gabriel points to the following colloquy at the hearing held on Gabriel's motion for reduction of sentence as evidence that Judge Bua did penalize him for asserting his innocence:

    MR. TARUN (Attorney for United States): We strongly
  oppose any reduction of sentence in this matter. The
  court's original sentence was seven years. John
  Gabriel was a convicted felon. He was previously
  convicted of robbery in state court. This was one of
  the largest counterfeiting cases in the history of
  the Northern District of Illinois. The defendant to
  this date shows no remorse for his conduct or
  involvement in that crime. . . .

Gabriel responded with a lengthy plea for sentence reduction touching upon, among other things, evidentiary rulings made at trial, the credibility of certain witnesses, the conduct of the prosecution, and the competence of his counsel. After listening to Gabriel's argument, Judge Bua stated:

    THE COURT: Mr. Gabriel, I struggled over your
  sentence on the occasion of the original
  sentence.*fn1 I thought the court was compassionate
  at that time.
    I will respond to two of your questions to the
  court. What worthwhile purpose does incarceration
  serve in your case? It serves one worthwhile purpose
  that I can think of and what the court had in mind
  when it sentenced you to seven years in the custody
  of the Attorney General. That is deterrence. This was
  a serious crime involving, as I recall, over a

  dollars in counterfeit. Okay? For that reason you
  have received the seven-year sentence in the custody
  of the Attorney General.
    I commend you for your industry, but to this date,
  Mr. Gabriel, and it has been almost two years, and
  after a jury has found you guilty and after you have
  had the benefit of counsel whom I had occasion to
  remark offered probably one of the best defenses I
  have ever seen in 16 years on the bench and 11 years
  as a practicing attorney. Your lawyer did just an
  outstanding job in defending you. Okay?

MR. GABRIEL: Yes, sir.

    THE COURT: You still to this day, after a finding
  by the jury, to this day, profess your innocence. You
  haven't even taken that first step toward
  rehabilitation if the court were to consider
  rehabilitation as an alternative form or philosophy
  of sentencing. To this day, you have not said, "I am
  sorry. I am contrite." For that reason, Mr. Gabriel —
  and I feel all compassion for your family. It always
  hurts the family, probably more, as you say, I quite
  agree, probably more than it will hurt you, because
  you have done time. You can do it. You will do it
  easily as anyone, in my humble opinion. Your family
  will do much harder time than you will while you are
  incarcerated. And I do have compassion for that, but
  for the reasons stated in the original sentencing,
  your motion to reduce the sentence will be denied.

MR. GABRIEL: Your Honor —


    MR. GABRIEL: — is what you are saying that if I
  were to reverse my plea, and I would submit to you
  and say now that I'm guilty, and that I'm sorry, that
  I will carry this thing no farther, that you will
  reconsider it? Is that what you are telling me?
    THE COURT: I am saying if you originally were
  contrite and admitted your guilt openly, honestly,
  and candidly, the court probably would have given you
  a lighter sentence than seven years. This seven-year
  sentence is the most stringent sentence I ...

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