250 F2d 735 Baird v. United States

250 F.2d 735

58-1 USTC P 9172

Merton E. BAIRD, Appellant,
UNITED STATES of America, Appellee.

No. 5694.

United States Court of Appeals Tenth Circuit.

Dec. 12, 1957.

Ben D. Browning, Salt Lake City, Utah, for appellant.

C. Nelson Day, Asst. U.S. Atty., Salt Lake City, Utah (A. Pratt Kesler, U.S. Atty., Salt Lake City, Utah, was with him on the brief), for appellee.

Before HUXMAN, MURRAH and BREITENSTEIN, Circuit Judges.

BREITENSTEIN, Circuit Judge.

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Appellant Baird was charged by information with the offense of wilful failure to file his federal income tax return covering the calendar year 1953. Upon his plea of guilty, he was sentenced to imprisonment for one year. The sole ground urged for reversal is the alleged failure of the trial court to afford him an adequate opportunity to make a statement in mitigation of punishment.


The information was filed on January 22, 1957. On February 15 Baird appeared for arraignment, waived his right to counsel, and entered a plea of guilty. The court requested a presentence report and continued the case for imposition of sentence. On March 1 Baird again appeared before the court without counsel. The court requested a further presentence report and again continued the matter.


On April 19 Baird was once more in court without counsel. The court inquired into his plans for paying the taxes which he owed the United States and postponed sentence for thirty days. When he next appeared before the court, on June 7, Baird had a lawyer who made a statement of his client's financial obligations and home situation. The court sentenced Baird to a term of one year and allowed a ten-day stay of execution.


Present counsel for Baird then entered the case and moved the court (1) to reconsider the sentence, (2) to vacate the sentence and permit the defendant to make a statement in mitigation of sentence, and (3) to reduce sentence. This motion was heard at length on June 18 and counsel stressed matters relating to Baird's finances and federal tax obligations. In substance, the argument was that Baird should be allowed additional time to rehabilitate his finances and make peace with the Bureau of Internal Revenue. The motion was denied.


Under Rule 32(a) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., the court must afford to the defendant an opportunity to make a statement in his own behalf and to present information in mitigation of punishment. Such opportunity was afforded here. Baird entered a guilty plea on February 15 and after two intervening court appearances was finally sentenced on June 7. There is nothing in the record to indicate that on the three times when Baird appeared without counsel and the two times when he appeared with counsel either he or his counsel was denied the right to present facts in mitigation of punishment. Indeed, the record shows that the trial court proceeded with patience to get the facts before imposing sentence. There was full compliance with both the letter and the spirit of Rule 32(a).1


By taking this appeal, Baird has gained the time which his counsel said was needed to put his finances in order. The judgment is affirmed and it is ordered that the mandate issue forthwith.


See Pence v. United States, 10 Cir., 219 F.2d 70; Calvaresi v. United States, 10 Cir., 216 F.2d 891, 901, reversed 348 U.S. 961, 75 S.Ct. 522, 99 L.Ed. 749; Sandroff v. United States, 6 Cir., 174 F.2d 1014, certiorari denied 338 U.S. 947, 70 S.Ct. 485, 94 L.Ed. 584; Mixon v. United States, 5 Cir., 214 F.2d 364, 365. Cf. Gadsden v. United States, 96 U.S.App.D.C. 162, 223 F.2d 627, 632