365 U.S.

301
81 S.Ct. 653
5 L.Ed.2d 670

Theodore GREEN, Petitioner,

v.
UNITED STATES.
Nos. 70 and 179.
Argued Jan. 10, 1961.
Decided Feb. 27, 1961.
Rehearing Denied April 17, 1961.

See 365 U.S. 890, 81 S.Ct. 1024.

Mr. James Vorenberg, Boston, Mass., for petitioner.
Mr. Robert Kramer, Washington, D.C., for respondent.
Judgment of the Court and opinion of Mr. Justice FRANKFURTER,
joined by Mr. Justice CLARK, Mr. Justice HARLAN and Mr. Justice
WHITTAKER, announced by Mr. Justice HARLAN.

Defendant, the petitioner here, in 1952 was convicted in the United States
District Court for Massachusetts on a three-count indictment charging him with
(1) entering a bank with intent to commit a felony, in violation of 18 U.S.C.
2113 (a), 18 U.S.C.A. 2113(a); (2) robbing the bank, also in violation of 18
U.S.C. 2113(a), 18 U.S.C.A. 2113(a); and (3) assaulting or putting in
jeopardy the lives of persons by use of a dangerous weapon while committing
the robbery, in violation of 18 U.S.C. 2113(d), 18 U.S.C.A. 2113(d). Five
days later, after defendant's counsel had completed motions in arrest of
judgment and for new trial, the district judge asked, 'Did you want to say
something?' whereupon counsel at some length invoked the trial judge's
discretionary leniency. The defendant's age, family status, and physical
condition were mentioned, as was the fact that he was then serving a sentence
in a state penitentiary which would delay the time from which his federal
punishment would run. Thereupon the trial judge, presumably relying upon a
presentence probation report, observed that the defendant was a hardened

criminal, that he had in the past committed other armed robberies, and that
there was no warrant to believe that rehabilitation was possible. He then
pronounced sentence as follows:
2

'Theodore Green, the Court orders that on this indictment you be sentenced as
follows: 'On Count 1 of the indictment 20 years, on Count 2 of the indictment
that you be imprisoned for 20 years, and on Count 3 of the indictment that you
be imprisoned for the period of 25 years, said prison sentence to run concurrent
and to begin upon your release from prison upon the sentence you are now
receiving under order of the State Court.' Subsequently, defendant was
permitted to bring his appeal in forma pauperis which was dismissed by the
Court of Appeals 'for want of diligent prosecution.' In two other later actions,
defendant unsuccessfully brought proceedings under 28 U.S.C. 2255, 28
U.S.C.A. 2255, to vacate his sentence.

These two cases, here consolidated, arise out of two separate actions brought,
some seven years after conviction, under Rule 35 of the Federal Rules of
Criminal Procedure, 18 U.S.C.A., in an effort to set aside the sentence which
petitioner asserts to be illegal. In No. 70, petitioner claims that the failure of the
judge to inquire of the defendant if he had anything to say on his own behalf
prior to sentencing rendered the subsequent sentence illegal under Federal
Criminal Rule 32(a).1 In No. 179, petitioner questions the legality of the
twenty-five-year sentence for aggravated bank robbery2 when immediately
prior to its imposition the judge had imposed a twenty-year sentence under
another count of the indictment for the same offense without the elements of
aggravation.

If Rule 32(a) constitutes an inflexible requirement that the trial judge

specifically address the defendant, e.g., 'Do you, the defendant, Theodore
Green, have anything to say before I pass sentence?' then what transpired in the
present case falls short of the requirement, even assuming that this inadequacy
in the circumstances now before us would constitute an error per se rendering
the sentence illegal.

The design of Rule 32(a) did not begin with its promulgation; its legal
provenance was the common-law right of allocution. As early as 1689, it was
recognized that the court's failure to ask the defendant if he had anything to say
before sentence was imposed required reversal. See Anonymous, 3 Mod. 265,
266, 87 Eng.Rep. 175 (K.B.). Taken in the context of its history, there can be
little doubt that the drafters of Rule 32(a) intended that the defendant be
personally afforded the opportunity to speak before imposition of sentence. We
are not unmindful of the relevant major changes that have evolved in criminal

procedure since the seventeenth centurythe sharp decrease in the number of

crimes which were punishable by death, the right of the defendant to testify on
his own behalf, and the right to counsel. But we see no reason why a procedural
rule should be limited to the circumstances under which it arose if reasons for
the right it protects remain. None of these modern innovations lessens the need
for the defendant, personally, to have the opportunity to present to the court his
plea in mitigation. The most persuasive counsel may not be able to speak for a
defendant as the defendant might, with halting eloquence, speak for himself.
We are buttressed in this conclusion by the fact that the Rule explicitly affords
the defendant two rights: 'to make a statement in his own behalf,' and 'to present
any information in mitigation of punishment.' We therefore reject the
Government's contention that merely affording defendant's counsel the
opportunity to speak fulfills the dual role of Rule 32(a). See Taylor v. United
States, 9 Cir., 1960, 285 F.2d 703.
6

However, we do not read the record before us to have denied the defendant the
opportunity to which Rule 32(a) entitled him. The single pertinent sentence
the trial judge's question 'Did you want to say something?'may well have
been directed to the defendant and not to his counsel. A record, certainly this
record, unlike a play, is unaccompanied with stage directions which may tell
the significant cast of the eye or the nod of the head. It may well be that the
defendant himself was recognized and sufficiently apprised of his right to speak
and chose to exercise this right through his counsel. Especially is this
conclusion warranted by the fact that the defendant has raised this claim seven
years after the occurrence. The defendant has failed to meet his burden of
showing that he was not accorded the personal right which Rule 32(a)
guarantees, and we therefore find that his sentence was not illegal.

However, to avoid litigation arising out of ambiguous records in order to

determine whether the trial judge did address himself to the defendant
personally, we think that the problem should be, as it readily can be, taken out
of the realm of controversy. This is easily accomplished. Trial judges before
sentencing should, as a matter of good judicial administration, unambiguously
address themselves to the defendant. Hereafter trial judges should leave no
room for doubt that the defendant has been issued a personal invitation to speak
prior to sentencing.

In No. 179 petitioner contends that his sentence was rendered illegal because
the district judge, after sentencing him to twenty years for bank robbery under
Count 2, proceeded under Count 3 to sentence him to twenty-five years for the
aggravated version of the same crime. The claim is that since the two counts
did not charge separate offenses, the judge's power to sentence expired with the

imposition of sentence under Count 2 and that five years should be remitted
from petitioner's concurrent sentence.
9

The Government concedes that Count 3 did not charge a separate offense, see
Holiday v. Johnston, 313 U.S. 342, 349, 550, 61 S.Ct. 1015, 1017, 85 L.Ed.
1392, and there is every indication that the district judge was of this view. In
his charge to the jury he stated:

10

'The third count is a different type of count. That is not a separate offense. I will
speak to you later of the manner in which you will handle the third count. That
is not a separate offense * * *. That is not a separate count, to repeat, that is an
aggravation of the second count, robbing the bank.'

11

Although petitioner is technically correct that sentences should not have been
imposed on both counts, the remedy which he seeks does not follow. This is not
a case where sentence was passed on two counts stating alternative means of
committing one offense; rather, the third count involved additional
characteristics which made the offense an aggravated onenamely, putting
persons in jeopardy of life by use of a dangerous weapon. Plainly enough, the
intention of the district judge was to impose the maximum sentence of twentyfive years for aggravated bank robbery, and the formal defect in his procedure
should not vitiate his considered judgment.3

12

Affirmed.

13

Mr. Justice STEWART, concurring.

14

I join in affirming the judgments. Rule 32(a) does not seem to me clearly to
require a district judge in every case to volunteer to the defendant an
opportunity personally to make a statement, when the defendant has a lawyer at
his side who speaks fully on his behalf. But I do think the better practice in
sentencing is to assure the defendant an express opportunity to speak for
himself, in addition to anything that his lawyer may have to say. I would apply
such a rule prospectively, in the exercise of our supervisory capacity. See
Couch v. United States, 98 U.S.App.D.C. 292, 235 F.2d 519.

15

Mr. Justice BLACK, with whom THE CHIEF JUSTICE, Mr. Justice
DOUGLAS and Mr. Justice BRENNAN concur, dissenting.

16

I agree that Federal Criminal Rule 32(a) makes it mandatory for a federal judge

before imposing sentence to afford every convicted defendant an opportunity to

make, in person and not merely through counsel, a statement in his own behalf
presenting any information he wishes in mitigation of punishment and that
failure to afford this opportunity to the defendant personally makes a sentence
illegal. I agree too that the governing legal question in determining whether
such an opportunity has been afforded under Rule 32(a) is 'whether the trial
judge did address himself to the defendant personally,' since it would be wholly
artificial to regard this opportunity as having been afforded in the absence of a
specific and personal invitation to speak from the trial judge to the defendant.1
The very essence of the ancient common-law right called 'allocution' which Mr.
Justice FRANKFURTER recognizes as underlying Rule 32(a) has always been
the putting of the question to the defendant by the trial judge.2
17

I think the record in this case clearly shows that the defendant was denied this
opportunity, that the sentence imposed upon him therefore was illegal and for
this reason that the cause should, in accordance with Federal Criminal Rule 35,
be sent back to the District Court for resentencing after compliance with Rule
32(a). Mr. Justice FRANKFURTER refuses to take this course, stating that 'we
do not read the record before us to have denied the defendant the opportunity'
to talk to the judge about his sentence. This conclusion apparently rests on the
view that the trial judge's single question deemed pertinent to this subject "Did
you want to say something?'may well have been directed to the defendant
and not to his counsel.' The opinion goes on to imply that maybe when the
judge asked 'you' the question he cast his eye or nodded his head in the
defendant's direction, maybe the defendant saw the eye cast or the head nod,
and therefore it 'may well be that the defendant himself was recognized and
sufficiently apprised of his right to speak and chose to exercise this right
through his counsel.' On this chain of perhaps possible, but purely imaginary
happenings, plus the seemingly irrelevant fact that the defendant 'raised this
claim seven years after the occurrence,' it is said that the petitioner 'has failed to
meet his burden of showing that he was not accorded the personal right which
Rule 32(a) guarantees, and we therefore find that his sentence was not illegal.'

18

A careful examination of the record reveals the utter implausibility of these

imaginative suggested additions to the transcript. The trial judge's bare question
'Did you want to say something?' follows immediately upon a lengthy statement
covering three printed pages by the counsel for a codefendant arguing that his
motion for a new trial should be granted because of the weakness of the
evidence, inconsistencies in testimony, and lack of credibility of a government
witness. The colloquy in the four pages preceding that likewise does not touch
upon the question of sentencing. Even if it is assumed that the trial judge might
have been so thoughtless as to address so unspecific a question to a layman at

that point in the proceedings, can it seriously by believed that under such
circumstances the defendant would have understood the question to be inviting
him to speak on the subject of mitigating factors to be considered in sentencing
even if the judge had nodded in his direction when asking 'Did you want to say
something?' Moreover, the answer 'Yes, sir' and the succeeding statement came
not from the defendant, but from his counsel (who was not the preceding
speaker). The obvious implication is the fact explicitly admitted twice in the
Government's brief in this case: that the question was addressed to defendant's
counsel and not to defendant himself.3
19

I am forced to conclude that the actual holding in this case makes Rule 32(a)
mean for less for this particular defendant than the Rule is declared to mean at
least for defendants tried in the future. Judges are warned that hereafter their
records must leave no doubt that a 'defendant has been issued a personal
invitation to speak prior to sentencing.' This, I think, is the correct meaning of
the Rule as it was adopted, and this defendant just like all others should be
accorded his right under it. He should not be denied that right either because of
his criminal record or because of fears conjured up about the number of
prisoners who might raise the same question in the event of a decision in this
defendant's favor. Bad men, like good men, are entitled to be tried and
sentenced in accordance with law, and when it is shown to us that a person is
serving an illegal sentence our obligation is to direct that proper steps be taken
to correct the wrong done, without regard to the character of a particular
defendant or to the possible effect on others who might also want to challenge
the legality of their sentences as they have the right to do 'at any time' under
Rule 35. If it has any relevance at all, the fact that there may be other prisoners
in this country's jails serving illegal sentences would seem to me to make it all
the more imperative that we grant appropriate relief in this case rather than
search for some obviously dubious excuse to deny this petitioner's claim.

20

I do not understand why it is necessary or legally correct to defeat this

prisoner's claim by invoking what appears to be a wholly new doctrine of
burden of proof. What, may I ask, is the burden a defendant must meet to show
he was not accorded the personal opportunity to address the judge before a
sentence is imposed? Is it proof beyond a reasonable doubt, by a preponderance
of the evidence, by the overwhelming weight of the evidence, or what? I
suppose from Mr. Justice FRANKFURTER'S opinion that it was the duty of
this defendant to show under some standard that when the judge said 'Did you
want to say something?' he neither pointed his finger, cast his eye nor nodded
his head in the defendant's direction, and that it was incumbent upon the
defendant to make this proof even though the Government admitted that the
question had been addressed to his counsel and not to the defendant himself. It

would seem to me, even in the absence of the Government's admission as to the
factual occurrence, that since when the question was asked defendant's counsel
immediately made a statement, the fair inference is that if there was any
'significant cast of the eye or * * * nod of the head,' it was directed toward
counsel who responded and not toward the defendant who said nothing. Yet it
is said that defendant's claim must be defeated because he failed to overcome
an inference, without basis in logic or law, of a fact which has been expressly
disclaimed by the Government in this case.
21

The language of Mr. Justice FRANKFURTER'S opinion does not jibe with the
harsh result reached in refusing to accord to petitioner the benefit of Rule 32(a).
As he points out, that Rule embodies the practice of the English-speaking world
for three centuries or more, based as he properly says upon the belief that, 'The
most persuasive counsel may not be able to speak for a defendant as the
defendant might, with halting eloquence, speak for himself.' A rule so highly
prized for so sound a reason for so long a time deserves to be rigorously
enforced by this Court, not merely praised in resounding glittering generalities
calculated to soften the blow of nonenforcement.

22

I would remand this case for resentence after compliance with Rule 32(a).

Rule 32(a) in pertinent part provides:

'Before imposing sentence the court shall afford the defendant an opportunity to
make a statement in his own behalf and to present any information in mitigation
of punishment.'

'Whoever, in committing, or in attempting to commit, any offense defined in

subsections (a) and (b) of this section, assaults any person, or puts in jeopardy
the life of any person by the use of a dangerous weapon or device, shall be
fined not more than $10,000 or imprisoned not more than twenty-five years, or
both.' 18 U.S.C. 2113(d), 18 U.S.C.A. 2113(d).

Petitioner further complains of an improper charge to the jury on Count 3. Rule

35 does not encompass all claims that could be made by direct appeal attacking
the conviction, but rather is limited to challenges that involve the legality of the
sentence itself.

'After being convicted, the defendant is usually so crushed as to hesitate to

make demands lest they bring increased punishment. The rule (Rule 32(a))
contemplates no such demand, and clearly, without the necessity of any

demand at that stage of the trial, the defendant's legal rights should be accorded
to him by the court.' Mixon v. United States, 5 Cir., 214 F.2d 364, 366 (Rives,
J., concurring).
2

An extensive and detailed review of the English and American common law
and statutory cases on this subject led one author to begin his conclusion with
the following sentence: 'Today, as always, allocution is an authoritative address
by the court to the prisoner as he stands at the bar for sentence.' Barrett,
Allocution, 9 Mo.L.Rev. 115, 232, at 254.

'* * * (R. No. 70, pp. 418). Then the court asked defense counsel if he
wanted to say something. In response, counsel spoke for leniency in sentencing
(R. No. 70, pp. 1819).' Brief for the United States, p. 11. (Emphasis
supplied.)
'Before sentencing, the court specifically addressed counsel: 'Did you want to
say something?" Brief for the United States, p. 31. (Emphasis supplied.)