404 U.S.

443
92 S.Ct. 589
30 L.Ed.2d 592

UNITED STATES, Petitioner,

v.
Forrest S. TUCKER.
No. 7086.
Argued Nov. 11, 1971.
Decided Jan. 11, 1972.

Syllabus
In imposing sentence upon a defendant convicted of bank robbery, a
federal district judge gave explicit consideration to the defendant's record
of previous convictions. It was later conclusively determined that two of
the previous convictions were constitutionally invalid, having been
obtained in violation Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9
L.Ed.2d 799. Held: Under these circumstances the Court of Appeals was
correct in remanding the case to the District Court for reconsideration of
the sentence imposed upon the defendant. Pp. 446449.
431 F.2d 1292, affirmed.
Allan A. Tuttle, Raleigh, N.C., for petitioner.
William A. Reppy, Jr., Durham, N.C., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.

In 1953 the respondent, Forrest S. Tucker, was brought to trial in a federal

district court in California upon a charge of armed bank robbery. He pleaded
not guilty. For female employees of the bank were called as witnesses for the
prosecution, and they identified the respondent as the robber. He testified in his
own behalf, denying participation in the robbery and offering an alibi defense.
To impeach the credibility of his testimony, the prosecution was permitted on
cross-examination to ask him whether he had previously been convicted of any
felonies. He acknowledged three previous felony convictions, one in Florida in

1938, another in Louisiana in 1946, and a third in Florida in 1950. At the

conclusion of the trial the jury returned a verdict of guilty. In the ensuing
sentencing proceeding the District Judge conducted an inquiry into the
respondent's background, and, the record shows, gave explicit attention to the
three previous felony convictions the respondent had acknowledged.1 The
judge then sentenced him to serve 25 years in prisonthe maximum term
authorized by the applicable federal statute, 18 U.S.C. 2113(d).
2

Several years later it was conclusively determined that the respondent's 1938
conviction in Florida and his 1946 conviction in Louisiana were
constitutionally invalid. This determination was made by the Superior Court of
Alameda County, California, upon that court's finding in a collateral proceeding
that those convictions had resulted from proceedings in which the respondent
had been unrepresented by counsel, and that he had been 'neither advised of his
right to legal assistance nor did he intelligently and understandingly waive this
right to the assistance of counsel.'2

Thereafter the respondent initiated the present litigation. Proceeding under 28

U.S.C. 2255, he filed a motion in the Federal District Court in which he had
been convicted in 1953, claiming that introduction at the 1953 trial of evidence
of his prior invalid convictions had fatally tainted the jury's verdict of guilt.
Upon consideration of the motion, the District Judge agreed that 'the use of the
constitutionally invalid prior convictions on cross-examination for
impeachment purposes was error,' but found that the error was harmless beyond
a reasonable doubt, in view of the overwhelming trial evidence that the
respondent had been guilty of the bank robbery. Tucker v. United States, D.C.,
299 F.Supp. 1376. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17
L.Ed.2d 705; Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d
284.

On appeal, the Court of Appeals for the Ninth Circuit agreed that it had been
'firmly proved that the evidence of prior convictions did not contribute to the
verdict obtained and that, with respect to the verdict of guilty, the error in
receiving such evidence was therefore harmless beyond a reasonable doubt.' It
went on, however, to find that there was 'a reasonable probability that the
defective prior convictions may have led the trial court to impose a heavier
prison sentence than it otherwise would have imposed.' Accordingly, the
appellate court affirmed the refusal to vacate the conviction, but remanded the
case to the District Court for resentencing 'without consideration of any prior
convictions which are invalid under Gideon v. Wainwright, 372 U.S. 335, 83
S.Ct. 792, 9 L.Ed.2d 799.' 431 F.2d 1292, 1293, 1294. The Government came
here with a petition for a writ of certiorari, which we granted. 402 U.S. 942, 91

S.Ct. 1616, 29 L.Ed.2d 110.

5

The government asks us to reverse the judgment of the Court of Appeals insofar
as it remanded this case to the District Court for resentencing. It argues that a
federal district judge has wide and largely unreviewable discretion in imposing
sentence, and that in exercising that discretion his relevant inquiry is not
whether the defendant has been formally convicted of past crimes, but whether
and to what extent the defendant has in fact engaged in criminal or antisocial
conduct. Further, the Government argues, in view of other detrimental
information about the respondent possessed at the time of sentencing by the
trial judge, it is highly unlikely that a different sentence would have been
imposed even if the judge had known that two of the respondent's previous
convictions were constitutionally invalid. Accordingly, the Government
concludes that to now remand this case for resentencing would impose an
'artificial' and 'unrealistic' burden upon the District Court.

It is surely true, as the Government asserts, that a trial judge in the federal
judicial system generally has wide discretion in determining what sentence to
impose. It is also true that before making that determination, a judge may
appropriately conduct an inquiry broad in scope, largely unlimited either as to
the kind of information he may consider, or the source from which it may
come. United States v. Trigg, 7 Cir., 392 F.2d 860, 864; Davis v. United States,
5 Cir., 376 F.2d 535, 538; Cross v. United States, 122 U.S.App.D.C. 380, 382,
354 F.2d 512, 514; United States v. Doyle, 2 Cir., 348 F.2d 715, 721; United
States v. Magliano, 4 Cir., 336 F.2d 817, 822; Fed.Rule Crim.Proc. 32(a)(2).
See Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337; North
Carolina v. Pearce, 395 U.S. 711, 723, 89 S.Ct. 2072, 2079, 23 L.Ed.2d 656.
The Government is also on solid ground in asserting that a sentence imposed by
a federal district judge, if within statutory limits, is generally not subject to
review. Gore v. United States, 357 U.S. 386, 393, 78 S.Ct. 1280, 1284, 2
L.Ed.2d 1405. Cf. Yates v. United States, 356 U.S. 363, 78 S.Ct. 766, 2
L.Ed.2d 837.

But these general propositions do not decide the case before us. For we deal
here, not with a sentence imposed in the informed discretion of a trial judge, but
with a sentence founded at least in part upon misinformation of constitutional
magnitude. As in Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed.
1690, 'this prisoner was sentenced on the basis of assumptions concerning his
criminal record which were materially untrue.' Id., at 741, 68 S.Ct., at 1255.
The record in the present case makes evident that the sentencing judge gave
specific consideration to the respondent's previous convictions before imposing
sentence upon him.3 Yet it is now clear that two of those convictions were

wholly unconstitutional under Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct.

792, 9 L.Ed.2d 799. 4
8

We need not speculate about whether the outcome of the respondent's 1938 and
1946 prosecutions would necessarily have been different if he had had the help
of a lawyer.5 Such speculation is not only fruitless, but quite beside the point.
For the real question here is not whether the results of the Florida and
Louisiana proceedings might have been different if the respondent had had
counsel, but whether the sentence in the 1953 federal case might have been
different if the sentencing judge had known that at least two of the respondent's
previous convictions had been unconstitutionally obtained.6

We agree with the Court of Appeals that the answer to this question must be
'yes.' For if the trial judge in 1953 had been aware of the constitutional
informity of two of the previous convictions, the factual circumstances of the
respondent's background would have appeared in a dramatically different light
at the sentencing proceeding. Instead of confronting a defendant who had been
legally convicted of three previous felonies, the judge would then have been
dealing with a man who beginning at age 17, had been unconstitutionally
imprisoned for more than ten years, including five and one-half years on a
chain gang.7 We cannot agree with the Government that a re-evaluation of the
respondent's sentence by the District Court even at this late date will be either
'artificial' or 'unrealistic.'8

10

The Gideon case established an unequivocal rule 'making it unconstitutional to

try a person for a felony in a state court unless he had a lawyer or had validly
waived one.' Burgett v. Texas, 389 U.S. 109, 114, 88 S.Ct. 258, 261, 19
L.Ed.2d 319. In Burgett we said that '(t)o permit a conviction obtained in
violation of Gideon v. Wainwright to be used against a person either to support
guilt or enhance punishment for another offense . . . is to erode the principle of
that case.' Id., at 115, 88 S.Ct., at 262. Erosion of the Gideon principle can be
prevented here only by affirming the judgment of the Court of Appeals
remanding this case to the trial court for reconsideration of the respondent's
sentence.

11

The judgment is affirmed.

12

Mr. Justice POWELL and Mr. Justice REHNQUIST took no part in the
consideration or decision of this case.

13

Mr. Justice BLACKMUN, with whom THE CHIEF JUSTICE joins, dissenting.

14

The Court's opinion, of course, is a fine and acceptable exposition of abstract

law. If I felt that it fit Tucker's case, I would join it. The Court, however, fails to
mention and to give effect to certain facts that, for me, are controlling:

15

1. At his armed bank robbery trial in May 1953 Tucker was no juvenile. He
was 32 years of age and was represented by counsel. A reading of his trial
testimony discloses that he was very knowledgeable indeed. Tucker testified on
cross-examination at that trial not only as to the fact of three prior state felony
convictions, but, as well, as to his engaging in the proscribed conduct
underlying two of those convictions. He stated flatly (a) that in 1938 he broke
into a garage and took a man's automobile, and (b) that in 1946 he broke into a
jewelry store at night.1 He also acknowledged that, while waiting for
transportation to prison in Florida after the third conviction, he escaped and
went to California using an assumed name.2 Thus, wholly apart from formal
convictions, Tucker conceded criminal conduct on his part on three separate
prior occasions.

16

2. The judge who presided at Tucker's pre-Gideon trial for armed bank robbery
in 1953 was the Honorable George B. Harris of the United States District Court
for the Northern District of California. After Tucker's conviction by a jury
Judge Harris imposed the 25-year maximum sentence prescribed by 18 U.S.C.
2113(a) and 2113(d). Despite the interim passage of 16 years, Tucker's
present petition, filed pursuant to 28 U.S.C. 2255, also came before the very
same Judge Harris, then Chief Judge of the Northern District. The judge denied
relief on the ground that the error in the use, for impeachment purposes, of two
constitutionally invalid prior convictions was harmless beyond a reasonable
doubt (a) because the issue of guilt or innocence was not at all close, (b)
because Tucker's testimony 'had been successfully impeached by prior
inconsistent statements made to the Federal Bureau of Investigation agents, and
by rebuttal testimony which demonstrated that portions of (his) testimony
(were) improbable and untrue,' and (c) because his 'testimony was successfully
impeached, and, in fact, demolished by additional items.' 299 F.Supp. 1376,
1378 (ND Cal.1969). As to all this, on the issue of guilt, the Court of Appeals
agreed, 431 F.2d 1292, 1293 (CA9 1970), and this Court today does not rule
otherwise.

17

Chief Judge Harris' 2255 ruling translates for me into something completely
inescapable, namely, that in 1953, wholly apart from the 1938 and 1946
convictions, he would have imposed the 25-year maximum sentence anyway.
Surely Judge Harris, of all people, is the best source of knowledge as to the
effect, if any, of those two convictions in his determination of the sentence to
be imposed. Yet the Court speculates that, despite his identity and despite his

obvious disclaimer, Judge Harris might have been influenced in his sentencing
by the fact of the two prior convictions, rather than by the three criminal acts
that Tucker himself acknowledged.
18

On remand the case presumably will go once again to Judge Harris, and
undoubtedly the same sentence once again will be imposed. Perhaps this is all
worthwhile and, if so, I must be content with the Court's disposition of the case
on general principles. I entertain more than a mild suspicion, however, that this
is an exercise in futility, that the Court is merely marching up the hill only to
march right down again, and that it is time we become just a little realistic in
the face of a record such as this one.

19

I would reverse the judgment of the Court of Appeals insofar as it remands the
case to the District Court for resentencing.

An FBI agent was present at the sentencing proceeding. The District Judge
began the proceeding by stating, 'I would like to have the Agent's testimony
with respect to the prior convictions.'
The agent testified, in relevant part, as follows: 'As the defendant said, when he
was a juvenile, I believe it was in 1938, he received a ten-year sentence in
Florida . . ..
'. . . He said there was five years and four months on the chain gang . . . and he
said he actually served two years beyond that . . ..
'In 1950 Mr. Tucker was sentenced to a five year term in the State of Florida,
for, I believe it was burglary, and on January the 5, 1951, while in custody in
the hospital, he escaped.
'In 1946 he was convicted in the State of Louisiana on a felony charge and
given a term of 4 years.
'. . . I believe it was a burglary.'

The decision of the Superior Court of Alameda County is unreported, but the
accuracy of that court's determination is not questioned. See In re Tucker, 64
Cal.2d 15, 48 Cal.Rptr. 697, 409 P.2d 921; Tucker v. Craven, 9 Cir., 421 F.2d
139.

See n. 1, supra.

The respondent's convictions occurred years before the Gideon case was
decided, but the impact of that decision was fully retroactive. Pickelsimer v.
Wainwright, 375 U.S. 2, 84 S.Ct. 80, 11 L.Ed.2d 41.

It is worth pointing out, however, that to make the contrary assumption, i.e.,
that the prosecutions would have turned out exactly the same even if the
respondent had had the assistance of counsel, would be to reject the reasoning
upon which the Gideon decision was based:
'(R)eason and reflection require us to recognize that in our adversary system of
criminal justice, any person haled into court, who is too poor to hire a lawyer,
cannot be assured a fair trial unless counsel is provided for him. . . . That
government hires lawyers to prosecute and defendants who have the money
hire lawyers to defend are the strongest indications of the widespread belief
that lawyers in criminal courts are necessities, not luxuries.' 372 U.S., at 344, 83
S.Ct., at 796.

The constitutional validity of the respondent's third convictionin Florida in

1950has not been determined. The Government states in its brief that it has
been informed by the clerk of the Criminal Court of Records of Dade County,
Florida, that the respondent had counsel at that trial. The respondent's brief
states that the respondent has advised his present counsel that at the 1950
Florida proceeding he specifically asked the judge to appoint counsel for him
because of his indigence and that the request was denied.

See n. 1, supra.

As noted above, at 445, and emphasized in the dissenting opinion, the trial
judge, in ruling upon the respondent's present 2255 motion, held that the
wrongful use of the invalid previous convictions to impeach the respondent's
testimony at the 1953 trial was harmless error, in view of the overwhelming
evidence that he was guilty of the bank robbery. But the respondent's guilt of
that offense hardly 'translates' into an 'inescapable' assumption that the trial
judge would have imposed a maximum 25-year prison sentence if he had
known that the respondent had already been unconstitutionally imprisoned for
more than 10 years. It would be equally callous to assume, now that the
constitutional invalidity of the respondent's previous convictions is clear, that
the trial judge will upon reconsideration 'undoubtedly' impose the same
sentence he imposed in 1953.

'Q. . . . You were convicted in Florida, were you not?

'A. Yes, I was.

'Q. For what?

'A. Automobile theft, breaking and entering.
'Q. What do you mean 'automobile theft, breaking and entering'?
'A. It boils down to this, I was 17 years old, broke into a man's garage, took his
automobile, went joy riding in it, received a ten year sentence for it.
'Q. At the age of 17 you received a ten year sentence?
'A. Yes.
'Q. When was that?
'A. 1938.
'Q. You broke into a place and stole a car?
'A. Yes.
'Q. What kind of car did you steal?
'A. '36 Ford.
'Q. Tell us about your other convictions.
'A. 1946 I broke into a jewelry store.
'Q. Where?
'A. New Orleans.
'Q. Night or day?
'A. Night.' Trial Transcript 161162.
2

'Q. Why did you use the name of Rick Bellew, if you did?
'A. Because I was a fugitive from Florida.
'Q. You were a what?
'A. A fugitive.
'Q. A fugitive from what?

'A. I had been sentenced to a term in Florida for the third conviction that you
just brought up, and while waiting transportation to prison I was given a chance
tonobody was watching me, and I walked off down there and came out to
California.
'Q. Where did you walk away from?
'A. I was having my appendix removed in the hospital . . ..'
Trial Transcript 166.
'. . . (H)e found me guilty and subsequently I escaped and came out here. . . .'
Sentencing Transcript 230.