FARRIS, Circuit Judge:
At about 5:00 p.m. on January 11, 1982, twenty-three-year-old Robin Bishop departed Los Angeles driving alone to her home in Las Vegas. At 9:23 p.m. on the same date, defendant George Michael Gwaltney, then an officer with the California Highway Patrol, reported by radio that he had discovered a woman's body beside a frontage road just off Interstate 15 some 30 miles northeast of Barstow, California. Robin Bishop had been killed by a single bullet that entered the back of her head. Bruises on her wrists indicated that she had been handcuffed ten to twenty minutes before she died. Autopsy revealed fresh semen in her vaginal cavity.
The district court had original jurisdiction pursuant to 18 U.S.C. § 3231. Jurisdiction in this court is based on 28 U.S.C. § 1291.
THE CONVICTION
I.
At trial the government adduced considerable evidence concerning the characteristics of defendant's semen, the semen removed from Bishop's vaginal cavity during autopsy, semen stains found on the back seat of the patrol car driven by Gwaltney on the night of the murder, and semen stains found on the blue jeans worn by Bishop on the night of her death. Analysis of the semen removed from Bishop's vaginal cavity revealed that the donor had type A blood and secreted his typing antigen into his semen. It is undisputed that some 29% of the male population are type A secretors. Dried semen found on the back seat of the patrol car was also found to have been donated by a type A secretor, as was the dried semen found on Bishop's blue jeans. An enzyme found in the semen of 40% of the population, PGM 1+1+, was also identified in the semen stain found on the back seat of the patrol car. According to undisputed expert testimony, the occurrence of this enzyme is independent of blood type and secretor status. Analysis of a semen sample taken from Gwaltney revealed that he is a type A secretor exhibiting the PGM 1+1+ enzyme. Additionally, Dr. Edward Blake, the prosecution's forensic serologist, testified that using a relatively new procedure known as an immunobead assay, he detected anti-sperm antibodies in a sample of Gwaltney's semen, as well as in the semen stains found on Bishop's jeans and on the back seat of the patrol car. According to the testimony at trial, anti-sperm antibodies occur in less than 5% of the male population.
Gwaltney contends that no evidence concerning detection of anti-sperm antibodies should have been admitted for any purpose as the government failed to demonstrate that the principle upon which such evidence was based was "`sufficiently established to have gained general acceptance in the particular field to which it belongs.'" United States v. Kilgus, 571 F.2d 508, 510 (9th Cir.1978), quoting Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923). Additionally, he contends that the trial court erred in admitting statistical evidence concerning the percentage of the population sharing Gwaltney's seminal characteristics as such evidence was confusing to the jury and unduly prejudicial.
A.
The general test regarding the admissibility of expert testimony is whether the jury can receive "appreciable help" from such testimony. United States v. Solomon, 753 F.2d 1522, 1525 (9th Cir.1985). See also United States v. Awkard, 597 F.2d 667, 669 (9th Cir.), cert. denied, 444 U.S. 885, 100 S.Ct. 179, 62 L.Ed.2d 116 (1979) and 444 U.S. 969, 100 S.Ct. 460, 62 L.Ed.2d 383 (1979); United States v. Amaral, 488 F.2d 1148, 1152 (9th Cir.1973). Testimony concerning the results of a fundamentally unreliable test procedure is of scant value to a jury. See generally United States v. Downing, 753 F.2d 1224, 1237-39
We agree that as the immunobead assay has yet to gain general judicial recognition, "the proponent of such evidence has the burden of laying a proper foundation showing the underlying scientific basis and reliability of the expert's testimony." United States v. Marshall, 526 F.2d 1349, 1360 (9th Cir.1975), cert. denied, 426 U.S. 923, 96 S.Ct. 2631, 49 L.Ed.2d 376 (1976). See also Falsia, 724 F.2d at 1341 ("The burden of laying a proper foundation showing the underlying scientific basis and reliability of expert testimony is on the proponent of such evidence."). Having reviewed in meticulous detail the transcripts of the pretrial hearing on Gwaltney's motion to exclude and the government's lengthy offer of proof at trial, we conclude that the government presented ample evidence that the immunobead assay is sufficiently reliable to warrant admission of Dr. Blake's testimony concerning the detection of anti-sperm antibodies.
Gwaltney did not contest the validity of the antibody theory expounded by the government's experts. The testimony of Dr. Blake, together with that of Dr. Richard Bronson, established the scientific basis underlying the immunobead assay procedure. To the extent Gwaltney complains of the application of the procedure in this instance, he does so in the wrong forum. Criticism of the application of a valid test in a particular instance bears on weight, not admissibility. Bowers, 534 F.2d at 193-94. Gwaltney had ample opportunity to cross-examine the government's experts concerning the controls employed by Dr. Blake and to present conflicting expert testimony. The jury was properly instructed to give the expert testimony such weight as it deserved.
B.
Gwaltney's contention that the government impermissibly established his identity "by mathematical formula," is without merit. He "has no quarrel with the statistical evidence that he was part of the 29% of the population who are Type A secretors or that his PGM 1 plus 1 [sic] group constitutes 40% of the population." Instead, he contends that the court erred in admitting testimony that these independent characteristics occur together in only 12% of the male population. While "the interjection into the criminal trial process of sophisticated theories of mathematical probability raises a number of serious concerns," United States ex rel. DiGiacomo v. Franzen, 680 F.2d 515, 518 (7th Cir.1982), Gwaltney has not suggested how simple multiplication of the percentages of the population sharing the seminal characteristics exhibited by Gwaltney was so potentially confusing or misleading as to require exclusion. Statistical evidence is not inadmissible per se. See, e.g., United States v. Kennedy, 714 F.2d 968, 971 (9th Cir.1983), cert. denied, 465 U.S. 1034, 104 S.Ct. 1305, 79 L.Ed.2d 704 (1984); Scott v. Perini, 662 F.2d 428, 430 (6th Cir.1981), cert. denied, 456 U.S. 909, 102 S.Ct. 1758, 72 L.Ed.2d 167 (1982). Any potential prejudice was not so pronounced as to render admission of the testimony an abuse of discretion, particularly in light of the instruction given by the trial judge concerning the permissible use
Gwaltney further contends that reversal is warranted because the prosecutor, in violation of the trial court's instructions, multiplied the 12% figure by the 5% of the population believed to have antisperm antibodies thereby further limiting the class of individuals who could have contributed the semen found on the seat of the patrol car. During closing argument, the prosecutor suggested the multiplication to the jury, though he did not perform it explicitly:
The suggestion is neither misleading nor confusing. Nor does the context betray an attempt by the government to reduce the ultimate question of innocence or guilt to one of mathematical probabilities. Whether the prosecutor violated an explicit instruction from the trial judge is a matter between judge and prosecutor. It does not infect the conviction. It was not plain error for the trial judge to allow this argument in the absence of a defense objection.
II.
On the day after Bishop was murdered, Victoria Graham, a dispatcher with the California Highway Patrol, asked Gwaltney whether the woman whose body he had discovered the previous night was "cute." Over Gwaltney's objection Graham testified that Gwaltney responded: "No, she was a dog." Gwaltney argues that the remark was irrelevant and highly prejudicial. While he fails to challenge specifically its admission we infer such a challenge from his comments concerning relevancy. Gwaltney further contends that the court abused its discretion by failing to prevent the prosecutor from referring to the "dog" remark in closing argument, despite the absence of a contemporaneous objection.
We need not decide whether the trial court abused its discretion in admitting Graham's testimony concerning Gwaltney's reference to Bishop as a "dog." It is more probable than not that the admission of testimony concerning the "dog" remark "did not materially affect the verdict." United States v. Rubio, 727 F.2d 786, 798 (9th Cir.1983), citing United States v. Valle-Valdez, 554 F.2d 911 (9th Cir.1977). See also Fed.R.Evid. 103(a) ("Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected"); and Fed.R.Crim.P. 52(a) ("Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded").
In the absence of an objection by defense counsel, a prosecutor's remarks in closing argument are reviewed only for plain error. United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 1046, 84 L.Ed.2d
III.
On January 16, 1982, five days after the murder, Detective Lynn Waggoner of the San Bernardino County Sheriff's Office visited numerous gun shops in the Barstow area to determine whether anyone had attempted to purchase parts for a Smith and Wesson Model 19 revolver, by then apparently believed to be the type of weapon with which Robin Bishop had been killed. At that time, William Addington, owner and operator of the Powder Horn Gun Shop in Barstow, denied that anyone had visited his shop in search of such parts.
At trial, Addington testified that Gwaltney had visited his gun shop the day after the Bishop homicide in search of a barrel for a Smith and Wesson Model 19 revolver. Addington admitted that he had withheld this information from authorities throughout the state-court proceedings. Addington further testified that in May 1983, in the course of an informal conversation in his shop concerning the entry of the FBI into the Bishop case, he revealed that Gwaltney had lied "about his gun" during the state-court proceedings. Over Gwaltney's hearsay objection, John Landrum testified that he overheard Addington state "that the day following the death of Miss Bishop, ... a highway patrolman came in and inquired concerning the barrel to fit a model 19 Smith and Wesson pistol."
A prior consistent statement is admissible to rehabilitate a witness accused of recent fabrication, Fed.R.Evid. 801(d)(1)(B), if the statement was made before the witness had a motive to fabricate. United States v. Rohrer, 708 F.2d 429, 433 (9th Cir.1983). Gwaltney contends that Landrum should not have been permitted to testify as to the comments he overheard Addington make because the statements were not made prior to the fabrication, which Gwaltney incongruously asserts was Addington's denial in January of 1982 that Gwaltney had come into his gun shop seeking a replacement barrel.
The fabrication of which the rule speaks is the alleged fabrication underlying the witness's trial testimony, not some fabrication resulting in a prior inconsistent out-of-court statement, as Gwaltney suggests. See United States v. Stuart, 718 F.2d 931, 934 (9th Cir.1983). The trial court did not abuse its discretion by admitting Landrum's account of Addington's out-of-court statement.
IV.
Gwaltney attempted to persuade the jury that an unidentified person broke into his house and stole his gun in an attempt to frame him for the murder of Robin Bishop. Despite the testimony of certain police officers that Gwaltney's house had not been burglarized, the trial court excluded testimony offered by Gwaltney of signs of forced entry into his home detected by a defense investigator during the second trial.
A court's evidentiary rulings will be overturned only for abuse of discretion. Rohrer, 708 F.2d at 432. As we do not have a firm and definite conviction that the trial court committed a clear error of judgment, Potlatch Corp. v. United States, 679 F.2d 153, 157 (9th Cir.1982), in excluding evidence that 15 months after the murder the lock on a sliding glass door on Gwaltney's home showed signs of forced entry, we cannot say that the trial court abused its discretion. In any case, reversal would be unwarranted unless we were to find it more probable than not that the alleged
V.
In response to a defense summation characterized by the district court as "a considerable and very hard attack on the integrity of the government and the prosecutor," the prosecutor opened his rebuttal argument with a series of references to what he termed the misrepresentations of defense counsel. Defense counsel objected to this "personal attack" and the prosecutor agreed to soften his rhetoric. Gwaltney argues that the prosecutor's comments, both before and after the defense objection, amounted to misconduct warranting reversal.
"[C]ounsel are necessarily permitted a degree of latitude in the presentation of their closing summations." United States v. Prantil, 764 F.2d 548, 555 (9th Cir.1985), quoting United States v. Potter, 616 F.2d 384, 392 (9th Cir.1979), cert. denied, 449 U.S. 832, 101 S.Ct. 101, 66 L.Ed.2d 37 (1980). While courts must allow the prosecution to strike "hard blows" based on the evidence presented and all reasonable inferences therefrom, they may not permit "foul blows." Prantil, 764 F.2d at 555. See also United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 1042, 85 L.Ed.2d 1 (1985); Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935). Given the necessarily wide latitude accorded counsel in summation, distinguishing the foul from the fair "will invariably be a question of degree, and therefore not an easy task for precise measurement." Prantil, 764 F.2d at 555.
The Supreme Court has admonished counsel to refrain from "unfounded and inflammatory attacks on the opposing advocate." Young, 105 S.Ct. at 1043. See also ABA Standards for Criminal Justice 4-7.8 at 4.99 ("A personal attack by the prosecutor on defense counsel is improper."). Still, "[i]nappropriate prosecutorial comments, standing alone, would not justify a reviewing court to reverse a criminal conviction obtained in an otherwise fair proceeding." Young, 105 S.Ct. at 1045. Rather, "the remarks must be examined within the context of the trial to determine whether the prosecutor's behavior amounted to prejudicial error." Id. See also United States v. Birges, 723 F.2d 666, 672 (9th Cir.) ("Improprieties in counsel's arguments to the jury do not constitute reversible error `unless they are so gross as probably to prejudice the defendant....'"), cert. denied, 466 U.S. 943, 104 S.Ct. 1926, 80 L.Ed.2d 472 (1984), quoting, United States v. Parker, 549 F.2d 1217, 1222 (9th Cir.), cert. denied, 430 U.S. 971, 97 S.Ct. 1659, 52 L.Ed.2d 365 (1977). The "invited reply" or "invited response" rule has been invoked to ensure inquiry into the fairness of the trial as a whole. See Young, 105 S.Ct. at 1044-46; Lawn v. United States, 355 U.S. 339, 359 n. 15, 78 S.Ct. 311, 323 n. 15, 2 L.Ed.2d 321 (1958).
Young, 105 S.Ct. at 1045.
The prosecutor did not overstep the bounds of proper advocacy in addressing what he perceived to be defense counsel's "misrepresentations" of the record. Viewed within the context of the entire trial, particularly in light of the equally forceful remarks of defense counsel, the remarks were well within the range of proper advocacy. Further, the record would not support a conclusion that it is more probable than not that the remarks materially affected the verdict. See Prantil, 764 F.2d at 556.
Referring to certain government witnesses, the prosecutor stated: "[T]hese men who testified here, ladies and gentlemen, are professionals and they will have to tell the truth." Defendant contends that
We recognize that "[a] prosecutor commits misconduct if the jury can reasonably believe that he `was indicating a personal belief in the witness's credibility.'" United States v. Tham, 665 F.2d 855, 862 (9th Cir.1981), cert. denied, 456 U.S. 944, 102 S.Ct. 2010, 72 L.Ed.2d 466 (1982), quoting United States v. Roberts, 618 F.2d 530, 537 (9th Cir.1980). Gwaltney failed to enter a contemporaneous objection, thus depriving the trial court of the opportunity to take remedial action. We therefore review only for plain error. Fed.R.Crim.P. 52(b). See Young, 105 S.Ct. at 1046-47; Birges, 723 F.2d at 672. "[C]ounsel for the defense cannot as a rule remain silent, interpose no objections, and after a verdict has been returned seize for the first time on the point that the [prosecutor's] comments to the jury were improper and prejudicial." United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 238-39, 60 S.Ct. 811, 851-52, 84 L.Ed. 1129 (1940). Evaluating the challenged "vouching" against the backdrop of the entire record, see Young, 105 S.Ct. at 1047, the prosecutor's comment fails to rise to the level of plain error. The statement, even if inappropriate, was not "such as to undermine the fundamental fairness of the trial and contribute to a miscarriage of justice." Young, 105 S.Ct. at 1047.
VI.
Gwaltney's remaining assignments of error are without merit.
Evidence that Gwaltney and a woman friend had visited a "secluded spot" near the murder scene was admitted upon a stipulation offered by Gwaltney. Stipulations freely and voluntarily entered into in criminal trials are as binding and enforceable as those entered into in civil actions. United States v. Campbell, 453 F.2d 447, 451 (10th Cir.1972). That Gwaltney offered the stipulation to avoid possible admission of the evidence in more damaging form does not render the stipulation involuntary. Having stipulated to the admission of evidence concerning his familiarity with the "secluded spot," Gwaltney will not now be heard to suggest that the prejudicial effect of the statement outweighed its probative value.
Had Gwaltney called a police officer to testify to his reputation for nonviolence, the government proposed to rebut with testimony concerning Gwaltney's allegedly lascivious search of a female motorist. When the district court expressed an inclination to allow such rebuttal, defendant elected not to call the officer. If, as Gwaltney asserts, "important, credible defense character witnesses" thereby failed to testify, it was as a result of counsel's tactical decision. The district court made no reviewable ruling on the admissibility of the proposed rebuttal testimony.
Finally, the challenged jury instructions, viewed "in the context of the overall charge," United States v. Park, 421 U.S. 658, 674, 95 S.Ct. 1903, 1912, 44 L.Ed.2d 489 (1975), quoting Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400-01, 38 L.Ed.2d 368 (1973), fairly and adequately covered the issues presented. United States v. Marabelles, 724 F.2d 1374, 1382-83 (9th Cir.1984). (1) As the court instructed, "it is not necessary for the government to prove the defendant was thinking in constitutional terms at the time of the incident, for a reckless disregard for a person's constitutional rights is evidence of specific intent to deprive that person of those rights." See e.g., United States v. Ellis, 595 F.2d 154, 161-62 (3d Cir.), cert. denied, 444 U.S. 838, 100 S.Ct. 75, 62 L.Ed.2d 49 (1979). (2) The use of an example of conduct engaged in under color of law neither usurped the function of the jury nor suggested that one who wears a uniform and carries a firearm necessarily acts under color of law. The instruction, read as a whole, properly focused attention on whether Gwaltney acted or purported to act under color of law in assaulting or shooting Robin Bishop. Cf. United States v. Screws, 325 U.S. 91, 65 S.Ct. 1031, 89
The conviction is affirmed.
THE SENTENCE
The district court sentenced Gwaltney to "imprisonment for a maximum term of 90 years" and ordered that Gwaltney "become eligible for parole under 18 U.S.Code, Section 4205(b)(1) upon serving a minimum term of 30 years." Gwaltney contends that by requiring that he serve 30 years before becoming eligible for parole, the trial court exceeded its sentencing authority.
Parole eligibility is governed by 18 U.S.C. § 4205. Section 4205(a) provides:
Under § 4205(a) a federal prisoner serving a term of more than a year automatically becomes eligible for release on parole after serving one-third of the prescribed sentence or ten years, whichever is less. Gwaltney contends that § 4205(a) delimits the power of the sentencing judge to prescribe a minimum term of incarceration. However, § 4205(b) plainly provides the sentencing judge alternatives to the automatic eligibility of § 4205(a):
Read in conjunction, sections 4205(a) and 4205(b) provide that a federal prisoner sentenced to more than a year's incarceration automatically becomes eligible for parole after serving one-third of his sentence or ten years, whichever is less, unless the sentencing judge 1) specifies in the sentence a minimum period of incarceration, which minimum may not exceed one-third of the maximum sentence imposed, or 2) sets a maximum period of incarceration and specifically commits all consideration of appropriate release date to the discretion of the parole commissioner. Gwaltney's contention that § 4205(b)(1) permits the sentencing judge to advance the date of parole eligibility otherwise established under § 4205(a) but does not authorize the judge to postpone the date of eligibility beyond ten years is thus inconsistent with the plain language of the statute. Section 4205(a) provides for automatic eligibility after service of one-third of the designated sentence or ten years, whichever is shorter, except as otherwise provided by law. Section 4205(b)(1) provides otherwise, but does not distinguish between advancement and postponement of parole eligibility.
In United States v. O'Driscoll, 761 F.2d 589 (10th Cir.1985), cert. denied, 475 U.S. 1020, 106 S.Ct. 1207, 89 L.Ed.2d 320 (1986), the Court of Appeals for the Tenth Circuit held that under § 4205(b)(1) a sentencing court may prescribe a minimum period of incarceration in excess of ten years, so long as that minimum does not exceed one-third of the maximum sentence imposed: "[T]he Congress, in enacting § 4205(b)(1) specially allowed the trial courts to bypass the Parole Commission if the `ends of justice and the best interests of the public' so require." O'Driscoll, 761 F.2d at 596. While no other court of appeals has directly reached the question, dictum from the Fifth Circuit suggests that a like result would obtain there:
United States v. Pry, 625 F.2d 689, 692 (5th Cir.1980), cert. denied, 450 U.S. 925, 101 S.Ct. 1379, 67 L.Ed.2d 355 (1981). See also United States v. Addonizio, 442 U.S. 178, 189 n. 15, 99 S.Ct. 2235, 2242 n. 15, 60 L.Ed.2d 805 (1979) ("[t]he trial court may set a defendant's eligibility for parole at any point up to one-third of the maximum sentence imposed"); United States v. Whitley, 473 F.Supp. 23, 24 (E.D.Mich.1979) (through the provisions of § 4205(b) "the sentencing judge, if he/she wishes, can bypass the one-third (1/3) or ten (10) year requirement of § 4205(a)").
In light of the plain meaning of § 4205, its prior judicial interpretation, and the inconclusive nature of the legislative history, we hold that the trial court did not exceed its authority by providing that Gwaltney
AFFIRMED.
NORRIS, Circuit Judge, concurring in part and dissenting in part:
I concur in the court's judgment affirming Gwaltney's conviction. I disagree, however, with the majority's conclusion that the district judge had statutory authority to render Gwaltney ineligible for parole for a term of 30 years. I believe that 18 U.S.C. § 4205(a) reflects a clearly and firmly expressed Congressional mandate that, barring specific statutory exceptions, no federal prisoner shall remain locked up for longer than ten years without receiving a parole hearing.
A common sense reading of the statutory language and the legislative history refutes the majority's interpretation of the statute. The language of section 4205(a) that "a prisoner shall be eligible for release on parole ... after serving ten years of a life sentence of over 30 years ...,"
I recognize that any interpretation of section 4205(a) must account for the limiting phrase "except to the extent otherwise provided by law." The majority relies heavily on this "except" clause, reading into it a Congressional intent to refer to the very next subsection of the statute, 4205(b). In other words, the majority takes the position that in subsection (a) Congress mandated a ten-year limit on parole ineligibility, then turned around in subsection (b) and authorized individual judges to circumvent that limitation anytime they imposed a maximum sentence in excess of 30 years. Surely if Congress had intended to confer upon individual sentencing judges such unbridled discretion to disregard the command of section 4205(a), it would have said so explicitly. It strikes me as highly improbable that Congress, in using the unspecific
I submit that the import of the language, "except as otherwise provided by law," is that Congress intended to refer to other statutes specifically precluding or restricting parole. For example, the exception phrase in section 4205(a) has been used to preclude parole for District of Columbia offenders when that federal jurisdiction had a specific statutory prohibition of parole eligibility for first degree murder. Bryant v. Civiletti, 663 F.2d 286, 292 (D.C.Cir.1981); Frady v. U.S. Bureau of Prisons, 570 F.2d 1027, 1029 (D.C.Cir.1978). Another example is 21 U.S.C. § 848(c), which explicitly prohibits parole for certain drug offenders. See United States v. Valenzuela, 646 F.2d 352, 254 (9th Cir.1980).
Moreover, the majority's expansive reading of the "except" clause produces a logical anomaly. Under the majority's interpretation, a prisoner sentenced to a term longer than 30 years for a civil rights violation may, as in Gwaltney's case, be required to serve a minimum sentence longer than ten years before becoming eligible for parole. Yet had Gwaltney been sentenced to a life term, he would automatically become eligible for parole after ten years. Section 4205(b)(1) empowers the sentencing judge to impose "a minimum term at the expiration of which the prisoner shall become eligible for parole, which term may be less than but shall not be more than one-third of the maximum sentence imposed by the court...." Because it is impossible to know when a prisoner will have served one-third of a life term, subsection (b) obviously cannot apply to a life term. Thus had Gwaltney been convicted under the federal murder statute and not sentenced to death, he would have received a mandatory life term (18 U.S.C. § 1111(b) (1982); United States v. Fountain, 768 F.2d 790, 799, amended, 777 F.2d 345 (7th Cir.1985)), and would have been automatically eligible for parole after ten years. Yet the majority's quirky reading of the statute allows his conviction under the civil rights statute to result in a 30-year wait for a parole hearing. There are other bizarre ramifications to the majority's reading of the statute. For example, while a first degree murderer who is not sentenced to death must be sentenced to a life term and become eligible for parole after ten years, a second degree murderer could be sentenced to a term greater than 30 years and be required to wait longer than ten years for a parole hearing. 18 U.S.C. § 1111(b) (1982).
The majority brushes off the legislative history of section 4205 as "inconclusive." Supra at 1388. To the contrary, the legislative history strongly supports my reading of the statute. The parole eligibility provisions in the Parole Commission and Reorganization Act of 1976 essentially recodified the scheme set forth in the Federal Sentencing Act of 1958. See S.Rep. No. 369, 94th Cong., 1st Sess., 22, reprinted in 1976 U.S.Code Cong. & Ad.News 335, 343: "The statutory basis for eligibility for parole for federal prisoners ... remains unchanged." Current section 4205(a) derives from former section 4202, which provided that a prisoner would be eligible for parole "after serving one-third of such term or terms or after serving fifteen years of a life sentence or of a sentence of over forty-five years." Act of June 25, 1948, ch. 645, 62 Stat. 854; July 13, 1951, ch. 277, 65 Stat. 150 (repealed 1976). Current section 4205(b) replicates former section 4208(a). Act of Aug. 25, 1958, 72 Stat. 845 (repealed 1976). Sections 4202 and 4208(a) under the 1958 Act were combined into current section 4205 by the 1976 Act.
The legislative history of the 1958 Act shows that Congress intended to provide for flexible parole options by authorizing sentencing judges to set a parole hearing date earlier than the lesser of one-third of the term or 15 years:
S.Rep. No. 2013, 85th Cong., 2d Sess. 2, reprinted in 1958 U.S.Code Cong. & Ad.News 3891, 3896-97 (emphasis added).
This same language was carried into the House Conference Report on the amendments made by the Senate concerning former section 4208, the predecessor of section 4205(b):
Conference Report, Statement of the Managers on the part of the House on H.R.J.Res. 424, reprinted in 1958 U.S.Code Cong. & Ad.News 3891, 3905 (emphasis added).
In enacting the 1976 Act, Congress incorporated the sentencing alternatives of the 1958 Act, merely reducing the maximum possible parole ineligibility term from 15 to ten years. The ten-year limit on parole ineligibility seems to have been a clearly understood feature of the legislation. For example, Representative Danielson, a member of the House Judiciary Committee and one of the bill's floor managers, said:
121 Cong.Rec. 15,703 (1975). Thus, the majority's interpretation of section 4205 not only derives no support from the legislative history, it is antithetical to Congress' intent as expressed in that legislative history.
Courts interpreting the parole eligibility scheme of the 1958 Act repeatedly observed that former section 4208 was intended strictly as an early parole option for sentencing judges. See United States v. Price, 474 F.2d 1223, 1228 (9th Cir.1973) (referring to former sections 4208 and 4209 as "early parole provisions"). As then Circuit Judge Blackmun stated in United States v. Jones, 419 F.2d 593, 595 (8th Cir.1969): "Section 4208(a)(1) [now 4205(b)(1)] ... authorizes the sentencing court to set an earlier time for parole eligibility than would otherwise be the case under the one-third-of-the-term measure established by section 4202 [now 4205(a)]." (Emphasis added). Moreover, in United States v. Addonizio, 442 U.S. 178, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979), the Supreme Court recognized that in both the 1976 Act and the 1958 Act, Congress allowed judges to accelerate parole eligibility, while placing the ultimate power of release with the parole authority:
442 U.S. at 188-89 (footnotes omitted) (emphasis added).
The majority seems oblivious to the system of checks and balances that Congress built into the parole process. Though the judiciary is responsible for imposing sentences, the executive branch — through the Parole Commission — takes a second look at a prisoner and makes the "final determination of precisely how much time an offender must serve...." S.Rep. No. 369, 94th Cong., 1st Sess. 16, reprinted in 1976 U.S.Code Cong. & Ad.News 335, 337. The Parole Commission must weigh a number of complex factors in making its decision, not the least of which is "the likelihood that an offender will refrain from future acts." Id. The Parole Commission's exercise of hindsight is necessary because, at the time of sentencing, a judge cannot lay claim to complete prescience. Thus, "parole provides a means of releasing those inmates who are ready to be responsible citizens, and when continued incarceration, in terms of the needs of law enforcement, represents a misapplication of tax dollars." S.Rep. No. 369, 94th Cong., 1st Sess. 16, reprinted in 1976 U.S.Code Cong. & Ad.News 335, 338. Of equal importance, the Parole Commission is engaged in "balancing differences in sentencing policies and practices between judges and courts in a system that is as wide and diverse as the Federal criminal justice system." S.Rep. No. 369, 94th Cong., 1st Sess. 16, reprinted in 1976 U.S.Code Cong. & Ad.News 335, 337. Congress patently intended to reduce the wide variations in sentencing that will inevitably result from the exercise of discretion by hundreds of individualistic federal district judges.
The instant case illustrates the point. At the sentencing hearing Judge Rymer stated:
Reporter's Transcript at 4051-52. Thus Judge Rymer interpreted section 4205(b)(1) as vesting in her the authority to by-pass the ten-year limitation of section 4205(a) by imposing a maximum sentence of 90 years and requiring Gwaltney to serve a minimum term of 30 years. I do not question Judge Rymer's considered judgment that Gwaltney is unsuitable for parole. What I do question is her interpretation of the statute. I believe that Congress intended that the Parole Commission would review Gwaltney's suitability for parole after he serves ten years in prison. To empower sentencing judges to warehouse prisoners for 30 years or longer without possibility of parole is to empower them to render the Parole Commission impotent to play its statutory role of "balancing differences in sentencing policies and practices." See page 1385, supra.
Instead of following Congress' intent, the majority follows United States v. O'Driscoll, 761 F.2d 589 (10th Cir.1985), cert. denied, 475 U.S. 1020, 106 S.Ct. 1207, 89 L.Ed.2d 320 (1986). In that case, the Tenth Circuit decided that section 4205(b)(1) allows a sentencing judge to ignore section 4205(a) and "bypass the Parole Commission if the `ends of justice and the best interest of the public' so require." 761 F.2d at 596. Ironically, the piece of legislative history primarily relied upon by the Tenth Circuit is the phrase from the 1958 Senate Report concerning "the sharing of power" by the sentencing judge and the executive branch. Id. The sentence in O'Driscoll — 300 years, with parole eligibility after 99 years — is inimical to such "sharing" because it nullified the role of the Parole Commission in that case.
At most, section 4205 is ambiguous, which would bring into play the rule of lenity. That rule provides that courts will not resolve ambiguities in statutes in favor of increasing criminal penalties absent clear support for such an interpretation in the legislative history. Bifulco v. United States, 447 U.S. 381, 387, 100 S.Ct. 2247, 2252, 65 L.Ed.2d 205 (1980). But I do not believe that there is any need to invoke the rule of lenity in this case because the legislative history of section 4205 and its antecedents manifests a clear Congressional intent to provide sentencing judges with the option of fixing an early parole eligibility date, not to postpone that date beyond the statutory limit.
The interpretation of section 4205 espoused by the majority here, and by the Tenth Circuit in O'Driscoll, eviscerates the Congressional scheme of shared authority in making parole decisions. Apparently, the majority misperceives what is at stake in this case. Parole eligibility does not equal release, and views expressed by sentencing judges are given consideration and respect by the Parole Commission. Williams v. U.S. Parole Commission, 707 F.2d 1060, 1065 (9th Cir.1983). The judiciary should afford similar respect to the role of the
I would vacate Gwaltney's sentence and remand the case to the district court for resentencing.
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