United States v. James Allen Barber Appeal of William H. Robinson , 456 F.2d 579 ( 1972 )

OPINION OF THE COURT

PER CURIAM:

This appeal challenges two orders of the United States District Court for the District of Delaware dated July 26, 1971.

One order denied defendant’s Motion For New Trial on the ground of newly-discovered evidence.¹ After careful consideration of the briefs and oral argument, a majority of the panel has concluded that the record requires the affirmance of this district court order denying the Motion For New Trial on the ground of newly-discovered evidence. See United States v. William H. Robinson, (D.Del. No. 1926, Memorandum Opinion of 7/26/71).²

The second district court order of July 26, 1971, denied a Motion For Reduction of Sentence under F.R.Crim. P. 35. During the argument on the appeal from this order, counsel for defendant referred to a report completed earlier this month by a well-qualified psychiatrist, concluding:

“Mr. Robinson is not suffering at this time from a psychiatric disorder of any kind. It is my impression that ■ rather than being a destructive, hostile, bitter, distrustful, impetuous, anti-White and anti-social person, he is fully rehabilitated; and incarceration would not serve the purpose of changing him to be a more constructive person.

“Rather, in my professional opinion, that change has already taken' place, and Mr. Robinson, if released from custody, would not be a danger to either the White or Black communities, but would make a substantial contribution to improving race relations and acting as a useful and constructive citizen in whatever community he lived and worked.”

With a commendable desire to secure justice in this case, the United States Attorney stipulated that this report should be made available to the district court in view of the strong testimony in defendant’s favor submitted at a hearing on the above Motion on May 20, 1971, provided that Dr. Kaufman would supplement his report after consideration of certain prison progress reports and other material which might be agreed upon by counsel.³

In view of this stipulation, the order denying the motion for reduction of sentence will be vacated and the record will be remanded to the district court for its reconsideration of that motion. The above-mentioned July 26, 1971, order denying the Motion For New Trial will be affirmed.

1 . The conviction of defendant in this criminal case is described in the district court opinion denying his Motion For a Post-Trial Judgment of Acquittal Or For A New Trial, see. United States v. Barber et al., 303 F.Supp. 807, 815-818 (D.Del. 1969), and the opinion of this court affirming the Judgment and Commitment dated August 26, 1909, see United States v. Barber et al., 442 F.2d 517, 521-522 (3rd Oir. 1971).

2 . We also note that the United States Attorney, in his summation to the jury, stated “The Government is not. alleging that Robinson was identified by Debbie, [Price]” (N.T. 2133).

3 . See order of this court dated February 22, 1972.