(concurring in part and dissenting in part).
I join in so much of the judgment as affirms the conviction of the defendant. However, I would vacate the sentence and remand the case for resentencing after opportunity for full presentation and deliberate consideration of the issue whether there are mitigating circumstances which warrant the imposition of less than the maximum fine and maximum imprisonment which have been imposed.
I am concerned with the total effect of a series of occurrences, the first of which was the denial of any continuance on the motion of counsel who had just entered the case and was totally unfamiliar with it at the time of trial. Sitting in a trial court I would be disposed almost routinely to grant at least a three or four day continuance to newly retained counsel where there had been no prior continuance or undue pretrial delay, even though the accused had not been diligent in employing counsel sooner. I cannot, however, avoid the conclusion that it was within the legal power and permissible discretion of the trial judge to view the matter differently and to insist that the accused pay for his lack of diligence the very high price of going to trial with the enormous handicap of counsel wholly unprepared and unfamiliar with the cir-*257eumstances of the case.1 Yet everything that followed the decision to deny a continuance must be judged in the special setting and context of a criminal case tried by counsel who has had no opportunity whatever for investigation or preparation.
The next matter of importance occurred immediately after the jury had returned its verdict and had been discharged. At that point counsel for the defendant orally proposed to move for a new trial and added: “I would like to ask leave to have an opportunity to review the record and thereafter file specific reasons with this court”. The court, however, insisted that counsel then and there state his reasons for requesting a new trial. At this juncture counsel would have been well advised to point out that Rule 33 of the Federal Rules of Criminal Procedure allows “5 days after verdict” within which to make a motion for a new trial. However, counsel did not thus resist the court’s requirement that he immediately state his reasons for seeking a new trial. In these circumstances it is not surprising that counsel made what unquestionably was a wholly inadequate and unpersuasive statement. The court ruled then and there that the accused should not have a new trial.
Here again there was no reversible error since counsel did not know, or did not remember, or at least did not insist that he was entitled to five days to prepare and present his new trial motion. But the* result of this is that counsel, unprepared at the beginning of the trial, now loses his normal five days period to review the case and to make appropriate submission in his client’s interest after trial.
The culmination of all of this followed immediately. For after denying a new trial, the court proceeded forthwith to sentence the defendant. There was no presentence investigation such as is permissible and normal, though not mandatory, under Rule 32(c) of the Federal Rules of Criminal Procedure. Again, this was not error but it represents another loss of normal opportunity to discover and consider possible mitigating circumstances.
All of these items have combined impact in their relation to the mandate of Rule 32(a) that “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”. I have no doubt that the defendant here was properly asked whether he had anything to say before sentence was passed. But to me there is more than that to the opportunity of allocution which this rule preserves and protects. The accused is entitled both to be heard personally and to have informed professional assistance in assembling, analyzing and presenting matter in mitigation. As to this point I cannot improve upon the recent statement of the Court of Appeals for the Fifth Circuit in Martin v. United States, 1950, 182 F.2d 225, 227: “* * * [A]t the time of imposition of sentence * * * [t]here is * * * real need for counsel. * * * Then is the opportunity afforded for presentation to the Court of facts in extenuation of the offense, or in explanation of the defend*258ant’s conduct; to correct any errors or mistakes in reports of the defendants’ past record; and, in short, to appeal to the equity of the Court in its administration and enforcement of penal laws. Any Judge with trial Court experience must acknowledge that such disclosures frequently result in mitigation, or even suspension, of penalty. That it is also true that such discussion sometimes has a contrary result, does not detract from the fact that the nature and possibilities of this important stage of the proceedings are such as make the absence of counsel at this time presumably prejudicial.” Accord: Wilfong v. Johnston, 9 Cir., 1946, 156 F.2d 507.
Another Court of Appeals recently considered a situation in which counsel who appeared with the defendant at sentencing had just entered the case. Holding that such counsel could not provide the assistance to which the accused is entitled at this last important trial proceeding, the court ordered a resentenc-ing, saying that “counsel must not only be competent but must have adequate opportunity to prepare for the assigned task. Conceivably, by intensive preparation, counsel entering the case for the first time at the sentencing stage could make an effective plea in mitigation. But here there is no showing that the substituted counsel had so prepared, or, indeed, had any opportunity to do so; * * Gadsden v. United States, 1955, 96 U.S.App.D.C. 162, 223 F.2d 627, 631.
In the present case, although counsel entered the ease just before trial, there was never an opportunity to assemble, marshal and present in any proper and effective way whatever there may have been in mitigation. At no stage from his retention until the moment of sentencing had counsel been permitted even one working day to consult with the defendant, examine his records, interrogate people who knew him personally or in a business way, or do any of the things a lawyer should properly do to present his client in as favorable a light as is fairly and honorably possible.
There is no question but that the sentencing judge viewed the defendant in the worst possible light. It is to be remembered that the information charged only the misdemeanors of willfully failing to file income tax returns for two taxable years, and not the felony of tax fraud. On each count the defendant received the maximum prison sentence of one year, although these closely related sentences were permitted to run concurrently. In addition, although the information charged that the accused had gross income of about $3000. in one year and $3800. in the other, maximum fines, of $10,000 each were imposed on the two counts. The fines aggregate three times the alleged unreported income, not to compare them with the much smaller tax payable on such income.
Again, this extreme sentence was entirely lawful. But it certainly emphasizes the judge’s impression that this was just about as bad a case as could be imagined. Perhaps it was. But I cannot escape the conclusion that the whole course of the proceeding from beginning to end, as outlined above, inhibited normal opportunity to assemble and present matter in mitigation and resulted in a serious abridgement of the right of allo-cution which Rule 32(a) safeguards.
On this appeal counsel for appellant, presumably now fully informed about the transactions upon which this prosecution was predicated, has expressed his desire to show mitigating circumstances rather than any confidence tha(t innocence can be proved. I think he has not had an adequate opportunity to make such a showing as Rule 32(a) contemplates. This constituted reversible error in sentencing. The entire case considered I think it fair and appropriate to vacate the sentence in order that the trial court may receive and fully and deliberately consider whatever information may be available, both favorable and unfavorable to the accused, on the question of appropriate punishment before reimposing a sentence which the accused must accept.
To this extent I dissent from the decision of the court.
. It may be noted in passing, as an indication how close this denial of any continuance was to reversible error, that had counsel insisted upon withdrawing from the case because of his total lack of preparation, it probably would have been reversible error to force the accused to trial without counsel. “The Sixth Amendment withholds from federal courts, in all criminal proceedings, the power and authority to deprive an accused of his life or liberty unless he has or waives the assistance of counsel.” See Johnson v. Zerbst, 1938, 304 U.S. 458, 463, 58 S.Ct. 1019, 1022, 82 L.Ed. 1461. In making the difference between no lawyer and a totally unprepared lawyer significant here we express our willingness to impose the burden of an unprepared lawyer on a dilatory criminal defendant, although it probably would be regarded as too harsh to go beyond that point and force him to trial without any professional representation whatever.