Certiorari Denied March 17, 1975. See 95 S.Ct. 1408.
WILKEY, Circuit Judge:
On 23 March 1973 appellant George Gordon Liddy was sentenced by the District Court to a prison term of not less than six years and eight months and not more than twenty years and was fined $40,000 for crimes which he had been found to have committed in connection with the electronic surveillance and burglary of the Democratic National Headquarters in the Watergate apartment complex.
Consequently, on 3 April 1973 the District Court adjudged Liddy in civil contempt under 28 U.S.C. § 1826 (1970)
Liddy challenges the authority of the District Court to suspend the execution of his sentence pending his confinement for contempt. We conclude that the District Court acted within its authority, and therefore affirm.
I. AUTHORITY OF DISTRICT COURT OVER RUNNING SENTENCE
Liddy's attack on the suspension of his sentence by the District Court rests in part on the following statements by the Supreme Court in United States v. Murray:
Liddy argues that since he began service of his sentence for Watergate crimes before the District Court adjudged him in contempt,
In Benz the defendant had been sentenced to 10 months imprisonment beginning 27 December 1929. Before expiration of his sentence, the defendant filed a petition with the sentencing court seeking a reduction in his term. The court granted the petition and reduced the sentence to six months. The Government appealed, relying principally on Murray and Ex parte Lange.
This analysis of Lange prompted the court in Benz to state:
It seems clear that Liddy's reliance on the broad language in Murray is misplaced in the light of Benz.
Two general principles may be gleaned from the Lange series of decisions, and neither of them is of any help to Liddy. First, Lange holds that a convicted defendant may not be punished twice for the same offense. Liddy continues to be subject to the same penalty for his Watergate crimes: a prison term of from six years and eight months to twenty years and a fine of $40,000.
II. THE BARRIER ALLEGEDLY POSED BY 18 U.S.C. § 3568
Liddy argues that the District Court's suspension of his running sentence violated the terms of 18 U.S.C. § 3568 (1970), which provides in pertinent part:
Liddy interprets this provision in a literal fashion, contending that it establishes a strict method of sentence calculation that cannot be varied without some specific statutory authority.
The legislative history of section 3568 reveals that Congress' intent in enacting the provision was not to impose a rigid method of sentence calculation, beyond establishing a firm date of sentence commencement. In recommending the bill that ultimately became section 3568, the judiciary committees of both the House and Senate relied primarily on a Department of Justice memorandum which stated:
This passage demonstrates that when Congress enacted section 3568, it was primarily concerned with the commencement date of a sentence, not with its subsequent calculation and termination date.
There are numerous examples of situations in which the running of a prisoner's sentence is interrupted and, as a direct result of some action by the prisoner himself, the termination date of the sentence is postponed beyond the time the sentence would have ended had it not been interrupted. A prisoner who escapes from custody interrupts the running of his sentence, and "the time elapsing between escape and retaking contribute nothing to the service of the sentence."
On the basis of this exception,
Liddy's position is similar to that of the prisoners in the examples discussed above. Through his intentional acts he has brought himself within the civil contempt provisions of 28 U.S.C. § 1826. Under the clear authority of that statute,
Liddy suggests, however, that the District Court could have avoided interrupting his sentence by choosing some alternative remedy for his contempt. For example, Liddy could have been adjudged in criminal contempt and sentenced to a fixed prison term.
Another alternative remedy not suggested by Liddy
III. PENDENCY OF AN APPEAL
The dissent argues that the District Court lacked jurisdiction to change appellant's sentence in any way once an appeal of that sentence had been perfected.
The limited rule is grounded upon the general principle that an appellate court is entitled at some point to a final decision from the trial court. This principle of finality is one of the factors underlying the final judgment rule in the federal system.
For the reasons stated herein, the action of the District Court is
MacKINNON, Circuit Judge (dissenting):
The majority rules that when a prisoner serving a term of imprisonment appears before the sentencing court on another matter, that court has the power to resentence him, suspend execution of the first sentence, and order a distinct confinement for civil contempt based on an intervening refusal to testify in grand jury proceedings under a grant of immunity. In this case appellant had served eleven days of his sentence when the court interrupted its service and imposed a second, indeterminate sentence. The effect of the resentencing has been to postpone the expiration date of the first sentence for a period up to eighteen months. The majority opinion affirms the District Court's power to effect such an interruption, and sustains the action as a necessary means of protecting the court's integrity. I respectfully disagree with both conclusions. Moreover, it is pointed out that the trial court lost jurisdiction to modify the first sentence when appellant appealed that judgment to this court.
I. JUDICIAL POWER TO MODIFY SENTENCES OF IMPRISONMENT
The power of a court to interrupt one term of imprisonment in order to impose another sentence for civil contempt is a fertile field for judicial inquiry. A decision of the Arkansas Supreme Court, rendered almost sixty years ago, is the sole case on point. The majority opinion demonstrates that we are confronted with an open question, for it distinguishes the authority appellant advances, but offers none directly supporting its own position.
Traditionally judicial power over prisoners and their sentences has been narrowly circumscribed. That commencement of execution of a sentence terminated a court's power to modify its order was a common, if not undisputed, precept. See, e. g., Commonwealth v. Foster, 122 Mass. 317, 23 Am.Rep. 326, 2 Am.Crim.Rep. 499 (1877); Brown v. Rice, 57 Me. 55, 2 Am.Rep. 11 (1869); Commonwealth v. Weymouth, 2 Allen (Mass.) 144, 79 Am.Dec. 776 (1861). Various decisions spoke of inherent limits on judicial power to suspend sentences, e. g., State v. Everett, 164 N.C. 399, 79 S.E. 274, 277 (N.C.1913); Re Jones, 35 Neb. 499, 53 N.W. 468 (1892); cf. Ex parte United States, 242 U.S. 27, 37 S.Ct. 72, 61 L.Ed. 129 (1916); of the dissipation of that power at the end of a term of court, Commonwealth v. Foster, supra; cf. Basset v. United States, 76 U.S. (9 Wall.) 38, 19 L.Ed. 548 (1870), or after a prisoner is committed, e. g., People v. Meservey, 76 Mich. 223, 42 N.W. 1133 (1889); Re Jones, supra; see generally Annotation, 44 A.L.R. 1203; and of the right of a convicted defendant to proceed with service of his sentence without undue delay, e. g., Ex parte Ervin, 266 P.2d 984 (Okl.Cr.App.1954); Marks v. Wentworth, 199 Mass. 44, 85 N.E. 81 (1908); People ex rel. Boenert v. Barnett, 202 Ill. 287, 67 N.E. 23 (1903). A sentencing court has been denied the power to modify the terms of a prisoner's commitment in instances where the court sought to mitigate the effects of its judgment, as by reducing the period of confinement or decreeing a de facto parole. See State v. Hockett, 129 Mo.App. 639, 108 S.W. 599 (1907); Auldridge v. Womble, 157 Ga. 64, 120 S.E. 620 (1923); Commonwealth v. Mayloy, 57 Pa. 291 (1868); see generally Annotation, 141 A.L.R. 1225.
Cases which have addressed the distinct problem of interrupted or intermittent confinement have generally disallowed sentences fashioned toward that end. The language of State v. Buck, 120 Mo. 479, 25 S.W. 573, 578 (1894), is characteristic:
The Florida Supreme Court has held that "a convict has a right to pay his debt to society by one continuous period of imprisonment, to begin within a reasonable time after commitment." Sinclair v. State, 99 So.2d 238, 240 (Dist.Ct.App.Fla. 1957), citing Terrell v. Wiggins, 55 Fla. 596, 46 So. 727 (1908); State v. Horne, 52 Fla. 125, 42 So. 388 (1906). See also In re Jennings, 118 F. 479, 481 (C.C.E.D.Mo. 1902). These cases involved attempts to interrupt sentences which were continuous when imposed in order to take action on distinct indictments. The effort to design sentences to be served by periodic installment or to be imposed with reference to specified contingencies has similarly been disapproved. The court in State v. Bigelow, 76 Ariz. 13, 258 P.2d 409 (1953), invalidated a sentence of ninety days' confinement, to be served on certain days each week, on the ground that "[t]he superior courts of Arizona possess no inherent power to suspend the imposition or execution of sentences in any case." An almost identical sentence was disallowed in Ex parte Taylor, 140 Cal.App. 102, 34 P.2d 1036 (1934), for the reason that the applicable probation statute provided the exclusive means of suspending sentences. See also Chase v. State, 479 P.2d 337 (Ala.1971); Ex parte Emmons, 96 Okl.Cr. 396, 256 P.2d 476 (1953); People v. Felker, 61 Mich. 110, 27 N.W. 869 (1886). That this principle has vitality in the federal sphere is evidenced by the unequivocal language of Lanier v. Williams, 361 F.Supp. 944, 947 (E.D.N.C.1973): "It is settled that a person, duly convicted of a criminal offense and upon whom a sentence of imprisonment is imposed, has a right to serve that sentence promptly and continuously, and he cannot be required to serve his sentence in installments."
Finally, the sole case on point warrants attention. The Arkansas Supreme Court addressed the problem which confronts us in 1916 in Williams v. State, 125 Ark. 287, 188 S.W. 826. The court acknowledged that a convict could be brought into court and compelled to testify, and that he could be punished for his contumacy if he refused, but it specifically held that an intervening sentence to confinement which interrupted service of his initial term was an impermissible punishment for contempt. Because the facts in Williams and in this case are identical, the court's reasoning bears scrutiny.
125 Ark. at 288, 188 S.W. at 827 (emphasis added). The authority furnished by this solitary decision is scant, but the case is significant as a reflection of the contemporary view of judicial power to modify sentences. The majority's perspective is that prison sentences have
We should be mindful of, but not necessarily wedded to, this traditionally narrow conception of judicial power to modify the terms of a sentence of imprisonment which has been reduced to judgment. These early formulations have been succeeded by the passage of statutes and the adoption of rules governing the computation and correction of sentences to confinement. The majority in this case reads these more recent provisions without reference to their common law antecedents, and by its result the majority suggests that this decisional background has been rejected. On the contrary, precisely because Federal Rule of Criminal Procedure 35, providing for the correction and reduction of sentences, and 18 U.S.C. § 3568, defining the computation of time served under prison sentences, can be read in harmony with earlier decisions limiting a court's power to alter sentences to imprisonment, that reading should be adopted.
II. RULE 35 AND MODIFICATION OF SENTENCE
Federal Rule of Criminal Procedure 35 provides:
The purpose of this rule was set forth in a note accompanying promulgation of its antecedent, Rule 31(b), in 1946:
Federal Rules of Criminal Procedure, Preliminary Draft 135 (1943). The time period for correction, increased from 60 to 120 days in 1966, fixed a court's power to modify its sentences in the absence of the concept of "term of court." The rule provided a new measure of a power which had always had a clearly defined boundary. A function, and presumably a purpose of this limitation on the power to reduce sentences, is the definition of a point beyond which a prisoner may rely on the terms of his sentence as it has been imposed. The court in Commonwealth v. Mayloy, supra, speaking not of the rule but of the common law limitation by court term, cited one salutary aspect of irreducible sentences: they prevent a prisoner from indulging in false hopes of an early pardon. Whatever the ancillary purposes of the limitation may be, because it will almost never
III. 18 U.S.C. § 3568
18 U.S.C. § 3568 (1970) provides:
Perusal of the legislative history behind this section has convinced the majority that it is inapposite to Liddy's situation. They complain that appellant is giving the statute a literal interpretation; but from 2 Dallas (1781) to the present day there has been no breach in the requirement that laws relating to criminal conduct should generally be strictly construed. Respublica v. Weidle, 2 Dall. 88 (Pa.Sup.Ct.1781); United States v. Baltimore & O. S. W. R. Co., 222 U.S. 8, 13, 32 S.Ct. 6, 56 L.Ed. 68 (1911); United States v. Halseth, 342 U.S. 277, 280, 72 S.Ct. 275, 96 L.Ed. 308 (1952). The majority also assert that their conclusion is supported by the fact that the statute is designed, in the words of the House and Senate Reports, to "produce certainty and prevent juggling with sentences in the way described". The reports speak specifically of irregular methods of fixing the starting date of a prison term, and thus the section's closing sentence, excluding all conflicting methods of computing time served, literally pertains only to the fixing of starting dates for sentences.
Read more broadly, the statute is a manifestation of a legislative purpose that individuals sentenced to imprisonment shall not be denied the opportunity to commence service of their terms by administrative delay or preliminary confinement. To this end it is in accord with considerable case law ordering prompt delivery to prison authorities of one sentenced to confinement, see, e. g., O'Neil v. State, 134 Ala. 189, 32 So. 667 (1902); State v. Couture, 156 Me. 231, 163 A.2d 646 (1960); Ex parte Ervin, 266 P.2d 984 (Okl.Cr.App.1954), and prohibiting unnecessary delay in the imposition of sentence, e. g., Juarez-Casares v. United States, 496 F.2d 190, 192 (5th Cir. 1974); United States v. Grabina, 309 F.2d 783, 786 (2d Cir. 1962); People ex rel. Harty v. Fay, 10 N.Y.2d 374, 223 N.Y.S.2d 468, 179 N.E.2d 483 (1961); People v. Kennedy, 58 Mich. 372, 25 N.W. 318 (1885). The preponderance of these cases share one of the premises
As the majority states,
IV. THE CONSTITUTIONAL FOUNDATION FOR DENYING INTERRUPTION OF SERVICE
The Double Jeopardy Clause of the Fifth Amendment specifically addresses and proscribes the practice of subjecting an individual to two different trials for a single crime.
The Supreme Court has extrapolated from this language a prohibition against double punishment, on the theory that the imposition of two penalties for the same offense poses as great a threat to a defendant as the convening of two trials. Ex parte Lange, 85 U.S. (18 Wall.) 163, 21 L.Ed. 872 (1874); see also Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 462, 67 S.Ct. 374, 91 L.Ed. 422 (1947); Patton v. State of North Carolina, 381 F.2d 636, 643-645 (4th Cir. 1967). And the Court has developed the principle that resentencing which augments a sentence previously imposed and partially suffered also violates the Double Jeopardy Clause. United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354 (1931); Ex parte Lange, supra; see also Wilson v. Bell, 137 F.2d 716, 720 (6th Cir. 1943); Rowley v. Welch, 72 App.D.C. 351, 114 F.2d 499 (1940). Thus if interruption of appellant's sentence and his intervening incarceration serve to increase the penalty he must suffer for his first conviction, the action is constitutionally invalid.
No reported decision has determined whether an interruption in the service of a sentence constitutes an increased punishment. But factors cited as unnecessarily onerous incidents of the criminal process in other contexts are relevant to this determination. The Supreme Court has spoken of the "cloud of anxiety" which hangs over an individual between indictment and trial. Barker v. Wingo, 407 U.S. 514, 532, 533, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), citing United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773,
Postponement of the expiration date of a sentence, if effected by a short delay in the commencement of service, is not inherently prejudicial and does not ordinarily justify reduction of the term or credit for the delay. See generally Anderson v. Corall, 263 U.S. 193, 196, 44 S.Ct. 43, 68 L.Ed. 247 (1923); Pinkerton v. Steele, 181 F.2d 536 (8th Cir. 1950); Woods v. Steiner, 207 F.Supp. 945, 953 (D.Md.1962); United States ex rel. Binion v. United States Marshal for the District of Nevada, 188 F.Supp. 905, 908 (D.Nev.1960). Like any statement of administrative latitude, this rule has exceptions; substantial and unjustified delay in the execution of a sentence has often been held to preclude its enforcement or warrant reduction in its terms. See, e. g., Smith v. Swope, 91 F.2d 260, 262 (9th Cir. 1937) ("The least to which a prisoner is entitled is the execution of the sentence to whose judgment he is duly subject."); State ex rel. Shotkin v. Buchanan, 149 So.2d 574 (Dist.Ct.App.Fla.1963); Ex parte Bugg, 163 Mo.App. 44, 145 S.W. 831 (1912). Mitigation of the prejudicial effects of precommitment delay was one of the essential purposes behind passage of the 1966 amendment to 18 U.S.C. § 3568.
This constitutional prohibition against interruption of sentences may in turn yield exceptions. The majority cites the established "fault of the prisoner" exception
The majority reasons that appellant's "intentional acts" place him in a position similar to that of an escapee or a parolee who commits offenses which lead to revocation of his parole. Even those do not authorize a sentencing court to change the sentence originally imposed on the initial offense.
We need not determine at this juncture whether circumstances may ever arise which justify interruption of a prison term. It might be argued that the constitutional invalidity of interrupted sentences does not admit exceptions. Because the prisoner bears sole responsibility for the interruption in the situations cited by the majority — escape and parole violation — the constitutional issue is not raised. In circumstances requiring immediate suspension of one sentence and imposition of a new penalty — for example, commission of a capital offense in prison; of a major offense by one in jail for a misdemeanor; or of a crime requiring adult treatment, by one incarcerated under the Youth Corrections Act — the remainder of the initial sentence would probably be vacated or served concurrently. On the other hand there may be extreme situations which justify exceptions to this general rule. In this case, however, we need only rule that the District Court had no justifiable reason to interrupt appellant's sentence.
V. THE DISTRICT COURT'S ALTERNATIVES
The District Court and the majority both justify interruption of appellant's sentence on the ground that it is essential to give effect to the coercive sanction of civil contempt. The majority proceeds to discount the alternatives of criminal contempt and daily fines. But the District Court in fact availed itself of one of several alternative methods
On the day appellant was sentenced his five co-defendants (Hunt and the four Cubans) received maximum terms of imprisonment under 18 U.S.C. § 4208(b) pending the completion of a Bureau of Prisons study of each of the five men under that statute, to be used in arriving at a final disposition of each case. The court noted that in each instance it could either affirm the maximum sentence, reduce it, or place the defendant on probation. Almost in the same breath the court encouraged each man to "give serious consideration to lending [his] full cooperation to investigating authorities."
The trial court then spoke directly to the five defendants.
Liddy was in court throughout this sentencing of Hunt and the Cubans. The court's import was plain: these five co-defendants of appellant would likely serve longer sentences for future refusals to testify. Unquestionably the trial court's remarks in sentencing the five co-defendants constituted the same order of coercion as was imposed upon appellant by the civil contempt sanction.
The trial court could have used the same sentencing technique on appellant and it had other alternative means of impelling appellant to purge himself without interrupting his sentence. The court could have suspended the imposition of a consecutive sentence and placed appellant on probation for eighteen months or some lesser period conditioned on appellant's cooperation. Or it could have imposed an eighteen-month consecutive sentence and announced that it would consider reduction of the sentence within the time limits authorized by Rule 35. Finally, the trial court could simply have waited until after the defendant had appeared before the grand jury before it imposed sentence. In effect the court followed this last approach when it sentenced appellant's co-defendants by indicating that the decision to testify freely would be a prime basis for determination of sentences upon completion of the Bureau of Prisons study. Although those alternative sentencing techniques might have been equally unsuccessful,
In justifying the District Court's action the majority has embraced an unreasonably narrow conception of criminal punishment. The continuity of a term of imprisonment may be as significant as its duration. Common sense dictates that a one-year sentence cannot be subdivided and required to be served a single day each year, though the effect would be to reduce the number of days spent in confinement. This principle of the unity of a prison sentence is not born only of reasonableness, but has roots in decisional, statutory and constitutional law which make it binding on this court. We have ample evidence of a legislative and judicial commitment that a convicted defendant shall be allowed to pay his debt promptly and continuously, in order that he not be subjected to a penalty greater than that authorized by statute. Before service of a sentence can legitimately be interrupted, some more convincing showing of necessity must be made than the one advanced here.
VII. THE PENDENCY OF APPEAL
While the majority may disagree with the preceding analysis of judicial power to interrupt sentences, prior decisions of this court, of other circuits, and of the Supreme Court all indicate that the District Court lacked jurisdiction to modify appellant's sentence once he lodged his appeal with this court.
The final judgment in a criminal case is the sentence. Berman v. United States, 302 U.S. 211, 212, 58 S.Ct. 164, 82 L.Ed. 204 (1937); Hill v. Wampler, 298 U.S. 460, 464, 56 S.Ct. 760, 80 L.Ed. 1283 (1936); Miller v. Aderhold, 288 U.S. 206, 210, 53 S.Ct. 325, 288 U.S. 206 (1933). Thus appeal of the judgment is appeal of the sentence imposed. Once appeal is properly taken, the District Court is without jurisdiction during its pendency to modify the judgment by resentencing the prisoner. Berman v. United States, 302 U.S. at 214, 58 S.Ct. 164; Keyser v. Farr, 105 U.S. 265, 266, 26 L.Ed. 1025 (1882). A unanimous panel of this court has held that a "District Court . . . was without authority to vacate the general sentence previously imposed" once notice of appeal was filed, United States v. Mack, 151 U.S.App.D.C. 162, 169, 466 F.2d 333, 340 (1972).
It remains only to apply this jurisdictional principle to the facts of appellant's case. He was sentenced on March 23, 1973, and filed a notice of appeal on March 26, well within the ten-day period prescribed by appellate rule 4.
In part III of its opinion, "Pendency of Appeal," the majority asserts that this claim of lack of jurisdiction in the trial court is an absolutist concept — but jurisdiction is like that. It can be absolute or nonexistent. Significantly, the majority does not cite any authority to support its claim that trial court jurisdiction existed.
In United States v. Mack, supra, in an opinion written by Chief Judge Sobeloff of the Fourth Circuit, with Chief Judge Bazelon and Judge Leventhal participating, this court held that "the District Court once [appellant] filed his notice of appeal, was without authority to vacate the general sentence previously imposed." 466 F.2d at 340. That decision held that the noting of appeal divested the District Court of jurisdiction to correct an illegal sentence; a fortiori a trial court has no jurisdiction or power to change a valid sentence.
Appellant's service of his sentence is without legal effect. Because he has remained incarcerated since his initial commitment, he is entitled to full credit on that first sentence for all time served, and the second sentence is a nullity insofar as it interrupts the first sentence.
This contempt judgment was affirmed on appeal in In re Grand Jury Proceedings (George Gordon Liddy), 165 U.S.App.D.C. 254, 506 F.2d 1293 (1974).
200 F.2d at 529 (citations omitted). The court thus based its holding on a literal interpretation of the District Court's 13 March 1941 order. No such order exists in this case to fix immutably the boundaries of Liddy's sentence.
Ibid. The unstated conclusion of the court's reasoning is that section 3568 does not authorize conferral upon Liddy of credit toward his Watergate crimes sentence for his time spent in confinement for contempt. We think the District Court's interpretation of section 3568 was correct.
The Court did not identify any specific "problems" inherent in the "hybrid" criminal contempt technique of Reina, but it may have been alluding to its holding that same day in Cheff v. Schnackenburg, 384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629 (1966), that a contemnor may not be sentenced to more than six months' imprisonment for criminal contempt without a jury trial.
See also Moore v. United States, 150 F.2d 323, 325 (10th Cir.), cert. denied, 326 U.S. 740, 66 S.Ct. 52, 90 L.Ed. 441 (1945).
396 U.S. at 366, 90 S.Ct. at 498-499. The wrongful act of escape was the appellant's; his penalty was the refusal of the appellate court to hear his plea. Here a declination to exercise appellate jurisdiction would frustrate the contempt power of the District Court to the advantage of the contemnor.
Whatever its validity when first pronounced, a principle so often repeated and followed by federal courts, including the Supreme Court, cannot be ignored.
436 F.2d at 95.
Relying on the statement that District Court jurisdiction is "severely limited," but not concluded, by the noting of an appeal, the court in Mack suggested that an exception might be created, as for the correction of an illegal sentence, a procedure specifically allowed by the language of Rule 35. The fact that the court chose not to recognize such an exception argues in favor of continued strict adherence to the general rule, in the interest of "an orderly appellate process." 466 F.2d at 340.
Defendant's Appendix 22-23.
As for the majority's other example of a discontinuity of sentence, the decision of the Parole Board to place a prisoner on parole while his appeal is pending is completely irrelevant to any issue presented here. Such power is implicit in every prison sentence and the exercise of that power by the Board of Parole does not change the sentence.