U.S. v. Liddy

• Decision Date: 17 March 1975
• Docket Number: No. 73--1564,73--1564
• Citation: 510 F.2d 669,166 U.S. App. D.C. 289
• Parties: UNITED STATES of America v. George Gordon LIDDY, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 669

510 F.2d 669

166 U.S.App.D.C. 289

UNITED STATES of America v. George Gordon LIDDY, Appellant.

No. 73--1564.

United States Court of Appeals, District of Columbia Circuit.

Argued June 14, 1974.

Decided Dec. 12, 1974.

Certiorari Denied March 17, 1975.

See 95 S.Ct. 1408.

Peter L. Maroulis, Poughkeepsie, N.Y., for appellant. Thomas A. Kennelly, Washington, D.C., also entered an appearance for appellant.

Sidney M. Glazer, Asst. Sp. Prosecutor, for appellee. Leon Jaworski, Sp. Prosecutor, Philip A. Lacovara, Counsel for the Sp. Prosecutor, Richard D. Weinberg and Robert L. Palmer, Asst. Counsel to the Sp. Prosecutor, were on the brief for appellee. Archibald Cox, Sp. Prosecutor at the time the brief was filed, was on the brief for appellee.

Before BAZELON, Chief Judge, and WRIGHT, McGOWAN, LEVENTHAL, ROBINSON, MacKINNON and WILKEY, Circuit Judges, sitting en banc.

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. ¹ Three days later, Liddy appeared in response to a subpoena before the 5 June 1972 Watergate grand jury. In response to questioning by Government prosecutors about his role and the roles of others in the Watergate incident, Liddy consistently asserted his Fifth Amendment privilege against self-incrimination. Upon the Government's motion the District Court granted Liddy immunity ² and ordered him to testify. Nevertheless, Liddy persisted in refusing to answer the grand jury's questions.

Consequently, on 3 April 1973 the District Court adjudged Liddy in civil contempt under 28 U.S.C. § 1826 (1970) ³ and ordered that he 'be confined until such time as he is willing to testify as ordered; provided, however, that the period of confinement shall not exceed the life of the grand jury, including extensions, and shall in no case exceed eighteen (18) months . . ..' ⁴ The Title 18 of the United States Code § 3568 provides that a person's sentence begins to run from the first day of commitment, and that credit is given for any time spent in custody in connection with the offense for which sentence is imposed. The defendant Mr. Liddy's sentence under the indictment, therefore, has commenced. The present commitment for contempt, however, is a commitment for a separate offense, and is intended not to punish but to compel compliance with the Court's order to testify. To give meaning and coercive impact to the Court's contempt powers in the interest of protecting the Court's integrity, the Court here finds it necessary to hold in abeyance the execution of Mr. Liddy's sentence under the indictment pending his confinement for contempt. ⁵

court then entered the following order, which is the subject of this appeal:

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. ⁶

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: ⁷

The beginning of the service of the sentence in a criminal case ends the power of the court even in the same term to change it. Ex parte Lange, 18 Wall. 163.

It is true that there was but one day of execution of the sentence in the Murray case, but the power passed immediately after imprisonment began and there had been one day of it served. ⁸

Liddy argues that since he began service of his sentence for Watergate crimes before the District Court adjudged him in contempt, ⁹ the court was without authority to change his sentence by suspending its execution. However, the foundations of this argument are undermined by the unanimous Supreme Court decision in United States v. Benz, ¹⁰ which expressly 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. ¹¹ In affirming the District Court's action, the Supreme Court first demonstrated that Lange did not stand for the proposition for which it was cited in Murray. The District Court in Lange made two erroneous sentencing decisions: 1) it sentenced the defendant to one year in prison and a $50 fine, although the governing statute provided for one year maximum or a $50 fine; 2) five days after the initial sentencing and after the defendant had paid the fine, the court vacated the first sentence and resentenced the defendant to one year in prison. Both these actions, the Supreme Court held, violated the Double Jeopardy clause of the Fifth Amendment by subjecting the defendant to more than one punishment for the same offense. But the Court in Lange also recognized, in the words of the Benz decision:

discredited the above-quoted language from Murray.

The general rule is that judgments, decrees and orders are within the control of the court during the term at which they were made. They are then deemed to be 'in the breast of the court' making them, and subject to be amended, modified, or vacated by that court. ¹²

This analysis of Lange prompted the court in Benz to state:

The Lange Case and the Basset Case, supra, (Basset v. United States, 76 U.S. (9 Wall.) 38) probably would have set at rest the question here presented had it not been for a statement in United States v. Murray, 275 U.S. 347, 358 (48 S.Ct. 146, 72 L.Ed. 309). In that case this Court held that where the defendant had begun to serve his sentence, the District Court was without power, under the Probation Act of March 4, 1925 . . ., to grant him probation; and, citing Ex parte Lange as authority, said: 'The beginning of the service of the sentence in a criminal case ends the power of the court even in the same term to change it.' But the Murray Case involved the construction of the Probation Act, not the general powers of the court over its judgments. The words quoted were used by way of illustration bearing upon the congressional intent, but were not necessary to the conclusion reached. That they state the rule more broadly than the Lange Case warrants is apparent from the foregoing review of that case. ¹³

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. ¹⁴ Liddy's current confinement under the District Court's order of 3 April 1973 is for the separate and distinct offense of civil contempt under 28 U.S.C. § 1826. Second, as the Court in Benz recognized, 'the court during the same term may amend . . . the punishment, but not so as to increase it . . ..' ¹⁵

The District Court's 3 April 1973 order does not increase Liddy's punishment for his Watergate crimes, for the duration of his prison sentence and the amount of his fine are unchanged, but merely amends by delaying the execution of that punishment. ¹⁶ Thus, the Lange-Benz line of cases establishes that the District Court had control over Liddy's sentence when it entered its 3 April 1973 order, and nothing in those cases precludes our affirming the suspension of that sentence.

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:

The sentence of imprisonment of any person convicted of an offense shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of such sentence. The Attorney General shall give any such person credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed.

No sentence shall prescribe any other method of computing the term.

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. ¹⁷ Since Liddy's sentence concededly had commenced to run before the District Court entered its 3 April 1973 order, Liddy argues that the expiration date of his sentence had been firmly fixed as well and that, under section 3568, the District Court could not alter that expiration date by suspending execution of the sentence. We think that section 3568 cannot be read so literally 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:

and we therefore reject Liddy's argument.

Sections 1 and 2 provide that sentence shall commence to run from the date on which the person is received at the institution for service of his sentence or from the date he shall be committed to a place of detention to await transportation to the place at which his sentence shall be served; that...