568 F.2d 405 (5th Cir. 1978), 76-4423, Government of Canal Zone v. Castillo

Docket Nº:76-4423.
Citation:568 F.2d 405
Party Name:GOVERNMENT OF the CANAL ZONE, Plaintiff-Appellee, v. Jose CASTILLO L. (Lopez), Defendant-Appellant.
Case Date:February 24, 1978
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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568 F.2d 405 (5th Cir. 1978)

GOVERNMENT OF the CANAL ZONE, Plaintiff-Appellee,

v.

Jose CASTILLO L. (Lopez), Defendant-Appellant.

No. 76-4423.

United States Court of Appeals, Fifth Circuit

February 24, 1978

Jack B. Hood (Court-appointed), Balboa, Canal Zone, for defendant-appellant.

Frank J. Violanti, U. S. Atty., John B. McCormick, Asst. U. S. Atty., Balboa, Canal Zone, for plaintiff-appellee.

Appeal from the United States District Court for the District of the Canal Zone.

Before BROWN, Chief Judge, RONEY and FAY, Circuit Judges.

BROWN, Chief Judge:

In this appeal, defendant Jose Castillo asks us to hold that his conviction for vagrancy cannot withstand an attack on the constitutionality of the underlying statute. Castillo was convicted in October of 1976 before a Magistrate in the Panama Canal Zone for violating one section of the Canal Zone Code's vagrancy statute and for tampering with a motor vehicle, and given concurrent sentences of thirty days. After a trial de novo held without a jury, the judge for the District of the Canal Zone rejected Castillo's constitutional challenge to the vagrancy law, found him guilty of both charges, and approved the concurrent sentences previously imposed. 1 We find no

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constitutional infirmity in the vagrancy statute and therefore affirm the District Court.

Castillo was arrested on October 7, 1976, in a residential neighborhood in the Canal Zone. At the trial, one witness testified that at approximately six o'clock in the morning, she saw Castillo attempting to gain access to a truck in a garage adjacent to a private home, and a second witness testified that Castillo attempted to open the doors to a second house and to a vehicle parked in the street. Castillo was convicted for tampering with a motor vehicle under 6 Canal Zone Code § 1565(a)(3) but does not appeal from this verdict or sentence. This appeal is from the concurrent sentence imposed for Castillo's conviction as a vagrant under 6 Canal Zone Code § 2541(1). The sole basis for reversal urged here is that the vagrancy statute is unconstitutionally vague and therefore void under the Fifth Amendment due process requirements.

Before considering this claim, we must resolve two aspects of this case that may moot the appeal. The first question is whether the fact that Castillo has long since completed his thirty-day jail sentence moots his appeal from the vagrancy conviction. In St. Pierre v. United States, 1943, 319 U.S. 41, 63 S.Ct. 910, 87 L.Ed. 1199, the Supreme Court held that completion of a six months' sentence prior to argument on the merits of the appeal rendered the appeal moot "because, after petitioner's service of his sentence and its expiration, there was no longer a subject matter on which the judgment of this Court could operate." The Supreme Court has since substantially rewritten this variant of the mootness doctrine, stating in Sibron v. New York, 1968, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917, that "St. Pierre . . . must be read in (the) light of later cases to mean that a criminal case is moot only if it is shown that there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction." Id., 392 U.S. at 57, 88 S.Ct. at 1900, 20 L.Ed.2d at 931-32. 2

We find that there is sufficient possibility that Castillo could suffer collateral consequences from his vagrancy conviction to justify our reaching the merits of this appeal despite the defendant's satisfaction of his sentence. Castillo's conviction under some circumstances "presumably could be used for impeachment and sentencing purposes in any future criminal proceeding," United States v. Camil, 5 Cir., 1974, 497 F.2d 225, 227, quoting United States v. Schrimsher, 5 Cir., 1974, 493 F.2d 842, 844. Admittedly, such impeachment could not occur in the federal courts, where F.R.Evid. 609 permits impeachment by prior conviction only if the conviction is for an offense punishable by at least one years' imprisonment, or in courts governed by the Panama Canal Zone Code, which allows impeachment by prior conviction only if the underlying offense is a felony. 5 Canal Zone Code § 2825. However, Castillo would be vulnerable to enhanced punishment for any subsequent convictions under habitual offender statutes, such as 6 Canal Zone Code §§ 111-113. Furthermore, as the Supreme Court has stated, it is not necessary to make a detailed inquiry "into the actual existence of specific collateral consequences"; the possibility that adverse legal consequences will result from the criminal conviction is, in effect, "presumed" as an "obvious fact of life." Sibron, supra, 392

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U.S. at 55, 88 S.Ct. at 1899, 20 L.Ed.2d at 930. Castillo has a " 'substantial stake in . . . the conviction' " which survives the expiration of the sentences. Id., 392 U.S. at 59, 88 S.Ct. at 1900, 20 L.Ed.2d at 932. 3

The second basis on which this case may be vulnerable to dismissal arises from the fact that Castillo was convicted under two counts and given concurrent sentences, but appeals from only one of the convictions. Even if we were to hold that the vagrancy conviction must be reversed, the defendant's term of imprisonment would be unaffected. Under the concurrent sentence doctrine, this Court has the discretion not to reach the defendant's challenge to the vagrancy conviction by reason of a valid (here, unchallenged) conviction and concurrent sentence on a separate count. See, e. g., United States v. Bynum, 5 Cir., 1978, 566 F.2d 914, 922-23. The Supreme Court has characterized the doctrine as primarily a rule of "judicial convenience," Benton v. Maryland, 1969, 395 U.S. 784, 791, 89 S.Ct. 2056, 23 L.Ed.2d 707, 714, rather than a jurisdictional bar to consideration of challenges to multiple convictions for which concurrent sentences have been imposed. The concurrent sentence doctrine is most frequently invoked in appeals that attack all the counts on which a defendant was convicted. In such cases, the reviewing court will uphold one of the counts as valid and decline to examine the remaining challenges. E. g., United States v. Works, 5 Cir., 1976, 526 F.2d 940, 948. We need not decide whether the concurrent sentence doctrine applies to the peculiar situation of this case, where the defendant attacks only one of the two counts underlying his conviction. We exercise our discretion to pass on the merits.

The section of the Panama Canal Zone vagrancy statute challenged here, 6 Canal Zone Code § 2541(1), provides that:

Whoever:

(1) is found within or loitering about a building or structure, or a vessel, railroad car, or storage yard, without authority or permission so to be or to do so; . . .

is a vagrant, and shall be fined not more than $100 or imprisoned in jail not more than 30 days, or both.

The constitutionality of this provision must be tested under the standard enunciated in Papachristou v. City of Jacksonville, 1972, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110, where the Supreme Court held that the vagrancy-loitering ordinance before them was:

void for vagueness, both in the sense that it "fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute," United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 98 L.Ed. 989, and because it encourages arbitrary and erratic arrests and convictions. Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093; Herndon v. Lowry, 301 U.S. 242, 57 S.Ct. 732, 81 L.Ed. 1066.

405 U.S. at 162, 92 S.Ct. at 843, 31 L.Ed.2d at 115. The Supreme Court also found that vagrancy ordinances, which are directed at suspected or future criminality rather than observable conduct, may be inconsistent with the Fourth Amendment requirement that arrests be predicated on probable cause. Papachristou, supra, 405 U.S. at 169-70, 92 S.Ct. at 846-47, 31 L.Ed.2d at 119; Hall v. United States, 1972, 148 U.S.App.D.C. 42, 459 F.2d 831, 836 (en banc). Such ordinances, when phrased in vague and general terms, authorize "arrest and conviction for conduct that is no more than suspicious," and "afford no reasonable criteria by which an officer may determine whether the ordinance has or has not been violated." Powell v. Stone, 9 Cir., 1974, 507 F.2d 93, 96, rev'd on other grounds, 1976, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067.

We emphasize at the outset that the provision at issue here bears little resemblance to the ordinance declared unconstitutional

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in Papachristou, which " 'Derived from early English Law' " and therefore employed " 'archaic language' " in defining vagrancy. 405 U.S. at 161, 92 S.Ct. 839. The resulting ordinance was a potpourri of harmful and harmless, licit and illicit, activities, manners, mores, and conditions. 4 By contrast, the Panama Canal Zone Code section before us appears relatively restrained and concise. However, since Papchristou was decided, other vagrancy and loitering ordinances that also appeared relatively specific and clear have consistently failed to pass constitutional muster. United States ex rel. Newsome v. Malcolm, 2 Cir., 1974, 492 F.2d 1166, 1171-74, aff'd on other grounds sub nom, Lefkowitz v. Newsome, 1975, 420 U.S. 283, 95 S.Ct. 886, 43 L.Ed.2d 196; Powell v. Stone, 9 Cir., 1974, 507 F.2d 93, 95-97, rev'd on other grounds, 1976, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067. The question is whether the provision before us is distinguishable not only from the ordinance held invalid in Papachristou, but also from the more refined laws that have since been held to be defective. We answer this question in favor of the constitutionality of this statute.

The Panama Canal Zone statute has twenty-seven sections in all, many of which are identical to the language held unconstitutional in Papachristou. 5 Because Castillo

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was charged and convicted only under the first section of the statute, we do not here rule on the...

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