U.S. v. Denson

• Decision Date: 05 February 1979
• Docket Number: Nos. 78-2102,78-2508,s. 78-2102
• Parties: UNITED STATES of America, Plaintiff-Appellant. v. Terry Wayne DENSON, Stephen Orlando and Joseph James Janish, Defendants- Appellees. In re UNITED STATES of America, Petitioner.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1112

588 F.2d 1112

UNITED STATES of America, Plaintiff-Appellant. v. Terry Wayne DENSON, Stephen Orlando and Joseph James Janish Defendants- Appellees In re UNITED STATES of America, Petitioner.

Nos. 78-2102, 78-2508.

United States Court of Appeals Fifth Circuit.

Feb. 5, 1979.

Rehearing En Banc Granted March 30, 1979.

Mary L. Sinderson, Asst. U. S. Atty., Houston, Tex., Joel L. Selig, Dept. of Justice, Washington, D.C., for U. S. in 78-2102.

Robert C. Bennett, Houston, Tex., for Denson.

Michael Ramsey, Houston, Tex., for Orlando.

Michael A. Andrews, Houston, Tex., for Janish.

E. W. Barnett, B. J. Bradshaw, Leroy Jeffers, Houston, Tex., Tom Mills, Jr., Dallas Tex., amicus curiae, for Nat'l Assn. of Criminal Defense Lawyers, Inc.

J. A. Canales, U. S. Atty., Houston, Tex., Dennis J. Dimsey, Drew S. Days, Asst. Atty. Gen., Civil Rights Div., John E. Huerta, Brian K. Landsberg, Dept. of Justice, Washington, D.C., for U. S. in both cases.

Appeal from the United States District Court for the Southern District of Texas.

On Petition for Writ of Mandamus to the United States District Court for the Southern District of Texas.

Before GOLDBERG, AINSWORTH and HILL, Circuit Judges.

JAMES C. HILL, Circuit Judge:

In No. 78-2508 the Government petitions for a writ of Mandamus ordering the District Court to correct allegedly illegal sentences entered in this action on May 19, 1978. In No. 78-2102 the Government has filed a notice of appeal in an effort to challenge the same allegedly illegal sentences through the alternative procedure of a direct appeal. The substantive issue presented is whether 18 U.S.C.A. § 3651 authorizes a suspended sentence and probation for a conviction under 18 U.S.C.A. § 241 in a case in which the victim of the constitutional deprivation was killed. The procedural issue presented is whether a direct appeal or a petition for a writ of Mandamus is the appropriate vehicle for the Government to challenge the sentences. After careful consideration of the record, the litigants' briefs, the briefs of Amici curiae, ¹ the litigants' oral arguments, and the applicable law, we dismiss the appeal as improper and deny the petition for a writ of Mandamus.

I.

We need not recount the evidence of this horrible crime adduced at this trial or at the prior state proceedings, since the issues presented here are legal and procedural. The relevant procedural history which we need consider to resolve the issues before us is not disputed. ² On October 20, 1977, a federal grand jury returned a four-count indictment charging former Houston police officers Terry Wayne Denson, Stephen Orlando, Joseph James Janish, and Louis Glenn Kinney with violations of 18 U.S.C.A. §§ 241, 242, and 371. Count One of the indictment charged Denson, Orlando, Janish, and Kinney with conspiring to injure, oppress, threaten, and intimidate Joe Luna Torres, Jr., in the free exercise of his constitutional right not to be deprived of liberty without due process of law, in violation of 18 U.S.C.A. § 241. Count One averred that on May 6, 1977, Janish, Denson, Kinney, and Orlando struck Torres while he was handcuffed, and that Denson pushed Torres into the Buffalo Bayou in Houston. This Count further alleged that the conspiracy resulted in Torres' death. Count Two of the indictment charged that Denson, Orlando, Janish, and Kinney, while acting under color of law, willfully struck Torres, thereby depriving him of his constitutional right not to be deprived of liberty without due process of law, in violation of 18 U.S.C.A. § 242. Count Three alleged that Denson, aided and abetted by Orlando, Janish, and Kinney, willfully assaulted Torres by pushing him into the Buffalo Bayou, thereby depriving him of his constitutional right not to be deprived of liberty without due process of law, in violation of 18 U.S.C.A. §§ 2 and 242. Count Three further asserted that this act resulted in Torres' death. Count Four charged that Denson, Orlando, and Kinney conspired to violate 18 U.S.C.A. § 1510 by preventing one Carless E. Elliott from communicating information about violations of 18 U.S.C.A. §§ 241 and 242 to an agent of the Federal Bureau of Investigation, in violation of 18 U.S.C.A. § 371. On October 28, 1977, the Defendants entered pleas of not guilty to the charges against them. A jury trial commenced on January 23, 1978. On January 31, 1978, the District Court granted defendant Kinney's motion for a severance. On February 8, 1978, the jury found Defendants Denson, Orlando, and Janish guilty on Counts One and Two of the indictment and not guilty on Counts Three and Four.

Sentencing was held on March 28, 1978. On Count One of the indictment, the District Court sentenced each Defendant to ten years' imprisonment, suspended execution of that sentence, and ordered the Defendants placed on supervised probation for five years. On Count Two, the District Court sentenced each Defendant to one year's imprisonment. The District Court ordered the sentences on Counts One and Two to be served consecutively. After the sentence was announced, the following exchange took place between counsel for the United States and the District Court:

Mr. McDonald: If I may be heard, there is some question about whether or not a probated sentence

The Court: I have resolved that question to my own satisfaction.

We will be in recess.

On April 5, 1978, the Government filed a motion to correct sentence. In this motion, the Government contended that the District Court's orders suspending execution of its ten-year sentences and placing the Defendants on probation exceeded its authority under 18 U.S.C.A. § 3651. The Defendants filed a response to the Government's motion on April 11, 1978. In its memorandum and order dated April 17, 1978, the District Court denied the Government's motion. The District Court's reasoning is set forth in the following paragraph taken from its opinion:

The language 'imprisonment (or imprisoned) for any term of years or for life' in 18 U.S.C. § 241 is identical to the language in 18 U.S.C. § 1111 (defining second degree murder), Id. § 2031 (defining rape), and Id. § 1201 (defining kidnapping). The Administrative Office of the United States Courts reports that, nationwide, 4 convicted of second degree murder, 33 convicted of rape, and 6 convicted of kidnapping in 1977 received probation. Annual Report of the Director, Administrative Office of the United States Courts, 1977. In 1976, those receiving probation after conviction of these offenses were 2 (second degree murder), 20 (rape), and 5 (kidnapping), Id., 1976. In 1975, the numbers were 3 (second degree murder), 28 (rape), and 10 (kidnapping). Id., 1975. Thus throughout the nation, the Federal Judiciary has interpreted the language 'imprisonment (or imprisoned) for any term of years or for life' to be consistent with the language of 18 U.S.C. § 3651 authorizing the granting of probation. Probation is prohibited when a punishment of death or life imprisonment is Mandatory. See United States v. Woods, 484 F.2d 127, 139 (4th Cir. 1973), Cert. denied, 415 U.S. 979, 94 S.Ct. 1566, 39 L.Ed.2d 875.

On May 17, 1978, the Government filed a notice of appeal from the April 17, 1978, order denying its motion to correct sentence. The notice of appeal indicated that the Government also intended to seek relief by way of a writ of Mandamus.

On May 19, 1978, the District Court entered Judgment and Probation/Commitment Orders for Defendants Denson, Orlando, and Janish. These Orders effectuated the sentences which had been announced from the bench on March 28, 1978. The District Court also issued a second memorandum and order, the asserted purpose of which was

to set forth upon the record the reasons which stem from the unprecedented procedural posture of this case, for the order, which is a part hereof, staying, to the extent that this court has power to stay, the running of all time periods pertaining to an appeal on the merits in this case until such time as the question of the validity of the sentence of this court has been finally determined.

In this Memorandum and Order, the District Court set forth an additional basis for the sentences it had imposed. After summarizing the procedures followed and the arguments of the litigants, the District Court stated:

In an attempt to depoliticize what has become an almost intolerable situation of attempts to interfere with the independence of the court, this court has not heretofore articulated the most cogent reason for the sentences imposed. That reason is that the Government entered into a plea agreement with one of the former police officers not on trial in this case that if he would testify against those on trial here, he would be permitted to plead guilty to the same actions upon which the jury found these Defendants guilty under a different statute carrying a maximum penalty of one years' (sic) imprisonment and further that in his case the Government would recommend probation.

On May 23, 1978, the Government filed an amended notice of appeal from the order denying its motion to correct sentence and from the orders of probation entered on May 19, 1978. On May 30, 1978, Defendants Denson, Orlando, and Janish filed notices of appeal from the judgments entered against them. On July 14, 1978, the Government filed its petition for a writ of Mandamus. This Court stayed the Defendants' appeal pending the outcome of the Government's attacks on the sentences.

II.

We first consider whether 18 U.S.C.A. § 3651 authorizes a suspended sentence and probation for these convictions under 18 U.S.C.A. § 241.

A.

Section 3651 authorizes federal courts to suspend imposition or execution of sentences only "(u)pon entering a judgment of conviction of any offense not punishable by death or life imprisonment." ³ Webster's Third International Dictionary (16th ed. 1971) and Black's Law Dictionary (Rev. 4th ed. 1968) both define "punishable" as meaning deserving of, liable of, or...