U.S. v. Denson

• Decision Date: 04 October 1979
• Docket Number: 78-2508,Nos. 78-2102,s. 78-2102
• Citation: 603 F.2d 1143
• 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 1143

603 F.2d 1143

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.

Oct. 4, 1979.

Mary L. Sinderson, Asst. U. S. Atty., Houston, Tex., Brian K. Landsberg, Dept. of Justice, Dennis J. Dimsey, Appellate Sec., Drew S. Days, III, John E. Huerta, Civil Rights Div., Washington, D. C., for plaintiff-appellant.

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., for Nat'l Assn. of Criminal Defense Lawyers, Inc., amici curiae.

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 BROWN, Chief Judge, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, CLARK, RONEY, GEE, TJOFLAT,

HILL, FAY, RUBIN, VANCE, and KRAVITCH, Circuit Judges. ^*

ALVIN B. RUBIN, Circuit Judge:

A writ of mandamus is sought by the government to correct an allegedly illegal sentence for a criminal offense. The defendants were convicted on two counts, one of which prescribes "imprisonment for any term of years or for life." The trial judge imposed a ten year sentence on this count, suspended its execution and placed the defendants on probation. A panel of this court concluded that the trial court exceeded its authority in suspending execution of the sentence and placing the defendants on probation; that the government may not challenge the legality of the sentence by direct appeal; and that only mandamus could provide a remedy. A majority of the panel also decided, however, that, mandamus being an extraordinary writ, the court was not duty-bound to issue it. Finding no compelling need for the exercise of its discretion, the divided panel declined to issue the writ. ¹

En banc we differ only with panel's final decision not to issue the writ: we hold that, when the writ of mandamus is sought from an appellate court to confine a trial court to a lawful exercise of its prescribed authority, the court should issue the writ almost as a matter of course. In all other respects we affirm and reinstate the panel decision based on the authorities cited and the reasons set forth in its opinion, Parts I and II, Subparts A and B.

I.

The facts are fully and clearly set forth in the panel opinion. We recite them again merely to make this decision self-contained.

A four-count indictment charged that the three defendants, while members of the Houston, Texas, Police Department and acting under the color of Texas law, conspired to injure and intimidate Joe Luna Torres, Jr., and that the conspiracy resulted in his death, in violation of 18 U.S.C. § 241 (Count I); struck and assaulted Torres (Count II); pushed him into the bayou or aided and abetted that offense (Count III); all of which denied Torres his constitutional right not to be deprived of liberty without due process of law; and that they conspired to prevent another person from communicating information about these violations of federal law to an agent of the Federal Bureau of Investigation (Count IV). The defendants allegedly struck Torres while he was handcuffed, injuring him so badly that, when they arrived with their prisoner at the Houston city jail, the jailer refused to accept Torres because of his injuries, and, thereafter, in pursuance of the conspiracy, defendant Denson pushed Torres into a bayou where he drowned.

After a fifteen day trial, on February 8, 1978, the jury found all of the defendants guilty on Counts I and II and not guilty on the remaining counts. Forty-eight days later the court sentenced each defendant alike: on Count I, ten years imprisonment with execution of the sentence suspended; each defendant was placed on supervised probation for five years. On Count II the sentence was imprisonment for one year. The sentences were to be served consecutively.

There is no issue about the validity of the sentence on Count II. However, the government correctly contended, as the panel held, that under18 U.S.C. § 3651 a defendant may be placed on probation only when he has been convicted of an offense Not punishable by death or life imprisonment. Although the defendants were sentenced only to 10 years on Count I, 18 U.S.C. § 241 provides for a maximum sentence of life imprisonment for conspiracy to violate constitutional rights resulting in death. The district court, therefore, exceeded its authority in suspending execution of the sentence on Count I and in placing the defendants on probation.

II.

Countless expressions can be found in the jurisprudence to support the black-letter proposition that mandamus is an extraordinary remedy for extraordinary causes. See, e. g., Will v. United States, 1967, 389 U.S. 90, 95, 88 S.Ct. 269, 273, 19 L.Ed.2d 305; Platt v. Minnesota Mining & Mfg. Co., 1964, 376 U.S. 240, 245, 84 S.Ct. 769, 772, 11 L.Ed.2d 674; Ex parte Fahey, 1947, 332 U.S. 258, 260, 67 S.Ct. 1558, 1559, 91 L.Ed. 2041; Sperry Rand Corp. v. Larson, 8 Cir. 1977, 554 F.2d 868, 872; Haneke v. Secretary of HEW, 1976, 175 U.S.App.D.C. 329, 334, 535 F.2d 1291, 1296; Aday v. United States District Court, 6 Cir. 1963, 318 F.2d 588, 591, Cert. denied, 375 U.S. 832, 84 S.Ct. 78, 11 L.Ed.2d 63. Indeed, we have ourselves echoed what appears to be almost an aphorism. See, e. g., In re Estelle, 5 Cir. 1975, 516 F.2d 480, 483, Cert. denied, 1976, 426 U.S. 925, 96 S.Ct. 2637, 49 L.Ed.2d 380; Carter v. Seamans, 5 Cir. 1969, 411 F.2d 767, 773, Cert. denied, 1970, 397 U.S. 941, 90 S.Ct. 953, 25 L.Ed.2d 121; Belcher v. Grooms, 5 Cir. 1968, 406 F.2d 14, 17; Miller v. Connally, 5 Cir. 1965, 354 F.2d 206, 208.

The writ of mandamus is an order directing a public official or public body to perform a duty exacted by law. It may be issued to compel compliance with a variety of legal duties by a host of officials and bodies. In this case the writ is sought from us as an appellate court for the purpose of confining a federal trial court to the exercise of its lawful authority. We agree with the panel that the correction of an illegal sentence is an extraordinary cause for which mandamus is available. However, examination of the authorities and careful consideration of the precise purpose for which the writ is here sought lead us to conclude that the panel assumed broader discretion than it actually had in deciding whether or not to issue the writ and that, whatever the ambit for judgment, the circumstances compelled issuance of the mandate.

The Supreme Court has repeatedly stated in general terms that issuance of a writ of mandamus lies in large part within the discretion of the court. See, e. g., Helstoski v. Meanor, 1979, --- U.S. ----, 99 S.Ct. 2445, 61 L.Ed.2d 30; Kerr v. United States District Court, 1976, 426 U.S. 394, 403, 96 S.Ct. 2119, 2124, 48 L.Ed.2d 725; Schlagenhauf v. Holder, 1964, 379 U.S. 104, 112 n.8, 85 S.Ct. 234, 239 n.8, 13 L.Ed.2d 152; Roche v. Evaporated Milk Ass'n, 1943, 319 U.S. 21, 25-26, 63 S.Ct. 938, 941, 87 L.Ed. 1185.

The scope of discretion is, however, circumscribed by the purpose for which the writ is sought. Under some circumstances the room for judgment is narrowly constrained. Fifty years ago in Delaware, Lackawanna & Western Railroad v. Rellstab, 1928, 276 U.S. 1, 48 S.Ct. 203, 72 L.Ed. 439, the Supreme Court was called upon to correct the action of a district court in setting aside a judgment in a civil action after the court's term had ended. The court of appeals had refused to grant a writ of mandamus requiring the district court to reinstate the judgment. The Supreme Court held that the power of the district court to set aside its judgment ended with the term. It stated:

As the Court was without jurisdiction to vacate the judgment, mandamus is the appropriate remedy . . . .

But it is said that the granting of the writ of mandamus is discretionary and it is implied that if we are of opinion that the Circuit Court of Appeals was mistaken in denying its power to grant the writ, that court still might deny it on the ground that injustice would be done if the judgment were allowed to stand. But neither Court would be warranted in declaring the judgment unjust after it had become unassailable . . . . (276 U.S. at 5, 48 S.Ct. at 203-04.)

The Court held that, "because the District Court had made an unwarranted attempt to set aside a judgment that it had no jurisdiction to touch," "(i)t follows that the writ should issue." 276 U.S. at 5, 48 S.Ct. at 204. Discretion might be inherent in the writ, but the circumstances made appellate action imperative.

Three decades later, in Beacon Theatres, Inc. v. Westover, 1959, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988, the writ was issued, without discussion of discretion, to protect a litigant's right to a jury trial. Mr. Justice Stewart, dissenting, together with Justices Harlan and Whittaker, thought that issuance of the writ was improper under the circumstances of the case, but agreed with what they considered the majority to hold: "There can be no doubt that a litigant is Entitled to a writ of mandamus to protect a clear constitutional or Statutory Right to a jury trial." (Emphasis added.) 359 U.S. at 511, 79 S.Ct. at 957.

In many similar instances the writ has been issued to exact a trial court's performance of its duty with little or no discussion of discretion or judgment or balancing of factors. E. g., In re Simons, 1918, 247 U.S. 231, 38 S.Ct. 497, 62 L.Ed. 1094; Estate of Whitlock v. Commissioner, 10 Cir. 1976, 547 F.2d 506, 510, stay denied, 1977, 429 U.S. 1069, 97 S.Ct. 803, 50 L.Ed.2d 787, Cert. denied, 1977, 430 U.S. 916, 97 S.Ct. 1329, 51 L.Ed.2d 594; Hartland v. Alaska Airlines, 9 Cir. 1976, 544 F.2d 992, 1001-02; In re...