U.S. v. DeBright, 81-1648

• Decision Date: 21 July 1983
• Docket Number: No. 81-1648,81-1648
• Citation: 710 F.2d 1404
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Hilda Escobar DeBRIGHT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1404

710 F.2d 1404

UNITED STATES of America, Plaintiff-Appellee, v. Hilda Escobar DeBRIGHT, Defendant-Appellant.

No. 81-1648.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 6, 1982.

Decided July 21, 1983.

Robert L. Murray, Tucson, Ariz., for defendant-appellant.

Jon R. Cooper, Asst. U.S. Atty., Tucson, Ariz., for plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona (Tucson).

Before FLETCHER, PREGERSON, and REINHARDT, Circuit Judges.

REINHARDT, Circuit Judge:

Hilda Escobar DeBright ¹ was convicted of conspiring to import heroin (Count One), illegally importing heroin (Count Two), conspiring to possess heroin with intent to distribute (Count Three), and illegally possessing heroin with intent to distribute (Count Four). ² She received concurrent six-year sentences on all four counts. She takes no exception to her convictions on Counts Two through Four. She challenges only her conviction on Count One, contending that the refusal of the district judge to accept a proposed jury instruction on the issue of conspiracy was reversible error. She also contests the propriety of the length of her sentences.

Since three of the convictions are uncontested and the sentence on the remaining count runs concurrently, under the concurrent sentence doctrine we need not reach the merits of DeBright's claims. When invoking the doctrine, we have in most cases simply affirmed the conviction on the unreviewed count, with or without noting the absence of "collateral consequences." Although our circuit has utilized the concurrent sentence doctrine for many years, we have not, in any opinion, closely examined what consequence should flow from it. A careful consideration of our practice causes us to conclude that, if we continue to use the concurrent sentence doctrine in the future, we should vacate rather than affirm the convictions on those counts which we decline to review.

I

We have described the concurrent sentence doctrine as follows:

[T]he appellate court, as a matter of discretion, may decline to review a conviction under one count if a conviction under another count is affirmed and the sentence runs concurrently and no adverse collateral legal consequences for the appellant result from the additional conviction.

United States v. Martin, 599 F.2d 880, 887 (9th Cir.), cert. denied, 441 U.S. 962, 99 S.Ct. 2407, 60 L.Ed.2d 1067 (1979). The doctrine was first applied in the Ninth Circuit almost 40 years ago. See Maxfield v. United States, 152 F.2d 593, 595 (9th Cir.), cert. denied, 327 U.S. 794, 66 S.Ct. 821, 90 L.Ed. 1021 (1946); Haid v. United States, 157 F.2d 630, 631 n. 2 (9th Cir.1946); Danziger v. United States, 161 F.2d 299, 301 (9th Cir.), cert. denied, 332 U.S. 769, 68 S.Ct. 80, 92 L.Ed. 354 (1947). It evolved for reasons of judicial economy, to enable an appellate court to avoid reviewing claims where disposition on the merits would have no practical effect on the term of a defendant's imprisonment. ³ Presumably because of the volume of cases on our docket, our circuit has continued to employ the doctrine. See, e.g., Doan v. United States, 202 F.2d 674, 680 (9th Cir.1953); Robinson v. United States, 262 F.2d 645, 648 (9th Cir.1959); Sherwin v. United States, 320 F.2d 137, 156 (9th Cir.), cert. denied, 375 U.S. 964, 84 S.Ct. 481, 11 L.Ed.2d 420 (1963); Duran v. United States, 413 F.2d 596, 605 (9th Cir.), cert. denied, 396 U.S. 917, 90 S.Ct. 239, 24 L.Ed.2d 917 (1969); United States v. Martinez, 488 F.2d 1088, 1090 (9th Cir.1973); United States v. Valenzuela, 596 F.2d 824, 829 (9th Cir.), cert. denied, 441 U.S. 965, 99 S.Ct. 2415, 60 L.Ed.2d 1071 (1979); United States v. Barker, 675 F.2d 1055, 1059 (9th Cir.1982).

Ordinarily, when we have invoked the concurrent sentence doctrine, we have affirmed the conviction on the unreviewed counts. See, e.g., United States v. Martin, 599 F.2d at 887, 890. This practice has created a tension, however, between the desire to avoid the waste of judicial energies and the legitimate interest of a defendant in having a reviewing court thoroughly consider, before it affirms a conviction, whether the finding of guilt was lawful. It is this tension which has spawned the caveat that prevents application of the doctrine where a defendant may suffer "adverse collateral legal consequences," id. at 887.

Unfortunately, our decisions indicate that we have not always been mindful of this caveat. Indeed, we invoked the doctrine for 25 years before we made any mention of adverse collateral consequences. See United States v. Moore, 452 F.2d 576, 577 (9th Cir.1971) (per curiam) (first reported decision in which we mentioned adverse collateral consequences). Since then, on some occasions we have specifically found an absence of collateral consequences and then affirmed, see, e.g., United States v. Martin, 599 F.2d at 887, while on others we affirmed without even mentioning collateral consequences, see, e.g., United States v. Ponticelli, 622 F.2d 985, 992 (9th Cir.), cert. denied, 449 U.S. 1016, 101 S.Ct. 578, 66 L.Ed.2d 476 (1980); United States v. Jabara, 618 F.2d 1319, 1329 (9th Cir.), cert. denied, 446 U.S. 987, 100 S.Ct. 2973, 64 L.Ed.2d 845 (1980). See cases collected in United States v. Barker, 675 F.2d at 1061 n. 11 (Reinhardt, J., concurring).

The latter practice is particularly disturbing, for as the Supreme Court has observed, "most criminal convictions do in fact entail adverse collateral legal consequences." Benton v. Maryland, 395 U.S. 784, 790, 89 S.Ct. 2056, 2060, 23 L.Ed.2d 707 (1969) (quoting Sibron v. New York, 392 U.S. 40, 55, 88 S.Ct. 1889, 1899, 20 L.Ed.2d 917 (1968)). These consequences may be quite serious indeed, and may include a delay or denial of parole or exposure to state recidivist statutes. ⁴ Thus, if collateral consequences are indeed common and a finding of the absence of such consequences is a prerequisite to use of the doctrine, then it would seem that every defendant is entitled to careful review of all possible collateral consequences before any conviction is affirmed under the concurrent sentence doctrine. Ironically, though, such an approach defeats much of the economy to be gained from use of the doctrine. See United States v. Vargas, 615 F.2d 952, 959-60 (2d Cir.1980). ⁵

The Second Circuit agrees that a defendant deserves rigorous consideration of all consequences that may accompany an affirmance under the concurrent sentence doctrine. As a result, that Circuit sees little practical utility in the doctrine, has virtually abandoned it, and reviews almost all convictions on the merits. See United States v. Vargas, 615 F.2d at 956 (citing United States v. Ruffin, 575 F.2d 346, 361 (2d Cir.1978) (invocation of the doctrine is now "the exception rather than the rule")). The Fourth and Seventh Circuits are in accord. See Close v. United States, 450 F.2d 152, 155 (4th Cir.1971), cert. denied, 405 U.S. 1068, 92 S.Ct. 1513, 31 L.Ed.2d 799 (1972); United States v. Kilpatrick, 458 F.2d 864, 867 (7th Cir.1972). Although the Second Circuit's approach has considerable merit, in view of the demands of our caseload we are not inclined to follow it at the present time. We would prefer first to test the practicality of an alternative approach--retain the doctrine, but vacate rather than affirm the unreviewed convictions.

Surprisingly, in the many years we have applied the concurrent sentence doctrine, we have never--with one exception--discussed the question whether affirmance or vacation is the appropriate disposition. Instead, once we concluded that the doctrine should be invoked, and made or failed to make the collateral consequences finding, we merely added, "we affirm." Equally surprisingly, in the one case in which we did discuss the issue of the appropriate disposition, we decided to vacate rather than affirm. United States v. Fishbein, 446 F.2d 1201, 1205 (9th Cir.1971), cert. denied, 404 U.S. 1019, 92 S.Ct. 683, 30 L.Ed.2d 667 (1972).

In Fishbein, we adopted the vacation procedure now used by three other circuits. We did so by expressly "adopting the considerations expressed in United States v. Hooper, [432 F.2d 604 (D.C.Cir.1970) ]." 446 F.2d at 1206. The District of Columbia Circuit had said in Hooper that it found no satisfactory explanation for summary affirmance, since each additional conviction imposes adverse consequences on a defendant, even where the sentences are concurrent. Hooper, 432 F.2d at 605-06 and n. 3. Rather than discard the concurrent sentence doctrine entirely and review each claim on the merits, however, the Hooper court vacated the concurrent convictions. Vacating, the court concluded, "does not impair any need of the government, avoids the possibility of adverse collateral consequences to defendant[s], and furthers the general interest of the administration of justice...." Id. at 606 (footnote omitted). Recently, the Fifth and Eleventh Circuits also decided to adopt the Hooper approach. United States v. Butera, 677 F.2d 1376, 1386 (11th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 735, 74 L.Ed.2d 958 (1983); United States v. Cardona, 650 F.2d 54, 58 (5th Cir.1981).

After Fishbein, we continued to apply the concurrent sentence doctrine, but--without mentioning Fishbein and without explanation--continued to affirm rather than vacate. See, e.g., United States v. Ford, 632 F.2d 1354, 1370 n. 16 (9th Cir.1980), cert. denied, 450 U.S. 934, 101 S.Ct. 1399, 67 L.Ed.2d 369 (1981); United States v. Oropeza, 564 F.2d 316, 322 (9th Cir.1977), cert. denied, 434 U.S. 1080, 98 S.Ct. 1276, 55 L.Ed.2d 788 (1978); United States v. Weislow, 485 F.2d 560, 562 (9th Cir.1973), cert. denied, 415 U.S. 933, 94 S.Ct. 1447, 39 L.Ed.2d 491 (1974). Although we never retreated from our decision in Fishbein to adopt the Hooper considerations, 446 F.2d at 1206, we completely failed to utilize them. Now that, a decade later, the Fifth and Eleventh Circuits have adopted the Hooper...