730 F.2d 1255 (9th Cir. 1984), 81-1648, United States v. De Bright

Docket Nº:81-1648.
Citation:730 F.2d 1255
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Hilda Escobar DE BRIGHT, Defendant-Appellant.
Case Date:March 29, 1984
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1255

730 F.2d 1255 (9th Cir. 1984)

UNITED STATES of America, Plaintiff-Appellee,


Hilda Escobar DE BRIGHT, Defendant-Appellant.

No. 81-1648.

United States Court of Appeals, Ninth Circuit

March 29, 1984

Argued and Submitted Jan. 12, 1984.

Page 1256

Daniel G. Knauss, Asst. U.S. Atty., Tucson, Ariz., for plaintiff-appellee.

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

Appeal from the United States District Court for the District of Arizona.


WALLACE, Circuit Judge:

We have taken this case en banc because of a conflict among our decisions in the application of the concurrent sentence doctrine. In doing so, we considered the propriety of using the doctrine as a discretionary way to avoid reviewing criminal convictions. However, the doctrine's disadvantages outweigh its advantages. Therefore, we reject its application in this and future cases.


DeBright was convicted of conspiring to import heroin, illegally importing heroin, conspiring to possess heroin with intent to distribute, and illegally possessing heroin with intent to distribute in violation of 21 U.S.C. Secs. 963, 952(a), 960(a)(1), 841(a)(1), and 18 U.S.C. Sec. 2. She was sentenced to concurrent six-year sentences on all four counts. DeBright's arguments on appeal focused primarily on her conspiracy to import conviction in Count One. Because DeBright virtually conceded her guilt under the other three counts, the panel hearing this appeal concluded that it was unnecessary to reach the merits of her challenge to the conspiracy conviction under Count One. United States v. DeBright, 710 F.2d 1404, 1405 (9th Cir.1983) (DeBright ). The panel relied on the concurrent sentence doctrine, which allows:

the appellate court, as a matter of discretion, [to decline] review [of] a conviction under one count if a conviction under another count is affirmed and the sentences run 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 panel vacated DeBright's unreviewed conspiracy conviction.

In our discretionary use of the concurrent sentence doctrine over nearly four decades, see Haid v. United States, 157 F.2d 630, 631 n. 2 (9th Cir.1946); Maxfield v. United States, 152 F.2d 593, 595 (9th Cir.1945), cert. denied, 327 U.S. 794, 66 S.Ct. 821, 90 L.Ed. 1021 (1946), we have, with one exception, always affirmed the unreviewed conviction. In United States v. Fishbein, 446 F.2d 1201, 1205-06 (9th Cir.1971), we vacated the unreviewed conviction. In the subsequent twelve years until DeBright, we had never followed Fishbein but instead invariably adhered to our long-standing practice of affirming the unreviewed conviction. 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. 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). The resurrection of Fishbein by DeBright caused us to face the initial question of whether we should vacate the unreviewed conviction when we apply the concurrent sentence doctrine.

Page 1257


In determining to vacate rather than affirm DeBright's unreviewed conviction, the panel relied heavily on the decision of the Court of Appeals for the District of Columbia Circuit in United States v. Hooper, 432 F.2d 604 (D.C.Cir.1970) (Hooper ). There the court concluded that neither the government nor the public had any significant interest in maintaining the judgment under a count that was rendered "superfluous" by the imposition of concurrent sentences. Id. at 606. In recent decisions, the Fifth and Eleventh Circuits have followed Hooper. 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, 57-58 (5th Cir.1981).

We conclude that vacating unreviewed sentences under the concurrent sentence doctrine is a fundamentally erroneous practice. Under the separation of governmental powers established by the Constitution, the executive branch has the primary responsibility for determining which violations of the law shall be prosecuted. See United States v. Miller, 722 F.2d 562, 565 (9th Cir.1983) ("[S]eparation of powers requires that the judiciary remain independent of executive affairs.... Charging decisions are generally within the prosecutor's exclusive domain."); see also Gray v. Bell, 712 F.2d 490, 513 (D.C.Cir.1983) ("[P]rosecutorial discretion is exercised pursuant to expansive constitutional and statutory authority delegated to the executive."). Courts may exercise supervisory power over the administration of the criminal justice system and encroach upon the prerogatives of the executive branch by dismissing individual indictments only where there is "a clear basis in fact and law for doing so." United States v. Chanen, 549 F.2d 1306, 1313 (9th Cir.), cert. denied, 434 U.S. 825, 98 S.Ct. 72, 54 L.Ed.2d 83 (1977); see also United States v. Hasting, --- U.S. ----, 103 S.Ct. 1974, 1978-79, 76 L.Ed.2d 96 (1983) (describing the limited situations that justify use of courts' supervisory powers) ("The purposes underlying use of the supervisory powers are threefold: to implement a remedy for violation of recognized rights, ... to preserve judicial integrity by ensuring that a conviction rests on appropriate considerations validly before the jury, ... and finally, as a remedy designed to deter illegal conduct, ....") (citations omitted). Adopting a rule which allows vacating convictions without reviewing their merits is not an appropriate use of our supervisory authority. It would impermissibly infringe on the prosecutorial function of the executive branch. Cf. United States v. Miller, 722 F.2d at 565 ("[C]ourts ... should avoid creating broad rules that limit traditional prosecutorial independence."); United States v. Real, 446 F.2d 40, 40 (9th Cir.1971) (judicial discretion may not be substituted for prosecutorial discretion in determining whether to dismiss an indictment).

We also reject Hooper's basic assumption that the government and public lack an interest in retaining unreviewed convictions under the concurrent sentence doctrine. The convictions represent the expenditure of society's resources in the investigation and prosecution of criminal conduct. Our society has established as one possible consequence of a criminal conviction the necessity of living with the record of having been convicted. We find it inappropriate for us to remove this socially imposed sanction merely because it serves the interest of judicial economy.

Finally, there are substantial practical difficulties with the implementation of Hooper. Under...

To continue reading