U.S. v. Minor

Decision Date13 May 1988
Docket NumberNo. 87-5144,87-5144
Citation846 F.2d 1184
Parties1988 Copr.L.Dec. P 26,232, 6 U.S.P.Q.2d 1194 UNITED STATES of America, Plaintiff-Appellee, v. William Richard MINOR, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Michael J. Lightfoot, Talcott, Lightfoot, Vandevelde, Woehrle & Sadowsky, Los Angeles, Cal., for defendant-appellant.

Gary S. Lincenberg and Maurice A. Leiter, Asst. U.S. Attys., Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before TANG, WIGGINS and KOZINSKI, Circuit Judges.

AMENDED OPINION

KOZINSKI, Circuit Judge:

William Richard Minor appeals from an order of the district court resentencing him for crimes connected with a scheme to manufacture and distribute bootleg Elvis Presley phonograph records. We consider the legality of the sentences and the district court's jurisdiction to impose them.

Facts

Minor was convicted by a jury of six counts of criminal copyright infringement under 17 U.S.C. Sec. 506(a) (Supp. V 1981), two counts of interstate transportation of stolen property under 18 U.S.C. Sec. 2314 (1982), and one count of conspiracy to commit these offenses under 18 U.S.C. Sec. 371 (1982). On June 20, 1983, the district court sentenced Minor to four years in prison and fined him $10,000 on the conspiracy count and each of the two stolen property counts, the latter sentences to run concurrent with each other but consecutive to the conspiracy sentence. On the first copyright infringement count the court imposed a one-year sentence with incarceration for the first six months and the balance suspended, five years of probation, and a fine of $10,000. The district court ordered this sentence to run consecutive to those imposed on the stolen property and conspiracy counts. On the remaining five infringement counts, the court imposed suspended prison sentences, placed Minor on probation for five years, and fined him an additional $10,000 on each count. The district court stated in its judgment order: "It is the intention of this judgment that the defendant serve 8 1/2 years in a jail-type institution and pay a fine of $90,000." Appellee's Supplemental Excerpts of Record (SER) at 1.

In Minor's first appeal, we affirmed the convictions. United States v. Minor, 756 F.2d 731 (9th Cir.1985) (Minor I ). We stayed our mandate, however, pending the Supreme Court's decision in the case of Minor's codefendant, Paul Dowling. On June 28, 1985, the Court reversed Dowling's conviction under 18 U.S.C. Sec. 2314, holding that the interstate transportation of stolen property statute did not apply to bootleg records manufactured and distributed without the copyright owners' consent. Dowling v. United States, 473 U.S. 207, 228-29, 105 S.Ct. 3127, 3139, 87 L.Ed.2d 152 (1985). The Supreme Court then granted Minor's petition for writ of certiorari, vacated the judgment against him and remanded for reconsideration in light of Dowling. Minor v. United States, 474 U.S. 991, 106 S.Ct. 401, 88 L.Ed.2d 353 (1985).

On remand, we reversed Minor's conviction on the two section 2314 counts and affirmed his convictions on the remaining counts. United States v. Minor, 783 F.2d 154 (9th Cir.1986) (Minor II ). On March 6, 1986, Minor filed a motion for retention of the mandate and for leave to file a motion for reconsideration, challenging the "duplicitous" conspiracy indictment and misjoinder of the copyright and conspiracy counts. In opposing Minor's motion, the government asked that we remand to the district court for resentencing on all counts. Specifically, the government argued that vacating the interstate transportation and felony conspiracy counts would reduce Minor's sentence substantially, making resentencing necessary to preserve the general "intention" of the district court. Excerpts of Record (ER) at 139, 142-44. On June 12, 1986, we denied Minor's motion and reaffirmed his convictions for copyright infringement and conspiracy to commit infringement. We did not, however, adopt the government's suggestion of a broad remand. United States v. Minor, 791 F.2d 801 (9th Cir.1986) (Minor III ).

Our mandate in Minor III was issued on June 24, 1986, and lodged in the district court on July 9. On July 17 the district court issued a notice of receipt of the mandate and scheduled an August 4 hearing for the filing and spreading thereof. When Minor failed to appear at the hearing, the court issued a bench warrant for his arrest and ordered forfeiture of the corporate surety appeal bond of $75,000. On learning of the bail forfeiture, Minor wrote to the district court providing his Miami, Florida address. Deputy U.S. Marshals arrested Minor there on September 4 and returned him to Los Angeles.

On March 23, 1987, Minor filed a motion in district court under Fed.R.Crim.P. 35(a) to correct an illegal sentence. He contended that the decisions of the Supreme Court and the Ninth Circuit had "eliminated the bases for the felony conspiracy and interstate transportation of stolen property counts under which the defendant was originally sentenced," ER at 21, and that the cumulative fines for the six copyright infringement counts were illegal because they all arose from one transaction. Id. Minor and his uncle, who had indemnified the surety, also moved to set aside or substantially remit the bail forfeiture. The government agreed that the conspiracy sentence was illegal, but asked the district court to vacate the original sentencing order and resentence Minor on all counts. ER at 187, 190.

At a hearing held on May 4, 1987, the district court denied Minor's motion to correct the allegedly illegal sentences and granted the government's motion to vacate and resentence. The court reimposed a four-year term of imprisonment and $10,000 fine on the conspiracy count, and then sentenced Minor to six consecutive one-year terms on the six infringement counts, all to be served concurrent with the conspiracy sentence. ER at 225. Minor thus received a cumulative six-year term of imprisonment and a $10,000 fine. The court also found Minor partially responsible for his failure to appear at the spreading of the mandate, and ordered only $65,000 of the bond remitted, leaving the balance of $10,000 forfeited. See SER at 11-12 (order of May 19, 1987).

Contentions of the Parties

Minor argues that the four-year sentence for conspiracy is illegal, and that the district court lacked jurisdiction to resentence him on the copyright infringement counts. If the district court did have jurisdiction, Minor contends that the resentencing subjected him to double jeopardy, and that the court could not impose six sentences for copyright infringements arising out of one criminal transaction. Finally, Minor asserts that the district court abused its discretion in refusing to set aside the bond forfeiture in its entirety.

The government agrees that the conspiracy sentence is illegal but argues that the error is harmless because the conspiracy sentence runs concurrent with the six-year sentence for copyright infringement. With respect to the latter, the government argues that the district court had jurisdiction to resentence on all counts, and that the resentencing was consistent with the double jeopardy clause and the Copyright Act. It also contends that the district court properly exercised its discretion in ordering a partial bail forfeiture.

Discussion
A.

Minor's original four-year sentence was based on a conviction for conspiracy to commit copyright infringement and interstate transportation of stolen property, the latter a felony under 18 U.S.C. Sec. 2314. Because the Supreme Court in Dowling rejected the application of section 2314 to the acts at issue here, our subsequent affirmance of the conspiracy count was based solely on the first object offense, copyright infringement. See Minor III, 791 F.2d at 801.

With certain inapplicable exceptions, copyright infringement is a misdemeanor, the maximum penalty for which is one year in prison and, at that time, a $10,000 fine. 17 U.S.C. Sec. 506(a) (Supp. V 1981); see 18 U.S.C. Sec. 1 (1982) (classifying offenses). 1 The punishment for conspiracy to commit a misdemeanor may not exceed the maximum punishment for the object offense. See 18 U.S.C. Sec. 371. Conspiracy to commit misdemeanor copyright infringement is thus also a misdemeanor for which the district court could sentence Minor to no more than one year and a $10,000 fine. Minor's four-year sentence was thus " 'in excess of the permissible statutory penalty for the crime' " and therefore illegal within the meaning of Rule 35(a). United States v. Fowler, 794 F.2d 1446, 1449 (9th Cir.1986) (quoting Pinedo v. United States, 347 F.2d 142, 148 (9th Cir.1965), cert. denied, 382 U.S. 976, 86 S.Ct. 547, 15 L.Ed.2d 468 (1966)), cert. denied, --- U.S. ----, 107 S.Ct. 1309, 94 L.Ed.2d 153 (1987). The district court therefore erred in denying Minor's motion to correct the conspiracy sentence.

The government concedes as much. Nonetheless, it argues that the error is harmless because the district court ordered the conspiracy sentence to run concurrent with the six-year sentence for copyright infringement. This argument fails, however, if the resentencing on the copyright infringement counts was invalid. We therefore turn to that issue.

B.

After our decision in Minor III, the district court, on the government's motion, vacated the previously imposed sentences and resentenced Minor on all counts. But a district court does not have inherent power to resentence defendants at any time. See United States v. Henry, 709 F.2d 298, 307-08, 317 (5th Cir.1983) (en banc) (plurality opinion). Its authority to do so must flow either from the court of appeals mandate under 28 U.S.C. Sec. 2106 (1982) or from Federal Rule of Criminal Procedure 35. We consider each in turn.

1. Court of Appeals Mandate

Relying...

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