U.S. v. Spilotro, s. 89-1344

• Decision Date: 08 September 1989
• Docket Number: 89-1685,Nos. 89-1344,s. 89-1344
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Victor P. SPILOTRO, Defendant-Appellee. UNITED STATES of America, Petitioner, v. UNITED STATES DISTRICT COURT FOR the NORTHERN DISTRICT OF ILLINOIS, and Honorable James B. Moran, United States District Judge, Respondents.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1003

884 F.2d 1003

UNITED STATES of America, Plaintiff-Appellant, v. Victor P. SPILOTRO, Defendant-Appellee.

UNITED STATES of America, Petitioner, v. UNITED STATES DISTRICT COURT FOR the NORTHERN DISTRICT OF

ILLINOIS, and Honorable James B. Moran, United

States District Judge, Respondents.

Nos. 89-1344, 89-1685.

United States Court of Appeals, Seventh Circuit.

Argued June 16, 1989.

Decided Sept. 8, 1989.

J. Kenneth Lowrie, Dept. of Justice, Chicago, Ill., for U.S.

Allan A. Ackerman, Chicago, Ill., for defendant-appellee.

Anton R. Valukas, U.S. Atty., Office of the U.S. Atty., Chicago, Ill., for respondents.

Before POSNER, RIPPLE, and MANION, Circuit Judges.

RIPPLE, Circuit Judge.

The government seeks review of the district court's vacation of the defendant's six-month custodial sentence. We dismiss the government's appeal for want of jurisdiction. However, we grant the government's alternate request for a writ of mandamus and direct that the district court restore the defendant's original sentence.

I. Background

On May 26, 1987, Victor Spilotro pleaded guilty to extortion and filing a false income tax return. On July 17, 1987, he was sentenced to six months in the custody of the Attorney General, to be served in a work-release program. Following that six-month term, Mr. Spilotro was to serve a period of five years' probation. Execution of the sentence was stayed until September 1, 1987.

On August 22, 1987, Mr. Spilotro suffered a heart attack. In the months that followed, Mr. Spilotro was plagued by a number of other serious medical problems, and the district court intermittently stayed execution of his sentence. On April 26, 1988, 284 days after he had been sentenced, Mr. Spilotro filed a motion to modify the terms of his probation in which he requested that the custodial portion of his sentence be vacated. The district court denied the motion on May 25, 1988, noting that the custodial work-release portion of the sentence was exclusive of the probationary term. Due to Mr. Spilotro's continuing severe illness, however, the court continued the stay of execution of the sentence. Notwithstanding its May decision, on December 22, 1988, the district court vacated the six-month custodial sentence because Mr. Spilotro's health prevented him from performing the employment underlying the work-release sentence. The government's motion for reconsideration was denied on January 23, 1989.

The government filed a notice of appeal from the district court's order on February 21, 1989. At the time that the government filed its appellate brief, March 31, 1989, it also filed in this court a petition for a writ of mandamus directing the district court to vacate its order eliminating or suspending the custodial portion of Mr. Spilotro's sentence. Consideration of the government's petition for mandamus has been consolidated with this appeal.

II. Appellate Jurisdiction

The government has appealed the district court's order reducing Mr. Spilotro's sentence under 18 U.S.C. Sec. 3731 and 28 U.S.C. Sec. 1291. We shall address separately each asserted basis for jurisdiction.

A. 18 U.S.C. Sec. 3731

Mr. Spilotro's offense was committed before November 1, 1987. Therefore, 18 U.S.C. Sec. 3742(b), which authorizes government appeals of specific sentencing decisions, does not apply in this case. The government instead relies on 18 U.S.C. Sec. 3731, which authorizes government appeals in federal criminal cases under certain specific circumstances. ¹ Appeal of a district court order reducing a sentence is not explicitly mentioned as an instance in which appeal is authorized by the statute. While the government recognizes that its right to appeal in criminal cases is limited to those instances in which appeal is authorized by legislative action, see Government Br. at 14, it notes that section 3731 commands that its provisions are to be construed liberally to effectuate its purpose. Id. at 15. Relying on United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975), and United States v. Martin Linen Supply Co., 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977), the government submits that the statute's purpose is to extend the right of government appeal to those instances in which such an appeal is not barred by the Constitution. Thus, since no double jeopardy problem is present in this case, the government concludes that appeal should be authorized here.

We believe that this argument is precluded by our decision in United States v. Horak, 833 F.2d 1235 (7th Cir.1987). In that case, we rejected arguments very similar to those made by the government in this case and adopted a "more restrictive view of the appealability of sentencing orders under section 3731." 833 F.2d at 1247. We noted that the government has no authority to take an appeal in a criminal case without an express grant of power by Congress. Id. at 1244. Moreover, we rejected the government's reliance on the Supreme Court's broad language in cases like Wilson because the "extremely broad reading of the statute urged by the government was unnecessary to the Wilson decision," which involved appeal of a district court order dismissing an indictment--an appeal clearly authorized by the statute in the absence of double jeopardy concerns. See id. at 1246; see also United States v. Hundley, 858 F.2d 58, 63 (2d Cir.1988) ("[T]he Court's statement in [Wilson ] ... does not cover appeals from sentencing orders.... Wilson does not purport to say that the Government may appeal from orders such as sentencing orders that do not involve dismissal of a prosecution and that are not included in other section 3731 categories."). In Horak, we also noted that the particular language of section 3731 provided the most compelling reason for taking a restrictive view of government appeals under that statute. 833 F.2d at 1248. The statute describes in careful detail the circumstances under which the government can appeal in a criminal case. In addition, Congress enacted another specific statute, 18 U.S.C. Sec. 3576, granting the government the right to appeal sentences imposed under the dangerous special offenders provision. The court in Horak concluded that, if Congress had intended section 3731 to authorize appeals from sentencing decisions, the enactment of a second statute would have been unnecessary.

For the purposes of analyzing appealability under section 3731, the district court sentencing order denying forfeiture in Horak is indistinguishable from the sentence reduction at issue in this case. Therefore, we conclude that section 3731 does not authorize the government's appeal of the district court's reduction of Mr. Spilotro's sentence. See also Hundley, 858 F.2d at 62 ("We agree with those courts that have held that sentencing orders are not appealable by the Government under section 3731. The statute plainly limits appeals by the United States to specified categories of district court orders.... Sentencing orders are not included in the statute, nor are they even similar to any of the types of orders that are included.").

B. 28 U.S.C. Sec. 1291

The government also cannot rely on 28 U.S.C. Sec. 1291 alone as a source of statutory authorization for appeal of the sentencing order in this case. ² Here, again, we believe that the government's submission is precluded by our holding in Horak. There, we explicitly declined to accept the rationale of United States v. DeMier, 671 F.2d 1200, 1204 (8th Cir.1982), that section 1291 provides jurisdiction for government appeals of sentencing orders. "Nothing in section 1291 grants the executive the power to appeal all (or for that matter any) final orders in criminal cases." Horak, 833 F.2d at 1247 n. 10. As we explained in Horak, "[s]ection 1291 establishes statutory authority in courts ... to hear appeals; the statute does not purport to grant to the government the power to bring all appeals without limitation." Id. (emphasis in original); see also Di Bella v. United States, 369 U.S. 121, 130, 82 S.Ct. 654, 660, 7 L.Ed.2d 614 (1962) ("[H]istoric policy ... denies the Government the right of appeal in criminal cases save as expressly authorized by statute. No such expression appears in 28 U.S.C. Sec. 1291, and the Government's only right of appeal, given by [section 3731], is confined to narrowly defined situations....") (citations omitted).

Because the government has not been authorized to bring an appeal of the sentencing order at issue in this case, its appeal must be dismissed for want of jurisdiction. However, "the Government need not fear that district judges will be able to flout the clear requirements of sentencing statutes with impunity, ... since the mandamus remedy is available in appropriate cases." Hundley, 858 F.2d at 66.

III. Mandamus

The government filed a petition with this court asking it to exercise its power under the All Writs Act, 28 U.S.C. Sec. 1651, ³ to issue a writ of mandamus ordering the district court to vacate its December 1988 order reducing Mr. Spilotro's sentence. As this court has emphasized repeatedly, mandamus is an extraordinary remedy, and "the writ traditionally is available only 'to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.' " Horak, 833 F.2d at 1248 (quoting Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 26, 63 S.Ct. 938, 942, 87 L.Ed. 1185 (1943)); see also Mallard v. United States District Court for the Southern District of Iowa, --- U.S. ----, 109 S.Ct. 1814, 1822, 104 L.Ed.2d 318 (1989) (in order to be entitled to issuance of writ, petitioner must demonstrate a " 'clear abuse of discretion,' or conduct amounting to 'usurpation of [the judicial] power' ") (quoting Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 383, 74 S.Ct. 145, 148, 98 L.Ed. 106 (1953) and De Beers Consol. Mines, Ltd. v. United States, 325 U.S. 212, 217, 65 S.Ct. 1130, 1133, 89 L.Ed. 1566 (1945)...