U.S. v. Simpson, s. 89-3289

• Citation: 885 F.2d 36
• Decision Date: 05 September 1989
• Docket Number: 89-3180,Nos. 89-3289,89-3181,89-3290,s. 89-3289
• Parties: , 58 USLW 2188 UNITED STATES of America, Petitioner, v. Charles Leroy SIMPSON, Actual Respondent, The Honorable William L. Standish, Nominal Respondent. UNITED STATES of America, Petitioner, v. Stephanie HAMILTON, Actual Respondent, The Honorable William L. Standish, Nominal Respondent. UNITED STATES of America, Appellant, v. SIMPSON, Charles Leroy. The UNITED STATES v. Stephanie HAMILTON, Mark A. Lyle United States of America, Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 36

885 F.2d 36

58 USLW 2179, 58 USLW 2188

UNITED STATES of America, Petitioner, v. Charles Leroy SIMPSON, Actual Respondent, The Honorable William L. Standish, Nominal Respondent.

UNITED STATES of America, Petitioner, v. Stephanie HAMILTON, Actual Respondent, The Honorable William L. Standish, Nominal Respondent.

UNITED STATES of America, Appellant, v. SIMPSON, Charles Leroy.

The UNITED STATES v. Stephanie HAMILTON, Mark A. Lyle United States of America, Appellant

Nos. 89-3289, 89-3290, 89-3180, 89-3181.

United States Court of Appeals, Third Circuit.

Argued July 20, 1989.

Decided Sept. 5, 1989.

Charles D. Sheehy, Acting U.S. Atty., Constance M. Bowden (argued), Asst. U.S. Atty., Pittsburgh, Pa., for appellant/petitioner.

George E. Schumacher, Federal Public Defender, David G. Rothey, Asst. Federal Public Defender, Pittsburgh, Pa., for appellee/respondent Hamilton.

Joel B. Johnston (argued), Asst. Federal Public Defender, Pittsburgh, Pa., for appellee/respondent Simpson.

Before STAPLETON, SCIRICA, and WEIS, Circuit Judges

OPINION OF THE COURT

STAPLETON, Circuit Judge:

I.

This is an appeal from an order granting defendants' motions under Rule 35(a), Fed.R.Crim.P., to set aside special assessments imposed pursuant to the Victims of Crime Act of 1984, 18 U.S.C. Sec. 3013. Alternatively, the government has petitioned for a writ of mandamus ordering the district court judge to reinstate defendants' special assessments.

In November, 1988, defendants-appellees pleaded guilty to thefts from the mails occurring prior to November 1, 1987. They received prison sentences and $50 assessments under 18 U.S.C. Sec. 3013. Defendants later brought a proceeding under Rule 35(a) of the Federal Rules of Criminal Procedure in which they argued that the their sentences had been imposed in violation of the requirement in art. I, Sec. 7 of the Constitution that all revenue raising bills originate in the House of Representatives. In a memorandum opinion, the district court agreed with defendants, relying on our decision in United States v. Donaldson, 797 F.2d 125 (3d Cir.1985) (holding that Sec. 3013 is not a penal statute for purposes of the rule of lenity), and United States v. Munoz-Flores, 863 F.2d 654 (9th Cir.1988) (concluding that Sec. 3013 originated in the Senate). This appeal and petition raise two principal issues: (1) whether a claimed violation of the Origination Clause constitutes a nonjusticiable political question, and (2) whether, if justiciable, the special assessment raises revenue and originated in the House of Representatives within the meaning of the Origination Clause.

II.

Before discussing the merits of the case, we must confront three jurisdictional issues: (1) whether the district court had jurisdiction under Rule 35(a), Fed.R.Crim.P., to decide the constitutionality of the special assessment; (2) whether we have jurisdiction to hear the government's appeal from the district court's decision; and (3) if not, whether this an appropriate case for a writ of mandamus.

In regard to the first issue, the government contends that, in light of our recent case law, the district court had no jurisdiction over this matter. The government first notes that this court held in United States v. Donaldson, 797 F.2d at 125, 127, that the Sec. 3013 special assessment is not a criminal statute to which the rule of lenity applies, but a device for funding a government program. Second, the government argues that Rule 35 applies only to criminal statutes. Therefore, concludes the government, because Sec. 3013 is not a criminal statute, Rule 35 provides no remedy for an illegal imposition of a special assessment.

We disagree. Rule 35(a), as applied in cases involving offenses committed prior to November 1, 1987, provides that a district court "may correct an illegal sentence at any time." The rule does not elaborate on the meaning of the term "sentence," and in particular does not limit it to penal measures. While we did observe in Donaldson that the assessment statute "neither defines a substantive offense nor establishes the sentence to be imposed for a criminal offense," 797 F.2d at 123, we do not believe that observation is particularly helpful in interpreting the word "sentence" in the context of Rule 35(a). In the context of a provision authorizing post-conviction review in a criminal case, we believe that word is most reasonably understood to refer to all of the consequences of conviction set forth in the judgment. The government has not offered, nor can we discern, any reason why district courts should hear challenges to the penal component of a sentence but not to assessments levied alongside that punishment as a result of a conviction. From the defendants' standpoint an assessment is virtually indistinguishable from a fine and we can perceive no reason why Congress would have wished to grant a post-judgment right to challenge the legality of the latter in the trial court and to deny a similar right to challenge the former. We conclude, therefore, that the district court had jurisdiction to hear defendants' claims.

The government next argues that if the district court had jurisdiction, this court has jurisdiction over the district court's final order under 28 U.S.C. Sec. 1291. We disagree again. As the government, in fact, concedes, our conclusion in Government of the Virgin Islands v. Douglas, 812 F.2d 822 (3d Cir.1987), that "Sec. 1291 is not generally available as a source of appellate jurisdiction over prosecutorial appeals of final orders" suggests that we have no jurisdiction over this matter. Notwithstanding that holding, the government argues that appeals from Rule 35 proceedings are sufficiently independent of the merits of a criminal prosecution to be appealable under Carroll v. United States, 354 U.S. 394, 77 S.Ct. 1332, 1 L.Ed.2d 1442 (1957). As explained in Government of the Virgin Islands v. Douglas, however, we believe the Carroll exception applies only to interlocutory orders. In this case, the government appeals from a final order of the district court vacating defendants' sentences to the extent of the special assessments. Because Carroll does not reach such final orders, this court has no appellate jurisdiction over the decision of the district court under 28 U.S.C. Sec. 1291.

Finally, the government urges alternatively that we should exercise our mandamus jurisdiction under 28 U.S.C. Sec. 1651. Though mandamus is "to be granted only in extraordinary cases," United States v. Olds, 426 F.2d 562, 565 (3d Cir.1970), we conclude that this is such a case. The government contends that Section 3013 is not constitutionally infirm, that it imposes a nondiscretionary duty upon sentencing judges to levy the special assessments, and therefore that the district court orders in these cases frustrate the intent of Congress. If the government's position is correct, the issuance of a writ of mandamus to the district court would be an appropriate remedy and unless we exercise our mandamus jurisdiction, the district court orders will go unreviewed. For these reasons, we conclude that we have jurisdiction under 28 U.S.C. Sec. 1651.

III.

The government argues next that the district court judge should not have considered defendants' claim because Origination Clause challenges are nonjusticiable political questions under the test enunciated by the Supreme Court in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). That decision provides six criteria for judging when cases present political questions:

Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments of government.

Id. at 217, 82 S.Ct. at 710.

Contrary to the government's contention, none of these criteria are satisfied in cases involving an interpretation of the Origination Clause. First, nothing in the text of the Constitution commits to Congress the decision whether an act violates the Origination Clause. Second, cases that turn on constitutional interpretation generally do not involve judicially unmanageable standards. Powell v. McCormack, 395 U.S. 486, 549, 89 S.Ct. 1944, 1978, 23 L.Ed.2d 491 (1968). Moreover, the Supreme Court has already resolved several Origination Clause disputes, Millard v. Roberts, 202 U.S. 429, 26 S.Ct. 674, 50 L.Ed. 1090 (1906), Twin City Bank v. Nebeker, 167 U.S. 196, 17 S.Ct. 766, 42 L.Ed. 134 (1897), United States v. Norton, 91 U.S. 566, 23 L.Ed. 454 (1875); the Court there found the legal standards necessary to adjudicate such cases. Third, because this case turns on an interpretation of the Constitution, our resolution of the matter "falls within the traditional role accorded the courts to interpret the law and does not involve a 'lack of the respect due [a] coordinate [branch] of government,' nor does it involve an 'initial policy determination of a kind clearly for nonjudicial discretion.' " Powell v. McCormack, 395 U.S. 486, 548-49, 89 S.Ct. 1944, 1978-79 (quoting Baker v. Carr, 369 U.S. 186, 216, 82 S.Ct. 691, 709). ¹ Fourth, because the courts are charged with ultimate responsibility for interpreting the Constitution, our decision regarding the claimed Origination Clause violation cannot result in "multifarious pronouncements by various departments on one question." Finally, section 3013's special assessment presents "no unusual need for unquestioning...