Harvin v. United States

• Decision Date: 07 May 1971
• Docket Number: No. 22317.,22317.
• Citation: 445 F.2d 675
• Parties: Augustus E. HARVIN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

445 F.2d 675 (1971)

Augustus E. HARVIN, Appellant, v. UNITED STATES of America, Appellee.

No. 22317.

United States Court of Appeals, District of Columbia Circuit.

Argued January 20, 1970.

Reargued January 21, 1971.

Decided May 7, 1971.

Mr. David B. Lamb, Washington, D. C. (appointed by this court), for appellant.

Mr. John D. Aldock, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., and John A. Terry, Asst. U. S. Atty., were on the brief, for appellee.

Before BAZELON, Chief Judge, FAHY, Senior Circuit Judge, and WRIGHT, McGOWAN, TAMM, LEVENTHAL, ROBINSON, MacKINNON, ROBB and WILKEY, Circuit Judges, sitting en banc.

Reargued En Banc January 21, 1971.

ON REHEARING EN BANC

PER CURIAM:

Appellant was tried on an Information in the District of Columbia Court of General Sessions for petit larceny, in violation of D.C. Code § 22-2202, and for unlawful entry on property, in violation of D.C. Code § 22-3102. Both offenses are misdemeanors. He withdrew his demand for a jury, asked to be tried by the court, and was tried in that manner. He was acquitted of petit larceny and convicted of unlawful entry. The penalty for this offense, prescribed by Section 22-3102, is a fine not exceeding $100 or imprisonment in the jail for not more than six months, or both. He was sentenced, however, under the Youth Corrections Act, 18 U.S.C. § 5005, et seq., which provides that a youth sentenced under the Act shall be released conditionally under supervision on or before the expiration of four years from his conviction and shall be discharged unconditionally on or before six years from conviction.

Appellant contends that his sentence under the Youth Corrections Act caused the Court of General Sessions to have been without jurisdiction to try him because to support such a sentence his prosecution should have been by indictment. He contends additionally that his waiver of trial by jury was invalid since he had not previously been advised by the court that he could be sentenced under the Youth Corrections Act, entailing a possibly longer deprivation of liberty than is authorized by Section 22-3102 for the violation of which he was convicted. The District of Columbia Court of Appeals affirmed. Harvin v. United States, 245 A.2d 307 (D.C.App.1968). We allowed an appeal to this court.

Thereafter the court decided to hear the case en banc and the prior judgment of a division of the court was accordingly vacated. Following en banc hearing and consideration the court decided in favor of affirmance of the conviction.

Judges Bazelon, McGowan, Leventhal, Spottswood W. Robinson, III and MacKinnon join in Part I of Judge Fahy's opinion. Judges Bazelon, J. Skelly Wright and Spottswood W. Robinson, III join in Part II of Judge Fahy's opinion. Judges Bazelon, Fahy, McGowan, Leventhal and Spottswood W. Robinson, III join in Part I of Judge MacKinnon's opinion. Judges McGowan, Leventhal, Robb and Wilkey join in Part II of Judge MacKinnon's opinion. Judges Robb and Wilkey join in Judge Tamm's opinion and Judge J. Skelly Wright joins in Parts I-IV thereof.

Affirmed.

FAHY, Senior Circuit Judge, with whom Chief Judge BAZELON and Circuit Judges McGOWAN, LEVENTHAL, ROBINSON and MacKINNON concur in Part I, and Chief Judge BAZELON, and Circuit Judges WRIGHT and ROBINSON concur in Part II.

I.

The Fifth Amendment provides in part as follows:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury * * *.

U.S.Const. amend. V.

The reference in the amendment to "or otherwise infamous crime" became the subject of several Supreme Court decisions, by which it was established that such a crime was one punishable by imprisonment for a term of years or at hard labor. Ex parte Wilson, 114 U.S. 417, 5 S.Ct. 935, 29 L.Ed. 89 (1885); Mackin v. United States, 117 U.S. 348, 6 S.Ct. 777, 29 L.Ed. 909 (1886); In re Claasen, 140 U.S. 200, 11 S.Ct. 735, 35 L.Ed. 409 (1891); United States v. Moreland, 258 U.S. 433, 42 S.Ct. 368, 66 L.Ed. 700 (1922). The decisions make clear that imprisonment for a term of years was one served in a state prison or penitentiary,¹ which, as early as 1865, 13 Stat. 500, see Ex parte Karstendick, 93 U.S. 396, 23 L.Ed. 889 (1876), Mackin v. United States, supra, was a place of confinement for those sentenced for an offense against the United States for a period longer than a year. By 18 U.S.C. § 4083, which traces its history to the Act of March 2, 1895, ch. 189, § 1, 28 Stat. 957, when Congress provided for a federal penitentiary, what the decisions made clear is now embodied in statute in the following form:

Persons convicted of offenses against the United States * * * punishable by imprisonment for more than one year may be confined in any United States penitentiary.

With the law in this situation Rule 7 (a) of the Federal Rules of Criminal Procedure, adopted in 1945, carried forward the indictment requirement of the Fifth Amendment into the Rules as follows:

An offense which may be punished by imprisonment for a term exceeding one year or at hard labor shall be prosecuted by indictment * * * unless waived.

The original Committee Note to the Rule explains:

This rule gives effect to the following provision of the Fifth Amendment to the Constitution of the United States: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury * * *". An infamous crime has been defined as a crime punishable by death or by imprisonment in a penitentiary or at hard labor, Ex parte Wilson, 5 S.Ct. 935, 114 U.S. 417, 427, 29 L.Ed. 89; United States v. Moreland, 42 S.Ct. 368, 258 U.S. 433, 66 L.Ed. 700, 24 A.L.R. 992. Any sentence of imprisonment for a term of over one year may be served in a penitentiary, if so directed by the Attorney General, 18 U.S.C. former 753f now §§ 4082, 4083. * * * Consequently any offense punishable by imprisonment for a term of over one year is an infamous crime.

The Rule does not enlarge the requirement of an indictment beyond the "capital, or otherwise infamous crime," of the Fifth Amendment. It simply brings together in rule form the criteria which had been established by the Supreme Court for an "otherwise infamous crime," namely, an offense punishable by imprisonment for a term exceeding one year or at hard labor.

From the foregoing it is clear that the offense which led to Harvin's sentence was not an infamous crime, for it carried a punishment by imprisonment not to exceed six months. Both adults and youths may be prosecuted for that offense on an information. The sentence imposed under the Youth Corrections Act does not alter the basis for the prosecution or transform the offense into an infamous one. A sentence under the Act it is true may result in the loss for more than a year of the liberty protected by the Due Process Clause of the Fifth Amendment,² and it is also true that the sentence available for an offense determines whether it is infamous.³ The punishment, however, which determines the question of infamy is that which is related to the offense itself, in Harvin's case not to exceed six months imprisonment. That is the punishment which reflects the prevailing views of the governing authorities, represented by the law, as to the seriousness of the offense — its infamous or non-infamous character.⁴

A sentence under the Youth Corrections Act, in this case following conviction of a misdemeanor, is not a reflection by the legislature of the seriousness of that offense. Resort by the sentencing judge to the Youth Corrections Act was not to punish Harvin for the misdemeanor; it was to carry out the congressional purpose represented by the Act — to serve the interests of society and of selected youth offenders in preference to the statutory sentence for the misdemeanor. A sentence under the Act is not related to the offense itself, and it is the punishment for the latter which determines whether the prosecution must be by indictment. Sentencing under the Act rests upon those factors which led to its enactment — the youth of the offender, an appraisal by the judge, with the aid of other officials, of the youth's rehabilitative possibilities, the protection of society by the self-improvement of the youth through treatment and special care, with a goal of elimination of any criminal record due to the conviction, enabling the youth to go on with his life unimpaired by a criminal record. True, in pursuit of those aims a youth may be deprived of liberty for a longer period than an adult similarly entangled with the law, or for a longer period than another youth not sentenced under the Act. If this gives rise to questions of due process of law or of equal protection of the laws, those questions are quite apart from the Indictment Clause of the Fifth Amendment and Rule 7(a). The suggested questions are not answered either by an indictment or by an information.

It would be totally inconsistent with the statutory plan to ascribe to a sentence under the Act a result which turned the misdemeanor into an infamous offense when committed by a youth offender. To carry over to such a sentence the ancient method of categorizing a crime as infamous or non-infamous according to the severity of the sentence, and as a consequence to hold that the sentence under the Act for possibly more than a year placed the misdemeanor in an infamous category, would be contrary to the reason which gave rise to the ancient usage, for a sentence under the Act simply does not denote that the misdemeanor was of so serious a character as to categorize it as infamous.⁵

I reach the same conclusion upon consideration of the Youth Corrections Act independently of the non-infamous penalty prescribed by Section 3102. For the Act does not permit a sentence under it to be served in a penitentiary.

I note preliminarily that we have recognized the nonpunitive character of confinement under the...