Holbrook v. United States, 12522

• Decision Date: 16 June 1943
• Docket Number: 12523.,No. 12522,12522
• Citation: 136 F.2d 649
• Parties: HOLBROOK v. UNITED STATES. MOORE v. SAME.
• Court: U.S. Court of Appeals — Eighth Circuit

136 F.2d 649 (1943)

HOLBROOK v. UNITED STATES.

MOORE v. SAME.

Nos. 12522, 12523.

Circuit Court of Appeals, Eighth Circuit.

June 16, 1943.

David R. Derge, of Kansas City, Mo., and William L. Vandeventer, of Springfield, Mo., for appellants.

Maurice M. Milligan, U. S. Atty., and Richard K. Phelps, Asst. U. S. Atty., both of Kansas City, Mo., for appellee.

Before STONE, WOODROUGH, and JOHNSEN, Circuit Judges.

JOHNSEN, Circuit Judge.

Appellants were indicted jointly under 48 Stat. 783, as amended by 50 Stat. 749, 12 U.S.C.A. § 588b, for robbing a bank insured by the Federal Deposit Insurance Corporation. The indictment was in two counts, the first being based upon subsection a and charging that the robbery was accompanied by force and putting the employees of the bank in fear, and the second being based upon subsection b and charging that the robbery was accompanied by putting the lives of the bank's employees in jeopardy by the use of dangerous weapons. They pleaded guilty to the indictment and each was given consecutive sentences of 20 years on the first count and 5 years on the second.

After having served approximately five years in the federal penitentiary,¹ they filed separate motions in the district court for an order to vacate the 20-year sentence on the first count of the indictment, on the ground that the crime charged against them in the two counts constituted only a single sentenceable offense, and that, under Hewitt v. United States, 8 Cir., 110 F.2d 1,² Garrison v. Reeves, 116 F.2d 978, and Holiday v. United States, 8 Cir., 130 F.2d 988,³ the sentence on the first count was void. The trial court refused to make an absolute vacation of the sentences, as sought by the motions.⁴

The Hewitt, Garrison and Holiday cases did not present the precise situation or question that is here involved. In all of them, it is true, we held that the defendant was entitled to have the sentence under subsection a vacated and allowed the sentence under subsection b to stand, but in each of them, different than in the present case, the court had imposed a heavier sentence on the count under subsection b than on the count under subsection a, and the practical effect of our decision, so far as the defendant was concerned, was to require him to serve the heavier sentence.

There is in the Hewitt case, 110 F.2d at page 11, an expression that "no sentence should have been imposed under the first count of the indictment." In the Garrison case, 116 F.2d at page 979, there is a statement that "the sentence of twenty-five years imposed under count two of the indictment against these petitioners was and is in all respects valid, but that the sentence to twenty years imprisonment under count one was not valid in law", and that the trial court "was without authority to impose the sentences upon the first count". In the Holiday case, 130 F.2d at page 990, we said: "It is our opinion that the indictment, after plea of guilty and for the purpose of sentence, charged but one offense, which was the offense fully described in the second count; that that count and the sentence imposed under it were valid; and that the court below did not err in sustaining that sentence and vacating the sentence imposed under the first count."

The suggestion in these opinions that a sentence under subsection a of the statute should be treated as void, where there also has been a sentence under subsection b, should, we think, be read in the light of the practical fact, which we have indicated above, that in all of these cases a heavier sentence had been imposed under the second count than on the first. What basically was involved, and the only responsibility of the court in the matter, was simply to vindicate the defendant's right under the Fifth Amendment against double jeopardy or punishment.

The statute itself contains no language restricting the right of the court to impose a sentence under any particular subsection that has been violated, where there has been a conviction for more than one degree of a bank robbery offense. The only limitation, therefore, that can soundly exist in the situation is simply the constitutional prohibition against subjecting a defendant to more than one punishment in the federal courts for the same crime. This fundamental right can hardly properly be claimed to be transgressed because the defendant is compelled to serve a sentence under one subsection instead of the other, where he has been convicted of violating both. "His only justifiable complaint", as we said in the Holiday case, 130 F.2d at page 989, "was that he received two consecutive sentences for one offense, instead of a single sentence."

In the present case, as in the Garrison and Holiday cases, the sentences were imposed before the Hewitt case had been decided. It may reasonably be assumed that hereafter in this circuit only one sentence will be imposed by the trial courts for all convictions on an indictment under the several subsections of the bank robbery statute, in accordance with the Hewitt case, and that such a sentence will ordinarily be based on the subsection covering the most aggravated degree of the convicted offense. But where, as here, the court has imposed a sentence under more than one subsection, with a heavier penalty for the lighter degree of the offense, and with a provision in the order that the longer sentence shall be served before the commencement of the shorter, no sound legal reason exists why the longer sentence cannot properly be made to constitute the real punishment for the offense. Certainly it more nearly approaches, in such a situation, the measure of punishment which the trial judge believed and intended should be administered to the criminal under the particular circumstances of the case.

Since neither sentence of itself is invalid by the terms of the statute, and the only invalidity in the situation derives from the constitutional prohibition against double jeopardy or punishment, justice and reason dictate, in such a case, that the court and not the defendant shall have the right to say which of the two consecutive sentences, contemporaneously imposed and both unexecuted, shall be eliminated in order not to subject the defendant to the possibility of double punishment. That question may properly be determined by the trial court up to the time that there has been a legal satisfaction of one of the sentences, and appropriate action may be taken to vacate the sentence which the court concludes should be voided, in order not to impinge upon the defendant's right against double punishment.

In the present case there can be no claim that either one of the sentences has as yet been legally satisfied. The sentence and commitment of appellants provided that they should first serve their twenty-year terms before their five-year terms were to commence. Without and until a vacation of the twenty-year sentence, which was not of itself invalid under the terms of the statute, it is that sentence which they must be regarded as now being serving. If the situation had been such as in the Holiday case, where the court, before the full satisfaction or execution of the first sentence, had determined to vacate the first sentence instead of the second, in order to vindicate appellants' rights against double punishment, the time during which they had been imprisoned would then, of course, have become legally referable to their second sentence. Since in either situation they would be receiving proper credit for the time served, they can have no cause to complain, no matter which sentence may be set aside, so long as there has been no legal satisfaction of either under the terms and conditions of the judgment.

The situation here is not parallel with that in Ex parte Lange, 85 U.S. 163, 18 Wall. 163, 21 L.Ed. 872, and In re Bradley, 318 U.S. 50, 63 S.Ct. 470, 87 L.Ed. ___, nor has any contention been made by appellants that these cases are applicable and controlling. In both of these cases, the court imposed concurrent sentences of fine and imprisonment, where the statute allowed only a punishment of either fine or imprisonment. The defendant satisfied the judgment as to payment of the fine before any attempt was made to amend the sentence order. It was accordingly held in both of these cases that, since there had thus been a legal satisfaction of one valid alternative provision of the original sentence, any attempt to compel the defendant to serve the imprisonment portion of the sentence would be subjecting him to double punishment. But here there was no legal satisfaction of the five-year term, as we have pointed out, because imprisonment under that sentence, by the terms of the judgment, was not to commence until the twenty-year sentence had been served. Until the twenty-year sentence had been served or vacated, satisfaction of the five-year sentence would not legally have commenced to run.

To the extent that any expressions in the Hewitt, Garrison and Holiday cases may appear to conflict with the views expressed herein, they are to be deemed modified hereby and are to be construed in harmony with this opinion.⁵

For the purpose of allowing the lower court to proceed in accordance with the views here expressed, without any ambiguity in its records, the orders now appearing on the records in that court, in connection with the motions of appellants to vacate, will be set aside, and the cause will be remanded with directions to deny the motion of each appellant for an order vacating the twenty-year sentence on the first count of the indictment, but...