Irby v. United States

• Decision Date: 17 November 1967
• Docket Number: No. 19988.,19988.
• Citation: 390 F.2d 432,129 US App. DC 17
• Parties: Roy IRBY, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

129 US App. DC 17, 390 F.2d 432 (1967)

Roy IRBY, Appellant, v. UNITED STATES of America, Appellee.

No. 19988.

United States Court of Appeals District of Columbia Circuit.

Reargued June 28, 1967.

Decided November 17, 1967.

Mr. William L. Slover, Washington, D. C. (appointed by the District Court), for appellant.

Mr. Charles A. Mays, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., Frank Q. Nebeker and Earl J. Silbert, Asst. U. S. Attys., were on the brief, for appellee.

Mr. Howard P. Willens, Washington, D. C., argued as amicus curiæ.

Before BAZELON, Chief Judge, and DANAHER, BURGER, WRIGHT, McGOWAN, TAMM and LEVENTHAL, Circuit Judges, sitting en banc.

ON REHEARING EN BANC

McGOWAN, Circuit Judge, with whom Circuit Judges DANAHER, BURGER, and TAMM join:

In 1958 appellant, represented by counsel, pleaded guilty to the housebreaking and robbery counts of a 9-count indictment, and received consecutive sentences of two to eight years on the one, and four to twelve years on the other. The other counts were then dismissed. In 1965 he moved under 28 U.S.C. § 2255 to regain his liberty on the ground that the two sentences could not validly have been made to run consecutively. The District Court denied the motion in a long opinion which explored with care the single legal issue raised by the motion. 250 F. Supp. 983 (1965). Upon appeal, a panel of this court reversed, one judge dissenting (No. 19,988, decided March 15, 1967). The Government's petition for rehearing en banc was granted; and, after rehearing, the District Court's judgment is herewith affirmed.

I

Because of the existence of District Judge (now Circuit Judge) Robinson's opinion referred to above, there is no occasion for us to cover the same ground in reaching the same result. He recognized, as this court has recently had occasion to do, that there are circumstances where it cannot safely be assumed that simply because the legislature has defined two separate crimes with differing elements and prescribed separate punishments for them, it contemplated that such punishments can be consecutively inflicted.¹ The nature of the two criminal specifications, and of the course of conduct in which both crimes may be thought to have been committed, may be such as to raise a doubt as to a legislative purpose to encompass both punishments. In such a case, an aid to the divination of such purpose in the form of a so-called "rule of lenity" has been devised to the end of barring double punishment where there is substantial doubt as to whether Congress would have intended it to be imposed.

A majority of the panel which first heard this appeal thought that there was a sufficiently "substantial doubt about what Congress intended" as to cause the rule of lenity to operate. This point of view was conscientiously and competently urged upon us by appellant's appointed counsel, who has served his client faithfully and well here as in the District Court. However, we agree with the District Court that the degree of doubt discernible on this record does not warrant invocation of the rule of lenity. We note in this regard the District Court's analysis of the historic differences in concept between housebreaking as a crime against property, on the one hand, and robbery as a crime against the person, on the other.

It is not novel that Congress has differentiated between housebreaking and robbery in terms of the one as an invasion of the security of the dwelling, and the other as an intrusion upon the security of the person. This was a distinction familiar to the common law, and it was perpetuated in the statutes found to have been violated here. Stealing something worth $1000 may be only an aggravation of the misdeed involved in stealing something worth $10. But taking something, whatever its worth, from another's person by force and putting in fear brings in a new and different interest which it has been thought important to protect, namely, the person threatened as distinct from the property taken.

One who wrongfully goes into a house to pilfer what he can find may or may not start out with a purpose to rob, if necessary. If he consciously entertains both purposes from the beginning, it can be said that he sets out with an intent to commit both larceny and robbery, or crimes against both property and person, if the opportunity presents itself. In such circumstances, he will be guilty of housebreaking in either event once he crosses the threshold, but, if he retires upon finding the house occupied and without robbing the occupant, he has made the decision which saves him from punishment for robbery. The point is, of course, that his invasion of the premises to steal does not irrevocably commit him to rob from the person of anyone he finds there. The choice is still his up to the moment of confrontation.² If he decided to rob, consecutive punishments are not made available solely as a means of exacting greater retribution. Congress could well have conceived of them as a deterrent to compromising the safety of the person as well as the security of the premises. They illuminate the differing dangers to society inherent in stealing what one finds in a vacant house, and robbing the occupant as well when he proves to be at home. We cannot, at any rate, say with confidence that Congress did not contemplate some additional disincentive for the latter.³

II

The problems in this area are not easy. It was for this reason that the court en banc decided to seek the views of a disinterested amicus curiæ. There has been forthcoming, as a result of this appointment, a very helpful brief which has supplied us with useful research information,⁴ as well as with imaginative reflections upon the judicial approach most cognizant of both the public and private interests involved.

Amicus has concluded that the rule of lenity has a very limited utility indeed as a touchstone of the propriety of consecutive sentences. He suggests that it be abandoned in favor of a supervisory rule to the effect that consecutive sentences may not be imposed for offenses arising out of a single course of conduct unless the sentencing judge (1) finds from the facts that the defendant was not motivated by a single intent and objective, and (2) recites his reasons for believing that consecutive sentences are necessary to achieve at least one of the recognized sentencing goals.

Were this proposal to be deemed wholly meritorious, it could have no application to this case, for the reason that it would require a remand hearing to try to assemble and reconstruct facts which happened nearly a decade ago. The sentencing judge is dead; and it is a commonplace that the passage of even a few years makes it difficult to pursue factual inquiries. An attack on consecutive sentences is one which should be made at the time the sentences are imposed, when there is the opportunity to make a meaningful inquiry into the facts. It is not suited to the vehicle of belated collateral attack.

It is true that where, as here, consecutive sentencing was founded upon a guilty plea, the record is singularly uninformative in respect of those facts which would be most helpful in any appraisal of the Congressional will. Any judge contemplating consecutive sentences in such a situation hereafter would be well advised to cause the record to show the factual circumstances surrounding the commission of the crimes. Such a practice would enable the judicial process to function better at all levels because it would facilitate the search for the legislative intent which primarily defines the limits of the sentencing power.

The judgment of the District Court is

Affirmed.

LEVENTHAL, Circuit Judge (concurring):

I concur in the judgment, since I agree that it is possible that a combination at one scene of a housebreaking, with intent to commit larceny, and a robbery, may reflect sufficiently separate criminal purposes to permit consecutive punishment. While they may also, I think, be so integrated as to preclude consecutive punishment, that objection is one that should ordinarily be put forward when sentence is imposed, or timely in a motion to reduce the sentence. In any event, as will be indicated, I do not believe that appellant's pleading asserted the factual predicate necessary to sustain the conclusion that the "sentence was in excess of the maximum authorized by law."

A new approach, such as that suggested by amicus curiae,¹ is left by the court to future consideration, and that seems right to me. In exploring approaches and pondering consequences, we may be aided by the analyses generated by the tensions of the adversary system, and, if they are available, by reflections of a sentencing judge whose attention has been directed to the elements of the approach advanced for consideration.

Meanwhile I believe that it usually avails little to seek out specific legislative intent as to the particular offenses. Occasionally an ascertainable legislative objective concerning pyramiding of penalties may be discernible where Congress is addressing itself to a specific type of anti-social conduct. The Supreme Court has accordingly gleaned from the legislature's successive efforts to tighten the screw in narcotics offenses an intent to pyramid punishments,² and contrariwise in the laws punishing national bank robberies it has found that the alternative sections broaden the net available for catching up with criminal activity without cumulating punishment for a single episode.³ But for the most part there is no ascertainable legislative intent on cumulation of punishment in relation to any particular offense or group of offenses even when the prohibiting statute is one passed by a national legislature in the exercise of its delegated powers. Legislative intent is even less ascertainable when the Congressional enactment does not relate to a specific crime, or even reflect the narrowing to a sphere of delegated powers, but is part of a...