Mann v. United States

• Decision Date: 07 February 1955
• Docket Number: No. 6908.,6908.
• Citation: 218 F.2d 936
• Parties: Roy L. MANN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

218 F.2d 936 (1955)

Roy L. MANN, Appellant, v. UNITED STATES of America, Appellee.

No. 6908.

United States Court of Appeals, Fourth Circuit.

Argued January 5, 1955.

Decided February 7, 1955.

Roy L. Mann, pro se.

William F. Mosner, Asst. U. S. Atty., Baltimore, Md. (George Cochran Doub, U. S. Atty., and James H. Langrall, Asst. U. S. Atty., Baltimore, Md., on the brief), for appellee.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

DOBIE, Circuit Judge.

Roy L. Mann, with two others, was tried in the United States District Court for the District of Maryland under an indictment containing seven counts. The first three counts charged in substance the robbery of the Occidental Federal Savings and Loan Association. The fourth, fifth and sixth counts charged robbery of a branch office of the Union Trust Company of Maryland. Some of the counts in each of the first and second groups charged in appropriate language the theft or robbery under circumstances commonly referred to as "armed robbery." The seventh count charged the interstate transportation from Baltimore, Maryland, into Virginia, of about $30000.00 theretofore stolen from the branch office of the Union Trust Company.

Mann was found guilty by the jury of all the charges. The District Court, on June 3, 1949, thereupon imposed upon Mann the following sentence:

15 years and a fine of $5,000 on Counts 1, 2 and 3, as a group;

20 years and a fine of $1,000 on Counts 4, 5 and 6, as a group, the terms of imprisonment to run consecutively, the fines to be cumulative;

5 years and a fine of $1.00 on Count 7, the sentence on Count 7 as to imprisonment to run concurrently with sentence imposed on Counts 1, 2 and 3; the defendant to pay the costs of the case.

Mann began at once the service of the sentences. There was no motion for a new trial and no appeal was taken from the judgment. Mann has heretofore filed three motions to vacate the sentence. The opinion denying the motion may be found in United States v. Bernett, D.C., 92 F.Supp. 26, affirmed 4 Cir., 183 F.2d 1024. A second motion to vacate the sentence filed by Mann on August 18, 1952, was denied and apparently no appeal was taken. On October 23, 1953, he filed a third motion to vacate the sentence which was also denied. The District Judge overruled this motion without prejudice and Mann has appealed to us.

As the District Judge stated:

"Mann\'s present motion or petition is not to vacate the sentence but to modify it by now suspending that portion of the sentence which prescribed the term of imprisonment for 20 years for the second armed robbery, consecutive to the 15 year term imposed for the first armed robbery. This motion is made 5 years subsequent to the imposition of sentence and during the time of service of the sentence of 15 years for the first offense. Under the applicable statute with respect to release of prisoners on parole, Mann would be eligible for release on parole at the expiration of one-third of the combined sentence of 35 years, that is in 1961. One apparent purpose of the present motion seems to be a shortening of time when the defendant will be eligible for parole to one-third of the 15 year sentence."

We quote the Probation Statute:

United States Code, Title 18, Section 3651. "Suspension of sentence and probation

"Upon entering a judgment of conviction of any offense not punishable by death or life imprisonment, any court having jurisdiction to try offenses against the United States, except in the District of Columbia, when satisfied that the ends of justice and the best interest of the public as well as the defendant will be served thereby, may suspend the imposition or execution of sentence and place the defendant on probation for such period and upon such terms and conditions as the court deems best.

"Probation may be granted whether the offense is punishable by fine or imprisonment or both. If an offense is punishable by both fine and imprisonment, the court may impose a fine and place the defendant on probation as to imprisonment. Probation may be limited to one or more counts or indictments, but, in the absence of express limitation, shall extend to the entire sentence and judgment.

"The court may revoke or modify any condition of probation, or may change the period of probation.

"The period of probation, together with any extension thereof, shall not exceed five years.

"While on probation and among the conditions thereof, the defendant — "May be required to pay a fine in one or several sums; and

"May be required to make restitution or reparation to aggrieved parties for actual damages or loss caused by the offense for which conviction was had; and

"May be required to provide for the support of any persons, for whose support he is legally responsible.

"The defendant\'s liability for any fine or other punishment imposed as to which probation is granted, shall be fully discharged by the fulfillment of the terms and conditions of probation."

District Judge Chesnut filed an elaborate opinion in which he stated:

"I have very serious doubt whether after the imposition of the sentence in this case and prior to the beginning of the consecutive term, the court has power under the Probation Act to grant a modification of the sentence by suspending the consecutive term."

Judge Chesnut, in his opinion, also stated:

"If we assume that, despite the conflict of decisions of the two Circuit Courts of Appeals, the power does exist to presently suspend the second portion of the sentence of imprisonment in this case, there still remains the question whether under the provisions of the probation statute the discretion to do so should be exercised in this case at the present time. On that point I have no present difficulty. The evidence shows that the bank robberies were clearly premeditated in both instances, and particularly the second robbery for which the 20 year sentence was imposed was a very aggravated one in the way in which it was carried out. No testimony was offered on behalf of any of the defendants, and when an opportunity was given them to speak before the imposition of sentence, no one of them had anything to say. Shortly before the conclusion of the trial and during the luncheon recess of the court the three defendants, while in the custody of the Marshal in this Court House Building, made what was evidently a planned violent and forcible attack on a deputy marshal in a nearly successful attempt to escape from custody, which was only prevented by the vigilance and courageous action of the Marshal and other deputies. The evidence as to this was not submitted to the jury and so far as I know was in no way known to any of the jurors until after their verdict had been rendered. And, as previously noted, several separate motions have been made of the defendants respectively for a vacation of their sentence, which had been denied.

"At the time of rendering the sentence there was no request on behalf of any of the defendants or of their counsel for release upon probation, nor would it have been entertained or granted by the court at the time if it had been made. The only equitable consideration which is offered by the present petitioner, Mann, for suspension of the 20 year consecutive sentence is his statement that he has been an

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