Sanker v. United State, 7659.

• Decision Date: 17 May 1977
• Docket Number: No. 7659.,7659.
• Parties: Asberry SANKER, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

374 A.2d 304

Asberry SANKER, Appellant, v. UNITED STATES, Appellee.

No. 7659.

District of Columbia Court of Appeals.

Argued January 15, 1975.

Decided May 17, 1977.

COPYRIGHT MATERIAL OMITTED

Roy S. Lerman, Washington, D. C., appointed by the court, for appellant.

Paul N. Murphy, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., and John A. Terry, C. Madison Brewer, and Richard L. Cys, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before GALLAGHER, YEAGLEY and HARRIS, Associate Judges.

HARRIS, Associate Judge:

Appellant was convicted of second-degree murder. D.C.Code 1973, § 22-2403. The crime is punishable by life imprisonment. D.C.Code 1973, § 22-2404. At the sentencing hearing, the government contended — and the trial court seemed to agree — that the Federal Probation Act, 18 U.S.C. § 3651 (1970), forbids probation because of the authorized life sentence.¹ Appellant was sentenced to imprisonment for a period of from five to 20 years (he has remained free on bond pending appeal). He contends that the court erred in relying on 18 U.S.C. § 3651 as precluding consideration of probation as a sentencing alternative. Although the Federal Probation Act is, by its terms, applicable to "any court having jurisdiction to try offenses against the United States," the Act's legislative history and the impact upon certain other local statutes of the interpretation urged by the government persuade us that the broad language of 18 U.S.C. § 3651 does not encompass the Superior Court. We therefore remand the case for resentencing in light of D.C.Code 1973, § 16-710, the provisions of which grant the trial court discretionary authority to order probation where appropriate²

We recognize that most criminal prosecutions conducted in the Superior Court of the District of Columbia (i. e., all felonies and serious misdemeanors) are "conducted in the name of the United States by the United States attorney for the District of Columbia. . . ." D.C. Code 1973, § 23-101(c). Additionally, convicted defendants who are sentenced to imprisonment are committed to the custody of the Attorney General of the United States. D.C.Code 1973, § 24-425. Further, title 22 of the District of Columbia Code — setting forth the city's criminal laws and procedures-represents enactments of the Congress of the United States.³ Thus, there is facial merit to the contention that prosecutions brought in the Superior Court in the name of the United States involve "offenses against the United States" within the meaning of 18 U.S.C. § 3651, making the Federal Probation Act applicable there as well as in the purely federal system. However, we conclude that the Federal Probation Act is limited in its intended applicability to violations of provisions of the United States Code, in contradistinction to District of Columbia Code offenses.

Initially, our decision comports with the realities of the different court structures as they exist within this unique jurisdiction. The United States District Court manifestly encompassed by the Federal Probation Act, has its own probation officials. The Superior Court, which was created by the District of Columbia Court Reform and Criminal Procedure Act of 1970, has an entirely different set of probation officers, who are employees of the District of Columbia, rather than of the federal government. In Swain v. Pressley, the Supreme Court recognized that court reorganization here "created a new local court system and transferred in its entirety the Federal District Court's responsibility for processing local litigation to the Superior Court of the District of Columbia." ___ U.S. ___, 97 S.Ct. 1224, 1226, 51 L.Ed.2d 411 (1977) (footnote omitted).

Further, we find this case to be an inappropriate one for the application of the "plain meaning" rule. In Lynch v. Overholser, 369 U.S. 705, 710, 82 S.Ct. 1063, 8 L.Ed.2d 211 (1962), the Supreme Court placed the plain meaning rule in perspective:

The decisions of this Court have repeatedly warned against the dangers of an approach to statutory construction which confines itself to the bare words of a statute, e. g., Church of the Holy Trinity v. United States [sic; should be Rector of Holy Trinity Church v. United States], 143 U.S. 457, 459-62, 12 S.Ct. 511, 512-513, 36 L.Ed. 226 [1892]; Markham v. Cabell, 326 U.S. 404, 409, 66 S.Ct. 193, 195, 90 L.Ed. 165 [1945], for "literalness may strangle meaning," Utah Junk Co. v. Porter, 328 U.S. 39, 44, 66 S.Ct. 889, 892, 90 L.Ed. 1071 [1946].

Courts have recognized that the rule is an unreliable guide where the statutory language is unclear. E. g., International Telephone & Telegraph Corp. v. General Telephone & Electronics Corp., 518 F.2d 913, 917-18 (9th Cir. 1975); District of Columbia v. Orleans, 132 U.S.App.D.C. 139, 141, 406 F.2d 957, 959 (1968). "Where the words are ambiguous, the judiciary may properly use the legislative history to reach a conclusion." United States v. Public Utilities Commission, 345 U.S. 295, 315, 73 S.Ct. 706, 718, 97 L.Ed. 1020 (1953). "Whether or not the words of a statute are clear is itself not always clear." Barbee v. United States, 392 F.2d 532, 535 n. 4 (5th Cir.), cert. denied, 391 U.S. 935, 88 S.Ct. 1849, 20 L.Ed.2d 855 (1968). See March v. United States, 165 U.S.App.D.C. 267, 274-75, 506 F.2d 1306, 1313-14 (1974).

Despite its superficial clarity, we find ambiguity in the phrase "any court with jurisdiction to try offenses against the United States." Three possible "plain meanings" could be ascribed to this phrase. It could refer to courts with jurisdiction to try crimes against the United States in its character as the national sovereign, but not in its role as a local governing power. Viewed differently, it could encompass all courts with jurisdiction to try cases brought by the United States, including the various military courts. Finally, the phrase could refer to courts with jurisdiction to try nonmilitary cases prosecuted by the United States in whatever capacity, either as a national government or as the source of local government as in the District of Columbia. The plain meaning rule thus is of little help. Indeed, here it entices us to abdicate our duty by suggesting that the problem is a simple one. However, with 18 U.S.C. § 3651 and § 16-710 of the D.C.Code in irreconcilable conflict on the narrow question before us, and with the plain meaning rule being of no avail, we must trace a tortuous legislative history to effect the proper statutory construction.⁴

Congress enacted an ancestor of the present § 16-710 in the Act of June 25, 1910, ch. 433, 36 Stat. 864, which authorized the Supreme Court and Police Court of this District (the predecessors of the United States District Court and the Court of General Sessions, respectively) to grant probation except for those convicted of certain felonies. In the Act of June 18, 1953, ch. 128, 67 Stat. 65, Congress authorized the District's Municipal and Juvenile Courts to grant probation under the 1910 law. These two provisions evolved into D.C.Code 1961, §§ 24-102 and 11-757, respectively. See D.C.Code 1973, § 16-710, Revision Notes. When Congress revised the judiciary provisions of the D.C.Code in the Act of December 23, 1963, it combined §§ 11-757 and 24-102 into § 16-710. Id. In the District of Columbia Court Reform and Criminal Procedure Act of 1970, Congress amended § 16-710 by substituting "Superior Court" for "Court of General Sessions," and enacted D.C.Code 1973, § 11-923(b), giving the Superior Court (after a transitional period) "jurisdiction of any criminal case under any law applicable exclusively to the District of Columbia." Act of July 29, 1970, Pub.L. 91-358, tit. I, §§ 111 and 145(d)(6), 84 Stat. 486, 557. Reading § 11-923(b) together with § 16-706, we conclude that the Superior Court may consider probation in any case with respect to which no specific statutory provision forbids probation. See, e. g., D.C. Code 1973, § 22-3202(d)(2); United States v. Hilliard, D.C.App., 366 A.2d 437 (1976). Cf. D.C.Code 1973, § 22-2404 (restricting even parole in first-degree murder cases). We next must determine whether the exception set forth in the Federal Probation Act constitutes such a restriction upon the Superior Court's power.

Almost 15 years after it gave the District a probation statute, Congress enacted the Federal Probation Act. It was to be applicable to "courts of the United States having original jurisdiction of criminal actions, excepting in the District of Columbia. . . ." Act of March 4, 1925, ch. 521, 43 Stat. 1259. The 1948 revision of the federal criminal code changed the phrase "courts of the United States" to "any court having jurisdiction to try offenses against the United States." The Reviser's Note to § 3651 explains that the language change was intended to make it clear that courts in the territories and possessions also had the power to grant probation. The exception for the District of Columbia remained until the Act of June 20, 1958, Pub.L. 85-463, 72 Stat. 216, made the Federal Probation Act applicable to the United States District Court for the District of Columbia. That law also preserved the applicability of the Act of 1953 (which had extended the probation authority of the Act of 1910) to the Municipal and Juvenile Courts, while repealing the Act of 1910 only as applied to the United States District Court for the District of Columbia. The legislative history reflects that the reason for such a change was to make the probation law uniform in all of the federal District Courts. S.Rep.No. 1609, 85th Cong., 2d Sess. (1958), U.S.Code Cong. & Admin. News, 85th Cong., 2d Sess., pp. 2689-91. Congress never intended the Federal Probation Act to apply to the District's local courts — unless it signaled a contrary view in the Court Reform and Criminal Procedure Act of 1970.

In Palmore v. United States, 411 U.S. 389, 408-09, 93 S.Ct. 1670, 36 L.Ed.2d 342 (1973), aff'...