Short v. United States

• Citation: 120 US App. DC 165,344 F.2d 550
• Decision Date: 23 February 1965
• Docket Number: No. 18940.,18940.
• Parties: Willie L. SHORT, Jr., Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

120 US App. DC 165, 344 F.2d 550 (1965)

Willie L. SHORT, Jr., Appellant, v. UNITED STATES of America, Appellee.

No. 18940.

United States Court of Appeals District of Columbia Circuit.

Argued December 14, 1964.

Decided February 23, 1965.

Supplemental Opinion March 19, 1965.

Mr. Harris Weinstein, Washington, D. C. (appointed by this court), for appellant.

Mr. Martin R. Hoffmann, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., Frank Q. Nebeker, Joel D. Blackwell and Barry I. Fredericks, Asst. U. S. Attys., were on the brief, for appellee. Mr. John A. Terry, Asst. U. S. Atty., also entered an appearance for appellee.

Before BAZELON, Chief Judge, and FAHY and WRIGHT, Circuit Judges.

BAZELON, Chief Judge:

Appellant was arrested on September 15, 1962, on a charge of attempted robbery and later he was indicted for this and three other robbery charges. He was unable to provide the bond set at $9,000. After trial he was convicted on one count of robbery and one count of assault with intent to rob. On February 15, 1963, he was sentenced on each count from four to twelve years, the two sentences to run concurrently. The District Court granted leave to appeal in forma pauperis and granted bail pending appeal with bond at $3,500. Appellant remained in prison because he could not provide that amount of bond, and this court refused to reduce the amount. While in prison, appellant earned the maximum good conduct allowances¹ and received an additional thirty-days credit for heroism in saving the life of a fellow-prisoner. Appellant's conviction was reversed by this court en banc on July 16, 1964. On remand to the District Court, appellant pleaded guilty to one count of attempted robbery and the other counts were dismissed. On September 25, 1964, the trial court imposed a sentence of one to three years — the maximum statutory imprisonment for attempted robbery — and refused to credit appellant with any time already served in prison, or with the good conduct reductions he had earned. This appeal followed.

Pending appeal from his first conviction, appellant refused to elect not to commence service of sentence and he was imprisoned at Lorton Reformatory. He could, therefore, believe that he was in prison to serve time in satisfaction of his conviction for robbery. But the Government argues, in effect, that this belief would only be correct if the conviction were affirmed on appeal. Under this view, reversal of the conviction is a misfortune for appellant because the time he spent in prison had no purpose and should be ignored.² This argument was answered in King v. United States, 69 App.D.C. 10, 12-13, 98 F.2d 291, 293-94 (1938):

"The Government\'s brief suggests, in the vein of The Mikado, that because the first sentence was void appellant `has served no sentence but has merely spent time in the penitentiary;\' that since he should not have been imprisoned as he was, he was not imprisoned at all. The brief deduces the corollary that his non-existent punishment cannot possibly be `increased.\' As other corollaries it might be suggested that he is liable in quasi-contract for the value of his board and lodging, and criminally liable for obtaining them by false pretences. We cannot take this optimistic view. Though appellant\'s first sentence was `void,\' he was threatened with and suffered imprisonment under it. His second sentence, from which he now appeals, increases his punishment both in length and in kind beyond that which he faced under the first."

King, supra, and DeBenque v. United States³ hold that in some circumstances a defendant may be subjected to increased punishment on resentence if he successfully appeals a sentence. Punishment could not be increased to penalize a defendant for exercising his right of appeal;⁴ nor could the increase be imposed in order to ignore "the reversal of the judgment but, in effect, * * * merely to justify the original sentence * * *." Yates v. United States, 356 U.S. 363, 366, 78 S.Ct. 766, 768, 2 L.Ed. 2d 837 (1958). Punishment may be increased on resentence, however, if the court determines, in proper exercise of its discretion, that such increase serves a valid purpose. But as King points out, supra, when the court increases punishment on resentence, it does not treat the prior punishment as non-existent.

The question here is whether appellant's sentence may properly be increased so that his total imprisonment for a single offense exceeds the maximum statutory punishment for that offense. There is no explicit provision authorizing credit against the maximum sentence for imprisonment prior to resentencing for the same offense. Nor does any provision explicitly preclude such credit. The Federal cases have dicta pointing both ways⁵ but the only appellate holding allows credit against the statutory maximum for time already served. Cook v. United States, 171 F.2d 567, 570 (1st Cir.1948). This rested on a statement in King that, although punishment may be increased on resentence, "this is by no means to say that punishment inflicted under a void sentence may be ignored in determining whether a resentence subjects the prisoner to more punishment than the legal maximum for his offense." 69 App.D.C. at 14 n. 3, 98 F.2d at 295 n. 3. The contrary view, that the "defendant in seeking and obtaining a new trial must be deemed to have consented to a wiping out of all the consequences of the first trial,"⁶ falls into "the vein of The Mikado." Because no statute explicitly precludes such credit, we hold that, on resentence for the same offense, a defendant's new sentence may not be such that his total time served in prison might exceed the maximum statutory punishment for that offense.

Two questions remain. The first is whether appellant should be credited with the good conduct reductions he earned while serving the "void" sentence. The statute provides that the prisoner "shall be entitled to a deduction * * * beginning with the day on which the sentence commences to run * * *." 18 U.S.C. § 4161. Federal jurisdictions conflict on whether this provision authorizes credit on resentence for the same offense.⁷ In King v. United States, supra, we said that "it is impossible to interpret the statute * * * so broadly" as to give credit for earned good conduct reductions on resentence. 69 App.D.C. at 12 n. 1, 98 F.2d at 293 n. 1. It now appears, however, that this argument proceeds from the wrong premise. The purpose of the statutory good conduct allowance is to reward a prisoner who "has faithfully observed all the rules * * *." 18 U.S.C. § 4161. The allowances are an important part of the rehabilitative effort. To forfeit earned reductions in sentence on the ground that the original sentence should never have been imposed is to make a mockery of the prisoner's exemplary conduct while in prison, and seriously to undermine the rehabilitative purpose of the reduction. Moreover, it would substantially inhibit exercise of the statutory right to appeal.⁸ Thus the statutory provision must be interpreted as authorizing credit for earned good time reduction on resentence for the same offense, because the statute does not explicitly deny such credit.

The next question we face is whether the time appellant served in prison prior to his first trial and sentence, because he could not provide bail, should be credited against the maximum statutory term. Judges Fahy and Wright think that appellant should be credited with this imprisonment for want of bail pursuant to 18 U.S.C. § 3568. Their reasons are set forth in Judge Fahy's opinion herein. My own view is that statutory credit for "any days spent in custody prior to the imposition of sentence * * * for want of bail * * *" is provided only where "the statute requires the imposition of a minimum mandatory sentence" for the offense of which the defendant is ultimately convicted. 18 U.S.C. § 3568. Since no statutory minimum sentence is set for attempted robbery,⁹ for which appellant was convicted, credit for presentence imprisonment is not mandatory under this provision.¹⁰

I think that appellant may, however, be entitled to credit for presentence imprisonment because he was denied his constitutional right to bail. In Yates v. United States, 356 U.S. 363, 78 S.Ct. 766 (1958), the Supreme Court held imprisonment due to excessive bail "is to be deemed in satisfaction of * * *" the sentence ultimately imposed. 356 U.S. at 367, 78 S.Ct. at 769.¹¹ In this case, pretrial bond was set at $9,000. The record before us is not clear whether the required bond was excessive because it was "set at a figure higher than an amount reasonably calculated to fulfill * * * the purpose of assuring the presence of the defendant." Stack v. Boyle, 342 U.S. 1, 5, 72 S.Ct. 1, 3, 96 L.Ed. 3 (1951). I would remand for the District Court to determine whether appropriate inquiry was made,¹² when bail was set, to ascertain the lowest financial bond which would "insure the presence of the defendant, having regard to the nature and circumstances of the offense charged, the weight of the evidence against the defendant, the financial ability of the defendant to give bail and the character of the defendant." Rule 46(c), FED.R.CRIM.P. If no such inquiry was made, or if $9,000 bond was "a figure higher than an amount reasonably calculated to fulfill" the purpose of the bond, then appellant is entitled to credit for his presentence imprisonment.

Appellant's allegation that he was financially unable to provide the bond required raises an additional constitutional problem. "To continue to demand a substantial bond which the defendant is unable to secure raises considerable problems for the equal administration of the law citing Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956)." Bandy v. United States, 81 S.Ct. 197, 5 L.Ed.2d 218 (1960) (Mr. Justice Douglas as Circuit Justice). If appellant's allegations of financial inability are true, this...