U.S. v. Bynoe

• Decision Date: 31 May 1977
• Docket Number: No. 77-1117,77-1117
• Citation: 562 F.2d 126
• Parties: UNITED STATES of America, Appellee, v. Victor C. BYNOE, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 126

562 F.2d 126

UNITED STATES of America, Appellee, v. Victor C. BYNOE, Defendant, Appellant.

No. 77-1117.

United States Court of Appeals, First Circuit.

Heard May 31, 1977.

Decided Sept. 16, 1977.

Richard K. Latimer, with whom Henry F. Owens III, and Owens & Associates, Boston, Mass., were on brief, for defendant, appellant.

Paul F. Healy, Jr., Asst. U. S. Atty., Washington, D. C., with whom James N. Gabriel, U. S. Atty., Boston, Mass., was on brief, for appellee.

Before COFFIN, Chief Judge, LAY ^*, Circuit Judge, CAMPBELL, Circuit Judge.

COFFIN, Chief Judge.

Appellant pleaded guilty to a one count information charging that on July 6, 1974, while an employee of the United States government, appellant acted as an attorney before the Immigration and Naturalization Service in a proceeding in which the United States had a direct and substantial adverse interest. See 18 U.S.C. § 205(2). At a dispositional hearing on February 8, 1977, the district court indicated that it did not "consider this a matter that would require any disciplinary action (since there was) obviously not a pattern here." The U. S. Attorney, later in the hearing, referred the court to information in the presentence report which indicated the offense charged was not an isolated incident, but appellant's counsel objected to any reliance on matters he considered not properly before the court.

On the basis of counsel's representation that even a small fine would constitute punishment that might lead to appellant's disbarment, the court suspended imposition of sentence and placed appellant on probation for one month. See 18 U.S.C. § 3651. The court's order was docketed on February 8, 1977, and appellant reported to the probation office on February 9.

On February 15 the court, on its own motion, called a hearing at which it announced that its original sentencing decision had been based on "an obvious misconception that was known to counsel." The court felt it had been "a little bit conned" into believing that the offense charged was an isolated incident, and had since learned that there were possibly as many as 82 occasions on which appellant had performed some legal services for persons involved with the INS. The court acknowledged that there was "some clue" to the true situation in the presentence report, but felt it was "fairly oblique". In addition, the court had learned from the Board of Bar Examiners that suspending imposition of sentence would not prevent an investigation of appellant's conduct, and that, while it would be considered as a reflection of the court's view of the offense, it would not have any great effect on the Board's action. The court believed that this was contrary to counsel's representation at the disposition hearing.

In the colloquy that followed, defense counsel denied any effort to mislead the court as to the impact of sentencing on Board proceedings. As to the other alleged violations, counsel stated that he and appellant had cooperated with the government from the outset of the investigation, but that he had maintained throughout that it was no violation of 18 U.S.C. § 205(2) for appellant to advise clients on immigration matters and receive fees for his services so long as he did not appear as an adversary at the hearings. Government counsel conceded that appellant had voluntarily given the government a list of persons he had advised on immigration matters, and that the statute did not bar appellant from the practice of law entirely. He was unable to tell the court in how many cases other than the one on which the charge was based appellant had entered a formal appearance.

The court seemed to agree that appellant's obligation under the statute was less than clear, but concluded as follows:

"I don't think that a suspension of the imposition of sentence is the right thing to do. If a sentence had been imposed, that would be it, but where no sentence was imposed the case isn't over; and I think under the disposition I made of it, it is still open to me to redo it according to what I think is an appropriate disposition."

In response to government counsel's observation that, on the basis of his research, a mere misapprehension on the part of the judge could not be "laid to the defendant" as a basis for enhancing sentence, compare United States v. Bowens, 514 F.2d 440 (9th Cir. 1975) with Trueblood Longknife v. United States, 381 F.2d 17 (9th Cir. 1967), the court said, "in this case I do lay it to the defendant to some extent, because counsel just let me sail along, and indeed, prevented you from straightening me out, so to that extent, it's laid to the defendant and his lawyer." The court thereupon vacated its order suspending imposition of sentence and imposed a fine of $2500, which it conceded to be a "more severe" disposition.

The district court based its decision to vacate the order suspending the imposition of sentence on the premise that such a suspension leaves the case open and the court free to correct that original order at any time prior to the entering of judgment. We disagree. By suspending the imposition of sentence the court does retain the flexibility that, upon revocation of probation, it may impose any penalty permitted by statute, but that is the limit of its power. In all other circumstances the court may only alter its decision to suspend the imposition of sentence and order probation for the same grounds and under the same standards that would apply if a fixed sentence had been imposed and the execution of sentence suspended during the period of probation.

While the statute, 18 U.S.C. § 3651, distinguishes between placing defendant on probation and the imposition of sentence, probation is nonetheless a punishment imposed on the defendant, albeit a mild one. Korematsu v. United States, 319 U.S. 432, 63 S.Ct. 1124, 87 L.Ed. 1497 (1943). It is the punitive character of probation which led the Court in Korematsu to conclude that an order suspending sentence and imposing probation is final for purposes of appeal. As the Court observed, "(t)he difference to the probationer between imposition of sentence followed by probation . . . and suspension of the imposition of sentence . . . is one of trifling degree." Id. at 435, 63 S.Ct. at 1126.

The general rule is that an increase in sentence after the defendant has commenced serving his punishment is a violation of defendant's right not to be subject to double jeopardy. See United States v. Turner,518 F.2d 14, 15 (7th Cir. 1975) and cases cited therein; United States v. Bowens, 514 F.2d 440, 441 (9th Cir. 1975); In re Bradley, 318 U.S. 50, 63 S.Ct. 470, 87 L.Ed. 608 (1943). Since probation is a form of punishment, the guaranty against double jeopardy will attach as soon as a defendant, placed on probation under a suspended sentence, begins to serve his period of probation. United States v. Teresi, 484 F.2d 894, 898-99 (7th Cir. 1973); Oksanen v. United States, 362 F.2d 74, 80 (8th Cir. 1966); United States v. Rosenstreich, 204 F.2d 321 (2d Cir. 1953)....