U.S. v. Edmonson
| Decision Date | 01 July 1986 |
| Docket Number | 85-3104,Nos. 85-3029,85-7337,s. 85-3029 |
| Citation | 792 F.2d 1492 |
| Parties | UNITED STATES of America, Plaintiff-Appellant, v. John Paul EDMONSON, Defendant-Appellee. UNITED STATES of America, Petitioner, v. UNITED STATES DISTRICT COURT FOR the EASTERN DISTRICT OF WASHINGTON, Respondent, and John Paul Edmonson, Defendant and Real Party in Interest. UNITED STATES of America, Plaintiff-Appellant, v. Rosie KNOEB, Jorge Huerta, and Mary June Jimicum, Defendants-Appellees. UNITED STATES of America, Petitioner, v. UNITED STATES DISTRICT COURT FOR the EASTERN DISTRICT OF WASHINGTON, Respondent, and Rosie Knoeb, Jorge Huerta, and Mary June Jimicum, Defendants and Real Parties in Interest. to 85-3108 and 85-7500. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Kenneth W. Raber, Robert Inouye, Yakima, Wash., for defendants-appellees.
Appeal from the United States District Court for the Eastern District of Washington.
Before WRIGHT, CANBY and WIGGINS, Circuit Judges.
We have consolidated these cases, coming to us from the decisions of two district judges of the Eastern District of Washington, as they present the same question of law. The question we consider is the interrelationship of Sections 495 and 510 of Title 18, United States Code.
The predecessor of Section 495 was enacted in 1823. It punishes as a felony the forgery and alteration of specified documents "or other writing" for the purpose of defrauding the United States. The forgery of Treasury check endorsements is not specifically denounced in Section 495 but, at least since 1931, such forgery has been interpreted as coming under Section 495's "other writing" provision and made punishable as a felony by that section. Prussian v. United States, 282 U.S. 675, 51 S.Ct. 223, 75 L.Ed. 610 (1931); cf. Roberts v. United States, 331 F.2d 502, 505 (9th Cir.1964). 1
Section 510, enacted on November 14, 1983, deals exclusively and comprehensively with forgery and other criminal abuses relating specifically to Treasury checks, bonds and securities. It provides felony penalties where the face value of the instrument in question is over $500 and misdemeanor penalties when that value is $500 or less. 2
The appellees were charged, in separate unrelated cases in the Eastern District of Washington, with the forgery of Treasury check endorsements of $500 or less in value in violation of Section 495. In each case the alleged forgery was committed before the enactment of Section 510. Knoeb was indicted before it was enacted; the others were indicted after it was enacted.
Each of the appellees at first pleaded not guilty. Later each withdrew the plea and pleaded guilty under Rule 11, Fed.R.Crim.P. The circumstances of those Rule 11 hearings, and of the later sentencing hearings, are of some significance. We therefore set out the facts in some detail.
In the chronology of events, Edmonson's case came first and was pivotal to what followed. In January 1985, he withdrew his plea of not guilty to the Section 495 indictment, was advised of the maximum penalties under that statute, and pleaded guilty. The issue of the enactment of Section 510 was raised at some time during the Edmonson's case had been decided when Knoeb appeared at her Rule 11 hearing to change her plea to guilty. Her indictment, like Edmonson's, charged violation of Section 495. As in Edmonson's case, the district judge made it clear that he considered Section 510(c) to be the only statute which now applied to the acts charged in the indictment, i.e. the forgery of Treasury check endorsements of a value of $500 or less. At the Rule 11 inquiry, to determine if Knoeb's guilty plea was voluntary and intelligently made, the district judge advised her that the maximum penalty was the misdemeanor punishment prescribed by Section 510(c). Knoeb's guilty plea was made with that understanding. Without any dismissal of the Section 495 indictment, she thereafter entered a plea of guilty to a violation of Section 510(c) and was sentenced under its misdemeanor provisions.
period between that hearing and the time set for his sentencing. In the belief that Edmonson's offense could now only be prosecuted under Section 510(c), the district judge invited him to withdraw his guilty plea to the charge in the Section 495 indictment. At the time set for sentencing the government attorney clearly stood on the Section 495 indictment that he had drafted. The district judge and counsel appear to have recognized that the legal situation was clouded; they discussed alternative methods of framing the issues for this court's review. 3 The district judge held that he would impose sentence treating the charge as a misdemeanor under Section 510(c), even though, in his words, it was not "technically" the offense alleged in the indictment. He directed that the judgment recite that Edmonson was being sentenced under 18 U.S.C. Sec. 510(c), and Edmonson was sentenced under the misdemeanor provisions of that statute
The cases presented by Huerta and Jimicum were in all essential respects the same as those of Knoeb. In addition, however, Huerta and Jimicum also pleaded guilty to bail jumping on the understanding that the forgery charge was controlled by Section 510(c). The severity of the penalties for their bail jumping sentences was, of course, dependent on the gravity of the underlying forgery charges. 18 U.S.C. Sec. 3146. Those bail jumping convictions are also before us on these appeals.
The district judge filed a memorandum opinion in Edmonson holding that Section 510 impliedly repealed Section 495 and that it operated retroactively to apply to Edmonson's offense. In the alternative, he held that there was ambiguity presented by the existence of both statutes, which permitted him to resort to interpretation in favor of the most recently enacted statute and in favor of lenity, i.e. in favor of Section 510 prevailing over Section 495. A memorandum opinion filed in Jimicum was very largely duplicative of that filed in Edmonson.
In summary, the appellees' indictments dealt with acts committed prior to the enactment of Section 510, the indictments charged violations of Section 495, and the government persistently objected to any disposition of the cases except under the terms of Section 495. Despite this, the district judges formally convicted the appellees of violations of Section 510(c) and sentenced them under its more lenient misdemeanor provisions.
The government appeals the judgments of the district court. In doing so, the parties occupy unusual roles--the government is seeking to set aside judgments of conviction and the defendants below are seeking to affirm them. Because of uncertainty as to our jurisdiction to hear its appeals, the government also petitions this court for
writs of mandamus directing the district court to vacate the Section 510 judgments and sentences as void, and to resentence under Section 495.
The government may appeal in criminal cases pursuant to the terms of 18 U.S.C. Sec. 3731. That statute lists various categories of judgments and orders that are appealable. Appellees contend that this court is without jurisdiction as the government has not demonstrated that it has a right to appeal. Although the judgments appealed from do not fall within Section 3731's listings of orders that are appealable by the government, that listing is not exclusive. The government may appeal under the authority of Section 3731, except when doing so would be prohibited by the Constitution. United States v. DiFrancesco, 449 U.S. 117, 131, 101 S.Ct. 426, 434, 66 L.Ed.2d 328 (1980); United States v. Wilson, 420 U.S. 332, 337, 95 S.Ct. 1013, 1018, 43 L.Ed.2d 232 (1975); United States v. Hetrick, 627 F.2d 1007, 1010 (9th Cir.1980). Here the government's position is that appellees' convictions and sentences under Section 510 are void and must be vacated to permit entry of new judgments of conviction and new sentences under Section 495. Appellees claim that such a position, if it is sustained on the appeals, would violate their rights under the Double Jeopardy Clause, thus defeating our jurisdiction to hear the appeals.
The government argues that if we were to proceed to the merits of its appeals, it would contend that under the Separation of Powers Doctrine the Attorney General had the exclusive right to elect to indict the appellees under Section 495 and the district judges had no power to convict and sentence them for a different crime. The government would contend that the judgments sought to be appealed, and the sentences imposed under them, are void. It would ask us to vacate those judgments and sentences. According to the government's argument, there has never been a lawful disposition of the indictments charging violation of Section 495 and, on remand, the prosecutions would then proceed under the felony provisions of that statute. The government contends that no double jeopardy would occur so long as appellees were given credit for time served under the void convictions.
We cannot fault the government's reasoning on the double jeopardy issue. If the district judges had no power to convict and sentence the appellees except under the terms of the Section 495 indictments, then the judgments now before us on these appeals are void and must be reversed on that ground. The government could then be free to proceed on the outstanding Section 495 indictments. There is no double jeopardy prohibition against correcting an illegal sentence even if such correction increases the punishment. Bozza v. United States, 330 U.S. 160, 166-67, 67 S.Ct. 645, 648-49, 91 L.Ed. 818 (1947); United States v. Carter, 704 F.2d 1063, 1064 (9th Cir.1983); United States v. Connolly, 618 F.2d 553, 556 (9th Cir.1980); United States v. Stevens, 548 F.2d 1360, 1362 (9th Cir.), cert. denied, 430...
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