U.S. v. Ferri

• Decision Date: 24 August 1982
• Docket Number: No. 82-3227,Nos. 82-5103,82-5198 and 82-3227,s. 82-5103,82-3227
• Citation: 686 F.2d 147
• Parties: UNITED STATES of America, Appellant in; 82-5198 v. Francis D. FERRI a/k/a Rick Joseph Laverich, Kenneth R. Matthews, Kenneth R. Matthews, Appellee. UNITED STATES of America, Petitioner in, v. Honorable Rabe F. MARSH, United States District Judge for the Western District of Pennsylvania, Nominal Respondent, Kenneth R. Matthews, Respondent. , 82-5198 and 82-3227.
• Court: U.S. Court of Appeals — Third Circuit

Page 147

686 F.2d 147

UNITED STATES of America, Appellant in Nos. 82-5103; 82-5198 v. Francis D. FERRI a/k/a Rick Joseph Laverich, Kenneth R.

Matthews, Kenneth R. Matthews, Appellee.

UNITED STATES of America, Petitioner in No. 82-3227, v. Honorable Rabe F. MARSH, United States District Judge for

the Western District of Pennsylvania, Nominal Respondent,

Kenneth R. Matthews, Respondent.

Nos. 82-5103, 82-5198 and 82-3227.

United States Court of Appeals Third Circuit.

Argued July 7, 1982.

Decided Aug. 3, 1982.

Rehearing and Rehearing En Banc Denied Aug. 24, 1982.

J. Alan Johnson, U. S. Atty., Sandra D. Jordan (argued), Asst. U. S. Atty., Pittsburgh, Pa., for appellant.

George F. Schumacher, Federal Public Defender, Thomas S. White (argued), Asst. Federal Public Defender, Pittsburgh, Pa., for appellee/respondent, Kenneth R. Matthews.

Before SEITZ, Chief Judge, and VAN DUSEN and SLOVITER, Circuit Judges.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

I. BACKGROUND

Based on his alleged participation in a conspiracy to bomb the automobile of his business associate, Lynn P. Dunn, as part of a scheme to collect the proceeds of an insurance policy on Dunn's life, appellee Kenneth Matthews was convicted for maliciously damaging a vehicle used in interstate commerce by means of an explosive; for illegally making a destructive device; for the unregistered possession of a destructive device; and for mail fraud. 18 U.S.C. §§ 2, 371, 844(i); 26 U.S.C. §§ 5861(f), 5871; 26 U.S.C. §§ 5861(d), 5871; 18 U.S.C. § 1341. On April 23, 1975 a sentence of 15 years incarceration was imposed. The convictions were affirmed by this court and on December 1, 1977 Matthews began serving his sentence.

Since June, 1976 Matthews has challenged his sentence in numerous motions which have been the subject of previous decisions by both this court and the district court, as well as one decision by the Supreme Court. In the consolidated actions presently before us the government challenges two orders of the district court relating to two of these motions. In No. 82-5198, the government directly appeals an order reducing Matthews' sentence to time served; in No. 82-3227 the government seeks to vacate that same order via a petition for a writ of mandamus; No. 82-5103 is an appeal from an order of the district court directing the United States Parole Commission to provide Matthews with a new parole hearing utilizing the parole eligibility criteria which would have been applicable at the time of the commission of the crimes for which he was convicted. We will focus only on the facts essential to the government's challenge to these orders.

II.

THE ORDER REDUCING MATTHEWS' SENTENCE

A. Appellate Jurisdiction

On August 4, 1978 Matthews filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255, alleging, inter alia, that he was denied the effective assistance of counsel because his attorney failed to file a timely motion for a reduction of sentence pursuant to Rule 35 of the Federal Rules of Criminal Procedure. ¹ By an order dated March 12, 1979, the district court denied Matthews' motion. However, on June 9, 1980, this court vacated that order and remanded the case to the district court for an evidentiary hearing on Matthews' ineffective assistance of counsel allegation. United States v. Ferri, 624 F.2d 1091 (3rd Cir. 1981). The district court thereafter conducted a hearing and found that Matthews had been denied effective assistance of counsel. Accordingly, the court, following the procedure suggested in United States v. Ackerman, 619 F.2d 285, 288 (3d Cir. 1980) On appeal Matthews claimed, inter alia, that the district court erred in changing his parole eligibility designation. In affirming the April 1, 1981 order on November 13, 1981, we noted that the government had previously "conceded before the district court that Matthews' sentence should be modified to provide for parole pursuant to 18 U.S.C. § 4205(b)(2) (1976)." United States v. Ferri, 673 F.2d 1302 (3rd Cir. 1981) (reprinted in app. at 161a).

vacated Matthews' sentence and, on December 2, 1980, reimposed exactly the same sentence as had been originally imposed in 1975. The purpose of the resentencing was to afford Matthews 120 days within which to file a motion to reduce his sentence pursuant to Rule 35. In March, 1981 Matthews' counsel filed two timely Rule 35 motions, one to correct and the other to reduce his sentence. On April 1, 1981, the district court granted both motions and ordered that Matthews' sentence be corrected from 15 years to 10 years ² and reduced from 10 years to 9 years. The April 1, 1981 order also denied various pro se motions to correct the sentence. Although the sentence as originally imposed in 1975 provided for immediate parole eligibility under 18 U.S.C. § 4208(a)(2) (1970) (recodified in 1976 at 18 U.S.C. § 4205(b)(2)), the April 1, 1981 order directed that Matthews would be eligible for parole upon serving one-third of his sentence pursuant to 18 U.S.C. § 4205(a) (1976).

On December 1, 1981, the district court entered an order changing Matthews' parole eligibility status. The order stated that "the sentence imposed on December 2, 1980 and corrected by order of court on April 1, 1981 shall remain in full force and effect except that the defendant shall become eligible for parole pursuant to 18 U.S.C. § 4205(b)(2) and not pursuant to 18 U.S.C. § 4205(a)." App. at 165a. Thereafter on March 2, 1982, Matthews filed a second motion for reduction of sentence pursuant to Rule 35. On March 23, 1982, before a response was filed by the government, the district court granted the motion, ordering that Matthews' sentence be reduced to time served and that he be immediately released from custody. The government immediately sought a stay of the district court order, pending appeal to this court. This motion was not ruled upon by the district court and Matthews was released from custody on March 26, 1982.

The government contends that Matthews' March 2, 1982 motion for reduction of sentence was filed outside the time limits established by Rule 35 and that, therefore, the district court was without jurisdiction to grant the motion. Before addressing the merits of this contention, we must first determine whether we have jurisdiction to review the government's challenge to the order reducing Matthews' sentence. The government asserts that the order is "final" and presents the "necessary characteristics of independence and completeness" to be appealable under the general authority of 28 U.S.C. § 1291 and that, alternatively, review is appropriate by way of mandamus.

The government has conceded that 18 U.S.C. § 3731, the statute ordinarily invoked to authorize government appeals in criminal cases, does not authorize an appeal from an order such as the one in question. ³ Section 3731 cannot be construed to authorize a Government appeal from any and every District Court order. To so construe Section 3731 would do violence to Congress' express intention to carefully identify and define the situations in which the Government might appeal.

We agree. Neither a sentencing order nor an order reducing a sentence are specifically mentioned in section 3731. As the Fifth Circuit recently stated in United States v. Denson, 588 F.2d 1112, 1125 (5th Cir.), vacated on other grounds, 603 F.2d 1143 (5th Cir. 1979) (en banc):

Accord, United States v. DeMier, 671 F.2d 1200, 1204 n.12 (8th Cir. 1982). Contra, United States v. Hetrick, 644 F.2d 752, 754-55 (9th Cir. 1981).

We turn then to the government's contention that this appeal is authorized under 28 U.S.C. § 1291, which confers on the courts of appeals "jurisdiction of appeals from all final decisions of the district courts of the United States." It is well established that as a general rule "the Federal Government enjoys no inherent right to appeal a criminal judgment, and that the grant of general appellate jurisdiction, now contained in 28 U.S.C. § 1291, does not authorize such a federal appeal." Arizona v. Manypenny, 451 U.S. 232, 246, 101 S.Ct. 1657, 1666, 68 L.Ed.2d 58 (1981). See DiBella v. United States, 369 U.S. 121, 130, 82 S.Ct. 654, 659, 7 L.Ed.2d 614 (1962); United States v. Jannotti, 673 F.2d 578, 580 n.1 (3d Cir. 1982) (en banc), cert. denied, --- U.S. ----, 102 S.Ct. 2906, 73 L.Ed.2d 1315 (1982). In Carroll v. United States, 354 U.S. 394, 403-04, 77 S.Ct. 1332, 1338, 1 L.Ed.2d 1442 (1957) (citations and footnotes omitted), however, the Supreme Court stated:

(C)ertain orders relating to a criminal case may be found to possess sufficient independence from the main course of the prosecution to warrant treatment as plenary orders, and thus be appealable on the authority of 28 U.S.C. § 1291 without regard to the limitations of 18 U.S.C. § 3731, just as in civil litigation orders of equivalent distinctiveness are appealable on the same authority without regard to the limitations of 28 U.S.C. § 1292. The instances in criminal cases are very few.... In such cases, as appropriate, the Government as well as the moving person has been permitted to appeal from an adverse decision.

See United States v. Fields, 425 F.2d 883, 886 (3d Cir. 1970) (government may appeal under section 1291 order directing return of seized property to third party because "the motion for return of the motor vehicle was an independent proceeding intended for the benefit of a person not a party to the criminal case and not a step in the criminal case"). Under the authority of Carroll several courts have held that section 1291 authorizes an appeal by the government from certain orders relating to sentencing. See United States v. Busic, 592 F.2d 13, 25-26 (2d Cir. 1978) (government can cross-appeal under section 1291 from part of sentence order designating an early date for parole eligibility); United States v. United States District Court, 601 F.2d 379 (9th Cir. 1978) (section 1291 authorizes government appeal of district court's failure to...