U.S. v. Fogel, 86-3063

• Decision Date: 15 September 1987
• Docket Number: No. 86-3063,86-3063
• Citation: 829 F.2d 77,264 App.D.C. 292
• Parties: UNITED STATES of America v. Carl P. FOGEL, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 77

829 F.2d 77

264 U.S.App.D.C. 292

UNITED STATES of America v. Carl P. FOGEL, Appellant.

No. 86-3063.

United States Court of Appeals District of Columbia Circuit.

Argued April 9, 1987.

Decided Sept. 15, 1987.

Appeal from the United States District Court for the District of Columbia (Criminal No. 85-00087-01).

Kenneth Michael Robinson, Washington, D.C., for appellant.

Dennis R. Carluzzo, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., Michael W. Farrell and Roger M. Adelman, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before WALD, Chief Judge, and MIKVA and BORK, Circuit Judges.

Opinion for the Court filed by Circuit Judge BORK.

BORK, Circuit Judge:

Appellant, Carl P. Fogel, raises two issues on appeal from the district court's order on resentencing. First, appellant argues that the district court violated the Constitution's double jeopardy clause ¹ by increasing his sentence after he had begun serving it. Appellant also argues that his due process rights were violated when the district court refused to allow him to rebut by testimony the government's memorandum in aid of sentencing. We agree that the district court's resentencing violated the double jeopardy clause and therefore vacate the second sentence and remand with instructions to reinstate the originally imposed sentence as modified in accordance with this opinion. We also find that the district court did not violate appellant's due process rights.

I.

After a plea of guilty, appellant was convicted of one count of receiving embezzled property in violation of D.C.Code Sec. 22-1204 (1981). ² The sentencing hearing was set for September 2, 1986.

On August 30, 1986, one business day before the sentencing hearing, the government filed a memorandum in aid of sentencing. During the hearing, appellant moved the district court for permission "to present testimony to rebut" the sentencing memorandum. ³ Transcript of Sept. 2, 1986 Hearing ("9/2/86 Tr.") at 3. The district court denied the oral motion. Id. at 22-23.

After hearing testimony from appellant, and from several witnesses who appeared on behalf of appellant, the district court sentenced appellant. The district court described the sentence as follows:

We are not going to give you probation, but we are going to give you an alternative to probation. It is the judgment of this court that in lieu of incarceration at a federal institution, you are sentenced to twelve-months house arrest at your house.... This means that you will be confined to your house and grounds, except for (1) visits to your doctor; and (2) calls to the Synagogue. During these twelve months, you will be under the direction and supervision of a probation officer who will monitor your every movement by surveillance, daily phone checks, and frequent unscheduled home visits.

Violations of this order will result in your being returned to court and possibly subject to imprisonment. There may be some other conditions that may be imposed after you and the probation officer discuss this matter so that we can take care of the situations that we don't anticipate at the moment.

But that is the framework; twelve months of house arrest, subject to surveillance. The second condition is a $5 thousand-fine, which is the maximum under the statute.

The third is $350 restitution ...; and fourth, and finally, we gather from the probation report that you have agreed to your disbarment by consent.

9/2/86 Tr. at 59-60.

Following the sentencing hearing, the district court signed a "Judgment and Probation Order" which provided:

In lieu of incarceration at a Federal Institution, the defendant is hereby sentenced to a period of TWELVE (12) MONTHS under the provisions of Residential Intensive Probation under the direction and supervision of the Probation Officer of this Court, who will monitor the defendant by surveillance, daily phone calls and frequent unscheduled home visits, and with the following Special Conditions: 1) the defendant be allowed visits to his doctor, 2) defendant is allowed to attend the Synagogue One (1) Day a week, 3) defendant shall pay a Fine of Five Thousand Dollars ($5,000.00), to be paid within 30-days, 4) defendant to make Restitution in the amount of Three Hundred Fifty Dollars ($350.00) to W. Bell and Company, to be paid within 30-days, and 5) defendant agrees to Disbarment by Consent, to be complied within 30-days.

After the September 2 hearing, appellant reported to the Probation Office and signed a statement agreeing to the terms and conditions of probation. ⁴ On September 9, 1986, appellant met with his parole officer and submitted a check for the full amount of the fine imposed by the district court. On September 10, 1986, however, appellant was notified by the court that his sentence would be changed and that a resentencing hearing had been set for September 11, 1986.

At the hearing of September 11, 1986, the district court judge stated only that he "found that [he] made a mistake in the original sentence" and then vacated the original sentence. Transcript of Sept. 11, 1986 Hearing ("9/11/86 Tr.") at 1. The court then sentenced appellant to a total of three to nine years imprisonment, suspended execution of the sentence, and placed appellant on three years probation with twelve months to be served under the RIP program. Appellant was again ordered to pay a $5,000 fine and $350 in restitution and again consented to disbarment. Id. at 1-2. Appellant's counsel argued that the district court's increase in appellant's sentence might be illegal, and that if the sentence was technically improper because "it had to have probation tied to it, then it might be correctible," id. at 7. The court replied: "That's what I was advised and that it was an illegal sentence for that reason." Id. The foregoing is the only explanation in the record for the district court's actions. This appeal followed.

II.

The government has raised two arguments in opposition to appellant's claim that the double jeopardy clause bars an increase in his original sentence. First, the government argues that because the appellant's original sentence was void and of no legal effect, the second sentence could not "increase" the original sentence. Alternatively, the government argues that, even if appellant's first sentence was valid, the double jeopardy clause does not bar an increase in that sentence. We address first the contention that the original sentence was void and of no legal effect.

The government argues that appellant's original sentence is ambiguous but void under either of the two possible constructions. First, if the district court intended to place the appellant on probation, then the sentence is in violation of 18 U.S.C. Sec. 3651 (1982) ⁵ because the court did not "suspend the imposition or execution of sentence." ⁶ Alternatively, if the district court intended the twelve months of house arrest to be a term of imprisonment, then the sentence is in violation of 18 U.S.C. Sec. 4082(a) (1982) ⁷ because only the Attorney General has the authority to "designate the place of confinement where the sentence shall be served."

The government leans to the view that the district court sentenced appellant to a prison term and designated the place of confinement in violation of section 4082(a). Several bits of evidence are cited for this conclusion. First, the Judgment and Probation Order does not state that the court is suspending the imposition or execution of sentence. Instead, the Order states that "the defendant is hereby sentenced." Second, the Order provides that the twelve months of house arrest is "[i]n lieu of incarceration at a Federal Institution."

The government finds additional support in the district court's oral explanations of the two sentences. At the original sentencing hearing, the district court expressly stated: "We are not going to give you probation, but we are going to give you an alternative to probation. It is the judgment of this court that in lieu of incarceration at a federal institution, you are sentenced to twelve-months house arrest at your house." 9/2/86 Tr. at 59. Further, the district court in explaining its actions on resentencing appeared to believe that the original sentence was illegal because it did not have "probation tied to it." 9/11/86 Tr. at 7.

The appellant challenges the government's characterization of the original sentence as intended to define a term of confinement and argues that the only problem with the original sentence is semantic: the district court intended to place the appellant on probation pursuant to section 3651 but simply failed to state that it was suspending the imposition or execution of sentence. We think this view correct. "Residential Intensive Probation" is exactly what it says it is--a form of probation. The district court placed the defendant "under the direction and supervision of a probation officer." When appellant reported to the probation officer, he executed a form entitled "Conditions of Probation." He also executed another form entitled "Residential Intensive Probation: A Special Condition of Probation." This form provided that "[i]nstead of a period of confinement in a federal prison, the Court has directed that the prison sentence shall be suspended" and that failure to abide by the RIP regulations "will result in the imposition of the suspended jail sentence." The district court also stated that the fine, the restitution, and the consent to disbarment were conditions of probation.

Further, there is no evidence that the court was attempting to impose a prison sentence and to specify the place of confinement. The district court specifically stated to appellant that violations of the Order "will result in your being returned to court and possibly subject to imprisonment." 9/2/86 Tr. at 60 (emphasis added). The only evidence which even arguably supports the government's position is the court's statement that "[w]e...