U.S. v. Holmes
| Decision Date | 07 July 1987 |
| Docket Number | No. 86-4048,86-4048 |
| Citation | 822 F.2d 481 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Paul H. "Bud" HOLMES, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
James K. Dukes, Hattiesburg, Miss., Patrick Fanning, New Orleans, La., for defendant-appellant.
Reid Weingarten, Public Integrity Section, Criminal Div., Jan Nielsen Little, U.S. Dept. of Justice, Washington, D.C., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Mississippi.
Before BROWN, RUBIN, and GARWOOD, Circuit Judges.
Appellant Paul H. ("Bud") Holmes challenges the legality of a one-year sentence of imprisonment that, together with a fine of $10,000, was imposed pursuant to his plea of guilty to and consequent conviction of contempt under 18 U.S.C. Sec. 401(1). Holmes contends that the contempt statute does not authorize both imprisonment and a fine for a single offense, but instead only permits a court to impose as alternative sentences either a fine or imprisonment, and not both. Appellant's position is that he fully satisfied his sentence by paying the fine, and that he cannot now be required to undergo imprisonment.
The government contends that the sentence was proper because appellant was convicted of two or more contempt offenses. However, we determine that appellant was charged with, pleaded guilty to, and was convicted of only a single offense of contempt, and that hence under section 401 he could not be sentenced to both a fine and imprisonment, although he could have been sentenced to either. We also reject the government's alternative contention that 18 U.S.C. Sec. 3623, taken together with section 401, authorized imposition of both a fine and imprisonment for a single offense under section 401. Therefore, we hold, pursuant to In re Bradley, 318 U.S. 50, 63 S.Ct. 470, 87 L.Ed. 608 (1943), that appellant, since he has fully paid his fine, must be discharged from his sentence of imprisonment.
Appellant was originally charged in a five-count indictment returned March 29, 1985 in the United States District Court for the Southern District of Mississippi, Hattiesburg Division. Count I of the indictment charged appellant with attempting to interfere with or impede the investigation of the federal grand jury in the Hattiesburg Division by various actions in 1984 and 1985, contrary to 18 U.S.C. Sec. 1503, and Counts II through V charged him with perjury in his testimony before the same grand jury on various dates in 1984 and 1985, contrary to 18 U.S.C. Sec. 1623. The indictment alleged that the grand jury was investigating allegations of official corruption in the Southern District of Mississippi, and as a part of that investigation was examining, among other things, the circumstances of the transfer of mineral royalty interests from Wiley Fairchild, a Hattiesburg businessman, to United States District Judge Walter Nixon, and the handling by appellant, in his then capacity as state district attorney in that area, an office he held from January 1980 to January 1984, of a drug smuggling case involving Wiley Fairchild's son, Drew Fairchild, which arose out of an August 1980 arrest at the Hattiesburg airport. The subject matter of Count I was the allegation that appellant sought to keep the grand jury from learning about a 1982 telephone call from appellant's farm to Wiley Fairchild in which appellant and Judge Nixon assured Wiley Fairchild that the drug smuggling case against his son, Drew Fairchild, would be resolved by appellant to Wiley Fairchild's satisfaction. The other counts in the indictment did not relate to this telephone conversation with Wiley Fairchild, or indeed to any other contact with him. 1
The same day the indictment was returned, appellant was arraigned, entered a plea of not guilty, and was released on bond.
On June 18, 1985, just as appellant's trial on this indictment was beginning (though apparently the jury had not yet been impaneled), appellant entered into a plea agreement with the government, pursuant to which he pleaded guilty to an information charging him with contempt under section 401(1), and the government agreed to dismiss the indictment against him. The agreement also called for appellant to give complete and truthful testimony to the United States at interviews, before the grand jury, and at trial, and the United States agreed to make known to the court at sentencing any cooperation provided by appellant. On the same day, appellant filed a waiver of indictment, the court allowed the information to be filed and, after the appropriate hearing under Fed.R.Civ.P. 11, accepted appellant's plea of guilty to the information and entered a judgment of guilty on appellant's plea. Appellant was continued on bond. 2
On December 11, 1985, Holmes appeared before the district court for sentencing. The court imposed a sentence of a $10,000 fine and one year in prison. The court granted appellant's motion that he be allowed to self-surrender, and directed that appellant report to his designated place of confinement on February 18, 1986, to commence the service of his sentence to imprisonment. The court also imposed a $50 special assessment pursuant to 18 U.S.C. Sec. 3013. Then, on the government's motion, the court ordered the indictment dismissed.
Later in the day on December 11, 1985, after he was sentenced, appellant promptly tendered the $10,000 fine in full to the deputy clerk of the United States District Court in Hattiesburg, which the clerk thereupon accepted and receipted for. Appellant paid the $50 special assessment the following day. On December 17, appellant filed a Rule 35(a) 3 motion to vacate as illegal that part of his sentence ordering imprisonment. The district court denied that motion on January 2, 1986, holding that imposing both a fine and imprisonment was proper because appellant had pleaded guilty to more than one act of contempt and that, even if the information were to be construed as charging only one contempt, the prison sentence was lawful in any event because only the prison term was based on the contempt statute and the imposition of a fine was a proper additional sentence under 18 U.S.C.A. Sec. 3623, an "alternative fines" provision. Holmes appeals the denial of his Rule 35 motion to vacate the prison sentence. 4
We emphasize at the outset that the only issue before this Court is the district court's denial of appellant's Rule 35 motion to correct his sentence by vacating what he contends is the illegal imprisonment portion thereof. Appellant does not challenge his guilty plea or conviction or any of the procedures leading thereto. The question presented is whether the punishment ordered by the court comports with the governing statutes. 5
The issues presented by appellant, stated in the order this opinion addresses them, are: (1) whether both a fine and imprisonment can be imposed under the authority of section 401 for a single contempt offense (2) whether he was convicted of, charged with, and pleaded guilty to only one contempt offense; (3) whether section 3623 provided independent authority for the district court's imposition of the fine in addition to the prison term; and (4) whether, if the foregoing issues are resolved in appellant's favor, his payment of the fine precludes his hereafter being resentenced to imprisonment without a fine.
The contempt statute is one of only a very few provisions in Title 18 that allow a court to impose either a fine or imprisonment but not both. 6
The government does not ask that we read section 401 in any way contrary to its plain language and concedes that only a fine or imprisonment may be imposed for a single contempt offense under section 401 alone, without reference to section 3623. This reading of the statute is consistent with that of the Supreme Court 7 and the Circuit Courts, 8 and we follow and apply that long-standing disjunctive interpretation. Therefore, by the terms of section 401, for each offense thereunder the court may impose a fine or imprisonment, but the imposition of both is forbidden as to any one offense.
We turn now to the government's argument that appellant was convicted of multiple offenses under section 401. We reject this contention, as our review of the proceedings below compels the conclusion that appellant was charged with and pleaded to only a single contempt offense, and was convicted and sentenced accordingly.
As above-indicated, the indictment against appellant plainly charged him with five distinct offenses, each in a separately numbered count. Pursuant to the plea agreement, however, Holmes pleaded guilty to an information, and the government dismissed the indictment. The information reads as follows:
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Hipp, Inc., Matter of
...order or contemptuous conduct. 13 Oles claimed his privilege and did not testify. 14 Though not by both. See, e.g., United States v. Holmes, 822 F.2d 481 (5th Cir.1987). Section 401 provides as "Sec. 401. Power of court "A court of the United States shall have power to punish by fine or imp......
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US v. Lov-It Creamery, Inc.
...to 15 U.S.C. § 714m. The Magistrate, based on his reading of the limiting language of section 714(e) and of United States v. Holmes, 822 F.2d 481, 495 (5th Cir.1987), found that 18 U.S.C. § 3623 could not increase the maximum penalty where there is a specific statute limiting the penalty to......
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Nixon v. US, H88-0052(G).
...held that Holmes had satisfied his sentence and, thus, that his sentence of one year imprisonment had to be vacated. United States v. Holmes, 822 F.2d 481 (5th Cir.1987). 5 Petitioner testified that he told Holmes about Wiley Fairchild's blackmail charge against Holmes. Holmes testified tha......
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U.S. v. Elkins
...than the amount specified in the statute. See generally United States v. Cha, 837 F.2d 392, 394 (9th Cir.1988); United States v. Holmes, 822 F.2d 481, 495 (5th Cir.1987). Defendant could have been fined twice the gross gain from the sale of the planes, unless imposition of such a large fine......