U.S. v. Markus, 641

• Decision Date: 03 August 1979
• Docket Number: No. 641,D,641
• Parties: UNITED STATES of America, Appellee, v. Lewis MARKUS, Defendant-Appellant. ocket 78-1400.
• Court: U.S. Court of Appeals — Second Circuit

Page 409

603 F.2d 409

UNITED STATES of America, Appellee, v. Lewis MARKUS, Defendant-Appellant.

No. 641, Docket 78-1400.

United States Court of Appeals, Second Circuit.

Argued March 7, 1979.

Decided Aug. 3, 1979.

Roger A. Lowenstein, Newark, N. J. (Lowenstein, Sandler, Brochin, Kohl & Fisher, Newark, N. J., of counsel), for defendant-appellant.

Lawrence F. Ruggiero, Asst. U. S. Atty., New York City (Robert B. Fiske, Jr., U. S. Atty. for the Southern District of New York, Howard W. Goldstein, Asst. U. S. Atty., New York City, of counsel), for appellee.

Before FRIENDLY, SMITH and MANSFIELD, Circuit Judges.

MANSFIELD, Circuit Judge:

Lewis Markus appeals from an order of the United States District Court for the Southern District of New York, Edward Weinfeld, Judge, entered on October 26, 1978, denying Markus' motion to reduce his sentence pursuant to Rule 35 of the Federal Rules of Criminal Procedure. Markus contends that his sentence, imposed on September 12, 1978, after a guilty plea, violates the Double Jeopardy and Due Process Clauses.

Markus was originally indicted in the Southern District of New York on April 11, 1975. That indictment, 75 Cr. 365, contained three counts. The first count charged that Markus and three co-defendants conspired to pass and sell two counterfeit United States Treasury Bills in $100,000 denominations, in violation of 18 U.S.C. § 371. Count Two charged the defendants with possession of the counterfeit Treasury Bills with the intent to defraud, in violation of 18 U.S.C. §§ 472 and 2. Count Three charged the defendants with selling the two counterfeit Treasury Bills with the intent that they be passed and published as true and genuine, in violation of 18 U.S.C. §§ 473 and 2.

Markus was also indicted in the Eastern District of Louisiana on October 2, 1975. That indictment was transferred pursuant to Rule 20, Fed.R.Crim.P., to the Southern District of New York on January 22, 1976, and became 76 Cr. 73. In Count One of that indictment Markus was charged with conspiracy to make false statements to a bank, in violation of 18 U.S.C. § 371. Three other counts charged Markus with substantive violations of 18 U.S.C. §§ 1014 and 2 (false statements upon an application to a federal agency or bank for a loan).

On February 19, 1976, Markus pleaded guilty before Judge Werker of the Southern District of New York to Counts One and Three of 75 Cr. 365 and to all four counts of 76 Cr. 73. ¹ On April 30, 1976, Judge Werker sentenced Markus to five years' imprisonment on Count One of 75 Cr. 365 and ten years' imprisonment on Count Three of 75 Cr. 365, the sentences to run concurrently.

In 76 Cr. 73, Markus was sentenced to five years' imprisonment on Count One, to run concurrently with sentences of one year imprisonment on each of Counts Two, Three and Four. All sentences in 76 Cr. 73 were to run consecutively to the sentences in 75 Cr. 365. The sentences in 75 Cr. 365 were to run concurrently with a five-year term of imprisonment imposed on April 26, 1976, in the District of New Jersey for securities fraud. Thus the combined sentences imposed on Markus in 75 Cr. 365 and 76 Cr. 73 totalled fifteen years.

On March 14, 1978, Markus filed a motion to vacate the convictions in 75 Cr. 365 and 76 Cr. 73 pursuant to 28 U.S.C. § 2255. The only portion of the motion relevant to this appeal was Markus' contention that there was an inadequate factual basis for his guilty plea in 75 Cr. 365. At his allocution, Markus had stated that "I didn't know the (Treasury) bill was a counterfeit. I thought it was stolen, that is the truth of the matter, and then later on I found out it was counterfeit when the agent told me it was counterfeit." On July 10, 1978, Judge Werker ruled that the record was "devoid of any statements which would suffice to show that Markus knew that the bills were counterfeit." Since the Government conceded that in order to secure a conviction in 75 Cr. 365 it would have had to prove beyond a reasonable doubt that Markus knew the bills were counterfeit at the time of the conspiracy and sale, Judge Werker "reluctantly" vacated the judgment of conviction on the two counts in 75 Cr. 365. ²

The Government filed a superseding information in 75 Cr. 365 on August 25, 1978, charging Markus with conspiracy to defraud the United States by attempting to sell "purportedly stolen" Treasury Bills in $100,000 denominations, in violation of 18 U.S.C. § 371. Markus pleaded guilty that same day before Judge Weinfeld. On September 12, 1978, Judge Weinfeld sentenced Markus to five years' imprisonment to run consecutive to various other federal sentences then being served by the defendant: (1) the five-year term imposed in the District of New Jersey on April 26, 1976, for securities fraud; (2) the five-year term and concurrent one-year terms imposed by Judge Werker on April 30, 1976, in 76 Cr. 73; (3) a four-year term imposed on October 22, 1976, in the Western District of Kentucky for violating 18 U.S.C. § 1014, to run concurrently with the New Jersey and 76 Cr. 73 sentences; (4) a five-year term imposed on December 8, 1976, in the Eastern District of Louisiana for interstate transportation of forged securities, to run concurrently with the previous sentences; (5) a two-year term imposed on March 29, 1977, in the Northern District of Ohio for violating 18 U.S.C. § 1014, to run concurrently with the previous sentences.

By letter dated September 21, 1978, Markus moved pursuant to Rule 35, Fed.R.Crim.P., to modify the sentence imposed by Judge Weinfeld so as to make it run concurrently with the other federal sentences. Markus argued that if the sentence remained a consecutive one, he would be denied credit for time already served pursuant to Judge Werker's original sentence in 75 Cr. 365 in violation of the Double Jeopardy Clause. Markus also contended that the imposition of a consecutive sentence instead of the concurrent sentence previously imposed by Judge Werker impermissibly increased his sentence in violation of the Due Process Clause.

Judge Weinfeld denied the motion by order filed October 27, 1978. He ruled that the issue of credit for time served was governed by 18 U.S.C. § 3568 and therefore Markus should bring an "appropriate proceeding" pursuant to that statute at such time as he might believe he was entitled to release. Judge Weinfeld also noted that "the sentence imposed by this Court is half Markus now appeals the denial of his Rule 35 motion. He argues that both the Double Jeopardy Clause and the Due Process Clause have been violated, and that North Carolina v. Pearce, supra, mandates a concurrent sentence in 75 Cr. 365.

that imposed by Judge Werker a total of ten years on the several counts of the indictment before him which sentences were vacated." Judge Weinfeld concluded that "(t)he attempt to bring this matter, which was based upon a subsequent information, within North Carolina v. Pearce, 395 U.S. 711 (89 S.Ct. 2072, 23 L.Ed.2d 656) (1969), is without substance."

DISCUSSION

The Double Jeopardy Clause "absolutely requires that punishment already exacted must be fully 'credited' in imposing sentence upon a new conviction for the same offense." North Carolina v. Pearce, supra, 395 U.S. at 718-19, 89 S.Ct. at 2077 (footnote omitted). See also 18 U.S.C. § 3568 ("The Attorney General shall give such (convicted) person credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed"). Markus contends that he is being denied credit for time served, based on a letter from one D.W. Storer, Records System Manager for the Bureau of Prisons at the United States Penitentiary in Lewisburg, Pennsylvania. ³

The simple answer to this contention is that Markus has not been denied credit for time served. The sentence in 76 Cr. 73 was to be consecutive to the five- and ten-year terms originally imposed in 75 Cr. 365. When the conviction in 75 Cr. 365 was vacated in 1978, the Bureau of Prisons retroactively treated the sentence imposed in 76 Cr. 73 as having begun on April 30, 1976, and as having run concurrently with the District of New Jersey sentence. Thus the time served on the original sentence in 75 Cr. 365 has been fully credited by the Bureau of Prisons to the sentence in 76 Cr. 73. This satisfies the dictates of North Carolina v. Pearce, supra, which was intended to assure fundamental fairness to a sentenced defendant by precluding imposition upon him of "multiple punishments for the same offense," 395 U.S. at 717, 89 S.Ct. at 2076, and did not consider the converse issue presented here, which is whether a prisoner convicted of multiple offenses is entitled as of right to apply one punishment to all offenses. We are confident that the Court in Pearce did not intend its decision to be construed as entitling a prisoner to Double credit for time served. ⁴ See in accord, Thacker v. Garrison, 527 F.2d 1006 (4th Cir. 1975) (per curiam).

Appellant also argues that his sentence has been impermissibly increased in violation of the Due Process Clause. He contends that the maximum penalty to which he can be subject on the conspiracy count of 75 Cr. 365 is the concurrent five-year term originally imposed by Judge Werker.

The Due Process Clause "requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial," and even the "apprehension of such a retaliatory motivation" must be removed. North Carolina v. Pearce, supra, 395 U.S. at 725, 89 S.Ct. at 2080. Therefore, "whenever a judge imposes a more severe sentence upon a defendant after a new trial (or a new guilty plea), the reasons for his doing so must affirmatively appear" in the record, with those reasons being based on "objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding." Id. at...