U.S. v. Miller

• Decision Date: 13 November 1978
• Docket Number: No. 77-3173,77-3173
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lawrence Victor MILLER, a/k/a Larry Miller, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1256

588 F.2d 1256

UNITED STATES of America, Plaintiff-Appellee, v. Lawrence Victor MILLER, a/k/a Larry Miller, Defendant-Appellant.

No. 77-3173.

United States Court of Appeals, Ninth Circuit.

Nov. 13, 1978.

As Amended an Denial of Rehearing and Rehearing En Banc Jan. 3, 1979.

Paul A. Mansfield, of San Jose, Cal., David S. Koslow (argued), of Hertzberg, Kaplan & Koslow, Los Angeles, Cal., for defendant-appellant.

James E. White, Asst. U. S. Atty. (argued), Fresno, Cal., Robert S. Griswold, Jr. (argued), San Francisco, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of California.

Before BROWNING, CARTER and ANDERSON, Circuit Judges.

JAMES M. CARTER, Circuit Judge:

Appellant Larry Miller was convicted of three counts of a twenty-one count information charging criminal contempt for violation of a court-ordered injunction, 18 The United States contends:

U.S.C. § 401(3). He appeals both his conviction and his sentence.

(1) the appeal is procedurally defective because Miller failed to move below for correction or reduction of his sentence under Fed.R.Crim.P. 35.

Miller contends:

(2) the district court lacked subject matter jurisdiction;

(3) the prosecution under count 1 was barred by the one year statute of limitations for criminal contempt, 18 U.S.C. § 3285;

(4) the injunctive order lacked the specificity required to apprise Miller of the conduct which was prohibited;

(5) the acts resulting in his conviction were not proscribed by the injunction; and

(6) the fine and sentences imposed are excessive in violation of the law and unsupported by the evidence.

We reach the substance of Miller's appeal, but find no merit in his contentions. We affirm.

FACTS

On August 27, 1974, the Interstate Commerce Commission (ICC) filed a civil action against Larry Miller, Kern River Valley Growers Agricultural Cooperative, and other defendants to enjoin them from transporting property for compensation on public highways without obtaining necessary authorization from the ICC, in violation of § 222(b)(1) of the Interstate Commerce Act, 49 U.S.C. § 322(b)(1). Upon default by all defendants judgment was entered together with Findings of Fact and Conclusions of Law which, Inter alia, enjoined Miller

" . . . from, directly or indirectly, individually or in concert or in participation with others, performing transportation of property for compensation on public highways by motor vehicle, unless there is in force with respect to said transportation a certificate of public convenience and necessity, permit, license, or other form of authority issued by the (ICC) authorizing such transportation where such authority is required."

No appeal was taken from this judgment.

About sixteen months later, in April, 1976, the United States filed the information from which Miller now appeals. The information charged 21 counts of criminal contempt, 18 U.S.C. §§ 401(3) & 402, for engaging in transportation without authority subsequent to the entry of the injunctive order above. Miller filed numerous motions against the information all of which were denied. He then pleaded not guilty and agreed to submit the case to the district judge for a decision without a jury. In the Waiver and Stipulation of Fact upon which the case was submitted, Miller conceded the facts underlying the charges in counts 1, 18 and 19.

Briefly, the stipulated facts are that on three separate occasions (January 23, 1975; December 17, 1975; and December 18, 1975) Miller participated with Golden Coast Co-op as its organizer and principal managing official to solicit and engage in transportation of printing paper, pulpboard, toothpicks, plastic ware and wooden ware to designated cities. The compensation for these services was $1,484.00, $810.00 and $1240.00, respectively. The transportation occurred without authorization or exemption from authorization by the ICC.

The trial judge found Miller guilty of counts 1, 18 and 19 and referred the matter to the Probation Office for a presentence report. On the advice of counsel, Miller refused to make a statement to the probation officer. ¹ This left unrefuted the government's allegations to the probation department that Miller, operating as Golden Coast Co-op, engaged in at least 85 illegal acts of transportation resulting in receipts over the 11/2 year period of over $2.8 million.

The report concluded from the information supplied by the ICC that "Miller was known to have handled over $3,000,000, all of which seems to flow from his illegal trucking operations."

Only Paul A. Mansfield represented Miller in the trial court.

In addition the report showed that Miller had a criminal record involving such offenses as armed robbery, repeated possession of illegal fireworks and possession of stolen money orders. His numerous violations of the ICC rate tariffs were found to be destructive to the legitimate trucking industry. The report concluded that Miller's conduct was indicative of his marked pattern of disregard for the law and the courts in order to achieve financial gain and recommended both confinement and a fine.

At the sentencing the district judge entertained argument about these and other relevant factors. In response to a question from the bench about what kind of fine would be appropriate, Miller's counsel responded "I think a fine here in the area of $35- to $50,000 would be totally adequate." The judge then sentenced Miller to one year each for counts 1 and 18, to run concurrently. He fined Miller $100,000 on count 19 and ordered him to be committed until the fine was paid or otherwise discharged by due course of law.

NECESSITY FOR A RULE 35 MOTION

The United States contends a defendant cannot seek review of a sentence without first moving under Rule 35 of the Federal Rules of Criminal Procedure for correction or reduction of the sentence. ² However, general appellate treatment of sentencing claims implies there is no requirement that contemnors utilize Rule 35 before appealing their sentence.

In non-contempt cases appellate review of sentences which fall within the statutory limits is sharply restricted. Only if the sentence is procedurally defective or the result of abusive reliance on impermissible factors will review be afforded. United States v. Kearney, 560 F.2d 1358, 1369 (9 Cir. 1977) Cert. denied, 434 U.S. 971, 98 S.Ct. 522, 54 L.Ed.2d 460 (1977); United States v. Lustig, 555 F.2d 737, 751 (9 Cir. 1977), Cert. denied, 434 U.S. 1045, 98 S.Ct. 889, 54 L.Ed.2d 795 (1978); United States v. Buck, 548 F.2d 871, 877 (9 Cir. 1977) Cert. denied, 434 U.S. 890, 98 S.Ct. 263, 54 L.Ed.2d 175 (1977); United States v. Daniels, 446 F.2d 967, 969-70 (6 Cir. 1971). Therefore it has been held in these circumstances that a challenge to a sentence as excessive must be made under Rule 35 to the trial court. United States v. Weiner, 418 F.2d 849, 851 (5 Cir. 1969); Robbins v. United States, 345 F.2d 930 (9 Cir. 1965).

On the other hand, sentences for contempt under 18 U.S.C. § 401(3), because not subject to a statutory upper limit, are directly reviewable and can be revised by an appellate court. Green v. United States, 356 U.S. 165, 188-89, 78 S.Ct. 632, 2 L.Ed.2d 672 (1958); United States v. Leyva, 513 F.2d 774, 779 (5 Cir. 1975); Mitchell v. Fiore, 470 F.2d 1149, 1155 (3 Cir. 1972), Cert. denied, 411 U.S. 938, 93 S.Ct. 1899, 36 L.Ed.2d 399 (1973); United States v. Bukowski, 435 F.2d 1094, 1110 (7 Cir. 1970), Cert. denied, 401 U.S. 911, 91 S.Ct. 874, 27 L.Ed.2d 809 (1971). Although the courts might have required that defendants exhaust their remedies under Rule 35 before seeking review of a contempt sentence, appellate review generally seems to have been afforded without such a requirement. See, e. g., Mitchell v. Fiore, supra 470 F.2d at 1149; In re Chase, 468 F.2d 128 (7 Cir.

1972); United States v. Bukowski, supra 435 F.2d at 1094; United States v. Snyder, 428 F.2d 520 (9 Cir. 1970), Cert. denied, 400 U.S. 903, 91 S.Ct. 139, 27 L.Ed.2d 139 (1970); United States v. Leyva, supra 513 F.2d at 774. We decline to impose a requirement on Miller that he move for a reduction of his sentence under Rule 35 prior to appealing his sentence.

SUBJECT MATTER JURISDICTION

The underlying injunction against Miller resulted from a civil action which was filed by the ICC in its own name, but handled by the United States Attorney. Miller contends 28 U.S.C. §§ 2321-2323 require the action to have been instituted by the Attorney General in the name of the United States. Therefore he argues that the injunction is defective, depriving the district court of subject matter jurisdiction over the contempt charges.

28 U.S.C. §§ 2321-2323 provide in relevant part:

S 2321

"(b) The procedure in the district courts in actions to enforce, in whole or in part, any Order of the (ICC) . . . shall be as provided in this chapter." (Emphasis added.)

S 2322

"All actions specified in section 2321 of this title shall be brought by or against the United States."

S 2323

"The Attorney General shall represent the Government in the actions specified in section 2321 of this title . . . ."

Miller's contention is without merit for two reasons. First, these sections require the Attorney General to institute suit on behalf of the United States only to enforce an Order of the ICC. The underlying injunctive suit in this case was brought to enforce the Interstate Commerce Act directly, not an order of the Commission. Miller argues that the term "order" should be broadly construed to encompass any action which has the effect of enforcing a "decision of the Interstate Commerce Commission." Yet notwithstanding Miller's analysis of the cases there is no authority for such a broad construction of these sections. An order of the ICC is an official action directing identified parties to act or cease to act in a specified manner. Absent an actual order of the ICC which is the subject of an enforcement proceeding, 28 U.S.C....