U.S. v. Niemiec

• Decision Date: 23 September 1982
• Docket Number: No. 81-3066,81-3066
• Citation: 689 F.2d 688
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Walter A. NIEMIEC, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 688

689 F.2d 688

UNITED STATES of America, Plaintiff-Appellee, v. Walter A. NIEMIEC, Defendant-Appellant.

No. 81-3066.

United States Court of Appeals, Seventh Circuit.

Argued June 11, 1982.

Decided Sept. 23, 1982.

John R. Stanish, Hammond, Ind., for defendant-appellant.

Charles B. Miller, Asst. U.S. Atty., Hammond, Ind., for plaintiff-appellee.

Before PELL and COFFEY, Circuit Judges, and EAST, Senior District Judge. ^*

COFFEY, Circuit Judge.

Appeal from the United States District Court for the Northern District of Indiana. This case is an appeal from the denial of the defendant-appellant's motion to set aside an order which stated in part, "the execution of the remainder of the sentence of imprisonment is hereby suspended...." Affirmed.

The defendant-appellant, Walter A. Niemiec, was convicted of perjury in violation of 18 U.S.C. § 1623. The trial judge, Judge McNagny, became ill and underwent emergency surgery after the defendant's trial and was unable to be present in court to sentence the defendant. District Judge (now Circuit Judge) Jesse E. Eschbach was assigned to sentence the defendant pursuant to Federal Rule of Criminal Procedure 25, which recites as follows:

"Judge; Disability

(b) After Verdict or Finding of Guilty. If by reason of absence, death, sickness or other disability the judge before whom the defendant has been tried is unable to perform the duties to be performed by the court after a verdict or finding of guilt, any other judge regularly sitting in or assigned to the court may perform those duties;"

Fed. R. Crim. P. 25(b). Judge Eschbach met with the same sentencing council which had advised Judge McNagny, and informed the defendant in open court:

"I have been advised by the Chief Probation Officer, who discussed this matter with Judge McNagny not only during the sentencing council meeting but thereafter, that it is in line with that which Judge McNagny had determined to impose, and that Judge McNagny was convinced that there was guilt on count four (the perjury count) beyond a reasonable doubt."

Thereafter, on April 27, 1979, Judge Eschbach entered the Judgment and Probation/Commitment Order, which reads in pertinent part:

"The defendant is hereby committed to the custody of the Attorney General or his authorized representative for imprisonment for a period of one (1) year to be served. Fine-$3,000.00 plus the costs of this action."

Niemiec surrendered himself to the Federal Prison Camp in Marion, Illinois and began serving his sentence. Shortly thereafter, he filed a motion for reduction of sentence:

"MOTION FOR REDUCTION OF SENTENCE

Defendant, Walter A. Niemiec, sentenced on April 27, 1979, for a term of one year, and fined in the sum of Three Thousand ($3,000.00) Dollars, for violation of Title 18, Section 1623, of the United States Code, moves for a reduction of his sentence to a term of one year and a day, or that the remainder of his sentence be suspended and defendant placed on probation for the following reasons:

Defendant began serving his sentence on March 27, 1980, at the Federal Prison Camp, at Marion, Illinois. Approximately three weeks later, defendant was transferred to the Federal Prison Camp, at Lexington, Kentucky, where he is now.

That the reason for defendant's transfer is the condition of his health, as discovered at Marion and at Lexington: the defendant has high blood pressure, an enlarged heart, and kidney disease. The defendant requires surgery on his kidney, medication for his heart and blood pressure, and a special diet for his general condition. Defendant has other ailments and requires other treatment, all of which are unknown to the attorney for defendant, but are more particularly known by the medical staff of the Federal Prison Bureau."

As can be seen from a reading of the petition, the defendant fails to request a reduction of the fine and/or court costs. The defendant later informed the court that he had undergone surgery to his kidney, and was found to have cancer and heart disease. The defendant recited that he required specialized treatment to prevent the spread of the cancer and further stated that the treatment for his heart disease and his special diet were not available to him while he remained incarcerated. The defendant again failed to mention or request a reduction of the fine and costs.

In response to the defendant's motions, on September 9, 1980, District Judge McNagny, whose health had improved enough at that time to allow him to return to the bench, on this date reduced the defendant's sentence of confinement with a written order which reads in part as follows:

"The Court has been advised and has confirmed that Mr. Niemiec is suffering from cancer and heart disease. The Court finds that it would be in the interests of justice to GRANT defendant's motion.

It Is Adjudged that the defendant is hereby committed to the custody of the Attorney General or his authorized representative for imprisonment for a term of one (1) year; and on the condition that the defendant be confined in a jail type or treatment institution for a period of six (6) months, the execution of the remainder of the sentence of imprisonment is hereby suspended and the defendant is placed on probation for a period of five (5) years to commence upon the defendant's release from confinement." (Emphasis supplied)

After Niemiec had completed serving his reduced prison sentence and was released on probation, he recited that it was his position that Judge McNagny's order reducing his sentence had the effect of relieving him from the obligation of paying the $3,000.00 fine and court costs and therefore refused to pay the same. After Judge McNagny was advised that Niemiec refused to pay the fine and costs, Judge McNagny, sua sponte, issued an order dated March 17, 1981 which was served on the parties, amending the court order of September 9, 1980, stating:

"Since it was never the intention of the Court to relieve the defendant from paying these costs it is ORDERED that the Order of September 9, 1980, be AMENDED to include the payment of the $3,000.00 fine and Court costs."

Judge McNagny died on March 28, 1981 and as a result of his death the defendant's case was reassigned to District Judge Lee (see Rule 25 of the Federal Rules of Criminal Procedure). Niemiec moved the court to correct the March 17th order and further asked that the March 17th order be vacated, set aside and/or reduced, and on December 14, 1981 Judge Lee denied this motion. The defendant appeals from this denial.

Issue: Did the district court abuse its discretion in denying the defendant's motion to correct the order of March 17, 1981?

The appellant lists several grounds for reversal of the district court order denying his motion to correct the order of March 17th. Initially, the defendant argues that the order reducing his prison sentence also eliminated the $3,000.00 fine and court costs. The defendant further asserts that when the district court clarified its position and amended the previous order to include the $3,000.00 fine and court costs, he contends the court, in effect, increased his punishment and placed him in double jeopardy. Moreover, it is the defendant's position that because this order increased the penalty which had previously been imposed, he should have been present in open court at the time the March 17th order was issued. Finally, the defendant asserts that the September 9th order reducing the sentence was unambiguous and thus the trial court was incorrect in relying upon Rule 36 of the Federal Rules of Criminal Procedure and relevant case law to correct what the court perceived as an ambiguity in the order of September 9th. We agree with the defendant that the September 9th order was unambiguous and hold that it merely reduced the defendant's term of incarceration and did not mention the fine and costs and thus left them in a status quo position, unchanged and unaltered.

Initially, we address the defendant's argument that Judge McNagny's September 9th order relieved him (Niemiec) of his liability for the $3,000.00 fine and court costs. We address this issue first for if the September 9th order only reduced the defendant's prison sentence and if the order left intact the original $3,000.00 fine and costs, we need not reach the defendant's arguments that he was subjected to double jeopardy and should have been present in court when the new order of March 17th was issued.

In his motion for reduction of sentence, the defendant moved as follows:

"Defendant, Walter A. Niemiec, sentenced on April 27, 1979, for a term of one (1) year, and fined in the sum of Three Thousand Dollars ($3,000.00) for violation of Title 18, Section 1623, of the United States Code, moves for a reduction of his sentence to a term of one (1) year and a day, or that the remainder of his sentence be suspended and defendant placed on probation...." (Emphasis supplied)

The above quoted motion for reduction of sentence makes no reference to a request for cancellation or reduction of the fine and court costs imposed in the original judgment and commitment order. Moreover, in the September 9th order granting the defendant's motion for reduction of sentence, Judge McNagny found it would be in the interest of justice to grant the defendant's motion for a reduction in his term of commitment because of the defendant's health problems. The judge recited that the time of incarceration only should be reduced and reasoned that because of the defendant's multiple and serious health problems the "remainder of the defendant's sentence of imprisonment (was) suspended." The defendant did not request a reduction of the fine and court costs in the moving motion papers, and nowhere in his order of September 9th does Judge McNagny even mention the $3,000.00 fine and costs originally imposed by Judge Eschbach. Because the defendant requested a reduction of his sentence of confinement and did not mention or request a...