U.S. v. U.S. Dist. Court, Central Dist. of California, s. 74--1827

• Decision Date: 20 January 1975
• Docket Number: 74--2134 and 74--2135,Nos. 74--1827,s. 74--1827
• Parties: UNITED STATES of America, Petitioner, v. UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA, Respondent; Maurice H. FRIEDMAN and John Rosselli, Real Parties in Interest. UNITED STATES of America, Plaintiff-Appellant, v. Maurice H. FRIEDMAN, Defendant-Appellee. UNITED STATES of America, Plaintiff-Appellant, v. John ROSSELLI, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1352

509 F.2d 1352

32 A.L.R.Fed. 904

UNITED STATES of America, Petitioner, v. UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF

CALIFORNIA, Respondent;

Maurice H. FRIEDMAN and John Rosselli, Real Parties in Interest.

UNITED STATES of America, Plaintiff-Appellant, v. Maurice H. FRIEDMAN, Defendant-Appellee.

UNITED STATES of America, Plaintiff-Appellant, v. John ROSSELLI, Defendant-Appellee.

Nos. 74--1827, 74--2134 and 74--2135.

United States Court of Appeals, Ninth Circuit.

Jan. 20, 1975.

Certiorari Denied May 12, 1975.

See 95 S.Ct. 1949.

Hugh W. Blanchard, Asst. U.S. Atty. (argued), Los Angeles, Cal., for petitioner-appellant.

Marvin G. Claitman (argued), Los Angeles, Cal., for appellee Friedman.

Leslie Scherr (argued), Washington, D.C., for appellee Rosselli.

Before WRIGHT and CHOY, Circuit Judges, and BURNS, ^* District Judge.

OPINION

CHOY, Circuit Judge:

The Government appeals from district court orders reducing fines assessed against Rosselli and Friedman. The Government also petitions this court for a writ of mandamus ordering the district court to vacate its orders. We grant the writ.

Statement of Facts

Friedman and Rosselli were tried together in the Central District of California and convicted on December 2, 1968 on several counts for violating 18 U.S.C. §§ 371, 1952, 2314. ¹ Rosselli was sentenced to five years imprisonment, fined $55,000 and was ordered to 'stand committed' until the fine was paid. Friedman's sentence consisted of a six year prison term, a fine of $100,000 and a 'stand committed' order until the fine was paid. On December 22, 1970, this court affirmed on all counts the judgment against Rosselli, and reversed Friedman's conviction on one count while affirming all remaining counts. On February 22, 1971 the Supreme Court denied Rosselli's petition for a writ of certiorari and filed the order that day. United States v. Roselli (sic), 401 U.S. 924, 91 S.Ct. 883, 27 L.Ed.2d 828 (1971). However, notification of the Supreme Court's action was not mailed to this court until March 2, 1971 and not received until one day later. Notification of the denial of certiorari was never sent to the district court.

On June 28, 1971 Rosselli filed in the district court a motion for reduction of sentence. On October 18, 1971 the district court ordered a reduction in the term, denied for the time being the request to reduce the fine, but specifically stated it was retaining jurisdiction over the matter of the fine. Several months later, Rosselli moved for a reduction of the fine, but the court on March 6, 1973 merely vacated the 'stand committed' order. A year later, Rosselli again moved the court to reduce the fine, and on March 25, 1974 the court reduced the fine to $10,000.

Friedman originally moved for a reduction of sentence on February 23, 1971, 62 days after the district court received this court's mandate affirming his conviction. On May 3, 1972, the court reduced Friedman's sentence to time served. Almost two years later, on February 4, 1974, Friedman filed a motion to clarify the order reducing sentence or, in the alternative, to reduce sentence. The district court on March 25, 1974 reduced the fine to $75,000 and then, in a modifying order on April 18, 1974, further reduced the fine by $25,000.

Uncertain whether the proper procedure to obtain review in this court of the sentence reduction orders was by appeal or by petition for a writ of mandamus, the Government pursued both methods. On April 24, 1974 the Government appealed directly from the March 25 orders, and on May 8, 1974 filed a petition for writ of mandamus to vacate the district court orders of March 25 and April 18, 1974. The appeals and the petition have been consolidated for disposition by this court. However, since we conclude that a writ should issue in this case, we need not consider the direct appeal nor decide whether an order to reduce sentence under F.R.Crim.P. 35 is appealable by the Government. United States v. Mehrtens, 494 F.2d 1172, 1174 (5th Cir. 1974).

Petition for Writ of Mandamus

Friedman and Rosselli, the real parties in interest in the action for the writ, contend that this court should in the exercise of discretion deny the petition without ever reaching the merits. Although it is well established that granting of a writ of mandamus is an extraordinary remedy and lies in the sound discretion of the court (United States v. Lane, 284 F.2d 935, 939 (9th Cir. 1960); United States v. Carter, 270 F.2d 521, 524 (9th Cir. 1959)), writs have been issued, in cases similar to the present one, directing a district court to vacate an invalid order suspending sentence. See e.g., Ex parte United States, 242 U.S. 27, 37 S.Ct. 72, 61 L.Ed. 129 (1916); United States v. Regan, 503 F.2d 234 (8th Cir. 1974); United States v. Mehrtens,supra; United States v. Gibbs, 285 F.2d 225 (9th Cir. 1960); United States v. Lane, supra. Friedman and Rosselli do not contend that laches or other equitable circumstances exist militating against the writ (see United States v. Old, 426 F.2d 562 (3d Cir. 1970); United States v. Carter, supra), and we find no valid reason to refrain from considering the petition.

Rule 35 stF.R.Crim.P. 35 provides in part:

The court may reduce a sentence within 120 days after the sentence is imposed, or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 120 days after entry of any order or judgment of the Supreme Court denying review of, or having the effect of upholding, a judgment of conviction.

Because F.R.Crim.P. 45(b) states that the court may not enlarge the period for taking action under Rule 35, the 120 day requirement in Rule 35 is a mandatory one. Thus, unless the 120 day requirement is met, the court has no jurisdiction or power to alter sentence. United States v. Regan, 503 F.2d at 237; United States v. Mehrtens, 494 F.2d at 1176; Peterson v. United States, 432 F.2d 545, 546 (8th Cir. 1970); United States v. Ellenbogen, 390 F.2d 537, 541 (2d Cir), cert. denied 393 U.S. 918, 89 S.Ct. 241, 21 L.Ed.2d 206 (1968); Irizzary v. United States, 58 F.R.D. 65, 66--67 (D.Mas.1973). See also United States v. Marchese, 341 F.2d 782, 788 (9th Cir.), cert. denied 382 U.S. 817, 86 S.Ct. 41, 15 L.Ed.2d 64 (1965).

Rosselli's Case

The Government contends that the 120 day period for Rosselli began to run on February 22, 1971, the day the Supreme Court denied Rosselli's petition for certiorari. Since Rosselli's original motion to reduce sentence was not filed until June 28, 1971--125 days after the Supreme Court action--the Government argues that the district court was without power later to reduce sentence in March 25, 1974. ²

The validity of this argument depends on an interpretation of Rule 35, specifically the phrase: '. . . within 120 days after entry of any order or judgment of the Supreme Court denying review of, or having the effect of upholding, a judgment of conviction.' Emphasis added) Rosselli contends that 'entry' does not refer to entry on the Supreme Court docket sheet, but to entry or filing at the court of appeals or at the district court. If Rosselli's contention is correct, his motion was timely since notice of denial of the petition for certiorari was not filed in this court until March 3, 1971 and still has not been filed at the district court.

Before the 1966 amendments to Rule 35, the Rule read in part: 'The court may reduce a sentence . . . within 60 days after receipt of an order of the Supreme Court denying an application for a writ of certiorari.' (emphasis added) The Advisory Committee Note to Amended Rule 35 states the reason for the change:

If the writ were denied, the last phrase of the rule left obscure the point at which the period began to run because orders of the Supreme Court denying applications for writs are not sent to the district courts. See Johnson v. United States, 235 F.2d 459 (5th Cir. 1956). . . . The amendment makes it clear that . . . the 120-day period commences to run with the entry of the order or judgment of the Supreme Court.

Thus, the history of the rule and the Advisory Committee Note are consistent with the plain meaning of the amended rule that the 120 day period begins to run the day of the Supreme Court order and entry on its own docket sheet. See Peterson v. United States, 432 F.2d 545, 546 (8th Cir. 1970). The district court, therefore, had no power to reduce Rosselli's fine on March 25, 1974. ³

Friedman's Case

It is undisputed that Friedman's original motion to reduce sentence, filed on February 23, 1971, was filed well within the 120 day period. Acting on the motion, the district court on May 3, 1972 ordered reduction of the prison term to time served. ⁴ Friedman's second motion to reduce sentence was not filed until February 4, 1974, more than three years after the original 120 day period began to run and almost two years after entry of the 'time served' order. Believing that it had jurisdiction to consider the second motion, the court reduced Friedman's fine on March 25, 1974 and again on April 18, 1974.

Friedman's contention that the court had power to modify sentence in 1974 is based solely on Leyvas v. United States, 371 F.2d 714 (9th Cir. 1967), which held that a court may act beyond the Rule 35 time period if defendant within the period filed a motion to reduce sentence. Id. at 719. Although Leyvas was decided under former Rule 35, which provided for only a 60 day time period, we find that the case is equally applicable to the new rule's 120 day limit. See United States v. Polizzi, 500 F.2d 856, 896 n. 73 (9th Cir. 1974), petition for cert. pending; Fuentes v. United States, 371 F.Supp. 92, 94 (D.Puerto Rico 1973); United States v. Ursini, 296 F.Supp. 1152, 1153 (D.Conn.1968). The literal language of the rule does define the period not as the time within which the motion may be made, but as the time within which the court may act. However, as long as...