U.S. v. Von Moos, 81-1212
Decision Date | 06 November 1981 |
Docket Number | No. 81-1212,81-1212 |
Parties | UNITED STATES of America, Plaintiff-Appellant, v. John J. VON MOOS, Defendant-Appellee. |
Court | U.S. Court of Appeals — Ninth Circuit |
Stephen Cooper, Asst. U. S. Atty., Fairbanks, Alaska, for plaintiff-appellant.
Ralph Beistline, Fairbanks, Alaska, for defendant-appellee.
Appeal from the United States District Court for the District of Alaska.
Before BROWNING, Chief Judge, WRIGHT, Circuit Judge, and THOMPSON, * District Judge.
John Von Moos committed perjury during the course of his trial for bank robbery. The district judge stated that in sentencing Von Moos on the bank robbery conviction he took Von Moos's perjury into consideration in two ways: "One way on his credibility as he testified at the imposition of sentence; and the other is at the time I imposed the sentence I considered it in evaluating what the sentence should have been."
Later Von Moos was indicted for the perjury. He pleaded guilty and came on for sentencing before the district judge. The district judge entered an order stating as follows:
At time of sentencing the defendant in the bank robbery case this Court specifically considered the defendant's perjury committed at said trial, with the effect that his sentence on the bank robbery was greater than it would have been had the perjury not been considered. In view of this finding:
IT IS HEREBY ORDERED that this Court is without legal authority to enter any sentence against the defendant for the present perjury charge to which he has pleaded guilty, in that to do so would constitute double punishment of said defendant on the account of his perjury.
On the basis of this order the case was closed. The government appealed.
This court may entertain a government appeal from a final decision in a criminal case limited only by the double jeopardy clause. 18 U.S.C. § 3731; United States v. Hetrick, 644 F.2d 752, 754-55 (9th Cir. 1980). Jeopardy attaches in the double punishment context when the defendant begins serving the sentence. See United States v. Ford, 632 F.2d 1354, 1380 (9th Cir. 1980). Because Von Moos has not begun serving a sentence pursuant to the challenged order, jeopardy has not attached. If we were to reverse and remand for sentencing, the sentence on remand would not constitute double jeopardy.
A "final decision" is required as a predicate to appellate jurisdiction. "In criminal cases, as well as civil, the judgment is final for the purpose of appeal 'when it terminates the litigation ... on the merits' and 'leaves nothing to be done but to enforce by execution what has been determined.' " Berman v. United States, 302 U.S. 211, 212-13, 58 S.Ct. 164, 165-66, 82 L.Ed. 204 (1937) (quoting St. Louis, I. M. & S. R. Co. v. Southern Express, 108 U.S. 24, 2 S.Ct. 6, 27 L.Ed. 638 (1883)); accord, United States v. Carnes, 618 F.2d 68 (9th Cir. 1980). The order appealed from in this case is final within this definition. The district judge has declared that he is without legal authority to impose a sentence. He has left nothing further to be done. The case has been closed. The lack of a formal judgment does not strip the court's order of its "independence...
To continue reading
Request your trial-
U.S. v. Andrews
...(prohibition against multiple punishments does not attach in SEC civil action until civil penalty is imposed); cf. United States v. Von Moos, 660 F.2d 748, 749 (9th Cir.1981) (jeopardy on multiple punishments claim involving multiple sentences does not attach until defendant begins serving ...
-
U.S. v. Chaudhry
...Order was not “tantamount to dismissal” of the government's case. See Cote, 51 F.3d at 181. The government relies on United States v. Von Moos, 660 F.2d 748 (9th Cir.1981) for the proposition that we have jurisdiction to review a district court's refusal to sentence a defendant. Von Moos is......
-
US v. Tamez
...distinction: "Jeopardy attaches in the double punishment context when the defendant begins serving the sentence." United States v. Von Moos, 660 F.2d 748, 749 (9th Cir.1981) (emphasis added); see also, United States v. Ford, 632 F.2d 1354 (9th Cir.1980), cert. denied, 450 U.S. 934, 101 S.Ct......
-
State v. Avelar
...not have been raised until jeopardy attached in the punishment context. In support of his position, Avelar relies upon U.S. v. Von Moos, 660 F.2d 748 (9th Cir.1981). In Von Moos the defendant committed Jeopardy attaches in the double punishment context when the defendant begins serving the ......