United States v. Berman
| Decision Date | 01 March 1937 |
| Parties | UNITED STATES v. BERMAN. |
| Court | U.S. Court of Appeals — Second Circuit |
Samuel H. Kaufman, of New York City, for the motion.
Richard J. Burke, of New York City, opposed.
Before L. HAND, SWAN, and CHASE, Circuit Judges.
The defendant was convicted upon an indictment in twenty counts of using the mails to defraud (section 338, title 18, U.S. Code 18 U.S.C.A. § 338), and was sentenced on each count to serve a year and a day concurrently; execution was suspended and he was put on probation for two years. He has appealed from this sentence, but, while the appeal was pending, fearing that the appeal might be dismissed, he procured from the judge a repetition of the sentence with the addition of a fine of $1 on each count. From this sentence also he has appealed. The prosecution now moves to dismiss both appeals.
We think that the first sentence was interlocutory because of the suspension of its execution; and that for this reason, if the second sentence did not vacate it, the appeal falls within our decisions in United States v. Lecato, 29 F.(2d) 694; United States v. Messina, 36 F.(2d) 699; United States v. Levinson, 54 F.(2d) 363; United States v. Knickerbocker Fur Coat Co., 66 F.(2d) 388. We must not be misled by mere matters of form; it is not enough that a definite sentence has been imposed, and that the suspension is in form only a stay. It is not really a stay; that is a suspension of execution until the happening of some event over which the judge has no control, like the termination of an appeal, or the occurrence of some outside condition. The court has never finally disposed of the case at all; the sentence, though definite, remains conditional; not only may it never be executed, but its execution depends upon another decision of the judge. Indeed, its very length may be reduced during the period of probation. U. S. v. Antinori, 59 F.(2d) 171 (C.C.A. 5). Perhaps it is desirable that a man, convicted and put upon probation, should be able to review the trial, but if he may not do so when no sentence is imposed, he may not, when nothing more has been done than fix the maximum punishment he must undergo, if it ever be decided to punish him at all. The first appeal must therefore be dismissed.
As to the second, it is perhaps true that, since the appeal from the first sentence was a nullity, the District Judge still had jurisdiction, Riddle v. Hudgins, 58 F. 490 (C.C.A.8); and that in consequence he had power to resentence the defendant. We may also assume arguendo that he had power at the defendant's request to add to the sentence by imposing a fine of $1 on each count. But, even if he had, the defendant may not complain of this part of the judgment, because he not only consented to it, but actually asked for it. Pacific R. R. Co. v. Ketchum, 101 U.S. 289, 25 L.Ed. 932; United...
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Berman v. United States
...was interlocutory. The judgment imposing the fine was affirmed and the appeal from the second sentence of imprisonment was dismissed. 88 F.2d 645. We are of the opinion that the Court of Appeals erred in dismissing the first appeal as interlocutory. Petitioner was convicted and sentenced. F......
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United States v. Berman, 265.
...of his sentence was suspended and he was placed on probation for two years. His former appeals were dismissed. See, United States v. Berman, 2 Cir., 88 F.2d 645. The Supreme Court having held that the judgment first imposed was appealable and that the second appeal only should have been dis......