United States v. Chiarella

• Decision Date: 03 August 1954
• Docket Number: No. 270,Docket 22796.,270
• Citation: United States v. Chiarella, 214 F.2d 838 (2nd Cir. 1954)
• Parties: UNITED STATES v. CHIARELLA. UNITED STATES ex rel. CHIARELLA v. LUNNEY et al.
• Court: U.S. Court of Appeals — Second Circuit

214 F.2d 838 (1954)

UNITED STATES v.CHIARELLA.

UNITED STATES ex rel. CHIARELLA v.LUNNEY et al.

No. 270, Docket 22796.

United States Court of Appeals, Second Circuit.

Argued May 11, 1954.

Decided August 3, 1954.

J. Edward Lumbard, U. S. Atty. for the Southern Dist. of New York, New York City, for United States, Richard Owen, Asst. U. S. Atty., New York City, of counsel.

Daniel H. Greenberg, New York City, for Anthony Chiarella.

Before CHASE, Chief Judge, and HINCKS and HARLAN, Circuit Judges.

CHASE, Chief Judge.

On April 28, 1950, the appellant was found guilty on each of four counts in an indictment on which he was tried by jury in the District Court for the Southern District of New York.The indictment charged violations of 18 U.S.C. §§ 2,371,472and473 by his conduct in respect to the same counterfeit Federal Reserve Bank notes as follows: In count one that he received the notes, in count two that he possessed them, in count three that he uttered or attempted to utter them, and in count four that he conspired with others to commit the offenses charged in counts one, two and three.

Judge Stone of the Western District of Wisconsin, sitting in the Southern District of New York by designation and assignment as a visiting judge, presided at the trial and, on April 28, 1950, signed a judgment and commitment in the usual form sentencing the appellant to imprisonment for ten years on each of counts one, two and three and to five years on count four, the sentences on counts one, two and four to run consecutively with each other and concurrently with that on count three.This was the sentence which was entered of record.

Previously on the same day he had orally sentenced the appellant as follows:

"The judgment of the court in the case of Anthony Chiarella is that he be sentenced to serve ten years on Count 1, ten years on Count 2, ten years on Count 3, and five years on Count 4; that Counts 1, 2, and 4 run consecutively; that Count 3 will run concurrently with Counts 1 and 2, which makes a total of 25 years."

On appeal, we affirmed the conviction but reserved the question of the effect of the cumulative sentences and gave the parties leave to file briefs on that subject.United States v. Chiarella, 2 Cir., 184 F. 2d 903.After briefs were filed and considered, we held counts one and two duplicitous, reversed the judgment on them and dismissed that part of the indictment.The convictions on counts three and four were affirmed and it was held that the aggregate sentence on them was fifteen years.A petition for rehearing was denied.United States v. Chiarella, 2 Cir., 187 F.2d 12.

The appellant then filed a petition for a writ of certiorari on which the following action was taken by the Supreme Court on June 4, 1951:

"The petition for writ of certiorari is granted.Upon consideration of the record and confession of error by the Solicitor General, the judgement of the Court of Appeals is vacated and the case is remanded to the District Court for resentencing."341 U.S. 946, 71 S.Ct. 1004, 95 L.Ed. 1370.No order on the mandate was, however, entered in the office of the clerk of the District Court until April 3, 1953, a delay of nearly twenty-one months which stands without excuse or justification in this record.

Before the mandate of the Supreme Court was issued, the district attorney moved in the district court for an order directing the clerk to correct his record to conform with the oral sentence imposed on April 28, 1950.This motion was referred to Judge Stone who on June 6, 1951, granted the motion and signed a corrected judgment as follows:

"Ten years on count 1 "Ten Years on count 2 "Ten Years on count 3 "Five years on count 4

"Prison sentence on Counts 1-2-4 to run consecutively to each other and sentence on count three to run concurrently with sentences on counts 1 and 2."

This order was filed in the clerk's office on June 29, 1951, but it was not until July 9, 1951, that the mandate of the Supreme Court was received and filed there.Consequently the order was made when the district court was without jurisdiction and was obviously of no effect, nor does anyone now otherwise contend.

The appellant entered upon the service of his sentence and nothing seems to have been done to comply with the mandate of the Supreme Court until he submitted a proposed order on mandate which was noticed for settlement before Judge Edelstein on August 12, 1952.There was a delay in signing this order, apparently to permit the district attorney to move for the recall of the mandate of the Supreme Court and its correction to conform with the corrected judgment of Judge Stone.No such motion was made, however, and, on April 3, 1953, the appellant's proposed order was signed directing his production in court for resentencing on April 20, 1953, "as required by the mandate of the Supreme Court of the United States."He was brought to New York from the United States Penitentiary in Atlanta, Ga., and has since been confined in New York.The hearing on the order for resentencing was before Judge Ryan who first dismissed a writ of habeas corpus the appellant had obtained to secure his unconditional release from custody.The basis of the application for the writ was that the court had lost jurisdiction because of the delay which had occurred since the mandate of the Supreme Court had issued.

After Judge Ryan dismissed the writ, he resentenced the appellant to imprisonment for ten years on count three and to five years on count four, the sentences to be served consecutively.And it was further "Ordered that these sentences shall become effective as of April 28, 1950 and all time served by the defendant since that date shall be credited to the defendant upon the sentences so imposed."It is from Judge Ryan's order that this appeal has been taken.

The appeal from the order dismissing the writ of habeas corpus requires little comment.Though the judgment of this court had been vacated by the Supreme Court, he had not been enlarged and obviously he could be held in custody under its mandate until he could be resentenced.The delay in so doing did not deprive the court of jurisdiction to resentence him and whatever may have been his remedies because of that delay, by petition for a writ of mandamus, or otherwise, he did nothing, so far as now appears, to avail himself of them until he took the above stated action.The time which elapsed subsequently was, we think, reasonably excusable under the circumstances and, moreover, since when resentenced the sentence was made effective as of the date of the original judgment and he was given credit for the entire time he has been imprisoned he has suffered no injustice because of any delay.And his attempt to reargue his conviction on the merits is foreclosed by the previous affirmance of that.

The more serious question presented is whether the district judge, having jurisdiction to resentence, fell into error, when, in imposing a sentence of the same number of years of imprisonment on count three and on count four as had originally been imposed on those counts, he made the service of these sentences run consecutively.

The appellant's argument for reversal rests upon two premises (1) that the aggregate number of years was increased when he was resentenced on these counts and (2) that in so doing the court violated the general rule that a sentence may not lawfully be increased after service of it has commenced.United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354;Crowe v. United States, 6 Cir., 200 F.2d 526.

Both in the oral sentence and the written judgment filed by Judge Stone on April 28, 1950, the sentence on each separate count was the same.As a matter of language in the written judgment the sentences on counts one, two and four were to be served consecutively with each other and concurrently with that on count three while in the oral sentences the service of the count three sentence was expressly made concurrent only with the service of the sentences on counts one and two.Of course it would be impossible to serve the count three sentence concurrently with more than one of the other ten year sentences which were to be served consecutively with each other, for when one of them had been served the count three sentence would have been also.So we can perceive no difference in effect between the oral and the written imposition of sentences by Judge Stone on April 28, 1950, except in the oral one the count three sentence was expressly made to run concurrently with the count one and two sentences while in the written one it was expressly made to run concurrently with them and with that on count four also.In both, the aggregate number of years to be served was twenty-five.Until the sentences on counts one and two were reversed and those counts eliminated from the indictment by this court, the oral and the written sentences imposed the same total imprisonment of twenty-five years and in neither did the time to be served on count three make any difference in the aggregate amount to be served.

When, however, counts one and two were dismissed the sentences on them were nullified and upon the affirmance of the judgment on counts three and four the sentences on those counts became the final judgment.What was then left was the sentence on count three of ten years which was under the written judgment of Judge Stone to be served concurrently with the sentence on count four and under his oral sentence was neither expressly made concurrent nor consecutive with the count four sentence.But these sentences were nevertheless concurrent in the oral sentence as a matter of law since when...