United States v. Howe

• Citation: 280 F. 815
• Parties: UNITED STATES v. HOWE, District Judge, et al.
• Decision Date: 10 April 1922
• Court: U.S. Court of Appeals — Second Circuit

280 F. 815

UNITED STATES v. HOWE, District Judge, et al.

United States Court of Appeals, Second Circuit.

April 10, 1922

William Hayward, U.S. Atty., of New York City (John E. Joyce, Asst U.S. Atty., of New York City, of counsel), for the United States.

Samuel Hershenstein, of New York City (Edward T. McLaughlin, of New York City, of counsel), for respondent.

Before ROGERS, MANTON, and MAYER, Circuit Judges.

ROGERS Circuit Judge.

This is an application by the government for a writ of mandamus directing the Honorable Harland B. Howe, District Judge of the United States for the District of Vermont, and the District Court of the United States for the Southern District of New York, commanding the cancellation and annulment of an order and certain proceedings taken by Judge Howe in the District Court for the Southern District of New York on December 3, 1921, in relation to and in connection with the judgment of conviction entered in that court against one Joseph Rosenblatt on February 21, 1920, to the end that such judgment may be carried into execution as it was originally entered.

It appears that on November 3, 1919, an indictment was returned into the District Court of the United States for the Southern District of New York which charged the said Rosenblatt and certain other persons named therein with having committed an offense against the United States in violation of the Act of Congress approved on February 13, 1913 (37 Stat. 670). Rosenblatt was convicted, the jury returning a verdict of guilty on certain of the counts, on February 20, 1920. On the next day, February 21, 1920, District Judge Howe, who presided at the trial, and who had been duly assigned and designated to hold the term of court, sentenced Rosenblatt to serve a term of six years in the United States penitentiary at Atlanta, Ga., upon each of the counts upon which he had been found guilty; such terms of imprisonment to run concurrently.

A writ of error was duly issued and allowed, and the case was brought to this court for review; and on January 12, 1921 the cause having been duly and regularly heard, the court filed its opinion affirming the judgment. Rosenblatt v U.S., 271 F. 435. On January 31, 1921, the mandate of this court was duly issued. It was ordered, adjudged, and decreed that the judgment of the District Court be and the same thereby was affirmed, and the judges of the District Court for the Southern District of New York were therein commanded 'That such further proceedings be had in said cause, in accordance with the decision of this court, as according to right and justice and the laws of the United States, ought to be had, the said writ notwithstanding.'

Thereafter, and on February 2, 1921, an order was made by Hon. Augustus N. Hand, District Judge of the United States for the Southern District of New York, wherein it was ordered, adjudged, and decreed that the mandate of this court be made the judgment of the District Court of the United States for the Southern District of New York, and it was further ordered that the said judgment be carried into effect and execution; and on February 3, 1921, the said order and mandate of this court were filed in the office of the Clerk of the District Court.

Then it appears that thereafter, and on December 3, 1921, District Judge Howe caused an order to be entered in the office of the clerk of the District Court for the Southern District of New York in which he directed that the term and sentence of six years imposed upon Rosenblatt be stricken off, and that he be arraigned again, whereupon the said judge resentenced Rosenblatt and directed that he serve a term of imprisonment for 3 years on each count, the sentences to run concurrently. This he did over the objection of the United States attorney, an exception being taken and allowed.

The minutes of the clerk of the court show that this action was taken on hearing a motion for a new trial; that further evidence was introduced and considered; that the petition for a new trial was denied, and the action setting aside the original sentence for six years was 'stricken off,' and the new sentence of three years was imposed. Then follows this entry:

'The court thinks it has the power to do this because, during the trial, the term was extended for all purposes until January 1, 1925. Time for defendant to surrender to United States marshal is extended until December 12, 1921, 10:30 a.m.'

The right of a trial court during the trial of a case, whether civil or original, to extend the term, is so well established a principle of law that any extended reference to the authorities is not necessary. We discussed the subject to some extent in Freeman v. United States, 227 F. 732, 142 C.C.A. 256 (1915), a criminal case, and we find no occasion now to add to what we then said. It will also be conceded that a court, both in civil and criminal cases, has power over its own judgments during the term at which they were made. The authorities hold that the court which pronounces sentence in a criminal case may thereafter, but during the same term, revise and correct the sentence imposed, and may increase or diminish the severity of the original sentence.

In 1869 the Supreme Court had occasion to consider this subject in Bassett v. United States, 9 Wall. 38, 19 L.Ed. 548. The court held it to be competent for the trial court, for good cause, to set aside, at the same term at which it was rendered, a judgment of conviction on confession, though the defendant had entered upon the imprisonment ordered by the sentence. That case does not appear to have been very fully argued by counsel, and the opinion of the court, which covers little more than a single page and was written by Mr. Justice Miller, states that 'this control of the court over its own judgment during the term is of everyday practice. ' It cites two cases only. King v. Price, 6 East, 323; Sun Cheong-Kee v. United States, 3 Wall. 320, 18 L.Ed. 72.

In 1873 the court again had occasion to consider the subject, in Ex parte Lange, 18 Wall. 163, 21 L.Ed. 872; Mr. Justice Miller again writing the opinion of the court. He refers to Bassett v. United States, and says:

'The general power of the court over its own judgments, orders, and decrees, in both civil and criminal cases, during the existence of the term at which they are first made, is undeniable. And this is the extent of the proposition intended to be decided in the case of Bassett v. United States. * * * In general terms, without much consideration, for no counsel appeared for the sureties, this court sustained the right. If it was intended in that case to raise the question of the right of the court to inflict a new and larger punishment on the prisoner, without reference to the time of his imprisonment on the one set aside, that point was not presented, so as to receive the attention of the court, and certainly was not considered or decided.'

In Ex parte Lange the subject was carefully considered, and the decision of the court covers some 13 pages, and there is a long dissenting opinion by Mr. Justice Clifford, which occupies nearly 27 pages. Mr. Justice Strong dissented, but filed no opinion. The court held that, when a court had imposed a fine and imprisonment, where the statute only authorized punishment by fine or imprisonment, and the fine had been paid, it could not, even during the same term, modify the judgment by imposing imprisonment, instead of the former sentence. The defendant had been sentenced on November 3, 1873, to one year's imprisonment and to pay a fine of $200. On the next day he paid the fine to the clerk of the court, and the latter, on November 7, 1873, paid the same into the treasury of the United States. On November 8th of the same month the judge who imposed the sentence entered an order vacating the former judgment, and the prisoner was again sentenced to one year's imprisonment from that date. The case came before the Supreme Court on petition for writs of habeas corpus and certiorari, and the court ordered the prisoner discharged. In the course of its opinion the court said (18 Wall. at page 174, 21 L.Ed. 872):

'If the court, for instance, had rendered a judgment for two years' imprisonment, it could no doubt, on its own motion, have vacated that judgment during the term, and rendered a judgment for one year's imprisonment; or, if no part of the sentence had been executed, it could have rendered a judgment for $200 fine after vacating the first. Nor are we prepared to say, if a case could be found where the first sentence was wholly and absolutely void, as where a judgment was rendered when no court was in session, and at a time when no term was held-- so void that the officer who held the prisoner under it would be liable, or the prisoner at perfect liberty to assert his freedom by force-- whether

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