United States v. Mandracchia
| Decision Date | 14 July 1965 |
| Docket Number | Crim. A. No. 6657. |
| Citation | 247 F. Supp. 1 |
| Parties | UNITED STATES of America v. Onofrio MANDRACCHIA a/k/a Fred Mandracchia, Edward A. Pugliese a/k/a Edward A. Clarke. |
| Court | U.S. District Court — District of New Hampshire |
Paul L. Normandin, Asst. U. S. Atty., Concord, N. H., for plaintiff.
John E. Fitzgerald, Jr., Everett, Mass., for defendant Mandracchia.
Upton, Sanders & Upton, J. Gilbert Upton, Concord N. H., for defendant Pugliese.
The Court on July 7, 1965, granted the Government's motion to correct sentences and amended the sentences imposed on defendant Mandracchia on November 26, 1963, and the sentences imposed on defendant Pugliese, reduced on February 20, 1964. The Court has resentenced both defendants, in the view that they should not escape some term of commitment for their offenses. As indicated at the hearing, the Court herewith files its findings of fact and conclusions of law in support of such action.
1. On November 18, 1963, defendants Mandracchia and Pugliese were convicted, along with other defendants, on Counts I, II, III and V of a multi-count indictment involving operation of an illegal still. On November 26, 1963, defendant Mandracchia was sentenced as follows:
Count I - Three years imprisonment to stand committed. Count II - Three years imprisonment suspended, four years probation to commence at completion of sentence on Count I Count III - Three years imprisonment suspended, four years probation to commence at completion of sentence on Count I. This sentence to be concurrent with sentence on Count II. Count V - Three years imprisonment suspended, four years probation to commence at completion of sentence on Count I. This sentence to be concurrent with sentences on Counts II and III.
Defendant Pugliese was sentenced on the same day, but on February 20, 1964, the Court reduced the sentence originally imposed to read as follows:
Count I - Eighteen months imprisonment, to stand committed. Count II - Eighteen months imprisonment, suspended, four years probation to commence at completion of sentence on Count I. Count III - Eighteen months imprisonment, suspended, four years probation to commence at completion of sentence on Count I.
This sentence to be concurrent with sentence on Count II. Count V - Eighteen months imprisonment, suspended, four years probation to commence at completion of sentence on Count I. This sentence to be concurrent with sentences on Counts II and III.
2. Both defendants elected not to commence service of their sentences pending appeal and have been free on bail since the date of original sentence. Neither has commenced to serve his sentences.
3. Defendants prosecuted appeals of their convictions in the Court of Appeals. That court vacated the judgment and set aside the verdict on Count I, because the Court's charge to the jury on that count followed 26 U.S.C. § 5601(b) (1). This statute, ruled the Court of Appeals, was unconstitutional. Defendants' convictions on the remaining counts were affirmed, however, and the matter was remanded for proceedings not inconsistent with the Court of Appeals' opinion. Pugliese v. United States, 343 F.2d 837 (1st Cir. 1965).
4. Defendants' sentences on Counts II, III and V were to have commenced at the completion of sentences on Count I. The action of the Court of Appeals, invalidating defendants' convictions on Count I, rendered commencement date for defendants' remaining sentences vague and indefinite.
5. On May 25, 1964, the Government filed its motion to correct defendants' remaining sentences under Rule 35 of the Federal Rules of Criminal Procedure. On June 4, the Court invited counsel for the parties to submit briefs or memoranda within ten days, to assist it in disposing of the motion. The Government's memorandum was filed June 14. None has been received from defendants or their counsel.
6. On July 7, 1965, the parties presented oral argument on the motion. Defendant Pugliese appeared without counsel and the Court appointed J. Gilbert Upton, Esq., of Concord, to represent him. At the conclusion of counsels' presentations, the Court orally granted the motion and thereupon ordered the previous judgments, and the sentences contained therein, to be amended as follows:
As to defendant Mandracchia:
Count II - Three years imprisonsonment, to stand committed. Count III - Three years imprisonment, suspended, four years probation to commence at completion of sentence on Count II. Count V - Three years imprisonment, suspended, four years probation to commence at completion of sentence on Count II. This sentence to be concurrent with sentence on Count III.
As to defendant Pugliese:
Count II - Eighteen months imprisonment, to stand committed. Count III - Eighteen months imprisonment, suspended, four years probation to commence at completion of sentence on Count II. Count V - Eighteen months imprisonment, suspended, four years probation to commence at completion of sentence on Count II. This sentence to be concurrent with sentence on Count III.
Such sentences were within the limits set by the relevant statutes.
Before amending the judgments and sentences, the Court examined the law to determine whether its power to do so was limited by statute or judicial decision. Upon analysis of the authorities, the Court has arrived at the following conclusions.
1. Uncertainty of time for commencement renders a sentence illegal and makes it correctable at any time under Rule 35 of the Federal Rules of Criminal Procedure. Scarponi v. United States, 313 F.2d 950, 953 (10th Cir. 1963).
Due to invalidation by the Court of Appeals of defendants' convictions on Count I, the sentences originally imposed on defendants on the other counts were stripped of firm commencement dates. The Court concludes that Rule 35 is applicable here and vests jurisdiction in the Court to take such action with respect to correction of the sentences as will serve the ends of justice.
At one time in the Federal jurisprudence, a criminal judgment could be amended, modified or vacated only during the term of court at which it was rendered. United States v. Benz, 282 U.S. 304, 306-307, 51 S.Ct. 113, 75 L.Ed. 354 (1931). This principle must now be deemed superseded by the terms of Criminal Rule 35, which permits correction of sentence at any time, and by the express provision of Criminal Rule 45(c) abolishing the "term of court" concept.
2. The Court has power to revise sentences originally imposed, thereby increasing their severity where justice requires, subject to certain limitations not applicable in this case.
According to longstanding authority, re-affirmed within recent years, a district court has the power to increase the severity of a sentence, where it appears that the sentence originally imposed would be entirely inadequate to serve the ends of justice. Cisson v. United States, 37 F.2d 330, 332 (4th Cir. 1930); Pence v. United States, 219 F.2d 70 (10th Cir. 1955); Kelley v. United States, 235 F.2d 44 (4th Cir. 1956); United States v. Byars, 290 F.2d 515 (6th Cir. 1961); Vincent v. United States, 337 F.2d 891 (8th Cir. 1964).
Sentencing is not a game, nor is it a matter of contract with the defendant who receives the sentence. Rather, it is an exacting task in which the Court undertakes to analyze all the relevant circumstances and impose a sentence which will best protect society, deter others and punish (yet at the same time give hope for rehabilitation of) the offender. Though courts do their best in the first instance to perform this task, occasionally a situation arises where it appears that the sentence originally imposed is inadequate to fulfill its multiple purpose. In such a situation, the Court has a responsibility to adjust the sentence so that it will fulfill its purpose. There are, however, certain factors which would prevent the Court from doing so. These factors, as discussed below, are not present in the instant case.
3. The Court's power to amend the judgments in this case is not limited by the double jeopardy prohibition of the Fifth Amendment.
In Ex parte Lange, 85 U.S. (18 Wall.) 163, 21 L.Ed. 872 (1873), the United States Supreme Court applied the Fifth Amendment's double jeopardy prohibition to the matter of sentencing and held, in effect, that jeopardy attaches when a defendant commences to serve his sentence. Thereafter, stated the Court, his sentence may not be increased, for to do so would involve punishing him twice for the same offense. Cf. United States v. Benz, supra, 282 U.S. at 307, 51 S.Ct. 113.
But in this case, as noted above, defendants elected not to commence service of their sentences pending appeal and did not commence service. Accordingly, no jeopardy has attached to the original sentences.
4. Amendment of the judgments does not violate the terms of the Court of Appeals' mandate in this case.
There are cases which seem to indicate that once a judgment has been affirmed on appeal, the sentence contained therein is invulnerable and a district court has no power to change it. One such case, the facts of which are similar to the present case, is United States v. Tuffanelli, 138 F.2d 981 (7th Cir. 1943).
In Tuffanelli, defendants had been found guilty on several counts, and had been sentenced to consecutive terms of imprisonment, the later ones to commence at the completion of the sentences on the "anchor" count. On appeal, the "anchor" count was reversed and on remand the District Court resentenced: on one defendant, the Court imposed prison terms equal to those he had received before his appeal; on the other defendant, the Court imposed prison terms greater than those originally imposed. The defendants appealed, and the Court of Appeals framed the question in the following terms:
"May the District Court, after the Court of Appeals has affirmed convictions on certain counts and reversed...
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