United States v. Wenger, 476
Decision Date | 06 March 1972 |
Docket Number | Docket 71-2130.,No. 476,476 |
Citation | 457 F.2d 1082 |
Parties | UNITED STATES of America, Appellee, v. David WENGER, Defendant-Appellant. |
Court | U.S. Court of Appeals — Second Circuit |
Elkan Abramowitz, New York City (Weiss, Bronston, Rosenthal, Heller & Schwartzman, New York City, on the brief), for defendant-appellant.
Walter M. Phillips, Jr., Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty., for the S. D. N. Y.; Henry Putzel, III, and Peter F. Rient, Asst. U. S. Attys., on the brief), for appellee.
Before SMITH, FEINBERG and MULLIGAN, Circuit Judges.
In April 1970, appellant David Wenger was convicted in the United States District Court for the Southern District of New York, after a jury trial presided over by Harold R. Tyler, Jr., J., of agreeing to receive, and receiving, a bribe as accountant and auditor for a Teamsters Union Pension Fund. 18 U. S.C. §§ 371, 1954. In June 1970, Judge Tyler sentenced Wenger to concurrent sentences of two years and three months on the two counts of his conviction.1 That conviction was affirmed by this court in April 1971. United States v. Russo, 442 F.2d 498 (1971). Meanwhile, Wenger had been found guilty of another conspiracy and bribery after a jury trial in the Southern District, this time before Milton Pollack, J. In December 1970, Judge Pollack imposed concurrent prison terms of two years on that conviction.2 Wenger now appeals from an order of Judge Tyler entered November 1, 1971, which denied Wenger's motion under Fed.R.Crim.P. 36 to correct a "clerical mistake" in the district court records regarding Wenger's conviction before Judge Tyler. The claim of a so-called clerical mistake actually raises the substantial issue whether the sentences imposed upon Wenger by Judges Tyler and Pollack amounted to a total of two years and three months or four years and three months. For reasons set forth below, we affirm Judge Tyler's order.
The precise claim made in the Rule 36 motion was that the court's records of the conviction before Judge Tyler should reflect the "fact" that Wenger has been serving Judge Tyler's sentence since January 4, 1971. The argument rests upon the following chain of events. After Judge Tyler imposed sentence in June 1970, Wenger was allowed to remain on bail while he appealed from that sentence. However, after Judge Pollack imposed sentence in December 1970 on the crimes tried before him, Judge Pollack denied bail pending appeal from that sentence. Wenger then moved in this court for bail, and on January 4, 1971, we denied the motion. On the same day, Wenger surrendered to the marshal to commence his prison term.3 Wenger argues that when that occurred, he began to serve not only Judge Pollack's sentence, but Judge Tyler's as well. The reasons offered are that the sentences of Judge Tyler and Judge Pollack are concurrent as a matter of law and that surrender on the latter, therefore, commenced service on both. We need deal only with the former claim because appellant seems to concede—and we agree—that unless the sentences are concurrent his case falls.
Appellant argues that the sentences of Judges Tyler and Pollack must be concurrent because Judge Pollack 4 It is true that an all but conclusive presumption does exist in federal sentencing that unless otherwise stated a sentence imposed on a given count or indictment is concurrent with other federal sentences then imposed or previously imposed. See Borum v. United States, 133 U.S.App.D.C. 147, 409 F.2d 433, 439-441 (1967), cert. denied, 395 U.S. 916, 89 S.Ct. 1765, 23 L.Ed.2d 230 (1969); 2 Wright, Fed. Practice and Procedure—Crim. § 527, at 420 (1969). This presumption is not universal; various states have different ones. See ABA Project on Minimum Standards for Crim. Justice, Sentencing Alternatives and Procedures § 3.4, at 173-74 (Tent. Draft 1967) ABA Sentencing. The federal presumption apparently has never received explicit Supreme Court approval, although as early as 1887 Justice Bradley, sitting as a circuit judge, could say that "by force of law" unless otherwise indicated "each sentence would begin to run at once, and they would all run concurrently." United States v. Patterson, 29 F. 775, 778 (3d Cir.1887). Cf. United States v. Daugherty, 269 U.S. 360, 363, 46 S.Ct. 156, 70 L.Ed. 309 (1925).
We can find only one instance in which this circuit employed the presumption. United States v. Chiarella, 214 F.2d 838, 841 (2d Cir.), cert. denied, 348 U.S. 902, 75 S.Ct. 226, 99 L.Ed. 708 (1954). There the district judge at oral sentencing stated that there would be consecutive sentences on counts 1, 2 and 4, and that the sentence on count 3 would be concurrent with counts 1 and 2. On appeal, counts 1 and 2 were reversed, so the issue (after some unusual procedural steps) was the proper relationship between the sentences on counts 3 and 4. This court held as a matter of law that the two were concurrent.5
The purpose of the presumption seems to be that if nothing is specifically indicated, there is no way of knowing whether the sentences are to be concurrent or consecutive, so courts have opted for the shorter sentence, thus placing the burden squarely on the prosecutor and judge to affirmatively suggest and impose the longer sentence. Official inadvertence works in favor of the defendant.6 In theory there could have been a procedure for going back to the sentencing judge to clarify the issue, but the presumption seems to have emerged so early that any such procedure was cut off by the double jeopardy clause prohibiting increases in sentences which have begun to be served. United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354 (1931); Ex parte Lange, 85 U.S. (18 Wall) 163, 21 L.Ed. 872 (1873). Cf. United States v. Sacco, 367 F.2d 368 (2d Cir.1966). The continued existence of the presumption would certainly seem to be supported by its simplicity, by the general notion of holding the Government to precision before a defendant can be jailed, and by the apparent desire to minimize consecutive sentences generally. See ABA Sentencing § 3.4(b) and (b) (iv), at 171-72, 179-80.
We have outlined the presumption and its justifications at such length to make clear that we would ordinarily have no quarrel with it. Although United States v. Chiarella, supra, dealt only with counts of the same indictment, we are willing to assume that the presumption applies to sentences imposed upon different indictments at different times. But we are frankly reluctant to apply the presumption here. First, appellant had no misapprehension at all about the sentence imposed by Judge Pollack.7 Upon the application for bail in this court pending appeal from that sentence, the Government stated:
There is no indication that appellant replied that the "total prison sentence" he was then facing was not "four years and three months" but was two years less, even though on an application for bail it would have been in his interest to do so. That appellant had no misunderstanding about his sentences is further confirmed by statements made by his counsel when Wenger appeared not long thereafter for additional sentencing before two other judges—first in April 1971 before Judge Jack B. Weinstein in the Eastern District9 and then in August 1971 before Judge Charles M. Metzner in the Southern District.10 At the former, Wenger's counsel stated:
He now stands, having been sentenced twice in the United States District Court for the Southern District of New York to terms of imprisonment which, taken together, total very nearly the maximum provided by statute in this case, something over four years, the maximum here being five.
Before Judge Metzner, the following colloquy occurred:
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