Petition for A Writ of Certiorari — Clutterbuck v. United States

Supreme Court brief1971

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IN THE

AUG 9 1STh°

SUPREME COURT OF THE UNITED. stares

bE. nue

October Term, 1971 a

pene

ay & eee bs soe

JOHN JOSEPH CLUTTERBUCK, _

Petitioner, as \

vs. Ny gees i

“UNITED STATES OF AMERICA,

No.

Respondent.

PETITION FOR; é

__WRIT_OF CERTIORARI ————

BARRY TARLOW

_ 9119 Sunset Boulevard

‘Los Angeles, California 90669

(213) 278-2111 }

Attorney for Petitioner

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1971 :

OO adelante ce re

JOHN JOSEPH CLUTTERBUCK, +

Petitioner,

vs.

UNITED STATES OF AMERICA,

° °

3 iNet eR WR Tey et ORs te Wa

Respondent. |

PETITION FOR.

WRIT OF CERTIORARI

BD es nel EAE ae Ti Pein

“

BARRY TARLOW

9119 Sunset Boulevard

Los Angeles, California 90069

(213) 278-2111

Attorney for: Petitioner

TOPICAL INDEX? -

Table of Authorities |

OPINION BELOW

JURISDICTION

‘QUESTIONS PRESENTED

CONSYITUTIONAL AND STATUTORY |

_ PROVISIONS INVOLVED.

STATEMENT OF THE CASE.

REASONS FOR GRANTING: THE _

WRIT }

1, THE DECISION OF THE.

COURT. OF APPEALS»

SANCTIONS A FEDERAL

_* DISTRICT COURT SEN-.

.."TENCING .PROCEDURE ©

. PATENTLY OFFENSIVE

>TO MINIMAL DUE PROCESS

STANDARDS. |

2. - THE DECISION OF THE -° — . - E

_ NINTH CIRCUIT COURT ie

OF APPEALS CONFLICTS

WITH DECISIONS OF OTHER

COURTS, INCLUDING THE =~

SECOND CIRCUIT COURT ) :

OF APPEALS. ROMS. nS

? ~@

. .

6 . ‘

‘Ss

CONCLUSION |

APPENDIX A, |

APPENDIX B

. >

ad |

’

‘

TABLE Of: AUTHORITIES

Cases:

Ashe 'v. Swenson, .

— 397 U.S. 436 (1970)

Ex parte Lange,

85 U. S. (18 Wall. ) 163 (1873)

Wendin: United States,

382 U.S. 162 (1965)

Heflin v. United ‘Sinias, aa

358 U.S. 415 (1959) | c

nidlanowich v. United fp eteg

365 U.S. 551 (1961)

North Carolina v. Pearce,

395 U.S. 711 (1969) . is 6,

Pollard v.. United’ States, |

; = — 354 (1957)

‘Simmons v. United States,

390 is s. FY i | (1968)

Borum v. ‘United ates; | ae

409 F.2d 433 (D.C. Cir. 1967),

cert. denied 395 U.S. 916 (1969) 10

Kitt v. United States, A ¢ es

138 F.2d 842 (4th Cir. 1943) : |:

ili.

Patton v. North Cavetion:

381 F.2d 636 (4th Cir. 1967)

Thurman v v. United States,

423 F.2d 988 (9th Cir.), cert. denied

400 U.S. 911 (1970)

United vee v. Barash,

428 F.2d 328 a Cir. 1970)

United States Vv. Chdterkice

F. ave (9th Cir. 1971) |

United States v. Clutterbuck,

421 F.2d 485 (9th Cir. 1970)

United States v. Horning,

409 F, 2d 424 (4th Cir. 1969)

United States v. Lopez,

428 F, 2d 1135 (2d Cir. 1970)

Wood v. Ross, .

434 F.2d 297 (4th Cir. 1970)

Pople v. Ali,

66 Cal. 2d 277 (1967)

People v. Thornton,

14 Cal. App. 3d 324 (1971)

Wright v. ‘State,

(Mo. S.Ct.) 9 Crim. L. . Rptr.

2273 (July 7, 1971)

iv.

11,,

12.

iz.

eA ilealsia kina acestea thas ace Poe AN RO MRT eS

J -

Gauieusaneniete

Constitution -

U.S. Constitution, Fifth Amendment 2, 6, 7 |

Statutes .

18 U.S.C. $371 ee er - 4

18 US. C. $641 | i 8, 9

28 U.S.C. §1254(1) | | | 2

28-UL S.C. §1291 | ee

Vv.

| IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1971

‘JOHN JOSEPH CLUTTERBUCK,

‘Petitioner,- = = =/° y

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR

WRIT OF CERTIORARI

Petitioner John Joseph Clutterbuck

respectfully prays that a writ of certiorari issue

to review the judgment and opinion of the United

States Court of Appeals for the Ninth Circuit

entered in this proceeding on July 7, 1971.:

“a : : re

OPINION BELOW

The opinion of the Court of Appeal®, not

yet reported, is appended to this petition.

JURISDICTION

* The judgment of the Court of Appeals

for the Ninth Circuit was entered on July 7,

1971, and this petition was filed within 30 days |

of that date. Jurisdiction of this Court is

invoked under 28'U.S.C. §1254(1).--

QUESTIONS PRESENTED

1. Where a judgment imposing

concurrent maximum sentences for four. thefts

of scrap metal over a five-day period is set

aside on appeal, may the district court upon

resentencing impose consecutive maximum.

sentences on the same four counts without

explanation of reasons or reference to factual

— to justify the action.

- . Where a judgment imposing a

fine on one of four counts is set aside on appeal,

. may the district court upon resentencing impose

fines on all four counts without Stating any

reason or factual data to justify the action. .

CONSTITUTIONAL AND STATUTORY

PROVISIONS ween

The Fifth Amendment ssehiny apn in

pertinent part:

. Appended to this petition is the full text —

of the pertinent provisions.

‘ 2.

"(NJor sh} any person be subject

for the Same offense to be twice put

in jeopardy of life or limb; . . ._

, nor be deprived of life, liberty, or

property, without due procéss of

law; * e Prova Ps

; Title 18, United States Code, Section

641 provides, in pertinent part:

"Whoever... steals. . ..any...

thing of value of the United States...

"Shall be fined not more than $10, 000

or imprisoned not more than ten years,

or both; but if-the value of such .

> . property does not exceed the sum of

$100, he shall be fined not re than |

$1,000 or imprisoned: not more than

one year,.or both. "

_ STATEMENT OF THE CASE

An indictment filed on April 4, 1968, in.

the Eastern District of California alleged ‘that

‘petitioner violated 18 U.S.C. §641 by stealing

government property from an air force base

in Sacramento [R. 2-3]. - Count I alleged a theft

on Thursday, February 28, 1968; counts II and

‘Ill charged thefts on Friday, March 1: count IV

specified.a theft the following Tuesday, March 5, |

1968.

“ . —— ° 4

c., The indictment further recited 18 U.S. Sa

> C,

§641 violations in counts 5 and 6; and an 18 U.

VU.

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- Adjudging ‘petitioner guilty as charged,

the district court on August 30, 1968, imposed

on’each count a sentence of imprisonment “'for

aterm of ten years, those sentences to be. |.

served concurrently" [R.T. 2545]. A fine in

the amount of $10,000 was — "[o}n

Count IV only" [R. T. 2547]. 3

2 SET NPS

- §371 consptracy in count 7. Although petitioner

was convicted on these counts and sentenced to -

concurrent terms of 10 years, 10 years and 5

years, respectively, his trial counsel pursued

appeal only on the first four counts. On the latter

three counts, execution of sentence was suspended

‘and petitioner was placed on probation for five

years to commence upon completion of sentence

on the first four courits. -A $5,000 fine was

_ imposed as a condition 6f probation [R. 70].

3 Lin setting the $10, 000 fine the district

court said it had no idea what the government's

total cost was for the four-week trial, but that ..

"the jury feesalone, were $3, 268.50." [R.T.

2545.] Assessing an additional $5,000 fine,

£26 note 2, supra, the court hoped partially

to” ‘compensate the Government for the burden

‘that Mr. Clutterbuck has cast upon it..." [R.T.

2546.] At the time of the 1968 sentencing,

_ petitioner was a 54-year-old grandfather who had |

‘no prior felony cenvictions, had’ lived in Sacramento |

since his 1942 arrival to work for the government, ;

and had been a proprietor in the Salvage business

Since 1945 [R.T. 1763-68]. While not mention-

_ ing these factors, the district court took note

that petitioner owned "a great deal more furniture

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On petitioner's appeal pursuant to 28:

U.S.C. $1291, the court observed that the

stolen government property’was "steel scrap"

which was. worth "six cents to ten cents a

pound," United States v. Clutterbuck, 421

I". 2d 485, 486 (9th Cir. 1970). Since the four

counts charged theft of a total of only 170 pounds

(worth a total of $10 - $17), there was no basis

under 18 U.S.C. §641 for imposing a felony

penalty. The value of the scrap.was not more —

than $100 and thus the misdemeanor sanction

. Of not more than one year imprisonment and/

or a $1,000 fine would be applicable, ~ The

court concluded; "The sentence imposed is .

set aside and the matter is remanded for re-

sentencing." Id.” .

On remand, the resentencing matter

came before the court which had imposed the

erroneous Sentence. . The August 30, 1968

sentence of 10 years ‘imprisonment on each of

the four counts was the maximum provided for

-an18 U.S.C. §641 felony. Upon resentencing

on July 13, 1970, the district court inflicted the

maximum misdemeanor penalty of one year.

imprisonment on each count [C.T. 8, 14;

3 (Continued)

than I got inmy home." [R, T. 2536.] The

court saw the case as "a pretty serious matter"

not because of "'the gravity of the crime" but

because of the "long period of time that we

spent" and the high "Government cost, " it.

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2.1. 17). Whereas the imprisonment terms

under the previous sentence were to run con-

currently on the: four ‘counts, the district court

. how specified that the four terms would be

consecutive, The former sentence had

assessed a fine on count IV only; the post-

appeal sentenve levied the maximum fine not

- only on count LV but also on counts I, Wand JH,

the fines to be cumulative, 4 |

Petitioner again sought relief.on appeal

(26 ULS.C. $1291), challenging the district court .

action.on Fifth Amendment double jeopardy and

~-due process grounds, Although: petitioner had

pointed, -mter-alia, to.the absence of any intime .

tion of misconduct #ubsequent to the original

sentencing and to the. district court's confessed

"unhappiness" with the appellate reversal which

required the resentencing [2 R.T. 2-3, 8, 13-

14), the court of appeals rejected reliance on .

North/Carolina v. Pearce, 395 U.S. 711 (1969),.-

neg 5 ‘it viewed the sentence-on remand was

less

United States v. Clutterbuck, F’, 2d ;

(9th Cir. 1971) (No. 26,518; July 7, 1971; slip

~ sheet at page 2). . Finding that in following the

. mandate:to resentence the district court could

"appropriately proceed afresh, the court affirmed:

the imposition of four consecutive sentences and —

four separate fines. Id. at 3.

. 4 ul

‘would receive credit for time served. under the

_ August 30, 1968 sentence [2 R.T. |

severe than the sentence originally imposed. —

_The district court provided that petitioner -

RMASONS FOR GRANTING THE

WRIT . ee

I, THE. DECISION OF ‘THE

COURT OF APPEALS —

SANCTIONS A FEDERAT.

DISTRICT COURT SEN-

TENCING PROCEDURE

PATENTLY OFFENSIVE

TO MINIMAL DUE UPROCESS

STANDARDS, :

Unbridled discretion and unprincipled

review form an unparalleled pollutant oNthe

atmosphere of due process of law guaranteed

by the Fifth Amendment to gaturate the ad-

ministration of justice in federal courts. Were

it, not for the presence of this petition it would

be galaxies past the pale of imagination to ag-

sert circumstances today where a theft of $17

worth of scrap metal could deprive a man of

four years of liberty and four thousand dollars

of property. And the surface injustice of a.

result so befitting a Hugo novel is merely a

manifestation of the pervasive disregard of

fundamental principles which has brought

petitioner's case before this Court.

During the course of five days early in .

1968 petitioner: took four loads of scrap steel

a J

from anair force base in California, ? What-.

ever salvage yalue petitioner might have |

realized from the serap, the 170 pounds were

worth tiot more than $17 to the government,

Under 16 US. Cy $641, a statute aimed: os

primarily at protection of public records but i

extending to other vatuable government property,

petitioner was charged with and convicted of four

felonious crimes for his unauthorized Borap haulk..

ing. ~ When petitioner was Kentenced by the |

Wstrict court, his: outstanding reputation built over

7 @5 years inthe community was ignored because ~

of the court's preoccupation with the costs sugs-

tained by the government in according petitioner -

his righttoa jury trial which lasted four weeks

[Re 'T. 2545-46], Due to the’time and expense -

of trial the court found the case was more serious

‘than any in 14 years (RT. 2545) and accordingly

sentenced petitioner to.10 years imprisonment

“and a $10,000 fine, the maximum for an 18 U.S.C.

$641 violation. When the court later learned

from the court of appeals that petitioner was

subject only to misdemeanor punishment, it was

unhappy with the ruling {2 R.T. 2-3, 8, 13-14]

_ and proceeded to impose the maximum punishment —

for four violations instead of one. The procedures

won the approval of a court of appeals assertedly c

_ resting its reasoning on reality but indeed invoking

2 The 1970 opinion of the court of appeals”

erroneously set forth the four occasions as extend-

ing over a five-week period, United States v.

Clutterbuck, 421 F.2d 485 (9th Cir. 1970), instead -

of the five-day period reflected by the record. -

OR e es

{ ee \

a pretty rhetoric’ to seta perilous precedent.

Mncounte ring threshhold questions, if

_it may be assumed the court of appeals did not

err in cone luding Congress intended the scope

of 18 U.S. C.. §641 to include the taking of

discarded property with scfap value only, it

is difficult to credit the fifther proposition that

the statute allows thg wffense of Stealing scrap

to be multiplied bythe number of" loads taken.

ina five-day episode. Cf. Mikangvich v. United-—

States, i U.S. 551, 554°(1961); Heflin v. United -

States, 358 U.S, 415, 419-20 (1959), Moreover,

‘if such a ‘gislative lapse could be imputed,

there would still lobm the impact of the develop-

- ing Double Jeopardy Clause that multiple statutory

“violations in one transac tion.constitute the "same

offence. See Ashe v. Swenson, 397 U.S; 436,

448, 453-54 (1970) (Brennan, J., concurring).

Thus petitioner's. four loads of scrap from the .

same location over a short period of time may

_ properly be held a single violation punishable »

no more times than it could be prosecuted.

. See Ex parte Lange, 85 U.S. (18 Wall.) 163,

169 (1873), ©

6 Under the 98- -year establishment of EX.

“parte Lange, 85 U,S. (18 Wall.) 163 (1873), it

should be remembered that the district court:

imposed the original sentence upon petitioner on.

August 30, 1968 and then committed him to the -

custody . of the attorney general. Execution --

the sentence having commenced, petitioner was

‘.released on bond pending appeal. The. judgment

of concurrent sentences on the four counts and

fine on one count only thus may not have been

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Approaching the pivotal inquiry, it

appears with unmistakeable clarity that the

district court's 1968. sentencing of petitioner

to ten years imprisonment Coupled with a

$10,000 fine was baged upon wholly irrelevant

factors, including the objective of recouping.

the costs of trial by jury. “Since penalizing

petitioner for exercise of his Sixth Amendment

right to a jury's deter mination of guilt neces-

sar ily impeded the court's capac ity to sentence

"With insight and uriderst: anding, '' Harris v.

United States, 382 U.S. 162, 166 (196: 9), the.

court-imposed barter of rights was wholly in-

consistent with fundamental due process prince ipl es.

See, c.g., North Carolina y. Pearce, _ supra,

395 U.S. at’724; Simmons v. United States,

390 U.S. 377, 393-94 (1968 -

Most critical perhaps. is the question

of the effect of the 1968 sentencing. proceedings

upon the 1970 resentenc ing, It would appear

from an analytic al lattice that. in imposing the

original concurrent sentences on the-four counts,

the court presumably. determined that the four

thefts over the five-day period were not offenses

of the separate character which might warrant

consecutive punishments: thus amply supported

“is the implied determination that the interests

of justice could be furthered by’ only one

6 (Continued)

‘alterable by the district court. See, ee

Borum v. United States, 409 F.2d 433, 439-41

(D.C. Cir. 1967), cert. .denied, 395 U. S. 916

(1969); but see Kitt v. United States, 138 F.2d

842 (4th Cir. 1943).

; | 10. --

maximum term of imprisonment... °° Similarly,

the court's levying the maxirhunr fine on only

one of one of the four counts inescapably impkies

its-determination that no fine should be assessed

on the other three. on See, -e.g., Patton

——

v. North Carolina, 381° . 2d 636, 645 (4th Cir.

1967), it follows of course the ut he aving determined

that the four counts should: be punishable by one _ .

mnaximum sentence, the court was estopped .

from imposing four maximum punishments at

the 1970 resentencing, see Pollard v. United

States, $62 055.354, 359°(1957), absent

TAO! REREE piace

ide ntjficasion of Bome conduct of petitioner to

justify the increase, See North Carolina v. -

Pearce, supra, 395 U.S, at 726; United States

v. Barash, 428 F.2d 328, 332 (2d Cir. 1970). ° :

Petitioner'ssonly relevant conduct. after

the 1968 sentencing was his successful attack

on the court's imposition of-felony punishment:

United States v. Clutterbuck, supra, 421 F.2d

at 486. It was manifest that petitioner had

committed only misde ‘meanor theft under 18 :

U.S.C. §641, see, e.g., United States v.

Horning, 409 F.2d 424, 426-27 (4th Cir. 1969),

and that the district court erred by exceeding

the maximum misdemeanor sentence of one

year imprisonment and a $1, 000 fine. Upon

remand for resentencing as misdemeanor theft,

the district court ignored its.previous determina-

tion that one-fourth of the possible punishment.

was proper and instead. exacted a sentence of. the

mathematical : maximum. —

Such a flagrant abuse of the sentencing

err is constitutionally unjustifiable. The

ak.

ws Pav yma y

Usourt of appeals sanctioned the excursion on

the theory that the 1970 sentence was less severe

than the 1968 sentence, without acknowledging

that the distriet court in fact increased the

sentence to the fullest extent of its power,

$. THE DECISION OF ‘THE

NINTH CIRCUIT -COURT

OF APPEALS CONFLICTS

WITH DECISIONS OF OTHER

COURTS, INCLUDING THE

SECOND CIRCUIT COURT - ‘

OF APPEALS,

“By sanctioning the extravagant district -

court sentencing approach in the present casep

the court of appeals has drawr itself. into sharp

conflict with courts which accord North Carolina

v. Pearce, Supra, a less niggardly reading.

See, e.g., Wood v. Ross, 434 F.2d 297, 299-300

t In refusing to apply Pearce, ‘the court

of appeals cited its earlier decision in Thurman

v. United States, 423 F.2d 988 (9th Cir.), cert.

denied, 400 U.S. 911 (1970). The court was

oblivious to the distinctions that Thurman in-

_ volved resentencing on the original felony. charges

and not resentencing on misdémeanor counts

instead of invalid felony charges, and that

Thurman resentencing was in the interests of

leniency, agreeable to all parties, whereas

petitioner's sentence was the product of the °

court's unilateral attempt to mete out the most

severe sentence possible under the circumstances.

12.

“

(4th Cir. 1970); ‘United States 'v. Lopez, 428

HW. 2d 1135, 1139 (2d Cir. 1970); United States .

‘concurrent sentences for separate offenses is

Vv. Barash, 428 F. 2d 328, 332 (2d Cir. 1970).

In Lopez,. ‘supr a, the Se ‘cond C ire uit’ en!

court of appeals. held that the district court a

was not justified in asse Hsing fines on all nee a

- four counts where the. original sentence had

imposed fines on only two of the four counts.

In the case at bar, the Ninth Circuit has held

that a district court upon resentencing is justified

‘in levying fines on all fgur counts where the

former sentence had set a fine on only. one

count, and that no explanation need appear on

the record,

‘The Supreme Court of California has

squarely held that where a judgment imposing

vacated on appeal, the trial court upon a

retrial may not impose consecutive sentences.

People v. Ali, 66-.Cal.2d 277, 281 (1967);— °

see People v. Thornton, 14 Cal. App. 3d 324,

for California's eastern district. 8

326-27 (1971). Without mention of Ali or its

reasoning that indirect means of increasing

sentence may not be tolerated, the Ninth Circuit

court has reached the opposite conclusion in |

approving the instant action‘of the district court

8 _ In a well-reasoned opinion relying in

part on Ninth Circuit precedent, the oe

Supreme Court has reached a holding which ~

conflicts with the views expressed at bar by |

the court of appeals. Wright v. State (June 14,

1971), in 9 Crim. L.Rptr. 2273 (July 7, -1971).

13.

C .

Hs:

eon

—

There is no ‘rational basis for sustaining

the judgment of the court of appeals in this

case. To allow the de@ision to develop any

precedential viability would portend a fresh

harvest of the sort of shdcking vindictiveness —

condemned by this Court % North Carolina v.

Pearce, supra, 395 U.S. it 725-26, and by

courts other than the Ninth Circuit. The hold-

ing on the present facts that ‘petitioner was

. accorded due process of law denies the very .

essence of the concept. ..

oe : CONCLUSION ~

' For the reasons stated, petitioner

respectfully requests this Court to issue a

writ of certiorari to review the judgment and

opinion of the Ninth Circuit court of appens.

| Respectfully submitted, »- |

BARRY TARLOW*

Attorney for Petitioner

14,

APPENDIX A

UNITED STATES courT OF APPEALS

For THE NINTH CIRCUIT talib

_UNtrep STatTrs OF AMERICA, | , } )

a | Appellee,

— ge: ;

No. 26,518

Jeoun Joseri CLUTTERBUCK, |

fe See -

[July 7, 1971] oles

fee ]

. On “Appeal from the United States Distriet Court for -

Kastern - District of California

—

° ae oe

Before: ME RRILL, BROWNING and ‘MUFSTEDLER, Cireuit

Judges

MERRILL, Cireuit Judge :.

Appellant was convicted of theft of Government property - in

excess of $100, in violation of 18 U.S.C C. §641.1 He Was given. con-

‘current sentences of ten years on each of four counts, and on one

eount he was fined $10,000. | . a

On appeal we found that the Government had “Failed to prove

wthe value of the articles stolen under any count execedled $100.”

United States v. Clutterbuck, 42) F.2d 485, 486 (9th ( ‘in, 1970),

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We noted that the statute under whieh appellant. had been eon- ~

victed aryl sentenced provides that, where the va of the prop-

erty stolen is not shown to %e in exeess of $100, the maximum

sanetion is a fine of ‘$1,000 or imprisonment for one year or both.

Whoever * *.* steals * * * any toe thing of value of the —

- States * * *

Shall. he fined not more than $10, 000 or imprisoned not more ~

than ten years, or both; but if the vatue of such Property does not

exceed the stim of $100, he shall be fined not more than $1, 000 or

papeiagned not more than one YZ or both,’’ .

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2 United States of America vs. ‘ :

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Tlievefore, wo held:-“The sentence imposed is set aside and {

matter is remanded for resentencing.” Jd,

On resentencing pursvant to our remand, appellant was giv

four consecutive sentenees of one year cach and a $1,000 fine

each count--a total of four. years’ imprisonment and $4,000. fii

“atubstantially less than the. penalties originally imposed.

On this appeal appellant. contends that, sinee the original g¢-

teaees on the several counts were eoneurrent. and a. fine was i

posed on but one count, the resentencing 6n a. conseeutive ba

and with fines imposed on all counts was improper. All the jud.

properly could do on remand, appellant contends,«was to redt

the prison sentence to four concurrent terms of oné year each a

the fine to Sie... *~-3 . . . 5

Morth Carolina v.. Pearce, 395. U.S. 711 (1969), on which ¢

pellant relies. does not compel: this result. There the Court w

concerned fhat the possibility of inereased punishment on rema:

would deter the: exercise of appeal rights. Any sentence on’ |”

mand less severe than the sentence originally imposed wor >

avoid conflict with the Pearce rile. See Thurman v. Unit

States, 423 F.2d 988 (Oth Cir. 1970).

J ee “Nor does Kennedy v. United States, 330 F.2d 26 (9th. C

—«LM64), support. appellant’s position. That case concerned {

power of a district eourt, aeting on its own “authority, to corm...

sentenee under Rule 35, Mederal Rules of Criminal+ Procedu

It held that where the oviginal sentenee was unlawful on accor!

of its being in excess of the statutory limit for the erime 4

aco which it, was imposed the Distriet. Court could not impose who

new sentences pursuant to a Rule 35 motion. Rather, the egn-

was limited to correcting the original sentenee by eliminating t

exeess that. rendered it illegal.’ :

we However this eourt in Kentiedy expressly distinguished K

/ United States, 188 F.2d 842 (4th Cir, 1943), where resentér

ing had been directed by .a reviewing court. on was a os

“ ~ W.2d at. page 29; . '

"On" the first appeal, in Witt, inatead ok revising the se

tenee by reducing the term of imprisonment te one witl .

the statutory limits, as the Appellate Court might have dor

me affirming that part of the judgment, it .remanded t

BEST AVAILABLE “COPY

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John Joseph Clutterbuck

case for hn enirely new sentence, Ag stated in United Stat

v. Chiarella, supra, 214 F.2d at page 842:

‘That. did away with the original sentences and so it Wi

held on the second appeal that the district court mig)

- In the “instant case the. original Sentences were. impose

« by the District ‘Court and the same court did the resentenc

ing’ Without any mandate from an Appellate Court.”

Here, in contrast, the district judge did no more than folloy

our. mandate. F me |

With reference to the terms of our earlier: remand, it may b

noted that the error’which we corrected was not one in determin

ing the proper extent. of punishment for a crime the defendan

was lawfully found to have committed ; Yather the error was i}

bower and discretion been directed to offenses of the dimension: -

we found to exist.

Affirmed.

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APPENDIX B

TEXT OF PERTINENT .CONSTITUTIONAL -

_ AND STATUTORY’ PROVISIONS

United States Constitution, Amendment V:

No person shall be held to answer for a

capital, or otherwise infamous crime; unless on

a presentment or indictment of a Grand Jury, —

except in cases arising in the land or naval |

forces, or.in the Militia, when in actual service

in time of War or public danger; -nor shall any

person be subject for the same offence to be twice

put in jeopardy of life or limb; nor shall be com-' |

pelled in any criminal case to be a witness against |

- himself, nor be deprived of-life, liberty, or

property, without due process of law; nor shall

_ private property be taken for public use; without

just compensation. re s

United States Code, Title 18, section 641

(West 1966):

Whoever embezzles,’ steals, purloins,

or knowingly converts to his use or the use of

another, or without ‘authority, sélls, conveys or

disposes of any record, voucher, money, or .

thing of value of the United States or of any

department or agency thereof, or any property

made or being made under contract for the °

United States or any department or agency thereof;

or 3

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mere —S APRA NC Bere Sop seston Mem

. Whoever receives, conceals, or retains

_the same with intent to convert it to his use >

or gain, knowing it to have been embezzled,

stolen, purloined or converted -

Shall be fined not more than $10, 000,

or imprisoned not more than ten years, or :

both; but if the value of such property does ‘va

not exceed the sum of $100, he shall be fined

not more than $1,000 or imprisoned not more

than one year, or both,

ah Ral Teller Bek a

The weed "value" means face, par,

or market value, or cost price, either wholesale

_ or retail, whichever is greater. June 25, 1948,

c. 645, 62 Stat. 725 :

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.