# Petition for A Writ of Certiorari — Clutterbuck v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_1379%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for A Writ of Certiorari - **Published:** January 1, 1971 - **Citation:** 404 U.S. 858 ## Text oor” 5 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 “ a 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 e . > Fy . . « . ° » ad | ’ e nS -% ‘ 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,, 11 12 13 11 13 12. 13 13 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 A ‘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. 3. VU. . % bl . e . * ° . . . e > E . F , Ak . 7 ’ . bal 0 = . : = “ _ . * e ‘ . ss bal * a . . : x = .° ; . . . ; . oe a - ; . * ' x a eB . z S oy . . i . . ng . ‘ ° . ‘ fi . . : « e . : . oc, : . ‘_s " ‘ - ; . : « A p> . q . 3 <3 . es bad . e 5 Ss . . = a ‘ * ° . i s a << s . . id ‘ cow. e « . . . f ° \ : . e : . a : “& . ; . = ~ . . . . . A *. zs ™ ° ¥ . * ‘ , ° > s 5 r a . : ‘ “ z P , * . . . ze 4 ” “, : : v . . ~ v . ° ' lo . "i - . . . * . ‘ . \ ?. i > ’ * Ps As 4 x . . ca s . . ‘i ; F P 3 * 4 : & i ° Fes . . . . : . ‘ ~ r . > . ‘ ‘ . . . E 7 : ‘ a e. 7 * y ° - . iy . . . be . as x * lant : 2 : Z p e ‘ z= at a . * p . S - 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 4. ° ° ‘ ° . ; ‘ A ° : - . . id * F ’ 7 . ‘ . . : ; a ae" ss —— ; < ——— ‘ ’ —_,, ad . . e ,. . -_ > . % ° ; > ‘ . . c : . e . . . ° ’ . = > . by ; . . ad . . “ ie , . a . : ‘ ° ‘ * ® ; - « . + , ; ; . » . . i : ; PY . F ' y = . . . “ - . \ P ° = - . ed , i 4 . . bd ’ = 3 x : — y L t ® ™ . . 4 , bad 7 -. Md 2 . : . ‘ * o". . * e “ * : rf . e 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. 2345.) - fe aks | | , g ; "2 dnote as tits saad kk hate @lavanaieblllansal cil ee ee eae hata =F Bee A Stubs ren Seti gis % 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. | 6. be 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 ot a J s - a 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. - DS 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 9 * i » # Ps ; . ‘ “< : 4 = : oa a5 . s | . < ¢ . x , . , * - x y : . e . , ¢ RB ‘ is ry * e bd : ie eo : ” . . » , aad . . . ; . & a: 7 . - - “. of ns ; a : : Take | : : ; . . : . . ' © _ . 3 7 . A . 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BLT ‘ ¢ 3 . . ?, . z . s ‘ ae e “ ’ tg ~ J bes 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. -- J 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. a “ ex ne (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 . ke = Hs: ie ta iy Be | 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), ‘ v . a Nt pracy ' ¥ . ’ . ‘ the ah erate Sr regener ts pay eat . J IF... eT a * « 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 4 papeiagned not more than one YZ or both,’’ . : ata ey Dee ae : Hersey CRORE MEIN ERR = . . UAT MA, pserty a i rt | Pees: 4 2 United States of America vs. ‘ : PPPS RES 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 vat SOE Ry OI ETE ee TN 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. ¥ ae PERNAU-WALSH PRINTING CO., SAN FRANCISCO | 7-12-71—380 , : lee aie eT el meee, lites en . . 4 : z : a o Lg bd "i a “ . A * M34 ¥. a SPM Ms ome ee . 3 i Ganees ote ey DPR DS IIT Lh, o 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 i ih ee ” ater : . hand . .- ‘ . » . . F . 2 ‘ ’ ‘ ‘ ° . . x a = . a . \ Pe ; ? ’ . ° * . F . - ‘ . ° . ‘ - } * 2 : : os ‘ . Pe P' 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 : ERI NF ee A ane ae ea: . SE ee at ee an ’ . ° --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_1379%3A1. Public record. Not legal advice.