Brief for the United States — Berman v. United States

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INDEX

ia canna nnn canal eoanacksccceececsces 1

Nee hd tian anne non acegpeccedpcoceesecsse 1

Questions presented _-_-_.------------- spbnaneouhbegeecbeos 2

Statutes and rules involved___----_-- a es ndgédchsackeon 2

Dee ean nnnanemcannesqecccescoeectsccesed 2

I on en. one ceccccceccccccqoeecce 6

Argument:

I. The first sentence imposed upon the petitioner was, in “~

our view, 8 final and, therefore, an appealable judg-

ES ee ee See 8

II. If the first sentence was not appealable, it is our view

that the second sentence is not a consent judgment

e insofar as it imposed a fine on the petitioner, and that

the petitioner upon an appeal therefrom was en-

titled to a review of the merits of the appeal_-.-.---. 21

Conclusion el ane inc eemeeeneacseneegenen 24

CITATIONS

Cases: ~ .

Beebew. Russell, 19 How. 283_----- pensunsauedscsqnouse 11

, Burns v. United States, 287 U. 8. 216.......---.---.--.- —

Cogen v. United States, 278 U. S.:221__....-------~-.-- = 8

Cornerz v. United States, 69 F. (2d) 965,...........-..2- 20

Escoe v. Zerbst, 295 U. S: 490_--- +... ------------ eee 17

Ex’parte United States, 242 U. 8. 27....-...------------ 12

Hetke v. United States, 217 U. 8S. 423: .....-.--.-------- 8,12

Hill v. Wampler, 298 U. S. 460_--_..-.-. ..----------e-- * 9

Kriebel v. United States, 10 F. (2d) 762_............-.-.- 14

Mariano v. Hibbard, 243 Mass. 90.......- tennessee 19

Miller v. Aderhold, 288 U. S. 206........-.-.-----.-+--- 9, 21

Pritchett v. State, 140 Md. 310_.._......---...-----.--- 19

State-v. Hall, 173 Wash: 188... -.. ...ccccccccccccccecce 19

State v. Liliopoulos, 165 Wash. 197............-..-....-- 19

Sutton v. State, 194 Ind. 479__.___...----..------------ 19

Taylor v. United States, 286 U.S. 1........---.--------- 24

_United States v. Antinori, 59 F. (2d) 171.............--- il

United States v. Benz, 282 U. S. 304......-.--.---+-- .--- 11,17

United States v. Gargano, 25 F. (2d) 723...............-- 13

- - United States v. Habib, 72 F. (2d) 271_............---.- 20

United States v. Knickerbocker Fur Coat Co., 66 F. (2d) 388. 4

21490—37——1 a)

Il

— ‘ Page

United States v. Lecato, 20 F. 8 4, 9, 10, 18, 19

United States v. Levinson, 54 F. (28) 363-_----.----------- 9

United States v. Long Branch Distilling Co., 262 Fed. 768_- 19

_ United States v. Messina, 36 F. (2d) 699........-..------ 9

* United States v. Murray, 275 U. 8. 347_..--------------- 12

United States v. Pile, 130 U. 8. 280_.....------------ a 15

Vorhees, U. S. ex rel., v. Hill, 6 F. Supp. 9222_:.-.------- 20

BO Ges By GS Biivcdeccccctsdcncncsancnscbedsccaacess 11, 16

Statutes and rules:

Sane Sete, on rented Se. I iin teiaciahniinediniin S

Probation Act of March 4, 1925 (U. 8.. c., Title 18,

Sec. 726) ......-..-..-----4--+ +--+ 2s -- 232-22 ---- => 11

Act of March 8, 1934, c. 49, 48 Stat. 200 (U. 8. C., Title 28,

iD, Fs Es Mico ncinhccccnnedunstanssncmesneasehe 8

Criminal Appeals Rules, promulgated by Supreme Court

May 7, 1934_.....-.--- wen nn nn nen enn oes eee eee -e--- 8,9

[ore | oe

ome Supreme Court of the Bhited Plates

-OcroserR TERM, 1937 -

No. 26

} 4

ABRAHAM C. BERMAN, PETITIONER

THE UNITED STATES OF AMERICA .

ON WRIT OF CERTIORARI TO THE UNI TED STATES CIRCUIT ~—

COURT OF APPEALS FOR THE were CIRCUIT

BRIEF FOR THE UNITED STATES

a

OPINIONS BELOW : eat

No opinion was. rendered by the District Court.

The opinion of the Circuit Court of Appeals (R.

37-39) is reported in 88 F. (2d) 645. nee

| | JURISDICTION

The judgment of the Circuit Court of Appeals :

was entered March 8, 1937 (R. 39). The petition

for writ of certiorari was filed April 12, 1937, and

- granted May 17, 1937 (R. 44). The jurisdiction

of this Court to issue the writ is conferred by Sec-

tion 240 fa) of the — —* as amended by

(1)

2

the Act of February 13, 1925. -See also Rule XI

of the Criminal Appeals Rules Promulgated by

this Court May 7, 1934.

QUESTIONS PRESENTED

1. Whether the petitioner’s first sentence, even |

though it imposed a definite term of imprisonment,

was ‘not a final and therefore not an appealable

‘judgment becausé execution of the sentence was

suspended and ‘the petitioner placed on probation.

2. Whether the petitioner’s second sentence, in-

sofar as it imposed a fine in addition to the original _

sentence, was in effect a consent judgment, the —

fine having been entered at the request of the peti-

tioner in order that he might have a valid appeal

‘in the event his first sentence should be held not

— to be appealable.

STATUTES. AND RULES INVOLVED

The pertinent statutes and the material provi-

~ sions’ of the Criminal Appeals Rules, promulgated

, hy this Court May 7, 1934, are “printed i in the Ap-

pendix to the petitioner’s brief, pages 32-39.

, STATEMENT

On December 23, 1936, the petitioner was excel

guilty by a jury in the District Court of the United

States for the Southern District of New York.upon

19 counts of an indictment charging the use of the

mails in furtherance of a scheme to defraud, in vio-

lation of U. S. C., Fitle 18, See. 338, and of con--

spiring to commit that offense,- in violation of

U.S. C., Title 18, Sec. 88 (R. 8, 30, 34).

wif

3

On ‘December 29, 1936, the petitioner was sen-

tenced on each‘ count to a year and a day; the, ternis

. of Imprisonment to run concurrently.’ Execution

of the sentence was, however, suspended and: the

defendant placed on probation for a period of two

_ years (R. 11, 30-31, 34).. On December 30, 1936,

_ the petitioner filed in thé District Court a notice

of appeal to the Circuit Court of Appeals for the”

Second Circuit (R. 1-2, 25, 34), and a duplicate

of this notice was transmitted to the Girouit Court

of Appeals on December 31, 1936 (R. 13).

° OnJd anuary 28, 1937, the petitioner, hedge uncer-

tain as to whether an appeal would lie from a sen-

tence the execution of which had been suspentled,

made an applicatian to the District Court that

be resentenced in order to avoid any doubt as to iv

right to appeal. He réquested that in resentencing

him the court include a: fine of $1 on each count

upon which he had been convicted. The United .

States Attorney\ opposed. the. application on the

ground that since an appeal was already~pending

vefore the Circuit Court of Appeals, the District

Court had lost jurisdiction to resentence the peti-

tioner. He also argued that the appeal should first

_ be withdrawn pursuant to an order. of the Circuit

- Court of Appeals and the previous sentence vacated

before the imposition of a new one. The’ petitioner .

requested, however, that the court resentence him .

1The record discloses - that the petitioner is a lawyer

(R. 41), and his brief states that he has been disbarred in

consequence of his, conviction (p. 3)

4 -

without requiring him-to withdraw the pending

appeal and without vacating the previous sentence,

in order that if one of the appeals were dismissed

he might still have an appeal pending. The Dis-

trict Court then reimposed the prior sentence, add-

ing thereto a fine of $h.on each of the counts upon

which the petitioner had been convicted. Execu-

tion of the payment of the fine was stayed pending’

appeal. The court refrained, in accordance with

the request of the petitioner, from vacating the

prior sentence (R. 35-37, 40-44). On February 1,

1937, the petitioner filed in the District Court a |

notice of appeal from the second sentence (R. 13-

14, 29, 32, 35). .

On February 2, 1937, the attics enced 1 in the

Circuit Court. of Appeals for a consolidation of his

two appeals (R. 29-32). On February 5, 1937, the —

~ Government filed a motion in the Circuit Court of |

Appeals for an order dismissing the first appeal, |

because it was from a suspended sentence ; or, in

the alternative, for an.order vacating the judgment

of the District Court resentencing the petitioner

. and dismissing the appeal from this judgment, be-.

cause the District Court lacked jurisdiction to enter

such judgment (R. 33-37).

The Circuit Court of Appeals in its opinion

(R. 37-39) held that the first sentence was inter-

locutory because of the suspension of its execi-

tion; and that for this reason, if the second sen-

tence did not vacate it, the appeal therefrom must

4)

be dismissed under the authority of its decisions in

United States \ v. Lecato, 29 F. — 694, and other

cases.

With reference to the second sentence, the court

- assumed. that the appeal from the first sentence

was a nullity; that in consequence the District

Court had power to resentence the defendant; and

that it could, at the defendant’s request, add to the

sentence by imposing a fine of $1 on each count.

The court held, however, that the defendant could

not complain of this part of the judgment because

he not only consented to it, but actually asked for |

it, and that in a Federal court it is not the practice

In such cases to dismiss tlre appeal, but to-affirm-the

judgment without consideration of the merits of

the appeal. It.accordingly affirmed the judgment

in so far as it imposed the fine.

The court. further held with reference to the

second sentence (R. 38-39) : ae

. Literally it [the second sentence] reimposed

the sentence of imprisonment, and again

suspended sentence; thus leavihg two sen-

_ tences outstanding. If it be construed as not

vacating the first judgment, it is clearly in- .

valid and must be: reversed; if it be con- i

strued to vacate the “rst, as we assume, it is

not appealable, because it was not an inci-

_ dent to the imposition of the fine and so —

reviewable along with it. It was concurrent

and independent, and since it was interlocu-

tory taken alone, the appeal must be pro

tanto dismissed. . Finally, if the second sen-

ns eet a eS

6

tence be treated as vacating the first, the ap-

peal from: the first must nevertheless be

- dismissed; though in that event because

_ there was not judgment from which to ap-

peal.

In accordance with its dpinion the Circuit Court

of Appeals entered judgment dismissing the ap-

@

peal from the first sentence; affirming the judg-

ment imposing the fine; and dismissing the appeal

from the second sentence of imprisonment (R. 39).

SUMMARY OF ARGUMENT

1. The first sentence imposed upon the petitioner

on December 29, 1936, was, in our opinion, afinaland —

therefore an appealable judgment. It completely

disposed of the merits of the litigation between the

parties and thus met the test: of finality for appeal

purposes expressly sanctioned by the decisions of

this Court. Suspension of the execution of sen-

tence was granted solely to accomplish the humane

and beneficent purposes of the Probation Act and

not for the purpose of permitting any reconsider-

ation of the merits of the case. Nor is its finality

for appeal purposes destroyed because the District

Court retains such control over the sentence that

another order is required to carry it into execution

or because the District Court, if probation should be

revoked, may enter a new and different sentence,

The considerations governing such action of the

District Court are analogous to those which moti-

vated it in granting probation. No reexamination

_ of the merits of the litigation is involved.

4

OY

7

7

Cases holding that no appeal will lie where impo-

sition of sentence has been suspended under ‘the

Probation Act are obviously not in point because in

such cases no sentence or judgment has been pro-

nounced by the District Court.

"2. Tf, as the Circuit Court of Appeals held, the

first sentence was interlocutory, we believe that

court was wrong in concluding that the second

sentence, pronounced en January 28, 1937, was.a

consent judgment, insofar as it imposed a fine, be-

cause the petitioner requested the imposition of

such fine, and that the petitioner was therefore pre-

cluded from review of the-merits of his appeal from

that judgment. The distinguishing feature of the

cases relied upon by the court below is that in those:

‘eases the-party assailing the judgment had acqui-

esced in the determination adverse to him of the

legal and factual issues covered by the judgment,

whereas in the instant case the petitioner, as is

pointed out by him, ‘‘at no time indieated’ acqui-

> eseence in the céntral issue of the case, 1. e., his ~

guilt or the correctness of the proceedings in the

district court’’, the fine being imposed at his re-

quest solely to protect his ‘right to appeal and to

secure a review of his conviction in the event the

first sentence should be held to be non-appealable.

3. While we cannot suppart the decision of the

Circuit Court of Appeals with respect, to the two -

principal questions here involved, we do. not, out.

of deference to the views of that court, confess

error but submit the case for decision by this Court. .

21490—37——2

ARGUMENT

THE FIRST SENTENCE IMPOSED UPON THE PETITIONER

WAS, IN OUR VIEW, A’ FINAL AND, THEREFORE, AN AP-

PEALABLE JUDGMENT |

It cannot be disputed, of course, ‘that a defend-

ant has no right of appeal to a Circuit Court

of Appeals in a criminal case unless there has been

‘a final judgment. Cogen v. United States, 278 -

U.S. 221; Heike v. United States, 217 U. S. 423;

See. 128 (a), Judicial Code as amended (Pet. Br.

32): There is nothing in the Criminal Appeals

Rules, promulgated by this Court on May 7, 1934,

which may be construed as granting appellate

ie to review interlocutory orders in such

cases.”

The principal question presented by the deci-

sion of the Circuit Court of Appeals is whether

there is a’final and, therefore, an appealable judg-

ment where a definite sentence has been pro-

nounced in a criminal case, but execution thereof

has been suspended and the defendant placed upon

probation: This question arises with reference to

_ *The Act of March 8, 1934, c. 49, 48 Stat. 399, U. S. C.

Title 28, Sec: 723a, pursuant to which the Criminal Appeals

‘Rules were promulgated, provides that:

“Src. 2.. The right of appeal shall continue in those cases .

in which appeals are néw authorized by law, but the rules:

made as herein authorized may prescribe the times for and °

manner of taking appeals and applying for writs of certio-

rari and preparing records and bills of exceptions and the

conditions on which supersedeas or bail may be allowed.” -

~~"

wmoate i ae i sages PES EDIE OR LIT —s . :

ae TRE rer SOIT OE ES ’ PC NY OER ee Pr Se SP ATS FILO DS IIe OE PERM,

— —'—— 0 LL ee ee ee a ae mete - - ~ , oO “sO =~ =

9

the first sentence imposed upon the petitioner, on

December 29, 1936. area |

It is settled by the decisions of this Court that

in a criminal case the sentence is the final judg-

ment. Miller v. Aderhold, 288.U. 8S. 206, 210; Hill

v. Wampler, 298 U.S. 460, 464. This view is forti-

fied by the Criminal Appeals Rules (Rule II, par.

3; Rule III, par. 1). Following this prineiple

the Circuit Court of Appeals forthe Second Cir-

cuit in a line of decisions, of which United States

v. Lecato, 29 F. (2d). 694, is the leading case, held

that where imposition of sentence has been sus-

pended an appeal will not lie.’ As the ratio deci-

dendt of these decisions is, of course, that where a

sentence has not been pronounced there is no final

judgment from which to appeal, it is evident that .

these decisions do not apply in the present case,

where there was a sentence imposed.

Although a sentence was imposed in the instant

case, the Circuit Court of Appeals held that it was

interlocutory. because its execution was suspended.

While the court apparently concedes that stay of

execution of a sentence ‘‘until the happening of

_* See also the following decisions of the Circuit Court of

Appeals for the Second Circuit: United States v. Messina,

36 F. (2d) 699; United States v. Levinson, 54 F. (2d) 363;

‘United States v. Knickerbocker Fur Coat Co., 66 F. (2d)

388. A similar decision was rendered by the Circuit Court

of Appeals for the Ninth Circuit in Starklof v. United

States, 20 F. (2d) 32, 33. The Circuit Court of Appeals in

_ Its opinion in the Lecato case refers to a number of State

- decisions sustaining this view (p. 695). |

conn PENTEL AS LOT ET TTA ROS MRA Y Uh ets Hor * eer ee

10

some event over which the judge has no control, like _

the termination of an appeal, or the occurrence of

some outside eondition’’ would not-destroy finality

of the sentence for appeal purposes, it held that

- where the suspension of execution is incident to the

placing of the defendant upon probation, there is _

' not merely a stay of execution ; that ‘‘ The court has

never finally disposed of the case at all; the sen-

tence though definite, remains conditional; not’

only may it never be executed, but its execution de-

pends upon another decision of the judge. Indeed,

its very length may be reduced during the period of |

probation. _ United States v. Antinori, 59 F, (2)

171 (C. G. A. 5).”’ For these reasons apparently -

the court was of the view that there was no sub-

stantial difference between the situation where, as ~—

‘in the instant case, sentence was imposed but its»

execution suspended. and the defendant placed

upon probation and the situation where, as in the

Lecato case, imposition of sentence was susp&hded

and the defendants placed upon probation. TRthis

connection it said that “‘ Perhaps it is desirable that

- aman, convicted and put upon probation, should be -

able to review the trial, but if he may not do so

when no sentence is imposed, he may not, when.

’ .*nothing more has been done than fix the maxi-

mum. punishment he must undergo, if it ever be

decided to punish him at all.’’ (R. 35-36.)

_ From this analysis of the decision of the Circuit

Court of Appeals it would appear that there are

‘11

‘two factors which underlie the holding that the

sentence imposed upon the petitioner on December

29, 1936, was not a final judgment: (1) that the

sentence might never be carried into execution, and

(2) that the District Court retained such control

over its sentence that another decision of the court

-was needed to carry the sentence into execution,

and that the District Court could, upon revoking

' probation, enter a new and different sentence.

While the reasoning of the Circuit Court of Ap-

peals is persuasive, we do not believe that either of

the considerations to which the court refers is of

any materiality in determining whether the sen-

_ tence was a final and ‘therefore an “ appealable

| judgment. Se . oo

The criterion for determining whether a judg-

- ment is final for appeal purposes was thus stated

by this Court in Beebe v: Russell, 19 How. 283, 285:

_. When a decree finally decides and disposes

_ of the whole merits of the cause, and re-

serves no further questions or directions for

- the futyre judgment: of the court, so that

_ * While it is clear that whére the execution of sentence has

been suspended and the defendant placed on probation, the

court upon revocation of probation may order the sentence

originally imposed carried into execution or may reduce the

sentence (United States v. Antinori, 59 F. (2d) 171 (C. C.A.

5th) ), it-is open to doubt whether it may increase the sen-

tence originally imposed. See Section 2 of the Probation

Act (U.S. C., Title 18, Sec. 725; Pet. Br. 36-87), but ef.

United States v. Antinori, supra (p. 172) ; 36 Op. A. G. 186,

191-192; United States v. Benz, 282 U. S. 304, 307.

; _

12 \

it will not: be necessary to bring the cause

again before the court for its final decision, ..

it is a final decree.

See also Hetke v. United States, 217 U.S. 423, 429, -

supra.

In the instant case a a verdict was returned against

the petitioner by the jury and that was confirmed’

by the sentence or judgment of the trial court.

Nothing was left for determination on the merits.

The suspension of execution of the sentence was —

not for the purpose of permitting any reconsider-

ation of the mierits of the litigation. -It was

granted under the Probation Act to permit the

- accomplishment of the beneficient and humane

purposes of that statute. Execution of sentence —

may be suspended and the defendant placed upon .

probation only where ‘‘the end@of justice and the

best interests of the public, as well as the defend-

ant, will be subserved thereby.’’ (Section 1 of the.

Probation Act, Pet. Br., p. 36.) The object of the

statute, as was pointed out by this Court in United

States v. Murray, 275 U. S. B47, 358, “‘is the at- |

tempted saving of a man whi has taken one wrong

step and whom the judge t to be a brand who

can be plucked from the burning at the time of the

imposition of the sentence.”” A suspension of exe- -

cution of sentence for such purpose obviously pre-

sents considerations entirely foreign to any reex-

amination of ‘the: merits. of the litigation. Cf.

Ex parte United States, 242 U. S. 27.

13°

As was pointed out in United States v. Gargano,

29 F. (2d) 723 (E. D. La.), a suspension of execu-

tion of sentence granted'for the purpose of accom-_ .

plishing the aims and objects of the Probation Act —

flows from a source entirely separate and different

from that under which the court acts when it pro-

nounces sentence. The court said, (p. 724):

In several of the opinions there seems an

inclination to the view that the action of the -

trial court in suspending the execution of a _

~ sentence or judgment is part of the sentence _

' and not separable. The contrary view seems:

more ‘nearly correct. The sentence is im-

posed according to the penal statute under

which the conviction is had, and is a judicial

function flowing directly from the ‘statute -

‘ under which the criminal | proceeding is

brought ; whereas the-duties imposed by the

Probation Act are of rather an auxiliary or:

ancillary character, sui generis in nature.

These constitute a judicial function only by

virtue of the legislative - authority which.

Congress vested separately in the court, and |

- which might well have been vested-in some

_ exeeutive officer, board, — or commis-—

‘sion. | oe

As a suspension of execution of sentence under

the Probation Act is not granted for the purpose of ©

securing any reconsideration of the merits of the .

litigation, it cannot, of course, be regarded as set-

ting aside or in yup altering the sentence or

r 14

' Judgment pronotinced. by the ‘District Court. As

was said in Kriebel v. United States, 10 F. (2d

762, 764 (C.C. A. 7th): ° - oe

Relying on United States v. Mayer, 235

U.S. 55, 35 S. Ct. 16, 59 L. Ed. 129, holding

_ that the court cannot set aside or alter its

_judgmént after the expiration of the term at_ |

which it is entered, the defendant in error

argues that to suspend the execution of a

sentence is to set aside or alter. the sentence. '

- This seems to have been conceded in Niz v.

James, supra [7 F. (2d) 590]. We cannot

‘agree to this. It has never been contended

. that the statute providing for the release

from jail of a poor convict imprisoned for

nonpayment of a fine or fine and costs pro-

vided a method for setting aside or‘altering

the judgment. It-is only a way of relieving

‘from further service ander the sentence.

Nor has the Parole Act been held to have this

quet. * * *-

The court accordingly held that the Distyict Court,

_ after the expiration of the term at which a sentence

was rendered and after appellate proceedings had

been concluded, could entertain a petition to-sus-

pend the execution of the sentence and place the

- defendant on probation. _ _

As it would seem apparent therefore that a sus-

pension qfexecution of sentence under the Proba-

- tion Act is conditioned upon considerations which

have no relationship to a reexamination of the

merits of the litigationyit is difficult to escape the

conclusion that such a suspension of execution, in

~—* Qa

_— 4

ee

10

so far as its‘legal effect is concerned, differs in no

essential respect from that whigh was involved in

the decision of this Court in United States v. Pile,

' 130 U.S. 280. In that case there was a suspension .

of the execution of a judgment in a criminal case —

until the next term of court, unaccompanied by any

pending motion for a rehearing or modification of

the judgment or other proceeding taken at the term

of court when the judgment was rendered. This

Court held that despite the suspension ef the exe-

cution ‘of the sentence, the judgment remained in

' full foree and that the trial court was without.

further jurisdiction of thie case. The Court said

“(pp. 282-283) :

When the Circuit Court had enbened its

judgment against the defendant for an im-

prisonment of ‘three months and a fine* of

$250, and had overruled the motion in arrest

of judgment and for a new trial,-it had

finally disposed of the ease. No new motion

was made at that term of the éourt for any

farther consideration of the matter, and the

judgment thus entered was final. * It is true ‘

that the court made an order, upon the ap-

plication of the defendant, by which the ex-

ecution of that judgment was suspended

- until the fourth Monday in November,

which was during the same term, and that on

the 24th of November.another order was

entered still farther suspending its execu-

-tion until the next term of the court. But _

we do not consider that this’ order for the

”*

16

suspension of such execution set the judg- -

< ment aside or was founded on any further

motion to reconsider that judgment. , Al-

though the mere execution of it was sus-

pended until the next term-of'the court the

_ judgment remained in full force, with no

proceeding pending to rehear, reconsider, or

modify it. , ee

See also 36 Op. A. G. 186.

Nor would it seem to be material insofar as the-

- finality of the sentence for appeal purposes is con-

_ cerned that the District Court retains such con-

trol over its sentence that another ordek.of that

court is required to carry it into execution,’ or that

the District Court may enter a different sentence

if it should revoke probation. The considerations

which would govern the court’s action in-thgse re-

-spects are analogous to those which motivated it

when it suspended execution of the sentence and ©

granted probation.

original or a n

*Obation is revoked and the

sentence carried into execution

solely becaus¢ the defendant, by his conduct, has —

breached the trust reposed in him by the District

' Court and has. shown himself no longer: worthy

of receiving thesbenefits accorded him under the

Probation Act. No reconsideration of the its

of the litigation is involved in the of the

court when it revokes probation, at ad an appeal

* The Circuit Court of Appeals debit had in mind

an order revoking probation and requising that the sentence

originally imposed. be carried into execution.

a

47

from such an order involves only the question

whether there has been an abuse of @iscretion in

revoking probation. Burns v. United States, 287

U.S. 216, 222; Escoe v. Zerbst, 295 U. S. 490, 493.

Contrél is retained by the District Court over the

sentenge solely to acgomplish the objects and pur-

poses of the probation statute. As was pointed ~

out by this Court in the Burns case (p. 222):

[The defendant while on probation] is still ©

a person convicted of an offense, and the

suspension of his sentencé remains within

the control of the court. ‘The continuance

of that control, apparent from the terms of

the statute, is essential to the accomplish-

ment of its beneficent purpose,‘as other-

wise probation might be more reluctantly

‘ grantéd or, when granted, might be made

the occasion of delays and obstruction .

_ which would bring reproach upon the ad-

ministration of justice.

‘As the control which the court retains over its

sentence under the Probation Act involves consid-

erations which have no conceivable relationship to

a reconsidération of the merits of the litigation, it

is difficult to see. how the retention of such control

affects the finality of the sentence for appeal pur-

poses. If such retention of control over a sentence

destroys its finality, it would seem to follow that

no criminal judgment pronounced “by a District.

Court could ever be regarded as final when ren- .

dered, for this Court has held : in United States v.

t

| Benz, 282 U.S. 308 that a District Court has the

power at any time during the term at ‘which a sen-

tence was rendered to modify it, at least to the

extent of -reducing it, even though thé defendant

has been committed and entered upon the service

of his sentence.

While the Probation Act permits retention of

control by a District Court over its sentence, irre-

spective of terms of court, in order to subserve the

manifest purpose of that statute, we have found

nothing, either in the legislative history of the Pro-

bation Act: or otherwise, which would warrant the

conclusion that that statute has any bearing upon

the appealability as a final judgment of the |

sentence pronounced.

“The court below was undoubtedly largely in-

fluenced in its decision by its holdings in United

States v. Lecato, supra, and other cases that a,de-

fendant who has been placed upon probation fol-

lowing the suspension of the im position of sentence

could not appeal. But the court itself pointed out

the distinction between such a situation and that

presented in the instant case, where sentence was

imposed and execution merely suspended as an

incident to the granting of probation, when it said

in the Lecato case (p. 695) :

> The appeal from the suspension of sen-

tence was premature. The only jud gment in

a criminal prasecution is the sentence, and

when sentence is suspended there ts no judg-

ment from which toappeal..* * *

™ _! Cine

* * * nor is there any serious injus-

tice involved ; a defendant may at any time

insist upon the imposition of Sentence, if so

minded and if he prefers to remain under

probation rather than to take his chances, no

grave eVil results*. At any rate, if it be

theught desirable that he should have an ap- a

peal, the law is too well settled for us to

change it. ape ours. }

‘ - In other words, the difference between the situa-

tion presented in this and the Lecato cases is simply

that here there was a judgment of the court

- sentence (Cf. United States v. Long Branch Di

tilling Co., 262 Fed. 768 (C. C. A. 5th) ).

sentence being a final’ judgment the petitioner

was entitled to apptal under the express authority

granted in Section 128 (a) of the Judicial Code _ .

_ (Pet. Br. 32).

Our view as ra the epeettahlitliy.a of the sisdiaiais

pronounced on the petitioner on. December 29, 1936, -

the first sentence, is fortified by the state decisions,

which have uniformly held where the question has_-

_ been raised under state probation laws, that an

appeal will die where sentence is imiposed but its

execution is suspended and the defendant placed on

probation. See State v. Lillopoulos, 165 Wash.

197; State v. Hall, 173 Wash. 188; Pritchett v:

_ State, 140 Md. 31 ig wees v. State, 194 Ind. 479;

Mariano v. Hibba d, 243 Mass-90. -

Various other cdnsiderati&ns s supporting the view

that the first sentence imposed on the prisoner

20.

was appealable are presented in the brief for the

petitioner.

Cornerz v. United States, 69 F. (2d) 965 (C. C. A.

5th), while containing language which -might be

construed-as supporting the decision of the court

below, did not pass upon the question here pre-

sented: Indeed, the eourt seems to have recog-.

nized that there might be a distinction, from the

standpoint of appeal, between a case where under .

the Probation Act sentence was imposed and its

execution suspended and a case where there has |

been no imposition of sentence. , On the. point de-

cided, the decision in the Cornerz case is contrary

to that in United States ez rel, Vorheee v. Hill, -

6 F. Supp. 922.(M. D. Pa.), which, in the light of

the principles heretofore stated, would —? to

be the better reasoned decision. |

If, as we believe, the first sentence was a final

; judgment, the appeal therefrom, was elearly valid,

and the District Court was. obviously without

power during the pendency of such appeal to alter,

revise, or modify its judgment by resentencing the

petitioner. United States v.. Habib, 72 F. (2d)

271 (C. C. A, 2d), and cases cited. See also the

additional cases cited by the petitioner at page 8

of his brief. Under these circumstances it is clear

that the second sentence imposed on the petitioner

on January 28, 1937, would be a nullity.

« 21 .

ae

IF THE FIRST SENTENCE WAS NOT APPEALABLE, IT IS OUR

. VIEW THAT THE SECOND SENTENCE IS NOT A CONSENT

JUDGMENT INSOFAR AS IT IMPOSED A FINE ON THE —

PETITIONER, AND THAT THE PETITIONER ‘UPON AN

_ APPEAL THEREFROM WAS ENTITLED TO A REVIEW OF °

” THE MERITS OF THE APPEAL

Afté& holding that the first sentence was inter-

locutory, the Circuit Court of Appeals proceeded

to a consideration of the reviewabhity of the sec-

ond sentence imposed on the petitioner on January

28, 1937. . It assumed that the appeal from the first

sentence was a nullity; that in consequence the Dis-

trict Court had power to resentence the petitioner ;

and that it could, at the petitioner’s request, val-

idly add to.the prior sentence by imposing a fine

of one dollar on each count.’ It held, however,

¢ We think that the Circuit Court of Appeals was correct ,

in its assumptions if it was right in holding that the first

senteri¢e was nt an appealable judgment. If that sentence

was interlocutory, as the court held, the District Court

clearly had the power to proceed to the rendition of a final

judgment (cf. Miller v. Aderhold, 288 U.S. 206, supra), and

the second sentence would consequently supersede the first

sentence. Moreover, it is apparent. that the District Gourt

did not intend that the first sentence should stand if it was

not appealable. Its purpose in resentencing the petitioner

was manifestly to:-make sure that there was an appealable —

judgment if the first sentence was not appealable. It would

seem to follow, therefore, that if the Circuit Court’ of Ap-

peals.correctly held that the first seritence was not an appeal-

able judgment, it was further correct in assuming that the

second sentence vacated the first. (R. 38.) -We therefore

deem it unnecessary to discuss what the court’s action should

have’been if the first sentence was not vacated by the second

one, “leaving two sentences’ outstanding.”

“\

22 , ‘

that insofar as the segond sentence imposed a fine —

‘upon the petitioner, there was, in effect, a consent

judgment because the petitioner had requested the

imposition of the fine. e court consequently

concluded that although: thé second serffence was in

this respect appealable, review could not be had of

the merits of the petitioner’s appeal from this sen-

tence ander the practice obtaining im the Federal -

courts in respect of consent judgments.’

In holding that the second sentence, insofar as it .

imposed the fine, was in effect a consent judgment,

the court relied upon a line of ee by this and

"Insofar as the secoml sentence reimposed the first, the

Circuit Court of Appeals held that the appeal must be dis-

missed pro Jganto upon the same ground that it dismissed the

appeal the first sentence. If the court was correct in

its holdi to the first sentence, it — seem to follow

that it yas correct in its holding as to the identical portion

_ of the second sentence. That portion of the sentence could

obviously not serve as a basis for appeal. The second se

tence appealable only because the i ition of the

fine made it a final judgment. If the fine had not been

requested by. the petitioner, the Circuit Court of. Appeals

would unquestionably have reviewed the merits of the peti-

tioner’s appeal and ordered a reversal of his convictign if it

found error. There would seem to be, therefore, no basis

for the view of the petitioner that under the decision of the

Circuit Court of Appeals the second sentence became, in

effect, a dual judgment and that the result of that decision

would be that where there has been imposed a prison sen-

tence and a fine upon the gefendant, and execution of the

prison sentence has been suspended under the Probation Act,

the defendant would nevertheless be required to remain on

A probation even though on appeal there was held to be revers-

le error, the defendant being relieved only of the Tr

of the fine (Pet. Br. 18).

23

other courts\in civil pases (R. 38), the distinguish<“>

ing feature of which is that the party as¥ailing

the judgment had acquiesced in the determination

adverse to him of the legal and factual issues cov-

ered by the judgment. The crucial difference be-

tween these cases and the present case is, we think,

aptly pointed out by the petitioner in his brief

when he says (p. 29): .- =

the petitioner at no time indicated acquies- ?

cencé in the-central issue of the case, i. e.,

his guilt or the correctness of the preceed- \

ings in the district court. Rather, he eom- ~ 1

plained of the fitst,sentence because it was

in such,form.as possibly to deprive him of

‘the right to a review of the proceedings in

the trial court culminating ina judgment

of conviction,, While he sought modifica-

tion of the first judgment, he did so only to

make more certain his right to have his cons

viction set aside. Nor ‘was his intention

undisclosed; trial judge and prosecitor

. were fully informed. ‘he trial judge, shar-

‘ing the petitioner’ fears and desiring to

assure the right of appeal, resentenced him,

again suspending execution of imprison-

ment and placing him‘eri probation, and

imposing a fine. ice.

While we have found nbd ease precisely in point,

the petitioner cites several decisions which lend

support to his view (Pet. Br. 30-31).

It therefore foliows that it is our view tHat if the

Circuit Court of Appeals was correct in holding.

*

—

- 24

the first sentence was not an appealable judgment,

it was wrong in concluding that thé second sen-

tence, insofar as it imposed a fine upon the peti-

tioner, w as a consent judgment and that the peti- .

tioner was in consequence precluded from a review

of thé merits of his appeal from that judgment.

CONCLUSION

While we are unable to support the decision of

the Circuit Court of Appeals upon the two prin-

cipal questions involved in the instant case, in def-

erence to the views of that court we do not: for-

inally confess error, but submit the case for the

decisién of this Court. Cf. Taylor v. United States,

— 286 U. 8.1, 5. |

| ae STaNLEY REED,

Solicitor General.

RIAN McMAHON,

f istant Attorney General.

¢ ; - Wi11am W. Barron,

Special Assistant to the Attorney General.

. Wiu1AM J. Connor,

W. Marvin Sirsa, .

: Attorneys.

— 1937. ; .

U. S. COVERNMEMT PRINTING OFFICE: 1937

a

SUPREME COURT OF THE UNITED STATES.

: No. 26.—OctToser TrERM, 1937.

Abraham ©. Berman, Petitioner, ] On Writ of Certiorari to

thé United States Cireuit

| Court of Appeals for the

The United States of America. ° Second Circuit.

[December 6, 1937.] ’

Mr. Chief Justice Huaues delivered the opinion.of the Court.

On conviction upon an indictment containing several counts for |

using the mails to defraud (18 U. 8..C. 338) and for conspiracy to

that end (18 U. S. C. 88), petitioner was sentenced on each count «

to serve a year and a day, the-terms of imprisonment to run eon-

currently. Execution of the sentence was suspended and peti-

tioner was placed on probation for two years. Petitioner appealed

from the sentence.

While the appeal was pending’ and without its withdrawal: peti-

tioner fearing its dismissal applied to the District Court for re-

sentence. That court reimposed the prior sentence of imprison-

ment, again suspending its execution, and added a fine of one dol- «

lar upon each count. The-court did not vacate the prior sentence. ;

Petitioner then appealed from the second sentence.

The Cireuit Court of Appeals held that, by reason of suspension

of its execution, the first sentence was interlocutory and dismissed.

the first appeal. Assuming that appeal to be a nullity, the Court of

Appeals thought that the District Court had power to resentence ;

that petitioner could not complain of the fine as it was imposed at

his request; and that the second sentence of imprisonment, if taken

alone, was interlocutory. The judgment imposing the fine was

affirmed and the appeal from the second sentence of imprisonment

was dismissed. 88 F. (2d) 645. .

‘We are of the opinion that the Court of Appeals erred in dismiss-

ing the first appeal as interlocutory. Petitioner was convicted and

<=

2 ; - Berman vs. Umted States.

sentenced. Final judgment in a criminal case means sentence. The

sentence is the judgment. Miller v. Aderhold, 288 U. 8. 206, 210;

Hill v. Wampler, 298 U.S. 460, 464. Here, the imposition, of the

sentence was not suspended, but only its execution. The sentence

was not vacated. It stood as a final determination of the merits of

the criminal charge. To create finality it was necessary that peti-

tioner’s conviction should be followed by- sentence (Hill v. Wamp-

ler, supra) but when so followed the finality of the judgment was ©

not lost becanse execution was suspended. In criminal cases, as

well as civil, the judgment is final for the purpose of appeal ‘‘ when

it terminates the litigation on the mérits’’ and ‘‘leaves nothing to

be done but to enforce by execution what has been determined”’.

St. Louis, Iron Mountain & 8. R. R: Co. v.. Southern’ Express Co.,

108 U. S. 24, 28; United States v. Pile, 130 U. S. 280, 283; Heike v.

United States, 217 U. 8. 423, 429. ; ’

Petitioner stands a convicted felon and unless the judgment

against him is vacated or reversed he is subject to all the disabili-

ties flotving from such a judgment. The record discloses that peti-

‘tioner is a lawyer and by. reason of his conviction ‘his license was

subject to revocation“(and petitioner says that he has been dis-

barred) without inquiry into his guilt or innocence. Matter of

Ackerman, 218 App. Div. (N. Y.) 388, 392. His civil rights may

be determined solely by reference to the judgment.

Placing petitioner upon probation did not affect the ‘Hnality of

the judgment. ‘Probation is concerned with rehabilitation, not with

the determination of guilt. It does not secure reconsideration of

issues that have been determined or change the judgment that has

‘ been rendered. . Probation or suspension of sentence“‘comes as an

act of grace to one convicted of a crime’’. Escoe v. Zerbst, 295

U. 8. 490, 492, 493. The considerations it involves are entirely apart

from any reexamination of_the ragrits of the litigation. Probation

was tesigned ‘‘to aid t ‘reabilitation of a penitent offender’’ ;

“*to take advantage of an »pportunity for reformation which actual

service of the suspended sentence might make less probedle’’. Thus

probation cannot be demanded as a right: “‘The defendant stands

convicted ; he faces punishment and cannot insist on terms or strike~

_@ bargain’. Burns v. United States, 287 U. 8. 216, 220. But if

final judgment determining his guilt has been rendered, he still has.

the opportunity to seek by appeal a reversal of that judgment and -

thus to secure not an opportunity to reform but vindication,

%

Berman vs. United States. | a 3

As the first sentence was a final judgment and appeal therefrom

was properly taken, the District’ Court ‘was without jurisdiction

during the pendency of that appeal’ to. modify its judgment by re-

sentencing the prisoner.” Draper v. Davis, 102 U. 8. 370, 371;

Keyser v. Farr, 105 U. S. 265, 266; Spirou v. United States, 24

F.. (2d) 796, 797; United States v. Radice, 40 -F. (2d) 445, 446;

United States v. Habib, 72 F. (2d) 271.

The judgment of the Circuit Court of Appeals is sovupeed so far

as it dismissed the first appeal and affirmed the later judgment im-

posing the fine, and the cause is remanded to that court for fur-

ther re in conformity with this, ——.

' It ts so a.

A true copy.

"Test: |

| Clerk, Supreme Court, U. 8.

ee