The Court pointed out that 18 U.S.C. § 3651 read in the conjunctive, and that suspension of either imposition or execution of sentence must be accompanied by probation for such period and upon such terms and conditions as the Court deems best, not exceeding five years. The Court went on to say that 'A judgment which purportedly suspends the execution of a term of imprisonment indefinitely lacks finality and is therefore a nullity.' The Court of Appeals therefore concluded that 'Those portions of the judgments relating to the suspension of sentence must be vacated and corrected'. The case was remanded to the Court below with directions to correct the sentences. See 340 F.2d at 1019-1020.
On April 26, 1965, the Supreme Court of the United States denied certiorari at No. 947 October Term 1964. 85 S. Ct. 1336. On May 3, 1965, the four separate mandates from the Court of Appeals dated April 30, 1965, were filed in this Court. Each of these mandates provides that 'the cause is remanded to the District Court with directions to correct the judgment of sentence of August 2, 1963 in accordance with the opinion of this Court.'
On May 5, 1965, an informal argument was held concerning the effect of these mandates and the appropriate manner of giving effect thereto.
The Government contends that the former sentences were altogether null and void, and that on remand for resentencing the whole matter is to be considered de novo by the Court; and that the Government is thus free to urge upon and recommend to the Court the imposition of more severe sentences of imprisonment for a longer time than imposed on the occasion of the original sentence. The defendants contend that the judgments of conviction having been affirmed, the fines, concerning the imposition of which no irregularity was noted by the Court of Appeals, remain in force, and that only the sentences of imprisonment and suspension thereof require correction.
To a large extent, this issue is moot and academic; inasmuch as the Court in its discretion, having given careful consideration to the respective enormity of the offenses of the several defendants, and their individual situations, and other pertinent circumstances, at the time of imposing the original sentences, has the intention of maintaining the original pattern of sentences, simply complying with the procedural requirements of the statute as specified in the opinion and mandate of the Court of Appeals.
Close examination of the language of the opinion of the Court of Appeals indicates that the contention of the defendants with respect to this point is correct. The Court said 'This suspension of the term of imprisonment was void.' 340 F.2d at 1019. (Italics supplied). The Court concluded that 'Those portions of the judgments relating to the suspension of sentence must be vacated and corrected.' 340 F.2d at 1020. (Italics supplied).
Some color is given to the contention of the Government that the entire sentences are void in toto by the fact that the above-quoted language containing directions to correct the sentence is included in the mandate in the case of Michael Giorano. As stated above, defendant Giorano was convicted only under the forty-second count for violation of 26 U.S.C. § 7262. This provision of the statute does not authorize imprisonment, and no sentence of imprisonment was imposed upon this defendant. Only a $ 5,000 fine was imposed upon Giorano. If, therefore, the decision of the Court of Appeals required the correction of this sentence as well as of the sentences imposing imprisonment and suspending the same improperly, it could be argued that all of the sentences are void in toto.
However, inasmuch as no erroneous procedure was found to be involved in the sentence of Giorano, and accordingly the sentence against Giorano does not seem to be susceptible of correction, we believe that this language in the mandate in Giorano's appeal was inadvertently and improvidently included in the mandate, by a scribal error similar to those occasionally occurring in the New Testament when an account of events in one gospel is assimilated to the language originally occurring in another gospel. Streeter, The Four Gospels (4th ed. 1930), 181, 275-277, 326-330, 570.
Counsel are therefore directed to apply to the Court of Appeals for modification of the mandate in the Giorano appeal. If this modification is granted, this Court, upon receipt of the modified mandate, will then fix a date when the defendants Sams, Ciancutti, Phillips, and Giorano will be directed to appear and to pay their fines heretofore imposed, and the defendants Sams, Ciancutti, and Phillips directed to appear for correction of their sentences under Count 1 with respect to imprisonment and suspension thereof in conformity with the opinion and mandate of the Court of Appeals and the applicable statutory requirements elucidated therein.
© 1992-2004 VersusLaw Inc.