Reargued September 13, 1974. APPEAL FROM AN ORDER OF THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA.
Forman, Hunter and Garth, Circuit Judges. On Reargument: Seitz, Chief Judge and Forman, Van Dusen, Aldisert, Adams, Gibbons, Rosenn, Hunter, Weis and Garth, Circuit Judges. Hunter, Circuit Judge, with whom Forman and Adams, Circuit Judges, join, dissenting. Forman, Circuit Judge, dissenting.
This appeal requires us to examine the validity and interrelationship of sentences*fn1 imposed upon the petitioner under 18 U.S.C. §§ 3651,*fn2 3653*fn3 and 4208.*fn4 We are obliged to decide among other issues: whether the petitioner's sentence was properly imposed on July 28, 1965, and therefore, whether he was validly on probation at a time when an order for his arrest charging probation violation was issued on October 9, 1970. We must also determine whether the district court erred in sentencing the petitioner under the provisions of 18 U.S.C. § 4208(b) & (c) after it had revoked his probation in March of 1967; and, finally, we must determine whether the district court, once having revoked probation, could thereafter reimpose a probationary term. As originally presented, it appeared that we would only be required to determine two issues: the first involved the maximum sentence that could be imposed for a violation of 18 U.S.C. § 641*fn5 where the indictment alleged no value and a plea to the indictment was taken without proof of value; the second involved imposition of sentences of probation on two separate indictments totalling in excess of five years. After argument before a panel of this court, on our own motion, we ordered rehearing en banc to consider these issues and others discussed below.
For the reasons set forth herein, we hold, inter alia, that Lancer was still within the valid four year, ten month, probationary term imposed under Indictment 22119 when the October 9, 1970 warrant issued.*fn6 Therefore, petitioner is not entitled to a withdrawal of the warrant and to discharge of the detainer. This holding, in many but not all respects, accords with the analysis of the district court. Nevertheless, we are obliged to remand to the district court to correct certain of the sentences imposed and to compute the remaining probationary term which Lancer must serve.
On June 1, 1965, petitioner, Edward William Lancer, pleaded guilty in the District Court for the Eastern District of Pennsylvania to Indictment 22119 charging him, in one count, with having received 364 money orders stolen from post offices in Pennsylvania and New Jersey in violation of 18 U.S.C. § 641. On July 28, 1965, the petitioner pleaded guilty to Indictment 22173, a two-count indictment charging the forging and uttering of a bank money order in violation of 18 U.S.C. § 500 (forging a postal money order). On that same date, he also entered guilty pleas to six other indictments variously charging him with offenses under 18 U.S.C. §§ 641, 500, and 1708 (theft or receipt of stolen mail matter). The latter six indictments, along with Indictment 22173, were transferred from six different states to the Eastern District of Pennsylvania under Fed. R. Crim. P. 20.*fn7 After taking guilty pleas to all indictments, the district court imposed the following sentences:
Ten (10) years, the first two months of which are to be served in a jail-type institution. The execution of the balance of the sentence is suspended and the defendant placed upon probation for a period of Four (4) Years and Ten (10) months, under the provisions of § 3651, Title 18, U.S. Code.
Imposition of sentence is suspended on Count 1, and the defendant placed upon probation for a period of Five (5) years on said count, the probation period is to begin at the expiration of that imposed in Criminal No. 22119. On Count 2, the imposition of sentence is suspended.
On each of the other six indictments, the imposition of sentence was also suspended with no probation imposed.
The record reveals that Lancer's probation under Indictment 22119 actually commenced in May 1966.*fn8 The November 7, 1966 petition charging Lancer with violation of probation (lying, forging fraudulent checks, absconding from supervision, etc.) led to a hearing before the district court on March 29, 1967.*fn9 The order of the district court, entered on March 29th revoked Lancer's probation and ordered imprisonment for a period of
". . . NINE (9) YEARS and TEN (10) MONTHS, said sentence of imprisonment being imposed under the provisions of Title 18 U.S. Code § 4208(b) for a study as described in § 4208(c); the results of such study to be furnished to the Court within three months. . ."
On completion of the study, Lancer was returned to court on August 3, 1967 for final sentence,*fn10 and was placed on probation for nine years and ten months, with the imposition of prison sentence suspended.*fn11 By order dated April 9, 1968, (apparently in response to the United States Attorney's motion, supra n.11), the district court suspended imposition of prison sentence, but, this time, placed petitioner on probation for "four (4) years and ten (10) months."
In January, 1968, Lancer was again charged with violation of probation (absconding).*fn12 After a court hearing on June 10, 1968, probation was continued.
The order authorizing Lancer's arrest for his last violation of probation*fn13 was entered on October 9, 1970. As related in note 1, supra, a detainer based upon that order was placed against Lancer at Leavenworth prison on April 26, 1972. The instant action has been precipitated in large part by reason of this detainer.*fn14
Lancer's pro se motion*fn15 to vacate sentence referred to all eight indictments,*fn16 although the significant indictment for purposes of this appeal is Indictment 22119. The district court in denying Lancer's motion held*fn17 that: (a) the indictment was valid; (b) the ten year maximum sentence, permitted under 18 U.S.C. § 641 where value exceeds $100, could properly be imposed after a plea of guilty, because the district court could judicially notice that the value of 364 blank, stolen money orders exceeded the $100 penalty "hurdle"; (c) 18 U.S.C. § 3651 does not preclude consecutive five year probationary terms on separate indictments; and, (d) after revocation of probation, a study may be ordered and probation again imposed. This appeal followed.
Essentially, Lancer's theory, by which he seeks discharge of all restraints (in the form of sentences to be served and detainers), particularly, the October 1970 detainer, proceeds as follows:
1. His original sentence of ten years under Indictment 22119 was illegal and excessive, in that the maximum sentence which could have been imposed under 18 U.S.C. § 641 (in the absence of an allegation of value in excess of $100) was one year;*fn18
2. His original probationary term of four years and ten months under Indictment 22119 has expired;
3. It is illegal to impose consecutive terms of probation in excess of five years;*fn19 and
4. The probationary term imposed by the district court as a result of the March 29, 1967 hearing was unauthorized by 18 U.S.C. § 4208.
Hence, Lancer claims that he was not legally on probation when the order of October 9, 1970 issued, charging a violation of probation, and all subsequent acts which depend upon that order must necessarily be void.
III. THE 1965 SENTENCE (18 U.S.C. § 641)
Our analysis starts with an examination of Indictment 22119 charging petitioner with a violation of 18 U.S.C. § 641. Section 641 provides for two levels of penalties depending on the value of the property converted. If the value of the stolen property is $100 or more, an offender, "shall be fined not more than $10,000 or imprisoned not more than ten years, or both." However, if the value of the property is less than $100, an offender cannot be fined "more than $1,000*fn20 or imprisoned more than one year, or both." Indictment 22119*fn21 alleges no value for the 364 converted money orders and no proof of value was offered at the time petitioner entered his guilty pleas.*fn22
In United States v. Ciongoli, 358 F.2d 439 (3d Cir. 1966), we were called upon to consider a motion to dismiss an indictment brought under 18 U.S.C. § 641. The indictment in that case alleged a value in excess of $100 attributable to 51 stolen money orders. The argument was made that, inasmuch as the money orders were blank, their value had to be less than $100. Despite the government's offer to prove value in excess of $100, the district court dismissed the indictment. We reversed, stating (at 358 F.2d 441):
". . . The essential wrong which the statute proscribes is the misappropriation of government property, knowing that it has been stolen. Thus, no particular value of the stolen property need be alleged or proved to sustain a conviction, though in such a case only the lesser punishment can be imposed. . .." United States v. Marpes, 198 F.2d 186 (3d Cir. 1952) (emphasis added).
In United States v. Marpes, supra, the defendant had been charged under two indictments alleging violations of 18 U.S.C. § 659.*fn23 One indictment specified a value in excess of $100. The other, as in the instant case, was silent as to value. As to the latter Marpes indictment, the court stated:
". . . The sentence of one year's imprisonment imposed under Indictment No. 13295 was necessarily based upon a value of $100 or less, since the indictment did not allege value . . .." 198 F.2d 189.
The cases,*fn24 cited by the government in an effort to sustain the sentence imposed upon Lancer, are inapposite, as in each of them, the indictments allege a value in excess of $100, an ingredient missing in the Lancer Indictment.
We agree with Lancer that, under Indictment 22119, his sentence could not exceed a prison term of more than one year. We hold, therefore, that it was error for the district court to impose a ten year sentence even though nine years and ten months of that sentence were suspended. The district court did not err, however, in following its ten year sentence with a probationary term of four years and ten months. As previously noted (note 18 supra), the probationary term need not be limited to the maximum prison sentence (in this case one year) prescribed by statute.
Lancer's entire sentence of July 28, 1965, is not voided by our holding that the district court imposed an excessive prison term. The district court could validly have imposed a one year term and that period remains as Lancer's sentence under Indictment 22119. United States v. Pridgeon, 153 U.S. 48, 38 L. Ed. 631, 14 S. Ct. 746 (1894). We leave to the district court, on remand, the task of correcting Lancer's sentence in accordance with our holding.*fn25
IV. THE 1967 REVOCATION OF PROBATION (18 U.S.C. §§ ...