ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY Crim. Nos. 77-00467-01 and 77-00181-0
Before Adams, Rosenn and Hunter, Circuit Judges.
This appeal from the denial of a motion for reconsideration of sentence raises two issues: whether the district court had jurisdiction to entertain the motion, and, if so, whether the court abused its discretion in declining to reduce petitioner's sentence.
In January 1978, a jury convicted Dominic Mariano of mail fraud and of theft and possession of an interstate shipment of freight. On February 3, 1978, the district court sentenced Mariano to a prison term of five years, but stayed execution of the sentence pending Mariano's participation in the Federal Secret Witness Program. Mariano did not petition the district court, under Rule 35 of the Federal Rules of Criminal Procedure, for a reduction of sentence.*fn1 Mariano did, however, file a timely notice of appeal to this Court.
On appeal, Mariano elected not to challenge the length of his sentence; instead he attacked his conviction on the merits. We affirmed the judgment of conviction against Mariano, see 601 F.2d 577 (3d Cir. 1979), and the district court received the order of affirmance on July 9, 1979.
During the course of the appeal from his first group of convictions, a second and distinct federal indictment against Mariano for mail fraud was running its course. After pleading guilty to three counts of this second indictment, Mariano was sentenced on March 19, 1980 to three concurrent terms of five years each.
On April 11, 1980, Mariano filed in the district court a motion under Rule 35 seeking reduction of the sentences imposed in connection with each of the two sets of convictions. The district court denied the motion. Mariano then filed the present appeal, claiming that the district court abused its discretion in declining to amend the sentences.
Before reaching the merits of the present appeal, we must consider the jurisdictional basis that Rule 35 confers on federal district courts for sentence reconsideration. Rule 35 stipulates that the court may reduce sentence "within 120 days after the sentence is imposed or within 120 days after receipt by the (sentencing) court of a mandate issued upon affirmance of the judgment."
With respect to the sentence imposed on Mariano on March 19, 1980, the district court undoubtedly had jurisdiction to entertain the Rule 35 motion filed April 11, 1980, since the motion was filed well within the 120-day period. Less clear, however, is whether the district court had jurisdiction to consider a Rule 35 motion with regard to the sentence earlier imposed on Mariano on February 3, 1978. A literal reading of Rule 35 suggests that Mariano had 120 days from July 9, 1979, the day on which the district court received the mandate from this Court, to appeal to the leniency of the district court for reduction of his first sentence. Mariano did not file his consolidated motion for reconsideration until April 11, 1980, approximately five months after the 120-day period would appear to have lapsed. The jurisdictional issue presented is whether the sentencing court may entertain a Rule 35 motion made more than 120 days after receipt of the mandate of affirmance, where a sentence has been imposed but remains unexecuted pending the defendant's participation in the Secret Witness Program.
Courts generally have adopted a strict reading of Rule 35, see United States v. Lanier, 604 F.2d 1157 (8th Cir. 1979); United States v. Kemner, 578 F.2d 1165 (5th Cir. 1978), considering the 120 day limit as jurisdictional. Nonetheless, occasional departures from a narrow construction of the time constraints set forth in Rule 35 are justified. In United States v. Johnson, 634 F.2d 94 (3d Cir. 1980), for example, we held that a defendant whose sentence was suspended in favor of probation had 120 days after revocation of probation to appeal to the sentencing court for leniency, even though the revocation might have occurred more than 120 days after the original imposition of sentence. In so holding, we recognized that a probationer has little incentive to ask for reduction of a prison term unless and until his probation is revoked.*fn2
Johnson does not govern the present controversy, however. Probation had no part in Mariano's sentence; instead, execution of Mariano's prison sentence was stayed pending his participation in the Federal Secret Witness Program. While one who is placed on probation can expect to avoid prison indefinitely, so long as his behavior does not violate the terms of his probation, a stay of execution pending participation in the Secret Witness Program does not necessarily connote indefinite freedom from incarceration. Nothing in the record before us suggests that participation in the program was offered to Mariano as a substitute for all or part of the prison term to which he had been sentenced, although participation would obviously defer the date of incarceration. Unlike the petitioner in Johnson, Mariano had an incentive to challenge the severity of his prison sentence at the time its execution was stayed, since his incarceration was merely delayed rather than made contingent on his future conduct. Mariano thus ...