Roy Irby v. United States

390 F.2d 432, 129 U.S. App. D.C. 17, 1967 U.S. App. LEXIS 4497

• Court: Court of Appeals for the D.C. Circuit
• Decided: November 17, 1967
• Docket: 19988_1
• Status: Published

Opinions

ON REHEARING EN BANC

McGOWAN, Circuit Judge, with whom Circuit Judges DANAHER, BURGER, and TAMM join:

In 1958 appellant, represented by counsel, pleaded guilty to the housebreaking and robbery counts of a 9-count indictment, and received consecutive sentences of two to eight years on the one, and four to twelve years on the other. The other counts were then dismissed. In 1965 he moved under 28 U.S.C. § 2255 to regain his liberty on the ground that the two sentences could not validly have been made to run consecutively. The District Court denied the motion in a long opinion which explored with care the single legal issue raised by the motion. 250 F. Supp. 983 (1965). Upon appeal, a panel of this court reversed, one judge dissenting (No. 19,988, decided March 15, 1967). The Government’s petition for rehearing en banc was granted; and, after rehearing, .the District Court’s judgment is herewith affirmed.

I

Because of the existence of District Judge (now Circuit Judge) Robinson’s opinion referred to above, there is no occasion for us to cover the same ground in reaching the same result. He recognized, as this court has recently had occasion to do, that there are circumstances where it cannot safely be assumed that simply because the legislature has defined two separate crimes with differing elements and prescribed separate punishments for them, it contemplated that such punishments can be consecutively inflicted.¹ The nature of the two criminal specifications, and of the course of conduct in which both crimes may be thought to have been committed, may be such as to raise a doubt as to a legislative purpose to encompass both punishments. In such a case, an aid to the divination of such purpose in the form of a so-called “rule of lenity” has been devised to the end of barring double punishment where there is substantial doubt as to whether Congress would have intended it to be imposed.

A majority of the panel which first heard this appeal thought that there was a sufficiently “substantial doubt about what Congress intended” as to cause the rule of lenity to operate. This point of view was conscientiously and competently urged upon us by appellant’s appointed counsel, who has served his client faithfully and well here as in the District Court. However, we agree with the District Court that the degree of doubt discernible on this record does not warrant invocation of the rule of lenity. We note in this regard the District Court’s analysis of the historic differences in concept between housebreaking as a crime against property, on the one hand, and robbery as a crime against the person, on the other.

It is not novel that Congress has differentiated between housebreaking and robbery in terms of the one as an invasion of the security of the dwelling, and the other as an intrusion upon the security of the person. This was a distinction familiar to the common law, and it was perpetuated in the statutes found to have been violated here. Stealing something worth $1000 may be only an aggravation of the misdeed involved in stealing something worth $10. But taking something, whatever its worth, from another’s person by force and putting in fear brings in a new and different interest which it has been thought important to protect, namely, the person threatened as distinct from the property taken.

One who wrongfully goes into a house to pilfer what he can find may or may not start out with a purpose to rob, if necessary. If he consciously entertains both purposes from the beginning, it can be said that he sets out with an intent to commit both larceny and robbery, or crimes against both property and person, if the opportunity presents itself. In such circumstances, he will be guilty of housebreaking in either event once he crosses the threshold, but, if he retires upon finding the house occupied and without robbing the occupant, he has made the decision which saves him from punishment for robbery. The point is, of course, that his invasion of the premises to steal does not irrevocably commit him to rob from the person of anyone he finds there. The choice is still his up to the moment of confrontation.² If he decided to rob, consecutive punishments are not made available solely as a means of exacting greater retribution. Congress could well have conceived of them as a deterrent to compromising the safety of the person as well as the security of the premises. They illuminate the differing dangers to society inherent in stealing what one finds in a vacant house, and robbing the occupant as well when he proves to be at home. We cannot, at any rate, say with confidence that Congress did not contemplate some additional disincentive for the latter.³

II

The problems in this area are not easy. It was for this reason that the court en banc decided to seek the views of a disinterested amicus curies. There has been forthcoming, as a result of this appointment, a very helpful brief which has supplied us with useful research information,⁴ as well as with imaginative reflections upon the judicial approach most cognizant of both the public and private interests involved.

Amicus has concluded that the rule of lenity has a very limited utility indeed as a touchstone of the propriety of consecutive sentences. He suggests that it be abandoned in favor of a supervisory rule to the effect that consecutive sentences may not be imposed for offenses arising out of a single course of conduct unless the sentencing judge (1) finds from the facts that the defendant was not motivated by a single intent and objective, and (2) recites his reasons for believing that consecutive sentences are necessary to achieve at least one of the recognized sentencing goals.

Were this proposal to be deemed wholly meritorious, it could have no application to this case, for the reason that it would require a remand hearing to try to assemble and reconstruct facts which happened nearly a decade ago. The sentencing judge is dead; and it is a commonpláce that the passage of even a few years makes it difficult to pursue factual inquiries. An attack on consecutive sentences is one which should be made at the time the sentences are imposed, when there is the opportunity to make a meaningful inquiry into the facts. It is not suited to the vehicle of belated collateral attack.

It is true that where, as here, consecutive sentencing was founded upon a guilty plea, the record is singularly uninformative in respect of those facts which would be most helpful in any appraisal of the Congressional will. Any judge contemplating consecutive sentences in such a situation hereafter would be well advised to cause the record to show the factual circumstances surrounding the commission of the crimes. Such a practice would enable the judicial process to function better at all levels because it would facilitate the search for the legislative intent which primarily defines the limits of the sentencing power.

The judgment of the District Court is

Affirmed.

1 . Ingram v. United States, 122 U.S.App.D.C. 334, 353 F.2d 872 (1965); Davenport v. United States, 122 U.S.App.D.C. 344, 353 F.2d 882 (1965). These cases involved a single act directed against a single interest, i.e., violent assault upon the person of another. We held consecutive sentences to be improper because of the doubt created under these circumstances as to whether Congress would have intended double punishments to be imposed. The doubt is much less pronounced in a case like the one before us where two discrete protected interests are involved, and where the course of conduct, although perhaps continuous in its flow, nevertheless affords an opportunity for discrimination by the actor between such interests before both are infringed.

2 . We do not think that the indictment can be characterized as asserting that appellant’s course of conduct was motivated by a single criminal intent. In the housebreaking count, he was charged with entering a dwelling “with intent to steal property of another.” In the robbery count, he was charged with taking two rings from the person and from the immediate possession of a named complainant “by force and violence and against resistance and by sudden and stealthy seizure and snatching and by putting in fear.” The two are not the same, and they are fully consistent with either concurrent or consecutive criminal purposes of a different order. The Supreme Court has, of course, been alert to prohibit double punishment for the commission of a federally-created crime and for the attempt to do so. See Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957).

3 . The drafters of the American Law Institute’s Model Penal Code were explicitly conscious of the unfairness involved in the imposition of “cumulative penalties * * for entering with intent to steal and for stealing, although ordinarily attempt merges in the completed offense.” Although proposing a burglary offense not essentially unlike our housebreaking statute, they added a ban on duplicate penalties in these terms:

Multiple Convictions. A person may not be convicted both for burglary and for the offense which it was his purpose to commit after the burglarious entry or for an attempt to commit that offense, unless the additional offense constitutes a felony of the first or second degree.

They went on, however, to define robbery in a manner similar to our robbery statute, and made it a felony of the second degree. See Model Penal Code (Proposed Official Draft) § 221.1 incorporating Commentary of Tentative Draft No. 11, at 56, 61.

4 . Amicus has discussed at length the law as to consecutive sentencing in certain states, notably California and Illinois. The former has had, for nearly a century, a statutory ban on double punishments for “an act or omission which is made punishable in different ways by different provisions” of the Code. Directly indicative in itself of a legislative purpose in the matter of consecutive sentences, the statute has nevertheless had a checkered career of judicial interpretation, culminating in a rule to the effect that whether an act is single or not is to be derived from the intent and objective of the actor Neal v. State, 55 Cal.2d 11, 9 Cal.Rptr. 607, 357 P.2d 839 (1960). It was held in that ease that one who threw gasoline into the bedroom of a sleeping couple for the purpose of killing them could not be punished for both attempted murder and arson. We suggest that, on the facts, this ruling is not unlike our holdings in Davenport and Ingram, Note 1, supra; and we recognize that, as Neal suggests, there is no utter conclusiveness to a technical distinction between crimes against property and person, respectively. Illinois also has a statutory limitation of consecutive sentences, although it appears to have followed, rather than preceded, judicial development. The case which that statute is reputed to have codified invalidated consecutive sentences for assault with intent to rape and assault with intent to murder, People v. Stingley, 414 Ill. 398, 111 N.E.2d 548, cert. denied, 345 U.S. 959, 73 S.Ct. 945, 97 L.Ed. 1379 (1959); and again we suggest that this holding is arguably within the range of our decisions in Davenport and Ingram,. The distinction between all those cases and this, at least on the facts as we have to assume them to be in this case, is that here the course of conduct admitted of interruption and alteration in response to the deterrent influence of additional punishment. That possibility is what disables us from seriously doubting that Congress, absent any explicit declaration of its intent, can be taken to have disclaimed any such purpose to deter.