United States v. George Gordon Liddy

510 F.2d 669, 166 U.S. App. D.C. 289

• Court: Court of Appeals for the D.C. Circuit
• Decided: March 17, 1975
• Docket: 73--1564
• Status: Published

Opinions

WILKEY, Circuit Judge:

On 23 March 1973 appellant George Gordon Liddy was sentenced by the District Court to a prison term of not less than six years and eight months and not more than twenty years and was fined $40,000 for crimes which he had been found to have committed in connection with the electronic surveillance and burglary of the Democratic National Headquarters in the Watergate apartment complex.¹ Three days later, Liddy appeared in response to a subpoena before the 5 June 1972 Watergate grand jury. In response to questioning by Government prosecutors about his role and the roles of others in the Watergate incident, Liddy consistently asserted his Fifth Amendment privilege against self-incrimination. Upon the Government’s motion the District Court granted Liddy immunity² and ordered him to testify. Nevertheless, Liddy persisted in refusing to answer the grand jury’s questions.

Consequently, on 3 April 1973 the District Court adjudged Liddy in civil contempt under 28 U.S.C. § 1826 (1970)³ and ordered that he “be confined until such time as he is willing to testify as ordered; provided, however, that the period of confinement shall not exceed the life of the grand jury, including extensions, and shall in no case exceed eighteen (18) months . . . .”⁴ The court then entered the following order, which is the subject of this appeal:

Title 18 of the United States Code § 3568 provides that a person’s sentence begins to run from the first day of commitment, and that credit is given for any time spent in custody in connection with the offense for which sentence is imposed. The defendant Mr. Liddy’s sentence under the indictment, therefore, has commenced. The present commitment for contempt, however, is a commitment for a separate offense, and is intended not to punish but to compel compliance with the Court’s order to testify. To give meaning and coercive impact to the Court’s contempt powers in the interest of protecting the Court’s integrity, the Court here finds it necessary to hold in abeyance the execution of Mr. Liddy’s sentence under the indictment pending his confinement for contempt.⁵

Liddy challenges the authority of the District Court to suspend the execution of his sentence pending his confinement for contempt. We conclude that the District Court acted within its authority, and therefore affirm.⁶

I. AUTHORITY OF DISTRICT COURT OYER RUNNING SENTENCE

Liddy’s attack on the suspension of his sentence by the District Court rests in part on the following statements by the Supreme Court in United States v. Murray:⁷

The beginning of the service of the sentence in a criminal case ends the power of the court even in the same term to change it. Ex parte Lange, 18 Wall. 163.

It is true that there was but one day of execution of the sentence in the Murray case, but the power passed immediately after imprisonment began and there had been one day of it served.⁸

Liddy argues that since he began service of his sentence for Watergate crimes before the District Court adjudged him in contempt,⁹ the court was without authority to change his sentence by suspending its execution. However, the foundations of this argument are undermined by the unanimous Supreme Court decision in United States v. Benz,¹⁰ which expressly discredited the above-quoted language from Murray.

In Benz the defendant had been sentenced to 10 months imprisonment beginning 27 December 1929. Before expiration of his sentence, the defendant filed a petition with the sentencing court seeking a reduction in his term. The court granted the petition and reduced the sentence to six months. The Government appealed, relying principally on Murray and Ex parte Lange.11 In affirming the District Court’s action, the Supreme Court first demonstrated that Lange did not stand for the proposition for which it was cited in Murray. The District Court in Lange made two erroneous sentencing decisions: 1) it sentenced the defendant to one year in prison and a $50 fine, although the governing statute provided for one year maximum or a $50 fine; 2) five days after the initial sentencing and after the defendant had paid the fine, the court vacated the first sentence and resentenced the defendant to one year in prison. Both these actions, the Supreme Court held, violated the Double Jeopardy clause of the Fifth Amendment by subjecting the defendant to more than one punishment for the same offense. But the Court in Lange also recognized, in the words of the Benz decision:

The general rule is that judgments, decrees and orders are within the control of the court during the term at which they were made. They are then deemed to be “in the breast of the court” making them, and subject to be amended, modified, or vacated by that court.¹²

This analysis of Lange prompted the court in Benz to state:

The Lange Case and the Basset Case, supra, [Basset v. United States, 76 U.S. (9 Wall.) 38] probably would have set at rest the question here presented had it not been for a statement in United States v. Murray, 275 U.S. 347, 358 [48 S.Ct. 146, 72 L.Ed. 309]. In that case this Court held that where the defendant had begun to serve his sentence, the District Court was without power, under the Probation Act of March 4, 1925 . . . , to grant him probation; and, citing Ex parte Lange as authority, said: “The beginning of the service of the sentence in a criminal case ends the power of the court even in the same term to change it.” But the Murray Case involved the construction of the Probation Act, not the general powers of the court over its judgments. The words quoted were used by way of illustration bearing upon the congressional intent, but were not necessary to the conclusion reached. That they state the rule more broadly than the Lange Case warrants is apparent from the foregoing review of that case.¹³

It seems clear that Liddy’s reliance on the broad language in Murray is misplaced in the light of Benz.

Two general principles may be gleaned from the Lange series of decisions, and neither of them is of any help to Liddy. First, Lange holds that a convicted defendant may not be punished twice for the same offense. Liddy continues to be subject to the same penalty for his Watergate crimes: a prison term of from six years and eight months to twenty years and a fine of $40,000.¹⁴ Liddy’s current confinement under the District Court’s order of 3 April 1973 is for the separate and distinct offense of civil contempt under 28 U.S.C. § 1826. Second, as the Court in Benz recognized, “the court during the same term may amend . . . the punishment,. but not so as to increase it .”¹⁵ The District Court’s 3 April 1973 order does not increase Liddy’s punishment for his Watergate crimes, for the duration of his prison sentence and the amount of his fine are unchanged, but merely amends by delaying the execution of that punishment.¹⁶ Thus, the LangeBenz line of cases establishes that the District Court had control over Liddy’s sentence when it entered its 3 April 1973 order, and nothing in those cases precludes our affirming the suspension of that sentence.

II. THE BARRIER ALLEGEDLY POSED BY 18 U.S.C. § 3568

Liddy argues that the District Court’s suspension of his running sentence violated the terms of 18 U.S.C. § 3568 (1970), which provides in pertinent part:

The sentence of imprisonment of any person convicted of an offense shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of such sentence. The Attorney General shall give any such person credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed.

No sentence shall prescribe any other method of computing the term.

Liddy interprets this provision in a literal fashion, contending that it establishes a strict method of sentence calculation that cannot be varied without some specific statutory authority.¹⁷ Since Liddy’s sentence concededly had commenced to run before the District Court entered its 3 April 1973 order, Liddy argues that the expiration date of his sentence had been firmly fixed as well and that, under section 3568, the District Court could not alter that expiration date by suspending execution of the sentence. We think that section 3568 cannot be read so literally, and we therefore reject Liddy’s argument.

The legislative history of section 3568 reveals that Congress’ intent in enacting the provision was not to impose a rigid method of sentence calculation, beyond establishing a firm date of sentence commencement. In recommending the bill that ultimately became section 3568, the judiciary committees of both the House and Senate relied primarily on a Department of Justice memorandum which stated:

Sections 1 and 2 provide that sentence shall commence to run from the date on which the person is received at the institution for service of his sentence or from the date he shall be committed to a place of detention to await transportation to the place at which his sentence shall be served; that computations for deduction for good conduct shall be computed beginning with the day on which sentence commences to run. These provisions are very necessary to remove confusion under existing practices. There is often uncertainty as to when a sentence does commence to run and as to the date from which computation of good conduct deductions shall be computed. Many courts have a way of sentencing a prisoner for a-.jear and a day to make him eligible for parole, and then providing in the sentence that it shall commence to run from some date prior to the sentence or some date before the prisoner actually commences his service, with the result that the parole law may be made applicable to a case where the prisoner actually serves less than a year. Various other instances of confusion, uncertainty and diversity of practice might be mentioned. These provisions produce certainty and prevent juggling with sentences in the way described.¹⁸

This passage demonstrates that when Congress enacted section 3568, it was primarily concerned with the commencement date of a sentence, not with its subsequent calculation and termination date.

There are numerous examples of situations in which the running of a prisoner’s sentence is interrupted and, as a direct result of some action by the prisoner himself, the termination date of the sentence is postponed beyond the time the sentence would have ended had it not been interrupted. A prisoner who escapes from custody interrupts the running of his sentence, and “the time elapsing between escape and retaking contribute nothing to the service of the sentence.” ¹⁹ A parolee who commits offenses leading to revocation of his parole must serve the portion of his sentence that remained to be served when he was paroled.²⁰ The effect of this rule is that the parolee’s sentence is suspended during his time on parole and the expiration of his sentence is postponed beyond the original scheduled termination date. In McDonald v. Lee,²¹ the Fifth Circuit stated:

At common law a prisoner has a right to serve his sentence continuously, and cannot be required to serve it in installments, but even at common law a continuous sentence may be interrupted by some fault of the prisoner.²²

On the basis of this exception,²³ the court held that it was permissible to interrupt a military prisoner’s service of a ten-year court martial sentence to permit service of a six-month sentence imposed for a breach of conduct committed by the prisoner while in custody.

Liddy’s position is similar to that of the prisoners in the examples discussed above. Through his intentional acts he has brought himself within the civil contempt provisions of 28 U.S.C. § 1826. Under the clear authority of that statute,²⁴ the District Court ordered Liddy confined pending his compliance with the court’s earlier order to testify. The coercive impact of confinement for civil contempt results from the fact that the contemnor “carries the key to the jailhouse door in his pocket,” that is, he can procure his release at any time by agreeing to comply with the court order whose violation is the basis of his contempt. Had the District Court ordered that Liddy’s contempt confinement be concurrent with his sentence for Watergate crimes, Liddy would have no incen-

five to comply with the District Court’s order since his doing so would not reduce his total period of confinement. Therefore, the District Court was manifestly justified when it stated: “To give meaning and coercive impact to the Court’s contempt powers in the interest of protecting the Court’s integrity, the Court here finds it necessary to hold in abeyance the execution of Mr. Liddy’s sentence under the indictment pending his confinement for contempt.” ²⁵

Liddy suggests, however, that the District Court could have avoided interrupting his sentence by choosing some ■ alternative remedy for his contempt. For example, Liddy could have been adjudged in criminal contempt and sentenced to a fixed prison term.²⁶ While the District Court’s power to punish Liddy for criminal contempt is uncontested,²⁷ there are limitations on the criminal contempt device that make us reluctant to insist that the District Court employ it here. First, criminal sanctions are extreme measures to which “[t]he judge should resort only after he determines, for good reason, that the civil remedy would be inappropriate.” ²⁸ Second, a judgment of criminal contempt results in a fixed sentence that the contemnor must serve regardless of whether he subsequently purges his contempt by complying with the District Court’s order.²⁹ Consequently, the coercive element inherent in civil contempt is lost when resort is had to criminal contempt.

Another alternative remedy not suggested by Liddy³⁰ is the imposition of daily fines that would be assessed until Liddy agreed to testify before the grand jury. However, section 1826 provides no authority for assessment of coercive fines, so we have our doubts about whether the District Court would have the power to utilize such a remedy.³¹ Moreover, the practicality of imposing coercive fines on Liddy, who is disabled by imprisonment from earning income and who is already subject to a $40,000 fine for his Watergate convictions, is highly questionable.³² Given the defects apparent in the alternative remedies of criminal contempt and coercive fines, we think the District Court acted properly in exercising its powers under 28 U.S.C. § 1826 and in effectuating that exercise by suspending execution of Liddy’s sentence.

III. PENDENCY OF AN APPEAL

The dissent argues that the District Court lacked jurisdiction to change appellant’s sentence in any way once an appeal of that sentence had been perfected.³³ This absolutist view is to be distinguished from the more limited principle, which finds support in the case law,³⁴ that a trial court lacks jurisdiction to vacate or change the term of a sentence then on appeal. While we do not quarrel with this more limited rule, neither principle nor case law supports its extension to the facts of this case.

The limited rule is grounded upon the general principle that an appellate court is entitled at some point to a final decision from the trial court. This principle of finality is one of the factors underlying the final judgment rule in the federal system.³⁵ In the criminal context, it would certainly be unwise to permit the trial court to vacate or change the term of a sentence while the appellate court was wrestling with whether the defendant had been tried or sentenced in conformity with the law. However, changes in the continuity of a sentence do not similarly impinge upon the appellate function. If a defendant were to escape confinement or be placed on parole while his appeal was pending,³⁶ it is difficult to see any reason why an appeals court should not continue to determine the appeal. If the trial court determines that continuity of sentence should be disturbed in order to forward the policies underlying the civil contempt power, there is no possible disruption of appellate review of the original sentence. Rather, the imposition of civil contempt is reviewed, as we have done here, on’ separate appeal from that judgment.³⁷

IV. CONCLUSION

For the reasons stated herein, the action of the District Court is

Affirmed.

1 . He was convicted on all six counts of an indictment charging him with burglary (22 D.C.Code § 1801(b) (1973)), conspiracy (18 U.S.C. § 371 (1970)), and illegal interception of oral and wire communications (18 U.S.C. § 2511 (1970)). This conviction was affirmed on appeal in United States v. Liddy, 166 U.S App.D.C. -, 509 F.2d 428 (1974).

2 . Under 18 U.S.C. § 6002 (1970).

3 . § 1826. Recalcitrant witnesses

(a) Whenever a witness in any proceeding before or ancillary to any court or grand jury of the United States refuses without just cause shown to comply with an order of the court to testify or provide other information, including any book, paper, document, record, recording or other material, the court, upon such refusal, or when such refusal is duly brought to its attention, may summarily order his confinement at a suitable place until such time as the witness is willing to give such testimony or provide such information. No period of such confinement shall exceed the life of—

(1) the court proceeding, or

(2) the term of the grand jury, including extensions,

before which such refusal to comply with the court order occurred, but in no event shall such confinement exceed eighteen months.

(b) No person confined pursuant to subsection (a) of this section shall be admitted to bail pending the determination of an appeal taken by him from the order for his confinement if it appears that the appeal is frivolous or taken for delay. Any appeal from an order of confinement under this section shall be disposed of as soon as practicable, but not later than thirty days from the filing of such appeal.

This contempt judgment was affirmed on appeal in In re Grand Jury Proceedings (George Gordon Liddy), 165 U.S.App.D.C. 254, 506 F.2d 1293 (1974).

4 . Appendix to Appellant’s Brief [hereinafter A.App.] at 20.

5 . Id. at 22-23.

6 . We have concluded that the District Court’s order is a final decision that is ripe for our review under 28 U.S.C. § 1291 (1970). Arguably, Liddy should be made to wait until what would have been the expiration date of his sentence had the sentence not been suspended, at which time he could move the sentencing court for release under 28 U.S.C. § 2255 (1970). However, if we were to permit the questions raised in this appeal to remain unanswered until that time, much of the coercive effect of the District Court’s contempt order would be dissipated since Liddy could then entertain some hope that he might subsequently receive credit toward his running sentence for his time spent in confinement for contempt. Since the District Court expressed the desire to “give meaning and coercive impact to the Court’s contempt powers,” we may fairly construe its order as a declaratory judgment that it would deny any future motion by Liddy under 28 U.S.C. § 2255. The challenged order thus “ ‘leaves nothing to be done but to enforce by execution what has been determined,’ ” Berman v. United States, 302 U.S. 211, 213, 58 S.Ct. 164, 166, 82 L.Ed. 204 (1938), quoting St. Louis, I. M. & S. R. R. Co. v. Southern Express Co., 108 U.S. 24, 28, 2 S.Ct. 6, 27 L.Ed. 638 (1883), so we deem review to be appropriate at this time.

7 . 275 U.S. 347, 48 S.Ct. 146, 72 L.Ed. 309 (1928).

8 . Id. at 358, 359, 48 S.Ct. at 149-150. See also Egan v. United States, 268 F.2d 820, 823 (8th Cir.), cert. denied, 361 U.S. 868, 80 S.Ct. 130, 4 L.Ed.2d 108 (1959), which cited the Murray and Lange cases for the proposition that “the beginning of the service of the sentence in a criminal case ends the power of the court to change it.”

9 . This was conceded by the District Court in its 3 April 1973 order. A.App. at 22.

10 . 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354 (1931).

11 . 85 U.S. (18 Wall.) 163, 21 L.Ed. 872 (1873).

12 . 282 U.S. at 306-307, 51 S.Ct. at 114.

13 . Id. at 309, 51 S.Ct. at 114-115.

14 . Liddy does not challenge the legality of this sentence, which is clearly authorized by the relevant statutes. See note 1 supra.

15 . 282 U.S. at 307, 51 S.Ct. at 114. Cf. Roberts v. United States, 320 U.S. 264, 265-266, 64 S.Ct. 113, 88 L.Ed. 41 (1943).

16 . Liddy cites Crowe v. United States, 200 F.2d 526 (6th Cir. 1952) for the proposition that postponing the expiration date of a sentence is tantamount to increasing it. Crowe is distinguishable, however, because the court there relied heavily on the literal terms of a probation order for which there is no counterpart in this case. On 13 March 1941, the District Court had sentenced Crowe to a prison term of one year and one day plus concurrent terms of five and three years to become effective upon expiration of the first sentence. The court had suspended the latter two sentences and placed Crowe on two years’ probation beginning after expiration of the first sentence. On 19 October 1942, over seven months after Crowe’s first sentence had expired, the court revoked his parole and ordered that he begin serving concurrent five- and three-year sentences. The Sixth Circuit remanded for correction of the sentence to give Crowe credit for the seven months following the expiration of his first sentence. The court stated:

The increase in the defendant’s sentence made by this order is substantial. In the entry of March 13, 1941 the sentences of five years on the second count and three years on the third count were ordered to run concurrently and to become effective at the expiration of the sentence on the first count, that is, the sentence of a year and a day. The judgment and commitment of October 19, 1942 was for a period of five years “from and after this date” on the second count and three years “from and after this date” on the third count. But “this date,” October 19, 1942, is over seven months more than a year and a day from March 13, 1941, the date of the defendant’s first sentence. The order increases the original sentence by over seven months. Hence the judgment of October 19, 1942 is void to the extent of its excess over the valid sentences of March 13, 1941.

200 F.2d at 529 (citations omitted). The court thus based its holding on a literal interpretation of the District Court’s 13 March 1941 order. No such order exists in this case to fix immutably the boundaries of Liddy’s sentence.

17 . As an example of such statutory, authorization, Liddy cites Fed.R.Crirri.P. 35, which provides:

The court may correct an illegal sentence at any time. The court may reduce a sentence within 120 days after the sentence is imposed, or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 120 days after receipt of an order of the Supreme Court denying an application for a writ of Certiorari.

18 . S.Rep.No.803, 72d Cong., 1st Sess. 2 (1932); H.R.Rep.No.960, 72d Cong., 1st Sess. 2 (1932).

19 . Theriault v. Peek, 406 F.2d 117 (5th Cir.), cert. denied, 394 U.S. 1021, 89 S.Ct. 1644, 23 L.Ed.2d 47 (1968). See also Anderson v. Corrall, 263 U.S. 193, 44 S.Ct. 43, 68 L.Ed. 247 (1923).

20 . Arrington v. Magruder, 160 U.S.App.D.C. 227, 490 F.2d 795 (1974); Bates v. Rivers, 116 U.S.App.D.C. 306, 323 F.2d 311 (1963). These cases interpreted the language of 24 D.C.Code § 206 (1973), whose counterpart for federal prisoners, 18 U.S.C. § 4205 (1970), has been similarly interpreted. See cases cited in Bates v. Rivers, 116 U.S.App.D.C. at 307, 323 F.2d at 312.

21 . 217 F.2d 619 (5th Cir. 1954), vacated as moot, 349 U.S. 948, 75 S.Ct. 893, 99 L.Ed. 1274 (1955).

22 . Id, 217 F.2d at 623.

23 . And interpretation and application of the Uniform Code of Military Justice § 57(b), Act of 5 May 1950, ch. 169, § 1(b), 64 Stat. 126, now 10 U.S.C. § 857(b) (1970).

24 . The court has been cited to nothing in section 1826 or the legislative history thereof to indicate that the provision, was not intended to apply to contemnors already imprisoned for some other offense. See H.R.Rep.No.91-1549, 91st Cong., 2d Sess. 46 (1970), U.S. Code Cong. & Admin. News 1970, p. 4007.

25 . Order of 3 April 1973, A.App. at 22. In its order, the District Court also observed:

Title 18 of the United States Code § 3568 provides that . . credit is given for any time spent in custody in connection with the offense for which the sentence is imposed. . . . The present commitment for contempt, however, is a commitment for a separate offense

Ibid. The unstated conclusion of the court’s reasoning is that section 3568 does not authorize conferral upon Liddy of credit toward his Watergate crimes sentence for his time spent in confinement for contempt. We think the District Court’s interpretation of section 3568 was correct.

26 . Pursuant to 18 U.S.C. § 401(3) (1970), which provides:

A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority as—

(3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.

27 . Provided that the sanctions are “surrounded by the safeguards of an ordinary criminal proceeding.” United States v. Di Mauro, 441 F.2d 428, 433 (8th Cir. 1971). See Cheff v. Schnackenburg, 384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629 (1966) (criminal contempt sentence may not exceed six months in absence of jury trial); Fed.R.Crim.P. 42(b) (mandatory procedures for adjudicating contempt not committed in presence of court).

28 . Shillitani v. United States, 384 U.S. 364, 371 n. 9, 86 S.Ct. 1531, 1536, 16 L.Ed.2d 622 (1966).

29 . When confronted with a contumacious grand jury witness who was already imprisoned, the District Court in In re Reina, 170 F.Supp. 592 (S.D.N.Y.1959), sentenced the contemnor to two years’ imprisonment to commence at the expiration of the sentence he was serving but allowed him 60 days from the date of judgment to purge himself of the contempt, in which case the two-year sentence would be vacated. Both the Second Circuit, 273 F.2d 234 (1959), and the Supreme Court, Reina v. United States, 364 U.S. 507, 81 S.Ct. 260, 5 L.Ed.2d 249 (1960), affirmed the contempt conviction and impliedly approved the District Court’s “hybrid” sentencing technique. However, this technique was cast in doubt by the following comment by the Court in Shillitani v. United States, 384 U.S. 364, 370 n. 6, 86 S.Ct. 1531, 1536 (1966):

The court may also impose a determinate sentence which includes a purge clause. This type of sentence would benefit an incorrigible witness. It raises none of the problems surrounding a judicial command that unless the witness testifies within a specified time he will be imprisoned for a term of years. See Reina v. United States, 364 U.S. 507 [81 S.Ct. 260, 5 L.Ed.2d 249] (1960).

The Court did not identify any specific “problems” inherent in the “hybrid” criminal contempt technique of Reina, but it may have been alluding to its holding that same day in Cheff v. Schnackenburg, 384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629 (1966), that a contemnor may not be sentenced to more than six months’ imprisonment for criminal contempt without a jury trial.

30 . The Government raised this point in its brief at 10 n. 4.

31 . No cases have been cited to us in which daily fines were employed in an attempt to coerce a contumacious witness into testifying. Fines are most frequently employed in civil suits to compel compliance with court orders, see Clark v. Boynton, 362 F.2d 992 (5th Cir. 1966), United States v. International Business Machines Corp., 60 F.R.D. 658 (S.D.N.Y.), appeal dismissed, 493 F.2d 112 (2nd Cir. 1973), or to compensate a complainant for losses sustained as a result of the contemnor’s noncompliance, see Clark v. Boynton, supra, Parker v. United States, 153 F.2d 66 (1st Cir. 1946).

32 . See United States v. United Mine Workers of America, 330 U.S. 258, 304, 67 S.Ct. 677, 701, 91 L.Ed. 884 (1947):

[A] court which has returned a conviction for contempt must, in fixing the amount of a fine to be imposed as a punishment or as a means of securing future compliance, consider the amount of defendant’s financial resources and the consequent seriousness of the burden to that particular defendant.

See also Moore v. United States, 150 F.2d 323, 325 (10th Cir.), cert. denied, 326 U.S. 740, 66 S.Ct. 52, 90 L.Ed. 441 (1945).

33 . This point was not raised in the brief or oral argument of appellant’s counsel, but since our colleague has seen fit to raise a jurisdictional issue, we dispose of it herein.

34 . The numerous cases relied on by our colleague are all expositions of the limited principle re: the term of a sentence.

35 . See, e. g., 28 U.S.C. § 1291 (1970) which provides that the courts of appeal have jurisdiction of appeals from all final decisions of the district courts; 15 U.S.C. § 717r (1970) (Orders of the Federal Power Commission under the Natural Gas Act); 21 U.S.C. § 371 (1970) (Orders of the Secretary of Health, Education, and Welfare under the Federal Food, Drug, and Cosmetic Act).

36 . Molinaro v. New Jersey, 396 U.S. 365, 90 S.ct. 498, 24 L.Ed.2d 586 (1970), is not to the contrary. In that case the Supreme Court dismissed the appeal of a defendant who had failed to surrender himself to state authorities and was thus considered a fugitive from justice. The language of the Court, in our view, makes clear that the dismissal was discretionary and not mandated by any loss of jurisdiction;

While such an escape does not strip the case of its character as an adjudicable case or controversy, we believe it disentitles the defendant to call upon the resources of the Court for determination of his claims.

396 U.S. at 366, 90 S.Ct. at 498-499. The wrongful act of escape was the appellant’s; his penalty was the refusal of the appellate court to hear his plea. Here a declination to exercise appellate jurisdiction would frustrate the contempt power of the District Court to the advantage of the contemnor.

37 . Appellant’s contempt judgment was affirmed on appeal in In re: Grand Jury Proceedings (George Gordon Liddy), 165 U.S.App.D.C. 254, 506 F.2d 1293, 1974.