In Re United States of America, Petitioner, 540 F.2d 21 (1st Cir. 1976)

On July 22, 1975, defendants Francis Spencer Rossi and Kevin Trainor were convicted by a jury on all counts of a three count indictment. Count I of the indictment charged both men with robbery of the Community National Bank in Newton, Massachusetts in violation of 18 U.S.C. § 2113(a); Count II charged that in committing the robbery the defendants assaulted and put in jeopardy various employees of the bank by the use of dangerous weapons in violation of § 2113(d); and Count III charged that the defendants, "in attempting to avoid apprehension for the commission of said offense . . . force(d) other persons to accompany (them) without the consent of such persons" in violation of § 2113(e). The district court, though allowing the verdicts to stand on all three counts, only imposed sentence on Count III.¹  The government thereupon petitioned this court for a writ of mandamus²  directing the trial judge to sentence both defendants on Count II of the indictment on the ground that § 2113(d) and § 2113(e) embody separate offenses for which separate sentences are warranted.³ 

Before we can reach the substantive issue, we must confront the question of jurisdiction. Respondents claim that mandamus is not available in the present case. Specifically, they contend that the government's exclusive rights of appeal in a criminal case are set forth in 18 U.S.C. § 3731 (1970); that the trial court's imposition of sentence on only one count in the present case is not an appealable order under the statute; and that the government may not achieve indirectly through the use of mandamus what it could not effect through a direct appeal.⁴ 

We are not persuaded, however, that this line of argument is entirely apposite. Title 18 U.S.C. § 3731 (1970) (as amended by Pub. L. 91-644, Tit. III § 14(a), 84 Stat. 1890 (Jan. 2, 1971)) permits the government to appeal in a criminal case "from a decision, judgment, or order of a district court dismissing an indictment . . . as to any one or more counts . . ., " except as barred by the double jeopardy clause. See Conference Report, 1970 U.S.Code Cong. & Adm.News at p. 5848; United States v. Southern Ry. Co., 485 F.2d 309, 312 (4th Cir. 1973). We note that "(t)he judgment of a court is the judicial determination or sentence of the court upon a matter within its jurisdiction." United States v. Hark, 320 U.S. 531, 534, 64 S. Ct. 359, 361, 88 L. Ed. 290 (1944). (Emphasis added.) In the instant case the district court ordered the jury's verdicts of guilty on three counts to be recorded, but imposed sentence only on Count III. The court based its decision to sentence on a single count solely on an interpretation of § 2113 in light of its understanding of O'Clair v. United States, 470 F.2d 1199 (1st Cir. 1972), cert. denied, 412 U.S. 921, 93 S. Ct. 2741, 37 L. Ed. 2d 148 (1973).⁵  This is not a situation where the "decision was in fact an acquittal rendered by the trial court after the jury's verdict of guilty." United States v. Sisson, 399 U.S. 267, 288, 90 S. Ct. 2117, 2128, 26 L. Ed. 2d 608 (1970). Rather, "(a) review of the record here shows that the trial judge did not base his order on the evidence adduced at trial," United States v. Esposito, 492 F.2d 6, 8 (7th Cir.), cert. denied, 414 U.S. 1135, 94 S. Ct. 879, 38 L. Ed. 2d 760 (1974), but solely on the factual circumstances and violations set forth in the indictment itself. In this situation the court's decision was "tantamount to the dismissal (of a count) of an indictment," United States v. Esposito, supra at 10, and the order was therefore appealable under the terms of § 3731. United States v. Wilson, 420 U.S. 332, 95 S. Ct. 1013, 43 L. Ed. 2d 232 (1975). See United States v. DiStefano, 464 F.2d 845, 846-47 (2d Cir. 1972); United States v. Esposito, supra at 8. Indeed, we note that in Wilson where the district court dismissed the indictment after the jury had already found the defendant guilty, the Supreme Court specifically held that the government was entitled to appeal. The Wilson Court noted that since, as in the instant case, the jury had already rendered a verdict and there was "(no) danger of subjecting the defendant(s) to a second trial for the same offense," 420 U.S. at 336, 95 S. Ct. at 1018, "the Double Jeopardy Clause (was) not offended" and posed no bar to an appeal. Id. at 344, 95 S. Ct. at 1022.

The government, however, did not appeal the district court's action, see n.2 supra, nor did it lodge its mandamus petition with sufficient promptness to be deemable as the equivalent of an appeal.⁶  And while this case might be one in which mandamus could nevertheless be exercised, see Note, 86 Harv. L. Rev. 595 (1973); Will v. United States, 389 U.S. 90, 95 n.4, 88 S. Ct. 269, 19 L. Ed. 2d 305 (1967) a question we do not decide we here decline to expand the applicability of mandamus, particularly in light of the strong policy grounds favoring restriction on its use in criminal cases. Id. at 96-98, 88 S. Ct. 269; cf. In re Ellsberg, 446 F.2d 954, 956-57 (1st Cir. 1971). This does not necessarily mean that there can be no review on the merits of the substantive issue in this case. In view of the fact that the respondents did not appeal their convictions, see n.4 supra, we would now expect the district court to dismiss the convictions under the two counts on which it declined to impose sentence. Cf. United States v. Honneus, 508 F.2d 566, 570 & n.1 (1st Cir. 1974), cert. denied, 421 U.S. 948, 95 S. Ct. 1677, 44 L. Ed. 2d 101 (1975); United States v. Eatherton, supra at 612. The government would then be in position to take a timely appeal from such an order.

The petition for writ of mandamus is denied.