UNITED STATES of America, Plaintiff-Appellant, v. John J. VON MOOS, Defendant-Appellee

United States Court of Appeals for the Ninth Circuit1981-11-06No. No. 81-1212

660 F.2d 748

Summary · law.co

Holding. The court reversed the district judge's order and remanded for sentencing on the perjury charge. Considering a defendant's trial perjury when sentencing for the underlying offense does not constitute punishment for the perjury, so a subsequent sentence for perjury does not violate the double jeopardy clause.

Von Moos committed perjury during his bank robbery trial. The district judge considered this perjury when sentencing him for the robbery, explicitly stating that the perjury resulted in a lengthier sentence than would otherwise have been imposed. Von Moos was subsequently indicted and pleaded guilty to perjury, but the district judge refused to impose any sentence, reasoning that doing so would constitute impermissible double punishment since the perjury had already been factored into the robbery sentence.

The government appealed the order blocking sentencing on the perjury charge. The appellate court held that considering perjury during sentencing for an underlying crime does not itself constitute punishment for the perjury itself. Therefore, imposing a separate sentence for the perjury charge would not violate double jeopardy protections. The court found the district judge's order was final and appealable, and that jeopardy had not yet attached because Von Moos had not begun serving any sentence.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether considering trial perjury in sentencing for an underlying crime constitutes punishment for perjury
Whether a subsequent sentence for perjury would violate double jeopardy protections
Timing of when jeopardy attaches in the sentencing context

Procedural posture

The government appealed from a final district court order refusing to impose sentence on a perjury charge based on a finding that sentencing would constitute double punishment.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

PER CURIAM:

John Von Moos committed perjury during the course of his trial for bank robbery. The district judge stated that in sentencing Von Moos on the bank robbery conviction he took Von Moos’s perjury into consideration in two ways: “One way on his credibility as he testified at the imposition of sentence; and the other is at the time I imposed the sentence I considered it in evaluating what the sentence should have been.”

Later Von Moos was indicted for the perjury. He pleaded guilty and came on for sentencing before the district judge. The district judge entered an order stating as follows:

At time of sentencing the defendant in the bank robbery case this Court specifically considered the defendant’s perjury committed at said trial, with the effect that his sentence on the bank robbery was greater than it would have been had the perjury not been considered. In view of this finding:

IT IS HEREBY ORDERED that this Court is without legal authority to enter any sentence against the defendant for the present perjury charge to which he has pleaded guilty, in that to do so would constitute double punishment of said defendant on the account of his perjury.

On the basis of this order the case was closed. The government appealed.

This court may entertain a government appeal from a final decision in a criminal case limited only by the double jeopardy clause. 18 U.S.C. § 3731; United States v. Hetrick, 644 F.2d 752, 754-55 (9th Cir. 1980). Jeopardy attaches in the double punishment context when the defendant begins serving the sentence. See United States v. Ford, 632 F.2d 1354, 1380 (9th Cir. 1980). Because Von Moos has not begun serving a sentence pursuant to the challenged order, jeopardy has not attached. If we were to reverse and remand for sentencing, the sentence on remand would not constitute double jeopardy.

A “final decision” is required as a predicate to appellate jurisdiction. “In criminal cases, as well as civil, the judgment is final for the purpose of appeal ‘when it terminates the litigation ... on the merits’ and ‘leaves nothing to be done but to enforce by execution what has been determined.’ ” Berman v. United States, 302 U.S. 211, 212-13, 58 S.Ct. 164, 165-66, 82 L.Ed. 204 (1937) (quoting St. Louis, I. M. & S. R. Co. v. Southern Express, 108 U.S. 24, 2 S.Ct. 6, 27 L.Ed. 638 (1883)); accord, United States v. Carnes, 618 F.2d 68 (9th Cir. 1980). The order appealed from in this case is final within this definition. The district judge has declared that he is without legal authority to impose a sentence. He has left nothing further to be done. The case has been closed. The lack of a formal judgment does not strip the court’s order of its “independence and completeness”, United States v. United States District Court, 601 F.2d 379, 380 (9th Cir. 1978).

In United States v. Wise, 603 F.2d 1101, 1104 (4th Cir. 1979) the court held there was no double jeopardy in sentencing the defendant for perjury even though the perjury had been considered by the court in sentencing the defendant for a drug offense. The result is compelled by United States v. Grayson, 438 U.S. 41, 52-54, 98 S.Ct. 2610, 2616-17, 57 L.Ed.2d 582 (1978) which rejected the contention that taking account of trial perjury in sentencing constitutes punishment for perjury. If considering trial perjury in sentencing does not constitute punishment for perjury, a subsequent sentence for perjury cannot constitute a second punishment.

REVERSED AND REMANDED.