UNITED STATES of America, Plaintiff-Appellee. v. David L. FOWLER, Defendant-Appellant.
No. 85-3986
United States Court of Appeals, Ninth Circuit
July 22, 1986
Argued and Submitted May 7, 1986.
1. Did Metal-Matic Manufacture the Tubing that Failed?
From 1978 through 1981, when the unit involved in this case was manufactured, Krack purchased tubing only from Metal-Matic and Van Huffel. Metal-Matic leaves the bead on welds in the tubing it manufactures, and Van Huffel removes the bead from welds in its tubing. The bead was left on the welds in the tubing that developed the leak. Nevertheless, Metal-Matic argues that there is no proof that it manufactured this tubing. Metal-Matic‘s argument is based on testimony that before 1978, Krack also purchased tubing from several smaller suppliers, some of which left the bead on their welds and that Krack puts all of its tubing in common bins.
The evidence on this issue is contradictory. That being the case, it was the jury‘s responsibility to weigh the evidence and reach a decision. The jury reached a result that is supported by substantial evidence, and we will not disturb it. See Mosesian, 727 F.2d at 877.
2. Did Metal-Matic Cause the Defect?
Three experts, Wong for Diamond, Myers for Metal-Matic, and Irish for Krack, testified that the hole they observed in the tubing was caused by a hacksaw. One expert, Smith for Diamond, testified that the hole he saw was a pinhole and that there were no saw grooves on the tubing when he inspected it. Smith was the first expert to inspect the cooling unit after the leak was discovered. The next expert to inspect the unit, Myers, did not do so until almost two years after Smith‘s last inspection. During that time the unit was left in a hall at Diamond‘s warehouse. When Myers did inspect the unit, he cut the leaky section of tubing out of the unit. He then did more cutting on that section of tubing at his office. The other two experts, Wong and Irish, saw the tubing after Myers inspected it.
Relying on the testimony that the hole in the tubing was caused by a hacksaw, Metal-Matic attempts to show that such a hole could only have been made by Krack. The testimony at trial established that both Krack and Metal-Matic have hacksaws on their premises, but Krack is more likely to use a hacksaw around the tubing than is Metal-Matic.
Again there is evidence that would support a finding on either side of this issue. The jury weighed the evidence and reached a verdict supported by substantial evidence. That verdict will not be disturbed on appeal. See Mosesian, 727 F.2d at 877.
The jury verdict is supported by the evidence and consistent with the U.C.C. Therefore, the district court did not err in denying Metal-Matic‘s motion for a directed verdict.
AFFIRMED.
Stephen R. Sady, Portland, Or., for defendant-appellant.
Before ALARCON, REINHARDT and THOMPSON, Circuit Judges.
THOMPSON, Circuit Judge:
David L. Fowler appeals from the district court‘s denial of his petition to “Vacate, Set Aside, or Correct Sentence” (the “petition“). In 1983, Fowler was convicted in the district court on four counts of filing false tax returns in violation of
I
FACTS
In April 1983 Fowler and his wife were tried under
Before Fowler was sentenced, the government submitted a “Bill of Costs” amounting to $3,634.01 for the costs of prosecution. The itemized list of costs included “witness fees” (for calling twenty-one witnesses), “court reporter transcripts,” and “county clerk‘s fees.” The district court sentenced Fowler under
Fowler (who was represented by counsel) did not file an appeal. Instead, in December 1983 he filed the present petition alleging, among other things, that the district court had improperly charged him with the full amount of the costs of his prosecution. The government treated Fowler‘s petition as a motion under
II
CONSIDERATION OF PETITION AS RULE 35 MOTION
Both the parties and the district court treated Fowler‘s petition as a motion for relief under
We need not address whether Fowler‘s claims are cognizable under section 2255, because we may treat his petition as a motion to correct an “illegal” sentence under Fed.R.Crim.P. 35. Brooks v. United States, 457 F.2d 970, 971 n. 1 (9th Cir.1972). See also Hill, 368 U.S. at 430, 82 S.Ct. at 472; Heflin v. United States, 358 U.S. 415, 418-19, 79 S.Ct. 451, 453-54, 3 L.Ed.2d 407 (1959), overruled on other grounds, Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968); United States v. Cevallos, 538 F.2d 1122, 1127 (5th Cir.1976); United States v. Phillips, 403 F.2d 963, 964 (6th Cir.1968); Scarponi v. United States, 313 F.2d 950, 952-53 (10th Cir. 1963).
Rule 35 provides:
(a) Correction of Sentence. The court may correct an illegal sentence at any time and it may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence.
(b) Reduction of Sentence. A motion to reduce a sentence may be made, or the court may reduce a sentence without motion, within 120 days after the sentence
is imposed or probation is revoked, 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 entry of any order or judgment of the Supreme Court denying review of, or having the effect of upholding, a judgment of conviction or probation revocation. The court shall determine the motion within a reasonable time. Changing a sentence from a sentence of incarceration to a grant of probation shall constitute a permissible reduction of sentence under this subdivision.
Rule 35 distinguishes among motions to reduce or correct an “illegal” sentence, a lawful sentence, and a “sentence imposed in an illegal manner.” See 3 C. Wright, Federal Practice And Procedure §§ 582-86 at 380-407 (2d ed. 1982 & Supp. 1986) [hereinafter Wright & Miller]. A motion to correct an “illegal” sentence may be made at any time. United States v. Mack, 494 F.2d 1204, 1207 (9th Cir.1974). A petition to correct a lawful sentence or a sentence imposed in an illegal manner, however, must be presented within the 120 day period specified in Rule 35. Wright & Miller, supra, § 587 at 407-15. We have stated that an “illegal” sentence includes “a sentence which is not authorized by the judgment of conviction ....” Pinedo v. United States, 347 F.2d 142, 148 (9th Cir. 1965), cert. denied, 382 U.S. 976, 86 S.Ct. 547, 15 L.Ed.2d 468 (1966), or “in excess of the permissible statutory penalty for the crime,” id., or in violation of the constitution. Mack, 494 F.2d at 1207. See also Hill, 368 U.S. at 430, 82 S.Ct. at 472; United States v. Ames, 743 F.2d 46, 47 (1st Cir.1984), cert. denied, ----- U.S. -----, 105 S.Ct. 927, 83 L.Ed.2d 938 (1985); United States v. Becker, 536 F.2d 471, 473 (1st Cir.1976); Wright & Miller, supra, § 582 at 381.
In the present case, Fowler alleges two “illegalities” in the district court‘s imposition of costs. First, he contends that interpreting
Because Fowler attacks the “legality” of the sentence, we may treat his section 2255 petition as a motion under Rule 35. Brooks, 457 F.2d at 971 n. 1 (and cases cited supra).1
III
STANDARD OF REVIEW
Whether the sentence imposed was “illegal” is a question of law reviewed de novo. See generally United States v. Sparrow, 673 F.2d 862, 864 (5th Cir.1982) (Rule 35 motion “will be reversed only for illegality or gross abuse of discretion.“) (emphasis added, citations omitted); Mack, 494 F.2d at 1207. See also Wright & Miller, supra, § 588, at 415 (“The question [legality of sentence] is a question of law and freely reviewable by the appellate court.“).
IV
ANALYSIS
A. Interpretation of 26 U.S.C. § 7206
Our decision in United States v. Chavez, 627 F.2d 953 (9th Cir.1980), cert. denied. 450 U.S. 924, 101 S.Ct. 1376, 67 L.Ed.2d 353 (1981), answers Fowler‘s contention that the mandatory imposition of costs violates his constitutional rights. In Chavez, we interpreted the identical language contained in
B. Allocation and Reduction of Costs
We next consider Fowler‘s contention that the district court erred in refusing to allocate the costs of prosecution or reduce them by one-half.
The government may only recover costs associated with a successful prosecution under section 7206. See, e.g., United States v. DeBrouse, 652 F.2d 383, 391 (4th Cir.1981) (interpreting
We also reject Fowler‘s contention that even if all of the costs were necessary for the successful prosecution on Counts One through Three, the district court should have reduced the costs by half because of Mrs. Fowler‘s acquittal. Fowler is entitled to no such windfall. If Fowler had been tried separately, he could have been charged with all of the costs of prosecution. Chavez, 627 F.2d at 954-55. That Fowler was tried jointly with his wife and that she was acquitted does not affect Fowler‘s obligations. The courts have stated that where defendants are tried jointly and costs are assessed, each convicted defendant is charged with the entire cost, though only one payment may be enforced. Troiani, 595 F.Supp. at 187 n. 1; United States v. Jemison, 14 F.2d 755 (S.D.Ala. 1926) (district court); 20 C.J.S. Costs § 438, at 680-81 (1964 & Supp.1985); 20 Am. Jur.2d Costs § 103, at 81-82 (1965 & Supp. 1985) (citing authorities). Here, Fowler and his wife were tried jointly and he was convicted. The government is therefore entitled to recover the full costs of Fowler‘s successful prosecution, notwithstanding his wife‘s acquittal.
AFFIRMED.
REINHARDT, Circuit Judge, dissenting:
The majority, in addressing an issue never before considered by a federal appellate court, holds that where two defendants are tried together but only one convicted, and the costs of trial would all have been incurred had either one been tried alone, the single defendant who is convicted may be
One of the two cases on which the majority relies clearly does not stand for the proposition. United States v. Troiani, 595 F.Supp. 186, 187 n. 1 (N.D.Ill.1984), holds only that when several defendants are tried together and all are convicted, each is jointly and severally liable for the full cost of trial, and any defendant paying more than his pro rata share may enforce a right of contribution against the rest. The legal encyclopedia articles to which the majority cites are similarly limited in their statements.
The second case cited by the majority, United States v. Jemison, 14 F.2d 755 (S.D.Ala.1926), does relate to the question of the allocation of costs in cases in which some defendants are convicted and some acquitted. However, the case is of little, if any, precedential value. Jemison involved the National Prohibition Act, which, unlike the Internal Revenue Code, did not contain a provision governing the assessment of court costs as a penalty. The district court judge could find “no federal statute which covers the question” nor any federal case and therefore relied on an 1887 Alabama case interpreting a state statute for his apparent conclusion that those persons convicted at a trial could be assessed the full trial costs even though others were acquitted.1 14 F.2d at 755. In the case before us,
In my view, the majority affirms a sentence not directly “authorized by the judgment of conviction.” Pinedo v. United States, 347 F.2d 142, 148 (9th Cir.1965), cert. denied, 382 U.S. 976, 86 S.Ct. 547, 15 L.Ed.2d 468 (1966). The excessive costs imposed are not within the contemplation of the statute providing for the imposition of costs. The purpose of
There are two basic ways in which trial costs could be allocated under the statute: in accordance with generally accepted accounting principles or by imposing 100% of the costs upon the defendant. While it is true that it would have cost the government just as much to try Mr. Fowler singly as with his wife, it is equally true that the government would have incurred the identical costs it incurred had it tried only Mrs. Fowler. Admittedly, the statute does not authorize the assessment of any costs against her. Thus, the majority‘s windfall argument cuts both ways, with equal force.
With no authority on point, it seems to me that the better rule would be to allocate the costs ratably, in this case allocating 50% of the trial expenses to Mr. Fowler and 50% to his wife. In view of Mrs. Fowler‘s acquittal, the 50% allocated to her may not be recovered under the statute.
Where the scope of the permitted penalty is unclear, the canons of statutory construction require courts to interpret criminal statutes in such a way as to resolve ambiguity in favor of a defendant. The imposition of costs under
For the above reasons, I dissent.