United States v. Lawrence Victor Miller, A/K/A Larry Miller

588 F.2d 1256 UNITED STATES of America, Plaintiff-Appellee, v. Lawrence Victor MILLER, a/k/a Larry Miller, Defendant-Appellant. No. 77-3173. United States Court of Appeals, Ninth Circuit. Nov. 13, 1978. As Amended an Denial of Rehearing and Rehearing En Banc Jan. 3, 1979. Paul A. Mansfield, of San Jose, Cal., David S. Koslow (argued), of Hertzberg, Kaplan & Koslow, Los Angeles, Cal., for defendant-appellant. James E. White, Asst. U. S. Atty. (argued), Fresno, Cal., Robert S. Griswold, Jr. (argued), San Francisco, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Eastern District of California. Before BROWNING, CARTER and ANDERSON, Circuit Judges. JAMES M. CARTER, Circuit Judge: 1 Appellant Larry Miller was convicted of three counts of a twenty-one count information charging criminal contempt for violation of a court-ordered injunction, 18 U.S.C. § 401 (3). He appeals both his conviction and his sentence. The United States contends: 2 (1) the appeal is procedurally defective because Miller failed to move below for correction or reduction of his sentence under Fed.R.Crim.P. 35. Miller contends: 3 (2) the district court lacked subject matter…

Appellant Larry Miller was convicted of three counts of a twenty-one count information charging criminal contempt for violation of a court-ordered injunction, 18 *1258 U.S.C. § 401 (3). He appeals both his conviction and his sentence.

The United States contends:

Miller contends:

We reach the substance of Miller’s appeal, but find no merit in his contentions. We affirm.

FACTS

On August 27, 1974, the Interstate Commerce Commission (ICC) filed a civil action against Larry Miller, Kern River Valley Growers Agricultural Cooperative, and other defendants to enjoin them from transporting property for compensation on public highways without obtaining necessary authorization from the ICC, in violation of § 222(b)(1) of the Interstate Commerce Act, 49 U.S.C. § 322 (b)(1). Upon default by all defendants judgment was entered together with Findings of Fact and Conclusions of Law which, inter alia, enjoined Miller

No appeal was taken from this judgment.

About sixteen months later, in April, 1976, the United States filed the information from which Miller now appeals. The information charged 21 counts of criminal contempt, 18 U.S.C. §§ 401 (3) & 402, for engaging in transportation without…

concurring in the majority opinion in part, and in the result:

I join all of the majority opinion except the concluding three paragraphs of Part E. I do not believe United States v. Weston, 448 F.2d 626 (9th Cir. 1971), can be distinguished on the grounds advanced in those paragraphs. I do, however, believe Weston is distinguishable on another ground.

Concern for the fairness of sentencing procedure has grown over the last decade. See, e. g., Frankel, Lawlessness in Sentencing, 41 U.Cin.L.Rev. 1 (1972). Weston made an important contribution in this troublesome area by limiting the circumstances in which the sentencing judge may rely on anonymous and unsubstantiated allegations of wrongdoing reported by the probation office. The majority opinion distinguishes Weston from the present case on a basis I do not believe justified by the facts of the two cases, and that I fear may weaken Weston’s capacity to correct abuses in sentencing.

Weston involved a single conviction for transportation of heroin. At sentencing, the probation officer reported the opinions of unidentified drug agents that the defendant was the chief area heroin supplier and that she frequently travelled long…