In a case remanded to it by the circuit court of appeals, the
district court must apply the principles laid down in the decision
for its guidance, and if the mandate required it to reject a plea
of
nolo contendere on the only counts on which the
government stood and to proceed with the case, it must, in
obedience to the mandate, set aside the plea.
This Court cannot reverse the ruling of the circuit court of
appeals upon a writ of error to the district court which acted upon
the mandate even though new constitutional questions were raised in
the district court after the case had been remanded.
Union
Trust Co. v. Westhus, 228 U. S. 519.
This Court cannot take a case in fragments and, if reviewable on
direct writ of error, by reason of the presence of a constitutional
question, the whole case must come here.
There is ample opportunity for a review by this Court of every
judgment or decree of a lower court contemplated by the Act of 1891
(now embodied in the Judicial Code), but, in the distribution of
jurisdiction, this Court is not authorized to review a judgment or
decree of the circuit court of appeals otherwise than by
proceedings addressed to that court.
Brown v. Alton Water
Co., 222 U. S. 325.
The facts, which involve the jurisdiction of this Court to
directly review the judgment of the district court in a case in
which that court acted in accordance with the mandate of the
circuit court of appeals, are stated in the opinion.
Page 235 U. S. 413
MR. JUSTICE HUGHES delivered the opinion of the Court.
On June 21, 1910, David Shapiro -- the plaintiff in error -- was
indicted for violation of the internal revenue laws. The indictment
contained thirteen counts. Eleven charged offenses punishable by
both fine and imprisonment; one (the tenth) was for an offense
punishable by fine only, and one (the thirteenth) was for an
offense punishable by fine or imprisonment, or both.
* On June 24,
1910, the plaintiff in error pleaded "not guilty" to every count;
on January 3, 1911, "by leave of court first had and obtained," he
withdrew this plea, and, being then arraigned upon the indictment,
he pleaded "
nolo contendere thereto;" on January 20, 1911,
the United States entered a
nolle prosequi as to all the
counts, save those numbered 4, 9, and 12, each of which charged a
felony (Crim.Code, § 335); later on the same day, the cause "coming
on to be heard on defendant's plea of
nolo contendere,"
the court, "having heard the evidence by the parties adduced and
statements of counsel," took the cause under advisement, and on
January 23, 1911, the court, being fully advised, found the
defendant guilty as charged in the indictment, and upon this
finding sentenced him to imprisonment for two years and to pay a
fine in the sum of $10,000 in addition to costs.
Shapiro sued out a writ of error from the circuit court of
appeals, assigning as errors (1) that the district court had no
jurisdiction to pass judgment in this case on a plea of
nolo
contendere; (2) that it erred in sentencing him without a
trial by jury; (3) that, by the judgment, he had been deprived of
his liberty without due process of law within
Page 235 U. S. 414
the meaning of the Fifth Amendment, and (4) that the sentence
was excessive and should be limited to a fine only. The circuit
court of appeals reversed the judgment. 196 F. 268. The grounds of
the reversal are set forth in its opinion in
Tucker v. United
States, 196 F. 260 -- a case decided at the same time, which
the court deemed to be similar in all material respects. It was
held that the plea of
nolo contendere was not authorized
in the case of an offense which must be punished by imprisonment,
with or without a fine; that where counts charging offenses which
must be punished by imprisonment are joined with counts charging
those which may be punished by fine only, the plea may be
entertained as "in the nature of a compromise;" and that in such
case it is "within the authority of the prosecuting officer to
elect to stand, for the purposes of the plea, on the counts
applicable thereto," and it is "within the jurisdiction of the
court to approve such submission." It was further held that, in the
particular case, the proceedings and judgment were in derogation of
the plea; that it did not appear in the record that the plea was
either "accepted in fact" or "substantially so treated;" that the
proceedings leading to the judgment, the adjudication of guilt, and
the judgment itself in its sentence of imprisonment were
inconsistent with the acceptance of the plea, and hence that the
record failed to show an authorized plea to support the judgment.
196 F. pp. 267, 268. The cause was remanded "with direction either
to accept or refuse acceptance of the
nolo contendere plea
as tendered, and proceed further in conformity with law."
Thereupon, the district court, against the exception of the
plaintiff in error, refused to accept the plea of
nolo
contendere tendered by him, and directed him to plead to the
indictment; he stood mute, and the court entered for him a plea of
not guilty. Subsequently, by leave of the court, the plaintiff in
error filed three special pleas. The first
Page 235 U. S. 415
plea, in substance, set forth the prior proceedings and alleged
that the plea of
nolo contendere had been duly accepted,
that the court, acting thereon, had heard evidence solely for the
purpose of fixing the punishment to be imposed, and that therefore
he had been once before in jeopardy for the same offense, and ought
not, by virtue of the protection guaranteed by the Fifth Amendment,
to be further prosecuted. The second special plea set forth that
the defendant had compromised the civil and criminal liability with
the Commissioner of Internal Revenue. And the third special plea
urged that, while the writ of error was pending in the circuit
court of appeals, the original order of supersedeas had been
modified so as to permit the judgment to be enforced as to the
fine, that thereupon the United States had procured to be seized a
certain draft for $5,000 in partial satisfaction of the fine, and
that it followed under the Fifth Amendment that, the judgment
having been satisfied in part, the plaintiff in error could not be
tried again upon the same indictment.
Meanwhile, the plaintiff in error moved in the district court to
correct the record so as to have it show that the plea or
nolo
contendere had been accepted, and petitioned the circuit court
of appeals to release its mandate in order that the correction
might be made. This petition was denied, and the motion in the
district court was not pressed.
The government demurred to each of the three special pleas, and
the district court, sustaining the demurrers, proceeded to trial.
The jury rendered a verdict of guilty, motions for a new trial and
in arrest were overruled, and the plaintiff in error was sentenced
to imprisonment for two years and to pay a fine of $5,000. The case
is now brought directly to this Court.
The motion to dismiss must be granted.
Aspen Mining Co. v.
Billings, 150 U. S. 31;
Brown v. Alton Water Co., 222 U.
S. 325;
Metropolitan Water Co. v. Kaw
Valley District,
Page 235 U. S. 416
223 U. S. 519;
Union Trust Co. v. Westhus, 228 U.
S. 519. The duty of the district court was defined by
the decision of the circuit court of appeals, and in its further
proceedings it was bound to apply the principles which that court
had laid down for its guidance. It may not have been observed by
the appellate court that, in the case of Shapiro, the government
had entered a
nolle prosequi as to the counts charging an
offense which might be punished by fine alone; but this being the
actual state of the record, it cannot be doubted that, reading the
mandate of the appellate court in the light of its opinion, the
district court was not free to accept the plea of
nolo
contendere as applicable to the remaining "prison counts." Its
obedience to the mandate under the law as declared by the circuit
court of appeals required it, with respect to these counts upon
which the government stood, to reject the plea of
nolo
contendere and to proceed with the case. It is now assigned as
error that the district court did set aside this plea. It is
insisted that the plea had been accepted when originally tendered,
but this is negatived by the ruling of the circuit court of
appeals, and we are in substance asked to revise its decision upon
a writ of error to the district court. This would be to transcend
the limits of our jurisdiction as it has been clearly defined in
the cases cited.
It is no answer to say that new constitutional questions were
raised by the special pleas after the case had been remanded to the
district court. We cannot take the case in fragments, and if it is
reviewable upon a direct writ of error by reason of the presence of
a constitutional question, the whole case must come here, and we
must assume the duty of passing upon the proceedings of the
district court which were taken by it under the mandate of the
circuit court of appeals. The ruling upon this point in
Union
Trust Co. v. Westhus, supra, is controlling. There, the
constitutional question was raised by an amendment to the pleadings
in the district court after the decision of
Page 235 U. S. 417
the circuit court of appeals, and it was insisted that this fact
made the previous decisions inapplicable. But the asserted
distinction was not sustained. The error lay, it was said, "in
pursuing a mistaken avenue of approach to this Court" -- that
is,
"of coming directly from a trial court in a case where, by
reason of the cause having been previously decided by the circuit
court of appeals, the way to that court should have been pursued
even if it was proposed to ultimately bring the case here."
There is, as was pointed out in the
Alton case, ample
opportunity for a review by this Court of every judgment or decree
of a lower court which the Act of 1891 (now embodied in the
Judicial Code) contemplated should be here reviewed; but, in the
distribution of jurisdiction, this Court is not authorized "to
review a judgment or decree of a circuit court of appeals otherwise
than by proceedings addressed directly to that court."
Dismissed.
* Counts 1, 2, 3, and 4 charged a violation of § 3296 of the
Revised Statutes; counts 5, 6, 7, and 8, of § 3317, amended by Act
of March 1, 1879, c. 125, § 5, 20 Stat. 327, 339; count 9, of §
3318; count 11, of § 3326; count 12, of § 3324, and count 13, of §
3455.
Count 10 charged a violation of the Act of July 16, 1892, c.
196, 27 Stat. 183, 200.
See Rev.Stat. § 3456.