United States v. John J. Von Moos, 660 F.2d 748 (9th Cir. 1981). · Go Syfert
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United States v. John J. Von Moos, 660 F.2d 748 (9th Cir. 1981). Cases Citing This Book View Copy Cite
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cited 2× by 2 distinct cases, last quoted 1996 · 2 courts · …jeopardy attaches in the double punishment context when the defendant begins serving the sentence. at p. 749 ✓
23 citation events (2 in the last 25 years) across 10 distinct courts.
Strongest positive: United States v. Andrews, Arthur R. (cadc, 1998-06-26)
Treatment trajectory · 1984 → 2026 · click a year to view as-of
1984 2005 2026
Top citers, strongest first. 12 distinct citers. How cited ↗
discussed Cited as authority (rule) United States v. Andrews, Arthur R.
D.C. Cir. · 1998 · signal: cf. · confidence medium
See, e.g., United States v. Tamez, 881 F.Supp. 460, 465-66 (E.D.Wash.1995) (jeopardy does not attach in civil forfeiture proceedings until final *942 judgment is entered), aff'd, 95 F.3d 1160 (9th Cir.1996) (table); United States v. Polichemi, 1995 WL 387833 (N.D.Ill.1995) (prohibition against multiple punishments does not attach in SEC civil action until civil penalty is imposed); cf. United States v. Von Moos, 660 F.2d 748, 749 (9th Cir.1981) (jeopardy on multiple punishments claim involving multiple sentences does not attach until defendant begins serving sentence).
discussed Cited as authority (rule) United States v. Kenneth Herbert Linn
9th Cir. · 1996 · confidence medium
Fed.R.App.P. 34(a); 9th Cir.R. 34-4 ** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3 1 Because we affirm the denial of relief under the former version of 28 U.S.C. § 2255 , we do not consider whether the Antiterrorism and Effective Death Penalty Act of 1996 applies to this appeal 2 Linn contends that jeopardy attached when he began serving his sentence, citing United States v. Von Moos, 660 F.2d 748, 749 (9th Cir.1981) (per curiam), and United States v. Ford, 632 F.2d 1354, 1380 (9th Cir.1980)…
discussed Cited as authority (rule) United States v. Allen C. Gehring, United States of America v. Sharon Gehring
9th Cir. · 1996 · confidence medium
They rely on United States v. Von Moos, 660 F.2d 748, 749 (9th Cir.1981) (per curiam), which held that "[j]eopardy attaches in the double punishment context when the defendant begins serving the sentence." 9 In United States v. Faber, 57 F.3d 873 (9th Cir.1995), we squarely rejected these arguments, expressly stating that "[j]eopardy ordinarily attaches in a criminal proceeding when the court accepts a plea agreement." Id. at 874 .
cited Cited as authority (rule) United States v. Paul Lee Faber
9th Cir. · 1995 · confidence medium
Faber cites U.S. v. Von Moos, 660 F.2d 748, 749 (9th Cir.1981) for support.
discussed Cited as authority (rule) United States v. Groceman
E.D. Wash. · 1995 · confidence medium
In that regard, he cites both United States v. Von Moos, 660 F.2d 748, 749 (9th Cir.1981), and United States v. Ford, 632 F.2d 1354 (9th Cir.1980), cert. denied, 450 U.S. 934 , 101 S.Ct. 1399 , 67 L.Ed.2d 369 (1981).
discussed Cited as authority (rule) United States v. Tamez
E.D. Wash. · 1995 · confidence medium
The Ninth Circuit has articulated this distinction: “Jeopardy attaches in the double punishment context when the defendant begins serving the sentence.” United States v. Von Moos, 660 F.2d 748, 749 (9th Cir.1981) (emphasis added); see also, United States v. Ford, 632 F.2d 1354 (9th Cir.1980), cert. denied, 450 U.S. 934 , 101 S.Ct. 1399 , 67 L.Ed.2d 369 (1981), overruled on other grounds, 730 F.2d 1255, 1259 (9th Cir.1984); Stanwood, 872 F.Supp. at 798 n. 2.
discussed Cited as authority (rule) United States v. Stanwood
D. Or. · 1994 · confidence medium
Stanwood, relying on United States v. Von Moos, 660 F.2d 748, 749 (9th Cir.1981), argues that jeopardy attaches at the time a criminal defendant begins serving his or her sentence, not at the time a plea is entered.
cited Cited as authority (rule) United States v. McCormick
D. Vt. · 1992 · confidence medium
United States v. Von Moos, 660 F.2d 748, 749 (9th Cir.1981) (jeopardy attaches in double punishment context when defendant begins serving his sentence).
discussed Cited as authority (rule) United States v. Costa
9th Cir. · 1989 · confidence medium
United States v. Van Moos, 660 F.2d 748, 749 (9th Cir.1981) (indictment for perjury not a violation of double jeopardy where trial court had previously considered the defendant's lack of truthfulness when sentencing him for another offense); see also United States v. Wise, 603 F.2d 1101, 1106 (4th Cir.1979) (same). 7 Since the double jeopardy clause does not preclude prosecution for conduct which has been taken into account in determining the appropriate sentence for a separate offense, the district court did not err in denying Costa's motion for dismissal.
cited Cited "see" United States v. Pledger
D. Kan. · 1995 · signal: see · confidence high
See United States v. Von Moos, 660 F.2d 748, 749 (9th Cir.1981).
cited Cited "see" United States v. Blue Mountain Bottling Co. Of Walla Walla, D/B/A 7-Up Bottling Co. Of Walla Walla, Also D/B/A 7-Up Bottling Co. Of Tri-Cities, United States of America v. Coca-Cola Bottling Co.--Yakima, Also D/B/A Coca-Cola Bottling Co.--Tri Cities, United States of America v. Pepsi-Cola Bottling Company of Walla Walla, Pepsi-Cola Bottling Company of Pasco
9th Cir. · 1991 · signal: see · confidence high
See United States v. Van Moos, 660 F.2d 748, 749 (9th Cir.1981).
cited Cited "see" United States v. Blue Mountain Bottling Co. of Walla Walla
9th Cir. · 1991 · signal: see · confidence high
See United States v. Van Moos, 660 F.2d 748, 749 (9th Cir.1981).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellant,
v.
John J. VON MOOS, Defendant-Appellee
81-1212.
Court of Appeals for the Ninth Circuit.
Nov 6, 1981.
660 F.2d 748
1981 U.S. App. LEXIS 16271
Stephen Cooper, Asst. U. S. Atty., Fairbanks, Alaska, for plaintiff-appellant., Ralph Beistline, Fairbanks, Alaska, for defendant-appellee.
Browning, Wright, Thompson.
Cited by 18 opinions  |  Published
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[*749] 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.

I

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).

II

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.