DISTRICT OF COLUMBIA
COURT OF APPEALS
No. 04-CM-760
ELEI{A RUTH SASSOWER.
Appellant,
v.
UNITED STATES,
Appellee.
UNOPPOSEDEMERGENCYMOTIONIFOR
APPBLLANT'S RELEASE TO PRECLUDE
MOOTNESSOF APPELLATE ISSUE
Pursuantto Rules 9 and 27 of the Rules of this Court, appellant hereby
moves by undersignedcounselfor releasepending appealfrom service of her
sentenceto prevent mootnessof one of her principal issueson appeal- i.e., the
validity of any sentenceexceeding92 days'imprisonment.
Counselfor the government(John Fisher,Erq.) is not opposedto the grant
of this Motion.
STATEMENT
Appellant was found guilty on April 20, 2004, aft.era trial by jury
of
disruption of Congressin violation of D.C. Code
$ l0-503.16(bX4).She
representedherself at the trial. The maximum penalty under the statuteis
a sixmonth term of irnprisonment
and a $500 fine.
The prosecutionrecommendeda five-day suspendedsentence,with
a sixmonth period of probationconditionedon completionof an anger-management
course.community SupervisionServicesrecommendedonly the imposition
of a
fine.
Appellant appearedfor sentencingon June 28,2004, beforethe FIon.
Brian
Holeman. The judge noted that he had heard frorn the governmentat a previous
hearing"[a]nd so what remainsis Ms. Sassower'sstatement."Transcript
of June
28,2004,p. 6. He then askedappelrantto makeher sratement.
After some exchangesbetween appellant and Judge Holeman, the judge
statedthat he was "readyto imposesentence"(Transcriptof June 28,2004,Exhibit
l, p. 74):
Ms. Sassower,
I'm sentencing
you to 92 days,I'm going to give
you credit for any time served in this case. I'm going to suspend
executionas to all rernainingtime.
I will place you on two years probation. During the
probationaryterm - well, let me back up then before I get into
the
probationaryterm.
You will pay a $500 fine, rvithin30 daysof the sentencingdate,
so that's within 30 daysof today.
will pay $250 to the Victirns of Violent Crirnes
Fundwithin 30 daysof today'
Compensation
you
Thereafter,JudgeHolemanspecifiedthe termsof probation.Id. pp. 16-21.
These includedthe requirementthat appellantkeep recordsof her employmentby
tenthsof an hour, that sheserve300 hoursof communityservice,that sheundergo
therapy every six months,that she stay away from the LTnited
anger-management
StatesCapitolcomplex(includingthe Library of Congressand the SuprerneCourt
Building), and that she write lettersof apologyand remorseto five Senatorsand
thejudicial nomineeat whosehearingsheattemptedto speak.
When appellantrefusedto accepttheseconditions(and, thus, declined to
consentto probationas is requiredunder the concludingsentenceof D.C. Code
22):
$ 16-710(a)),JudgeHolemanstatedthe following(id',p'
TFIE coURT:
follows:
Very well.
Then, sentenceis imposed as
You are sentencedto six monthsincarceration'
you rvill pay, within 30 days, following your incarceration,
$500 as the fine that attachesto the penaltyas to the offensefor which
you've beenconvicted.
You r,r,illalso pay, rvithin 30 days,following )'our incarceration,
the $250 compensation- contributionto the Victims of Violent
CrimesFund.
Ms. Sassower,once again,your pride has gotten in the way of
what could have been a beneficial circumstancefor you. This
incarcerationbeginsforthwith; stepher back.
Court was resumedafter a brief recess,and Judge Holeman then advised
appellantthat she had a right to appeal.Appellant orally requesteda stay pending
appeal.JudgeHolemandeniedthe requeststating:"To do so would be to show you
favorabletreatmentthat I have not in the past shown any other convictedcriminal
defendantin this courtroomand I won't start that practicenow." Id., p.24, A
noticeof appealwas filed on June29,2004.
Appellanthas, as of September23, beenimprisonedin the D.C. Jail for 88
days following her imrnediateremandon June28 upon sentencing.Shealso served
2 daysimprisonmentfollowing her initial arrestbeforeshe was releasedon her
The 92-daysentenceinitially irnposedby JudgeHoleman
personalrecognizance.
25.
would, therefore,concludeon September
ARGUMENT
APPELLANT'SLEGAL ARGUMENT
THAT HER SENTENCECOULD NOT
BE INCREASBDFROM 92 DAYS TO
SIX MONTHS SHOULDNOT BE
NIOOTEDBY SERVICEOF
THE SENTENCE
Judge Holeman announcedthat he was sentencingappellant"to 92 days,"
that appellantwould receive "credit for any time servedin this case," and that
executionof sentenceon "all remainingtime" would be suspendedwith conditions
of probation. Under this initially pronounced sentence,appellant would have
served2 daysafter her arrestand the "remaining" 90 dayswere to be suspendedin
accordancewith the provision of D.C. Code $ l6-710(a) that authorizesa
judge to prescribea periodof probationif he or she"impose[s]sentence
sentencing
and suspendfs]the executionthereof, or irnposefs]sentenceand suspendfs]the
executionof a portionthereof."
After an exchange rvith appellant in which she declined the terms of
to six months' imprisonment.A
probation,JudgeHolemanincreasedthe sentence
substantiallegal issuethat shouldbe decidedby this Court is whetherthat increase
was permissibleunderRule 32(c)(2)of the CriminalRulesof the SuperiorCourt,
which directsthat "[s]entenceshallthereafterbe pronounced."
The comparableprovisionof the FederalRules of Criminal Procedurehas
beenauthoritativelyconstruedto prohibit a DistrictJudgefrom revisinghis or her
orally pronouncedsentence- eitherupward or downward- becauseof a changeof
heart. See,e.g., LlnitedStatest'. Aguirre, 214 F. 3d 1122, 1125 (9th Cir. 2000)
that the phrase'impositionof sentence'is a 'term
("We havepreviouslysuggested
of art that generallyrefersto the time at which a sentenceis orally pronounc.d."');
United States v. Layman, 116 F.3d 105, 108 (4th Cir. 1997); United States v.
33 F.3d
Abrett-Cabrera,64 F.3d 67,73 (2d Cir. 1995);LlnitedStatesv. Townsend,
1230,1231(1OthCir. 1994).
WhetherJudgeHolemanwas perrnittedto increaseappellant'ssentenceonce
he had orally announced(after her allocution)that he was sentencingher to a 92on appeal.
day term of imprisonmentis one of severalissuesof law to be presented
But Ms. Sassowerwill have fully completedserviceof 92 days in D.C.
Jail on
September
25.
It seemsclearthat,unlessMs. Sassower
is releasedpendingappeal,she will
serveher entire six-monthsentencebeforeher appealis resolvedon the merits.
If
that happens,one substantialissueshewill presenton appeal-- whethera sentence
in excessof the 92days initiallyarlnounced
is lawful -- rvill becomemoot.In order
to preservethat issue,we respectfullyrequestthat appellantbe releasedwith
reasonable
conditionslimiting, amongotherthings,her travel.r
THE EMERGEI{CYNATURE OF
THIS APPLICATIONTAND THE TRIAL
JUDGE'SDENIAL OF THE ORAL
REQUESTFOR A STAY WARRANT
APPLICATTONTO THIS COURT
Becauseappellant'sserviceof 92 dayswill be cornpletedon September25,
any lmprisonmentbeyond that date might constituteirreparableharm if appellant
were to prevail on her legal argument.Moreover,appellant'spresencein
White
I
' Specifically,with the government'sconsent,we ask the Court to impose
the following
conditions:
(1) That appellantobey all lau's,ordinances,and regulations,and that
sheincur no
arrestsfor probablecause.
(2) That appellantlimit her travel to the Statesof Ner.vYork, New Jersey,
Florida, and
the District of Columbiaas well as traveldirectlyin betweensuchstatesand
localities.
(3) That appellantstay away from the United StatesCapitolcomplexand
that appellant
haveno physical,verbal.or written contactwith the senators,the senators,
staff, or
the United StatesCapitolPoliceofficersinvolved in this case,with respect
to the
issuesinvolved in this caseor appellant's1996anest in the District of Columbia.
Plains,New York, on the eveningof September24 and all day on September25
will substantiallybenefit her cornmunity.As the ietter to Judge Holeman from
Rabbi Gordon Tucker (Exhibit 2) attests,appellant'sparticipation in activities
involving "the young children of this community" at the Temple on Yotn Kippur
(which is September25) "would have both a beneficialeffect on her studentsand
an irnportant rehabilitative effect on Ms. Sassower."As such, we respectfully
requestthat Ms. Sassowerbe releasedin time for her to engagein this one-time-ayear communityservice.
Finally, the government is not opposed to appellant's reiease
upon
completionof her 92-daysentence-- pendingresolutionof this appeal,in order to
avoid mooting a substantiallegal issueshewill be presentingto this Court.
JudgeHoleman deniedappellant'srequestfor a stay on groundsthat would
appearto apply to any statedreasonfor such relief. Hence we submit that it is
appropriateand in the interestof justice for this Court to considerand grant the
requested
relief.
CONCLUSION
For the foregoing reasons,the Court should releaseappellant forthwith,
subject to the conditionsenumeratedin footnote 1 -- which are acceptableto the
government-- pendingdecisionof her appeal.
Respectfullysubrnitted,
NATHAN LEWIN (D.C.Bar No. 38299)
ALYZA D. LEWIN (D.C.BarNo. 44ss06)
LEWIN & LEWI]\, LLP
1828L Street,
N.W.,Suite1000
D.C. 20036
Washington,
(202)828-1000
fax
QAD 828-0909
Attorneys
for Appellant
Dated:
23,2004
September
CERTIFICATE OF SERVICE
I herebycertify thata trueandcorrectcopyof the foregoing(Inopposed
EmergencyMotion For Appellant'sReleuseTo PrecludeMootnessOf Appellate
fssue andAppesranceof CounselForms weresentby facsimiletransmissionand
U.S.FirstClassmailon this23nd
dayof September,2004,
to:
JohnFisher,Esq.
United StatesAttorney'sOffice
For the District of Columbia
555 4thSffeet,N.W.
Washington,DC 20530
Fax: 202-514-8779
NathanLewin
Districtof Columbia
Courtof Appeals
500 lndianaAvenue,NW
Washington,
DC 20001
APPEARANCE
Ap p e alNo.:
04-c1,1-760
C ase Caption:
The Clerkwill enter my appearancein the above matteras:
V P ro B ono/ Retained Co u n s e lf o r:
p,,,1-hil=.r-,,.--,
r . lll^
.F , n . l. l a . t
I herebycertifythat I am a memberin good standingof the D.c. Bar.
D .C. Bar No.
Nathan
38299
Lewin
(PrintAttor4ey's
Na
(Attorney's
Signature)
1828
L Street,
NW, Ste
1 000,
(Address)
20 2 - 828-1 000
( Ph o n eNo.)
Date:
Septernber
?3;e-so-t/
Wa-shington,
DC 20A36
Districtof Columbia
Courtof Appeals
5 00 In d ia n a
Ave n u eNW
,
W a sh in g to DC
n, 20001
APPEARANCE
App e alNo.:
04-cM-760
C a s eCa p ti o n :
The Clerkwill entermy appearan c ein t h e a b o v ema t t e ra s :
,/
y' Pro Bonoi
Retained Counselfor:
iiln a
Rl,th-l-a qsowe., \ t r, F eI I a n f
I herebycertifythat I am a memberin good standingof the D.c. Bar.
D .C.BarN o. aas s oo
Alvza
(Prin
D.
o rn e y'sN a me )
(Attorney'
'l 828
Lewin
nature)
L Street,
NW, Ste
1000.
(Address)
2 0 2 - B 2 B -10 0 0
( Pho n eNo.)
Date:
September Z-f, 26dq-
Washinqton,
DC 20036