Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. HCR 78-62 -- William C. Lee, Judge.
Pell and Coffey. Circuit Judges, and East,*fn* Senior District Judge.
Appeal from the United States District Court for the Northern District of Indiana. This case is an appeal from the denial of the defendant-appellant's motion to set aside an order which stated in part, "the execution of the remainder of the sentence of imprisonment is hereby suspended . . . ." AFFIRMED.
The defendant-appellant, Walter A. Niemiec, was convicted of perjury in violation of 18 U.S.C. § 1623. The trial judge, Judge McNagny, became ill and underwent emergency surgery after the defendant's trial and was unable to be present in court to sentence the defendant. District Judge (now Circuit Judge) Jesse E. Eschbach was assigned to sentence the defendant pursuant to Federal Rule of Criminal Procedure 25, which recites as follows:
(b) After Verdict or Finding of Guilty.
If by reason of absence, death, sickness or other disability the judge before whom the defendant has been tried is unable to perform the duties to be performed by the court after a verdict or finding of guilt, any other judge regularly sitting in or assigned to the court may perform those duties;"
Fed. R. Crim. P. 25(b). Judge Eschbach met with the same sentencing council which had advised Judge McNagny, and informed the defendant in open court:
"I have been advised by the Chief Probation Officer, who discussed this matter with Judge McNagny not only during the sentencing council meeting but thereafter, that it is in line with that which Judge McNagny had determined to impose, and that Judge McNagny was convinced that there was guilt on count four [the perjury count] beyond a reasonable doubt.
Thereafter, on April 27, 1979, Judge Eschbach entered the Judgment and Probation/Commitment Order, which reads in pertinent part:
"The defendant is hereby committed to the custody of the Attorney General or his authorized representative for imprisonment for a period of one (1) year to be served. FINE -- $3,000.00 plus the costs of this action."
Niemiec surrendered himself to the Federal Prison Camp in Marion, Illinois and began serving his sentence. Shortly thereafter, he filed ...