recognizing that federal parole board "should have some reasonable time and latitude in deciding whether to return [a federal parolee] to the federal institution to serve the balance of his term or to surrender him to the local authorities for state prosecution"
How later courts described this case
- recognizing that federal parole board "should have some reasonable time and latitude in deciding whether to return [a federal parolee] to the federal institution to serve the balance of his term or to surrender him to the local authorities for state prosecution"
Written by the judges who cited it.
The opinion
BAZELON, Chief Judge
(dissenting);
There is no question that the appellant was “taken” under the authority of the violator warrant. 1 The only issue is whether the Attorney General’s custody was resumed by this taking. 2
As I read it, the majority concedes that this issue is not resolved by either the Parole Board’s instructions to the arresting officers or the fact that formal execution of the warrant was delayed until appellant’s release from the custody of Tennessee officials. But the majority gives conclusive effect to the State’s assumption of custody within a “reasonable” period of time. Despite appearances that the Attorney General was responsible for appellant’s confinement during the intervening period of custody, it finds *104 in policies for the accommodation of Federal and State interests a justification for deeming that confinement to have been custody by the State. 3
This fiction 4 might have some basis were an accommodation actually made prior to arrest or were it inevitable, under the circumstances of the case, that the State would seek to assume custody. But if the State’s decision to seek custody occurs after arrest and confinement, it is hard to assert that custody during the interval is not the Attorney General’s. As of that time, there would be no certainty that State charges would be pressed; yet the accused would have been confined, on Federal authority derived solely from the violator warrant. 5
In Jenkins v. Madigan, on which the majority chiefly relies, there was certainty of State intent to assert claims to custody at the time of arrest on the parole violator warrant. The appellant there had just escaped from a county jail where he had begun serving a sentence for local crime. The arresting Federal officers returned him to the same jail. There was no ambiguity as to the reason for which he had been returned — to resume service of the State-imposed sentence. There was an existing Federal-State accommodation of claims to the prisoner’s custody.
That certainty is lacking, however,, on the present appeal. We do not know whether the Federal officers who arrested appellant in Tennessee knew of the Tennessee charges of which he was subsequently convicted. 6 We do not know if local authorities were seeking appellant prior to the day they served the local arrest warrant on him — allegedly two days after his apprehension. Appellant alleges that he was denied bail on the local charge at the insistence of Federal officers, who would not permit him to be enlarged because of the putative parole violation. All these matters suggest that the principal basis for appellant’s custody may have been the alleged parole violation; and that there may have been no firm determination by State authorities to reduce appellant to custody prior to his arrest and detention by Federal officers. Thus it is not certain that appellant’s detention in the local jail under authority of the parole violator warrant, if in fact it occurred, was in reality detention for State rather than Federal purposes.
If appellant can establish that Tennessee’s determination to proceed against him for the local crime did not occur until after he had been placed in confinement, I *105 think he must have the relief he seeks. In the realm of individual liberties, matters which in other contexts might seem mere technicalities assume decisional importance. However important Federal-State comity may be in the abstract as a basis for Government action, no such policy justifies creation of a situation in which the basis for a person’s custody is in doubt, or made to hinge on some future contingency. Our traditions do not tolerate it.
The allegations of appellant’s pro se complaint below, most liberally construed as they must be, 7 raise a colorable claim. Thus his motion for counsel ought to have been granted in the first instance. Our proper course now is to reverse and remand for appointment of counsel and hearing on the complaint.
. Federal officers have no authority to enforce State law. No authority for the arrest other than the warrant appears.
. Under 18 U.S.O. § 4206, the warrant is executed “by taking [the] prisoner and returning him to the custody of the Attorney General.”
. So far as I can determine, it is Federal and not State, interests that are accommodated when the Government proceeds in the manner here attempted. The decision made is that the Federal sentence shall not be resumed until State proceedings — and penalties — have lapsed. It is made by the United States Parole Board, for its own purposes and apparently without consultation with State officers. A wish expressed by the State tribunal at any subsequent sentencing that the sentence imposed run concurrently with the remaining Federal sentence need not and perhaps would not be respected. Compare 18 U.S.C. § 4085 , by which the State might be given control over the question whether sentences were to be imposed on a concurrent or consecutive basis if the Attorney General first resumed custody under the violator warrant, and then immediately delivered the prisoner to the State.
. Suppose, for example, that during the interval, appellant had escaped. Would he not be subject to prosecution as an escapee from Federal custody? 18 U.S.C. § 751 ; Tucker v. United States, 251 F.2d 794 (9th Cir. 1958).
. Suppose the situation in which the State is offered the opportunity to assume custody subsequent to arrest on a violator warrant, and declines. Or suppose that, as is alleged here, Federal officers procure a denial of bail pending trial on the State charges, and the accused is acquitted. There would seem to be little doubt in either case that the prisoner’s custody for the entire period following his arrest was that of the Attorney General.
. The parole violator warrant had been issued on the basis of allegations of criminal acts by the appellant in Kentucky.
. Compare Belton v. United States, 104 U.S.App.D.C. 81 , 259 F.2d 811 (1958); Blunt v. United States, 100 U.S.App.D.C. 266 , 244 F.2d 355 (1957); Smith v. United States, 106 U.S.App.D.C. 169 , 270 F.2d 921 (1959).