Brief for the Respondent in Opposition — Baker v. Hunter

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INDEX

Page

Opinions below haw : meals sie mets ms ae 1

Jurisdiction. 1

Questions prese nted. 2

Statutes and rule involv Nee 2

Statement 4

Argument _- 6

Conelusion _ __ ~ , ‘ : se caehag stare im 13

CITATIONS

Cases:

Bank of the United States v. Halstead, 10 Wheaton 51____ Yy

Beers v. Haughton, 9 Peters 328_____. an , 9

Brown v. Johnston, 91 F. (2d) 370, certiorari denied, 302

U. S, 728... : : 12

Claasen, In re, 140 U.S. 200. 8

Demarots v. Hudspeth, 99 F. (24) 274, certiorari denied,

305 U.S. 656_- rh eas ai sane ee

‘heaaniah & Vv. zompnine, 106 U. 8, 580... Li

Hudson v. Parker, 156 U. S. 277______. Mikets eet 8

Kitchen v. Randolph, 93 U.S. 86. : aoe: eee 8

Mosheik v. Bates, 87 F. (2d) 221___- ae dade 11

Scripps-Howard Radio yv. Federal Communications Comm’ n,

RU SOM watt 5 ere FEN ee Le 7

Smith v. Hiatt, 48 F. Supp. 747. Mf gk Se te eee Pe 11

Spalek v. United States, No. 588, this Term eae 11

Steinberg v. Cummings, 14 F. Supp. 647, affirmed, 85 F.

(2d) 1022, certiorari denied, 2 A | SE 11

Tinkoff v. U nited States, 86 F. (2d) 868, certiorari denied,

301 U. S. 689......_. See eee ee ee eee eae 8, 10

Von Bodin v. Hiatt, 47 F. Supp. 683. iar ie ete acer a eee ta 11

Wayman v. Southard, 10 Wheaton 1__.._......._____. a 9

Statutes and Rules:

Act of March 3, 1891 (26 Stat. RE Geert ~

Act of June 29, 1932, c. 310, §1, 47 Stat. 381 (18 U. S. C.

RO eA Be ee ee ; sree aris ay

Act of February 24, 1933, c. 119, 47 Stat. 904, as amended

by the Act of March 8, 1934, c. 49, 48 Stat. 399 (18

U. S.C, OBS)... ‘ . i 2,9

Rule V of the Criminal Appeals Rules. Reed 3, 6,7 f 10, 11, 13

Federal Rules of Civil Proceedure, Prelimimary Draft. “e 9

Fede “ge me of Civil Procedure (Rules 72 and 73)_______ 9

28 U, is a > ee rr Sie oe eee le 9

(I)

576828—44

II

Miscellaneous: Page

Clarke, Power of the Supreme Court to Make Rules of

Appellate Procedure, 49 Harv. L. Rev. 1303, 1312-1320

(1936)

SS oh 2 a oe te pl A pa lai hn oe ls nc Be ad Ga al 9

Longsdorf, Cyclopedia of Federal Procedure, Vol. 5, p. 813__ 10

Scott, Actions at Law in the Federal Courts, 38 Harv. L.

Rev: 1,3 (1024). ce Leceit can inde wean See se 9

Guthe Supreme Court of the Hnited States

OcTOBER TERM, 1943

9

No. 700

NORMAN G. BAKER, PETITIONER

v.

WatreR A. Hunter, Warpen, Unirep States

PENTTENTIARY, LEAVENWORTH, KANSAS

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES CIRCUIT COURT OF APPEALS FOR THE TENTH

CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

No opinion has been rendered by the circuit

court of appeals, petitioner having filed his peti-

tion for a writ of certiorari prior to hearing and

submission in that court. The oral opinion of

the district court discharging the writ of habeas

corpus appears at pages 33-34 of the record and

the court’s findings of fact and conclusions of

law appear at pages 20-21.

JURISDICTION

The judgment of the District Court for the

District of Kansas discharging the writ of habeas

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corpus was filed November 2, 1943 (R. 21), and

petitioner filed a notice of appeal to the circuit

court of appeals on December 1, 1943 (R. 21-22).

The petition for a writ of certiorari before hear-

ing and submission in the circuit court of appeals

was filed February 15, 1944. The jurisdiction

of this Court is invoked under Section 240 (a)

of the Judicial Code, as amended by the Act of

February 13, 1925 (Pet. 3, 9). See also Section

8 (b) of the Act of February 13, 1925 (28 U.S. C.

350).

QUESTIONS PRESENTED

Whether Rule V of the Criminal Appeals Rules

promulgated by this Court May 7, 1934, is a

proper exercise of the rule-making power con-

ferred upon this Court by the Act of February

24, 1933, as amended (18 U.S, C. 688).

STATUTES AND RULE INVOLVED

The Act of February 24, 1933, ce. 119, 47 Stat.

904, as amended by the Act of March 8, 1934, ¢.

49, 48 Stat. 399 (18 U. S. C. 688), provides in

pertinent part as follows:

Sec. 1. The Supreme Court of the United

States shall have the power to prescribe,

from time to time, rules of practice and

procedure with respect to any or all pro-

ceedings after verdict, or finding of guilt by

the court if a jury has been waived, or plea

of guilty, in criminal cases in district courts

of the United States, * * *,

eg reMeie

“9 i

3

Sec. 2. The right of appeal shall con-

tinue in those cases in which appeals are

now authorized by law, but the rules made

as herein authorized may prescribe the

times for and manner of taking appeals

and applying for writs of certiorari and

preparing records and bills of exceptions

and the conditions on which supersedeas or

bail may be allowed.

Rule V of the Criminal Appeals Rules promul-

gated by this Court May 7, 1934 (292 U.S. 661),

provides :

An appeal from a judgment of conviction

stays the execution of the judgment, unless

the defendant pending his appeal shall elect

to enter upon the service of his sentence.’

The Act of June 29, 1932, ¢. 310, § 1, 47 Stat.

381 (18 U. 8. C. 709a), provides:

The sentence of imprisonment of any

person convicted of a crime in a court of

the United States shall commence to run

from the date on which such person is re-

ceived at the penitentiary, reform: tory, or

jail for service of said sentence: Provided,

That if any such person shail be committed

to a jail or other place of detention to await

transportation to the place at whic’ his

sentence is to be served, the sentence of

such person shall commence to run from the

* This rule was amended insofar as fines are concerned sub-

sequent to the filing of the notice of appeal. (18 U.S. C.,

Sup. II, following 689.)

AS) APS) Byte Ot CORN ELEY OA , —— —

PL SE PEE LIT eT ON ONION RARE OE Seo NET SARTO, RIE

4

date on which he is received at such jail or

other place of detention. No sentenes shal!

prescribe any other method of computing

the term.

STATEMENT

Petitioner was convicted in the United States

District Court for the Eastern District of Arkan-

Sas on seven counts charging use of the mails in

the execution of a scheme to defraud and was,

on January 25, 1940, sentenced generally to pay

a fine of-, $4,000 and to imprisonment for four

years in ah institution of the penitentiary type to

be designated by the Attorney General. The

judgment required that a certified copy thereof be

delivered to the marshal to serve as the commit-

ment (R. 13-14). That same day petitioner was

delivered by the marshal to the county jail at

Little Rock, Arkansas (R. 14). The next day,

January 26, 1940, petitioner filed a notice of ap-

peal from the judgment of conviction (R. 7, 14).

Applications for bail pending appeal were denied,

both by the district court and the circuit court of

appeals (R. 7-8, 14), and petitioner remained in

the county jail. On January 31, 1940, he wrote

to the marshal stating that until further notice he

elected to remain at the county jail instead of

beginning service of his sentence in a federal

prison (R. 18; see also R. 14). The Cireuit Court

of Appeals for the Eighth Circuit affirmed peti-

tioner’s conviction on November 20, 1940 (R. 16;

see 115 F. (2d) 533), and this Court denied cer-

_—

tiorari on February 17, 1941 (312 U.S. 692), and

denied rehearing on March 3, 1941 (312 U. S.

715). The mandate of the circuit court of appeals

was issued on March 13, 1941, and was filed in the

district court on March 15, 1941 (R. iG; see also

R. 14). Petitioner was delivered to the United

States penitentiary at Leavenworth, Kansas, on

March 22, 1941 (R. 14).

On August 2, 1943, petitioner filed in the Dis-

trict Court for the District of Kansas an applica-

tion for a writ of habeas corpus in which he con-

tended that the time spent in the county jail

during the pendency of his appeal was in ex-

ecution of his sentence and that, with good tune

allowance, he was entitled to his release (R. 4

13)... Respondent demurred to the petition (R.

17), a writ of habeas corpus ad _ testificandum

issued (R. 19), and after a hearing, at which peti-

tioner was present and represented by counsel

(R. 21, 26-34), the district court on November 2,

1943, discharged the writ of habeas corpus and

remanded petitioner to the custody of respordent

(R. 21); the court held that by virtue of Rule V

of the Criminal Appeals Rules the execution of

* In 1941 petitioner sought to obtain his release on habeas

corpus on the ground that he was prejudiced at his trial by

the conduct of the jurors and the deputy marshals who had

them in charge. After a hearing the district court deter-

nened the issues against petitioner and discharged the writ.

‘Tie judgment was affirmed by the Cireuit Court of Appeals

for the Tenth Circuit (129 F. (2d) 779) and this Court denied

certiorari (317 U.S. 681, rehearing denied, 317 U. S. 711).

. — SADLY Mia Nie i AGERE? NA

—: SAMO DLR RGR SIE EO TOE SITS LEE STE IOI: ‘-

6

petitioner’s sentence was stayed by his appeal

and, therefore, he was not entitled to credit for

the time spent in the county jail pending the ap-

peal (R. 33-34; see also R. 20-21).

On December 1, 1943, petitioned filed a notice

of appeal to the United States Circuit Court of

Appeals for the Tenth Circuit (R. 21-22).°

ARGUMENT

Petitioner’s right to be released at the present

time depends upon whether he is entitled to

credit for the time he spent in the county jail

from January 26, 1940, when he filed his notice

of appeal, to March 15, 1941, when the mandate

of the circuit court of appeals was filed in the

district court (see pp. 45, supra). If that time is

credited against his sentence, petitioner has al-

ready served the maximum term of four years; if

not, petitioner’s maximum term will expire in

March 1945, and, unless his remaining good time

allowance is forfeited, he will be entitled to his

conditional release on July 19, 1944.‘

Under Rule V of the Criminal Appeals Rules

promulgated by this Court May 7, 1934, the filing

of petitioner’s notice of appeal resulted in an

automatic stay of the execution of his sentence

* We are advised by the office of the Clerk of this Court that

the argument in the circuit court of appeals is set for March

23, 19.4%:

* The record shows (R. 20, 23) and the Bureau of Prisons

advises us that 100 days of petitioner's good cime allowance

were forfeited on April 8, 1943.

7

in the absence of an election to commence service

pending appeal. Petitioner did not so elect. On

the contrary, he affirmatively elected not to enter

upon service of his sentence (R. 18).° Hence,

there can be no question that, if Rule V is valid,

petitioner is not entitled to credit on his sentence

for the time spent in the county jail pending his

appeal.

Petitioner contends (Pet. 12, 13-15, 19-21) that

Rule V embodies a matter of substantive law, the

regulation of which Congress could not constitu-

tionally delegate to this Court. It is unnecessary

to determine whether, as petitioner argues (Pet.

21), the right to prescribe ‘‘what facts shall con-

stitute service of a sentence’’ is a matter of sub-

stantive law, for it is clear that Rule V does not

relate to such facts. Rule V is merely a regula-

tion of the terms and conditions of appeals in

criminal cases. Historically, the power to stay

enforcement of a judgment pending the outcome

of an appeal has always been considered part of

an appellate court’s “traditional equipment for

the administration of justice’. Scripps-Howard

Radio v. Federal Communications Comm’n, 316

U.S. 4, 9-10. After the passage of the Act of

March 3, 1891 (26 Stat. 827), conferring upon a

* As the district court stated (R. 23; see Pet. 26), this

notice was unnecessary, since under Rule V the filing of the

notice of appeal stayed execution of the judgment. The

notice does, however, establish beyond dispute that petitioner

did not elect to commence service of his sentence pending

the appeal.

8

person convicted of an infamous crime the right

of review by this Court, the Court said that it

had power to issue a supersedeas in such a case

under its authority to issue ‘‘all writs * * *

necessary for the exercise of its jurisdiction and

agreeable to the usages and principles of law.”

In re Claasen, 140 U. S. 200, 207-208; see also

Hudson v. Parker, 156 U. S. 277, 284. The Court

also said in the Claasen case (p. 208) that under

the general statutes governing supersedeas, a Jus-

tice of this Court had power to grant a stay in a

criminal case, but, to remove all doubt on the sub-

ject, the Court announced in the Claasen decision

that it had adopted a general rule governing the

granting of supersedeas in such cases by a Justice

(see also Hudson v. Parker, supra, at 283). The

substance of this ruie was carried through subse-

quent revisions of the rules of this Court.’

Prior to 1934, Congress chose to regulate by

Statute the conditions upon which a supersedeas

could be granted in order to avoid the common

law rule that a writ of error in itself operated es

a stay of execution.’ This fact, however, does not

affect the judicial character of the relief afforded

by a supersedeas pending appeal and does not

prevent Congress from delegating to the courts

the power to regulate the conditions thereof. As

* See Zinkoff v. l ited state . 86 F. (2d) 368, +32 (C.C.A.

7), certiorari denied, 301 U.S. 689.

_* Kitchen v, Randolph, 93 U. S. 86, 87; see also Tinkof v.

United States, supra, at 881.

. a es ge Porras MCRL Ra a 2

9

early as 1825, in Bank of the United States v.

Halstead, 10 Wheat. 51, 60, this Court stated, in

respect of an analogous question as to the au-

thority of the courts to prescribe what property

shall be subject to execution:

It is said, however, that this is the true

exercise of legislative power, which could

not be delegated by congress to the courts

of justice. But this objection cannot be

sustained. * * * Congress might regu-

late the whole practice of the courts, if it

-was deemed expedient so to do: but this

power is vested in the courts; and it never

has occurred to any one, that it was a dele-

gation of legislative power.”

The Federal Rules of Civil Procedure (Rules 72

and 73), regulate the conditions of supersedeas on

appeals in civil cases and modify prior statutes

with respect thereto, although the enabling act

(28 U. 8. C. 723b, 723c) contains no express grant

of power to regulate the terms and conditions of

appeals.” There cai b» no question, therefore,

that the grant of authovity to this Cow. under

the Act of February 24, .933 (18 U.S. U. 688},

to prescribe by rule the conditions on which

*See also Wayman v. Southard, 10 Wheat. 1, 41, 44;

Beers v. Haughton, 9 Peters 328, 359; Scott, Actions at Law

in the Federal Courts, 38 Harv. L. Rev. 1,3 (1924).

* See Notes to Rules 72 and 73 of the Rules of Civil Proce-

dure prepared by the Advisory Committee in U. S. C. (1940

ed.). Clark, Power of the Supreme Court to Make Rules of

Appellate Procedure, 49 Harv. L. Rey. 1303, 1312-1320

(1936); see also Foreword (pp. XI-XII) to Preliminary

Draft of the Rules (May 1936).

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supersedeas may be allowed involves no unconsti-

tutional delegation of legislative power.

Nor is there ‘any merit in petitioner’s conten-

tion (Pet. 13, 22-28) that in conferring upon this

Court the specific authority +o prescribe condi-

tions on which supersedeas or bail may be allowed,

Congress did not authorize the Court to lay down

a rule which would operate automatically without

reference to the circumstances of each individual

case. In accordance with its powers to fix con-

ditions of supersedeas, this Court in Rule V pre-

scribed that an appeal is the only condition for a

stay. Prior to the promulgation of the Rules, this

was not so. The supersedeas had to be allowed by a

court — judge and in the absence of such an allow-

ance tice defendant could be compelled to enter

upon service of his sentence pending appeal.

Tinkoff v. United States, 86 F. (2d) 868, 881-883

(C. C. A. 7), certiorari denied, 301 U. 8. 689;

Longsdorf, Cyclopedia of Federal Procedure, Vol.

5, p. 813. In accordance with their purpose to sim-

plify procedure, the Rules eliminated the neces-

sity for the allowance of supersedeas, just as they

eliminated the necessity for allowance of an ap-

peal, but they preserved the right of the defendant

to commence service of his sentence pending

appeal if he wished to do so. In practical effect,

the rights of the defendant remain the same; only

the procedure was changed. He may, if denied

bail, remain in temporary custody pending appeal

or he may serve his sentence during such period.

11

However, both before and after the promulgation

of Rule V, if a defendant whose application for

bail had been denied chose not to enter upon

service of his sentence, he was not entitled to have

the time spent in custody pending appeal credited

against his sentence. Dimmick v. Tompkins, 194

U.S. 540, 549; Demarois v. Hudspeth, 99 F. (2d)

274, 275 (C. C. A. 10), certiorari denied, 305 U.S.

656; Mosheik v. Bates, 87 F. (2d) 221, 222 (App.

D. C.); Steinberg v. Cummings, 14 F. Supp. 647

(M. D. Pa.), affirmed, 85 F. (2d) 1022 (C. C. A.

3), certiorari denied, 299 U. S. 602; Smith v.

Hiatt, 48 F. Supp. 747, 749 (M. D. Pa.); Von

Baden v. Hiatt, 47 F. Supp. 683 (M. D. Pa.).

Petitioner’s choice in remaining in the county

jail was just as voluntary as if, under the old

practice, he had obtained a supersedeas. If he

did not wish to have the execution of the judg-

ment stayed after bail had been denied, he could

have elected to commence service of his sentence.”

Contrary to petitioner’s contention (Pet.°4, 12,

li-21), there is no conflict between Rule V and

18 U. S. C. 709a, which provides in part that a

Sentence commences to run from the time a pris-

The refusal to admit petitioner to bail was undoubtedly

proper in view of the policy embodied in Rule V of the Crim-

inal Appeals Rules to restrict bail to cases involving sub-

stantial questions. See Brief for the United States in

Opposition in Spalek y. United States, No. 588, this Term,

Pp. 11. In any event, however, it is clear that petitioner can-

not collaterally secure a review of such refusal by seeking to

obtain credit for the time spent in the county jail after he

chose not to enter upon service of his sentence pending appeal.

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12

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oner is delivered to a jail to await transportation

to a penitentiary. Assuming that the day peti-

tioner spent at the county jail before he filed his

notice of appeal was a day during which he was

confined to await transportation, and therefore a

day served in execution of sentence," the moment

that he filed his notice of appeal the execution of

his sentence was stayed by virtue of Rule V. He

could not thereafter have been transported to the

penitentiary until his appeal was terminated un-

less he filed a notice of election to commence sery-

ice of his sentence. After his notice of appeal

Was filed, in the absence of an election to serve his

sentence, petitioner’s incarceration was not to

await transportation to the penitentiary but to

await the outcome of the appeal. Cf. Demarois v.

Hudspeth, supra. With respect to eredit for the

time spent in the county jail, petitioner’s situa-

tion is the same as if he had been granted release

on bail on the day he filed his notice of appeal;

he had served one day in execution of. his sen-

tence and thereafter the execution was suspended

until disposition of the appeal. The purpose of

Section 709a was to insure that prisoners would

receive credit for the time they might spend

awaiting transportation to the penitentiary.

Brown v. Johnston, 91 F. (2d) 370, 372 (C. C. A.

9), certiorari denied, 302 U. S. 728; Demarvis v.

“We are informed that, administratively, convicted de-

fendants are credited with the time so spent before a notice

of appeal is filed.

13

Hudspeth, supra. That statute does not relate to

supersedeas and does not purport to deprive the

courts of their power to stay execution of sen-

tences; the power, as we have seen (supra, pp.

7-8), existed long prior to the enactment of Section

709a in 1952, and Rule V is merely an exercise

of that power pursuant to the enabling act of

1933.”

CONCLUSION

Petitioner’s contentions are without merit and

there is therefore no occasion for this Court to

exercise its extraordinary power to grant review

before judgment in the circuit court of appeals.

We therefore respectfiy submit that the peti-

tion for a writ of certio:s.’ shou'd be de vied.

( ask ES F outy,

Sol:citor General.

To C. Crar™,

Assistant Attor.:.:y General.

Roxert S. ErpaX,

Special Assisi nt (> the Attorney General.

Bkat) ‘ck ROSEN 3ER..,

Attorney.

Marcu 1944.

The fact that, under the old supersedeas procedure, it

might have been necessary if execution had commenced, that

the writ be directed to the officer holding the execution (see

Pet. 28), does not mean that this Court was bound to con-

tinue that practice. Under Rule V the filing of a notice of

appeal is in itself a sufficient direction. In this case the

marshal was inf6rmed of the filing of the notice of appeal

and, in accordance with Rule V, he did not deliver petitioner

to the penitentiary for service of the sentence (see R. 14).

U. $. GOVERNMENT PRINTING OFFICE: 1944

pi Seo NEP RYN P IRE ERR REET FL ME TICES EDN A St TIE TEER I ls