Brief for the Respondents in Opposition — Miller v. United States

INDEX

Opinion below - - ay eee EP ee ee EC PY ee

Jurisdiction - - - - - - ee ea pee ee ey yey ee Pe ee

Question presented Be eis pans Sener eye errs eee

Constitutional and statutory prov isions inv olv ed. ea Neer ar

ee ee eT Ei RS cl ree ee to

AvNODE.. . oo. <n wan ne on ne oo nsw on sano ns aes een aen

Concliision......<-----<-- 22 -- 2 enn n snc se ese csessese

CITATIONS

Cases:

Anderson v. Corall, 263 U. S. 193.---.-----------------

Burns v. United States, 287 U.S. 216- - - -- : ae

weg y. Platt, 123 Conn. 38, certiorari denied, “302 U .

20... te CL ktea ee ene be seun = bos - Le

Diane v. United States, 91 F. (2d) 195_..--- SOSA:

Drew v. Thaw, 235 U. 8S. 482. - - - Bn ane ots”

Drinkall vy. Spiegal, 68 Conn. 441.

Gillespie v. Walker, 296 Fed. 330... ~~ - os i

Hinson v. Rochelle, 156 N. C. 250. - - Pie et oa te

Hughes v. Pflanz, 138 Fed. 980. Se Se sicuaee aie

Kreuzer v. United States, 254 Fed. “34. atid we ee ete

Moss v. United States, 72 F. (2d) 30. -------------------

Munsey v. Clough, 196 U. 8. 364... .------

Ex parte Nabors, 33 N. M. 324... Sah apel origin tee

People ex rel Patterson v. es 270 N. Wi Pot ae ako sneak

Pettibone v. Nichols, 203 U.S. 192-..- Be ie

Platek v. Aderhold, 73 F. pes 173- Laat

Reed v. Colpoys, 99 F. (2a) 396, certiorari denied, “305 as

598 __ ;

Reeves v. United States, 35 F. (2d) 323 - iene ee ar

Scalia v. United States, 62 F. (2d) 220- - - Z

State ex rel Lea v. Brown, 166 Tenn. 669, certiorari de wnied,

292 U.S. 638_- Sea eran gs ed See wees ee

State v. Everett, 164 N.C. 309... LC heswaeesnakan

State v. Ray, 212 N. C. 748_...------------------------

Stockton v. Massey, 34 F. (2d) 96 poe ui ;

United States v. Blaisdell, 24 Fed. Cas. No. 14, 608. ~~ --

United States v. Superintendent of County Prisons, 111 F.

(a) ee. oe sa perce ae Re Ee EE et

1OO0TH AI (wD

Il

Statutes: Page

Act of March 3, 1901, C. 854, 31 Stat. 1189, 1340, Sec.

930 (D. C. Code (1929), Title 6, Sec. 377)_.......____ 3

Federal Probation Act of 1925, Section 2_.........._____ 13

North Carolina Code (Michie 1939):

SAEED RIE EQOA © SOR REE KORTE Coo ae 9

TI IST, REE SE COE 11

United States Code, Title 18:

een gE SE TSE, SI TN SS ee a ate 2,6

ee cg ee ET UE reader 10

United States Const., Art. IV, Sec. 2................__. 2,6

EF ORS COAG TF SAE Pt OS

P . < seyteer _

ae eG, eS eee ier a ae ON eee Ye eR

Iuthe Supreme Gourt of the Gnited States

OctoBEeR TERM, 1941

No. 150

WILLIAM D. PELLEY, PETITIONER

v.

Joun B. Cotroys, UNirep StaTES MARSHAL IN AND

FOR THE District or COLUMBIA

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE DISTRICT OF

COLUMBIA

BRIEF FOR RESPONDENT IN OPPOSITION

OPINION BELOW

The opinion of the Court of Appeals (R,. 325-

330) is not yet reported.

JURISDICTION

The judgment of the Court of Appeals was en-

tered April 14, 1941 (R. 330-331). Motion for

rehearing was denied May 6, 1941 (R. 337). The

petition for a writ of certiorari was filed June 9,

1941. The jurisdiction of this Court is invoked

(1)

2

under Section 240 (a) of the Judicial Code, as

amended by the Act of February 13, 1925.

QUESTION PRESENTED

Petitioner is under extradition order, issued in

proper form, returning him to North Carolina for

further proceedings in connection with a prior

conviction. The single question is whether he is

‘charged with crime”’ in that State.

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

Article IV, Section 2, Clause 2 of the Constitution

provides:

A Person charged in any State with Trea-

son, Felony, or other Crime, who shall flee

from Justice, and be found in another State,

shall on Demand of the executive Authority

of the State from which he fled, be delivered

up, to be removed to the State having Juris-

diction of the Crime.

Section 5278 of the Revised Statutes (U.S. C.,

Title 18, Section 662) provides:

Whenever the executive authority of any

State or Territory demands any person as a

fugitive from justice, of the executive au-

thority of any State or Territory to which

such person has fled, and produces a copy of

an indictment found or an affidavit made

before a magistrate of any State or Terri-

tory, charging the person demanded with

having committed treason, felony, or other

crime, certified as authentic by the governor

3

or chief magistrate of the State or Territory

from whence the person so charged has fled,

it shall be the duty of the executive authority

of the State or Territory to which such per-

son has fled to cause him to be arrested and

secured, and to cause notice of the arrest to be

given to the executive authority making such

demand, or to the agent of such authority

appointed to receive the fugitive, and to

cause the fugitive to be delivered to such

agent when he shall appear. * * af

The Act of March 3, 1901, C. 854, 31 Stat. 1189,

1340, See. 930 (D. C. Code (1929), Title 6, Section

377) provides:

In all cases where the laws of the United

States provide that fugitives from justice

shall be delivered up, the chief justice of the

supreme court of the District of Columbia

[now the District Court of the United States

for the District of Columbia, 49 Stat. 1921]

shall cause to be apprehended and delivered

up such fugitive from justice who shall be

found within the District, in the same man-

ner and under the same regulations as the

executive authorities of the several States

are required to do by the provisions of sec-

tions fifty-two hundred and seventy-eight

and fifty-two hundred and seventy-nine, title :

sixty-six, of the Revised Statutes of the :

United States, * * * and all executive

and judicial officers are required to obey the

lawful precepts or other process issued for

that purpose, and to aid and assist in such

delivery.

+

STATEMENT

Petitioner was indicted and convicted in 1935

in the Superior Court of Buncombe County,

North Carolina, on the first two counts of a six-

teen count indictment. The first count charged pe-

titioner with the crime of selling securities, and

causing them to be sold, without registering as a

dealer or salesman as required by law; the second

count charged him with making false representa-

tions for the purpose of selling securities and

stocks (R. 8, 208). On February 18, 1935, a sen-

tence of imprisonment of from one to two years

was imposed under Count One and suspended for

five years upon the following three conditions: (1)

that he pay a fine of $1,000 and costs; (2) that he

‘‘be and remain continuously of good behavior ;’’

and (3) that he refrain from publishing or dis-

tributing certain designated periodicals concerning

the sale of securities. Prayer for judgment on

Count Two was continued for five years (R. 13-

15, 208).

Capias for petitioner’s arrest was issued Oc-

tober 19, 1939, to bring him before the court for a

hearing on the execution and imposition of sen-

tence upon his 1935 conviction (R. 17-18). Peti-

tioner was at that time, and has been since, putside

the State of North Carolina (R. 208-209).

On February 23, 1940, an application for requisi-

tion was filed with the Governor of North Carolina

by the prosecutor of Buncombe County, 1equest-

5

ing the extradition of petitioner from the District

of Columbia. Appended to the application were

two certified copies of the indictment upon which

petitioner was tried and convicted (R. 8, 11, 208).

The application set forth the facts substantially as

related above and certified that in the opinion of

the applicant ‘‘the ends of justice require the arrest

and return of the accused to this State for sentence

and judgment upon conviction for the felony set

forth in the Second Count in said Bill of Indict-

ment, and for putting into effect the suspended

sentence imposed on the First Count in said Bill

of Indictment” (R. 9). The application further

alleged that the applicant was advised and believed

that petitioner, while in the State of North Caro-

lina, “‘committed various acts and engaged in con-

duct and practices which constituted a violation

of his parole and probation and justified the impo-

sition of judgment,’’ the substance of which is

there set forth in detail (R. 10).

On March 8, 1940, the Governor of North Caro-

lina forwarded to the Chief Justice of the District

Court of the United States for the District of

Columbia requisition papers, properly authenti-

cated, which included the capias, certified copies

of the indictment upon which petitioner was tried

and convicted, and the above-described application

(R. 12).

The Chief Justice, after a hearing on this requi-

sition, found the petitioner to be substantially

6

charged with crime in the State of North Carolina

and to be a fugitive from its justice. An order was

issued surrendering him to the agent of that State

(R. 22-24).

Petitioner thereupon filed a petition for a writ

of habeas corpus in the District Court, seeking his

release from custody (R. 1-6). Upon issuance of

the writ (R. 7) and after hearing thereon (R. 41-

185), the District Court dismissed the writ of

habeas corpus and remanded petitioner to the cus-

tody of respondent for return to the State of North

Carolina (R. 186). Motion for rehearing was

denied (R. 187). Upon appeal to the United

States Court of Appeals for the District of Co-

lumbia, that court affirmed the action of the trial

court (R. 325-330).

ARGUMENT

The petitioner’s contentions revolve around the

proposition that on March 12, 1940, the date on

which the order of extradition was issued (R. 22,

23), he was no longer “charged with crime” in

North Carolina.

First. The crime with which the petitioner was

charged at the time of the extradition order was

the offense against the North Carolina securities

laws for which he had been convicted in 1935. For

purposes of the applicable Constitutional? and

statutory * provisions, one who has been found

*U. S. Constitution, Article IV, Section 2.

*U.5S. C., Title 18, Section 662.

—

7

guilty does not cease to be “‘charged with crime”

until the judgment of conviction has been satisfied.”

Hughes v. Pflanz, 138 Fed. 980 (C. C. A. 6th);

Reed v. Colpoys, 99 F. (2d) 396 (App. D. C.), cer-

tiorari denied, 305 U. S. 598; Drinkall v. Spiegal,

68 Conn. 441; Cappola v. Platt, 123 Conn. 38, cer-

tiorari denied, 302 U. S. 726; Ex parte Nabors, 33

N. M. 324. Clearly, therefore, this petitioner

would continue to be ‘“‘charged with crime’’ until

the obligations imposed upon him by the 1935

judgment of the Superior Court of Buncombe

County were satisfied.

The petitioner argues, however, that these obliga-

tions had been discharged long before the order of

°In Hughes v. Pflanz, the Circuit Court of Appeals ob-

served : “The term ‘charged with crime,’ as used in the Con-

stitution and statute, seems to us to have been used in its

broad sense, and to include all persons accused of crime. It

would be a very narrow and technical construction to hold

that after the accusation, and before conviction, a person

could be extradited, while after conviction, which establishes

the charge conclusively, he could escape extradition. The

object of the provisions of the Constitution and statute is to

prevent the escape of persons charged with crime, whether

convicted or unconvicted, and to secure their return and pun-

ishment if guilty. Taking the broad definition of ‘charged

with crime’ as including the responsibility for crime, the

charge would not cease or be merged in the conviction, but

would stand until the judgment is satisfied. It would in-

clude every person accused, until he should be acquitted, or

until the judgment inflicted should be satisfied. Any other

construction would prevent the return of escaped convicts

upon the charge under which they had been sentenced, and

defeat in many instances the ends of justice.” (138 Fed.

at 983.)

8

extradition was entered. He makes the alternative

contentions (a) that the date of expiration of the

‘charge’? was the date in 1935 on which he paid

the fine and costs under the sentence imposed on the

first count (Pet. 22-27), or (b) that the date of

expiration was February 18, 1940, the end of the

five year period during which execution of the

prison sentence on the first count and the imposi-

tion of sentence on the second count were suspended.

( Pet. 32-35.)

(a) It is perfectly apparent from the papers

which the District Court had before it that the peti-

tioner had not satisfied the entire judgment against

him by the payment of the fine and costs imposed

on the first count.

In the first place, the suspension of the sentence

of imprisonment on this count was expressly sub-

ject to three conditions: that the petitioner pay a

fine of $1,000 and the costs of the prosecution ; that

he remain continuously of good behavior; and that

he refrain from publishing or distributing in North

Carolina certain literature concerning the sale of

securities. The petitioner makes no effort to ex-

plain how the latter two conditions were fulfilled by

the payment of the fine and costs. By their very

nature they could not be discharged until the ex-

piration of the five-year period.

Moreover, with the petitioner’s consent, the

prayer for judgment on the second count was con-

—

9

tinued for five years. As the Court of Appeals

observed (R. 327), this practice of postponing

the imposition of sentence is one of long standing

in North Carolina, and enjoys both common law

and statutory sanction.’ It is substantially equiva-

lent to the more conventional forms of probation.

This continuation of the prayer for judgment on

the second count, without more, would have been suf-

ficient to establish the jurisdiction of the Superior

Court over the petitioner for the entire five-year

period. The petitioner, however, appears to insist

(Pet. 22-27) that the order suspending the imposi-

tion of sentence on the second count was void from

its inception because it envisaged the possibility

of sentencing him on different counts of the same

indictment at different times. It is a sufficient an-

swer that petitioner waived his objection by his

original consent to the order in 1935, and that the

question whether, under the decisions and statutes

of North Carolina, sentence may be imposed and

its execution suspended on one count while imposi-

tion of sentence is continued on another, is a ques-

tion for the courts of North Carolina and not for

the District Court of the District of Columbia in

habeas corpus proceedings.’ State ex rel. Lea Vv.

*Sce State v. Ray, 212 N. C. 748. North Carolina Code

(Michie 1939) § 4665 (1).

‘It should be noted that both before and after the enact-

ment of the Federal Probation Act of 1925 (U.S. C., Title

18, Sections 724-728), the practice of imposing and execut-

10

Brown, 166 Tenn. 669, certiorari denied, 292 U. 8.

638.

(b) It is true that in normal course the charge

against the petitioner would have expired on Feb-

ruary 18, 1940, five years from the date of sentenc-

ing and several weeks before the issuance of the

order of extradition. On October 19, 1939, how-

ever, a capias issued from the Superior Court of

Buncombe County for his arrest (R. 17). At that

time more than four months of the period of pro-

bation remained. The extradition papers showed

that a diligent search for him was conducted

in North Carolina and many other states (R. 18,

19). The application to the Governor of North

Carolina by the prosecutor of Buncombe County

(R. 8), and the Governor’s requisition for extra-

dition (R. 12) represented the final steps necessary

to the enforcement of the capias. It may hardly be

asserted that a probationer can escape the valid

process of a court simply because a diligent search

for him has failed to result in his apprehension

before the expiration of the probationary period.

See Anderson vy. Corall, 263 U. S. 193; Stockton v.

ing sentence on one count of an indictment while postpon-

ing the imposition of sentence on another count has been

approved. United States v. Blaisdell, 24 Fed. Cas. No. 14,608

(S. D. N. Y. 1869); Kreuzer v. United States, 254 Fed.

34, 39, (C. C. A. 8th, 1918); Reeves v. United States, 35 F.

(2d) 323 (C. C. A. 8th, 1929) ; Cooper v. United States, 91

F. (2d) 195, 199 (C. C, A. 5th, 1937). Cf. Sealia vy. United

States, 62 F. (2d) 220 (C.C. A. Ist, 1932). But ef. Gillespie

v. Walker, 296 Fed. 330 (C. C. A. 4th, 1924).

SP ety 1 COOTER

oe Seer ee

Pca

i

Massey, 34 F. (2d) 96 (C. C. A. 4th); Platek v.

Aderhold, 73 F. (2d) 173 (C. C. A. 5th); People

ex rel Patterson v. Bockel, 270 N. Y. 76.

We do not understand the petitioner to make

such an assertion. Instead, he appears to insist

that the capias was not valid process, that it was a

nullity, and that thus it did not interrupt the period

of probation which consequently came to an end on

February 18, 1940. We think that the technical

sufficiency of the capias, like that of an indictment,

is not open to question in habeas corpus proceed-

ings to contest an order of extradition. Munsey v.

Clough, 196 U. 8S. 364, 373; Drew v. Thaw, 235

U.S. 482, 439. But the bulk of the petition is de-

voted to an attack upon this capias and the judge

who issued it. Petitioner evidently concedes, and

the opinion of the Court of Appeals makes clear

(R. 327-828), that the North Carolina court had

the power to issue a capias.” But he charges, first,

that the judge was moved solely by malice, and,

second, that the capias was supported by no allega-

tion on the part of the prosecutor or the probation

authorities or the judge himself that the petitioner

“Section 4664, (4) of the North Carolina Code provides:

“* * * At any time during the period of probation or

suspension of sentence, the court may issue a warrant and

cause the defendant to be arrested for violating any of the

conditions of probation or suspension of sentence * * *.

Upon such arrest, with or without warrant, the court shall

cause the defendant to be brought before it in or out of term

and may revoke the probation or suspension of sentence, and

shall proceed to deal with the case as if there had been no

probation or suspension of sentence.”

ted ae

12

had violated the terms of his probation or misbe-

haved in any way.

The first objection hardly merits a reply,’ since

it has been specifically held by this Court that the

motives of the officials of the demanding state are

not reviewable in a habeas corpus proceeding to

test the validity of extradition. Drew v. Thaw,

935 U. S. 432, 439. See Pettibone v. N ichols, 203

U. S. 192, 203, 217; United States v. Superintend-

ent of County Prisons, 111 F. (2d) 409 (C. C, A. 3d).

Petitioner has produced nothing to support his

second objection. Nothing in the applicable North

Carolina statute * requires that as a condition prec-

edent to the issuance of capias for a probationer, a

charge of misbehavior must be filed by the prosecu-

tor or by the probation authorities or that the judge

must accompany the capias with his own assertion

that there has been a violation of the terms of pro-

bation. Nor has he pointed to a decision by any

court that such a requirement exists. On the con-

trary, this Court has held that Section 2 of the Fed-

t However, the record does not support the charge (Pet. 13)

that the judge who issued the capias had had himself trans-

ferred from his usual circuit to the circuit embracing Bun-

combe County for/the purpose of persecuting the pet itioner.

It reveals, instead, that the judge in question and another

agreed, for reasons not stated, to exchange circuits for the

entire fall term of 1939 and that the Governor officially ap-

proved the exchange (R. 15-16). Moreover, the record

shows that the judge who is to conduct the hearing in the

Superior Court of Buncombe County to determine whether

sentence shall be imposed and executed will not be the judge

who issued the capias (R. 222, 226).

8 See note 6, supra.

13

eral Probation Act of 1925 (U.S. C., Title 18, See-

tion 725), which is strikingly similar to the North

Carolina statute, vests the federal courts with

power to arrest in such a case without the formula-

tion of charges or notice of charges, there being no

“limiting requirements”’ in that respect contained

in the Act. Burns v. United States, 287 U.S. 216,

221. See Moss v. United States, 72 F. (2d) 30, 32

(C.C. A. 4th). No reason has been advanced for a

different rule here.

We urge, therefore, that the capias of October 19,

1939, was validly issued within the term of peti-

tioner’s probation and that it must be regarded as

having stayed the running of the five-year period

until he had been apprehended. See Anderson v.

Corall, supra; Stockton v. Massey, supra; Platek

v. Aderhold, 73 F. (2d) 173, at 175; Hinson v.

Rochelle, 156 N. C. 250. As a result, the petitioner

continued to be ‘‘charged with.crime”’ after the

five-year period expired on February 18, 1940.

Second. On the assumption, which we have

shown to be incorrect, that he was no longer charged

with his original offense at the time the order of

extradition was entered, the petitioner goes on to

demonstrate that no charge had been made that he

had misbehaved or violated the conditions of his

probation. We regard the contention as irrelevant

and think that it stems from confusion with respect

to the nature of the offense charged. The crime with

which the petitioner is charged, as we had said, is

the offense against the securities laws of North Caro-

LL NB I gL at OCS EEN NCE, ARI yh SOTTO pe

‘ PORT RNS

14

lina for which he was convicted in 1935. It has

nothing to do with his conduct since that time. The

question whether he has behaved in a manner war-

ranting the execution and imposition of sentence

on the original offense is a question to be determined

by the North Carolina court after the petitioner has

been returned. It is a question which was beyond

the jurisdiction both of the Chief Justice in pass-

ing upon the request for extradition, and of the

District Court in the habeas corpus proceedings.

Ex parte Nabors, 33 N. M. 324; Cappola v. Platt,

123 Conn. 38. See State v. Everett, 164 N. C. 399.

CONCLUSION

No special and important reason for the exercise

of the discretionary power to review on certiorari

has been shown in this case. No conflict of deci-

sions is involved and the decision of the Court of

Appeals is correct. We, therefore, respectfully

submit that the petition should be denied.

CHARLES Fany,

Acting Solicitor General.

WENDELL BERGE,

Assistant Attorney General.

OscaR Provost,

Special Assistant to the Attorney General.

Metva M. GRANEY,

Attorney.

Epwarp M. CuRRAN,

United States Attorney,

BERNARD MARGOLIUS,

Assistant United States Attorney.

JuLy 1941.

U. S. GOVERNMENT PRINTING OFFICE: t941

MIELE PIG GOGT Ly POLS TIONS NE OC IT AN HELE 5