Tippitt v. Wood, 8507.

• Decision Date: 07 February 1944
• Docket Number: No. 8507.,8507.
• Citation: 140 F.2d 689,78 US App. DC 332
• Parties: TIPPITT v. WOOD et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

78 US App. DC 332, 140 F.2d 689 (1944)

TIPPITT v. WOOD et al.

No. 8507.

United States Court of Appeals District of Columbia.

Argued December 9, 1943.

Decided February 7, 1944.

Mr. Harlan Wood, of Washington, D. C., for appellant.

Mr. Charles B. Murray, Assistant United States Attorney, of Washington, D. C., with whom Messrs. Edward M. Curran, United States Attorney, John P. Burke and Bernard J. Long, Assistant United States Attorneys, all of Washington, D. C., were on the brief, for appellees.

Before GRONER, C. J., and DOBIE,^* and ARNOLD, JJ.

DOBIE, Circuit Judge.

Cleveland Tippitt (hereinafter called Tippitt) filed, in the District Court of the United States for the District of Columbia, a complaint against the members of the United States Parole Board (hereinafter called the Board) for the purpose of requiring the Board to serve a parole violator's warrant upon Tippitt, looking to his release from the Federal Prison at Steilacoom, Washington, where he is now detained. From a judgment of the District Court, dismissing his complaint, Tippitt has duly appealed.

In December, 1934, Tippitt, in the United States District Court for Kansas, was convicted and sentenced to imprisonment for a term of six years in the Federal Prison at Fort Leavenworth. His offense was a violation of the National Motor Vehicle Theft Act, generally known as the Dyer Act, 18 U.S.C.A. § 408. In November, 1938, Tippitt, for good behavior, was released conditionally on parole, while he still had about 734 days yet to serve under the conviction and sentence just mentioned.

In July, 1939, while he was at large on parole, Tippitt was arrested and charged with unlawfully and feloniously breaking into a Post Office of the United States at Trinidad, Texas. In October, 1939, upon his plea of guilty, Judge Allred, sitting in the United States District Court for the Eastern District of Texas, for the offense against the Post Office, imposed a sentence of imprisonment for a term of four years. This sentence of Judge Allred was couched in the following language:

"Ordered and Adjudged that the defendant, having been found guilty of said offenses, is hereby committed to the custody of the Attorney General for imprisonment in an institution of the penitentiary type to be designated by the Attorney General or his authorized representative for the period of four (4) years. Sentence to run concurrently with any revocation of present suspended sentence and conditional release from the U. S. Penitentiary at Leavenworth, Kansas or other sentence in the U. S. District Court, Northern Division of Kansas, against this defendant.

"It is further ordered that the Clerk deliver a certified copy of this judgment and commitment to the United States Marshal or other qualified officer and that the same shall serve as the commitment herein."

The sentence thus imposed by Judge Allred expired on November 3, 1942; but Tippitt is now being detained to serve the unexpired portion of the sentence imposed by the United States District Court for Kansas on account of his violation of the Dyer Act. Manifestly, if (as Tippitt contends) that portion of Judge Allred's sentence which provides that the two sentences (one for the violation of the Dyer Act, the second for the offense against the Post Office) shall run concurrently, is valid, Tippitt is clearly entitled to the release that he seeks. The Board, on the contrary, contends that Judge Allred lacked either the power or the authority to direct that the existing grant of parole, or conditional release, be revoked so as to cause service by Tippitt of prior unexpired first sentence to run concurrently with the immediate second sentence presently imposed by Judge Allred.

Heavy reliance is placed by the Board upon the cases of Zerbst v. Kidwell, 304 U.S. 359, 58 S.Ct. 872, 82 L.Ed. 1399, 116 A.L.R. 808, and Hammerer v. Huff, 71 App.D.C. 246, 110 F.2d 113. A careful reading of the opinions of Mr. Justice Black in the Zerbst case and of Associate Justice Stephens in the Hammerer case, convinces us that this contention of the Board is correct. The philosophy of parole, as developed in the Zerbst case, is further explained in the recent opinion of Circuit Judge Sparks in Dolan v. Swope, 7 Cir., 138 F.2d 301.

In the Zerbst case, 304 U.S. at page 361, 58 S.Ct. at page 873, 82 L.Ed. 1399, 116 A.L.R. 808, Mr. Justice Black succinctly stated:

"When respondent committed a federal crime while on parole, for which he was arrested, convicted, sentenced, and imprisoned, not only was his parole violated, but service of his orginal sentence was interrupted and suspended. Thereafter, his imprisonment was attributable to his second sentence only, and his rights and status as to his first sentence were `analogous to those of an escaped convict.' Not only had he — by his own conduct — forfeited the privileges granted him by parole, but, since he was no longer in either actual or constructive custody under his first sentence, service under the second sentence can not be credited to the first without doing violence to the plain intent and purpose of the statutes providing for a parole system.

"The Parole Board and its members have been granted sole authority to issue a warrant for the arrest and return to custody of a prisoner who violates his parole."

And, again (304 U.S. at pages 362, 363, 58 S.Ct. at page 874, 82 L.Ed. 1399, 116 A.L.R. 808), it was said:

"Since service of the original sentence was interrupted by parole violation, the full term of that sentence has not been completed. Just as respondent's own misconduct (parole violation) has prevented completion of the original sentence, so has it continued the authority of the board over respondent until that sentence is completed and expires. Discretionary authority in the board to revoke a parole at any time before expiration of a parolee's sentence was provided — and is necessary — as a means of insuring the public that parole violators would be punished. The proper working of the parole system requires that the board have authority to discipline, guide and control parole violators whose sentences have not been completed. It is not reasonable to assume that Congress intended that a parolee whose conduct measures up to parole standards should remain under control of the board until expiration of the term of his sentence, but that misconduct of a parole violator could result in reducing the time during which the board has control over him to a period less than his original sentence.

"Parole is intended to be a means of restoring offenders who are good social risks to society; to afford the unfortunate another opportunity by clemency — under guidance and control of the Board. Unless a parole violator can be required to serve some time in prison in addition to that imposed for an offense committed while on parole, he not only escapes punishment for the unexpired portion of his original sentence, but the disciplinary power of the Board will be practically nullified."

Counsel for Tippitt endeavor to distinguish the Zerbst case from the instant case on the ground that in the Zerbst case the second sentence contained no express provision that this sentence should run concurrently with the first sentence, while, in Tippitt's case, the second sentence of Judge Allred did expressly provide for the concurrent running of both the first and second sentences. There is some force in the distinction, but, even upon the Zerbst case alone, we should be inclined to hold Mr. Justice Black clearly indicated a sharp line of cleavage between the power of a federal District Court as to the second sentence, and the authority of the Board as to the first sentence, with a crisp implication that power over the first sentence, in connection with parole, rested with, and solely with, the Board.

In the Hammerer case, the facts were practically identical with the instant case, for the second sentence imposed on Hammerer did contain an express provision that the first and second sentences should run concurrently. After a discussion of the applicable statutes, and the opinion of Mr. Justice Black in the Zerbst case, Associate Justice Stephens (speaking for this Court of Appeals), stated (71 App.D.C. at page 249, 110 F.2d at page 116: "We think this decision of the Supreme Court, in view especially of the italicized portions of the opinion, makes clear that in the instant case only the District Board of Parole, by terminating the conditional release, could cause the unexpired portion of the first sentence to commence to run again, and that the trial judge in imposing the second sentence had no power to cause it and the unexpired portion of the first sentence to run concurrently."

We do not think it is necessary to add materially to what was said in the opinion of Mr. Justice Stephens.

An attempt is made by counsel for Tippitt to distinguish the instant case from the Hammerer case. We are told: "In the Hammerer case, a local statute of different provisions from the federal acts generally was involved. A comparative reading of their provisions demonstrates this inescapable fact." Tippitt's counsel, however, fails to point wherein these differences lie, and we are unable to find (so far as the decision of the instant case is involved) any essential differences between the statutes applicable to the United States Board of Parole and United States District Courts other than those in the District of Columbia and the statutes applicable to the District of Columbia Board of Indeterminate Sentence and Parole and the United States District Court for the District of Columbia. That precise contention was decided against Tippitt in the Hammerer case; for Associate Justice Stephens held that the decision in the Zerbst case (not involving the District of Columbia) was binding in the Hammerer case (involving the District of Columbia) because the Zerbst case was "decided under statutes concededly similar to those applicable...