United States ex rel. Lombardo v. McDonnell

• Citation: 153 F.2d 919
• Decision Date: 13 March 1946
• Docket Number: No. 8899,8954.,8899
• Parties: UNITED STATES ex rel. LOMBARDO v. McDONNELL. SAME ex rel. DURKIN v. SAME.
• Court: U.S. Court of Appeals — Seventh Circuit

153 F.2d 919 (1946)

UNITED STATES ex rel. LOMBARDO v. McDONNELL.

SAME ex rel. DURKIN v. SAME.

Nos. 8899, 8954.

Circuit Court of Appeals, Seventh Circuit.

February 14, 1946.

Rehearing Denied March 13, 1946.

No. 8899:

J. Albert Woll, Wm. J. Connor, and John M. Kiely, U. S. Atty., of Chicago, Ill., for appellant.

Robert M. Gibboney, of Rockford, Ill., for appellee.

No. 8954:

Henry L. Balaban, of Chicago, Ill., for appellant.

J. Albert Woll, Wm. J. Connor, U. S. Atty., and Kenneth S. Nathan, Asst. U. S. Atty., all of Chicago, Ill., for appellee.

Before EVANS and KERNER, Circuit Judges, and LINDLEY, District Judge.

KERNER, Circuit Judge.

In No. 8899 appellant William H. McDonnell, United States Marshal, Northern District of Illinois, appeals from a judgment of the District Court discharging appellee from the custody of appellant.

On July 24, 1936, in the Circuit Court of Macoupin County, Illinois, in case No. 718, entitled The People of the State of Illinois v. Joe Lombardo, alias Robert Livingston, appellee was convicted of robbery while armed with a machine gun and sentenced to serve a term of from one year to life. Pursuant to this judgment he was, on August 7, 1936, committed to the Illinois State Penitentiary. While serving the sentence appellee was indicted for bank robbery in the District Court of the United States for the Northern District of Illinois, Western Division, to which court he was brought for trial in case No. 828 on a writ of habeas corpus ad prosequendum, and entered a plea of guilty. Upon the plea and finding of guilty he was, on April 1, 1940, sentenced to be confined in a penitentiary for a period of fifteen years, the sentence to commence "on the date of the expiration of the sentence under which said defendant is now confined in the Illinois State Penitentiary at Joliet, Illinois, pursuant to the judgment and sentence of the Circuit Court of Macoupin County, Illinois, in case No. 718." March 12, 1945, appellee was paroled from the Illinois State Penitentiary and upon his release he was taken into custody by appellant, upon a mittimus issued by the District Court in case No. 828, to serve a sentence of fifteen years. After a hearing on the petition, the court held that the sentence of fifteen years in case No. 828 was void. United States ex rel. Chasteen v. Denemark, 7 Cir., 138 F.2d 289, 291.

In the Chasteen case this court was considering the certainty of a judgment which read "to be served consecutively with case No. 1745995." The question was whether the quoted phrase was sufficient to constitute a cumulative sentence. In passing upon the contention made, this court applied the standards enunciated by the courts of Illinois, to the effect that a judgment entered in a case of cumulative punishment must be of such certainty that the commencement of the second and termination of the first sentence may be seen from the record. People v. Decker, 347 Ill. 258, 179 N.E. 827, and People v. Graydon, 329 Ill. 398, 160 N.E. 748. The record or judgment in the Chasteen case contained only a number — mentioning no title or name of any court in which case No. 1745995 was tried nor the duration of any sentence imposed. Hence, this court was of the opinion that the judgment was vague and indefinite. Such are not the facts in the instant case.

Here the District Court sentence in case No. 828 clearly states that Lombardo was confined in the Illinois State Penitentiary under a judgment in case No. 718 of the Circuit Court of Macoupin County, Illinois; that his imprisonment had not been terminated at the time the District Court's sentence was imposed; and that the sentence was to commence on the day of the expiration of the sentence under which Lombardo was confined. In the light of this record, we perceive no vagueness, uncertainty, or obscurity in connection with the language used; hence we conclude that the sentence was valid.

We note that in his petition Lombardo also questioned appellant's authority to take him into custody before the expiration of his state parole. In this court he contends that even if the judgment of the District Court is held erroneous on the ground of uncertainty, appellee, nevertheless, should be discharged because the action of the marshal, in taking custody of Lombardo before the expiration of his State parole, was premature. The District Court did not rule on that issue, but in this court appellee stresses that point. In effect it is argued that the parole is but an extension of the boundaries of the Illinois State Penitentiary and that, theoretically or constructively, at the time the mittimus in case No. 828 was served upon Lombardo, he was and still is in the custody of the Illinois state authorities. In support thereof, appellee relies principally on the case of Johnston v. Wright, 9 Cir., 137 F.2d 914. While we have great respect for that court, yet we are unable to agree with all that was said in that case for the reasons presently to be stated, nor do we think it controlling here.

Unquestionably the State of Illinois, having first acquired jurisdiction over appellee, was entitled to retain him in custody until he had finished his sentence, Stamphill v. Johnston, 9 Cir., 136 F.2d 291. That rule rests upon principles of comity, and it exists between federal and state courts. Ponzi v. Fessenden, 258 U.S. 254, 42 S.Ct. 309, 66 L.Ed. 607, 22 A.L.R. 879. While it may be true that when Lombardo was released on parole from the Illinois State Penitentiary he was theoretically a prisoner of the State, yet where a prisoner is on parole from one of two sovereigns, it is for the sovereign granting the parole, and not the prisoner, to determine priority of jurisdiction over him in connection with such parole, United States ex rel. Demarois v. Farrell, 8 Cir., 87 F.2d 957, and the fact that he is subject to the terms of a State parole does not exempt him from being taken by the federal government where no objection is made by the paroling State, United States v. Marrin, D.C., 227 F. 314; that is to say, "He may not, of right, demand priority for the judgment of either." Kirk v. Squier, 9 Cir., 150 F. 2d 3, 8.

In No. 8954 appellant Durkin appeals from an order dismissing his petition for writ of habeas corpus.

On October 11, 1925, Edwin C. Shanahan, a special agent of the United States Department of Justice, was killed while in the performance of his duties. January 20, 1926, Durkin was arrested and on July 27, 1926, in case No. 38212, in the Criminal Court of Cook County, Illinois, he was convicted of the murder of Shanahan and sentenced to serve a term of thirty-five years in the Illinois State Penitentiary. October 25, 1926, while confined in the Cook County jail pending appeal in the murder case, he was, by writ of habeas corpus ad prosequendum, brought to trial for transporting a stolen car across state lines, National Motor Vehicle Theft Act, 18 U.S.C.A. § 408, and convicted pursuant to indictment No. 14329 filed in the District Court of the United States for the Northern District of Illinois, Eastern Division. November 1, 1926, in the same court, he was convicted in case No. 14335, which indictment also charged another violation of the Motor Theft Act. In case No. 14329 he was sentenced to five years in the United States Penitentiary "to take effect upon his release from custody by the authorities of Illinois." In case No. 14335 he was sentenced to five years in the federal penitentiary "to be served consecutively of five (5) years in case 14329." November 8, 1926, in the same court, appellant pleaded guilty to five other indictments numbered 14330, 14331, 14334, 14557, and 14558 charging five other specific violations of the Motor Theft Act and in each of these cases was sentenced to serve one year and one day in the United States Penitentiary, the "sentences to run consecutively, not concurrently, making the term of imprisonment five (5) years and five (5) days under these sentences; and it is the further judgment of the court and hereby ordered that said sentences * * * shall commence immediately upon completion of the sentence this day imposed * * * in Indictment No. 14335, and it is to run consecutively with said sentence in said cause No. 14335." During the period in which these judgments were...