Carbo v. United States

Decision Date31 May 1960
Docket NumberNo. 16820.,16820.
Citation277 F.2d 433
PartiesPaul John CARBO, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

A. L. Wirin, William B. Beirne, Los Angeles, Cal., for appellant.

Laughlin E. Waters, U. S. Atty., Los Angeles, Cal., Lloyd F. Dunn, Sp. Asst. to Atty. Gen., for appellee.

Before STEPHENS, POPE and HAMLIN, Circuit Judges.

Certiorari Granted May 31, 1960. See 80 S.Ct. 1239.

PER CURIAM.

A 10-count indictment was returned by the Grand Jury in the Southern District of California, Central Division, on September 22, 1959, charging Paul John Carbo, aka Frankie Carbo, hereinafter appellant, and four others with violations of 18 U.S.C.A. §§ 1951, 875(b) and 371. Appellant posted bond at Baltimore, Maryland, returnable to the United States District Court at Los Angeles in the sum of $100,000.00. Thereafter, but prior to his appearance in Los Angeles upon the charges contained in the indictment filed there, appellant was charged with and pleaded guilty to three misdemeanor counts in New York City, New York, and was sentenced to two years in prison and fined. During appellant's New York confinement in prison, the New York authorities honored a writ of habeas corpus ad prosequendum issued by the District Court for the Southern District of California and permitted appellant to appear in said court at Los Angeles to answer to the charges in the indictment. On December 2, 1959, when he appeared in said Court, he was arraigned on the charges contained in the indictment, and stated that he had posted a $100,000.00 bond. On December 8, in said District Court, the defendant requested permission to enter his plea and be permitted to return to New York and later return to Los Angeles for trial. Appellant entered a plea of not guilty to counts 1, 3, 5, 7 and 9 of the indictment, and the Court then set the case against all defendants for trial on March 29, 1960, and at appellant's request directed that he be returned to New York for the purpose of obtaining counsel and be returned to the Southern District of California in time for trial.

On March 16, 1960, after application by the United States Attorney, the District Judge in said district directed the issuance of a document entitled "Habeas Corpus Ad Prosequendum" directed to the jailer of New York City Prison, Bellevue Hospital, New York City, New York, commanding him to produce the appellant in the District Court for his trial upon March 29, 1960. Appellant filed in said District Court a motion to quash said writ and the United States Attorney filed an opposition to such motion. After hearing, the District Court denied appellant's motion to quash.

Appellant thereupon appealed to this Court from said order of denial.

On March 22, 1960, after a motion to dismiss said appeal had been filed by the United States Attorney, counsel for the appellant and the United States filed memoranda of authorities and orally argued the matter before this Court. It was stipulated by counsel for appellant and for the United States that the appeal itself might be deemed submitted to this Court for decision upon the merits, upon the record as filed and the briefs and memoranda of the parties on file with the Court, and without further briefs or argument, and this Court so ordered.

Appellant contends that the District Court had no jurisdiction to issue the writ in question, because the appellant is in custody in New York out of the territorial jurisdiction of the District Court.

Appellant relies upon Ahrens v. Clark, 335 U.S. 188, 68 S.Ct. 1443, 1444, 92 L. Ed. 1898, decided June 21, 1948. In that case, the petitioners were confined in New York and the petitions for habeas corpus alleging the illegal restraint of their liberty in New York were filed in the District Court of the District of Columbia.

The statute there under consideration by the Court then provided (28 U. S.C. § 452):

"The several justices of the Supreme Court and the several judges of the circuit courts of appeal and of the district courts, within their respective jurisdictions, shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of restraint of liberty. A circuit judge shall have the same power to grant writs of habeas corpus within his circuit that a district judge has within his district; and the order of the circuit judge shall be entered in the records of the district court of the district wherein the restraint complained of is had." Emphasis ours.1

The Court stated in 335 U.S. at page 190, 68 S.Ct. at page 1444:

"The question at the threshold of the case is whether the words `within their respective jurisdictions\' limit the district courts to inquiries into the causes of restraints of liberty of those confined or restrained within the territorial jurisdictions of those courts." Emphasis ours.

In the instant case there is no question before the Court of any illegal restraint of liberty. The appellant does not complain that he is illegally restrained by any authority. His only objection is his contention that the United States District Court cannot by its order arrange to have him brought from New York to Los Angeles for trial upon charges contained in an indictment on file in the District Court there. The Ahrens case is not in point.

There is a distinction between the writ of habeas corpus ad subjiciendum which was under consideration in the Ahrens case and the writ of habeas corpus ad prosequendum which is under consideration in this case. Price v. Johnston, 334 U.S. 266, at page 281, 68 S. Ct. 1049, 1058, 92 L.Ed. 1356.2

The purpose of the writ of habeas corpus ad subjiciendum (sometimes called The Great Writ) is to inquire as to the legality of the prisoner's restraint. It was this writ that the Supreme Court was discussing in Ahrens.

The writ of habeas corpus ad prosequendum has an entirely different purpose. The legality of the prisoner's restraint is not in question. It is issued "`when it is necessary to remove a prisoner * * * in order to * * * be tried in the proper jurisdiction wherein the fact was committed.'" Price v. Johnston, supra. That this should be done is indicated by the language of the Supreme Court in Ponzi v. Fessenden, 258 U.S. 254, at page 264, 42 S.Ct. 309, 312, 66 L.Ed. 607, where it is said:

"The authorities, except when special statutes make an exception, are all agreed that the fact that a defendant in an indictment is in prison serving a sentence for another crime gives him no immunity from the second prosecution. * * * Delay in the trial of accused persons greatly aids the guilty to escape because witnesses disappear, their memory becomes less accurate and time lessens the vigor of officials charged with the duty of prosecution. If a plea of guilty and imprisonment for one offense is to postpone trial on many others, it furnishes the criminal an opportunity to avoid the full expiation of his crimes."

Respondent contends that the District...

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6 cases
  • Clark v. Hendrix, Civ. A. No. C74-27G.
    • United States
    • U.S. District Court — Northern District of Georgia
    • July 7, 1975
    ...2 The Ninth Circuit had held that the district court had jurisdiction but it based its authority on 28 U.S.C. § 1651. Carbo v. United States, 277 F.2d 433 (9th Cir. 1960). 3 The Court visualized the writ's use by the district court in the demanding state to obtain the petitioner's presence ......
  • Carbo v. United States
    • United States
    • U.S. Supreme Court
    • January 9, 1961
    ...pending in the California court.1 Both the District Court and the Court of Appeals have held that such jurisdiction does exist. 9 Cir., 277 F.2d 433. Recognizing that the effective administration of criminal justice required our decision on the point, we granted certiorari 363 U.S. 802, 80 ......
  • In re James-Ignatius: Diamond
    • United States
    • U.S. District Court — Central District of California
    • May 27, 2011
    ...and whenever these words are used alone, they are understood to mean thehabeas corpus ad subjiciendum." Carbo v. United States, 277 F.2d 433, 436 n.2 (9th Cir. 1960) (per curiam) (quoting Black's Law Dictionary, 4th Ed. 1957); see also Stone v. Powell, 428 U.S. 465, 475 n.6, 96 S.Ct. 3037, ......
  • James v. Jones
    • United States
    • U.S. District Court — Western District of Michigan
    • March 10, 2017
    ...ad subjiciendum (sometimes called The Great Writ) is to inquire as to the legality of the prisoner's restraint." Carbo v. United States, 277 F.2d 433, 435 (9th Cir. 1960). Decades ago, the Supreme Court affirmed the importance of hearing a prisoner's petition:We do well to bear in mind the ......
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