537 F.Supp. 1245 (W.D.N.Y. 1982), CR-79-155, United States v. Sackinger

Docket Nº:CR-79-155.
Citation:537 F.Supp. 1245
Party Name:The UNITED STATES of America v. Gregory SACKINGER.
Case Date:May 07, 1982
Court:United States District Courts, 2nd Circuit

Page 1245

537 F.Supp. 1245 (W.D.N.Y. 1982)

The UNITED STATES of America



No. CR-79-155.

United States District Court, D. New York

May 7, 1982

Page 1246

Roger P. Williams, U. S. Atty., Buffalo, N. Y. (J. Glenn Davis, Asst. U. S. Atty., Buffalo, N. Y., of counsel), for plaintiff.

Terrence M. Connors, Damon, Morey, Sawyer & Moot, Buffalo, N. Y., for defendant.


ELFVIN, District Judge.

Defendant was indicted October 3, 1979 on three counts of transporting forged securities in interstate commerce in violation of 18 U.S.C. s 2314. Pursuant to a plea agreement, defendant pleaded guilty to one count in the Indictment, the remaining counts being dismissed on the government's motion. On September 8, 1980 I sentenced defendant to a term of imprisonment of three years but suspended execution of the sentence and placed defendant on probation for four years. The government now seeks to have defendant found in violation of probation due to his involvement in a burglary at a supermarket in South Dayton, N. Y. on or about February 16, 1981.

Following his arrest February 17, 1981 and indictment March 25, 1981 on burglary charges in the Cattaraugus County (N.Y.) Court, defendant pleaded guilty July 22nd to the crime of attempted burglary in the third degree. The plea agreement in the state court was based on the understanding that defendant would receive a sentence of from one and a half to three years imprisonment and that the state sentence would run concurrently with any term of imprisonment imposed as a result of defendant's violation of his federal probation. The state court initially delayed sentencing defendant in order to permit the federal probation violation proceedings to be conducted. However, the federal government adhered to its unwritten policy to refrain from commencing probation violation proceedings based on criminal charges under state law until the defendant has been sentenced on the state charges (or until some other final disposition of the charges is made). Therefore, defendant was finally sentenced by the state court November 9, 1981.

United States Probation Officer Rodney C. Early commenced the current probation violation proceedings November 23, 1981 by filing a petition for an order to cause defendant's arrest. The government filed an initial petition for a writ of habeas corpus ad prosequendum January 8, 1982. After two writs were issued but returned without service because defendant had been transferred between state correctional facilities, defendant was transferred to federal custody and brought before this court February 22nd pursuant to a third writ. A hearing

Page 1247

was held March 24th with respect to the alleged probation violation. After the parties submitted memoranda of law, oral argument was heard April 26th.

Defendant opposes the government's petition to have him found to have violated probation on the grounds that the government unduly delayed commencement of this proceeding. Defendant does not complain of the delay between his arrest in February and his guilty plea in July, but attacks the delay between his plea and the state court's imposition of its sentence in November. Because a federal court lacks the authority to direct that a term of incarceration run concurrently with a term imposed under state law, 1 defendant argues that the government's delay in commencing this proceeding until after he had been sentenced in state court deprived him of the opportunity to have his imprisonment under state law and for federal probation violation run concurrently as was intended by the plea agreement in state court. Defendant claims that such delay violated 18 U.S.C. s 3653 and Fed.R.Crim.P. rule 32.1(a) (2) and denied him due process of law in contravention of the Fifth Amendment to the United States Constitution.

Section 3653.

The supervision of probationers is provided for by 18 U.S.C. s 3653. Under that section, the probation officer is empowered to arrest the probationer for cause without a warrant at any time within the probation period. Additionally, the supervising court may issue a warrant for the probationer's arrest based on a violation of probation occurring during the probation period. Such a warrant may be executed by the probation officer or by the United States Marshal for the district in which the warrant was issued or in which the probationer is found. If the arrest is made in any district other than the supervising district, the probationer is to be returned to the supervising district (unless jurisdiction over the probationer is transferred to the district in which he is found) and "detained pending further proceedings in such district." The last paragraph of section 3653 requires that "(a)s speedily as possible after arrest the probationer shall be taken before the court for the district having jurisdiction over him."

Defendant's claim that the government has violated section 3653 is based on the section's requirement that the probationer be taken before the supervising court "as speedily as possible after arrest * * *." Defendant argues that where an alleged probation violation is based on state criminal charges for which the probationer has been arrested, the "arrest" to which the last paragraph of section 3653 refers is the arrest for the underlying misconduct-i.e., in the present case, defendant's arrest by state authorities in February, 1981 on charges of burglary. The government contends that section 3653's requirement that the probationer be taken before the supervising court as speedily as possible is not triggered until the...

To continue reading