Frad v. Kelly

Decision Date06 December 1937
Docket NumberNo. 87,87
Citation82 L.Ed. 282,302 U.S. 312,58 S.Ct. 188
PartiesFRAD v. KELLY, Marshal
CourtU.S. Supreme Court

Messrs. Harris J. Griston and Louis Karasik, both of New York City, for petitioner.

Mr. Justice ROBERTS delivered the opinion of the Court.

The petitioner pleaded guilty to three indictments in the District Court for the Southern District of New York. Judge Inch, a District Judge of the Eastern District of New York, who had been designated and assigned to suit in the Southern District, pursuant to Rev.St. § 591, as amended,1 received the pleas and imposed a sentence under the first indictment (No. C 96-116) of two years' imprisonment and $1,000 fine. Under the other indictments he made identical orders: 'Imposition of sentence suspended. Probation for four years to begin after serving sentence on C 96-116. Subject to the standing probation orders of this Court.' The petitioner paid his fine and served his sentence and thereupon entered upon his period of probation.

Twenty months after Judge Inch had returned to his own district, application was made to him at chambers, to discharge the petitioner from probation and to terminate the proceedings against him, pursuant to section 2 of the Probation Act of March 4, 1925, amended by Act June 16, 1933.2 The judge directed that notice of the application be given to the probation officer of the Southern District of New York. This was done and, after a hearing on the merits in the Eastern District, at which the probation officer was present and took part, Judge Inch entered an order revoking the probation, discharging the petitioner from further supervision and terminating the proceedings against him. The order was captioned in the 'United States District Court for the Southern District of New York' and was filed in the office of the clerk of that court.

About a year later, on a petition by the probation officer of the Southern District, a judge sitting in that district authorized a warrant for the petitioner's apprehension upon a charge of violation of the terms of his probation. The petitioner was arrested and admitted to bail pending a hearing.

Thereafter the United States attorney for the Southern District moved to vacate the order of Judge Inch terminating the probation and the proceedings. By stipulation of counsel, Judge Inch returned to the Southern District to hear the parties upon this motion but he entered no order since, meantime, the petitioner had surrendered himself to the marshal and sought a writ of habeas corpus, and the United States attorney had moved before a judge sitting in the Southern District that the petitioner be sentenced on the two indictments under which sentence had been suspended.3 The petition for the writ and the motion for sentence were heard together; the petition was granted, and the motion was denied. The Circuit Court of Appeals reversed and remanded the cause 'for the consideration of the revocation of (the petitioner's) probation and for sentence if warranted.'4

We granted the writ of certiorari, 301 U.S. 681, 57 S.Ct. 946, 81 L.Ed. 1339, because of the importance of the questions presented in the administration of the Probation Act. We hold that the judgment of the court below was right.

First. The contention that the trial court was without power to suspend the imposition of sentences on the pleas of guilty to two of the indictments and place the de- fendant on probation effective after completion of service of sentence on the third indictment is without merit. Based upon this contention the petitioner says that when he had completed service of the sentence imposed on indictment C 96-116 there remained no sentence against him and the term having long since expired the court was without power then to impose one.

The Probation Act (supra) provides, in section 1 (18 U.S.C.A. § 724), that United States courts having original jurisdiction of criminal actions, being satisfied that the ends of justice and the best interests of the public and of the defendant will be served thereby, shall have power, after conviction for any crime or offense not punishable by death or life imprisonment, 'to suspend the imposition or execution of sentence and to place the defendant upon probation for such period and upon such terms and conditions as they may deem best,' or to impose a fine and place the defendant upon probation; to revoke or modify any condition of probation or change the period thereof, provided that the period with any extensions shall not exceed five years. The act was intended to cure the lack of power indefinitely to suspend a sentence, under which District Courts labored prior to the enactment.5

The second section, as amended (18 U.S.C.A. § 725) provides that at any time within the probation period, or at any time after the probation period but within the maximum period for which the defendant might originally have been sentenced, the probationer may be summoned before the court and 'the court may revoke the probation or the suspension of sentence, and may impose any sentence which might originally have been imposed.' The action of the trial court in suspending sentence and imposing probation on two of the indictments was in strict accordance with the authority thus explicitly conferred. The validity of the cited provisions is not open to question.6 The mere fact that a sentence of a fine and imprisonment had been imposed upon one of the indictments in no way militated against the prescription of probation in respect of the plea of guilty under the other two.7

Second. The order of Judge Inch, sitting in the Eastern District, after the termination of his service in the Southern District, was null. The statute providing for designation and assignment of a District Judge to sit temporarily in another district than his own does not authorize the order, and the express provisions and obvious intent of the Probation Act negate the power of any judge, other than a judge of the Southern District of New York, to make it.

The Act of March 3, 1911, § 18, as amended,8 provides: 'Any designated and assigned judge who has held court in another district than his own shall have power, notwithstanding his absence from such district and the expiration of the time limit in his designation, to decide all matters which have been submitted to him within such district, to decide motions for new trials, settle bills of exceptions, certify or authenticate narratives of testimony, or perform any other act required by law or the rules to be performed in order to prepare any case so tried by him for review in an appellate court.'

When an assigned judge has presided at the trial of a cause, he is to have power, though the period of his service has expired, and though he may have returned to his own district, to perform the functions which are incidental and supplementary to the duties...

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    • United States
    • United States State Supreme Court of Mississippi
    • May 23, 1938
    ......This seems clear from. the statute, but any doubt relative thereto was cleared up by. the Supreme Court of the United States in Frad v. Kelly, 302 U.S. 312, 58 S.Ct. 188, 191, 82 L.Ed. 282,. decided on December 6th, 1937, wherein. [179 So. 864] . the court said: "When an ......
  • Clark v. United States, Civil No. 15-cv-726-JPG
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
    • March 3, 2016
    ...for rehearing or further proceedings in such matters." 28 U.S.C. § 296 (emphasis added). This is not inconsistent with Frad v. Kelly, 302 U.S. 312 (1937), or any of the other cases Clark has cited. In fact, Frad says precisely that "[w]hen an assigned judge has presided at the trial of a ca......
  • Application of Wiechert, Patent Appeal No. 7636.
    • United States
    • United States Court of Customs and Patent Appeals
    • January 19, 1967
    ...a United States Attorney may be permitted on behalf of the public to upset an order issued upon defective authority, Frad v. Kelly, 302 U.S. 312 58 S.Ct. 188, 82 L.Ed. 282, a private litigant ordinarily may not. Ball v. United States, 140 U.S. 118, 128-129 11 S. Ct. 761, 764, 765, 35 L.Ed. ......
  • Morrissey v. Brewer, 20328
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • April 21, 1971
    ...proceeding.11 "A criminal action is terminated by the final judgment entered upon a plea or verdict of guilty. Frad v. Kelly, 302 U.S. 312, 317, 58 S.Ct. 188, 82 L.Ed. 282. Final judgment means sentence, and sentence means final judgment. Miller v. Aderhold, 288 U.S. 206, 210, 53 S.Ct. 325,......
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1 firm's commentaries
  • The Assignment Of Visiting Federal Judges, And A Little Wisconsin Judicial History
    • United States
    • Mondaq United States
    • December 29, 2015
    ...to sit there, and his assignment had been limited to specific cases. The D.C. Circuit held that the case is ruled by Frad v. Kelly, 302 U.S. 312 (1937), in which the Supreme Court held that a visiting judge whose date-specific assignment had expired could no longer exercise jurisdiction eve......

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