Kendrick v. Carlson

• Decision Date: 18 June 1993
• Docket Number: No. 91-1330,91-1330
• Citation: 995 F.2d 1440
• Parties: Frank Michael KENDRICK, Appellant, v. Peter CARLSON, * Warden, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1440

995 F.2d 1440

Frank Michael KENDRICK, Appellant, v. Peter CARLSON, ^* Warden, Appellee No. 91-1330.

United States Court of Appeals Eighth Circuit.

Submitted Oct. 16, 1991.

Decided June 18, 1993.

Margaret Danielson, Madison, WI, argued, for appellant.

Henry Shea, Minneapolis, MN, argued (Jerome G. Arnold, Henry J. Shea and Wendy Wiggins on the brief), for appellee.

Before FAGG, Circuit Judge, HEANEY, Senior Circuit Judge, and BOWMAN, Circuit Judge.

BOWMAN, Circuit Judge.

Frank Michael Kendrick appeals from the order of the District Court ¹ adopting the report and recommendation of a magistrate judge ² and denying Kendrick's 28 U.S.C. § 2241 (1988) petition seeking credit against his federal sentence for time Kendrick spent imprisoned in the Netherlands Antilles. We affirm the judgment of the District Court.

I.

In August 1983, Drug Enforcement Agency ("DEA") agents in Lima, Peru, received information that Kendrick and Richard Rankin were attempting to smuggle cocaine into the United States via Curacao in the Netherlands Antilles. The agents requested that authorities in the Netherlands Antilles search the men when they arrived on Curacao. On August 17, 1983, Curacao customs officers complying with this request uncovered a total of four kilograms of cocaine in Kendrick's and Rankin's luggage. Kendrick and Rankin were arrested, charged with drug trafficking offenses under the law of the Netherlands Antilles, and held in custody on Curacao pending trial.

In April 1984, Kendrick was convicted of importing cocaine in violation of the law of the Netherlands Antilles and received a five-year prison sentence. Rankin also was convicted and received a sentence of three and one-half years. Meanwhile, DEA agents in the United States continued to investigate Kendrick's and Rankin's drug trafficking activities. The agents discovered that Kendrick and Rankin were members of a loose-knit group that had imported hundreds of pounds of cocaine into the United States over a period of years. Federal prosecutors sought and obtained indictments against both men.

Authorities in the Netherlands Antilles cooperated closely with the DEA in its investigation, providing information and evidence to United States investigators and "loaning" Rankin to our government so that Rankin could testify for the United States and plead guilty to drug trafficking charges. When it came time to release Rankin, and later Kendrick, Curacao prison authorities placed the men on flights home to be met by members of the United States Marshal's Service. The marshals immediately took the men into federal custody.

Rankin was released from prison in the Netherlands Antilles on December 18, 1985; he received credit for the entire period of his incarceration in the Netherlands Antilles against his subsequent federal sentence. Kendrick was released from prison in the Netherlands Antilles on December 17, 1986. He subsequently pled guilty to operating a continuing criminal enterprise in violation of 21 U.S.C. § 848 (1982) and received a twenty-four-year sentence. United States v. Kendrick, No. 86-CR-89-S (W.D.Wis. Apr. 6, 1987). Kendrick then brought this action seeking credit against his federal sentence for the forty months he was incarcerated in the Netherlands Antilles from August 17, 1983, to December 17, 1986.

The District Court adopted the magistrate judge's report and recommendation and denied Kendrick's petition. For reversal, Kendrick argues: 1) the magistrate judge was disqualified from considering Kendrick's case pursuant to 28 U.S.C. § 455(b)(3) (1988); 2) Kendrick is entitled to credit under 18 U.S.C. § 3568 (1982) (repealed effective 1987) for the time he spent incarcerated on Curacao since his incarceration there stemmed from the same conduct for which his federal sentence was imposed; 3) Kendrick is entitled to credit under 18 U.S.C. § 3568 for the time he spent incarcerated on Curacao since his incarceration there was the result of a "de facto detainer" lodged against him by the United States; and 4) even if Kendrick is not entitled to credit under 18 U.S.C. § 3568, Rankin was given credit for the time Rankin was incarcerated in the Netherlands Antilles and equal protection requires that Kendrick similarly receive credit.

II.

Kendrick first argues that the magistrate judge to whom Kendrick's petition was referred should have disqualified himself pursuant to 28 U.S.C. § 455(b)(3) because the magistrate judge was employed as an Assistant United States Attorney ("AUSA") in the United States Attorney's Office for the District of Minnesota, the very office representing the government in this case, at the time Kendrick's petition was filed. Section 455(b)(3) provides that any justice, judge, or magistrate of the United States shall disqualify himself if "he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy."

Initially, we note that the rules concerning disqualification based on prior government service are less stringent than those that apply to prior private employment. Whereas § 455 requires that a judge disqualify himself based on prior governmental employment only if he served "as counsel ... concerning the proceeding," 28 U.S.C. § 455(b)(3), it provides that a judge disqualify himself "[w]here in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter," id. § 455(b)(2) (emphasis added). Therefore a judge is not subject to mandatory disqualification arising from prior government service based on the mere fact that another lawyer in his office served as a lawyer concerning the matter. The issue, rather, is whether a judge, while in government employment, himself served as counsel in the case.

There is general agreement that a United States Attorney serves as counsel to the government in all prosecutions brought in his district while he is in office and that he therefore is prohibited from later presiding over such cases as a judge. See, e.g., United States v. Di Pasquale, 864 F.2d 271, 278-79 (3rd Cir.1988), cert. denied, 492 U.S. 906, 109 S.Ct. 3216, 106 L.Ed.2d 566 (1989); Barry v. United States, 528 F.2d 1094, 1099 n. 14 (7th Cir.), cert. denied, 429 U.S. 826, 97 S.Ct. 81, 50 L.Ed.2d 88 (1976). The only case we have found on point, however, holds that this per se rule does not extend to disqualify a supervisory AUSA who had no involvement with a case brought in his district. Di Pasquale, 864 F.2d at 278-79. We agree with the Di Pasquale court that an AUSA without any involvement in a case brought by other attorneys in his office is not required to disqualify himself from presiding over such a case under 28 U.S.C. § 455(b)(3).

The case before us is a very different case from Mixon v. United States, 620 F.2d 486, 487 (5th Cir.1980) (per curiam), on which Kendrick relies. In that case, the magistrate judge, while in government employment, had himself represented the government concerning the case in controversy and thus clearly was required to disqualify himself under the statute. By contrast, in the action before us, there is no allegation or evidence that the magistrate judge had any involvement in Kendrick's case during the magistrate judge's time in government service. We therefore hold that the magistrate judge was not required to disqualify himself under § 455(b)(3).

III.

Kendrick next argues that he is entitled to credit against his federal sentence for the time he was incarcerated in Curacao under 18 U.S.C. § 3568. ³ That statute provides in pertinent part:

The sentence of imprisonment of any person convicted of an offense shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of such sentence. The Attorney General shall give any such person credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed.

Id. Kendrick reasons that the conduct underlying his conviction in the Netherlands Antilles is the same conduct that supports the federal continuing criminal enterprise offense to which he pled guilty, that the time he spent incarcerated in the Netherlands Antilles is thus time spent "in custody in connection with the offense or acts for which [his federal] sentence was imposed," and that he therefore is entitled to receive credit against his federal sentence for that time. We disagree.

Section 3568 does not explain when custody is "in connection with the offense or acts for which sentence was imposed." It is clear, however, that time spent serving a prison sentence imposed by a sovereign other than the federal government (whether that sovereign be a state or a foreign nation) can not be time spent in custody in connection with the offense for which a federal sentence is imposed. Section 3568 provides that "offense," as used in the section, means any criminal offense that is "in violation of an Act of Congress and is triable in any court established by Act of Congress." Id. Incarceration that is due to a violation of the law of a foreign sovereign clearly does not fit this definition since it is not time spent in custody in connection with a violation of an act of Congress triable in a court established by an act of Congress. See Jackson v. Brennan, 924 F.2d 725, 727 (7th Cir.1991).

The question then is whether the fact that § 3568 also provides for credit for custody in connection with the acts for which a federal sentence was imposed entitles a person convicted of violating a foreign sovereign's laws to receive credit against a federal sentence arising out of the same conduct. The applicable version of § 3568 was enacted as part of the Bail Reform Act of 1966, Pub.L. No....