Phillips v. United States

• Decision Date: 04 May 1954
• Docket Number: No. 14848.,14848.
• Citation: 212 F.2d 327
• Parties: PHILLIPS v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

212 F.2d 327 (1954)

PHILLIPS v. UNITED STATES.

No. 14848.

United States Court of Appeals, Eighth Circuit.

April 13, 1954.

Rehearing Denied May 4, 1954.

John P. Baird, Richmond Heights, Mo., (appointed by the Court), for appellant.

Paul R. Shy, Asst. U. S. Atty., Kansas City, Mo. (Edward L. Scheufler, U. S. Atty., Kansas City, Mo., on the brief), for appellee.

Before SANBORN, JOHNSEN, and COLLET, Circuit Judges.

SANBORN, Circuit Judge.

The question for decision is whether a District Court which has entered a judgment of conviction of a defendant upon an indictment or information containing a number of counts and has sentenced him to serve a period of imprisonment under each count — the periods to run consecutively, — may, after the defendant has commenced the service of his sentence, suspend, for purposes of probation, the further execution of it with respect to completely unserved periods of imprisonment.

The power to suspend execution of sentence and grant probation is derived from § 3651, Title 18 U.S.C.A., 62 Stat. 842,¹ which is included in Chapter 231 of that Title. Rule 32(e) of the Federal Rules of Criminal Procedure, 18 U.S. C.A., provides that "After conviction of an offense not punishable by death or by life imprisonment, the defendant may be placed on probation as provided by law."

On February 11, 1949, Melvin Herman Phillips (who will be referred to as defendant), after waiving indictment, entered a plea of guilty to an information which contained five separate counts, each of which charged him with a violation of the National Motor Vehicle Theft Act, 18 U.S.C.A. § 2312. On the same day, the District Court, in conformity with Rule 32(b) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., and § 4082, Title 18 U.S.C.A., entered a judgment and order, reading in pertinent part as follows:

"It Is Adjudged that the defendant is guilty as charged and convicted.

"It Is Adjudged that the defendant is hereby committed to the custody of the Attorney General or his authorized representative for imprisonment for a period of one (1) year and one (1) day on each of counts 1, 3 and 4, and for a period of three (3) years on each of counts 2 and 5, the sentences imposed to be served consecutively, for a total of nine (9) years and three (3) days; without costs.

"It Is Ordered that the Clerk deliver a certified copy of this judgment and commitment to the United States Marshal or other qualified officer and that the copy serve as the commitment of the defendant."

Pursuant to this judgment, the defendant was delivered into executive custody, and commenced the service of the sentence imposed upon him.

On April 22, 1953, the defendant filed in the District Court a "Motion for Modification and Suspending Execution of Sentences," in which he asserted that he had served the periods of imprisonment, which he referred to as "sentences", based on counts 1 and 2, and was serving "the one year and one day sentence imposed on count 3, which will expire on February 17, 1954"; that subsequent thereto he will be required to serve one year and one day on count 4 and three years on count 5; that he has a most creditable institutional record; that the Parole Board had denied him parole, although the United States Attorney and the District Court had recommended that he be paroled; that it has been the practice of various District Courts during the period of service of the first of several consecutive "sentences" imposed under the separate counts of the same indictment or information, to suspend the further execution of the judgment and to grant probation as to periods of imprisonment which have not yet been served; and that the District Court has jurisdiction to grant the defendant probation with respect to the periods of imprisonment based on counts 4 and 5 of the information. The defendant asked the court to suspend the execution of the "sentences" on counts 4 and 5 of the information for a period of five years from and after the "defendant's release on the sentence imposed upon Count 3, which he is presently serving."

The District Court denied the motion on the ground that it was without power to grant the motion, in view of the decision of the Supreme Court in the cases of United States v. Murray, and Cook v. United States, 275 U.S. 347, 48 S.Ct. 146, 72 L.Ed. 309, holding that, under the Probation Act of March 4, 1925, 43 Stat. 1259, Title 18 U.S.C. (1940 Ed.) § 724,² a District Court could not place a defendant on probation after he had commenced to serve his sentence, and in view of Rule 35 of the Federal Rules of Criminal Procedure, 18 U.S.C.A.³

The District Court, however, granted the application of the defendant for leave to appeal in forma pauperis from the denial of his motion, stating that it would be helpful to have a ruling regarding the power of a District Court to suspend, for purposes of probation, the execution of unserved periods of a sentence under circumstances such as are here involved.

This Court appointed Mr. John P. Baird, Jr., of the St. Louis, Missouri, bar, to represent the defendant on appeal. We are indebted to Mr. Baird for an excellent brief and argument in support of the defendant's contention that, notwithstanding the partial execution of the judgment and sentence imposed on him, the District Court still has power to grant probation as to unserved periods of imprisonment.

In dealing with the problem involved in this case, it must be kept in mind that the law by virtue of which the District Courts have power to suspend the imposition or execution of sentences and place defendants on probation is no longer an isolated statute but a part of a comprehensive and orderly revision of all of the statutes relating to federal crimes and criminal procedure. The Revision of Title 18 of the United States Code included not only the law relating to probation but also the law pertaining to executive procedures for the relief or release of federal prisoners, including good time allowances and parole. This carefully prepared and complete revision of Title 18 of the United States Code was enacted by Congress on June 25, 1948. 62 Stat. 683-868. Those who drafted the revision⁴ and those who enacted it certainly intended that the functions of the judiciary under Chapter 231 of Title 18 U.S.C., 62 Stat. 841, relating to probation, should not overlap or conflict with the functions of the Attorney General and the Director of the Bureau of Prisons with respect to the custody of federal prisoners and good time allowances under Chapter 309, Title 18 U.S.C., 62 Stat. 853, or the functions of the Board of Parole under Chapter 311, Title 18 U.S.C., 62 Stat. 854, or the powers of the President relative to executive clemency.

It will be noted that § 4161, Title 18 U.S.C.A., which provides the number of days of good time a prisoner shall be entitled to be credited with each month, bases the computation upon the total term of imprisonment to be served. The last paragraph of the section provides:

"When two or more consecutive sentences are to be served, the aggregate of the several sentences shall be the basis upon which the deduction good time allowance shall be computed."

It will also be noted that § 4202, Title 18 U.S.C.A., which is part of the chapter of Title 18 relating to parole, provides as follows:

"A Federal prisoner, other than a juvenile delinquent or a committed youth offender, wherever confined and serving a definite term or terms of over one hundred and eighty days, whose record shows that he has observed the rules of the institution in which he is confined may be released on parole after serving one-third of such term or terms or after serving fifteen years of a life sentence or of a sentence of over forty-five years."

The instant case indicates why it is undesirable that the courts should have power to interfere with the executive function⁵ of carrying final judgments in criminal cases into effect. The defendant states in his motion that, despite recommendations of the United States Attorney and the District Court, he has been denied parole by the Board of Parole. Assuming that this statement is correct, he is now, in effect, asking the District Court, which has had neither custody, control nor supervision of him since he was sentenced, to override the determination of the Board of Parole, with its superior opportunity to watch his conduct and appraise his character, by suspending his sentence as to unserved periods of imprisonment, placing him on probation, and commanding the prison authorities to release him.

We are convinced that Congress, when it passed the Probation Act of March 4, 1925, 43 Stat. 1259, 18 U.S.C. (1940 Ed.) § 724, and when it enacted Chapter 231 of Title 18 U.S.C., did not intend to empower a District Court to suspend the execution of any part of a sentence of imprisonment imposed by a final judgment in a criminal case, after the defendant had entered upon the execution of the sentence.

So far as we are advised, there have been, since the advent of federal probation, three reported cases supporting the view that a District Court may suspend the execution of the unserved parts of a cumulative sentence, Brosius v. Botkin, 72 App.D.C. 279, 114 F.2d 22, 23, which a prisoner has commenced to serve. In 1926 the District Court of the District of Arizona, in United States v. Chafina, 14 F.2d 622, held that the Probation Act authorized the suspension of the unexpired portion of a general or single sentence of imprisonment which a prisoner was serving. This case was referred to but overruled in the Murray and Cook cases, 275 U.S. 347, 358, 48 S.Ct. 146, 72 L.Ed. 309. In 1930 the Circuit Court of Appeals of the Tenth Circuit in White v. Steigleder, 37 F.2d 858, expressed the view that a District Court could grant probation to a prisoner with respect to the completely unserved portions of a cumulative sentence, although the main question in that case was whether a defendant...