U.S. v. Huss, 1248

• Citation: 520 F.2d 598
• Decision Date: 25 July 1975
• Docket Number: D,No. 1248,1248
• Parties: UNITED STATES of America, Appellee, v. Richard HUSS and Jeffrey Smilow, Appellants. ocket 75-1192.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 598

520 F.2d 598

UNITED STATES of America, Appellee, v. Richard HUSS and Jeffrey Smilow, Appellants.

No. 1248, Docket 75-1192.

United States Court of Appeals,

Second Circuit.

Argued June 17, 1975.

Decided July 25, 1975.

Paul J. Curran, U. S. Atty. for the Southern District of New York, Jerry L. Siegel and Steven J. Glassman, Asst. U. S. Attys., New York City, on the brief, for appellee, United States of America.

Nathan Lewin, Miller, Cassidy, Larroca & Lewin, Washington, D. C., Dennis Rapps, Brooklyn, N. Y., on the brief, for appellants Richard Huss and Jeffrey Smilow.

Before GIBBONS, ^* GURFEIN and MESKILL, Circuit Judges.

GIBBONS, Circuit Judge:

The defendants, Richard Huss and Jeffrey Smilow, appeal from an order dated May 5, 1975 denying their application for an order directing the Federal Bureau of Prisons to provide them with meals meeting the Orthodox Jewish kosher dietary laws during their incarceration pursuant to a judgment of sentence. The application was made to the sentencing judge in the district court by a written motion in the above-entitled criminal case. The district court, without considering whether here was a jurisdictional predicate for doing so, held an evidentiary hearing and rejected the defendants' claims on the merits. Because we find that the district court lacked jurisdiction over the subject matter of the application, or personal jurisdiction over an appropriate civil respondent, we vacate the order appealed from without prejudice to its renewal in an appropriate forum.

I The Procedural Posture

Following the January 26, 1972 fire bombing of the Manhattan offices of Columbia Artists Management, Inc. and Hurok Concerts, Inc. three persons were indicted for violation of 18 U.S.C. §§ 844(i) and 2. Defendant Jeffrey Smilow, who was then a 17-year old high school student, was directed to testify before the grand jury in June, 1972 under a grant of use immunity made pursuant to 18 U.S.C. § 6002. Smilow refused to testify despite a district court order on the ground that the Jewish religion prohibited him from being an informer. He was held in civil contempt pursuant to 28 U.S.C. § 1826(a) and that judgment was affirmed by this court on July 20, 1972. ¹ On October 24, 1972 that judgment was vacated by the Supreme Court because of certain representations made by the Solicitor General with respect to warrantless wiretap interceptions. ² This court then remanded for a hearing to determine whether or not Smilow had been overheard in any wiretaps and whether questions asked before the grand jury were the fruits of the alleged illegal government activity. ³ On remand the government dismissed the original civil contempt proceeding.

In June 1973 Huss and Smilow were called as witnesses to testify at the trial of those charged with the fire bombings. Both relied upon their religious scruples in refusing to testify despite grants of use immunity. They were adjudged in civil contempt, and that judgment was affirmed by this court. ⁴ Despite that holding, which resulted in their short-term commitment to the Federal Detention Center in New York City, they continued to refuse to testify. Thereafter, they were charged with criminal contempt, 18 U.S.C. § 401 and were found guilty in a jury trial on July 16, 1974. On July 31, 1974 they were sentenced to imprisonment for one year. After a brief incarceration they remained free on bail pending appeal. On November 27, 1974 their convictions were affirmed by this court without opinion. Its mandate was issued on February 21, 1975.

By an arrangement with the United States Attorney to which the court, so far as appears of record, was not a party, Huss and Smilow were scheduled to surrender to commence the service of their sentences on March 10, 1975. (Tr. March 6, 1975, at 9.) See 18 U.S.C. § 3568. On March 6, 1975 their attorney appeared before the district court in the presence of an Assistant United States Attorney and presented an informal application ⁵ for an order that Huss and Smilow be permitted to have kosher food during the period of their incarceration, or alternatively that their surrender be postponed until after Passover, which was scheduled to begin on March 20th. The court directed that they surrender on April 4, 1975, following the completion of Passover and indicated that if between March 6, 1975 and April 4, 1975 the defendants wanted to come before the court with a written application with respect to kosher food during their confinement it would be considered. (Tr. March 6, 1975, at 20.)

On Wednesday, March 27, 1975 the defendants filed a motion returnable on Tuesday, April 1st, which resulted in the order appealed from. Neither the moving papers nor the memorandum of law filed in support of the motion made any reference to the jurisdiction of the district court to consider the application. On April 1, 1975 the court heard the testimony of three witnesses; however, other pressing matters on its docket necessitated a continuance until April 16, 1975. Meanwhile, on April 4th, Huss and Smilow surrendered to commence serving their sentences and were temporarily placed in the Federal Detention Center in Manhattan. While they were confined there, the court took testimony on three more days during April, 1975 to complete the hearing.

On May 5, 1975 the district court filed an opinion and order denying defendants' applications. The court rejected Huss' application on the ground that he was not, in fact, a strict observer of the kosher dietary laws. As to Smilow's application, the court held that neither the first nor the eighth amendment required the Bureau of Prisons to go beyond its official policy of "limited accommodation" with religious dietary laws.

The court's opinion makes no reference to the source of its jurisdiction to entertain the applications. On March 6, 1975, it will be recalled, the court agreed to postpone the defendants' surrender date until April 4, 1975, the day after the completion of Passover. Thus, on March 27, 1975 when the moving papers were filed below, the defendants were free on bail. When the order appealed from was entered on May 12, 1975, the defendants were still in custody at the Federal Detention Center in Manhattan. However, on May 22, 1975, they were transferred to the Federal Youth Correctional Facility at Ashland, Kentucky where they are currently incarcerated.

Just two days after the district court denied defendants' applications, Judge Weinstein of the Eastern District of New York, in a similar case, came to an opposite conclusion on its merits. ⁶ The next day, counsel for Smilow requested a temporary interim order for the provision of kosher food. Judge Griesa denied the motion. ⁷ (App. at 543a). At the same time the government orally moved to have the district court amend or modify its May 5th opinion. In papers filed on May 9, 1975, the government made a motion, returnable on May 12th,

"for an order pursuant to Rule 59(a) and (e) of the Federal Rules of Civil Procedure amending, or modifying the opinion in this case, or granting a new trial, in order that upon reconsideration of its opinion, the court may make such additional findings of fact and conclusions of law as it deems necessary." (App. at 565a).

The government's memorandum in support of this motion suggests that the district court's May 5, 1975 opinion does not sufficiently articulate the proper burden of persuasion or scope of review. On May 14, 1975 the district court filed a supplemental opinion in which it adhered to its May 5, 1975 holdings. However, neither the government's May 9, 1975 memorandum nor the court's supplemental opinion mention the source of the district court's jurisdiction. And while the government's motion refers to Rule 59(a) and (e) of the Federal Rules of Civil Procedure, both it and the court's supplemental opinion are captioned in the respective criminal cases of "United States v. Smilow, 73 Cr.Misc. 24," and "United States v. Huss, 73 Cr.Misc. 25." Presumably, however, the government at one point considered the defendants' application as civil in nature rather than as a part of the criminal proceedings since their May 9th motion, quoted above, was made pursuant to the civil rules of procedure.

II The Suggested Bases of Jurisdiction

As mentioned earlier, an application made to this court for injunctive relief pending appeal, Rule 8, Fed.R.App.P., was denied. ⁸ In connection with that application, the defendants and the United States Attorney were asked to brief the question of district court jurisdiction. Thus we have had the benefit of briefing and argument on several alternative bases for that jurisdiction urged by the defendants and discussed by the government. Mindful of the statutory provision that "(d)efective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts", 28 U.S.C. § 1653, we have considered each of the suggested bases of jurisdiction urged upon us with a generous eye and have found all lacking.

(A) Inherent Power to Control Place or Conditions of Confinement

Defendants urge that a sentencing court has the inherent power to control the place and conditions of confinement. If such inherent power existed, it would have been exercised when the district court originally imposed sentence, some eight months before the filing of the instant application. Such supposed authority would have been employed well before this court reviewed any judgment of sentence. However, the statutory scheme which forms the basis of federal sentencing and confinement authority permits a trial judge no such power.

A federal sentence of imprisonment commences running when the defendant is received in the custody of the agents of the Attorney General. 18 U.S.C. § 3568. The limit of the court's custodial sentencing power is to commit the defendant "to the custody of the Attorney General of the United States, who shall designate the place of confinement where the sentence...