U.S. v. Janiec

• Decision Date: 24 February 1975
• Docket Number: No. 74-1282,Nos. 74-1281,74-1282,No. 74-1281,74-1281,s. 74-1281
• Citation: 505 F.2d 983
• Parties: UNITED STATES of America v. Lawrence JANIEC, Appellant inet al. Appeal of Samuel LAYTHAM, in
• Court: U.S. Court of Appeals — Third Circuit

Page 983

505 F.2d 983

UNITED STATES of America v. Lawrence JANIEC, Appellant in No. 74-1281 et al. Appeal of Samuel LAYTHAM, in No. 74-1282.

Nos. 74-1281, 74-1282.

United States Court of Appeals, Third Circuit.

Submitted Aug. 22, 1974.

Decided Oct. 30, 1974, Certiorari Denied Feb. 24, 1975, See

95 S.Ct. 1331,1332.

Joel D. Lowinger, Millburn, N.J., for appellant Janiec.

Thomas F. Campion, Shanley & Fisher, Newark, N.J. (Joseph L. Cook, Newark, N.J., of counsel), for appeallant Laytham.

Jonathan L. Goldstein, U.S. Atty., John J. Barry, Richard S. Zackin, Asst. U.S. Attys., Newark, N.J., for appellee.

Before KALODNER, VAN DUSEN and WEIS, Circuit Judges.

OPINION OF THE COURT

Van DUSEN, Circuit Judge.

Movants-appellants challenge a February 28, 1974, district court order (a) denying their motions for reduction of their sentences, and (b) further amending sentences as previously amended on July 26, 1973, by deleting that portion of such July 26 order which provided that movants serve their federal sentences in state custody.

Movants were originally sentenced on July 30, 1971, to confinement for terms of 20 years each, after entering guilty pleas to Count I of an indictment (Criminal No. 106-70, D. N.J.) charging them with bank robbery in violation of 18 U.S.C. 2113(a). While appeals filed by movants challenging these sentences were pending, they were sentenced by the New Jersey state court to prison terms of 13-19 years, following guilty pleas, for the same bank robbery and related crimes. ¹ Such state prison terms were directed to be concurrent with the July 30, 1971, federal sentences. On June 23, 1972, this court reversed a September 21, 1971, district court order denying motions by movants (a) for reduction of sentence pursuant to F.R.Crim.P. 35 and (b) for disclosure of presentence reports, and directed that the case be 'remanded for resentencing.' See United States v. Janiec, 464 F.2d 126 (3d Cir. 1972). On September 15, 1972, the district court vacated the sentences of July 30, 1971 (10a, Laytham Appendix), and sentenced each movant to the custody of the Attorney General for 12 years, with the provision that each of them should be eligible for parole at any time determined by the U.S. Board of Parole pursuant to 18 U.S.C. 4208(a)(2). At the end of the sentencing proceeding, the sentencing judge made these two statements with reference to movants' requests to be imprisoned in a New Jersey institution near their families:

A. As to defendant Janiec (16a of Laytham Appendix):

'Now, under this proviso, Mr. Lowinger (counsel for Janiec), after you have taken the necessary steps in the State Court, find out what that Judge is going to do with that concurrent sentence imposed, being imposed, and then this Court will seriously consider making this sentence a suspended sentence in light of the State sentence.'

B. As to defendant Laytham (p. 7 of 9/15/72 transcript in Criminal No. 106-70, D. N.J.):

'. . . Mr. Laytham: You contact the state authorities and find out, what, if anything, thet are going to do about that state matter, because this Court will seriously consider giving this man a concurrent sentence pursuant to the proper notice of motion filed under Rule 35.'

The court also made clear at that sentencing proceeding that counsel for movants could make application for resentencing under F.R.CrimP. 35 within 120 days (17a, Laytham Appendix).

On January 9 and 10, 1973, motions for reduction of sentence under F.R.Crim.P. 35 by Janiec and Laytham, ² respectively, were filed. On July 27, 1973, the district court filed orders dated July 26, 1973, providing, inter alia, as follows ³ (Janiec Appendix, 23-24):

'The matter having been opened to the Court . . . for an Order pursuant to Rule 35 . . . and it appearing that the above named defendant are both presently incarcerated under sentence of this Court and are at the same time serving a concurrent sentence pursuant to the Order of the Honorable Chester A. Weidenburner, Judge of the Union County Court of the State of New Jersey, and it being deemed in the interest of all parties that the defendants above named serve their sentence pursuant to the sentence of the Honorable Chester A. Weidenburner and the Court having considered the matter:

'It is on this 26th day of July, 1973, Ordered That:

'A. The sentences heretofore entered in the above captioned matter are hereby vacated and the defendants are hereby resentenced to a term of twelve (12) years to be served concurrently with that imposed by the Honorable Chester A. Weidenburner, Judge of the Union County Court of the State of New Jersey, under the care and custody of the proper officials of the New Jersey State Department of Institutions and Agencies, credit to be given for the time already served, and subject to the rules and regulations of the New Jersey State Department of Institutions and Agencies, Division of Correction and Parole; . . ..'

On August 8, 1973, the Acting Warden at the United States Penitentiary, Atlanta, Georgia, wrote the Assistant United States Attorney for the District of New Jersey, inter alia, as follows (DJA-Defendant Janiec Appendix-26):

'To comply with the recommendations of Honorable Lawrence A. Whipple, Judge, United States District Court for the District of New Jersey, order in Criminal Case No. 106-70, issued July 26, 1973, in the case of Lawrence Janiec, we have endeavored to transfer Janiec to the State of New Jersey, Department of Institutions and Agencies. '. . . they do not wish to accept Janiec in their system for concurrent service of sentence.'

Apparently because the New Jersey authorities refused to take custody of movants, movant Janiec filed on September 7, 1973, a notice of motion for reduction of the July 26, 1973, sentence, denominated as Motion for Order Amending Order Vacating Sentence (Document 83 in Criminal No. 106-70, D. N.J.). This notice stated that the application would be presented to the court on October 8, 1973. The docket entries indicate that the hearing on this motion was held on October 9, 1973, but no transcript of this hearing appears in either the district court file or the appendices. The docket entries indicate that the motion was denied at the time of the October 9 hearing. ⁴ Apparently at that hearing counsel for defendant Laytham orally made an application for suspension of sentence, which was denied on October 9. ⁵

On February 28, 1974, the district court denied the September and October 1973 applications of movants for reduction of their sentences in a formal order, which deleted the portions of its July 26, 1973, sentencing order making the sentence concurrent with the state sentence and providing for the transfer of movants from federal to state custody. The deletions included these words, appearing above at page 5:

'under the care and custody of the proper officials of the New Jersey State Department of Institutions and Agencies, credit to be given for the time already served, and subject to the rules and regulations of the New Jersey State Department of Institutions and Agencies, Division of Correction and Parole;'

Movants filed timely appeals from the above February 28, 1974 order.

I.

The district court had jurisdiction to modify the September 15, 1972, sentences in July 1973 in view of the motions filed in early January 1973 to reduce such sentences. See note 3 above. Similarly, the court had jurisdiction to modify the July 1973 sentences in February 1974, in view of the motions made by movants in September and October 1973. These motions were basically applicatons to suspend the sentences of imprisonment and, as such, were motions to reduce sentence under F.R.Crim.P. 35.

Also, we reject the contention of movants that the July 1973 sentence was void because the court had no power to make it concurrent with the March 1972 state sentences. Insofar as the concurrency language of a sentence attempts to prescribe the place of confinement, it is surplusage and ineffective, as indicated under II below. We agree with the reasoning of Joslin v. Moseley, 420 F.2d 1204, 1205 (10th Cir. 1970), where the court said that use by a federal district court in a federal sentence of concurrency language with a state sentence did not make the federal sentence void. See also United States v. Herb, 436 F.2d 566 (6th Cir. 1971); Hash v. Henderson, 385 F.2d 475 (8th Cir. 1967); Montos v. United States, 261 F.2d 39 (7th Cir. 1958). Cf. Ledesma v. United States, 445 F.2d 1323 (5th Cir. 1971). Such language was not necessary to define the term of the sentence (12 years). 18 U.S.C. 3568 makes clear that such term started to run in 1971, when movants were 'received at the penitentiary, reformatory or jail for service of such sentence . . ..' ^5A

II.

Chapter 305 of Title 18 provides that the Attorney General of the United States 'shall designate the place of confinement where the (federal) sentence shall be served.' 18 U.S.C. 4082(a). ⁶ Although the Attorney General may 'designate as a place of confinement any available, suitable, and appropriate institution or facility, whether maintained by the Federal Government or otherwise,' 18 U.S.C. 4082(b), a federal court has no authority to designate 'a place of confinement.' For this reason, that portion of the July 26, 1973, sentences which provided that the federal sentence was to be served 'under the care and custody of the proper officials of the New Jersey State Department of Institutions and Agencies' was an illegal sentence beyond the power of a federal court. Furthermore, 18 U.S.C. 4085(a) provides that when 'any federal prisoner has been indicted . . . or convicted of a felony in any court of record of any State . . . the Attorney General shall, if he finds it in the public interest to do so, upon the request of the Governor . . . cause such person . . . to be transferred to a penal or correctional institution within such State . . ..' The record ⁷ makes clear that neither the...