United States v. Gaines, 414
| Decision Date | 07 October 1971 |
| Docket Number | No. 414,Docket 35361.,414 |
| Parties | UNITED STATES of America, Appellee, v. Bernard GAINES, Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
Whitney North Seymour, Jr., U. S. Atty., S. D. N. Y., Robert P. Walton and Daniel J. Sullivan, Asst. U. S. Attys., for appellee.
Michael Meltsner, Jack Greenberg and Ann Wagner, New York City, for appellant.
Before LUMBARD, MOORE and SMITH, Circuit Judges.
Bernard Gaines was convicted of a federal narcotics violation on May 16, 1968. He was released on bail pending sentencing. On June 1, 1968, he was arrested by New York State authorities on charges of robbery and murder and held without bail. On June 20, 1968, he was brought before the federal court pursuant to a writ of habeas corpus ad prosequendum and sentenced to two years on the narcotics charge. He was then returned to the custody of the New York authorities who proceeded with the preliminaries to prosecution on the murder and robbery charges. On December 5, 1969, bail was set for the first time in the amount of $7,500. Gaines' counsel had made no previous application for bail because he had believed that Gaines' indigency would preclude his posting bail in any amount which might conceivably be set in light of the seriousness of the pending charges. (Appendix to Gaines' brief in this court at 25a.) Gaines was unable to post bail in this amount and he remained confined by the New York authorities. On April 1, 1970, Gaines was paroled from state custody and transferred to begin service of his federal sentence.1 The state indictment against him was dismissed on the basis of newly discovered evidence which led other persons to be charged for the crimes for which Gaines had been held.
Gaines then made a 28 U.S.C. § 2255 motion to correct his sentence and credit him with the time spent in state custody after bail had been set. The district court denied the motion and we affirmed, 436 F.2d 1069 (1971), reasoning that the wording of the statute, 18 U.S.C. § 3568, did not allow such credit. The Supreme Court vacated our judgment by order of June 1, 1971, 402 U.S. 1006, 91 S.Ct. 2195, 29 L.Ed.2d 428, and remanded the case for "reconsideration in light of position asserted by the Solicitor General."
After such reconsideration, we are now of the view that Gaines should be credited with the time spent in custody after the state court had set bail. Gaines was unable to enter into federal custody after bail was set in ...
To continue reading
Request your trial
-
Abbit v. Bernier
...which one wealthier would have been able to avoid. Paroutian v. United States, 471 F.2d 289 (2d Cir. 1972); United States v. Gaines, 449 F.2d 143 (2d Cir. 1971) (per curiam). And the Fifth Circuit has invoked the Tate-Williams doctrine to strike down the "$30 or 30 days" type sentence.8 Fra......
- United States v. Schoeberlein
-
UNITED STATES PAROLE COMMISSION v. NOBLE, 96-SP-578
...could not afford to post bail could result in a court order granting such credit on equal protection grounds. See United States v. Gaines, 449 F.2d 143, 144 (2d Cir. 1971) (citing Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971); Williams v. Illinois, 399 U.S. 235, 90 S.Ct. ......
-
Pugh v. Rainwater, 72-1223
...because he was unable to post bail." United States v. Scarpellino, 431 F.2d 475, 479-80 (8th Cir. 1970). In United States v. Gaines, 449 F.2d 143 (2d Cir. 1971), on facts more analogous to the instant case, the Second Circuit found an equal protection violation. See note 14 infra. Also, the......