United States v. Kipp

• Decision Date: 17 April 1956
• Docket Number: No. 11614.,11614.
• Citation: 232 F.2d 147
• Parties: UNITED STATES of America ex rel. Marvin MOSES, Petitioner Appellee, v. William W. KIPP, Sr., United States Marshal, Respondent-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

232 F.2d 147 (1956)

UNITED STATES of America ex rel. Marvin MOSES, Petitioner Appellee, v. William W. KIPP, Sr., United States Marshal, Respondent-Appellant.

No. 11614.

United States Court of Appeals Seventh Circuit.

April 17, 1956.

Robert Tieken, U. S. Atty., Chicago, Ill., John Peter Lulinski, William T. Hart, Asst. U. S. Attys., Chicago, Ill., of counsel, for appellant.

Joseph E. Clayton, Jr., Chicago, Ill., for appellee.

Before DUFFY, Chief Judge, and SWAIM and SCHNACKENBERG, Circuit Judges.

DUFFY, Chief Judge.

This is an appeal from an order granting a petition for a writ of habeas corpus and discharging the Relator, Marvin Moses, from the custody of the United States Marshal.

On January 8, 1954, Marvin Moses was indicted in the United States District Court for the Northern District of Illinois, for the unlawful purchase and possession of 82.19 ounces of heroin in violation of Section 2553(a) Title 26, U. S.Code. After arrest Moses was released on bail. While on bail, Moses was convicted in a State court of Michigan of the offense of "attempted bribery", and was sentenced to the House of Correction at Plymouth, Michigan,¹ for a period of six months.

On October 11, 1955, pursuant to arrangements previously made between the Governments of the United States and of the State of Michigan, the United States filed a petition for writ of habeas corpus ad prosequendum in the United States District Court for the Northern District of Illinois. The petition prayed that the writ be directed to the Warden of the Detroit House of Correction, and that when the trial of Moses before the United States District Court shall have terminated that Moses be returned forthwith to the Detroit House of Correction under safe and secure conduct.

On the same day, the District Court issued the writ pursuant to Title 28 U.S. Code, § 2241(c) (5) which, among other things, provided: "* * * and at the termination of said trial before said Court, the aforesaid Marvin Moses be returned forthwith to the Detroit House of Correction at Plymouth, Michigan, under safe and secure conduct."

The writ was honored by the Michigan authorities and in due course Moses was surrendered by the Warden of the Detroit House of Correction to the United States Marshal after having served twenty-six days of his Michigan sentence. The result of his trial in the United States District Court was that he was convicted and sentenced to the custody of the Attorney General of the United States for a term of imprisonment of five years plus a fine of $100.00.

The Marshal was preparing to return Moses to the Michigan authorities when Moses filed a petition for a writ of habeas corpus. This petition alleged that Moses was detained in the custody of the Marshal who intended to return him to Michigan to serve the unexpired portion of the sentence of six months in the House of Correction. It further alleged that Moses had been released from custody by the Warden of the Detroit House of Correction without Moses' consent and over his protest, and that there had been a relinquishment of jurisdiction over him. On November 22, 1955, the District Court sustained the writ, filed Findings of Fact and Conclusions of Law and ordered that Moses be discharged from the custody of the Marshal.

The Findings of Fact recited that the indictment of Moses in the United States District Court antedated by several months his arrest and conviction in the Michigan court; that Moses did not consent to be turned over to the federal authorities; that Moses was advised he would not be given credit on his Michigan sentence for the time he was out of the custody of Michigan authorities; that no law-enforcement agent of Michigan accompanied Moses to the District Court in Illinois; that Moses was in the sole custody of the United States Marshal and was confined in the County Jail of Cook County, Illinois, pending his return to Michigan.

As a Conclusion of Law the Court held the Marshal was without authority in detaining Moses for the purpose of transporting him to Michigan to serve the unexpired sentence imposed on him in that State prior to serving the sentence imposed by the United States Court. In the order which the District Court entered, the Marshal was specifically directed not to return Moses to the custody of the Warden of the Detroit House of Correction. The Marshal appealed forthwith to this Court and we stayed the execution of the District Court's order pending appeal and review.

Moses argues here that at the time he was arrested for the Michigan offense he was under the jurisdiction of the United States District Court. He insists that during the entire period after his arrest while being held for trial, and when he was convicted and sentenced by the Circuit Court of Wayne County, Michigan, he was, as a matter of law, under the exclusive jurisdiction of the United States District Court for the Northern District of Illinois. He attaches significance to the fact that when he was released by the Warden of the House of Correction in Michigan, no prison officer of that State accompanied him to Illinois. He argues that such turning over of his custody amounted to a full surrender of jurisdiction over him.

In this country we all live in territory subject to two sovereignties, the Federal Government and the government of the respective States. Each has jurisdiction to enforce its laws in a common territory. The situation is fraught...