Morton Sobell v. United States

407 F.2d 180, 1969 U.S. App. LEXIS 9338

• Court: Court of Appeals for the Second Circuit
• Decided: January 14, 1969
• Docket: 314, Docket 33029
• Status: Published

Opinions

HAYS, Circuit Judge:

Appellant, Morton Sobell, was arrested on August 18, 1950, and charged with violating the Espionage Act.¹ Bail was set at $100,000. Sobell did not post bail and remained in custody until, following his indictment and subsequent conviction, he was sentenced on April 5, 1951, to imprisonment for 30 years, then the statutory maximum term for the offense of which he was convicted.

This action was brought in the United States District Court for the Southern District of New York pursuant to 28 U.S.C. § 2255 (1964), to correct the 30-year sentence of imprisonment by crediting Sobell with the time served in custody for failure to post bail between the date of his arrest and the date sentence was imposed — a period of approximately 7% months. The district court denied the relief sought. We reverse.

Appellant advances three reasons for crediting him with the time spent in presentence custody: he is entitled to credit pursuant to 18 U.S.C. § 3568 (1964); it was the intent of the sentencing court to give him credit; and the denial of credit violates due process and equal protection by imposing on one financially unable to post bail an additional term of imprisonment. We agree that Section 3568 is properly to be construed as requiring that credit be granted ; we do not consider appellant’s other contentions.

Section 3568 prescribes the method of computing the term of federal sentences of imprisonment. Until 1960 it did not on its face require that any prisoner be given credit for presentence time spent in custody.² In 1960 Congress, incorrectly assuming that the courts gave defendants such credit as a matter of right except in cases involving minimum mandatory sentences, in which the courts thought they lacked the authority to give such credit,³ sought to eliminate the supposed disparity of treatment by amending Section 3568 to require that federal prisoners be given credit toward service of their sentences for presentence time spent in custody for failure to post bail where the offense for which the sentence was imposed required the imposition of a minimum mandatory sentence.⁴

In 1966 the United States Court of Appeals for the District of Columbia Circuit considered the effect of the 1960 amendment on the sentence of a prisoner who, as is the situation with Sobell, was sentenced to the statutory maximum term for an offense which did not require the imposition of a minimum mandatory sentence and who was not given credit for presentenee time spent in custody. Stapf v. United States, 125 U.S.App.D.C. 100, 367 F.2d 326 (1966). The court believed that the amendment presented an equal protection problem, since it would be irrational to require that credit be afforded in minimum mandatory sentence cases, which generally involve the more serious crimes, while not requiring it in lesser-offense cases.

Stapf has been followed in Dunn v. United States, 376 F.2d 191 (4th Cir. 1967); United States v. Smith, 379 F.2d 628 (7th Cir. 1967); Bryans v. Blackwell, 387 F.2d 764 (5th Cir. 1967); and Lee v. United States, 400 F.2d 185 (9th Cir. 1968). As a result of those cases the Bureau of Prisons promulgated regulations requiring that all prisoners sentenced to maximum terms be given credit for presentence time spent in custody. However, because each of the cases involved prisoners who had been convicted after the effective date of the 1960 amendment, the Bureau of Prisons’ regulations were limited to those prisoners who were sentenced between October 2, 1960 (the effective date of the 1960 amendment) and September 19,1966 (the effective date of the Bail Reform Act, 18 U.S.C. §§ 3041, 3141-43, 3146-52, 3568 (Supp. Ill 1965-67)).⁵

Sobell was sentenced before September 19, 1960. The issue before us is whether he must be afforded credit for the presentence time that he spent in custody. We think he must.

The 1960 amendment makes sense only if we assume that the courts did grant credit except where a minimum mandatory sentence was required. Thus the rationale of Stapf, which upheld the statute against a constitutional challenge by construing it to avoid its seeming irrationality, would require that credit be afforded in pre- as well as post-1960 cases. As the court said in Stapf:

“This is not a case * * * where Congress removed part of an evil but disclaimed action on the rest. This is a case, rather, where Congress acted as to the only evil that required legislative action, and assumed that in all other instances equivalent relief would be provided by the courts. In such context the court acts unlawfully when it effectuates rather than avoids an arbitrary classification.” 367 F.2d at 329-30 (footnote omitted).

That credit should be afforded for sentences imposed before the effective date of the 1960 amendment is also supported by the policy adopted in the Bail Reform Act of 1966 ⁶ which recognizes that for purposes of serving a sentence all time spent in jail should be credited.⁷

To the extent that Stapf and the cases that followed it limit relief to persons sentenced after the effective date of the 1960 amendment, we disagree.^{7 8}

We are not deterred in our decision to follow Stapf by the remark in United States ex rel. Sacco v. Kenton, 386 F.2d 143, 144 (2d Cir. 1967), that this court “has never adopted the holding in Stapf.” The court in Sacco noted that its discussion of Stapf was “purely academic and of no real consequence.” Id. at 145.

The order of the district court is reversed. Since we are informed by the United States Attorney that crediting appellant with his presentence custody time would entitle him to immediate conditional release, his release from custody is ordered forthwith, subject to the provisions of law governing the conditional release of prisoners.

1 . Act of June 15, 1917, ch. 30, title I, § 2, 40 Stat. 217, 218-19, as amended, 18 U.S.C. § 794 (1964).

2 . Ҥ 3568. Effective Date of Sentence

“The sentence of imprisonment of any person convicted of an offense in a court of the United States shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of said sentence.

“If any such person shall be committed to a jail or other place of detention to await his transportation to the place at which his sentence is to be served, his sentence shall commence to run from the date on which he is received at such jail or other place of detention.

“No sentence shall prescribe any other method of computing the term.” Act of June 25, 1948, ch. 645, § 3568, 62 Stat. 683, 838.

See also Byers v. United States, 175 F.2d 654 (10th Cir. 1949), cert. denied sub nom. Byers v. Hunter, 340 U.S. 949, 71 S.Ct. 528, 95 L.Ed. 684 (1951).

3 . See S.Rep. No. 1696; 86th Cong., 2d Sess. (1960); II.R.Rep. No. 2058, 86th Cong., 2d Sess. (1960), reprinted in 2 [1960] U.S.Code Cong. & Admin.News 3288.

4 . “Provided, That the Attorney General shall give any [person convicted of an offense in a court of the United States] credit toward service of his sentence for any days spent in custody prior to the imposition of sentence by the sentencing court for want of bail set for the offense under which sentence was imposed where the statute requires the imposition of a minimum mandatory sentence.” Act of September 2, 1960, Pub.L. No. 86-691, 74 Stat. 738.

5 . Jail-Time Credit Under Court Decisions, Bureau of Prisons Policy Statement 7600.49A, February 9, 1968.

6 . Pub.L. No. 89 — 465, 80 Stat. 214, codified in 18 U.S.C. §§ 3041, 3141-43, 3146-52, 3568 (Supp. Ill 1965-67).

7 . We recognize that Section 6 of the Bail Reform Act provides that newly amended Section 3568 is to be applicable only to sentences imposed on or after the effective date, and we are not ruling that the 1966 Act is to be applied retroactively. Rather, we reach the result of giving credit in pre-1960 sentences by considering the policies considered by Congress in enacting the Bail Reform Act.

8 . We accept and adopt the rule laid down in Stapf that: