United States v. Maria Delia Estrada De Castillo

549 F.2d 583

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 15, 1977
• Docket: 75-2914
• Status: Published

Opinions

RUSSELL E. SMITH, District Judge.

The defendant was convicted of selling and disposing of a counterfeit alien registration receipt card in violation of 18 U.S.C. § 1426(b), was sentenced to two years’ imprisonment, and was fined $1500.00. The fine imposed was a committed fine.

On this appeal the defendant urges that the evidence was insufficient to support the conviction. We find it sufficient.

Defendant urges that her fifth amendment rights were violated when the United States Attorney argued to the jury that certain evidence was uncontradicted. The prosecutor may not comment on the defendant’s failure to take the witness stand (Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)), but, except under unusual circumstances, a prosecutor may argue that certain evidence is uncontradicted. United States v. Noah, 475 F.2d 688 (9th Cir. 1973).¹ Here as in Noah the disputed comments were directed to the lack of contradictory evidence and contained no explicit reference to the failure of the defendant to testify. The court did instruct the jury that it might not draw any inference of guilt from defendant’s failure to' testify. Under these circumstances we find no error.

Defendant contends that she is indigent and that the imposition of a committed fine constitutes a denial of equal protection, cruel and unusual punishment, and involuntary servitude. If, under the sentence imposed, the defendant, because of her financial inability to pay a fine, will be imprisoned longer than someone who had the ability to pay the fine, then the sentence is invalid (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. 2018, 26 L.Ed.2d 586 (1970)), and this is true whether the result of longer imprisonment is brought about by the operation of 18 U.S.C. § 3569² or by the fact that the nonpayment of a committed fine would adversely affect the defendant’s parole status. In light of Tate v. Short, supra, and Williams v. Illinois, supra, 18 U.S.C. § 3569, to the extent that it would confine a defendant for 30 days beyond the normal release date for nonpayment of the fine, is unconstitutional. If, by reason of administrative regulation, parole would be denied or delayed because of nonpayment of a committed fine, then such administrative regulation would be invalid.

The Bureau of Prisons has formally recognized the unconstitutionality of 18 U.S.C. § 3569.³ 28 C.F.R. § 2.32 provides that indigents who have assets in excess of the amount reasonably necessary for the support of the indigent and his family shall be released upon the payment of that excess. By a joint policy statement⁴ the Bureau of Prisons and the Board of Parole have provided a procedure whereby, at a time prior to the date upon which a prisoner is being considered for parole, the indigent may make his indigent status known. If he is then in fact indigent, he is released at the time the parole is granted.

The defendant here will not be held for a period beyond her normal release date if the regulations and policies governing the Board of Parole and Bureau of Prisons are followed. Any prisoner may be held unlawfully beyond the time when as a matter of law he is entitled to be released, but the possibility of a future illegal action on the part of prison authorities does not make a sentence illegal.

1 . In United States v, Noah, the court said at 695-96:

“ ‘[W]here the prosecutor confines himself to arguing the strength of his case by stressing the credibility and lack of contradiction of his witnesses, we will not be astute to find in .this a veiled comment on the defendant’s failure to testify even if in practical fact, although not in theory, no one else could controvert them.’ ” (Citing cases.)

2 . Under 18 U.S.C. § 3569 an indigent unable to pay a fine may serve his release from a committed fine only after he has served 30 days solely for the nonpayment of the fine.

3 . Policy Statement 2101.2A, June 25, 1971.

4 . Policy Statement 7500.44/40100.20, March 19, 1973.