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In re Berman

December 18, 1935

IN RE BERMAN; BERMAN
v.
MCDONNELL ET AL.



Appeal from the District Court of the United States for the Northern District of Illinois, Eastern Division; Charles Edgar Woodward, Judge.

Author: Evans

Before EVANS and SPARKS, Circuit Judges, and BRIGGLE, District Judge.

EVANS, Circuit Judge.

The basis for the writ is the alleged unlawful custody of appellant arising out of his being transferred against his will from the U.S. Northeastern Penitentiary, located at Lewisburg, Pennsylvania, to a penitentiary in California, pursuant to an alleged collusive plan of the Federal officials and state officials of California whereby, upon the expiration of appellant's present term of incarceration in the Federal prision, he would be released in California's jurisdiction and might there be seized by California authorities for further incarceration, because of conviction and sentence, for violation of a criminal statute of California.

Appellees move to dismiss the appeal on the ground that the controversy is moot, appellant having been transported to Alcatraz Island, California, a place without the court's jurisdiction, before this appeal was taken.

Appellant was sentenced by the United States District Court of California, November 5, 1928, to serve seven years in a Federal prison and to pay a fine of$16,000 and stand committed until the fine was paid. He was originally incarcerated in the Federal prision in the state of Washington, then transferred to Leavenworth penitentiary, and then to a Federal prison in Pennsylvania, the Northeastern penitentiary. This last transfer was made at his request.

He started service of sentence on April 25, 1930, and the terms of imprisonment, allowing for good behavior would have expired June 22, 1935, provided the fines were paid.

On June 12, 1935, the order here attacked was made, directing his removal to the Federal penitentiary at Alcatraz Island, California.

While being so removed and in Chicago, he applied to the United States District Court for the Northern District of Illinois for a writ of habeas corpus. The court, after hearing, quashed the writ.

Appellees rely, for justification of the removal, upon the order of the Director of the Bureau of Prisons, who derives his authority from section 7, Act of May 14, 1930, 18 U.S.C.A. § 753f. They also challenge the jurisdiction of this court, basing their contention upon the fact that appellant was not within the jurisdiction of this court when this appeal was taken. In other words, after the District Court quashed the writ, the Federal authorities continued on their way to California with appellant in their custody.

It is alleged by appellant that the sheriff of Los Angeles requested the Attorney General of the United States to transfer appellant to a Federal prison located in California before the termination of appellant's sentence so as to make it possible for the authorities in California to apprehend him and place him in the California jail, pursuant to the sentence which had been pronounced upon him, but which had not been executed because of his confinement in a Federal prison. Appellant alleged that his wife and child live in New York and that he plans to go there on securing his freedom, and he argues that his success in getting transferred to the Federal penitentiary in Pennsylvania would be nullified if the order transferring him to California before his Federal prison sentence expired, is carried out. He also states that his life would be in danger if he were released in California.

His legal contentions are that the enforced removal was contrary to Federal statute, and, regardless of the terms of the statute, he is being deprived of his constitutional rights under the Fifth Amendment to the Federal Constitution.

The first question is resolvable into one of authority on the part of the Director of the Bureau of Prisons to order a transfer under section 7 (18 U.S.C.A. § 753f), or any other section, of one who had been sentenced prior to May 14, 1930, the date of the enactment. It also involves the question of delegation of power from the Attorney General to the Director of the Bureau of Prisons, as ...


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