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UNITED STATES v. SOEDER

April 20, 1954

UNITED STATES
v.
SOEDER.



The opinion of the court was delivered by: Campbell, District Judge.

On June 25, 1945, the petitioner was convicted of transporting stolen vehicles in interstate commerce, and was sentenced by this court to terms of five years in the penitentiary on each of five indictments, plus concurrent sentences on several other indictments. The five-year sentences were to run consecutively; that is, the court intended that the petitioner should be imprisoned for a total of twenty-five years. This sentence is one of the longest ever imposed by this court, and it was designed to remove a violent and seemingly incurable criminal from this community. The petitioner had not only committed the serious offenses charged in the many indictments; he had induced children, incuding a girl whom he had made pregnant, to commit the same offenses. All of the information submitted to this court, including detailed reports of the Federal Bureau of Investigation, indicated that the petitioner was then incapable of adjustment in a lawful and moral society. This court could not in good conscience prescribe lesser sentences; indeed, the sentences which were imposed were half as severe as those urged by the prosecutor. The petitioner has not begun to serve three of his sentences, and he now asks that execution of those sentences be suspended, and that he be placed on probation, because he has since reformed.

It is apparent that the petitioner once applied for Executive Clemency. When the application was denied, the United States Pardon Attorney asked the Warden of the Penitentiary to relay the following information to the petitioner:

    "Subject may wish to explore the possibility of
  obtaining judicial relief through a motion addressed
  to the United States District Court at Chicago for
  suspension of execution of the five-year prison
  sentences imposed on counts 3, 4 and 5 of the
  indictment, or any of them, and grant him in lieu
  thereof, a suitable term of probation.
    "Such a motion might conceivably be predicated upon
  the length of the sentence imposed and the assistance
  which subject is reported to have given the
  government in the prosecution of other defendants.
    "In passing upon such a motion the court would, in
  all probability, take into consideration the
  subject's previous criminal record and the detainer
  filed by the Sheriff of Cook County on August 14,
  1945."

This letter showed beyond doubt that the officer charged with the administration of the President's pardon power believed that the court might effect the release of a person already delivered into Executive custody. Indeed, the United States Pardon Attorney had advised a prisoner that this court is empowered by law to suspend execution of three sentences imposed over eight years ago.

This view of an expanded judicial power has never been urged by an officer of the Executive Branch, at least within the experience of this court. The court therefore requested the United States Attorney for this district to determine the legal basis for the Pardon Attorney's opinion. In answer to an inquiry from the United State's Attorney, the Pardon Attorney indicated that his opinion was based in large measure upon the case of Kirk v. United States, 9 Cir., 1950, 185 F.2d 185. The facts of the Kirk case parallel the case at bar, and the court there held that a series of consecutive sentences might be severed for purposes of the Probation Act, 18 U.S.C.A. § 3651 et seq. This result is premised upon a proposition which this court does not dispute: "A prisoner serving the first of several consecutive sentences is not serving the other sentences." 185 F.2d 187. That is not to say, however, that several consecutive sentences may not be considered as one sentence for purposes of the Probation Act, and as several separate sentences for certain other purposes. This is a common concept, and it is used elsewhere in the administration of our criminal law. See, for example, Dimmick v. Tompkins, 1904, 194 U.S. 540, 551, 24 S.Ct. 780, 783, 48 L.Ed. 1110, which declares that "for some purposes the different counts in an indictment may be regarded as so far separate as to be in effect two different indictments, yet it is not true necessarily and in all cases."

The rule announced in the Kirk case had been adopted by one other court, the Court of Appeals for the Tenth Circuit. White v. Steigleder, 1930, 37 F.2d 858. It should be noted, however, that shortly after the Steigleder decision, the same court stated in another case:

    "If an overlapping of the Parole Act * * * by the
  Probation Act * * * and clashes between the orders of
  district courts and of Parole Boards are to be
  avoided, the Parole Act [sic] must not be construed
  to give authority to district courts to require the
  serving of some portion of a sentence of
  imprisonment, as a condition of parole." White v.
  Burke, 10 Cir., 1930, 43 F.2d 329, 331.

This is the aggregate of the authority upon which the Kirk case may be grounded.

A well-reasoned opinion by Judge Augustus Hand, speaking for the Court of Appeals for the Second Circuit, differs sharply with the letter and spirit of the Kirk case. In United States v. Greenhaus, decided in 1936, Judge Hand had occasion to consider whether or not consecutive sentences might be severed for purposes of the Probation Act. He concluded that "so far as the Probation Act is concerned the sentences are to be regarded as for a single term." 85 F.2d 116, at page 118, 107 A.L.R. 630. Two compelling reasons for refusing to sever consecutive sentences are described in the Greenhaus opinion:

    "* * * such a mode of construing the (Probation
  Act) might subject defendants to conflicting
  disciplines by the courts, the Executive, and the
  parole board. More than that, it would result in
  confusion in determining the rates of commutation of
  sentence to be applied under the Commutation Act".
  85 F.2d 117.

The Greenhaus decision was guided by the definitive opinion in United States v. Murray, 1928, 275 U.S. 347, 48 S.Ct. 146, 149, 72 L.Ed. 309, which marks the limits of judicial power under the Probation Act. The Murray opinion makes clear that Congress did not intend to empower the district courts to control persons within ...


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